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10,507,259
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SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees
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Sweet Home Chapter of Communities for a Great Oregon v. Babbitt
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1993-07-23
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No. 92-5255
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United States Court of Appeals for the District of Columbia Circuit
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{"judges": ["Before MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges."], "parties": ["SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees."], "opinions": [{"text": "Opinion for the Court filed by Chief Judge MIKVA, except section 11(A)(1), which is filed per curiam. Opinion concurring in section 11(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section 11(A)(1) filed by Circuit Judge WILLIAMS.\nOpinion dissenting in part filed by Circuit Judge SENTELLE.\nMIKVA, Chief Judge:\nAppellants, a group of non-profit citizens’ groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service (“FWS” or “agency”) under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants’ own motion for summary judgment. We find that the challenged regulations are reasonable interpretations of the ESA. We also reject appellants’ claim that one of the regulations is void for vagueness. We therefore affirm the district court’s judgment.\nI. BACKGROUND\nThe Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.\nAmong the more important sections of the ESA is 16 U.S.C. § 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of endangered fish and wildlife species. This appeal focuses largely on the prohibition against “taking” an endangered species.\n[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States[.]\n16 U.S.C. § 1538(a)(1)(B) (emphasis added).\nThe ESA defines “take” as follows: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of “harm” and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states:\nHarm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.\n50 C.F.R. § 17.3 (as amended in 1981). Appellants contend that this regulation’s inclusion of habitat modification within the meaning of “take” violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation forbids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, holding that “harm” occurs only where there is an intentionally-caused actual physical injury to a specific member of a listed wildlife species.\nThe other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range_” 16 U.S.C. § 1532(6). The ESA also protects species that are in less immediate peril but are listed as “threatened species.” This term refers to “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).\nOn its face, 16 U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nAppellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of 16 U.S.C. § 1538(a)(1).\nExcept as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. § 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....\n50 C.F.R. § 17.31(a) (1978). Appellants argue that this regulation violates the ESA, because § 1533(d) requires the FWS to extend the prohibitions to threatened species on a species-by-species basis and to do so only after making a specific finding that each such extension was “necessary and advisable.”\nThe district court rejected appellants’ challenges to both 50 C.F.R. § 17.3 and § 17.-31(a) and granted summary judgment to the government. 806 F.Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court’s judgment de novo.\nII. ANALYSIS\nA. The “harm” regulation\n1. Compliance with the Endangered Species Act\nAppellants argue that the “harm” regulation, 50 C.F.R. § 17.3, violates the ESA, because the statute excludes habitat modification from the types of forbidden actions that qualify as “takings” of species. They assert that the ESA’s language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modification when it defined “take” to include “harm” to an endangered species. 16 U.S.C. § 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species.\nWe hold, per curiam, that the “harm” regulation.does not violate the ESA by including actions that modify habitat among prohibited “takings.”\n2. The “void for vagueness” claim\nAppellants also maintain that, on its face, the “harm” regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited “harm” includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of “harm” in 1981:\nSome of the comments in favor of the redefinition ... viewed the action as limiting “harm” to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.\n46 Fed.Reg. 54,748, 54,748 (1981).\nAppellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is “significant” and when such a modification “significantly impair[s] essential behavioral patterns.” 50 C.F.R. § 17.3 (emphasis added). Property owners, say appellants, will thus be subject to criminal sanctions under the ESA based on “some biologist’s subjective view.”\nWe are urged to address this problem by construing the regulation to state that “harm” occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.\nIt is true, as appellants assert, that regulations with criminal sanctions must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial construction of the regulation) merely by showing that it will be impermissibly vague in the context of some hypothetical application.\nThe seminal case concerning pre-enforcement facial challenges- on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Flipside states that when a court examines such a challenge, “assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. at 1191 (emphasis added). Although the Supreme Court does not state precisely what it means by “constitutionally protected conduct,” it is clear that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith, Sheriff v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (“economic regulation is subject to a less strict vagueness test”).\nAppellants, who are not currently the subject of an enforcement action under 50 C.F.R. § 17.3, nonetheless contend that the regulation will inhibit their ability to develop their land, especially by harvesting timber. In other words, the conduct implicated by this case is economic activity. (To the degree that appellants contend that the regulation results in a “taking” of their property in the Fifth Amendment sense, their remedy would be compensation, not a voiding of the regulation.) In accordance with Flipside, we therefore will not find 50 C.F.R. § 17.3 void for vagueness unless the regulation is imper-missibly vague in all of its applications.\nIn fact, the regulation contains features that prevent it from being invariably vague as applied. The definition of “harm” explicitly limits prohibited habitat modification to that which “actually kills or injures wildlife.” 50 C.F.R. § 17.3. Moreover, in order to establish a civil or criminal violation under the “take” provision of the ESA or a regulation implementing that provision, the government must establish that the charged party knowingly violated the statute or regulation. 16 U.S.C. § 1540(a) and (b). The Supreme Court has recognized that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Flipside, 455 U.S. at 499, 102 S.Ct. at 1193.\nIn light of these limitations, there are obviously types of activity, including habitat modification, that 50 C.F.R. § 17.3 clearly prohibits without a hint of vagueness. For example, it obviously forbids the very sort of conduct that appellants argue it should be limited to — habitat modification that causes ascertainable physical injury or death to an individual member of a listed species. Furthermore, § 17.3 unquestionably prohibits major acts of habitat degradation that destroy a species’ ability to breed, feed, or shelter. For instance, a person aware of the regulation would undoubtedly be held accountable for clear-cutting an entire forested area known to be populated by spotted owls.\nBecause the regulation is not vague.in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforcement contexts may arise in which the challenged regulation would be considered impermissibly vague. Under Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete challenge to a particular application of the regulation.\nAppropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps “that will sufficiently narrow potentially vague or arbitrary interpretations” of the regulation. 455 U.S. at 504, 102 S.Ct. at 1196. “Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.” Joseph E. Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966), overruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).\nB. The blanket extension of protections to all threatened species\nAppellants also challenge 50 C.F.R. § 17.31(a), by which the FWS extended the 16 U.S.C. § 1538(a)(1) prohibitions as to endangered species to all threatened species as well. The FWS issued this regulation under the authority granted to it by the ESA at 16 U.S.C. § 1533(d). For the sake of convenience, we quote that provision again:\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in.the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nThe challenged regulation provides in relevant part:\n(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which implements the prohibitions contained in 16 U.S.C. § 1538(a)(1) ] shall apply to threatened wildlife, except § 17.-21(c)(5).\n* * * ¡'fi * *\n(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of [paragraph (a) ] of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.\n50 C.F.R. § 17.31.\nIn short, the FWS has, .with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations. Although appellants’ dissatisfaction is focused entirely on this treatment of the “take” prohibition, the regulation applies all of the § 1538(a)(1) prohibitions to threatened species in this manner.\nAppellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that § 1533(d) requires the Secretary to extend the prohibitions to threatened species on a species-by-species basis. They also assert that the statute requires the agency to explain in each instance why it is “necessary and advisable” to apply the prohibitions to a threatened species.\nWe are not persuaded. As was the case with the “harm” regulation, there is no clear indication that § 17.31(a) violates the intent of the ESA. The statute does not unambiguously compel the agency to expand regulatory protection for threatened species only by promulgating regulations that are specific to individual species. In light of the substantial deference we thus owe the agency under the principles of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we uphold the challenged regulation as a reasonable interpretation of the statute.\nAppellants argue that the plain language of the ESA establishes that Congress intended regulations extending the § 1538(a)(1) prohibitions to threatened species to apply only to individual species. They focus on the first sentence of § 1533(d), pointing out its clear use of the singular. (“Whenever any species is listed as a threatened species-”) They maintain that in light of the first sentence’s unambiguous reference to regulations for a single threatened species, the phrase “any threatened species” in the second sentence must also refer to the singular. Appellants finally note that the Senate Report bolsters their interpretation of the language of § 1533(d) as authorizing regulations tailored to individual species.\n[The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species. Among other protective measures available, he -may make any or all of the acts and conduct defined as “prohibited acts” ... as to “endangered species” also prohibited acts as to the particular threatened species.\nS.Rep. No. 93-307, 93d Cong., 1st Sess. 8 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2989, 2996. (emphasis added).\nIt is, however, less than clear that the language of § 1533(d) is actually intended to require regulations extending the § 1538(a)(1) prohibitions- to apply only to individual species. The reference to “any threatened species” in the second sentence of § 1538(d) could just as easily mean “any or all threatened species” as “any one threatened species.” And appellants’ claim that the clear meaning of the first sentence should control our interpretation of the second is not necessarily valid, for, as appellees argue, the two sentences may represent separate grants of authority. It is possible that it is the second sentence alone that grants the agency authority to extend the § 1538(a)(1) prohibitions to threatened species. See infra pp. 7-8.\nFurthermore, in response to appellants’ use of the Senate Report, appellees counter-pose the use of plural language in the discussion of § 1533(d) in the House Report.\nThe Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has almost an infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the perils of attempting to use ambiguous legislative history to clarify ambiguous words within statutes.\nIn any ease, even assuming that the reference to “any threatened species” in the second sentence of § 1533(d) is singular, the statute still would not clearly forbid the FWS from proceeding in the manner it did. Appellants impart inappropriate significance to the use of the singular versus the plural. The very first provision of the United States Code states, “In determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the sin-guiar include and apply to several persons, parties, or things [and] words importing the plural include the singular.” 1 U.S.C. § 1.\nFurthermore, regardless of the use of singular and plural words, § 1533(d) simply does not speak directly to the question of whether the FWS must promulgate protections speeies-by-species or may extend such protection in a single rulemaking. We will rarely impose a particular procedural strategy on an agency when the relevant statute does not even explicitly address how the agency should proceed. “In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (citations omitted).\nAppellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the § 1533(d) prohibitions to threatened species on a species-by-species basis. They contend that Congress created the distinct categories of endangered and threatened species specifically so that each category would receive the precise degree of protection it required. By presumptively according the very same protections to threatened species as to endangered species, they argue, the FWS is violating this statutory design.\nThis argument also fails, because regardless of the ESA’s overall design, § 1533(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if, guided by its expertise in the field of wildlife protection, it finds it expeditious to do so. In any case, even assuming that Congress intended there to be an indelible difference between the treatment of endangered species and threatened species, appellants fail to acknowledge the very real differences that exist even under the challenged regulation. As noted above, supra, p. 5, the regulation contemplates the issuance of “special rules” for individual threatened species. 50 C.F.R. § 17.31(c). The FWS has actually issued special rules for a substantial number of the fish and wildlife species listed as threatened. See 50 C.F.R. §§ 17.40-48.\nMoreover, FWS regulations provide for the issuance of permits, under certain circumstances, to individual applicants who request permission to commit otherwise prohibited activities with respect to threatened wildlife. 50 C.F.R. § 17.32. Similar permits are available with regard to endangered species, 50 C.F.R. §§ 17.22-.23, but the FWS has made clear that they are more readily available for threatened species.\nThe new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act provides for endangered wildlife. ... The new Subpart D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Sub-part C ... for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply.\n40 Fed.Reg. 28,713 (1975).\nThe FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve different approaches to the conservation of endangered and threatened species; the regulatory scheme satisfies the statute.\nLastly, appellants claim that 50 C.F.R. § 17.31(a) violates the ESA because § 1533(d) requires the FWS to make individualized formal findings that the prohibitions are “necessary and advisable” for the conservation each threatened species to which they are extended. Not only did the agency fail to make such findings for each individual species; it did not even make such a finding in regard to the category of threatened species as a whole when it issued the blanket extension of prohibitions.\nAs appellees argue, however, there is a reasonable reading of § 1533(d) that would not require the FWS to issue formal “necessary and advisable” findings when extending the prohibitions to threatened species. According to this interpretation, the two sentences of § 1533(d) represent separate grants of authority. The second sentence gives the FWS discretion to apply any or all of the § 1538(a)(1) prohibitions to threatened species without obligating it to support such actions with findings of necessity. Only the first sentence of § 1538(d) contains the “necessary and advisable” language and mandates formal individualized findings. This sentence requires the FWS to issue whatever other regulations are “necessary and advisable,” including regulations that impose protective measures beyond those contained in § 1538(a)(1).\nIn sum, we find it far from clear that 16 U.S.C. § 1533(d) requires the FWS to extend protections to threatened species on a spe-eies-by-species basis or that it mandates that the agency issue formal findings of necessity to support each such extension. In light of the statute’s ambiguity, the challenged FWS regulation is a reasonable and permissible construction of the ESA. We therefore uphold 50 C.F.R. § 17.31(a).\nIII. CONCLUSION\nNeither the regulation defining harm nor the regulation extending blanket protection to threatened species is an unreasonable interpretation of the Endangered Species Act. Moreover, the “harm” regulation is not im-permissibly vague on its face. We therefore affirm the judgment of the district court and uphold both regulations.\nIt is so ordered.", "type": "majority", "author": "MIKVA, Chief Judge:"}, {"text": "MIKVA, Chief Judge,\nconcurring in Section 11(A)(1) of the opinion:\nI write separately in order to articulate fully my reasons for rejecting appellants’ argument that we should set aside the “harm” regulation as violative of the ESA.\nWhen we review an agency’s construction of a statute that it is entrusted to administer, we follow the deferential approach set out by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988) (citations omitted). If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 108 S.Ct. at 2782.\nAppellants contend that Congress clearly intended to exclude habitat modification from the types of takings prohibited by the ESA and that this Court thus owes no deference to the FWS “harm” regulation. I disagree. In my view, the “harm” regulation conflicts with neither the ESA itself nor its ambiguous legislative history and is unquestionably a permissible and reasonable construction of the statute. I therefore do not accept appellants’ claim that 50 C.F.R. § 17.3 transgresses the ESA.\nIt is hard to construct a legislative scenario in which Congress would have avoided the problem of habitat modification when it crafted the ESA. The drafters of the statute realized that the degradation of habitats posed one of the gravest threats to the continued existence of endangered and threatened species. As the Supreme Court has noted:\nIn shaping [the ESA], Congress started from the finding that “[t]he two major causes of extinction are hunting and destruction of natural habitat.” S.Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats....\nTVA v. Hill, 437 U.S. 153, 179, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978). Indeed, the first stated purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved....” 16 U.S.C. § 1531(b).\nAppellants acknowledge that Congress intended to halt injurious habitat modification when it passed the ESA. They contend only that Congress did not mean to combat habitat degradation on private lands through the prohibition against takings in 16 U.S.C. § 1538. They argue that Congress intended to combat this problem solely through § 1534’s provision for federal land acquisition.\nAccording to appellants, the legislative history of the “take” provision establishes that Congress did not mean for that term to encompass habitat modification. They note that the original bill that was referred to the Senate Committee on Commerce, S. 1983, defined “take” to include “destruction, modification, or curtailment of [an endangered species’] habitat or range.” S. 1983, 93d Cong., 1st Sess., § 3(6) (1973). The bill reported out of committee, however, did not refer to habitat modification in the definition of “take.” This omission, appellants argue, evinces Congress’ intent not to include habitat modification within the scope of prohibited “takings.”\nAppellants maintain that Congress intended instead to address the problem of habitat modification caused by private actions on private lands exclusively through land acquisition by the federal government. Section 1534 authorizes the Secretary of the Interior, as well as the Secretary of Agriculture with respect to the National Forest System, to acquire land as part of “a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species_” 16 U.S.C. § 1534(a). Appellants point to various statements in the legislative history that suggest that some members of Congress may have wanted land acquisition, not the prohibition of land uses, to be the ESA’s sole weapon against habitat modification on private lands. Appellants further argue that Congress logically must have intended land acquisition to be the exclusive mechanism for preventing such habitat modification. Otherwise, they contend, agency officials would always choose the free alternative of prohibiting a damaging land use under the “take” provision, rather than paying to acquire the affected land.\nI find the legislative history to be most ambiguous regarding whether Congress intended to include habitat modification within the meaning of “take.” It is true that the Senate Committee chose not to use the S. 1983 definition of “take,” which specifically encompassed habitat modification. Instead, the Committee adopted a definition from the other bill under consideration, S. 1592, which did not explicitly include habitat modification. But as the district court noted, there is no indication in the legislative history as to why the Committee selected one definition over the other.\nThere is nothing to suggest that Congress chose the definition it did in order to exclude habitat modification. The Committee may have rejected the S.1983 definition only because it apparently would have made habitat modification a per se violation of the ESA. It is certainly possible that the Committee did not intend to foreclose an administrative regulation prohibiting habitat modification- — - so long as that prohibition was accompanied by limitations, such as those contained in the FWS regulation under review, requiring that there be actual injury or death to the species. In any case, Congress manifested no clear intent to exclude habitat modification from the “take” definition. Indeed, the Senate Committee Report states that “ ‘Take’ is defined ... in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 1973, 2995.\nAppellants’ contention that Congress intended land acquisition to be the exclusive instrument for curbing habitat modification on private lands is similarly speculative. Nothing in the language of 16 U.S.C. § 1534 or in the legislative history establishes that Congress meant land acquisition to be the only mechanism for habitat protection on private lands. The only evidence appellants can garner in support of their assertion to the contrary is a few isolated and ambiguous remarks by members of Congress on the floor. See 119 Cong.Rec. 25,669 (1973) (statement of Sen. Tunney); 119 Cong.Rec. 30,162 (1973) (statement of Rep. Sullivan); 119 Cong.Rec. 25,691 (1973) (statement of Sen. Nelson). The general rule is that “debates in Congress expressive of the views and motives of individual members are not a safe guide ... in ascertaining the meaning and purpose of the law-making body.” Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 179, 65 L.Ed. 349 (1921). In any ease, these statements do not establish that even the speakers themselves intended land acquisition to be the exclusive protective mechanism for habitats on private lands.\nThere is also little force behind appellants’ claim that including habitat modification within the meaning of “take” renders the land acquisition provision of § 1534 a nullity. Appellants suggest that agency officials will not pay to acquire land if they can accomplish the same habitat preservation objective without cost by banning the offending land use. But there are in fact many reasons why, in its effort to protect endangered and threatened species, the government might choose to acquire land rather than simply forbid damaging activity. Federal wildlife managers can surely do more to help such species on government-owned and controlled preserves than they could ever accomplish on private lands. Indeed, § 1534 land acquisition is explicitly designed to facilitate “conservation programs,” a phrase that suggests a type of intervention more complex and proactive than simply forbidding certain activities on private lands. -\nAppellants argue that the agency must interpret the word “harm” narrowly so as not to include habitat modification because none of the other “take” terms — “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect” — represents a land use action that injures wildlife only indirectly. They argue that under the principle of statutory construction known as noscitur a sociis, a general term in a list should be interpreted narrowly “to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961).\nDespite appellants’ suggestions, however, the other prohibitions can limit a private landowner’s use of his land in a rather broad manner. In particular, the prohibition against “harassment” can be used to suppress activities that are in no way intended to injure an endangered species. The House Report stated:\n[Take] includes harassment, whether intentional or not. This would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 11 (1973). Indeed, the FWS has defined “harass” in a way that is almost as broad as the “harm” definition:\nHarass in the definition of “take” in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.\n50 C.F.R. § 17.3. Appellants have not challenged this definition.\nNoscitur a sociis means, literally, that a word is known by the company it keeps. Jarecki, 367 U.S. at 307, 81 S.Ct. at 1582. In the definition of “take,” the term “harm” is accompanied by an assortment of words ranging from the precise and narrow “shoot” to the vague and expansive “harass.” Consequently, even if I were willing to find an agency’s construction of a statute to be impermissible based solely on a seldom-used and indeterminate principle of statutory construction, I would not do so in the present case.\nAlthough the ESA is generally ambiguous as to whether the “take” prohibition forbids habitat modification, there is at least one feature of the statute that strongly suggests that Congress did in fact intend to include habitat modification within the meaning of “take.” In 1982, Congress amended the ESA to include a provision authorizing the FWS to issue a permit allowing “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).\nBy allowing the agency, at its discretion, to permit “incidental takings,” Congress implicitly confirmed that incidental takings were otherwise forbidden by the Act. And it is hard to imagine what “incidental takings” might be other than habitat modification. Indeed, the legislative history of the 1982 amendments reveals that habitat modification was precisely what Congress had in mind. The House Report states, “This provision is modeled after a habitat conservation plan that has been developed by three Northern California cities_ [It] will ... provide the institutional framework to permit cooperation between the public and private sectors in the interest of endangered species and habitat conservation.” H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982), U.S.Code Cong. & Admin.News 1982, pp. 2807, 2871, 2872.\nOverall, there is nothing in the ESA itself or in its legislative history that unambiguously demonstrates that the term “take” does not encompass habitat modification. Indeed, as I noted in my discussion of the 1982 amendments, there is evidence to the contrary. Chevron commands that unless it is absolutely clear that an agency’s interpretation of a statute, entrusted to it to administer, is contrary to the will of Congress, courts must defer .to that interpretation so long as it is reasonable. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.\nIn upholding the challenged regulation, we join the Ninth Circuit, which has similarly held that the agency’s inclusion of habitat destruction in the definition of “harm” is a permissible interpretation of the ESA. That Circuit has stated that “[t]he Secretary’s inclusion of habitat destruction that could result in extinction follows the plain language of the statute because it serves the overall purpose of the Act_” Palila v. Hawaii Dep’t of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir.1988).", "type": "concurrence", "author": "MIKVA, Chief Judge,"}, {"text": "WILLIAMS, Circuit Judge,\nconcurring in Section 11(A)(1) of the opinion:\nI agree that the “harm” regulation, 50 CFR § 17.3, complies with the Endangered Species Act — but only because of the 1982 amendments to the ESA. See Pub.L. 97-\n304, §§ 4(a)(2) and 6(1) (codified respectively at 16 U.S.C. §§ 1536(b)(4)(B) and 1539(a)(1)(B)). Those amendments, which authorize the FWS to issue permits for “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity,” 16 U.S.C. § 1539(a)(1)(B), support the inference that the ESA otherwise forbids some such incidental takings, including some habitat modification. But for the 1982 amendments, I would find Judge Sentelle’s analysis highly persuasive — including his discussion of the noscitur a sociis canon. See RLEA v. NMB, 988 F.2d 133, 144 (D.C.Cir.1993) (Williams, J., dissenting) (characterizing the canon as a “powerful linguistic norm”).", "type": "concurrence", "author": "WILLIAMS, Circuit Judge,"}, {"text": "SENTELLE, Circuit Judge,\ndissenting:\nAs we have observed, “some will find ambiguity even in a ‘No Smoking’ sign.” International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C.Cir.1987). In the present case the Fish and Wildlife Service has established that it would not only find such ambiguity, but would deem a congressional authorization for the erection of “No Smoking” signs to authorize the adoption of regulations against chewing and spitting.\nAs Chief Judge Mikva notes, this case is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That decision mandates a two-step analysis. At the first step “we inquire into whether Congress has directly spoken to the precise question at issue. If we can come to the unmistakable conclusion that Congress had an intention on the precise question at issue, our inquiry ends there.” Nuclear Info. Resource Serv. v. Nuclear Regulatory Comm’n, 969 F.2d 1169, 1173 (1992) (en banc) (citations and internal quotation marks omitted). At the second step “if the statute ... is silent or ambiguous with respect to the specific issue before us, ... we defer to the agency’s interpretation of the statute if it is reasonable and consistent with the statute’s purpose.” Id. (citations and internal quotation marks omitted). While I am willing to concede the possibility that some ambiguity may remain in the unusually specific recitation by Congress of its intent in defining the term “take,” I cannot cram the agency’s huge regulatory definition into the tiny crack of ambiguity Congress left.\nAs a colleague of ours has observed, “the second prong of the Chevron inquiry, whether an agency’s interpretation of an ambiguous statutory provision is reasonable, is also not devoid of content.” National Ass’n for Better Broadcasting v. FCC, 849 F.2d 665, 671 n. 3 (D.C.Cir.1988) (Wald, C.J., dissenting). In the present case, I see no reasonable way that the term “take” can be defined to include “significant habitat modification or degradation” as it is defined in 50 C.F.R. § 17.3. I have in my time seen a great many farmers modifying habitat. They modify by plowing, by tilling, by clearing, and in a thousand other ways. At no point when I have seen a farmer so engaged has it occurred to me that he is taking game. Nor do I think it would occur to anyone else that he was taking wildlife. He may be doing something harmful to wildlife, but he is not “taking” it.\nIn my view, the fact that the farmer may be indirectly harming wildlife, and that the statutory definition includes “harm” helps the agency’s cause but little. To analogize again to the smoking proposition, if Congress authorized the erection of “No Smoking” signs in public buildings and thereafter defined smoking to “include lighting, burning, puffing, inhaling, and otherwise harmfully employing the noxious nicotine-bearing tobacco products,” some zealous bureau might well attempt to define smoking to include chewing and spitting under the rubric of the “harmful use” in Congress’s definition of smoking. Perhaps some might think that reference to harm would cause the concept of smoking to include chewing. I do not think those creative regulators would be thinking reasonably if they should do so, nor do I think the regulators act reasonably in the present case.\nAs my colleague observes, there is an ancient “principle of statutory construction known as noscitur a sociis, a general word in a list should be interpreted narrowly ‘to avoid the giving of unintended breadth to the Acts of Congress.’ ” Mikva Op. at 10, quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). In the present statute, all the other terms among which “harm” finds itself keeping company relate to an act which a specifically acting human does to a specific individual representative of a wildlife species. In fact, they are the sorts of things an individual human commonly does when he intends to “take” an animal. Otherwise put, if I were intent on taking a rabbit, a squirrel, or a deer, as the term “take” is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, or collect” one of the target species. 16 U.S.C. § 1532(19). If I succeeded in that endeavor, I would certainly have “taken” the beast. If I failed, I would at least have “attempt[ed] to engage in ... such conduct.” Id.\nAll this falls neatly within a reasonable construction of “take,” just as puffing a pipe falls neatly within the definition of smoking, and I would not dare to do such in front of a “No Smoking” sign. However, I would think it most unreasonable if a regulator told me that I could not chew nicotine gum in front of the same sign because the agency had decided that it was harmful and therefore constituted smoking. It appears to me that the Fish and Wildlife Service has engaged in a similarly unreasonable expansion of terms in the present case.\nI do not find the unreasonableness of the Service’s construction to be in any way alleviated by the Senate Committee Report stating that “ ‘[t]ake’ is defined ... in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 973, 2995 (quoted by Mikva Op. at 9). Should one committee of the anti-smoking Congress have included in its discussion of the “No Smoking” sign authorization language to the effect that “ ‘smoking’ is defined in the broadest possible manner to include every conceivable way in which a person can ‘smoke’ or attempt to ‘smoke’ any form of tobacco,” that still would not convince me that the term could be defined to include chewing. Nor does the majority’s reliance on that same sort of legislative history convince me that Congress, by mandating the broadest possible manner of definition, intended to deprive the definition of any bounds whatsoever and turn the word into a free form concept inclusive of anything an agency might wish it to cover.\nI am bolstered in my conviction by another rule of statutory construction: that is, the presumption against surplusage. “[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackie v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). The construction placed upon the word “harm” by the agency and adopted by the court today renders superfluous everything else in the definition of “take.” If “harm” means any “act which actually kills or injures wildlife,” including “habitat modification or degradation,” I can see no reason why Congress also included in the definition of “take” the terms “harass, ... pursue, hunt, shoot, wound, kill, trap, capture, [and] collect.” 16 U.S.C. § 1532(19). Every single one of those acts, particularly when coupled with further language of the congressional definition which includes “to attempt to engage in any such conduct,” id., falls within the definition of “harm” as understood by the agency. I am unwilling to believe that Congress deliberately wasted the considerable ink and paper devoted to the many copies of this legislation containing all the other words in section 1532(19). I am, therefore, unwilling to accept the Service’s definition in the present case, no matter how well intended.\nBecause I would void the regulation at this early stage, I would'not reach the void-for-vagueness claim. I would observe, however, that I do not see how a definition as boundless as the agency conceives for the word “take” and the component “harm” of its definition could readily avoid being impermissi-bly vague.\nI respectfully dissent.\n. The only word replaced by ellipses is \"harm,” the word under examination.", "type": "dissent", "author": "SENTELLE, Circuit Judge,"}], "attorneys": ["John A. MacLeod, with whom Steven P. Quarles and Thomas R. Lundquist, Washington, DC, were on the brief, for appellants.", "Ellen J. Durkee, Attorney, Dept, of Justice, with whom Martin W. Matzen and Jean E. Williams, Attorneys, Dept, of Justice, Washington, DC, were on the brief, for ap-pellees."], "corrections": "", "head_matter": "SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees.\nNo. 92-5255.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Feb. 17, 1993.\nDecided July 23, 1993.\nJohn A. MacLeod, with whom Steven P. Quarles and Thomas R. Lundquist, Washington, DC, were on the brief, for appellants.\nEllen J. Durkee, Attorney, Dept, of Justice, with whom Martin W. Matzen and Jean E. Williams, Attorneys, Dept, of Justice, Washington, DC, were on the brief, for ap-pellees.\nBefore MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges."}
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MIKVA
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WILLIAMS
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SENTELLE
| 1
| 4
| 1
| 1
| 2
| 0
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1 F.3d 1
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[
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as “the Court”** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- **Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)**\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- **Due Process, Privacy (issue_area.code = 4 OR 5)**\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- **Unions, Economic Activity (issue_area.code = 7 OR 8)**\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- **Judicial Power (issue_area.code = 9)**\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- **Federalism (issue_area.code = 10)**\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- **Federal Taxation (issue_area.code = 12)**\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- **Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)**\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe **lower court’s outcome**. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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{
"content": "[CASE_METADATA]\nCase name: SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-07-23\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the Court filed by Chief Judge MIKVA, except section 11(A)(1), which is filed per curiam. Opinion concurring in section 11(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section 11(A)(1) filed by Circuit Judge WILLIAMS.\nOpinion dissenting in part filed by Circuit Judge SENTELLE.\nMIKVA, Chief Judge:\nAppellants, a group of non-profit citizens’ groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service (“FWS” or “agency”) under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants’ own motion for summary judgment. We find that the challenged regulations are reasonable interpretations of the ESA. We also reject appellants’ claim that one of the regulations is void for vagueness. We therefore affirm the district court’s judgment.\nI. BACKGROUND\nThe Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.\nAmong the more important sections of the ESA is 16 U.S.C. § 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of endangered fish and wildlife species. This appeal focuses largely on the prohibition against “taking” an endangered species.\n[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States[.]\n16 U.S.C. § 1538(a)(1)(B) (emphasis added).\nThe ESA defines “take” as follows: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of “harm” and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states:\nHarm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.\n50 C.F.R. § 17.3 (as amended in 1981). Appellants contend that this regulation’s inclusion of habitat modification within the meaning of “take” violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation forbids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, holding that “harm” occurs only where there is an intentionally-caused actual physical injury to a specific member of a listed wildlife species.\nThe other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range_” 16 U.S.C. § 1532(6). The ESA also protects species that are in less immediate peril but are listed as “threatened species.” This term refers to “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).\nOn its face, 16 U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nAppellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of 16 U.S.C. § 1538(a)(1).\nExcept as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. § 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....\n50 C.F.R. § 17.31(a) (1978). Appellants argue that this regulation violates the ESA, because § 1533(d) requires the FWS to extend the prohibitions to threatened species on a species-by-species basis and to do so only after making a specific finding that each such extension was “necessary and advisable.”\nThe district court rejected appellants’ challenges to both 50 C.F.R. § 17.3 and § 17.-31(a) and granted summary judgment to the government. 806 F.Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court’s judgment de novo.\nII. ANALYSIS\nA. The “harm” regulation\n1. Compliance with the Endangered Species Act\nAppellants argue that the “harm” regulation, 50 C.F.R. § 17.3, violates the ESA, because the statute excludes habitat modification from the types of forbidden actions that qualify as “takings” of species. They assert that the ESA’s language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modification when it defined “take” to include “harm” to an endangered species. 16 U.S.C. § 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species.\nWe hold, per curiam, that the “harm” regulation.does not violate the ESA by including actions that modify habitat among prohibited “takings.”\n2. The “void for vagueness” claim\nAppellants also maintain that, on its face, the “harm” regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited “harm” includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of “harm” in 1981:\nSome of the comments in favor of the redefinition ... viewed the action as limiting “harm” to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.\n46 Fed.Reg. 54,748, 54,748 (1981).\nAppellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is “significant” and when such a modification “significantly impair[s] essential behavioral patterns.” 50 C.F.R. § 17.3 (emphasis added). Property owners, say appellants, will thus be subject to criminal sanctions under the ESA based on “some biologist’s subjective view.”\nWe are urged to address this problem by construing the regulation to state that “harm” occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.\nIt is true, as appellants assert, that regulations with criminal sanctions must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial construction of the regulation) merely by showing that it will be impermissibly vague in the context of some hypothetical application.\nThe seminal case concerning pre-enforcement facial challenges- on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Flipside states that when a court examines such a challenge, “assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. at 1191 (emphasis added). Although the Supreme Court does not state precisely what it means by “constitutionally protected conduct,” it is clear that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith, Sheriff v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (“economic regulation is subject to a less strict vagueness test”).\nAppellants, who are not currently the subject of an enforcement action under 50 C.F.R. § 17.3, nonetheless contend that the regulation will inhibit their ability to develop their land, especially by harvesting timber. In other words, the conduct implicated by this case is economic activity. (To the degree that appellants contend that the regulation results in a “taking” of their property in the Fifth Amendment sense, their remedy would be compensation, not a voiding of the regulation.) In accordance with Flipside, we therefore will not find 50 C.F.R. § 17.3 void for vagueness unless the regulation is imper-missibly vague in all of its applications.\nIn fact, the regulation contains features that prevent it from being invariably vague as applied. The definition of “harm” explicitly limits prohibited habitat modification to that which “actually kills or injures wildlife.” 50 C.F.R. § 17.3. Moreover, in order to establish a civil or criminal violation under the “take” provision of the ESA or a regulation implementing that provision, the government must establish that the charged party knowingly violated the statute or regulation. 16 U.S.C. § 1540(a) and (b). The Supreme Court has recognized that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Flipside, 455 U.S. at 499, 102 S.Ct. at 1193.\nIn light of these limitations, there are obviously types of activity, including habitat modification, that 50 C.F.R. § 17.3 clearly prohibits without a hint of vagueness. For example, it obviously forbids the very sort of conduct that appellants argue it should be limited to — habitat modification that causes ascertainable physical injury or death to an individual member of a listed species. Furthermore, § 17.3 unquestionably prohibits major acts of habitat degradation that destroy a species’ ability to breed, feed, or shelter. For instance, a person aware of the regulation would undoubtedly be held accountable for clear-cutting an entire forested area known to be populated by spotted owls.\nBecause the regulation is not vague.in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforcement contexts may arise in which the challenged regulation would be considered impermissibly vague. Under Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete challenge to a particular application of the regulation.\nAppropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps “that will sufficiently narrow potentially vague or arbitrary interpretations” of the regulation. 455 U.S. at 504, 102 S.Ct. at 1196. “Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.” Joseph E. Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966), overruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).\nB. The blanket extension of protections to all threatened species\nAppellants also challenge 50 C.F.R. § 17.31(a), by which the FWS extended the 16 U.S.C. § 1538(a)(1) prohibitions as to endangered species to all threatened species as well. The FWS issued this regulation under the authority granted to it by the ESA at 16 U.S.C. § 1533(d). For the sake of convenience, we quote that provision again:\nWhenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in.the case of fish or wildlife....\n16 U.S.C. § 1533(d).\nThe challenged regulation provides in relevant part:\n(a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 [which implements the prohibitions contained in 16 U.S.C. § 1538(a)(1) ] shall apply to threatened wildlife, except § 17.-21(c)(5).\n* * * ¡'fi * *\n(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of [paragraph (a) ] of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.\n50 C.F.R. § 17.31.\nIn short, the FWS has, .with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations. Although appellants’ dissatisfaction is focused entirely on this treatment of the “take” prohibition, the regulation applies all of the § 1538(a)(1) prohibitions to threatened species in this manner.\nAppellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that § 1533(d) requires the Secretary to extend the prohibitions to threatened species on a species-by-species basis. They also assert that the statute requires the agency to explain in each instance why it is “necessary and advisable” to apply the prohibitions to a threatened species.\nWe are not persuaded. As was the case with the “harm” regulation, there is no clear indication that § 17.31(a) violates the intent of the ESA. The statute does not unambiguously compel the agency to expand regulatory protection for threatened species only by promulgating regulations that are specific to individual species. In light of the substantial deference we thus owe the agency under the principles of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we uphold the challenged regulation as a reasonable interpretation of the statute.\nAppellants argue that the plain language of the ESA establishes that Congress intended regulations extending the § 1538(a)(1) prohibitions to threatened species to apply only to individual species. They focus on the first sentence of § 1533(d), pointing out its clear use of the singular. (“Whenever any species is listed as a threatened species-”) They maintain that in light of the first sentence’s unambiguous reference to regulations for a single threatened species, the phrase “any threatened species” in the second sentence must also refer to the singular. Appellants finally note that the Senate Report bolsters their interpretation of the language of § 1533(d) as authorizing regulations tailored to individual species.\n[The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that species. Among other protective measures available, he -may make any or all of the acts and conduct defined as “prohibited acts” ... as to “endangered species” also prohibited acts as to the particular threatened species.\nS.Rep. No. 93-307, 93d Cong., 1st Sess. 8 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2989, 2996. (emphasis added).\nIt is, however, less than clear that the language of § 1533(d) is actually intended to require regulations extending the § 1538(a)(1) prohibitions- to apply only to individual species. The reference to “any threatened species” in the second sentence of § 1538(d) could just as easily mean “any or all threatened species” as “any one threatened species.” And appellants’ claim that the clear meaning of the first sentence should control our interpretation of the second is not necessarily valid, for, as appellees argue, the two sentences may represent separate grants of authority. It is possible that it is the second sentence alone that grants the agency authority to extend the § 1538(a)(1) prohibitions to threatened species. See infra pp. 7-8.\nFurthermore, in response to appellants’ use of the Senate Report, appellees counter-pose the use of plural language in the discussion of § 1533(d) in the House Report.\nThe Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Secretary has almost an infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species.\nH.R.Rep. No. 93-412, 93d Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the perils of attempting to use ambiguous legislative history to clarify ambiguous words within statutes.\nIn any ease, even assuming that the reference to “any threatened species” in the second sentence of § 1533(d) is singular, the statute still would not clearly forbid the FWS from proceeding in the manner it did. Appellants impart inappropriate significance to the use of the singular versus the plural. The very first provision of the United States Code states, “In determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the sin-guiar include and apply to several persons, parties, or things [and] words importing the plural include the singular.” 1 U.S.C. § 1.\nFurthermore, regardless of the use of singular and plural words, § 1533(d) simply does not speak directly to the question of whether the FWS must promulgate protections speeies-by-species or may extend such protection in a single rulemaking. We will rarely impose a particular procedural strategy on an agency when the relevant statute does not even explicitly address how the agency should proceed. “In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (citations omitted).\nAppellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the § 1533(d) prohibitions to threatened species on a species-by-species basis. They contend that Congress created the distinct categories of endangered and threatened species specifically so that each category would receive the precise degree of protection it required. By presumptively according the very same protections to threatened species as to endangered species, they argue, the FWS is violating this statutory design.\nThis argument also fails, because regardless of the ESA’s overall design, § 1533(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if, guided by its expertise in the field of wildlife protection, it finds it expeditious to do so. In any case, even assuming that Congress intended there to be an indelible difference between the treatment of endangered species and threatened species, appellants fail to acknowledge the very real differences that exist even under the challenged regulation. As noted above, supra, p. 5, the regulation contemplates the issuance of “special rules” for individual threatened species. 50 C.F.R. § 17.31(c). The FWS has actually issued special rules for a substantial number of the fish and wildlife species listed as threatened. See 50 C.F.R. §§ 17.40-48.\nMoreover, FWS regulations provide for the issuance of permits, under certain circumstances, to individual applicants who request permission to commit otherwise prohibited activities with respect to threatened wildlife. 50 C.F.R. § 17.32. Similar permits are available with regard to endangered species, 50 C.F.R. §§ 17.22-.23, but the FWS has made clear that they are more readily available for threatened species.\nThe new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act provides for endangered wildlife. ... The new Subpart D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Sub-part C ... for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply.\n40 Fed.Reg. 28,713 (1975).\nThe FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve different approaches to the conservation of endangered and threatened species; the regulatory scheme satisfies the statute.\nLastly, appellants claim that 50 C.F.R. § 17.31(a) violates the ESA because § 1533(d) requires the FWS to make individualized formal findings that the prohibitions are “necessary and advisable” for the conservation each threatened species to which they are extended. Not only did the agency fail to make such findings for each individual species; it did not even make such a finding in regard to the category of threatened species as a whole when it issued the blanket extension of prohibitions.\nAs appellees argue, however, there is a reasonable reading of § 1533(d) that would not require the FWS to issue formal “necessary and advisable” findings when extending the prohibitions to threatened species. According to this interpretation, the two sentences of § 1533(d) represent separate grants of authority. The second sentence gives the FWS discretion to apply any or all of the § 1538(a)(1) prohibitions to threatened species without obligating it to support such actions with findings of necessity. Only the first sentence of § 1538(d) contains the “necessary and advisable” language and mandates formal individualized findings. This sentence requires the FWS to issue whatever other regulations are “necessary and advisable,” including regulations that impose protective measures beyond those contained in § 1538(a)(1).\nIn sum, we find it far from clear that 16 U.S.C. § 1533(d) requires the FWS to extend protections to threatened species on a spe-eies-by-species basis or that it mandates that the agency issue formal findings of necessity to support each such extension. In light of the statute’s ambiguity, the challenged FWS regulation is a reasonable and permissible construction of the ESA. We therefore uphold 50 C.F.R. § 17.31(a).\nIII. CONCLUSION\nNeither the regulation defining harm nor the regulation extending blanket protection to threatened species is an unreasonable interpretation of the Endangered Species Act. Moreover, the “harm” regulation is not im-permissibly vague on its face. We therefore affirm the judgment of the district court and uphold both regulations.\nIt is so ordered.\n[END_CASE]",
"role": "user"
}
] |
10,507,307
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UNITED STATES of America v. Blaine A'mmon WHITE, Appellant
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United States v. White
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1993-07-27
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No. 92-3130
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United States Court of Appeals for the District of Columbia Circuit
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{"judges": ["Before: MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges."], "parties": ["UNITED STATES of America v. Blaine A’mmon WHITE, Appellant."], "opinions": [{"text": "Opinion for the Court filed by Circuit Judge SILBERMAN.\nSILBERMAN, Circuit Judge:\nAppellant claims that his convictions for passport fraud and for aiding and abetting passport fraud violated the Double Jeopardy Clause. He also raises a number of challenges to his sentence under the Sentencing Guidelines. We affirm the convictions and reject appellant’s objections to his sentence.\nI.\nThe facts are essentially undisputed. Acting on behalf of a client on November 1, 1989, Blaine White, who is an attorney, obtained a birth certificate from the Maryland vital records office bearing the name William S. Baldwin. Subsequently, on November 13, he signed an affidavit in support of the same client’s application for a United States passport. White swore that he had known the applicant for five years, that he knew the applicant was a United States citizen, and that the applicant’s name was William S. Baldwin. The birth certificate was used as proof of identity in the passport application.\nAppellant was originally charged in a two-count indictment with document fraud, 18 U.S.C. § 1028(a)(4), and passport fraud, 18 U.S.C. § 1542. Section 1028(a)(4) makes it a crime to “knowingly possess[ ] an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States,” and section 1542 makes it unlawful to “willfully and knowingly make[ ] any false statement in an application for [a] passport.”\nThe government attempted to establish that White had been involved in a scheme to obtain false identification documents for a Canadian citizen, Harold D. Linden, a/k/a Norman Harold Moore, who was residing in this country illegally and who had retained White as an attorney. The real William S. Baldwin had died two days before White applied for the birth certificate (his obituary appeared in the newspaper on October 31) and the government sought to prove that White knew he was obtaining the dead man’s birth record. An official from the vital records office testified that White received the birth certificate under a special procedure that the office used to allow attorneys to obtain the records .of deceased persons. Had Baldwin still been alive, White could not have obtained the certificate without a notarized authorization from Baldwin himself. White testified, however, that his client, the individual identified at trial as Harold Linden, had always been known to him as William Baldwin, and that he had no idea that there was any special procedure used in issuing deceased persons’ records. Thus, White claimed that he had no idea that he was acquiring a dead person’s birth certificate and asserted that the affidavit he signed at the passport office was true to the best of his knowledge.\nThe jury acquitted White of document fraud under section 1028(a)(4), but could not reach a verdict on the passport charge. The district judge declared a mistrial on the latter count and dismissed the charge without prejudice.\nWhite was subsequently reindicted on a five-count indictment that charged, among other crimes, making false statements in an affidavit accompanying a passport application, 18 U.S.C. § 1542 (Count IV) (this was the same charge on which there had been a hung jury in the first trial) and aiding and abetting Linden in making false statements in a passport application “by supplying Linden -with a false name, William Smith Baldwin, and false Social Security number” (Count V). According to the government, appellant not only provided Linden with a birth certificate, but also copied a Social Security number from a client’s file in his law firm and gave the number to Linden to use on the passport application. Appellant moved to dismiss the charges on double jeopardy grounds. According to appellant, the jury in the first trial conclusively determined that he did not know that Linden was not William Baldwin. Any subsequent prosecution that would call into question that jury determination would be barred by the collateral estoppel component of the double jeopardy protection. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Appellant also contended that under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), evidence of his conduct in obtaining the birth certificate could not be used in any subsequent prosecution because he had already been acquitted on the document fraud count.\nThe district court denied appellant’s motion, see United States v. White, 757 F.Supp. 45 (D.D.C.1990), and appellant brought an interlocutory appeal. We rejected appellant’s collateral estoppel argument and held that the jury’s verdict in the first trial did not conclusively determine the issue of appellant’s knowledge. See United States v. White, 936 F.2d 1326, 1329 (D.C.Cir.) (White I), cert. denied, — U.S. -, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). We reasoned that, had the jury actually concluded that appellant did not know of Linden’s double identity, it would also have acquitted appellant on the passport charge. See id. In that interlocutory appeal, we did not reach the question whether Grady v. Corbin barred prosecution of Count V (aiding and abetting passport fraud), because the government agreed to limit its use of the evidence concerning the acquisition of the birth certificate. See id. at 1330. The government conceded that it could not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the U.S. at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” Id. at 1330 n. 2.\nIn the second trial, the government reintroduced part of the evidence it had used in the first trial relating to the document fraud charge. The jury convicted on both Counts IV and V but acquitted appellant on all other counts.\nII.\nA.\nAppellant relies exclusively on the Supreme Court’s decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to argue that in his'second trial the government violated the Double Jeopardy Clause, see U.S. Const., Amend. 5 (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”), by prosecuting him for the same offense of which he was acquitted in the first trial. But Grady has been overruled, see United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and the Supreme Court has ma.de clear that the so-called Blockburger test is the sole test for determining whether the crimes charged in successive prosecutions are the “same offense” for double jeopardy purposes. See id. — U.S. at -, 113 S.Ct. at 2860; see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger analysis focuses strictly on the statutory elements of crimes: two offenses are not the same as long as each requires proof of an element the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.\nThere can be little doubt that document fraud under 18 U.S.C. § 1028(a)(4) is not the same offense as either passport fraud or aiding and abetting passport fraud under 18 U.S.C. §§ 1542 & 2. Under section 1028 the government must prove that the accused (i) knowingly possessed an identification document, (ii) that was not lawfully issued for his use, (iii) with the intent to defraud the United States. Passport fraud, in contrast, requires proof that the accused (i) willfully and knowingly make a false statement in a passport application, (ii) with the intent to secure issuance of a United States passport contrary to the laws and regulations governing the issuance of passports. Even if we were to assume, arguendo, that the nature of the intent required in each crime was essentially the same, each statute still requires proof of an element the other does not. Document fraud under section 1028 requires possession of an identification document, while passport fraud under section 1542 requires proof that the accused made a false statement in a passport application. The elements could hardly be more distinct. And, of course, aiding and abetting passport fraud must, a fortiori require proof of an element that document fraud does not, because the government must prove both that someone committed the principal offense, see, e.g., United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and that the accused aided and abetted commission of the crime. Thus, the government must prove the same elements of passport fraud—which, as we have already noted, are different from those for the offense of identification document crime described in section 1028—and then must prove aiding and abetting. Even if the government sought to prove aiding and abetting by referring to exactly the same conduct that it previously had attempted to use to prove document fraud—that is, if the government sought to prove aiding and abetting by the very act of acquiring the dead man’s birth certificate—it would not offend the Double Jeopardy Clause. The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each as long as the statutes do not define a single offense under Blockburger. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).\nIn short, sans Grady, which directed double jeopardy analysis to the government’s reproof of the same conduct, appellant is left without support for his double jeopardy claim. The prosecutions for passport fraud and aiding and abetting passport fraud therefore do not violate appellant’s rights under the Double Jeopardy Clause.\nB.\nAppellant claims that the evidence was insufficient to support his conviction for passport fraud. Appellant raises this argument for the first time on appeal—he moved for judgment of acquittal on only one count of the indictment, a conspiracy charge on which he was acquitted. We therefore review the challenge to the sufficiency of the evidence only for plain error. See United States v. Sayan, 968 F.2d 55, 62 (D.C.Cir.1992). We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence 'challenge. Presumably review should be more deferential than under the usual standard under which we determine only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard. The Jackson standard already suggests that we would only reverse for an error that was “plain” (in the sense of “obvious”) and requires, by definition, that the error prejudice substantial rights.\nWe need not decide exactly how plain error review might modify the standard in this context, however, because even under the Jackson standard, there was sufficient evidence to support a conviction. We must, of course, in applying Jackson “consider the evidence in the light most favorable to the Government,” United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), and allow the government “the benefit of all reasonable inferences that may be drawn from the evidence,” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). Appellant admitted signing the affidavit; thus, the government needed to prove only that appellant knew that the affidavit was false and that he intended to help Linden secure a passport. See 18 U.S.C. § 1542. The government presented ample evidence concerning Linden’s aliases and White’s knowledge of them—including evidence that White had wired Linden money under the name Norman Moore and testimony suggesting that White knew he was obtaining a dead man’s birth certificate—-for a reasonable jury to conclude that White knowingly signed a false affidavit and intended to help Linden obtain a passport.\nC.\nAppellant raises a number of challenges to his sentence. White first contends that the court erred in denying him a three-level reduction pursuant to section 2L2.3 of the Sentencing Guidelines for committing the passport offense “other than for profit.” U.S.S.G. § 2L2.3. The district judge denied the reduction based on a finding that White was paid for helping Linden in his passport fraud scheme. Fact-findings in a sentencing context need be supported only by a preponderance of the evidence, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989), and “we will ‘uphold the district court’s sentence so long as it results Jxom a correct application of the guidelines to factual findings which are not clearly erroneous.’ ” United States v. Barry, 938 F.2d 1327, 1332 (D.C.Cir.1991) (quoting United States v. Young, 932 F.2d 1510, 1512 (D.C.Cir.1991)).\nHere, we do not think the district judge erred at all. The government introduced evidence at the trial and at sentencing to show that White had established a trust account for Linden and that both on November 1 (the same day that he obtained the birth certificate) and on November 3, White drew checks on the account, made out to “cash,” for $2,600 and $2,000, respectively. The $2,600 check bore the notation “Documents of identification per client,” and the other check had the notation “I.D. per client.” White contended that he gave this money to Linden but produced no evidence supporting that claim, and Linden denied receiving the funds. The defendant “properly bears the burden of proof under those sections of the Guidelines that define mitigating factors,” Burke, 888 F.2d at 869 n. 10, and thus appellant had the burden of proving that he did not assist Linden for profit. The district judge reasonably concluded that the checks were payment to White for his role in obtaining the birth certificate and subsequently the passport.\nAppellant also challenges the two-level enhancement he received under section 3C1.1 for obstruction of justice. The district judge based the enhancement on a finding that White committed perjury in his trial testimony. See U.S.S.G. § 3C1.1 Application Note 3(b) (listing perjury as an example of the type of conduct to which the enhancement applies). White testified that he honestly believed that Linden was in reality William Smith Baldwin. The jury, however, found White guilty beyond a reasonable doubt of knowingly signing a false affidavit. That verdict virtually made it a foregone conclusion that a district judge would conclude by a preponderance of the evidence that White testified falsely when he stated that he thought that Linden was Baldwin. We certainly cannot say that it was clear error for the district judge to reach that conclusion. Nor can we find any error in the district judge’s implicit decision that, in a case in which the question was so clearly and starkly posed, White testified willfully, not merely as a result of confusion or faulty memory. See United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992).\nAppellant contends that he should not have received a sentencing enhancement pursuant to section 3B1.3 for abuse of a position of trust or for use of a special skill. The district judge based the enhancement in part on White’s use of his skill as a lawyer to facilitate the commission of the crime, and in part on his abuse of trust in stealing a client’s Social Security number from his law firm’s files. Application Note 2 to section 3B1.3 explicitly includes lawyers as examples of individuals who possess the “special skill” referred to in the Guideline. By setting up a trust account, which he later used to pay himself for his own part in the scheme, White used his skill to further the crime in this case. The sentencing court also properly relied on White’s use of his special skill in obtaining the birth record of a dead man. Ordinary members of the public not known to officials in the records office as attorneys would not have been able to acquire the same certificate.\nAlthough White’s use of his special skill sufficed in itself to justify the enhancement, the district court also considered his abuse of a position of trust. The court determined by a preponderance of the evidence that White provided Linden with a Social Security number from his firm’s client files. Although appellant claimed that Linden had unsupervised access to the files and could have obtained the Social Security number himself, we cannot say that the court’s finding was clearly erroneous. Providing Linden with the information clearly abused a position of trust within the meaning of the Guideline. The relationship between a client and an attorney (and the attorney’s firm) is such that all attorneys at a firm must be presumed to be in a “position of trust” with respect to the firm’s clients. Cf. United States v. Polland, 994 F.2d 1262, 1270 (7th Cir.1993) (holding that attorney-client relationship can place attorney in position of trust for purposes of section 3B1.3).\nD.\nAppellant’s last argument is that the government violated its pledge not to introduce evidence concerning the acquisition of the birth certificate. Appellant essentially presses an estoppel theory, by which he contends that if the government used evidence that it had promised not to introduce, his conviction cannot stand. We need not decide the merits of appellant’s theory, however, because the government did not violate its pledge. The government carefully qualified its concession and promised only that it would not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the United States at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” White I, 936 F.2d at 1330 n. 2 (emphasis added). The government, of course, tailored its concession to its understanding of what the now overruled Grady decision required. It is true that in White I we said that we would not decide whether (or to what extent) Grady would prohibit reproof of the conduct surrounding the acquisition of the birth certificate “because the government has conceded ... that it may not reprove the conduct involving the birth certificate offense,” id. at 1330, and that statement could be read to reflect a broad understanding of the concession. Still, our description of the government’s promise was ambiguous at best and was not intended to provide a definitive interpretation for the government to follow. The government proceeded in good faith on its own narrower understanding of the concession, an understanding that it maintained consistently before the district court. The district judge even approved the government’s position outlining how it intended to implement the concession. There was, therefore, no violation of the promise in this case.\n* * * * * *\nFor the foregoing reasons, appellant’s convictions and sentence are affirmed.\nSo ordered.\n. Appellant asks us to revisit the question he presented on interlocutory appeal concerning the collateral estoppel effects of his acquittal. According to appellant, the jury in the first trial decided that he did not know that his client was not William Baldwin. We have already held, however, that the jury in the first trial did not conclusively determine that appellant did not know Linden’s true identity. See White I, 936 F.2d at 1329. That holding is the law of the case, and there is no reason for us to disturb it. See Lever Bros. Co. v. United States, 981 F.2d 1330, 1332 (D.C.Cir.1993) (court must follow law of the case unless convinced that prior decision was erroneous and that adherence to the decision would work a grave injustice).\n. We need not decide whether, as the trial judge appeared to suggest, appellant's position as attorney for Linden (he was presumably being paid for his services) would have been sufficient to show that he committed the crime for profit absent some more direct evidence of payment for his particular role in the criminal enterprise.", "type": "majority", "author": "SILBERMAN, Circuit Judge:"}], "attorneys": ["Blaine A’mmon White, pro se.", "Valinda Jones, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, John R. Fisher and Eric A. Dubelier, Asst. U.S. Atty., were on the brief, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America v. Blaine A’mmon WHITE, Appellant.\nNo. 92-3130.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Jan. 14, 1993.\nDecided July 27, 1993.\nBlaine A’mmon White, pro se.\nValinda Jones, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., at the time the brief was filed, John R. Fisher and Eric A. Dubelier, Asst. U.S. Atty., were on the brief, for appellee.\nBefore: MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges."}
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MIKVA
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SILBERMAN
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RANDOLPH
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| 1
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| 0
| 0
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1 F.3d 13
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[
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner\n- Respondent\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as “the Court”** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner \nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content \nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed, \ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The “name” should be a reasonably short label from the caption.\n- The “description” should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\n\n3.2 Disposition of Case\n\nCodes:\n\n1 = stay, petition, or motion granted \n2 = affirmed (includes modified) \n3 = reversed \n4 = reversed and remanded \n5 = vacated and remanded \n6 = affirmed and reversed (or vacated) in part \n7 = affirmed and reversed (or vacated) in part and remanded \n8 = vacated \n9 = petition denied or appeal dismissed \n10 = certification to or from a lower court \n11 = no disposition \n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 4, 5, or 7 if the opinion contains explicit instructions to remand the matter to the lower court \n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (1), denied (9), or leads to modification\n or vacatur (8) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 11 (“no disposition”).\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent \n1 = petitioning party received a favorable disposition \n2 = favorable disposition for petitioning party unclear \n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A “favorable disposition” is one that materially improves the petitioner’s position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner) \n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure \n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas) \n\n2 = Civil Rights \n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation) \n\n3 = First Amendment \n (e.g., freedom of speech, press, association, religion, and related expression claims) \n\n4 = Due Process \n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process) \n\n5 = Privacy \n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy) \n\n6 = Attorneys \n (e.g., attorney’s fees, sanctions, bar admission and discipline, representation issues) \n\n7 = Unions \n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security) \n\n8 = Economic Activity \n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation) \n\n9 = Judicial Power \n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure) \n\n10 = Federalism \n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power) \n\n11 = Interstate Relations \n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations) \n\n12 = Federal Taxation \n (e.g., federal income, corporate, estate, excise, and other federal tax issues) \n\n13 = Miscellaneous \n (cases that do not fit any other issue area) \n\n14 = Private Action \n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters) \n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning. Only use 13 (Miscellaneous)\nwhen the case clearly does not fit any other category.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (varLawArea-style):\n\n1 = Constitution \n2 = Constitutional Amendment \n3 = Federal Statute \n4 = Court Rules \n5 = Other \n6 = Infrequently litigated statutes \n8 = State or local law or regulation \n9 = No Legal Provision \n\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision, if possible (e.g., “Fourth Amendment, search and seizure”,\n “42 U.S.C. § 1983”, “Federal Rule of Civil Procedure 12(b)(6)”, “state tort law”).\n\nInclude the one to three provisions central to the court’s analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nInterpret “liberal” and “conservative” using the SCDB’s issue-specific rules, adapted to the appellate context. \nYou MUST FIRST determine who won the case, THEN identify the issue_area, and LAST choose decision_direction \nto match the rules below. Make sure to carefully apply ALL rules corresponding to the SPECIFIC issue area you identify.\n\nYou MUST follow the rules below for assigning decision_direction based on issue_area as closely as possible:\n\n- **Criminal Procedure, Civil Rights, First Amendment (issue_area.code = 1 OR 2 OR 3)**\n - Liberal (2): favors the person accused or convicted of crime, the civil rights or civil liberties claimant,\n the person asserting First Amendment protections, or blocks government efforts to restrict these rights.\n - Conservative (1): favors law enforcement or prosecution, the government defendant, or restricts the civil-rights\n or civil-liberties claim.\n\n- **Due Process, Privacy (issue_area.code = 4 OR 5)**\n - Liberal (2): favors individuals challenging government deprivation of liberty or property, or favors personal autonomy\n and privacy interests (e.g., reproductive choice, family relations).\n - Conservative (1): favors the government or regulation at the expense of those individual claims.\n\n- **Unions, Economic Activity (issue_area.code = 7 OR 8)**\n - Liberal (2): favors unions, workers, consumers, injured parties, environmental interests, or small entities against\n large business interests, and often favors regulation that protects those interests.\n - Conservative (1): favors employers, business or property owners, management, large commercial entities, or deregulation.\n For example, in an Economic Activity case (issue_area.code = 8) where an environmental or resource-protection regulation \n is upheld against a challenge from business interests, the decision MUST be coded as liberal (2) because it favors \n government regulation, especially protecting the environment.\n\n- **Judicial Power (issue_area.code = 9)**\n - Liberal (2): expands the courts’ ability to hear and decide cases (broad standing, fewer justiciability limits, broader\n review of agency or government action).\n - Conservative (1): narrows access to the courts, restricts standing or justiciability, or limits judicial review.\n\n- **Federalism (issue_area.code = 10)**\n - Liberal (2): favors federal authority over the states, or executive/legislative national power over state power.\n - Conservative (1): favors state sovereignty or state authority against federal power.\n\n- **Federal Taxation (issue_area.code = 12)**\n - Liberal (2): favors the United States as the taxing authority (i.e., the government’s position in the tax dispute).\n - Conservative (1): favors the taxpayer.\nFor example, in a Federal Taxation case (issu_area.code = 12) where a taxpayer wins an appeal against the government,\nthe decision MUST be coded as conservative (1) because it favors the taxpayer.\n\n- **Interstate Relations, many Private Action issues (issue_area.code = 11 OR 14)**\n - Direction is often not ideologically meaningful in SCDB terms; use 3 (unspecifiable) unless the decision clearly aligns \n with liberal or conservative patterns above.\n\nIf, after applying these rules, you cannot reasonably assign a direction, use 3 (unspecifiable).\n\nBefore you output the JSON, you MUST run the following internal consistency check:\n1. Identify issue_area.code.\n2. Identify which side wins in the case (petitioner vs respondent).\n3. Verify that decision_direction.code matches the rule for that issue_area and winner.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative \n2 = liberal \n3 = unspecifiable \n\nUse the same liberal/conservative rules as for Decision Direction (see Section 3.6), but applied to\nthe **lower court’s outcome**. You MUST determine the lower court’s direction by comparing the lower\ncourt’s judgment and the appellate court’s disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 2 “affirmed” \n or 9 “petition denied or appeal dismissed”), then the lower court’s direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 3 “reversed”, \n 4 “reversed and remanded”, 5 “vacated and remanded”, or 8 “vacated”), then the lower court’s direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 6 or 7), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court’s direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court’s direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 1, 10, 11), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate “unspecifiable” or “no disposition” code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is. \n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and \n how that winner and the issue_area code together implied the direction code you chose.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America v. Blaine A'mmon WHITE, Appellant\nCourt: United States Court of Appeals for the District of Columbia Circuit\nDate decided: 1993-07-27\nOpinion type: majority\nAdditional notes: \n\n[CASE_TEXT]\nOpinion for the Court filed by Circuit Judge SILBERMAN.\nSILBERMAN, Circuit Judge:\nAppellant claims that his convictions for passport fraud and for aiding and abetting passport fraud violated the Double Jeopardy Clause. He also raises a number of challenges to his sentence under the Sentencing Guidelines. We affirm the convictions and reject appellant’s objections to his sentence.\nI.\nThe facts are essentially undisputed. Acting on behalf of a client on November 1, 1989, Blaine White, who is an attorney, obtained a birth certificate from the Maryland vital records office bearing the name William S. Baldwin. Subsequently, on November 13, he signed an affidavit in support of the same client’s application for a United States passport. White swore that he had known the applicant for five years, that he knew the applicant was a United States citizen, and that the applicant’s name was William S. Baldwin. The birth certificate was used as proof of identity in the passport application.\nAppellant was originally charged in a two-count indictment with document fraud, 18 U.S.C. § 1028(a)(4), and passport fraud, 18 U.S.C. § 1542. Section 1028(a)(4) makes it a crime to “knowingly possess[ ] an identification document (other than one issued lawfully for the use of the possessor) or a false identification document, with the intent such document be used to defraud the United States,” and section 1542 makes it unlawful to “willfully and knowingly make[ ] any false statement in an application for [a] passport.”\nThe government attempted to establish that White had been involved in a scheme to obtain false identification documents for a Canadian citizen, Harold D. Linden, a/k/a Norman Harold Moore, who was residing in this country illegally and who had retained White as an attorney. The real William S. Baldwin had died two days before White applied for the birth certificate (his obituary appeared in the newspaper on October 31) and the government sought to prove that White knew he was obtaining the dead man’s birth record. An official from the vital records office testified that White received the birth certificate under a special procedure that the office used to allow attorneys to obtain the records .of deceased persons. Had Baldwin still been alive, White could not have obtained the certificate without a notarized authorization from Baldwin himself. White testified, however, that his client, the individual identified at trial as Harold Linden, had always been known to him as William Baldwin, and that he had no idea that there was any special procedure used in issuing deceased persons’ records. Thus, White claimed that he had no idea that he was acquiring a dead person’s birth certificate and asserted that the affidavit he signed at the passport office was true to the best of his knowledge.\nThe jury acquitted White of document fraud under section 1028(a)(4), but could not reach a verdict on the passport charge. The district judge declared a mistrial on the latter count and dismissed the charge without prejudice.\nWhite was subsequently reindicted on a five-count indictment that charged, among other crimes, making false statements in an affidavit accompanying a passport application, 18 U.S.C. § 1542 (Count IV) (this was the same charge on which there had been a hung jury in the first trial) and aiding and abetting Linden in making false statements in a passport application “by supplying Linden -with a false name, William Smith Baldwin, and false Social Security number” (Count V). According to the government, appellant not only provided Linden with a birth certificate, but also copied a Social Security number from a client’s file in his law firm and gave the number to Linden to use on the passport application. Appellant moved to dismiss the charges on double jeopardy grounds. According to appellant, the jury in the first trial conclusively determined that he did not know that Linden was not William Baldwin. Any subsequent prosecution that would call into question that jury determination would be barred by the collateral estoppel component of the double jeopardy protection. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Appellant also contended that under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), evidence of his conduct in obtaining the birth certificate could not be used in any subsequent prosecution because he had already been acquitted on the document fraud count.\nThe district court denied appellant’s motion, see United States v. White, 757 F.Supp. 45 (D.D.C.1990), and appellant brought an interlocutory appeal. We rejected appellant’s collateral estoppel argument and held that the jury’s verdict in the first trial did not conclusively determine the issue of appellant’s knowledge. See United States v. White, 936 F.2d 1326, 1329 (D.C.Cir.) (White I), cert. denied, — U.S. -, 112 S.Ct. 381, 116 L.Ed.2d 332 (1991). We reasoned that, had the jury actually concluded that appellant did not know of Linden’s double identity, it would also have acquitted appellant on the passport charge. See id. In that interlocutory appeal, we did not reach the question whether Grady v. Corbin barred prosecution of Count V (aiding and abetting passport fraud), because the government agreed to limit its use of the evidence concerning the acquisition of the birth certificate. See id. at 1330. The government conceded that it could not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the U.S. at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” Id. at 1330 n. 2.\nIn the second trial, the government reintroduced part of the evidence it had used in the first trial relating to the document fraud charge. The jury convicted on both Counts IV and V but acquitted appellant on all other counts.\nII.\nA.\nAppellant relies exclusively on the Supreme Court’s decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to argue that in his'second trial the government violated the Double Jeopardy Clause, see U.S. Const., Amend. 5 (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”), by prosecuting him for the same offense of which he was acquitted in the first trial. But Grady has been overruled, see United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and the Supreme Court has ma.de clear that the so-called Blockburger test is the sole test for determining whether the crimes charged in successive prosecutions are the “same offense” for double jeopardy purposes. See id. — U.S. at -, 113 S.Ct. at 2860; see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger analysis focuses strictly on the statutory elements of crimes: two offenses are not the same as long as each requires proof of an element the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.\nThere can be little doubt that document fraud under 18 U.S.C. § 1028(a)(4) is not the same offense as either passport fraud or aiding and abetting passport fraud under 18 U.S.C. §§ 1542 & 2. Under section 1028 the government must prove that the accused (i) knowingly possessed an identification document, (ii) that was not lawfully issued for his use, (iii) with the intent to defraud the United States. Passport fraud, in contrast, requires proof that the accused (i) willfully and knowingly make a false statement in a passport application, (ii) with the intent to secure issuance of a United States passport contrary to the laws and regulations governing the issuance of passports. Even if we were to assume, arguendo, that the nature of the intent required in each crime was essentially the same, each statute still requires proof of an element the other does not. Document fraud under section 1028 requires possession of an identification document, while passport fraud under section 1542 requires proof that the accused made a false statement in a passport application. The elements could hardly be more distinct. And, of course, aiding and abetting passport fraud must, a fortiori require proof of an element that document fraud does not, because the government must prove both that someone committed the principal offense, see, e.g., United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and that the accused aided and abetted commission of the crime. Thus, the government must prove the same elements of passport fraud—which, as we have already noted, are different from those for the offense of identification document crime described in section 1028—and then must prove aiding and abetting. Even if the government sought to prove aiding and abetting by referring to exactly the same conduct that it previously had attempted to use to prove document fraud—that is, if the government sought to prove aiding and abetting by the very act of acquiring the dead man’s birth certificate—it would not offend the Double Jeopardy Clause. The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each as long as the statutes do not define a single offense under Blockburger. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).\nIn short, sans Grady, which directed double jeopardy analysis to the government’s reproof of the same conduct, appellant is left without support for his double jeopardy claim. The prosecutions for passport fraud and aiding and abetting passport fraud therefore do not violate appellant’s rights under the Double Jeopardy Clause.\nB.\nAppellant claims that the evidence was insufficient to support his conviction for passport fraud. Appellant raises this argument for the first time on appeal—he moved for judgment of acquittal on only one count of the indictment, a conspiracy charge on which he was acquitted. We therefore review the challenge to the sufficiency of the evidence only for plain error. See United States v. Sayan, 968 F.2d 55, 62 (D.C.Cir.1992). We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence 'challenge. Presumably review should be more deferential than under the usual standard under which we determine only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard. The Jackson standard already suggests that we would only reverse for an error that was “plain” (in the sense of “obvious”) and requires, by definition, that the error prejudice substantial rights.\nWe need not decide exactly how plain error review might modify the standard in this context, however, because even under the Jackson standard, there was sufficient evidence to support a conviction. We must, of course, in applying Jackson “consider the evidence in the light most favorable to the Government,” United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), and allow the government “the benefit of all reasonable inferences that may be drawn from the evidence,” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). Appellant admitted signing the affidavit; thus, the government needed to prove only that appellant knew that the affidavit was false and that he intended to help Linden secure a passport. See 18 U.S.C. § 1542. The government presented ample evidence concerning Linden’s aliases and White’s knowledge of them—including evidence that White had wired Linden money under the name Norman Moore and testimony suggesting that White knew he was obtaining a dead man’s birth certificate—-for a reasonable jury to conclude that White knowingly signed a false affidavit and intended to help Linden obtain a passport.\nC.\nAppellant raises a number of challenges to his sentence. White first contends that the court erred in denying him a three-level reduction pursuant to section 2L2.3 of the Sentencing Guidelines for committing the passport offense “other than for profit.” U.S.S.G. § 2L2.3. The district judge denied the reduction based on a finding that White was paid for helping Linden in his passport fraud scheme. Fact-findings in a sentencing context need be supported only by a preponderance of the evidence, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989), and “we will ‘uphold the district court’s sentence so long as it results Jxom a correct application of the guidelines to factual findings which are not clearly erroneous.’ ” United States v. Barry, 938 F.2d 1327, 1332 (D.C.Cir.1991) (quoting United States v. Young, 932 F.2d 1510, 1512 (D.C.Cir.1991)).\nHere, we do not think the district judge erred at all. The government introduced evidence at the trial and at sentencing to show that White had established a trust account for Linden and that both on November 1 (the same day that he obtained the birth certificate) and on November 3, White drew checks on the account, made out to “cash,” for $2,600 and $2,000, respectively. The $2,600 check bore the notation “Documents of identification per client,” and the other check had the notation “I.D. per client.” White contended that he gave this money to Linden but produced no evidence supporting that claim, and Linden denied receiving the funds. The defendant “properly bears the burden of proof under those sections of the Guidelines that define mitigating factors,” Burke, 888 F.2d at 869 n. 10, and thus appellant had the burden of proving that he did not assist Linden for profit. The district judge reasonably concluded that the checks were payment to White for his role in obtaining the birth certificate and subsequently the passport.\nAppellant also challenges the two-level enhancement he received under section 3C1.1 for obstruction of justice. The district judge based the enhancement on a finding that White committed perjury in his trial testimony. See U.S.S.G. § 3C1.1 Application Note 3(b) (listing perjury as an example of the type of conduct to which the enhancement applies). White testified that he honestly believed that Linden was in reality William Smith Baldwin. The jury, however, found White guilty beyond a reasonable doubt of knowingly signing a false affidavit. That verdict virtually made it a foregone conclusion that a district judge would conclude by a preponderance of the evidence that White testified falsely when he stated that he thought that Linden was Baldwin. We certainly cannot say that it was clear error for the district judge to reach that conclusion. Nor can we find any error in the district judge’s implicit decision that, in a case in which the question was so clearly and starkly posed, White testified willfully, not merely as a result of confusion or faulty memory. See United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992).\nAppellant contends that he should not have received a sentencing enhancement pursuant to section 3B1.3 for abuse of a position of trust or for use of a special skill. The district judge based the enhancement in part on White’s use of his skill as a lawyer to facilitate the commission of the crime, and in part on his abuse of trust in stealing a client’s Social Security number from his law firm’s files. Application Note 2 to section 3B1.3 explicitly includes lawyers as examples of individuals who possess the “special skill” referred to in the Guideline. By setting up a trust account, which he later used to pay himself for his own part in the scheme, White used his skill to further the crime in this case. The sentencing court also properly relied on White’s use of his special skill in obtaining the birth record of a dead man. Ordinary members of the public not known to officials in the records office as attorneys would not have been able to acquire the same certificate.\nAlthough White’s use of his special skill sufficed in itself to justify the enhancement, the district court also considered his abuse of a position of trust. The court determined by a preponderance of the evidence that White provided Linden with a Social Security number from his firm’s client files. Although appellant claimed that Linden had unsupervised access to the files and could have obtained the Social Security number himself, we cannot say that the court’s finding was clearly erroneous. Providing Linden with the information clearly abused a position of trust within the meaning of the Guideline. The relationship between a client and an attorney (and the attorney’s firm) is such that all attorneys at a firm must be presumed to be in a “position of trust” with respect to the firm’s clients. Cf. United States v. Polland, 994 F.2d 1262, 1270 (7th Cir.1993) (holding that attorney-client relationship can place attorney in position of trust for purposes of section 3B1.3).\nD.\nAppellant’s last argument is that the government violated its pledge not to introduce evidence concerning the acquisition of the birth certificate. Appellant essentially presses an estoppel theory, by which he contends that if the government used evidence that it had promised not to introduce, his conviction cannot stand. We need not decide the merits of appellant’s theory, however, because the government did not violate its pledge. The government carefully qualified its concession and promised only that it would not “prove either the conduct of unlawfully procuring the birth certificate from the vital records office with intent to defraud the United States at that time, or of unlawfully possessing it with such intent at the passport office, as an essential element of the offenses charged in the second indictment.” White I, 936 F.2d at 1330 n. 2 (emphasis added). The government, of course, tailored its concession to its understanding of what the now overruled Grady decision required. It is true that in White I we said that we would not decide whether (or to what extent) Grady would prohibit reproof of the conduct surrounding the acquisition of the birth certificate “because the government has conceded ... that it may not reprove the conduct involving the birth certificate offense,” id. at 1330, and that statement could be read to reflect a broad understanding of the concession. Still, our description of the government’s promise was ambiguous at best and was not intended to provide a definitive interpretation for the government to follow. The government proceeded in good faith on its own narrower understanding of the concession, an understanding that it maintained consistently before the district court. The district judge even approved the government’s position outlining how it intended to implement the concession. There was, therefore, no violation of the promise in this case.\n* * * * * *\nFor the foregoing reasons, appellant’s convictions and sentence are affirmed.\nSo ordered.\n. Appellant asks us to revisit the question he presented on interlocutory appeal concerning the collateral estoppel effects of his acquittal. According to appellant, the jury in the first trial decided that he did not know that his client was not William Baldwin. We have already held, however, that the jury in the first trial did not conclusively determine that appellant did not know Linden’s true identity. See White I, 936 F.2d at 1329. That holding is the law of the case, and there is no reason for us to disturb it. See Lever Bros. Co. v. United States, 981 F.2d 1330, 1332 (D.C.Cir.1993) (court must follow law of the case unless convinced that prior decision was erroneous and that adherence to the decision would work a grave injustice).\n. We need not decide whether, as the trial judge appeared to suggest, appellant's position as attorney for Linden (he was presumably being paid for his services) would have been sufficient to show that he committed the crime for profit absent some more direct evidence of payment for his particular role in the criminal enterprise.\n[END_CASE]",
"role": "user"
}
] |
10,507,368
| "UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C., United States Department of Veteran(...TRUNCATED)
|
United States Department of Veterans Affairs v. Federal Labor Relations Authority
|
1993-08-06
|
No. 91-1578
|
United States Court of Appeals for the District of Columbia Circuit
| "{\"judges\": [\"Before RUTH BADER GINSBURG, WILLIAMS, and SENTELLE, Circuit Judges.\"], \"parties\"(...TRUNCATED)
|
RUTH BADER GINSBURG
|
WILLIAMS
|
SENTELLE
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 19
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,445
| "UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL NO. 150-A, Petitioner, v. NA(...TRUNCATED)
| "United Food & Commercial Workers International Union, Local 150-A v. National Labor Relations Board(...TRUNCATED)
|
1993-08-10
|
Nos. 91-1290, 91-1325
|
United States Court of Appeals for the District of Columbia Circuit
| "{\"judges\": [\"Before EDWARDS, RUTH BADER GINSBURG, and BUCKLEY, Circuit Judges.\"], \"parties\": (...TRUNCATED)
|
EDWARDS
|
RUTH BADER GINSBURG
|
BUCKLEY
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 24
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,517
|
TMG II, et al., Appellants, v. UNITED STATES of America, Appellee
|
TMG II v. United States
|
1993-08-13
|
No. 91-5361
|
United States Court of Appeals for the District of Columbia Circuit
| "{\"judges\": [\"Before: MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges.\"], \"parties\": [\"T(...TRUNCATED)
|
MIKVA
|
WALD
|
BUCKLEY
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 36
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,571
| "UNITED STATES of America, Appellee, v. Omar Martin ZAPATA, a/k/a Omar Martin Zapata-Medina, a/k/a O(...TRUNCATED)
|
United States v. Zapata
|
1993-07-19
|
No. 93-1116
|
United States Court of Appeals for the First Circuit
| "{\"judges\": [\"Before BREYER, Chief Judge, SELYA and BOUDIN, Circuit Judges.\"], \"parties\": [\"U(...TRUNCATED)
|
BREYER
|
SELYA
|
BOUDIN
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 46
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,628
| "UNITED STATES of America, Appellee, v. Joseph BREWSTER, a/k/a Patrick Brewster, Defendant, Appellan(...TRUNCATED)
|
United States v. Brewster
|
1993-07-28
|
No. 93-1046
|
United States Court of Appeals for the First Circuit
| "{\"judges\": [\"Before SELYA, CYR and STAHL, Circuit Judges.\"], \"parties\": [\"UNITED STATES of A(...TRUNCATED)
|
SELYA
|
CYR
|
STAHL
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 51
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,706
| "Joseph DOW, et al., Plaintiffs, Appellants, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER(...TRUNCATED)
|
Dow v. United Brotherhood of Carpenters & Joiners of America
|
1993-07-28
|
No. 93-1127
|
United States Court of Appeals for the First Circuit
| "{\"judges\": [\"Before TORRUELLA, SELYA and BOUDIN, Circuit Judges.\"], \"parties\": [\"Joseph DOW,(...TRUNCATED)
|
TORRUELLA
|
SELYA
|
BOUDIN
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 56
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,804
| "Franco ACEVEDO-DIAZ, et al., Plaintiffs, Appellees, v. Jose E. APONTE, et al., Defendants, Appellee(...TRUNCATED)
|
Acevedo-Diaz v. Aponte
|
1993-08-03
|
Nos. 92-1846, 92-1848
|
United States Court of Appeals for the First Circuit
| "{\"judges\": [\"Before SELYA, CYR and STAHL, Circuit Judges.\"], \"parties\": [\"Franco ACEVEDO-DIA(...TRUNCATED)
|
SELYA
|
CYR
|
STAHL
| 1
| 1
| 1
| 0
| 0
| 0
|
1 F.3d 62
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
|
10,507,866
|
Sandra ROLON-ALVARADO, Plaintiff, Appellant, v. MUNICIPALITY OF SAN JUAN, Defendant, Appellee
|
Rolon-Alvarado v. Municipality of San Juan
|
1993-08-09
|
No. 92-2298
|
United States Court of Appeals for the First Circuit
| "{\"judges\": [\"Before SELYA, CYR and STAHL, Circuit Judges.\"], \"parties\": [\"Sandra ROLON-ALVAR(...TRUNCATED)
|
SELYA
|
CYR
|
STAHL
| 1
| 1
| 1
| 0
| 0
| 0
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1 F.3d 74
| [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED)
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Small test version of appeals court data, using only F.3d vol. 1
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