Michael H. v. Gerald D.

Michael H. v. Gerald D.
504 US 905

Facts . In 1975 Carole D. and Gerald D. were married in California and resided together. In 1978, Carole started to have an affair with Michael H. Carole then conceived a child, Victoria, in 1980, with Gerald, which was listed as father on the birth certificate. Gerald held that Victoria was his child, but then after delivery Carole informed Michael that he might be the father. In 1981, blood tests showed that Michael was the father to the 98.07 percentile. Carole visited Michael and resided with another man in California, since Gerald had moved to New York. In the summer of 1982, Carole and Victoria visited Gerald in New York and the three vacationed in Europe. That fall she flew back to California, and in November, Michael filed an action in CA to establish paternity and right to visit. In 1983 the court appointed a guardian ad litem to represent Victoria. She filed a cross-complaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship with all of the attendants rights, duties, obligations with both.
Carole filed for summary judgment while she was living with Gerald and in August, she returned to California and again became involved with Michael, instructing her attorneys to remove the summary judgment motion. For the next eight months Michael held Victoria out as his daughter. Then in April 1984, Carole and Michael signed a stipulation that he was Victoria’s father. That next month, she left Michael, instructing her attorneys not to file the stipulation. Carole reconciled with Geraldnd and they lived together with two more children being born.
In May 1984 Michael and Victoria, through guardian ad litem, sought visitation rights for Michael. A court appointed psychologist recommended that Carole retain sole custody, but Michael be allowed continued contact with Victoria pursuant to a restricted visiation schedule. The court concurred. In October of 1984 Gerland moved for summary judgment on ground that under California law there was no triable issue of fact as to Victoria’s paternity. The law said: “the issue of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” The presumption may only be rebutted by blood test, and a motion for such tests must be made within two years of birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging paternity.
In 1985 the Superior Court granted the motion for summary judgment, finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent.

Issue. Does the presumption established by the law infringe upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man or infringe upon the constitutional right of the child to maintain a relationship with her father?

Rule. An adulterous biological father does not have a constitutional right to paternity over a marital father.

Held. Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria, protection of Gerald and Carole’s marital union is an insufficient state interest to support termination of the relationship. The Court declines to accept that a State must recognize multiple fatherhood because Victoria was not illegitimate since she has a father.

U.S. v. Mound

U.S. v. Mound
525 U.S. 1089

Facts. Defendant (D) was accused of sexually assaulting his daughter for a period of four years, beginning when she was ten. D was convicted by a jury, of seven sexual abuse and assault charges, and was sentenced to life in prison. Before the occurrences of this case, D was accused by two other young women of abuse. D pled guilty to the first offense in exchange for 2nd charge being dropped.
Evidence of conviction of D and evidence relating to the uncharged crime were offered by the prosecution; the lower court admitted into evidence the conviction only, excluding the evidence related to the uncharged crime.

Issue. Is FRE 413 unconstitutional because it punishes people for past acts?
Is FRE 413 unconstitutional as applied because it violates D’s equal protection rights?
Is it an error to enter the evidence of the past assaults under Rule 413 following a FRE 403?

Rule. Courts must apply 403 to all evidence offered.

Held. The Court affirmed. No; Congress has the ultimate power to create exceptions to the FRE it creates, and Rule 413 is essentially an exception to the past practice of excluding evidence of prior bad acts. The Rule bears a rational relation to some legitimate end and Congress’s judgment in enacting the Rule was rational.
No; there were two alleged past acts, and the court properly applied the Rule 403 test and, in its discretion, determined to allow into evidence the prior conviction, but not allow testimony concerning the uncharged crime. According to the legislative history of 413, the rule was intended to have the effect of allowing certain evidence that would be inadmissible under Rule 404(b). The court reasons that the “cautionary instruction” to the jury guarded against unfair prejudice.

US v. Guardia

US v. Guardia
995 F. Supp. 115 (1997)

Facts. Defendant was indicted after two women complained that Defendant improperly touched them during gynecological exams; none of the alleged improper behaviors took place in the presence of any additional witnesses. Outside the victim’s testimony, the prosecution attempted to introduce, under FRE 413, testimony of various other women, who alleged that similar abuses were inflicted on them by D in the apst. D moved to have the evidence excluded under FRE 403, which was granted by the trial court.

This is military base, so it is relevant that they use federal law.

Issue. Does the test found in FRE 403 apply to evidence introduced under FRE 413?
Was the district court correct in excluding the evidence in the present case based on its Rule 403 determination that the risk of prejudice did substantially outweigh the evidence’s probative value?

Held. The Appeals Court affirmed the decision. Yes FRE 403 applies to all evidence and yes the decision to exclude evidence based on FRE 403 is within the sound discretion of the trial court.

Michelson v. United States

Michelson v. United States
335 US 469 (1948)

Facts. In 1947, petitioner Michelson was convicted of bribing a federal revenue agent. The D, as a witness on his own behalf, admitted passing the money but claimed it was done in response to the agent’s demands, threats, solicitations, and inducements that amounted to entrapment. It is enough to say that determination of the issue turned on whether the jury should believe the agent or the accused.

The D called for character witnesses and volunteered information that he was convicted of an offense twenty years ago. The character witnesses testified that the defendant had a good reputation for honesty and truthfulness. The defense was allowed to cross-examine the witnesses and asked them whether they were familiar with the fact that the defendant had been arrested twenty seven years prior for receiving stolen goods. The court allowed the cross-examination and warned the jury of the limited purpose of such testimony. The D argued that he did not bribe the official and that this was a case of entrapment.

Illinois Rule: evidence of prior arrests is admissible if they are really close crimes. The Court doesn’t use this.

Issue. Whether the prosecution has the right to cross-examine the D’s character witnesses and inquire about the past bad acts such as arrests or convictions.

Rule. The right to cross examine another party’s character witness and inquire about past bad acts is acceptable.

Held. Arrests without more does not impeach the integrity or impair the credibility of witness and hence only a conviction may be inquired about to undermine the trustworthiness of a witness. Before a character witness is cross-examined as to a prior arrest of the defendant, the prosecution should demonstrate privately to the court that it is not based on unsupported or untrue evidence.

The Importance of Rule 506 of Regulation D

Rule 506 Regulation D

Rule 506 of Regulation D is considered a “safe harbor” for the private offering exemption of Section 4(2) of the Securities Act. Companies using the Rule 506 exemption can raise an unlimited amount of money. A company can be assured it is within the Section 4(2) exemption by satisfying the following standards:

1. The company cannot use general solicitation or advertising to market the securities;
2. The company may sell its securities to an unlimited number of “accredited investors” and up to 35 other purchases. Unlike Rule 505, all non-accredited investors, either alone or with a purchaser representative, must be sophisticated—that is, they must have sufficient knowledge and experience in financial and business matters to make them capable of evaluating the merits and risks of the prospectiveinvestment;
3. Companies must decide what information to give to accredited investors, so long as it does not violate the antifraud prohibitions of the federal securities laws. But companies must give non-accredited investorsdisclosure documents that are generally the same as those used in registered offerings. If a company provides information to accredited investors, it must make this information available to non-accreditedinvestors as well;
4. The company must be available to answer questions by prospective purchasers;
5. Financial statement requirements are the same as for Rule 505; and
6. Purchasers receive “restricted” securities, meaning that the securities cannot be sold for at least a year without registering them.

Importance of Rule 505 of Regulation D

Rule 505 of Regulation D

Rule 505 of Regulation D allows some companies offering their securities to have those securities exempted from the registration requirements of the federal securities laws. To qualify for this exemption, a company:

1. Can only offer and sell up to $5 million of its securities in any 12-month period;
2. May sell to an unlimited number of “accredited investors” and up to 35 other persons who do not need to satisfy the sophistication or wealth standards associated with other exemptions;
3. Must inform purchasers that they receive “restricted” securities, meaning that the securities cannot be sold for six months or longer without registering them; and
4. Cannot use general solicitation or advertising to sell the securities.

Rule 505 allows companies to decide what information to give to accredited investors, so long as it does not violate the antifraud prohibitions of the federal securities laws. But companies must give non-accredited investorsdisclosure documents that generally are equivalent to those used in registered offerings. If a company provides information to accredited investors, it must make this information available to non-accredited investors as well. The company must also be available to answer questions by prospective purchasers.

Here are some specifics about the financial statement requirements applicable to this type of offering:

1. Financial statements need to be certified by an independent public accountant;
2. If a company other than a limited partnership cannot obtain audited financial statements without unreasonable effort or expense, only the company’s balance sheet (to be dated within 120 days of the start of the offering) must be audited; and
3. Limited partnerships unable to obtain required financial statements without unreasonable effort or expense may furnish audited financial statements prepared under the federal income tax laws.

What is an Accredited Investor?

Accredited Investors

Under the Securities Act of 1933, a company that offers or sells its securities must register the securities with the SEC or find an exemption from the registration requirements. The Act provides companies with a number of exemptions. For some of the exemptions, such as rules 505 and 506 of Regulation D, a company may sell its securities to what are known as “accredited investors.”

The federal securities laws define the term accredited investor in Rule 501 of Regulation D as:

a bank, insurance company, registered investment company, business development company, or small business investment company;

an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million;

a charitable organization, corporation, or partnership with assets exceeding $5 million;

a director, executive officer, or general partner of the company selling the securities;

a business in which all the equity owners are accredited investors;

a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase, excluding the value of the primary residence of such person;

a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year;

or
a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.

State v. Kirsch

State v. Kirsch
549 US 1295

Facts. Defendant was a member of the Granite State Baptist Church in Salem, and drove the church bus that drove the victims to church; Defendant also attended overnight sleep-overs at the church. D was charged with various sexual assault crimes, based on the allegations of 3 young girls. At trial, the prosecution attempted to introduce testimony of those three victims, as was the testimony of three other women pursuant to Federal Rule of Evidence 404(b); the testimony of the latter concerned sexual abuse allegedly committed against them by Defendant. The trial court allowed the testimony of the uncharged acts, ruling that the evidence was relevant to prove motive, intent, and common plan or scheme, and therefore was admissible under 404(b).

Issue. Was the testimony from the alleged victims of uncharged crimes properly admitted under Rule 404(b).

Rule. New Hampshire’s equivalent to Federal Rule of Evidence 404(b) prohibits the admission of evidence of “other crimes, wrongs, or acts… in order to show the person acted in conformity there with,” and only allows evidence of prior bad acts to be admitted when it is offered to prove such tings as motive, intent, or a common plan.

Held. Reversed and remanded.
No; testimony concerning the uncharged assaults should not have been admitted, as it constitutes evidence offered to show Defendant’s propensity to commit sexual assaults and that D acted in conformity therewith, not evidence of D’s motive, intent, and common plan or scheme.

Concurrence. Justices Thayer and Horton concur in part and dissent in part, arguing that the evidence offered was relevant to show D’s plan, and should have been admitted.

Discussion. The majority argues that the, “ostensible purpose for which the prosecution sought to admit evidence of a multitude of other uncharged sexual assaults was to show the defendant’s predilection for molesting young females over whom he was able to gain control thorugh engendering trust. At most, this is evidence of the defendant’s disposition to commit the offenses with which he was charged, impermissible under Rule 404(b).” The dissent, on the other hand, argues that, “the majority’s narrow reading of the common plan exception essentially requires the State to show the defendant’s state of mind before he started on his spree of criminal conduct, limiting the exception to a mutually dependent series of events.” The dissent cites other New Hampshire precedent to support its contention that, “the rule should not be so limited.”

Grutter v. Bollinger

Grutter v. Bollinger
539 U.S. 306 (2003)

Facts. Petitioner, Barbara Grutter, applied for admission to University of Michigan Law School in 1997 with a undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Pettioner, who is white, is challenging the law school’s use of race as a factor in the admissions process. The school justifies it because diversity adds an element of education that is helpful in the legal profession. When law students can understand and experience other cultures and viewpoints they can be better citizens.

Issue. Did the University of Michigan’s use of racial preferences in the admissions process violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964?

Held. No. The law school in this case was conducting highly individualized reviews of each applicant, and Justice O’Connor determined that race was only one of many factors considered to determine the applicant’s eligibility. Schools have a compelling interest in having diverse student bodies.
Grutter’s companion case, Gratz v. Bollinger, challenged Michigan’s undergraduate admissions policies. The Court struck down this policy, however, finding that it gave an overall advantage to minority students.

Meehan v. Shaughnessy

Meehan v. Shaughnesy

404 Mass. 419, 535 N.E.2d 1255 (1989)

 

Facts. Plaintiffs, Meehan and Boyle were senior partners at the Defendant’s firm, Parker Coulter. Meehan and Boyle had a 10.8% share of the law firm. The firm said: okay now you’re leaving, there were procedures for the removal of clients. The Plaintiffs decided to leave, they gave thirty days notice (instead of the agreed upon three months – but this was waived by a partner in the firm), took other attorneys from the firm with them . They recruited Meehan, Boyle, Cohen, Schafer, Black, and Fitzgerald to start their own firm. The letters to the clients was on the Parker Coulter Letterhead. The partnership agreement provided rights for the parties after dissolution that resolved the allocation of business immediately. Departing attorneys were entitled to receive their share of their capital contribution and net income currently entitled, as well as a right to a portion of the firm’s unfinished business. The main point of contention was the stealing of clients. They took 142 of the 350 contingent fee cases pending at Parker Coulter.

 

Issue. The issue is whether the conduct of Plaintiffs violated a fiduciary duty owed to the remaining partners of the firm.

 

Holding. Lawyers can leave, clients can leave. You should send out a joint letter or an approved letter. Relationships in the profession is very important. Why burn all these bridges?

The P’s conduct regarding their secret planning for their new law firm was not necessarily unacceptable. P’s would have to engage in some initial planning for the new firm to ensure that they would have the necessary resources to start their own firm. P’s conduct went too far concerning the retentions of all their former clients. P’s left D at a disadvantage when they denied they were leaving and when they secured clients while D’s were initially trying to plan for P’s departure. P violated the partnership agreement by violating their fiduciary duty, but they will only held responsible for damages arising from their conduct. P’s are entitled to their share of capital contribution and compensation.

 

Examine: 403(c)