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Statutes updated from Official Statutes on: January 26, 2022
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Under the narrower construction of § 871, the jury in this case might well have acquitted, concluding that it was unlikely that Rogers actually intended or expected that his listeners would take his threat as a serious one. Because I think that the District Court's misconstruction of the statute prejudiced petitioner in this case and may continue to do mischief in future prosecutions brought under § 871, I would reverse on this ground rather than on the Solicitor General's confession of error."The appealable final judgment in a criminal case is ordinarily the imposition of sentence." State v. Seravalli, supra, 205; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). The trial court's denial of the defendant's motion to quash the ordering of the second grand jury, measured against these tests, is not a final judgment within the meaning of 52-263 and 51-197a.871 So.2d at 788.An affidavit cannot be conclusory, see, e.g., Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), but nothing in Rule 56 (or, for that matter, in the Federal Rules of Civil Procedure) prohibits an affidavit from being self-serving. Indeed, as the Seventh Circuit observed, "most affidavits submitted [in response to a summary judgment motion] are self-serving." Payne v. Pauley , 337 F.3d 767, 772 (7th Cir. 2003). Not surprisingly, most of our cases correctly explain that a litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment. See, e.g., Feliciano v. City of Miami Beach , 707 F.3d 1244, 1253 (11th Cir. 2013) ("To be sure, Feliciano's sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage."); Price v. Time, Inc. , 416 F.3d 1327, 1345 (11th Cir.) ("Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving."), modified on other grounds on denial of reh'g , 425 F.3d 1292 (11th Cir. 2005).Accordingly, we conclude that under section 871 a magistrate may dismiss or strike a special circumstance allegation if the evidence presented at the preliminary hearing does not provide sufficient cause to support the allegation. In light of the direct reference to section 871 in section 1387, we also conclude that a dismissal of a special circumstance allegation under section 871 is "an order terminating an action" under section 1387.At the time Congress enacted § 879, the interpretation of the phrase "knowingly and willfully" in § 871 that had been articulated in Roy and its progeny was widely accepted in the federal courts. The fact that Congress chose to adopt this and other substantially identical language in enacting § 879, which addresses a concern parallel to that engaged by § 871, bespeaks an intention to import the established general intent interpretation of § 871 into the new statute. Cf. Bonanno, 879 F.2d at 21-27 (holding that United States cannot sue for treble damages under RICO, reasoning that it could not do so under similar language of Clayton Act on which RICO was modelled). We accordingly conclude that § 879 requires proof only of general intent.The purpose of requiring the defendant's presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed, See C.Cr.P. arts. 835, 871 and comments thereunder. Accordingly, the failure of the trial judge to fully articulate the sentence and the failure of clerk to accurately reflect what was stated operate to the detriment of the accused.Stevenson did not cite a single case in his brief which would support his arguments, and his arguments fail on their own. First of all, it is certainly reasonable to believe that a person who received a letter such as that which was sent to Gormley would be frightened and intimidated from performing his or her tasks, and that such fear and intimidation would be the goal of the person who wrote the letter. Under 18 U.S.C. §(s) 115(a)(1)(B), the key point is whether the defendant intentionally communicated the threat. The Ninth Circuit has stated that the "only intent requirement is that the defendant intentionally or knowingly communicates his threat, not that he intended or was able to carry out his threat." United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990); see also United States v. Roberts, 915 F.2d 889, 890 (4th Cir. 1990), cert. denied, 498 U.S. 1122 (1991). This Circuit stated a similar standard regarding intent in the context of 18 U.S.C. §(s) 871, criminalizing threats to the President. United States v. Pilkington, 583 F.2d 746, 747 (5th Cir. 1978), cert. denied, 440 U.S. 948 (1979)The Court, however, takes a directly contrary approach here. Today's decision rests critically on the proposition that respondent's ineffective-assistance claim is to be judged under the law as it exists today, rather than the law as it existed at the time of trial and sentencing. Ante, at 372. In other words, respondent must make his case under Perry v. Lockhart, 871 F.2d 1384 (CA8), cert. denied, 493 U.S. 959 (1989), decided four years after his sentencing; unlike the State, he is not entitled to rely on "then-existing constitutional standards," Teague, 489 U.S., at 310, which rendered him ineligible for the death penalty at the time that sentence was imposed.The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements, but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss, we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence…