2004 WL 1565978 (11th Cir.)

For opinion see 331 F.3d 1228

United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff/Appellee, v. Robert D. BLANDFORD, Defendant/Appellant.

No. 01-15148-JJ.

January 4, 2004.

ON APPEAL FROM UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

Reply Brief

Michael I. Rose, P.A., Michael I. Rose, Esq., Attorney for Defendant/Appellant, Robert. D. Blandford, 150 West Flagler Street, Museum Tower 1525, Miami, Florida 33130, (305) 373-6300

*i STATEMENT OF TYPE SIZE AND STYLE

The type size used in this Reply Brief is 14 point. The style used is Times New Roman Regular.

*ii TABLE OF CONTENTS

Certificate of Interested Persons ... C-1

Statement Regarding Type Size and Style ... i

Table of Contents ... ii

Table of Citations ... iii

Preface ... iv

Argument and Citations of Authority ... 1

Certificate of Service ... 18

Certificate of Compliance ... 19

*iii TABLE OF CITATIONS

CASES

Calvin v. Chater, 73 F.3d 87 (6th Cir. 1996) ... 1

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc ... 6

Rust v. Sullivan, 500 U.S. 173 (1991) ... 2

United States v. 594, 464 Pounds of Salmon, 871 F.2d 824 (9th Cir. 1989) ... 14

United States v. Cameron, 888 F.2d 1279 (9th Cir. 1989) ... 14

United States v. Craddock, 149 F.3d 1249 (10th Cir. 1998) ... 1

United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987) ... 13

United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) ... 15

United States v. Lee, 937 F.2d 1388 (9th Cir. 1991) ... 14

*United States v. Miller, 22 F.3d 1075 (11th Cir.1994) ... 16

United States v. Price, 361 U.S. 304 (1960) ... 8

United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985) ... 2

United States v. Turkette, 452 U.S. 576 (1981) ... 7

UNITED STATES SENTENCING GUIDELINES:

USSG 2S1.1 ... 17

*iv PREFACE

Defendants/Appellants Abner J. Schoenwetter ("SCHOENWETTER") and Robert D. Blandford ("BLANDFORD") reviewed PlaintifFAppellee United States of America's ("Government") Answer Brief together and worked jointly on the arguments and authorities contained in their Reply Briefs. Accordingly, the Reply Briefs for SCHOENWETTER and BLANDFORD essentially are the same. However, SCHOENWETTER and BLANDFORD have filed separate Reply Briefs because there wasn't sufficient time to seek a leave of this Honorable Court to file a joint Reply Brief.

*1 ARGUMENT

I. Validity Of Honduran Law.

A. Presumption Of Validity Of Foreign Law.

Plaintiff/Appellee United States of America's ("Government") response to Defendants/Appellants' Abner Schoenwetter("SCHOENWETTER"), Robert Blandford ("BLANDFORD"), Diane Huang ("HUANG"), and David Henson McNab ("MCNAB") (collectively "APPELLANTS") Initial Briefe is premised upon a fundamental erroneous presumption. It is that "statutes and regulations are presumed valid until shown otherwise." AB at 20 [FN1] (citing United States v. Craddock, 149 F.3d 1249, 1258 (10th Cir. 1998)); Calvin v. Chater, 73 F.3d 87, 90-91 (6th Cir. 1996). The foregoing cases relied upon by the Government apply only to United States jurisprudence. The Government does not furnish any authority which holds that this presumption applies to the laws of other countries.

FN1. References to the Government's Answer Brief will be denoted by "AB" followed by the page number.

The Government has shifted the burden of proof relating to foreign law without any right to do so. Fed. R. Crim. P. 26.1 provides, in pertinent part, that "[a] party who intends to raise an issue concerning the law of a foreign country" to give "reasonable written notice." After such notice, the district court makes a *2 determination about the validity of the foreign law to be applied. That determination "shall be treated as a ruling on a question of law." Were "the law of a foreign country" to carry any presumption of validity, then there would be no need for the procedure set forth in Rule 26.1. [FN2]

FN2. The Government's Answer Brief at numerous junctures discusses application of Honduran law as if it were governed by our own federal decisional and procedural law. Of course, at best it simply is silly to argue in this fashion. For example, in discussing Government witness Liliana Paz' ("PAZ") retraction of her former testimony, the Government states that such retraction "lacks any credibility and deserves no deference." To support its position, the Government cites Rust v. Sullivan. 500 U.S. 173, 186-87 (1991)(an agency's change in interpretation should be accorded deference if it explains the change "with reasoned analysis"). AB at 28. It is beyond dispute that: a) the holding in Rust applies to agencies of the United States government only; and b) for obvious reasons the Supreme Court never intended that its holding would apply to governmental agencies located in exotic locales from Afghanistan to Zanzibar.

The Government simply is wrong when it asserts that United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985), doesn't apply. Sohappy demonstrates that the "law of a foreign country," in that particular instance Indian treaty rights, was an issue which the Government had to plead and prove. This followed because Indian treaty rights did not fall within the purview of statutes and regulations of the United States or one of its fifty sovereigns. Thus, Rule 26.1 applied, and the burden of proof fell squarely on the Government. That same principle clearly applies when the law in question arises from the law of a foreign country such as Honduras.

*3 B. Express Repeal Of Decree 40.

The Government attempts to justify the erroneous foreign-law rulings of the district court judge, The Honorable Richard W. Vollmer ("JUDGE"), but it fails to address head on certain fundamental issues. For example, the Government asserts that the Honduran National Congress' repeal of Decree 40 did "not mention Agreement 0008-93 (or any of the administrative regulations promulgated pursuant to the repealed statutes)." AB at 22. Yet, the Government fails to cite any Honduran authority that the National Congress is required to do just that to effectuate a simultaneous repeal of all of the regulations, resolutions, and rules which arose under the authority of the prior Decree.

The only authority cited by the Government on this precise issue is Article 44 of the Honduran Civil Code which provides that a "tacit repeal leaves in effect in the previous law anything not in conflict with the provisions of the new law, even though both versions may cover the same matters." AB at 23. However, there is nothing in the record to demonstrate that Honduran resolutions promulgated under a now-repealed law remain valid after repeal. For such an Honduran legal principle to apply, as the Government wishes, under Rule 26.1 it was the Government's obligation to prove that the new Decree left intact all legal obligations generated *4 under repealed Decree 40. including Agreement 0008-93. if not expressly repealed. [FN3]

FN3. MCNAB raised and discussed this precise issue at the final foreign law hearing conducted on August 17, 2001. R41-34-38.

The Government never proved such an Honduran legal principle. Rather, the Government assumes, and asks this Court to assume, the existence of this principle. The Government makes reference to Appellant David Henson McNab's ("MCNAB") reading of Honduran law as "implausible" when in fact it is the Government which is promoting an unsupported interpretation of Honduran law. AB at 22. [FN4] After making, without proving, the foregoing assumption, the Government then jumps to the Honduran legal principle of "tacit repeal," stating "[i]f Decree 157-94 repealed Agreement 0008-93 at all, it could only have done so implicitly." AB at 23. Under the Civil Code, a "tacit repeal leaves in effect in the previous law anything not in conflict with the provisions of the new law, even though both versions may cover the same matters." AB at 23.

FN4. The Government offers no explanation why repeal of law should leave intact obligations arising from the repealed law. Such a conclusion leads to absurd results. If the legislative branch declared a law repealed, but the executive branch still could enforce defunct law under administrative rules, regulations, or resolutions, the people's mandate, by and through its elected representatives, would be eliminated.

At this juncture it is abundantly clear just how skewed is the Government's reasoning. There was no "tacit repeal" of "the previous law." The Honduran *5 National Congress expressly repealed Decree 40. A tacit repeal of Decree 40, and obligations arising under it, only would be an issue for review in this cause if the National Congress had not expressly repealed Decree 40 and replaced it with Decree 157-94, In other words, had the National Congress not set aside Decree 40 and replaced it with a new law, then and only then, would a comparison of the two Decrees be warranted. If it were, then any provision of Decree 40 not in conflict with Decree 157-94 still would be left "in effect." Because the National Congress made an express repeal of Decree 40, then there is no reason to engage in a "tacit repeal" analysis of the two laws and legal obligations created by each of them.

C. Explicit Repeal Of Resolution 0008-93.

According to the Government, in December of 1999, the Ministry of Natural Resources issued Accord 1081-99 which expressly repealed Agreement 0008-93. AB at 24. The point the Government tries to make is that the Ministry would have no need to expressly repeal 0008-93 if it had not been in effect after repeal of Decree 40 in 1995. AB at 24. What an Honduran Ministry chooses to do at any time about an "Agreement" issued under Decree 40, including continuing to enforce it, is of no moment. The only issue is whether Decree 40 was good Honduran law at the time the alleged wrongful conduct was committed by APPELLANTS. There is no dispute that it was not valid after its repeal in 1995. The only dispute is *6 whether obligations arising under Decree 40 still could be enforced.

In the previous Section, BLANDFORD already has discussed why such obligations could not have been enforced lawfully. To accept the Government's logic would be to accept at face value that an Honduran Ministry always acts in a manner consistent with current Honduran law. To engage in this type of speculation is impermissible. It is just as plausible that the Honduran Ministry of Natural Resources continued to enforce repealed law without having the authority to do so. At a rninimum the foregoing demonstrates why it would be both premature and unfair to send BLANDFORD off to prison for 97 months without having the district court conduct further proceedings consistent with the substantial new information, including Honduran court decisions, available after the last foreign law hearing of August 17, 2001.

D. Principles Of Statutory Construction.

The Government has chosen to ignore the black-letter law of statutory construction. If the laws at issue arose under our own federal or state law, then the Government would not be allowed-to speculate about the reasons why the Congress or a state legislature decided on certain words if a plain meaning of the law could be understood from those words. United States v. Turkette, 452 U.S. 576, 580 (198 l)(when interpreting the scope of a statute, a court is first obligated to look at *7 its language).

Yet, here the Government engages in such impermissible conduct under Honduran law. The Government's argument employs such phrases as: a) "it is not clear that Decree 198-2001 would apply to the situation here ... b) "[T]he very fact that the Congress felt the need to issue Decree 198-2001 ... suggests that this was not understood to be the state of the law prior to November 2001 ..." AB at 25 (emphasis supplied). This type of speculative argument promoted by the Government should cause this Court to take great pause when asked to affirm the convictions in a case such as this where substantial imprisonment was meted out to the APPELLANTS. [FN5]

FN5. The foregoing concession made by the Government underscores the point made by BLANDFORD above. Political bodies do not always act in conformance

with valid law, and it is not for a federal district court to speculate why a branch of government in a foreign country acted in a particular way. See footnote 3, supra. Here, as the Government admits, the Honduran National Congress may have enacted 198-2001 simply to once again give notice of already repealed law.

Strangely, the Government cites to United States v. Price, 361 U.S. 304, 313 (1960), in which the Supreme Court observed that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." Under Price, this Court should not accept the Government's reasoning that the Ministry of Natural Resources' December 1999 repeal of Agreement 0008-93 lends support that *8 the 1995 repeal of Decree 40 did not also automatically render 0008-93 without legal effect. The Government asks this Court to agree, contrary to Price, that the Ministry's 1999 repeal of 0008-93 was not "a hazardous basis for inferring the intent of the National Congress' 1995 repeal of Decree 40. The Government wants that intent to be read as not repealing obligations in effect under Decree 40 prior to its repeal. [FN6] There is no need to participate in that exercise. The National Congress expressly repealed 0008-93 which forecloses any need to inquire further about the abrogation and retroactive application to criminal cases of such abrogation of this "law." See Sections "B" and "C" above; Honduran Constitution Article 96.

FN6. Accepting the Ministry's 1999 repeal of 0008-93 as a means to derive the intent of the Honduran National Congress in 1995 as to the fate of 0008-93 is even more dangerous where the former is not a national legislative body. Such dangerous reliance, nothing more than one assumption built on another relating to foreign law and affecting the liberty of a United States citizen, should not be countenanced.

E. The Government's Addendum Of Foreign Law Materials.

First, BLANDFORD does not agree that as part of its Answer Brief the Government is entitled to submit for consideration by this Court its "Addendum of Foreign Law Materials." The Addendum contains four documents, one of which was generated on August 27, 2001, another on December 20, 2001, and the third on *9 December 24, 2001. [FN7] No provision in the Rules of Appellate Procedure authorizes this submission. See Fed. R. App. P. 30(b)(1). BLANDFORD is not aware that any of the APPELLANTS agreed the Government could file this Addendum. Additionally, the Addendum contains matters outside the record. Accordingly, the Addendum should be stricken from consideration by this Court.

FN7. The JUDGE conducted the last foreign law hearing on August 17, 2001.

He issued his ruling arising from that hearing on August 28, 2001, denying APPELLANTS' motions to dismiss and for new trial. These motions sought a reversal of the JUDGE'S earlier rulings that the Government had proven the validity of Honduran law to support their convictions under the Lacey Act. R 12-397.

Assuming arguendo that the Court can consider one or more parts of the Addendum, it must be emphasized that the Government's own legal experts cannot evade an immutable Honduran legal principle. It is that a law has "retroactive effect ... in the penal area when the new law favors the criminal or defendant." See Government's Addendum, Tab 1. [FN8] The existence of this principle applies to the *10 recent Honduran court decisions, including an affirmance by the Honduran Court of Appeals of the May 23, 2001 lower court opinion annulling another "law" upon which the Government relied in this prosecution, namely Resolution 030-95. See R41-9-19. [FN9] The Government focuses on the decision's wording that this "law" is "entirely voided, but this is only for purposes of [its] annulment and future inapplicability; this Resolution does not confer any right to claims." AB at 31-32.

FN8. Juan Arnaldo Hernandez Espinoza ("HERNANDEZ"), an Assistant Attorney General in the Office of the Assistant Attorney General, reiterates this

principle in his August 27, 2001 letter to the Government. This same principle has been recited by APPELLANTS in their Initial Briefs as well as in their district court papers. The Government never has been able to squarely face this principle. When the National Congress repealed Decree 40 in 1995, that repeal "favored" APPELLANTS because it abrogated the very laws upon which the Government continuously and erroneously has utilized to support the Lacey Act violations in this cause. This necessarily means that repeal of Decree 40 had retroactive effect and, consequently, APPELLANTS could not violate Decree 40, nor any resolutions or other obligations arising thereunder, after 1995.

FN9. The Government seeks to avoid the impact of Honduran court decisions by stating itself that "the United States respectfully disagrees with the judge's decision." AB at 31 fn 12. The Government can't have it both ways. If it originally sought to prosecute APPELLANTS by invoking Honduran "laws" which it believed to be valid, then it also must respect that country's court decisions relating to those "laws" at all stages in these proceedings. The Government adds that "the judge offered no explanation for summarily rejecting the Honduran government's counterarguments." AB at 31 fn 12. Suffice it to say that the Government is required to respect per curiam affirmed decisions of appellate courts in the United States and

cannot challenge them simply because the appellate court "offered no explanation" for its affirmance of the decision below.

The quick response is that the foregoing language, whatever its ultimate meaning, cannot prevent a defendant from availing himself of the constitutional protections of Article 96 guaranteeing retroactive application to a law which is "entirely voided." Incredibly, the Government goes on to argue that Article 96 doesn't apply here because "no Honduran 'penal matters' or criminal proceedings are involved in this case, which is a prosecution in a United States court for federal criminal offenses." AB at 34. This reasoning triggers an image of one "who can't *11 see the forest for the trees." The issue is whether there is a violation of valid "foreign law" to be used by the Government in a Lacey Act charge.

If a law would not subject a person to a sanction in the foreign country, then it cannot form the basis for a Lacey Act charge. Otherwise, that person could be prosecuted here under the Lacey Act when there was no foreign law violation. When a law is repealed in Honduras which would benefit a criminal defendant, then the defendant receives that benefit retroactively under Article 96. The National Congress repealed "laws" at issue here. Therefore, APPELLANTS who originally may have been properly sanctioned under those laws, no longer can be, plain and simple. That is how Honduran law operates. The Government cannot choose among Honduran law which portions fit the Government's case and ignore, to the detriment of APPELLANTS, benefits flowing to persons from repealed law.

In its Addendum, the Government provides an affidavit from HERNANDEZ in which he "disagree[s] with the opinion of the Human Rights Commissioner insofar as he states that the nullification of Resolution 030-95 was retroactive in effect." Yet, HERNANDEZ never attempts to reconcile Article 96 of the Honduran Constitution, relating to retroactive application of repealed statutes in criminal *12 cases, with his "disagreement" about application of 030-95. [FN10]

FN10. In his affidavit, HERNANDEZ simply ignores the import of Article 96 of the Constitution to which he had referred in his August 27, 2001 letter. He states: "The fact that [MCNAB's] violation of ... 030-95 ... played a role in his criminal prosecution in the United States does not alter the basic legal principle that the nullification of a definite and firm resolution, setting specific requirements, is for future cases only." Addendum, Tab 2. If that were true, then the protection afforded a criminal defendant under Article 96 would be a nullity.

F. Government's Position On Key Record Evidence.

The Government asks this Court to ignore sworn testimony given by Liliana Paz ("PAZ"), the Government's key witness through trial. PAZ submitted an affidavit which became part of the record before the JUDGE at the time of the last foreign law hearing conducted on August 17, 2001. That affidavit constituted a retraction of her prior support for the Government's argument that there was valid Honduran law to support this Lacey Act prosecution. R41-8-9.

The JUDGE erred because acted as if this new evidence didn't exist. Because the JUDGE had agreed in advance that witnesses could testify by affidavit at the August 17, 2001 hearing, the JUDGE was obligated to give PAZ' retraction affidavit due consideration. R39-115-16. Moreover, because PAZ wasn't present at the August 17, 2001 hearing, the JUDGE could not assess her demeanor and, therefore, he was not entitled to discount her testimony not being credible. With the foregoing in mind, a review of the August 17, 2001 hearing shows that the JUDGE *13 never stated why PAZ' retraction should not require him to take a new look at his previous rulings on the validity of Honduran law. R41- 40. Nor does his order of August 28, 2001 discuss the effect vel non of PAZ' new affidavit which clearly undermined the basis for the JUDGE to have found the existence of valid Honduran law in the first place before trial. [FN11]

FN11. The JUDGE'S failure to recognize and discuss PAZ' retraction of her former position on Honduran law is yet another reason to remand this cause to the district court for further proceedings on the validity of Honduran

law. The Court has indicated that MCNAB may seek temporary relinquishment of appellate jurisdiction to have newly-discovered post-appeal evidence considered by the district court through application to the district court under the procedure described in United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987). BLANDFORD simply would note that remand for further proceedings with instructions, rather than the grant of temporary relinquishment, would guide the district court judge on important issues for proper resolution once this Court has made such determinations. However, BLANDFORD does foreclose the possibility that the Ellsworth procedure should be utilized. He does not waive his right to seek further proceedings in the district court before this appeal is decided by invoking the Ellsworth procedure.

G. The Government's Cases From Other Circuits.

The Government relies heavily on several cases from the Ninth Circuit. United States v. Lee. 937 F.2d 1388 (9th Cir. 1991); United States v. Cameron, 888 F.2d 1279 (9th Cir. 1989); United States v. 594.464 Pounds of Salmon. 871 F.2d 824 (9th Cir. 1989). However, there is a fundamental and inescapable distinction between these cases and the one sub judice. None of the cases cited by the Government deals with a dispute about the invalidity of the foreign law *14 underpinning the Lacey Act charges. Accordingly, it respectfully is submitted that this Court should not apply the above cases to the facts at issue here. This case is unique on its own facts in light of the repeal and annulment of the "foreign law" under which the Lacey Act charges were commenced and prosecuted.

H. Sufficiency Of The Evidence And The Mens Rea Requirement.

The Government points out that Ninth Circuit cases hold a non-criminal foreign law can be used to charge a person criminally under the Lacey Act. See, e.g. United States v. Lee, 937 F.2d 1388 (9th Cir. 1991). However, the Lee case clearly holds that a criminal penalty cannot be imposed under the Lacey Act unless the Government proves beyond a reasonable doubt that a defendant knew or, in the exercise of due care, should have known that he was taking fish unlawfully under "any underlying law, treaty, or regulation." Id. at 1392. The Eleventh Circuit has not hesitated to reverse convictions where the Government fails to prove all of the essential elements of a criminal Lacey Act violation. United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997).

The Government argues that there was "sufficient evidence" to convict APPELLANTS. However, the Government is off the mark because it fails to address the mens rea requirement which must be satisfied to support a conviction. Rather, the Government focuses briefly on whether documentary evidence supports *15 "knowledge" about Honduran law violations. AB at 62-63. The record does not demonstrate that at all. For example, there is nothing in any paperwork relating to BLANDFORD which proves he "knew, or in the exercise of due care should have known," he was violating various types of Honduran "laws." Nor is there any evidence that the Honduran government gave notice, directly or indirectly, to BLANDFORD, or that he was able to learn from someone else, about the existence of the Honduran "laws" upon which the Government built its case. Without having adduced evidence sufficient to make this showing, the JUDGE erred when he failed to grant BLANDFORD's motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29.

I. Failure To Instruct The Jury Properly.

The Government wants the Court to accept a new test to determine whether a district court judge properly instructs a jury on a particular charge. The new test is satisfied if: a) the judge reads only the allegations in the indictment under one count I; b) as to count IV, the judge instructs the jury properly in the elements of that offense; c) the elements of the offense of the count IV are not the same as count I; d) however, it is assumed that a reasonable juror is capable of guessing the number and substance of the elements of the offense in count I; e) because, putting together the allegations in the indictment, the elements of the offense in count IV, and using *16 common sense, the jurors will figure out the elements of the offense which have to be proved beyond a reasonable doubt.

BLANDFORD submits that this Honorable Court should not lower the threshold for properly instructing a jury in a criminal case. The Government's analysis to try and circumvent United States v. Miller, 22 F.3d 1075 (11th Cir. 1994), is skewed. Miller clearly states that it is error, not only to fail to mention the statute charged, but also "the essential elements of that offense." Id. at 1080. It will be a sad day in federal jurisprudence if it is left up to the jury to synthesize the elements of the offense for its verdict from various sources of information such as the indictment and/or elements given for other charges.

J. Failure To Grant Continuance Of Sentencing Hearing.

It is true that ordinarily the issue of a district court judge's refusal to grant a continuance would not be a likely candidate for reversal. However, the circumstances here were unique. BLANDFORD had demonstrated to the JUDGE that waiting only two months for the sentencing hearing would mean half the imprisonment time under new law. The Government simply argues in response that "a defendant must demonstrate arbitrary action that substantially prejudiced the defense." AB at 70. BLANDFORD has made such a showing.

In his Initial Brief he detailed how the new Guideline, USSG 2S1.1, would *17 translate to years less of incarceration. Losing so much of his life at his age was "substantial prejudice" to BLANDFORD who never was charged with a law violation before these charges. The JUDGE gave no reason sufficient to justify his inability to wait eight weeks to save years of BLANDFORD's life. [FN12]

FN12. Obviously, the Sentencing Commission and then Congress thought this change was important enough to make it the law of the land on November 1, 2001, including a presumption they thought it a just change in the federal criminal system. Thus, the JUDGE'S refusal to grant the continuance was arbitrary because he knew Congress' intent yet refused to accommodate it for no good reason. Our land distinguishes itself from most others because its laws are applied, through its judicial officers, to work substantial justice among our citizens. When this doesn't happen, discretion is abused, subject to correction by the reviewing court.

The Government states that there would be no benefit to BLANDFORD under the new Guideline. Yet, the Government fails to provide an analysis, as BLANDFORD did, as to exactly how the new Guideline would alter the sentencing range. Indeed, BLANDFORD has shown how application of the new Guideline would have benefitted him greatly. There is nothing in the record to justify the Government's position that a short continuance would have adversely impacted "judicial economy" or "timely administration of justice." [FN13]

FN13. BLANDFORD prays for this this Honorable Court to give far more weight to the word "justice" than to "administration" in this latter phrase.

UNITED STATES OF AMERICA, Plaintiff/Appellee, v. Robert D. BLANDFORD, Defendant/Appellant.