Kara Sears
In the case of United States v. Herman, the cited case law pertains to the defendant's appeal against their conviction and sentence for threatening to use explosives. The defendant, Zachary Herman, argued that the trial court failed to instruct the jury on the appropriate level of intent for the crime. To support this, Herman cited Roy v. United States, which distinguished between threats to the President and other types of threats. In the case of State ex rel. Herman v. Southern Pac. Co., the discussion revolves around the state's appeal against a judgment in favor of Southern Pacific Company in a condemnation action. The case of State ex rel. Herman v. Schaffer addresses the rights of property owners regarding access to abutting highways. Additionally, in HERMAN v. DEPARTMENT OF JUSTICE, Richard Herman filed an appeal alleging reassignment due to whistleblowing activities, with references to Eidmann v. Merit Sys. Protection Bd.
| Characteristics | Values |
|---|---|
| Case name | United States v. Herman |
| Case name | State ex rel. Herman v. Southern Pac. Co. |
| Case name | State ex rel. Herman v. Schaffer |
| Case name | Ressis v. Herman |
| Case name | HERMAN v. DEPARTMENT OF JUSTICE |
| Case law | In re Bart, 113 U.S.App.D.C. 54, 58, 304 F.2d 631 (1962) |
| Case law | United States v. Nusz, 462 F.2d 617, 618 (9th Cir.1972) |
| Case law | Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969) |
| Case law | Eidmann v. Merit Sys. Protection Bd., 976 F.2d 1400, 1402-03, 1407 (Fed.Cir.1992) |
| Case law | 5 U.S.C. § 2302(b)(8)(A) (1994) |
| Case law | 5 U.S.C. § 2302(b)(8)(A) |
| Case description | Zachary Herman appeals his conviction and sentence for threatening to use explosives to blow up Nellis Air Force Base |
| Case description | The State of Arizona filed this action in eminent domain against seventeen parcels of land located along Interstate Highway 10 |
| Case description | Richard Herman, filed an Individual Right of Action (“IRA”) appeal to the Merit Systems Protection Board (“Board” or “MSPB”), alleging that he was reassigned in retaliation for whistleblowing activities |
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What You'll Learn
U.S. v. Herman, 589 F.2d 1191
In the case of United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), the court considered whether the government's selective immunization of prosecution witnesses, but not defense witnesses, violated the defendant's due process rights. The case involved Richard P. Herman, a former state court magistrate in Allegheny County, Pennsylvania, who was convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). Herman argued that the government should have conferred use immunity on the constables, while the majority discussed the constitutionality of the government's refusal to do so. The court recognised the possibility that a court may have the inherent authority to confer immunity on a witness to ensure the defendant's compulsory process right to an effective defense.
The court's decision in United States v. Herman cited several previous cases. These include Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where the Supreme Court established that a court may have the authority to confer immunity to ensure a defendant's compulsory process right. The court in United States v. Herman also referenced its own previous decisions in United States v. Inmon, 568 F.2d 326 (3d Cir. 1977), and In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978), which supported the idea that a court may have the authority to confer immunity on witnesses.
Additionally, the court in United States v. Herman discussed the case of State v. Montgomery, 84-1671, which involved the immunity of defense witnesses. The court in State v. Montgomery recognised two categories of defense witness immunity: "statutory" immunity and "judicial" immunity. Statutory immunity refers to the power granted by the legislature to the executive branch to confer immunity on a witness in exchange for self-incriminating testimony. On the other hand, judicial immunity is held by some courts to exist independently of any statute.
The court in United States v. Herman also referenced other cases that discussed the obligation of the government to grant use immunity to defense witnesses when witnesses for the prosecution have received immunity. These cases include United States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.), Cert. denied, 426 U.S. 948, 96 S. Ct. 3167, 49 L. Ed. 2d 1184 (1976), United States v. Bautista, 509 F.2d 677, and Earl v. United States, 361 F.2d 534 n. 1. In these cases, the courts suggested that the government may have an obligation to grant use immunity to defense witnesses as a matter of fundamental fairness when prosecution witnesses have received immunity.
In conclusion, United States v. Herman, 589 F.2d 1191, is a significant case that addressed the issue of selective immunization of witnesses and the potential violation of the defendant's due process rights. The court's decision cited and built upon previous cases, such as Simmons v. United States, United States v. Inmon, and In re Grand Jury Investigation, to recognise the possibility of a court's inherent authority to confer immunity on witnesses to ensure a defendant's right to an effective defense. The case also discussed the different categories of defense witness immunity and the obligation of the government to grant use immunity to defense witnesses in certain circumstances.
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United States v. Nusz, 462 F.2d 617, 618 (9th Cir.1972)
In United States v. Nusz, 462 F.2d 617, 618 (9th Cir. 1972), the defendant, Walter Ralph Nusz, was accused of threatening to dynamite a building occupied by the National Forest Service. Nusz appealed his jury conviction, arguing that the trial court had erred in its instructions to the jury. Specifically, Nusz challenged the court's refusal to instruct the jury that "before a statement may be considered a threat, even though made vehemently, caustically, or unpleasantly, it must be made without condition".
The Ninth Circuit Court of Appeals upheld the district court's decision, stating that while conditional language may sometimes negate a threat, it does not always follow that conditional language negatives a threat. The court also rejected the argument that a threat can only lead to a conviction if there is an intention to carry out the threat. This decision set a precedent for cases involving threats, particularly those made against the President, where the court has consistently held that the government does not need to prove intent to carry out the threat for a conviction.
In the case of United States v. Herman, the defendant, Zachary Herman, was convicted of threatening to use explosives to blow up Nellis Air Force Base. Herman appealed his conviction, arguing that the trial court failed to instruct the jury on the proper level of intent for the crime. He cited United States v. Nusz, among other cases, to support his claim that the government must prove intent to carry out the threat in cases not involving threats against the President. Herman's argument was based on the precedent set in Roy v. United States, where the court found that threats against the President are "qualitatively different" and thus require a higher standard of intent.
The court's decision in United States v. Nusz helped shape the understanding of what constitutes a "threat" and the necessary intent required for a conviction in cases involving threatening statements. The case has been referenced in subsequent cases, such as United States v. Leaverton, where the court noted that Nusz was the only circuit court opinion considering 18 U.S.C. § 844(e) at the time. The outcome of United States v. Nusz contributed to the interpretation of the law and influenced the handling of similar cases involving threats and the evaluation of intent.
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Roy v. United States, 416 F.2d 874, 877 (9th Cir.1969)
In Roy v. United States, 416 F.2d 874 (9th Cir. 1969), the defendant communicated anonymously to a telephone operator that the President might be assassinated if he made an intended visit to Camp Pendleton. The defendant in this case argued that the word "get" in the statement "I am going to get him" could be interpreted innocuously as "become even with" or "gain an advantage over".
The Ninth Circuit defined "threat" for the purposes of § 871(a) and held that subjective intent was not required for criminal liability. The court construed the willfulness requirement of the statute to necessitate that the defendant intentionally make a statement, either written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily harm upon or take the life of the President. The statute does not require that the defendant actually intends to carry out the threat. This interpretation is supported by Michaud v. United States, 350 F.2d 131 (10th Cir. 1965) and Ragansky v. United States, 253 F. 643 (7th Cir. 1918).
However, the defendant in Roy v. United States argued that the willfulness requirement was not met because he later told the telephone operator that the threat was a joke. While the claim that the threat was made as a joke is not a defence in itself, the context of levity may be considered. If a threat is made in a lighthearted context, so that a reasonable person would interpret the words used as hyperbole or jest, not intended to express a genuine intention to harm the President, then the words would not constitute a threat and would be apparent to a reasonable person.
In the context of the Herman case, the appellant cites Roy v. United States to support the claim that the government must prove intent to carry out a threat in cases that do not involve threats against the President. The appellant argues that threats against the President are "qualitatively different" from other types of threats, and therefore, a higher standard of intent should be applied when the President is involved.
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State ex rel. Herman v. Southern Pac. Co
On October 28, 1964, the State of Arizona initially filed an action in Yuma County to control the access of 6.3 miles of the Southern Pacific Company's right-of-way. Prior to this condemnation action, Southern Pacific had been able to gain access to their railroad at any point along the 6.3 miles where the railroad tracks ran parallel to the highway. The Court in its construction of the constitutional provision has been careful not to reduce the concept of 'just compensation' to a formula. The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice. However, the Amendment does not contain any definite standards of fairness by which the measure of 'just compensation' is determined.
The case law cited in this case includes:
- Thelberg, supra
- Pima County v. De Concini, 79 Ariz. 154, 285 P.2d 609 (1955)
- Phoenix Title & Trust Co. v. State ex rel. Herman, 5 Ariz. App.
- State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968)
- State v. Hollis, 93 Ariz. 200, 379 P.2d 750 (1963)
- State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66 (1970)
- State ex rel. Herman v. Tucson Title Ins. Co., 101 Ariz. 415, 420 P.2d 286 (1966)
- State ex rel. Herman v. Saldamando, 12 Ariz. App. 474, 472 P.2d 85 (1970)
- South Bay Irr. Dist. v. California-American Water Co.
The Court adopted practical standards, including market value, to determine 'just compensation', but noted that market value may not always be the best measure of value.
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Herman v. Department of Justice (1999)
In the case of Herman v. Department of Justice (1999), Richard Herman filed an Individual Right of Action ("IRA") appeal to the Merit Systems Protection Board ("Board" or "MSPB"), alleging that he was reassigned in retaliation for whistleblowing activities. The Board dismissed the appeal for lack of jurisdiction, ruling that none of Herman's disclosures were protected disclosures under the Whistleblower Protection Act ("WPA").
The WPA protects employees from adverse personnel actions taken in retaliation for disclosing information that they reasonably believe evidences a violation of law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Herman argued that his reassignment was a result of whistleblowing activities, specifically his memorandum concerning the photocopying of telephone logs. However, it was determined that Herman could not have reasonably believed that his memorandum constituted the disclosure of a violation of a non-trivial law, rule, or regulation.
Herman also contended that the disclosure of even a single violation, regardless of triviality, constitutes a protected disclosure, citing Horton as a precedent. In Horton, the whistleblower reported multiple instances of alleged wrongdoing, including employees falsifying time cards, sleeping on the job, and misusing the telephone. The Board's conclusion in that case was that a single incident of making a personal phone call could not reasonably be viewed as wrongdoing. However, it was noted that the disclosure related to a practice of excessive personal calls during work periods. Ultimately, it was determined that Horton did not decide whether a single violation suffices to constitute a protected disclosure and, therefore, was not controlling in Herman's case.
In summary, the court affirmed the Board's decision, holding that Herman's disclosures were not protected under the WPA and that he did not provide sufficient evidence to establish a prima facie case of jurisdiction. This case highlights the importance of employees' reasonable belief and the interpretation of what constitutes a protected disclosure under the WPA.
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Frequently asked questions
The case law cited in the Herman v. Department of Justice case includes Eidmann v. Merit Sys. Protection Bd., 5 U.S.C. § 2302(b)(8)(A), and 18 U.S.C. 844(e).
The case law cited in the State ex rel. Herman v. Southern Pac. Co. case includes State ex rel. Herman v. Wilson, Pima County v. De Concini, and Phoenix Title & Trust Co. v. State ex rel. Herman.
The case law cited in the State ex rel. Herman v. Schaffer case includes State ex rel. Herman v. Wilson, State v. Hollis, Defnet Land & Inv. Co. v. State ex rel. Herman, and Schliem v. State.
