Archives for posts with tag: motorcycle

In previous NinjaLaw post, the summary judgment motion on Estate of Scott W. Thompson, regarding death on a 2006 Kawasaki Ninja Motorcycle, was denied in part and granted in part, February 11, 2013: “action proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.”

Since then, there have been three subsequent motions decided by District Judge Mark W. Bennett, in this case No. C 11-4026-MWB

THE ESTATE OF SCOTT W. THOMPSON,
by the Personal Representatives,
RANDY W. THOMPSON and VICKY J. THOMPSON,
and RANDY W. THOMPSON and VICKY J. THOMPSON,
Individually, Plaintiffs,
vs.
KAWASAKI HEAVY INDUSTRIES, LTD.,
and KAWASAKI MOTORS CORP., U.S.A.,
Defendants.


February 25, 2013 – Pretrial Motions
– includes arguments about Hearsay exceptions and whether after 45 minutes the statements of a lay witness to the accident could still be considered “excited utterances” and also regarding “recollections of statements on internet fora or in any other ‘enthusiast publications’ related to motorcycles.” With a footnote7 suggesting this may be “double hearsay” but that was not argued.

March 11, 2013 – Kawasaki’s Motion to reconsider

The Motion To Clarify concerns the scope of evidence and argument that Kawasaki may offer to show that an alleged “design defect” in the 2007 Ninja ZX-10R motorcycle that Scott Thompson was riding at the time of his accident was not a cause of his death almost three years after the accident.

March 14, 2013 – Post-deadline pretrial motions about more hearsay objections regarding use of expert depositions from Kawasaki’s previous expert:

In its Motion In Limine, Kawasaki did not identify a single statement in Mr. Okabe’s deposition that was ostensibly an “admission,” but was not “to the facts in the case” or not connected to the case by more than conjecture. On the other hand, in their Resistance and in the highlighted portions of Mr. Okabe’s deposition, the Thompsons have shown that Mr. Okabe’s Rule 30(b)(6) statements are “admissions to the facts in the case,” concerning the development and performance of the 2007 Ninja ZX-10R motorcycle and the steering damper in it, and those matters are plainly at issue in the case, so that they are connected to it by more than conjecture. Id. This objection to the use of Mr. Okabe’s Rule 30(b)(6) deposition in the Thompsons’ case-in-chief on the ground that the deposition is hearsay not within a Rule 801(d)(2) exception is, consequently, overruled.

So all this is months ago, does anyone know if this case is still on Judge Bennett’s docket? Is there a trial coming or have the parties already settled? maybe more motions?

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THE ESTATE OF SCOTT W. THOMPSON,
by the Personal Representatives, RANDY W. THOMPSON and VICKY J. THOMPSON,
and RANDY W. THOMPSON and VICKY J. THOMPSON, Individually, Plaintiffs,
vs.
KAWASAKI HEAVY INDUSTRIES, LTD.,
KAWASAKI MOTORS CORP., U.S.A., and OHLINS RACING AB, Defendants.

No. C 11-4026-MWB

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA, WESTERN DIVISION

Decided February 11, 2013, opinion by District Judge Mark W. Bennett:

At about sunset on March 21, 2009, Scott Thompson was riding his 2007 Kawasaki Ninja ZX-10R motorcycle in a convoy with two friends on county road K-22 in Plymouth County, Iowa. One of Thompson’s friends, Dave Lachioma, who was also riding a motorcycle, led the convoy, the other friend, Michael Welter, followed in his car, and Thompson brought up the rear on his motorcycle. While driving northbound on K-22, Thompson passed Welter, who was driving at 60 to 65 mph. A few seconds after Thompson passed him, Welter observed the taillight of Thompson’s motorcycle wobble from side to side. Although Welter observed that it looked like Thompson was regaining control of his motorcycle, Thompson was tossed from the motorcycle, slid on his back, feet first, across the highway, and landed in a ditch on the west side of the highway. The motorcycle continued upright in the northbound lane for another several hundred feet, before exiting the highway on the east side. As a result of the accident, Thompson suffered a burst fracture at the T3-T4 vertebrae, causing paralysis below that level. Thompson died on December 25, 2011.

In complaint,

plaintiffs allege that Thompson’s motorcycle accident was the result of the defective design and/or manufacture of his 2007 Ninja ZX-10R motorcycle, because the steering damper on the motorcycle was insufficient and the motorcycle was not reasonably stable.

and

The parties requested oral arguments on the summary judgment motions. My crowded schedule has not permitted the timely scheduling of such oral arguments, and I find that the parties’ written submissions on the issues presented are sufficient to resolve the pending motions without oral arguments. Therefore, I will resolve the motions based on the parties’ written submissions.

Concluding:

Upon the foregoing,

1. KHI’s and KMC’s November 5, 2012, joint Motion For Partial Summary Judgment (docket no. 64) is granted in part and denied in part, as follows:

a. The Motion is granted as to the “manufacturing defect” claim in Count I, the “breach of implied warranty of fitness for a particular purpose” claim in Count II, and the “negligence” claim in Count III, but

b. The motion is denied as to the “design defect” claim in Count I, and the prayer of “punitive damages” on that underlying cause of action in Count VIII.

2. Ohlins’s November 27, 2011, Supplemental (Amended And Substituted) Motion For Summary Judgment (docket no. 71) is granted in its entirety, and Ohlins is dismissed from this action.

3. This action will proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.

The bank repossessed collateral including a Kawasaki Ninja motorcycle but under Wisconsin law the debtor retained some property rights prior to sale, so now in Bankruptcy proceedings the debtor’s estate has rights to that property. The banks failure to return the property was a willful violation and the bank was held in contempt.

In re: Jason R. Herbst, Debtor.

(Chapter 13) Case No. 12-11044

UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

469 B.R. 299

April 11, 2012, Decided

Opinion by US Bankruptcy Judge Robert D. Martin:

Jason Herbst (the debtor) filed a Chapter 13 petition on February 29, 2012, and a Motion for Contempt and for Return of Property on March 6, 2012. He alleges that Talmer Bank & Trust (the bank) violated the automatic stay by refusing to return equipment that the bank repossessed prepetition.

The repossessed equipment was the subject to security agreements that provided as a remedy for default, the bank “may repossess the Property so long as the repossession does not involve a breach of the peace. [The bank] may sell, lease, or otherwise dispose of the Property as provided by law.” The debtor defaulted, and in March 2011, the bank filed a complaint for replevin in Lafayette County. A default judgment was entered against the debtor on May 16, 2011, which states:

“…Plaintiff is entitled to possess and sell the following collateral:

Machinery, vehicles, fixtures, farm machinery and equipment, shop equipment, office and record keeping equipment, parts and tools

Farm products, crops, feed, seed, fertilizer, medicines and supplies.

All government program payments.

2004 Kawasaki Ninja 250R VIN: JKADXMF164DA06034

2005 Chevrolet truck VIN: 1GCJK33215F920432

Plaintiff may sell said collateral as provided in the Security Agreements subject to this action and apply the net sale proceeds to the above stated sum adjudged due and owing from Defendant to Plaintiff…

Plaintiff shall be entitled to issuance of a Writ of Replevin upon request of plaintiff.”

Under a Writ of Replevin, the bank repossessed five items of equipment on December 8, 2011, and placed them at an auction house. There is no evidence that a sale or other disposition has yet occurred. Nor is there evidence that a contract for disposition was formed. The bank has refused to release the replevied equipment. The debtor seeks to have the bank adjudged to be in contempt for violation of the § 362(a) stay. He also seeks actual and punitive damages (including costs and attorney fees), and the return of the collateral to the debtor.

Finding,

Wisconsin law indicates that the debtor retains a right of redemption as long as a sale or contract for sale has not occurred

and

The bank may have believed that it was legally entitled to retain possession of the collateral in light of the judgment, but a violation of the stay is “willful” even if the actor believes himself justified. Since the bank knew of the bankruptcy filing and still retained possession of the collateral, it willfully violated the stay. Therefore, the bank is in contempt until it returns the collateral.

UNITED STATES OF AMERICA
v.
BRANDON CAPAROTTA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

1:10-cr-00147-JAW
2011 U.S. Dist. LEXIS 32522

Decided March 28, 2011

Opinion by Chief District Judge John Woodcock, Jr.:

On November 10, 2010, Brandon Caparotta pleaded guilty to theft of firearms from a licensed dealer, a violation of 18 U.S.C. § 922(u), and possession of stolen firearms, a violation of 18 U.S.C. § 924(a)(2). At the guilty plea, the Court ordered the preparation of a presentence report (PSR).

and quoted from paragraph 7 of the PSR:

While at the residence, Caparotta gave Cory Damon the mini-bike, which Caparotta reported stealing, and asked Damon to sell it for him, so they could split the money. They were in the process of stealing a Ninja 1000 motorcycle when the pickup truck got stuck in a ditch and the police came.

The issue:

She explained that she was not objecting because the PSR inaccurately reported what Corey Damon had said; rather, she was objecting because what Corey Damon had said was false and should not be considered by the Court.

and

Defense counsel contended that under Rule 32(i)(3)(B), the Court had an obligation to strike the portion of the PSR to which she had objected. Fed. R. Crim. P. 32(i)(3)(B).

Therefore

The Court therefore ORDERS Brandon Caparotta within seven days of the date of this Order to set forth in detail precisely what statements he contends are erroneous on a line by line basis

Presumably that hearing in Maine District Court went forward – but later, this same defendant’s case on subsequent appeal, the First Circuit affirmed the conviction, USA v Caparotta, 676 F.3d 213 (April 5, 2012, 1st Cir.) – This case decided before Chief Circuit Judge Lynch, Retired Associate Justice of the Supreme Court David Souter sitting by designation and Associate Circuit Justice Stahl, who wrote the opinion:

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months’ imprisonment. That sentence was based, in part, on the district court’s finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta’s due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

Petition for writ of certiorari to the Supreme Court was denied, Caparotta v US, No. 11-10207, 132 S. Ct. 2754 (June 11, 2012); JUDGES: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.

This is the sad story of Brian Rice who died at 20 years old on a Kawasaki Ninja motorcycle he bought at Crazy Freddy’s. The Court uses the word “Ninja” 23 times in the opinion as the primary description of the motorcycle. The bike in question was a “2006 Kawasaki ZX-6R Ninja 636 C6 motorcycle” that after first mention the court refers to as the “Ninja motorcycle”. There is no apparent reason to keep to repeating “Ninja motorcycle” rather than just calling it the motorcycle, except that it highlights the ninja word.

zx-6r kawasaki ninja motorcyle

JAMES RICE, Administrator Ad Prosequendum of the Estate of BRIAN RICE, deceased, Plaintiff,
-against-
KAWASAKI HEAVY INDUSTRIES, LTD., KAWASAKI MOTORS CORP., U.S.A., KAWASAKI MOTORS MANUFACTURING CORP., U.S.A., and CRAZY FREDDY’S MOTORSPORTS, INC., Defendants.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
CV-07-4031 (SJF)(ARL)
2008 U.S. Dist. LEXIS 83659

Opinion by Judge Sandra J. Feurstein decided and filed October 17, 2008.

On or about April 24, 2006, Rice, who was then twenty (20) years old, purchased the subject Ninja motorcycle from Crazy Freddy’s. Rice did not have a valid license to operate motorcycles at the time of purchase. Crazy Freddy’s sold the motorcycle to Rice with “no money down” and Rice was permitted to drive the vehicle from the lot “without any appreciable instruction as to the motorcycle.”

On April 27, 2006, Rice was operating the subject motorcycle southbound on the Palisades Interstate Parkway (the “Palisades”) in the Town of Closter, State of New Jersey. When Rice was approximately seven-tenths (0.7) of a mile south of Exit 2 of the Palisades, his motorcycle left the roadway and overturned, causing Rice to be thrown from the motorcycle. Rice ultimately died from the injuries he sustained as a result of the accident.

On September 26, 2007, plaintiff commenced this action against the Kawasaki defendants and Crazy Freddy’s asserting causes of actions for negligence

plaintiff alleges, inter alia, that the Kawasaki defendants “negligently and carelessly designed and manufactured the subject motorcycle around two main goals-speed and a lightweight design-at the expense of safety considerations.” In addition, plaintiff alleges that the Kawasaki defendants “negligently and carelessly marketed and sold the subject motorcycle to the average rider or even the inexperienced rider for the purpose of enhancing profits, despite knowledge that said motorcycle was unreasonably dangerous for such riders.”

With respect to his tenth cause of action, plaintiff alleges, inter alia: “That prior to and including April 27, 2006, the defendant engaged in a misleading and deceptive practice which was directed towards consumers, including the plaintiff’s decedent, that sought to conceal the dangers inhering in the purchase of motor cycles such as the [subject Ninja motorcycle], the requisite degree of experience necessary for a purchaser to safely operate the said motorcycle and even the financing required to purchase the said motorcycle in order to make the ‘quick sale’ and enhance profits.”

The only design defect alleged by the plaintiff in his complaint is the speed and lightweight nature of the Ninja motorcycle. “A motorcycle is intended to be a light, open, maneuverable, relatively unencumbered motor vehicle; the risks of driving such a vehicle are well known to those persons who choose to operate one.” McWilliams v. Yamaha Motor Corp., U.S.A., 987 F.2d 200, 204 (3d Cir. 1993). Significantly, plaintiff does not allege that the subject Ninja motorcycle was defective because it did not have certain safety features, compare, McWilliams, 987 F.2d 200 (plaintiff alleged that the subject motorcycle was defectively designed because it did not have a heavy duty crash bar), nor does he allege that the Ninja motorcycle failed to perform the function for which it was intended. The speed and lightweight nature of the Ninja motorcycle are performance features of the motorcycle which can be controlled by the user, rather than a defect. Thus, the Ninja motorcycle’s speed and lightweight design are not, as a matter of law, design defects. See, e.g. Leslie v. United States, 986 F.Supp. 900, 909-910 (D.N.J. 1997), aff’d, 178 F.3d 1279 (3d Cir. 1999) (granting the defendant-manufacturer’s motion to dismiss plaintiffs’ design defect claim alleging that defendant’s Winchester Black Talon hollow point bullets were “defectively designed in such a manner as to open into razor sharp edges and to severely rip through and mutilate body parts of the individual shot by such bullets,” on the basis, inter alia, that plaintiffs failed to establish that the bullets were unsafe, unfit or unsuitable for their intended use within the meaning of the NJPLA since the bullets functioned precisely as intended); Marzullo v. Crosman Corp., 289 F.Supp.2d 1337, 1342 (M.D. Fla. 2003) (granting summary judgment dismissing the plaintiff’s design defect claim alleging that the muzzle velocity of the defendant’s gun enabled the BBS or pellets shot from the gun to reach speeds at which they can easily penetrate bones and vital organs on the basis that the muzzle velocity of the airgun was a function of the gun and, as a matter of law, did not constitute a design defect). Like the plaintiffs’ argument in Marzullo, plaintiff’s argument here “is analogous to arguing that a Boy Scout pocket knife is too sharp for its intended use or sharper than a reasonable scout would expect, or that a sports car is faster and more dangerous than a reasonable person would expect. These contentions would defy logic, given the inherent nature of these products. Performance features which can be controlled by the user are not necessarily design defects or unreasonably dangerous conditions. Knives can be sharpened and sports cars can be driven as fast as the driver desires. * * * [T]he user controls the performance of these products. However, the risk that careless use of these products can cause injury, * * *, remains a risk inherent in the use of the product.” Marzullo, 289 F.Supp.2d at 1342-1343, n. 6.

The obviousness of the dangers of the speed and lightweight performance features inherent in the subject Ninja motorcycle to an inexperienced rider such as Rice cannot be ascertained at the pleadings stage. Nor can the adequacy of the Kawasaki defendants’ warnings regarding those performance features of the Ninja motorcycle be ascertained at the pleadings stage. Accordingly, plaintiff is granted leave to amend his complaint to assert a failure to warn claim under the NJPLA. Plaintiff must file any amended complaint within thirty (30) days from the date of this Order or his complaint will be deemed dismissed with prejudice.

Plaintiff alleges that “in using the [subject Ninja] motorcycle, [Rice] relied upon certain statements made by the defendants herein * * * that the motorcycle he purchased was safe and fit for the use as intended;” that “the defendants * * * knew or should have known that the motorcycle * * * was not safe and not fit for the use intended;” and that in reliance on defendants’ statements Rice “purchased and operated the subject motorcycle, resulting directly in * * * fatal injuries * * *.” (Compl., PP 62-64). Although, for the reasons set forth in denying plaintiff leave to amend his complaint to allege a design defect, plaintiff, as a matter of law, cannot show that the Ninja motorcycle was not “fit for the use as intended,” plaintiff may be able to show that the Kawasaki defendants made various “affirmations of fact” regarding the safety of the motorcycle which created an express warranty. Although the Kawasaki defendants contend that plaintiff cannot allege that the Ninja motorcycle “would be safe under all circumstances, even for Rice’s misuse,” there is no allegation in the complaint that Rice misused the subject motorcycle and, thus, the express warranty claim cannot be dismissed at the pleadings stage. Accordingly, the branch of the Kawasaki defendants’ motion seeking dismissal of plaintiff’s express warranty claim is denied.

III. Conclusion

For the reasons stated herein, the branches of the Kawasaki defendants’ motion to dismiss plaintiff’s negligence, failure to warn, strict product liability, breach of implied warranty, gross negligence and violation of N.Y. Gen. Bus. Law § 349 claims is granted and those claims are dismissed; and the motion is otherwise denied. Plaintiff’s application for leave to amend the complaint is granted to the extent that plaintiff may file an amended complaint asserting a failure to warn claim under the NJPLA within thirty (30) days from the date of this Order, and the application is otherwise denied. The parties are directed to appear in my courtroom at 1010 Federal Plaza, Central Islip, New York on December 4, 2008, at 11:00 a.m. for a settlement and/or scheduling conference with authority or persons with authority to resolve this action. Further, the parties are directed to engage in good faith settlement negotiations prior to the conference.

SO ORDERED.

SANDRA J. FEUERSTEIN

United States District Judge

Dated: October 17, 2008

Central Islip, N.Y.

This 60th NinjaLaw case is the story of Robert Clifton Dameron.

robert clifton dameron

UNITED STATES OF AMERICA,
v.
ROBERT CLIFTON DAMERON, Defendant.

CASE NO. 5:06CR00047
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION

2007 U.S. Dist. LEXIS 6610; January 30, 2007, Decided

On January 24, 2007, Dameron plead guilty to “unlawfully, knowingly and intentionally distributing or possessing with intent to distribute, or aiding and abetting in the distribution or possession with intent to distribute, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A) and Title 18, United States Code, Section 2.

The recommendation of Magistrate Judge B. Waugh Crigler, January 30, 2007, was that “the court accept the defendant’s plea of guilty to Count One and adjudge him guilty of that offense”. And “sentencing hearing hereby [was] scheduled for May 24, 2007 at 9:30 a.m. before the presiding District Judge in Harrisonburg.”

The defendant was informed that the maximum statutory penalty provided by law for the offense with which he is charged, in the case of Count One, is life imprisonment, a fine of $ 4,000,000, and a period of supervised release. The defendant was further informed that Count One has a mandatory minimum sentence of ten years imprisonment.

The sentence was 120 months (10 years, see this later habeas petition) but his obituary states “Robert Clifton Dameron, 37, of Afton, passed away on Saturday, January 28, 2012.” The obit doesn’t say how he died. It does note “He was preceded in death by his stepfather, Jerry Dameron.” Jerry’s obit from Spetember 15, 2011 states he died, age 61, at a hospital but again no cause of death is stated. This death is particularly relevant because the defendant’s ninja motorcycle was purchased by and registered to the stepfather.

THE GOVERNMENT’S EVIDENCE

The defendant waived his right to have the government’s Factual Summary read in open court and had no objection to the Summary. The Factual Summary having been filed in open court, the evidence presented therein regarding the offense charged is as follows:

On October 26, 2005, a Waynesboro police officer observed a black Ninja motorcycle speeding (55 mph in 35 mph zone). The officer pursued motorcycle with emergency lights flashing. The motorcycle accelerated and attempted to flee. A pursuit ensued. The motorcycle became boxed in by another car at an intersection. The officer ordered the driver (Dameron) off the bike at gun point. The defendant’s drivers licence [sic] was suspended and he was an habitual offender. The defendant said the motorcycle was registered to his father. The police officer notified the defendant that he was under arrest for eluding, reckless driving and being a habitual offender. As the officer examined the motorcycle, he noticed a pouch attached to the gas tank. Visible through a clear plastic window was registration and insurance information. The officer unzipped the pouch to get the information, and saw a drug smoking device containing residue. A further search of pouch revealed 526.64 grams of a substance containing methamphetamine, digital scales, packing material, 29.27 grams of cocaine and 28.8 grams of marijuana. The Officer also recovered $ 2,561.00 on the defendant’s person. The defendant’s stepfather testified before the grand jury that he purchased the motorcycle for the defendant, but kept the motorcycle registered in his (the step-father’s) name, at the defendant’s request. Stephanie Dumont, who lived with the defendant, testified before the Grand Jury that no one, other than the defendant, drove the motorcycle. The defendant’s brother, Scotty Dameron, testified before the Grand Jury that the defendant was the only person to use the motorcycle, except on one occasion. Two additional witnesses testified before the Grand Jury that they had purchased methamphetamine from the defendant in the past year. The methamphetamine was sent to the DEA lab and tested positive for methamphetamine, weighing 526.64 grams.

The defendant was subsequently arrested on May 21, 2006. A Nelson County Sheriff observed the defendant operating his motorcycle (the same motorcycle as on October 26, 2005) in a reckless manner, with the front tire coming off the pavement. The Officer pursued the defendant with his lights flashing. The defendant disappeared into a side street. Dispatch advised the officer that a citizen (a retired State trooper) had called in and said the motorcycle and driver were hiding behind a house near the street. The officer went to the house and found the defendant standing next to the motorcycle. The officer patted the defendant down and asked if there was anything in his pants that would stick or cut him. The defendant said no. The officer then located a hypodermic needle in the defendant’s pocket. Officers also recovered a black pouch strapped to the motorcycle. Inside, the pouch, officers recovered several hypodermic needles and a few grams of a detectable amount of methamphetamine. On the way to jail, the defendant slipped out of his handcuffs, and tried to get out of the patrol car. He was unsuccessful.

FINDINGS OF FACT

Based on the evidence presented at the plea hearing, the undersigned now submits the following formal findings of fact, conclusions and recommendations:

1. The defendant is fully competent and capable of entering an informed plea;

2. The defendant is aware of the nature of the charges and the consequences of his plea;

3. The defendant knowingly and voluntarily entered a plea of guilty to Count One of the Indictment; and

4. The evidence presents an independent basis in fact containing each of the essential elements of the offense to which the defendant is pleading guilty.

He was then sentenced to 120 months and habeas petition denied February 18, 2010. And now he’s dead; just five years after the guilty plea and 10 year sentence. I really wonder how he died, and was he still in federal prison?

This bankruptcy case with fraudulent credit filings, involves a Kawasaki Ninja 900 motorcyle. The question is about whether debts will be discharged in bankruptcy. The Court decides that some of the debt is and because of fraud, some of it isn’t.

In re: CARL VASILE and TERESA VASILE, Debtors. AUTOMOTIVE FINANCE CORPORATION, Plaintiff, v. CARL VASILE and TERESA VASILE, Defendants.
CASE NO.: 02-1465-3F7, ADV. NO.: 02-131
UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
297 B.R. 893;
2003 Bankr. LEXIS 1025; 16 Fla. L. Weekly Fed. B 253
August 12, 2003, Decided

On December 11, 2000 Carl Vasile presented Plaintiff with a bill of sale evidencing the purchase by Union Credit from Auto Temps of ten motorcycles and two cars. Included in the bill of sale were the following motorcycles for which Plaintiff has not been repaid:

including:

5.) a 2000 Kawasaki Ninja 900 motorcycle with a $ 9,000.00 purchase price. (Pl.’s Ex. 37 at 405.) (AFC Stock No. 503.) Union Credit purchased the motorcycle for $ 4,320.00 on September 7, 2000. (Pl.’s Ex. 41 at 4140.)

2000 kawasaki ninja 900

In 1992, convicted bank robbers appealed their conviction.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON KEITH WALKER, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY BAXTER STALLINGS, Defendant-Appellant.
No. 92-5159, No. 92-5160
UNITED STATES COURT OF APPEALS FOR THE FOUR
TH CIRCUIT
Decided – December 16, 1992

On appeal, the Court affirmed the convictions and the sentences. The Court explained the circumstances of how these bank robbers were caught, mentioning a “ninja-style motorcycle” with “ninja-style” set in quotes in the opinion:

On August 16 and September 19, 1991, the North Duke Street branch of the NCNB National Bank in Durham, North Carolina was robbed. In both incidents, a man wearing a dark, visored motorcycle helmet entered the bank, brandished a pistol and threatened violence, and robbed the same teller. At the appellants’ trial, the teller and other bank employees testified that, because of similarities in voice and mannerisms, they believed that the same man committed both crimes. J.A. at 58-59, 68, 77-78, 126-27. After each robbery, witnesses saw the perpetrator exit the bank, jump on a “ninja-style” motorcycle driven by another individual, and ride off.

After the September robbery, a city maintenance supervisor followed the fleeing motorcyclists. From a distance, the supervisor saw the motorcyclists speak with the driver of an automobile and then drive off. The police eventually stopped the automobile and apprehended the driver

Unlike the sentence preceding, the quote “ninja-style” is not cited and it is unclear where the Judge got that from and why motorcycle is not also in the quote. It is also a Per Curiam opinion so it is unclear which of the three sitting judges (or their clerks) is responsible for the ninja usage.

I take this moment to note how “ninja” is used as a descriptor. Ninja is a brand name Kawasaki motorcycle (see previous NinjaLaw case of Kawasaki Motorcycle) but here the word used as a generic descriptor of a type of motorcycle with no explanation of what that means exactly. In the previous NinjaLaw post about “ninja pants” the court first referred to them as “black karate pants”. What exactly does the “ninja” adjective serve to imply?

On June 10, 1992, US District Court in Northern District of Indiana affirmed the detention of Jerry Williams. Mr. William was convicted of “conspiracy to set off a series of pipe bombs for personal gain, which resulted in the death of one woman.”

U.S. v. BERGNER
800 F.Supp. 659 (1992)
UNITED STATES of America, Plaintiff,
v.
Douglas BERGNER, Russell “Rusty” Prevatte, Robert A. Soy, and Jerry Williams, Defendants.
No. HCR 92-042(4).
United States District Court, N.D. Indiana, Hammond Division.

Decided – June 10, 1992.

In December 1991 and January 1992, five pipe bombs exploded in Whiting, Hammond, and Highland, Indiana.

A. On December 23, 1991, a pipe bomb exploded at 1425 Stanton, Whiting. Emily Antkowics was in her backyard and was killed by the explosion.

B. On December 30, 1991, a pipe bomb exploded at Edo’s Lounge, 8929 Indianapolis Boulevard, Highland. The bomb was placed near a gas meter and caused extensive damage to the meter.

C. On December 31, 1991, a pipe bomb exploded at Salvino’s Restaurant, 1423 Indianapolis Boulevard, Hammond. Once again, the bomb was placed on a gas meter.

D. On January 1, 1992, a pipe bomb exploded behind a private residence at 6150 Harrison Avenue, Hammond. The bomb again was placed on a gas meter.

E. On January 5, 1992, the final pipebomb exploded behind an apartment building at 1608 – 169th Street, Hammond. The bomb again was attached to a gas meter.

The Court also mentions that the defendant, Williams, attended the police academy and actively tried to learn more about bomb-making and gang activities. The books he read in the police library are used as evidence against him.

One of the books which Williams reviewed was entitled Anarchist’s Cookbook.

This case arises for NinjaLaw because of the following brief, inconsequential mention of a stolen Ninja motorcycle:

On August 7, 1990, Williams and Rusty stole a jet ski while they were in Florida. Prior to his arrest, Williams permitted agents to search a storage locker which he had in Lansing, Illinois. Agents recovered the stolen jet ski along with a Ninja motorcycle stolen by Rusty.

Now, why call it is a Ninja motorcycle? What is the value of the modifier here? Is it included in part because this is a case about pipe bombs, thefts, sabotage – “Anarchist’ Cookbook” – And note, the connection to law enforcement: William is not acting under any color of government authority in this case, but he was trained in bomb-making by the police.

This conspiracy is also hatched by a group of high school friends. See US v Prevatte:

Russell Prevatte, with high school friends Douglas Bergner and Jerry Williams, commenced a series of burglaries in 1990.   In 1991, a fourth individual, Robert Soy, joined them.

It is so very typical of “ninja” to be but an adolescent male fantasy. And also the particular strategy diversionary explosions that this crime spree employed was also rather ninja-style:

Prevatte later read a book Williams had suggested, the Anarchists Cookbook, and the two discussed, when Williams was home from the academy on weekends, how to manufacture pipe bombs and how to use them near gas meters as a diversionary tactic for burglaries.

But let us not read too much into a single word, it is after all just a descriptive for the type of motorcycle; a motorcycle that has very little to do with this actual case because it is a co-defendant who stole it. It seems implausible to think that the judge (or his clerk) is using the word because of the greater association – but then again…

On March 9, 1992, a District Court in Texas decided the case of US v. One 1984 Kawasaki Ninja Motorcycle. The case is about assets seized by the government as part of a drug related offense.

1984 kawasaki ninja

Before the Court is Petitioner United States of America’s motion, filed on November 4, 1991, entitled Motion for an Order of Interlocutory Sale And For Substitution of the Res. This motion concerns specifically the Respondent 1984 Kawasaki Ninja Motorcycle, [among other property]

The issue:

various motions and pleadings present two main issues for determination:

(1) whether the United States may summarily sell the seized items; and,

(2) the proper procedure to be applied in seeking and performing such a summary sale.

The Court concludes:

In summation, the United States may proceed under the Supplemental Rules and 28 U.S.C. sections 2001-2004 in judicial forfeiture proceedings to the extent that such rules and laws are not inconsistent with the relevant portions of the Drug Control Act.

After reviewing all of the pleadings in the file, the Court is of the opinion that the Respondent Vehicles should be sold by the United States Marshal or any other person authorized to do so pursuant to Rule E(9)(c) of the Supplemental Rules and 28 U.S.C. section 2004.

This case also involved US Customs rules and Supplemental Rules for Certain Admiralty and Maritime Claims creating confusion over what could be sold but the Court ultimately ordered that the vehicles could be sold at auction for a price no less than 2/3rd of appraised value.