United States Court of Appeals
For the First Circuit
No. 02-2323
IN RE JOAN E. CARP,
Debtor.
___________________
RICHARD W. GANNETT,
Plaintiff, Appellant,
v.
JOAN E. CARP,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
[Hon. Joan N. Feeney, U.S. Bankruptcy Judge]
Before
Selya, Circuit Judge,
Stapleton* and Baldock,** Senior Circuit Judges.
Stephanie L. Moon, with whom Richard W. Gannett and Gannett &
Associates were on brief, for appellant.
Richard S. Hackel for appellee.
August 18, 2003
_______________
*Of the Third Circuit, sitting by designation.
**Of the Tenth Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal arises out of a
creditor's quest to block a debtor's discharge in bankruptcy. The
bankruptcy court declined to default or sanction the debtor for
claiming her Fifth Amendment privilege against self-incrimination,
determined that she had not transgressed the strictures of 11
U.S.C. § 727(a), and granted the discharge. The district court
affirmed these rulings, and the debtor now appeals.
We agree with the creditor that there are suspicious
circumstances here. As an appellate court, however, we are not
free to second-guess the management of pretrial discovery, weigh
the evidence afresh, or make independent judgments about the
credibility of witnesses. Instead, our function is to examine the
record with care, defer to the properly supported factual findings
of the court of first instance, determine the applicable law, and
ensure that the trier properly applied it to the facts as found.
Having performed these tasks, we conclude, as did the district
court, that the decision of the bankruptcy court is impervious to
the creditor's attack. Consequently, we affirm the judgment below.
I.
Background
The underlying bankruptcy proceeding has been pending
since 1995. We do not here attempt to rehearse the entire history
of the case, but, rather, offer a synopsis of the facts designed to
give needed context to the issues on appeal.
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Joan E. Carp (the debtor) and her husband, Stephen Carp,
filed a joint petition for Chapter 7 bankruptcy relief in February
1995. See 11 U.S.C. §§ 701-784. Among the affected creditors was
the appellant, Richard W. Gannett. Gannett filed a timely proof of
claim for $82,093.85, plus interest and costs, arising out of the
rendition of legal services.
Several months later, Gannett commenced an adversary
proceeding, objecting to the Carps' proposed discharge in
bankruptcy. He relied on 11 U.S.C. § 727(a)(2) and (4), arguing
that the Carps had willfully failed to disclose their ownership
interests in a number of assets, including a parcel of real
property located at 824 Dedham Street, Newton, Massachusetts (the
Newton property) and three automobiles. With regard to the Newton
property Gannett asserted that the Carps owned an equitable
interest in it even though legal title reposed in one Mordechay
Pupkin. Gannett further asserted that the Carps were using Pupkin
as a straw in order to defraud creditors; that they had funded
Pupkin's mortgage payments; and that any semblance of rental
payments was a sham. With respect to the cars, Gannett alleged
that the Carps had attempted to defraud their creditors by giving
their children legal title to the automobiles. He argued that it
was absurd to think that the children owned three vehicles while
the parents themselves owned none. The Carps denied the material
allegations of Gannett's complaint.
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To say that matters did not proceed smoothly would be a
gross understatement. Gannett served deposition notices and
interrogatories in October 1995 and added a request for production
of documents in January of the following year. On February 29,
1996, he moved to compel, pointing out that the Carps had not
replied to these discovery requests. The bankruptcy court granted
the motion. When the Carps still did not cooperate, Gannett moved
for the entry of a default judgment. The Carps responded that they
would not submit to discovery because they were the targets of a
criminal investigation for bankruptcy fraud being conducted by the
United States Department of Justice.
On May 16, 1996, the bankruptcy court again ordered the
Carps to provide discovery. The court also imposed a $750 monetary
sanction and continued Gannett's motion for entry of a default
judgment. On August 22, 1996, the bankruptcy court denied that
motion.
Meanwhile, the criminal investigation went forward. On
October 14, 1996, the government filed a criminal information
against Stephen Carp, charging him with one count of bankruptcy
fraud, 18 U.S.C. § 152, related to his alleged failure to disclose
an equitable ownership interest in the Newton property. On April
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27, 1997, Stephen Carp pled guilty to this charge. The district
court sentenced him the next day.1
The bankruptcy court had wisely continued the case until
the outcome of the criminal prosecution was finally determined. In
the interim, the court maintained careful watch, holding no fewer
than five status conferences from the fall of 1996 through the
spring of 1997. From time to time, Gannett mentioned that he was
still awaiting discovery materials but no action was taken. At a
status conference held on April 24, 1997, Gannett again raised the
issue, and the debtor acknowledged that she had not yet complied
with the discovery orders because of her asserted Fifth Amendment
privilege. The court stated that there was no point in attempting
to press forward with discovery if the debtor was going to plead
the Fifth Amendment and directed the parties to file a joint status
report following Stephen Carp's sentencing.
Once the criminal prosecution had ended2 and the
adversary proceeding against Stephen Carp had been resolved, see
supra note 1, the bankruptcy court set a trial date for the
adversary proceeding against the debtor. Prior to the scheduled
1
Following Stephen Carp's admission of guilt, Gannett moved
for summary judgment against him in the pending adversary
proceeding. See Fed. R. Bankr. P. 7056. The bankruptcy court
granted this motion and denied Stephen Carp a discharge. Because
Stephen Carp's case is closed, we treat Joan Carp as the sole
debtor.
2
The debtor was never criminally charged.
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start of trial, the trustee in bankruptcy moved to consolidate that
proceeding with an adversary proceeding that he (the trustee) had
brought against Pupkin. The court consolidated the two actions and
vacated the scheduled trial date. The trustee eventually settled
with Pupkin, thus undoing the consolidation.
The next bump in this long and winding road occurred in
April of 2001 when the bankruptcy court scheduled an evidentiary
hearing on the debtor's discharge for October 3 of that year.
Gannett dawdled for several months and then, on August 23, filed a
renewed motion for entry of a default judgment or, in the
alternative, for additional time to conduct discovery. At a
hearing held on September 24, the court denied both prayers on
condition that the debtor submit to a deposition prior to trial and
produce the previously requested documents before the deposition.
The debtor delivered the designated documents and appeared for a
deposition on October 1. Although she did not assert her Fifth
Amendment privilege, she nonetheless refused to answer certain
questions pursuant to her counsel's instructions.
Gannett made no further complaint about inadequate or
untimely discovery, and the bankruptcy court conducted the
previously scheduled bench trial on October 3. The debtor
testified without asserting any privilege against self-
incrimination. In an ore tenus decision, the bankruptcy court
found the debtor credible and concluded that there was insufficient
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proof that she had either knowingly concealed property or
vouchsafed a false oath. Discerning no basis for the denial of a
discharge, the court entered judgment accordingly. The district
court affirmed, see Gannett v. Carp (In re Carp), No. 02-10086 (D.
Mass. Aug. 30, 2002) (unpublished), and this appeal followed. We
have jurisdiction under 28 U.S.C. § 158(d).
II.
Standard of Review
Notwithstanding the fact that we are the second-in-time
reviewers, we cede no special deference to the district court's
determinations. Brandt v. Repco Printers & Lithographics, Inc. (In
re Healthco Int'l, Inc.), 132 F.3d 104, 107 (1st Cir. 1997).
Rather, our review directly addresses the bankruptcy court's
decision. Gronan v. Watman (In re Watman), 301 F.3d 3, 7 (1st Cir.
2002). We scrutinize that court's findings of fact for clear error
and its conclusions of law de novo. Id.
The application of the Bankruptcy Code to a particular
case poses a mixed question of law and fact, which this court
reviews for clear error unless the bankruptcy court's analysis was
based on a mistaken view of the legal principles involved. See
Miller v. Peterson (In re Indep. Eng'g Co.), 197 F.3d 13, 16 (1st
Cir. 1999). Under the clear error standard, the trier's findings
of fact and the conclusions drawn therefrom ought not to be set
aside "unless, on the whole of the record, we form a strong,
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unyielding belief that a mistake has been made." Cumpiano v. Banco
Santander, 902 F.2d 148, 152 (1st Cir. 1990). It follows that if
the bankruptcy court's findings are supportable on any reasonable
view of the record, we are bound to uphold them. See Boroff v.
Tully (In re Tully), 818 F.2d 106, 109 (1st Cir. 1987); see also
Anderson v. Beatrice Foods Co., 900 F.2d 388, 392 (1st Cir. 1990)
(warning that appellate review of "fact-dominated issues cannot be
allowed to descend to the level of Monday-morning quarterbacking").
III.
The Merits
Although Gannett's asseverations are not neatly
segregated, we distill them into two principal lines of argument.
First, he challenges the bankruptcy court's decision to allow the
debtor to testify without penalty after repeatedly having invoked
the Fifth Amendment to insulate herself from furnishing discovery
— and he couples this challenge with a more general objection to
the court's oversight of the discovery process. Second, he
calumnizes the bankruptcy court for its refusal to block the
debtor's discharge under 11 U.S.C. § 727(a). We discuss these two
lines of argument sequentially.
A.
The Fifth Amendment
We turn first to those contentions related to the
debtor's invocation of the Fifth Amendment. We review a bankruptcy
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court's discovery decisions for abuse of discretion — and that
discretion is very wide. Brandt v. Wand Partners, 242 F.3d 6, 18
(1st Cir. 2001). The fact that the Fifth Amendment is implicated
in Gannett's litany of discovery-related complaints does not serve
to alter this standard of review. See Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553, 575-77 (1st Cir. 1989); see also Serafino
v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir. 1996). Unless we can
fairly say that the bankruptcy court abused this wide discretion,
its management of the pretrial discovery process must be respected.
As a matter of law, Gannett's claim that the bankruptcy
court should not have allowed the debtor to testify without
sanction lacks force. Gannett does not dispute — nor could he —
that a debtor in a bankruptcy proceeding can invoke the Fifth
Amendment. See, e.g., McCormick v. Banc One Leasing Corp. (In re
McCormick), 49 F.3d 1524, 1526 (11th Cir. 1995); Martin-Trigona v.
Belford (In re Martin-Trigona), 732 F.2d 170, 175 (2d Cir. 1984).
He does not allege — nor could he on this record — that the
debtor's invocation of the privilege was chimerical or otherwise
improper. Rather, Gannett's thesis is that pleading the Fifth
Amendment in a civil proceeding should yield consequences, and that
the condign consequence of the debtor's action should have been
preclusion. In other words, the bankruptcy court ought not to have
allowed the debtor to testify because she did not provide discovery
until the eve of trial.
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The short answer to this importuning is that Gannett did
not preserve the issue for appeal. After the documents were finally
tendered and the deposition held, Gannett never complained to the
bankruptcy court that the discovery was either too scanty or too
tardy. By the same token, he did not question the propriety of the
objections interposed by the debtor's counsel during the
deposition. To cap matters, far from asserting that the debtor's
testimony should be precluded by her longstanding invocation of the
Fifth Amendment, he himself called the debtor to the witness stand.
If delayed discovery, once received, is incomplete, inadequate, or
timed so as to impede effective trial preparation, the aggrieved
party must object in advance of trial. The failure to do so
constitutes a failure to raise the issue at the proper time and in
the proper setting. That failure bars the aggrieved party from
raising the issue on appeal. See Hemingway Trans., Inc. v. Kahn
(In re Hemingway Trans., Inc.), 993 F.2d 915, 935 (1st Cir. 1993);
LaRoche v. Amoskeag Bank (In re LaRoche), 969 F.2d 1299, 1305 (1st
Cir. 1992).
To be sure, Gannett did assert at the September 24
hearing that the debtor should not be permitted to testify at trial
because she had persistently invoked the Fifth Amendment. In
response to that assertion, the bankruptcy court ordered that the
debtor produce documents and submit to an immediate deposition. If
this was not a satisfactory ameliorative, Gannett was obliged to
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renew his complaint following the receipt of the documents and the
taking of the deposition. Cf. DesRosiers v. Moran, 949 F.2d 15, 22
(1st Cir. 1991) (stating that when a party proceeds with trial
without complaining about delayed discovery, the court will not
permit that party to complain after judgment). He did not do so.
Gannett's fallback position is that the bankruptcy court
erred by refusing to enter a default judgment against the debtor.
In the last analysis, however, the decision as to whether discovery
sanctions are warranted and the choice of what sanctions should be
imposed are matters within the sound discretion of the trial
court.3 Poulin v. Greer, 18 F.3d 979, 984 (1st Cir. 1994). The
disallowance of a discharge — which would have been the effective
result of a default judgment in this case — is strong medicine.
There is no basis either in the record or in the law for us to
second-guess the bankruptcy court's discretionary refusal to
prescribe so harsh a penalty.
In a modest variation on this theme, Gannett suggests
that the bankruptcy court at least should have drawn a negative
inference against the debtor due to her repeated invocation of the
Fifth Amendment privilege. But in a civil proceeding, the drawing
3
Gannett's claim that the debtor should have been denied a
discharge because of her failure to comply with court orders could
have been framed as a claim under 11 U.S.C. § 727(a)(6)(A) rather
than as an argument that sanctions were wrongly withheld. But
Gannett never advanced such a claim in the bankruptcy court, and he
therefore has forfeited it.
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of a negative inference is a permissible, but not an ineluctable,
concomitant of a party's invocation of the Fifth Amendment. See
Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 678 (1st Cir. 1996).
While the law does not forbid adverse inferences against civil
litigants who refuse to testify on Fifth Amendment grounds, see
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), it does not mandate
such inferences. When all is said and done, the trial court has
discretion over whether a negative inference is an appropriate
response to the invocation of the Fifth Amendment in a particular
civil case.
The bankruptcy court, in the exercise of this discretion,
chose not to draw such an inference here. The record evinces no
special factors suggesting that this choice was arbitrary or
capricious, and we are hesitant to overturn a trial court's
discretionary decision to afford an extra measure of protection to
a litigant's constitutional right against self-incrimination. Cf.
Serafino, 82 F.3d at 518 (emphasizing that courts must take special
pains to ensure that the Fifth Amendment privilege is safeguarded).
There was no error.4
4
Gannett's argument that the burden of persuasion should have
shifted to the debtor as a result of her invocation of the Fifth
Amendment is simply a restatement of the argument that the court
should have drawn a negative inference against the debtor. Thus,
we reject this version of the argument for the reasons discussed
above.
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We give short shrift to Gannett's final discovery-related
point: that the bankruptcy court failed to balance Gannett's right
to a fair trial against the debtor's Fifth Amendment interests.
Once again, the specter of a procedural default looms. Although
Gannett did object generally to the bankruptcy court's management
of the discovery process, he never specifically asserted an
infringement of his right to a fair trial. More importantly, he
did not make any claim regarding the unfairness of proceeding after
he had secured discovery. Thus, the bankruptcy court had neither
the occasion nor the opportunity to decide whether the discovery
that Gannett belatedly received was sufficient to cure any prior
harm. If that discovery — i.e., the document production and
deposition — had not rectified the situation and restored the
balance, Gannett had an affirmative obligation to come forward and
request further relief from the court. See Macaulay v. Anas, 321
F.3d 45, 52 (1st Cir. 2003) (holding that "[a] party who has the
opportunity to ask the trial court for relief but fails to do so
forfeits the right to claim, on appeal, that the relief should have
been granted"); Anderson, 900 F.2d at 397 (similar).
Even were we to reach the merits of this claim, Gannett's
cause would not prosper. He relies chiefly upon our Serafino
decision to undergird the argument that the bankruptcy court failed
adequately to consider his right to a fair trial. But that
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decision simply cannot support the weight that Gannett places upon
it.
It is true that Serafino stands for the proposition that
"one party's assertion of his constitutional right should not
obliterate another party's right to a fair proceeding." 82 F.3d at
518. It is also true, however, that the balancing of these factors
is left largely to the informed discretion of the trial court. See
id. The court need not make an elaborate series of written
findings. Cf. United States v. LaCruz, 902 F.2d 121, 123-24 & n.1
(1st Cir. 1990) (holding that explicit findings as to the probative
worth/prejudicial effect balance under Evidence Rule 403 are not
always required). What counts is that the court's implicit
conclusion — that Gannett would receive a fair trial
notwithstanding the delayed discovery — is satisfactorily anchored
in the record. After all, the bankruptcy court made significant
efforts to ensure that Gannett could gain access, prior to trial,
to the information necessary to prosecute his case. Moreover,
Gannett never identified what information he coveted that was not
available from other sources. Under these circumstances, we are at
a loss to see how Gannett's rights were unfairly impugned.
B.
11 U.S.C. § 727(a)
Gannett next contends that the bankruptcy court erred on
the merits in granting the debtor a discharge. As the objecting
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party, Gannett had the burden of proving that the debtor should be
denied a discharge. See Commerce Bank & Trust Co. v. Burgess (In
re Burgess), 955 F.2d 134, 136 (1st Cir. 1992), abrogated on other
grounds by Field v. Mans, 516 U.S. 59, 72-75 (1995). Although the
ultimate decision about whether to grant or withhold a discharge is
a mixed question of law and fact, Gannett takes dead aim at the
district court's factual findings. Accordingly, we "review only
for clear error, with 'due regard . . . to the opportunity of the
bankruptcy court to judge the credibility of witnesses.'" In re
Burgess, 955 F.2d at 137 (quoting Fed. R. Bankr. P. 8013)
(alteration in original).
Gannett identifies two statutory bases for denying a
discharge in this case. We treat these in the ensemble. In doing
so, we note that one of the Bankruptcy Code's core purposes is to
give worthy debtors a fresh start. See Jamo v. Katahdin Fed.
Credit Union (In re Jamo), 283 F.3d 392, 398 (1st Cir. 2002).
Thus, exceptions to discharge should be construed narrowly.
Rutanen v. Baylis (In re Baylis), 313 F.3d 9, 17 (1st Cir. 2002).
Gannett's first sortie involves section 727(a)(2) of the
Bankruptcy Code, which provides in pertinent part that the
bankruptcy court shall withhold a discharge if
the debtor, with intent to hinder, delay, or
defraud a creditor or an officer of the estate
. . . has transferred, removed, destroyed,
mutilated, or concealed, or has permitted to
be transferred, removed, destroyed, mutilated,
or concealed — (A) property of the debtor,
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within one year before the date of the filing
of the petition; or (B) property of the
estate, after the date of the filing of the
petition . . . .
11 U.S.C. § 727(a)(2).
Gannett's second sortie involves section 727(a)(4) of the
Bankruptcy Code, which provides in pertinent part that a discharge
shall not be granted if "the debtor knowingly and fraudulently, in
or in connection with the case — (A) made a false oath or account."
Id. § 727(a)(4). Under that proviso, a discharge can be refused
only if the false oath "relat[ed] to a material fact." In re
Tully, 818 F.2d at 110.
Each of these provisions requires a showing of fraudulent
intent. See In re Chavin, 150 F.3d 726, 727 (7th Cir. 1998). The
bankruptcy court found that Gannett had failed to make this
showing. Because the determination of intent depends largely upon
an assessment of the debtor's credibility, respect for the
bankruptcy court's factual findings is particularly appropriate in
this context. See In re Burgess, 955 F.2d at 137. Even when the
totality of the circumstances might plausibly support an inference
of skullduggery, the bankruptcy court's contrary finding must be
credited unless the evidence is so one-sided as to compel the
inference of fraud. See Palmacci v. Umpierrez, 121 F.3d 781, 790
(1st Cir. 1997).
Here, the bankruptcy court found the debtor to be
completely credible, and Gannett's insinuations certainly do not
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compel the opposite conclusion. That seemingly ends the matter.
In re Burgess, 955 F.2d at 137. Gannett, however, seeks to capsize
the bankruptcy court's finding on the ground that intent or
culpability should be imputed to the debtor because her husband
acted fraudulently (a fact that is, at this stage, beyond cavil)
and she was her husband's alter ego or agent.
We do not reach the merits of the first of these
suggestions because Gannett neglected to raise the alter ego theory
before the bankruptcy court. See In re LaRoche, 969 F.2d at 1305
(holding that a failure to advance an issue before the bankruptcy
court forfeits the right to raise it on appeal). That a party may
not advance an argument for the first time on appeal "is a
virtually ironclad rule" in this circuit, Cochran v. Quest
Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003), and this case
presents no excusatory circumstances sufficient to persuade us to
relax the rule.
Gannett's agency theory is properly before us — but it is
unavailing. He says, in effect, that the debtor was Stephen Carp's
agent because they had been married for over thirty years and had
been involved in real estate projects together in the past. The
bankruptcy court rejected this theory on the merits. That ruling
is beyond reproof.
The sins of the husband are not automatically visited
upon the wife. Thus, the existence of a marital relationship does
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not itself prove an agency relationship. See Rousseau v. Gelinas,
507 N.E.2d 265, 268 (Mass. App. Ct. 1987); Fennell v. Wyzik, 422
N.E.2d 1387, 1389 (Mass. App. Ct. 1981).5 Similarly, the fact that
the Carps may have done business together in the past is
insufficient to show that the bankruptcy court committed clear
error in finding a lack of agency vis-à-vis the Newton property.
See Dudley v. Hannaford Bros. Co., 333 F.3d 299, 311 (1st Cir.
2003) (explaining that "[w]hen a [trial] court chooses between two
plausible but conflicting interpretations of the evidence, its
choice cannot be clearly erroneous"); Valentin v. Hosp. Bella
Vista, 254 F.3d 358, 367 (1st Cir. 2001) (similar).
Gannett has yet another string to his bow. In the
criminal case, Stephen Carp admitted to being the equitable owner
of the Newton property. Building on this foundation, Gannett
contends that the debtor also had an undisclosed equitable interest
in that property because, under Massachusetts law, Stephen Carp's
equitable interest would become a part of their marital estate upon
divorce. Gannett insists that the failure to list this interest
rendered the debtor's oath false (and, thus, violated 11 U.S.C. §
727(a)(4)).
5
Of course, marital partners may be each other's agents if
other factors lead to that conclusion. See, e.g., Fennell, 422
N.E.2d at 1389 (imputing misrepresentation of wife to husband when
the couple jointly owned the subject property, the wife held
herself out as able to speak authoritatively as to the condition of
the property, and the couple had communicated about the relevant
issues). The record in the case at hand lacks any such evidence.
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The bankruptcy court found that this circumstance did not
compel the conclusion that the debtor erred in not listing that
interest as part of her bankruptcy estate. In this regard, the
bankruptcy court noted that the debtor had made no contribution to
the purchase of the Newton property and had no interest in it at
the time of the bankruptcy proceedings.
As a matter of law, the bankruptcy court was correct.
Cf. id. § 541(a)(5)(B) (stating that property received as a result
of a property settlement or agreement of divorce is property of the
estate if the debtor acquires or becomes entitled to acquire it
within 180 days of the date of filing bankruptcy). Thus, even
assuming for argument's sake that Stephen Carp's equitable interest
in the Newton property was part of the marital estate — a matter on
which we take no view — it was not property of the debtor's
bankruptcy estate at the relevant time.
At the risk of carting coal to Newcastle, we add that
even were we to classify this contingent interest as property of
the bankruptcy estate, that fact alone would not be enough to
trigger section 727(a)(4). Gannett would still have to show that
the exclusion of the property from the debtor's schedules was done
with intent to hinder, delay, or defraud creditors. It is not at
all difficult to imagine innocent reasons for the failure to
mention such a contingent interest — especially since the debtor
testified (credibly, in the bankruptcy court's estimation) that she
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was unaware that she held any such interest. To the extent that
Gannett invites us to declare as a matter of law that a spouse's
failure to include a contingent and as yet undetermined interest in
real property — an interest that will arise only in the event of
divorce — in a bankruptcy petition warrants denial of a discharge,
we decline the invitation.
Gannett's last-ditch claim is that the debtor should have
been denied a discharge because she used and controlled automobiles
that were omitted from her bankruptcy schedules. This claim
focuses on the debtor's assertion that she did not own even one
car, yet her two children (neither of whom were employed full-time)
owned three vehicles between them. Gannett argued vigorously to
the bankruptcy court that the debtor placed the automobiles in her
children's names for the purpose of defrauding creditors. The
bankruptcy court did not buy the argument.
The situation as to ownership of the vehicles strikes us
as irregular. We are not, however, a court of first instance. The
bankruptcy judge saw and heard the witnesses and found the debtor
to be credible. The mere fact that the situation seems suspect is
not sufficient to justify disregarding this credibility call. See
In re Burgess, 955 F.2d at 137. The bankruptcy court reasonably
could have believed, for example, that the placing of title in the
children's names was simply another manifestation of Stephen Carp's
scheming, and that the debtor was unaware of his connivance. Given
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this record, there is no principled way in which we can disturb the
bankruptcy court's judgment.
IV.
Conclusion
We need go no further. It is not enough that reasonable
minds might differ regarding either the bankruptcy court's
management of pretrial discovery or its evaluation of the evidence
presented at trial. For the reasons elucidated above, we uphold
both the bankruptcy court's decision and the district court's
affirmance of that decision.
Affirmed.
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Gannett v. Carp
Court: Court of Appeals for the First Circuit
Date filed: 2003-08-18
Citations: 340 F.3d 15, 297 B.R. 15
Copy CitationsCombined Opinion