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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-04-00117-CV In re Joseph Martinez ORIGINAL PROCEEDING FROM HAYS COUNTY M E M O R A N D U M O P I N I O N We are advised that following the Court's order granting temporary relief in this mandamus proceeding, the district court stayed Joseph Martinez's trial in Hays County cause number CR-03-787 pending final disposition of his appeal to this Court in Ex parte Joseph Martinez, number 03-04-00118-CR. Because we are confident that no further order is required to preserve the Court's jurisdiction, the petition for writ of mandamus is dismissed. __________________________________________ W. Kenneth Law, Justice Before Chief Justice Law, Justices Kidd and Puryear Filed: March 26, 2004

Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 6-13-2007 Joseph v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-1496 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Joseph v. Atty Gen USA" (2007). 2007 Decisions. Paper 950. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/950 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 06-1496 ________________ GEORGE RUSSELL JOSEPH, Petitioner v. UNITED STATES ATTORNEY GENERAL ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A43 578 078 on January 18, 2006 _______________________________________ Submitted Under Third Circuit LAR 34.1(a) SEPTEMBER 22, 2006 Before: BARRY, CHAGARES AND COWEN, CIRCUIT JUDGES (Filed June 13, 2007) _______________________ OPINION _______________________ PER CURIAM George Russell Joseph is a native and citizen of Trinidad and Tobago.1 Joseph seeks review of an order of the Board of Immigration Appeals (BIA), upholding an Immigration Judge’s decision that found him removable and ineligible for cancellation of removal. Because Joseph is ineligible for cancellation of removal, we will deny the petition for review. Joseph entered the United States in December 1992 as a conditional resident. He became a permanent resident in December 1994. He was placed in removal proceedings by a notice to appear, dated June 15, 2005, which charged him with being removable for having committed a controlled substance violation and an aggravated felony. The Immigration Judge (IJ) found him removable for the controlled substance violation, but found that the Government had not met its burden of showing that any of his convictions was also an aggravated felony. The IJ found Joseph ineligible for cancellation of removal under INA § 240A(a) [8 U.S.C. § 1229b(a)], the only relief for which he applied. The Board of Immigration Appeals (BIA) affirmed, specifically noting that the IJ did not err in denying cancellation of removal, because Joseph had not accrued 5 years of continuous presence from the time he was admitted as a permanent resident in December 1 It is not clear if this is Petitioner’s correct name. Petitioner filed his petition for review under the name of “George Russell Joseph.” His brief is signed “Russell J. George” and alternatively refers to himself as “Mr. Russell.” As our caption reflects the name he used in his petition for review, we will refer to petitioner as “Joseph.” 2 1994 to the time he was convicted of a controlled substance violation in January 1998.2 Joseph timely filed a petition for review and a motion for stay of removal. Pursuant to section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8 U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal against an alien who is removable” because of a controlled substance violation. However, the REAL ID Act of 2005 restored direct review of constitutional claims and questions of law presented in petitions for review of final removal orders. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]; see Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). We therefore may consider whether the BIA correctly applied the law in denying Joseph cancellation of removal. Pursuant to 8 U.S.C. § 1229b, the Attorney General may, in his discretion, cancel the removal of an alien who has been: (1) lawfully admitted for permanent residence for not less than five years, (2) if the alien has also continuously resided in the U.S. in any status for seven years, and (3) if the alien has not committed an aggravated felony. However, the calculation of the period of continuous residence required for relief stops when an alien commits a controlled substance violation. See 8 U.S.C. § 1229b(d)(1) [INA § 240A(d)(1)]. As the Government candidly explains in its brief, this “stop-time” provision applies only to the second requirement listed above; i.e., that the alien has 2 The BIA noted that Joseph’s argument that he had not committed an aggravated felony was irrelevant, as he was not found removable on that ground, and that it could not entertain his arguments concerning his continued detention outside the context of bond hearings. 3 continuously resided in the U.S. for seven years after having been admitted in any status. See Matter of Perez, 22 I&N Dec. 689, 692 n.2 (BIA 1999) (en banc). The stop-time provision does not apply to the first requirement. Id. The BIA erroneously found that Joseph had not met the first requirement of five years of permanent residence, since Joseph had been a permanent resident for over nine years at the time of the IJ’s decision. However, Joseph is ineligible for cancellation of removal under the second step (lack of continuous residence for seven years), because Joseph, who was admitted to the United States in December of 1992, committed a controlled substance violation, triggering the statute’s “stop-time” provision, in August of 1997. He thus did not accrue seven years of “continuous residence” under the statute.3 For the foregoing reasons, we will deny the petition for review. 3 In his brief, Joseph argues that he did not commit an aggravated felony. His argument is irrelevant, as he was not found removable for having committed an aggravated felony. We agree with the Government that other issues in his brief regarding adjustment of status and parole for arriving aliens have no relevance to this petition for review. We note that Joseph also challenges his continued detention. Challenges to post-removal order detention should be raised in a habeas petition filed in the appropriate District Court. See Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001); 8 U.S.C. § 1252(a) (only eliminating district court's habeas jurisdiction over orders of removal). 4 

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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT KNOXVILLE ________________________________________________ FILED TAMMY RUSHING GREENE, April 9, 1996 Plaintiff-Appellant, Monroe Circuit #6455 Cecil Crowson, Jr. Vs. C.A. No. 03A01-9503-CV-00091 C ourt Clerk Appellate BRYAN LYNN GREENE, Defendant-Appellee. ___________________________________________________________________________ FROM THE MONROE COUNTY CIRCUIT COURT THE HONORABLE JAMES C. WITT, JUDGE John W. Cleveland, Cleveland & Cleveland of Sweetwart, for Appellant William A. Buckley, Jr., of Athens For Appellee REVERSED AND REMANDED Opinion filed: W. FRANK CRAWFORD, PRESIDING JUDGE,W.S. CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER, JUDGE This is a child custody case. Bryan L. Greene (Father) and Tammy Rushing Greene, now Harris (Mother), were divorced by decree entered June 2, 1988. The decree incorporated a prior Marital Dissolution Agreement, which granted custody of the parties' minor child, Sara Ann Greene, to Mother, with liberal visitation rights to Father. On September 15, 1994, Father filed a petition seeking custody, alleging a material change in circumstances. After an evidentiary hearing on March 10, 1995, the trial court granted Father's Petition for Change of Custody. 1 Mother has appealed, and the only issue is whether the trial court erred in ordering a change of custody. Sara Ann Greene was born in August of 1986. Since the time of the parties' separation in April of 1987, Sara has resided with Mother or with Mother's parents. Prior to the present proceeding, Father exercised his visitation rights approximately 50% of the time and generally paid child support payments in a timely fashion. There was testimony at trial that Sara has a good relationship with both parents. Sara's current teacher at Sweetwater Elementary School, Cleo Davis, testified that Sara is a good, well-behaved student who shows continued, steady growth in her school work. She testified that Sara is like "any other third-grader." However, there was evidence that Sara had been absent from school frequently, missing 32 of 180 days in the second grade. Mother testified that Sara's absences were generally caused by colds, and she also missed ten days of school because of chicken pox. Dr. Tom Hanaway, a clinical psychologist who performs forensic evaluations for courts in custody matters, met with Sara twice. He also met with Sara's mother, father, maternal grandmother, and talked to two of Sara's school teachers. He testified that Sara is very bonded to her mother, and that she expressed a strong desire to continue living with Mother. Dr. Hanaway found Sara to be a bright, well-adjusted child who did not exhibit signs of psychological problems. Father is a 29 year old resident of Kingsport, Tennessee. He works part-time for Wells Fargo and part-time on his family's farm. Father admitted on cross-examination that he has had numerous jobs since the parties' divorce. Although Father receives no compensation for working on the farm, he lives in his parents' home, has his meals there, and receives some financial support from the elder Greenes. Father testified that if he is awarded custody, he will continue 1 This Court granted Mother’s Motion for Stay Pending Appeal, pursuant to T.R.A.P. 7. 2  to live with his parents in this four bedroom home. Mrs. Greene will take care of Sara when Father is at work. As evidence of changed circumstances affecting Sara's welfare, Father asserts that Mother has changed her residence approximately five times since the parties' 1988 divorce. Father testified that Mother has had several boyfriends. There was evidence that at least one boyfriend, Tony Harris, whom Mother later married, lived with Mother and Sara outside of wedlock. Both Mother's second and third marriages failed.2 Father admitted that Sara had adequate housing and food. Although Father has never met or talked with Sara’s teachers, he stated that her education was neglected during the first and second grades. Trina Johnson, Mother's first cousin, testified on behalf of Father. She testified that Mother lived with David Thompson, whom Mother did not marry, in 1988, and that Father was aware of this living situation. (Mother denied living with Thompson.) Trina also stated that, during the period Mother was involved with Thompson, Trina saw Mother and Thompson at a convenience store, without Sara. Trina, concerned about Sara's welfare, immediately went to Mother's apartment. Trina testified that she heard crying inside the apartment, but that no one came to the door when she knocked. Trina waited at the apartment, hidden, until Mother and Thompson returned, approximately thirty minutes later. Trina also testified that on one occasion in 1992, when she went to Mother's house, at Mother's request, to pick up Sara, she noted that the apartment was a mess and there was no food in the house. Trina also testified that when Mother moved out of a house owned by Mother and Trina's great-grandmother, Dovie Rushing, Mother left the house in complete disarray. This testimony was contradicted by Jane Moser, Sara's maternal grandmother. Dovie Rushing, Mother's grandmother, also testified on Father's behalf. Mrs. Rushing, who lives in Sweetwater, has a close relationship with Sara and has kept her frequently since Sara was a small child. She testified that although Sara always had adequate food, clothing, and 2 Mother's third marriage, to Neil Turner, took place on February 1, 1994. The ceremony was performed by Fay Tennyson, a former County Commissioner. Mother testified that she believed she was married, but later discovered that the marriage certificate had not been returned to the county clerk's office, shedding doubt on the validity of the marriage. Regardless, Mother ended her relationship with Turner prior to her discovery that the marriage might not be valid. 3 housing, Mother was a “poor housekeeper” and had not given Sara “the best of care.” Mr. Robert Greene, Sara's paternal grandfather, testified on behalf on his son. He testified that Sara would be welcome in his home in Kingsport. He also stated that he did not harbor any bad feelings against Mother. Mother testified that a change of custody would not be in Sara's best interest. However, she testified that she has always encouraged, and continues to encourage, her daughter's relationship with Father. After the parties' divorce, Mother lived in public housing for two years. Mother and Sara then moved to a house owned by one of Mother's aunts in Athens, where they lived for one year. Mother testified that she and Sara moved to Athens because Mother was unhappy with Sara's school in Sweetwater, which was experimenting with a "non-traditional" classroom. Mother and Sara next moved to Knoxville in order for Mother to attend the University of Tennessee. Mother and Sara lived there for one semester, but returned to Mother's parent's home in Sweetwater because Mother had to undergo major surgery. After Mother recuperated, Mother and Sara moved to a house in Sweetwater owned by Mother's grandmother. After leaving that house, Mother and Sara lived in an apartment in Sweetwater, near Mother's parents' home. When Mother married Turner in spring of 1994, they moved briefly to Tellico (however, Sara continued to attend school in Sweetwater). At the time of trial, Mother and Sara were living with Mother's parents in Sweetwater. Questions regarding custody first arose in May of 1994, when Mother checked herself into a psychiatric hospital in Chattanooga. Mother, who suffers from chronic depression, felt that it would be in the best interest of Sara and Katie, a daughter from Mother's marriage to Tony Harris, to spend time with their respective fathers while she recovered. Mother contacted Sara's father and Kate's father to suggest a joint custody arrangement. Kate's father, Harris, agreed to joint custody; Sara's father demanded sole custody, which Mother refused to grant. In September of 1994, Mother checked herself into a psychiatric hospital in Knoxville. Currently, Mother meets with a counselor every two weeks. She testified without contradiction that her medication for depression has stabilized and she is doing well. She feels that she is capable, with the assistance of her extended family when needed, of providing for all of Sara's needs. Jane Moser testified on behalf of her daughter. Mrs. Moser keeps Sara frequently. Mrs. 4 Moser stated that Mother is a very good housekeeper. Mrs. Moser corroborated Mother's testimony that Mother never lived with Thompson. Mrs. Moser stated that she had never noticed that Mother's problems with depression affected either of Mother's children, and it is her observation Mrs. Moser stated that Mother is a loving parent who has always provided adequately for Sara. At the close of all the testimony, the trial court stated from the bench: It looks to me like that there's two groups of family members, some up in Kingsport and some down here around Sweetwater, generally speaking. And there are-- both families love this little girl . . . . And for the most part both families have been respectful people. But I don't believe that the actions of the mama have been particularly conducive to the raising of the child. Now, there was some proof . . . about her living with a man or two. I think that I heard proof that she lived with Turner several months before they were married . . . If she wasn't living with him, it was awfully close to it. **** And I'm going to rule, and it is my ruling, that the defendant, that would be the petitioner I guess, Greene, will have custody of the child. Now, you all, I think--and it's also my ruling that this lady will have liberal visitation rights. But I don't think she ought to be around that child at times when she's experiencing these deep depressions. You know, that's not conducive to raising of the child, is to be in the depression part of the time. And it's not conducive to raising the child to live with somebody or --before you marry them. **** What I am trying to look at is 10 years from now or 20 years form now, which one, looking back, would have most likely give [sic] this girl a college education, a profession, the opportunity to meet and marry first-class people that would be good for her and good for her future family and so forth. Our review of the findings of fact of the lower court is de novo upon the record, accompanied by a presumption of the correctness of the trial court's findings. Unless we find that the evidence preponderates against these findings, we must affirm, absent error of law. T.R.A.P. 13(d); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). The doctrine of res judicata bars a second suit between the same parties on the same cause of action with respect to all issues which were or which could have been litigated in the 5 former suit. Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). Thus, a custody order cannot be changed absent a showing of new facts, or "changed circumstances," which require an alteration of the original custody award. Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn. App. 1989). Child custody cases present primarily factual, not legal questions. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). Although there are no hard and fast rules as to what constitutes "changed circumstances," Arnold v. Arnold, 774 S.W.2d 613, 618 (Tenn. App. 1989), it is well settled that the best interest of the child is the paramount consideration in a child custody case. Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991). The party seeking a change in custody has the burden of proving by the preponderance of the evidence that a change in custody is in the child's best interest. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). In considering whether or not changed circumstances exist, we find the statement of the Wall court instructive: When two people join in conceiving a child, they select that child's natural parents. When they decide to separate and divorce, they give up the privilege of jointly rearing the child, and the divorce court must decide which parent will have primary responsibility for rearing the child. This decision of the Court is not changeable except for "change of circumstances" which is defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welfare or pleasure of either parent or to punish either parent, but to preserve the welfare of the child. Custody is not changed because one parent is able to furnish a more commodious or pleasant environment than the other, but where continuation of the adjudicated custody will substantially harm the child. Id. 907 S.W.2d at 834. In the instant case, we cannot agree with the lower court's determination that there has been a change in circumstances which warrants changing Sara Greene's custody. While there was evidence that Mother has moved frequently and has been involved in several unsuccessful relationships, neither a parent's remarriage nor a parent's sexual indiscretion are, per se, grounds for a change in custody. See, e.g. Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989); Arnold, 774 S.W.2d at 618; Curry v. Curry, 416 S.W.2d 372, 377 (Tenn. App. 1967). There was no evidence that Sara has been harmed either by Mother's moves or by Mother's romantic involvements. Additionally, there is no evidence that Mother's experiences with depression 6  have had a negative effect on Sara's welfare. Mother testified at trial, without contradiction, that her depression is under control through medication and counseling. Both Sara's teacher and Dr. Hanaway testified that Sara was a well-adjusted child who exhibited no behavioral problems. Neither Father nor any of the witnesses who testified on his behalf stated that Sara lacked food, shelter, or clothing. Although both Mother and Father have good relationships with Sara, neither relationship is flawless.3 However, Sara has been in her mother's custody for her entire life. Sara expressed a desire to both the lower court and to Dr. Hanaway to remain in her mother's custody. While the preference of an eight year old child is not binding upon this Court, it is a factor which we may consider. T.C.A. § 36-6-102(b) (Michie 1991). Absent a threat to Sara's welfare, we find her close relationship with Mother and Mother's extended family in Sweetwater to be significant. In Contreras, this Court emphasized the importance of stability in a child's life: The stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of custodial change. In short, when all goes well with children, stability, not change, is in their best interests. Id., 831 S.W.2d at 290. Our review of the record reveals no change in circumstances which threatens to cause substantial harm to Sara's welfare. Accordingly, the judgment of the trial court is reversed, and the case is remanded for such further proceedings as are necessary. Costs on appeal are taxed to the appellee. _________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR: _________________________________ ALAN E. HIGHERS, JUDGE 3 This Court does not look lightly upon the fact that Father violated the trial court's original custody order by refusing to return Sara to her mother's custody at the end of a scheduled visit which began September 16, 1994. Although Mother's actions have not always reflected good judgment, this action on the part of Father shows a clear lack of responsibility. 7 _________________________________ DAVID R. FARMER, JUDGE 8 

Feb 04 2015, 9:26 am ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jason J. Pattison Gregory F. Zoeller Jenner Pattison Hensley & Wynn, LLP Attorney General of Indiana Madison, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Chad A. Madden, February 4, 2015 Appellant-Defendant, Court of Appeals Case No. 39A01-1404-CR-173 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Alison T. Frazier, Judge Appellee-Plaintiff Cause No. 39D01-1206-FB-721 Mathias, Judge. [1] Chad A. Madden (“Madden”) appeals the order of the Jefferson Superior Court denying his motion to correct error which claimed that the trial court had improperly delegated to the Community Corrections program the authority to decide whether Madden should be subject to electronic monitoring. [2] We affirm. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 1 of 18  Facts and Procedural History [3] On June 28, 2011, pursuant to a plea agreement, Madden pled guilty to one count of Class D felony receiving stolen property in Cause No. 39D01-1006-FB- 487 (“Cause No. 487”). The trial court accepted the plea agreement and imposed a three-year suspended sentence. Nine months later, on March 13, 2012, the State charged Madden with one count of Class A misdemeanor check deception in Cause No. 39D01-1203-CM-305 (“Cause No. 305”). [4] On June 7, 2012—at which time Madden was on probation in Cause No. 487, and his charges under Cause No. 305 were pending—security cameras recorded him stealing several cartons of cigarettes from a gas station in Hanover, Indiana. The next day, when police officers attempted to arrest Madden, he fled on foot and, after a brief chase, had to be subdued with a taser. After Madden was apprehended, the police discovered methamphetamine and methadone in his possession. Accordingly, on June 11, 2012, the State charged Madden in Cause No. 39D01-1206-FB-721 (“Cause No. 721”) as follows: Count I, Class B felony possession of methamphetamine; Count II, Class C felony possession of a controlled substance; Count III, Class D felony theft; Count IV, Class A misdemeanor resisting law enforcement; and Count V, Class A misdemeanor possession of paraphernalia. In addition, the State filed a petition to revoke Madden’s probation in Cause No. 487. [5] On March 6, 2013, Madden entered into a plea agreement with the State whereby he pleaded guilty to the reduced charge of Class D felony possession of Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 2 of 18  methamphetamine in Cause No. 721, Class A misdemeanor check deception in Cause No. 305, and admitted that he violated his probation in Cause No. 487. The trial court accepted the plea agreement and, per its terms, sentenced Madden to three years for possession of methamphetamine, one year for check deception, and reinstated his three-year suspended sentence for the probation violation—all to be fully executed and served consecutively. In accordance with the plea agreement, the trial court also referred Madden to the “Purposeful Incarceration” program, with the recommendation that he be placed in the Therapeutic Community Program (“TCP”) at Branchville Correctional Facility. The Department of Correction (“DOC”) subsequently assigned Madden to Branchville, and on April 22, 2013, he enrolled in the TCP. [6] Another provision of the plea agreement stipulated that upon his successful completion of the TCP, Madden could petition the trial court for a sentence modification. On December 18, 2013, Madden filed a petition to modify his sentence based on his completion of the TCP program. The trial court held a hearing on Madden’s sentence modification petition on February 19, 2014, and issued an order that same day granting the petition. In its sentence modification order, the trial court found that the sentences under Cause No. 487 and Cause No. 305 had been fully served. The court then suspended the remaining sentence under Cause No. 721 to supervised probation. The trial court also ordered Madden: to report to the Jefferson County Community Corrections Department as a specific term of probation with determination of appropriate program to be made by the Community Corrections Department, and Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 3 of 18  shall include all other terms of probation as outlined in the Terms of Supervised Probation With Community Corrections Placement prepared by the Court, read to the defendant at this hearing, and filed in this matter. Appellant’s App. p. 98. In relevant part, the Terms of Probation instructed Madden to: 14. comply with all rules for Community Corrections placement, including but not limited to “component rules”, and with any program recommended or required by Community Corrections, including electronic monitoring, day reporting, counseling, and educational programs[.] [I]n the event that [C]ommunity Corrections recommends or requires electronic monitoring, the following conditions and terms apply: 15. . . . be confined to home at all times except when the defendant is a. working at employment approved by the Court or traveling to or from said employment, b. unemployed and seeking employment approved by the Court, c. undergoing counseling, medical, mental health, psychiatric treatment, or other treatment approved by the Court, d. attending an educational institution or facility or other program approved by the Court, e. attending a regularly scheduled religious service at a bona fide place of worship, f. participating in a community work release or community service program approved by the Court, or g. engaged in another activity approved in advance by the Court or Community Corrections[.] Appellant’s App. p. 94 (emphasis added). The Terms of Probation further notified Madden that a violation of the electronic monitoring rules could result in a criminal charge for escape; that he was obligated to abide by a schedule prepared by Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 4 of 18  Community Corrections and to communicate any changes in that schedule with Community Corrections; that he must maintain a working land-line telephone at his house; and that he would be responsible for payment of all applicable electronic monitoring fees. At the modification hearing, Madden acknowledged that he understood and agreed to comply with the Terms of Probation. [7] On March 19, 2014, Madden filed a motion to correct error. He alleged that the trial court improperly delegated its authority by allowing Community Corrections to decide whether—and for what duration—he should be placed on electronic monitoring as a condition of his probation.1 On March 21, 2014, the trial court denied his motion without a hearing. Madden now appeals. Standard of Review [8] Madden claims that the trial court erred in setting the conditions of his probation. We first note that he is appealing from the trial court’s denial of his motion to correct error. On review, our court will uphold a trial court’s ruling on a motion to correct error absent an abuse of discretion. Nichols v. State, 947 N.E.2d 1011, 1015 (Ind. Ct. App. 2011), reh’g denied. The trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). To the extent that Madden has presented any 1 The record does not indicate whether Community Corrections did, in fact, subject Madden to electronic monitoring. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 5 of 18  issues that involve questions of law, our review is de novo. Nichols, 947 N.E.2d at 1015. [9] We also note that trial courts are vested with broad discretion in establishing the terms of probation, which are subject to review only for an abuse of discretion. Berry v. State, 10 N.E.3d 1243, 1247 (Ind. 2014). Probation conditions “must be reasonably related to the treatment of the defendant and the protection of public safety.” Hurd v. State, 9 N.E.3d 720, 726 (Ind. Ct. App. 2014). Accordingly, our task on review is to consider whether the conditions imposed on the defendant “are reasonably related to attaining these goals.” Id. Although probation and community corrections programs are not precisely the same, they are treated the same for many purposes. McQueen v. State, 862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007). Both probation and community corrections serve as alternatives to commitment to the DOC; they both are made at the sole discretion of the trial court; a defendant is not entitled to serve a sentence in either, and placement is a “matter of grace” and a “favor, not a right”; and the due process rights for revocation of community corrections placement and probation hearings are the same. Id. Discussion and Decision [10] Madden claims that the trial court erred by delegating to Community Corrections the authority to determine if, and for how long, he should be placed on home detention. Home detention, he claims, is a “materially punitive” condition of probation that must be determined by the trial court, not Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 6 of 18  Community Corrections. Madden notes that Indiana Code section 35-38-2- 1(a)(1) provides that the trial court “shall . . . specify in the record the conditions of the probation.” He also observes that, as a condition of probation, “the court may require a person to . . . undergo home detention under IC 35-38-2.5.” Ind. Code § 35-38-2-2.3(a)(16) (emphasis added). Madden reads these provisions to mean that only the trial court may determine if and for how long he should be subject to home detention. We do not agree. [11] Although trial courts are indeed required by statute to set forth the terms of probation, they also have authority to allow Community Corrections programs to supervise various aspects of probation. For example, a trial court may order a probationer to home detention supervised by a Community Corrections program. Ind. Code § 35-38-2.5-5(c). A trial court may also order a probationer subject to such home detention to abide by a schedule prepared by the Community Corrections program. Ind. Code § 35-38-2.5-6(3). More importantly, when supervising a probationer on home detention, Community Corrections programs are specifically required by statute to “set the monitoring device[2] and surveillance equipment to minimize the possibility that the 2 A “monitoring device” is defined as “an electronic device that: (1) can record or transmit information twenty-four (24) hours each day regarding an offender’s: (A) presence or absence from the offender’s home; or (B) precise location; (2) is minimally intrusive upon the privacy of the offender or other persons residing in the offender’s home Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 7 of 18  offender or alleged offender can enter another residence or structure without a violation.” Ind. Code § 35-38-2.5-10(d). [12] Here, the trial court ordered, as a condition of probation, that Madden be subject to home detention as supervised by the Community Corrections program, which is authorized by the home detention statutes. Also, the Community Corrections program is required by statute to place such a probationer on electronic monitoring. Given this statutory authority, we cannot say that the portion of the trial court’s order requiring Madden to comply with all rules established by the Community Corrections program, including electronic monitoring, improperly delegates the trial court’s sentencing authority to the Community Corrections program. [13] We find the cases cited by Madden in support of his claim to be distinguishable. For example, Madden cites Freije v. State, 709 N.E.2d 323 (Ind. 1999), to (3) with the written consent of the offender and with the written consent of other persons residing in the home at the time an order for home detention is entered, may record or transmit: (A) a visual image; (B) an electronic communication or any sound; or (C) information regarding the offender’s activities while inside the offender’s home; and (4) can notify a probation department, a community corrections program, or a contract agency if the offender violates the terms of a home detention order. (b) The term includes any device that can reliably determine the location of an offender and track the locations where the offender has been, including a device that uses a global positioning system satellite service. (c) The term does not include an unmanned aerial vehicle (as defined in IC 35-31.5-2- 342.3). Ind. Code § 35-38-2.5-3(a). Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 8 of 18  support his claim that the trial court cannot delegate authority to impose materially punitive obligations to Community Corrections. However, Freije does not hold that the trial court may not “delegate” authority to Community Corrections. Instead, it holds that a trial court may not unilaterally impose conditions of probation that materially add to the punitive obligation, such as home detention and community service, after the court has already accepted a plea agreement which did not contain such conditions. Id. at 325-26. See also Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012) (following Freije and holding that the trial court was without authority to order defendant to perform community service when such was not provided for in plea agreement); see also Disney v. State, 441 N.E.2d 489, 493 (Ind. Ct. App. 1982) (holding that trial court erred in ordering restitution as a condition of probation where such was not included in the plea agreement). Here, however, Madden does not claim that the trial court’s modification of his sentence is contrary to his plea agreement.3 In fact, the plea agreement specifically authorizes the trial court to modify Madden’s sentence, and the plea agreement places no limitations on the trial court’s discretion in so modifying the sentence. See Appellant’s App. p .61. [14] Similarly, McGuire v. State, 625 N.E.2d 1281 (Ind. Ct. App. 1993), provides little support for Madden’s position. That case held that a trial court erred in ordering restitution in an amount to be determined by the probation 3 The dissent contends that, even if the trial court had authority to “delegate” to Community Corrections the authority to determine the conditions of Madden’s electronic monitoring, such a condition would violate the terms of his plea agreement. We disagree, and as noted above, Madden does not directly claim that the trial court’s modification order violated the plea agreement. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 9 of 18  department, not to exceed $250. Id. at 1282. The court noted that the statutory authority to order restitution granted such authority to the trial court, not the probation department. Id. Here, in contrast, the relevant statutes authorize the trial court to impose home detention as a condition of probation and to have a Community Corrections program supervise such home detention. Other statutes authorize the Community Corrections program to set rules for probationers placed in the program and specifically requires Community Corrections to set monitoring devices and surveillance equipment to ensure a probationer’s compliance.4 [15] Madden also claims that the trial court’s order deprives him of due process. Although not entitled to the full panoply of rights afforded to a criminal defendant, a probationer is entitled to certain minimum requirements of procedural due process, which include: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking probation. 4 The other cases cited by Madden are also unavailing. Ratliff v. State, 546 N.E.2d 309, 313 (Ind. Ct. App. 1989), simply holds that “a defendant’s probation cannot be revoked for the violation of conditions not specified, either orally or in writing, at the time of sentencing.” Here, however, the terms of Madden’s probation, including any electronic monitoring, are set forth in the written terms of his probation. Nor has Madden yet been accused of violating any of the conditions of his probation; he is simply challenging the terms of his probation. Also, United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998), held that the trial court exceeded its authority and gave to the probation office too much discretion to manage drug tests of the defendant. However, not only is Bonanno not binding on this court, the statutes at issue here do authorize the actions of the trial court. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 10 of 18  Pope v. State, 853 N.E.2d 970, 972-73 (Ind. Ct. App. 2006) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). In arguing that he was denied due process, Madden first simply reiterates his claims regarding the trial court’s allegedly improper “delegation.” Madden then argues: By delegating that authority to Community Corrections the Trial Court eliminates the probationers right to a hearing, where [the defendant] should be represented by counsel, be provided the opportunity to present evidence, and have the opportunity to contest Community Corrections decision to impinge on their “conditional liberty interest”. Appellant’s Br. p. 11. To the extent that Madden’s argument refers to the trial court’s sentence modification order, we would note that Madden was in fact provided with a hearing, at which he was represented by counsel and presented evidence to support his sentence modification. Accordingly, we cannot see any violation of procedural due process in this regard. [16] If Madden is instead referring to any future finding by the Community Corrections program that he violated his probation, this question is not yet ripe for review as Madden has not yet been found to be in violation of any terms of his probation. Moreover, we find nothing in Madden’s Terms of Probation that would indicate that the trial court intended to allow the Community Corrections program unilaterally to determine whether Madden had violated the terms of his probation.5 5 Further, as we noted in Pope, even if we were to conclude that “Community Corrections [is] the proper decision-making authority,” a doubtful proposition, then Community Corrections would be “required to give [the probationer] notice and a hearing.” 853 N.E.2d at 973. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 11 of 18  Conclusion [17] The trial court’s order modifying Madden’s sentence and imposing conditions of probation did not improperly delegate the trial court’s authority to Community Corrections, nor did the trial court’s order deprive Madden of procedural due process. [18] Affirmed. Crone, J., concurs. Riley, J., dissents with opinion. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 12 of 18  IN THE COURT OF APPEALS OF INDIANA Chad A. Madden, February 4, 2015 Appellant-Defendant, Court of Appeals Case No. 39A01-1404-CR-173 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Alison T. Frazier, Judge Appellee-Plaintiff Cause No. 39D01-1206-FB-721 Riley, Judge, dissenting. [19] I disagree with the majority that the trial court did not improperly delegate its authority to Community Corrections to determine whether, and for what duration, Madden should be subject to electronic monitoring—i.e., home detention—as a condition of his probation. Therefore, I respectfully dissent. [20] Indiana’s probation statute unambiguously states that “[w]henever it places a person on probation, the court shall . . . specify in the record the conditions of the probation.” Ind. Code § 35-38-2-1(a)(1) (emphasis added). Specifically, “the court may require a person to do [any] combination” of twenty-three statutorily-enumerated conditions, one of which is to “[u]ndergo home detention.” I.C. § 35-38-2-2.3(a)(16) (emphasis added). In addition, the home detention statute specifies that “as a condition of probation a court may order an Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 13 of 18  offender confined to the offender’s home for a period of home detention lasting at least sixty (60) days.” I.C. § 35-38-2.5-5 (emphasis added). [21] Once a court has ordered electronic monitoring as a condition of probation, it may assign supervisory duties to a community corrections department. I.C. § 35-38-2.5-5(c). See White v. State, 560 N.E.2d 45, 47 (Ind. 1990) (noting that the trial court “sets the ‘conditions of probation’ and the probation officer supervises and assists the defendant in implementing and carrying out those conditions”). The majority assumes that Community Corrections’ supervisory role equates to having the authority to require home detention. 6 I disagree. [22] The probation and home detention statutes explicitly establish that the duty to demarcate the conditions of probation resides squarely with the trial court. See McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993) (finding the trial court improperly delegated authority to the probation department to fix the amount and manner of restitution because the probation statute specifically directs the trial court to make these determinations). Nowhere in these statutes is there language indicating that the trial court may delegate its authority to define a defendant’s terms of probation, and “it is just as important to recognize what a statute does not say as it is to recognize what it does say.” Million v. 6 The State contends that community corrections programs are statutorily authorized to establish their own rules, and “community corrections inherently includes ‘electronic monitoring.’” (State’s Br. p. 8). In support of this argument, the State relies on Indiana Code chapter 35-38-2.6, which governs direct placement in a community corrections program. Contrary to a sentence that has been suspended to probation, direct placement is a means of serving the executed portion of a sentence and must be succeeded by a term of probation. I.C. § 35-38-2.6-7; Brown v. State, 894 N.E.2d 598, 600-01 (Ind. Ct. App. 2008). Home detention may be ordered for either probation or direct placement in community corrections; here, however, the trial court expressly made Madden’s compliance with Community Corrections’ requirements a condition of his probation. Thus, this case is governed by Indiana Code chapter 35-38-2 and chapter 35-38-2.5. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 14 of 18  State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995). Contrary to the majority’s contention that “the Community Corrections program is required by statute to place such a probationer on electronic monitoring[,]” the home detention statute specifies that a “community corrections program charged by a court with supervision of offenders and alleged offenders ordered to undergo home detention shall, at the beginning of a period of home detention, set the monitoring device . . . .” I.C. § 35-38-2.5-10(d) (emphasis added). Accordingly, before Community Corrections may “set the monitoring device,” there must be an order for home detention from the trial court. See I.C. §§§ 35- 38-2.5-5; -6; -10(d). [23] Moreover, a probationer must receive “prospective notice of the standard of conduct required of him or her while on probation.” Million, 646 N.E.2d at 1000. Pursuant to the probation statute, “the trial court must provide the defendant a written statement containing the terms and conditions of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013); see I.C. § 35-38-2-2.3(b)(1). If no written statement is furnished, the record must at least reflect “that the probationer has been orally advised by the sentencing court of the conditions of his probation and [that] the defendant specifically acknowledges that he understands those conditions.” Seals v. State, 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998). [24] The majority correctly notes that Madden has not been accused of any probation violations, but the purpose of requiring a record of the specific terms of probation is also to “prohibit the imposition of additional conditions after Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 15 of 18  sentencing.” Million, 646 N.E.2d at 1000. At the time of sentencing, probations are “entitled to provisions which establish definite restrictions during the probation period.” Dulin v. State, 346 N.E.2d 746, 754 (Ind. Ct. App. 1976), reh’g denied. “[T]he language must be such that it describes with clarity and particularity the misconduct that will result in penal consequences.” Hunter v. State, 883 N.E.2d 1161, 1163 (Ind. 2008). [25] Here, the Terms of Probation failed to conclusively apprise Madden of his obligations because the condition of home detention was tentative, pending an assessment by Community Corrections. The Terms of Probation specified the rules that would govern Madden’s confinement in the event that Community Corrections elected to require electronic monitoring, and Madden agreed to comply with these rules when read aloud by the trial court. See I.C. §§ 35-38- 2.5-6; -7(a). Thus, there is no dispute that Madden had notice of the restrictions to which he might be subjected. However, absent an order from the trial court definitively making home detention/electronic monitoring a condition of his probation, these parameters are inconsequential. Accordingly, I would find that the trial court abused its discretion by authorizing Community Corrections to officially decide whether to impose the condition of home detention. [26] Furthermore, notwithstanding whether the trial court improperly delegated a sentencing decision to Community Corrections, I would nevertheless find that it was an abuse of discretion to require electronic monitoring as a condition of Madden’s probation because the trial court’s initial sentencing decision and basis for modification were controlled by the plea agreement. Upon acceptance Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 16 of 18  of a plea agreement, which is contractual in nature, the trial court is bound by its terms “and is precluded from imposing any sentence other than required by the plea agreement.” Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012) (quoting Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004)). Similarly, a sentence may only be modified to the extent that it would not violate the plea agreement “had it been the sentence originally imposed.” Pannarale v. State, 638 N.E.2d 1247, 1249 (Ind. 1994). [27] The plea agreement fixed Madden’s aggregate executed sentence at seven years. Other than a provision stipulating that the State and trial court could “consider modification of [Madden] to Jefferson County” upon his completion of the Therapeutic Community Program, the plea agreement is entirely silent regarding any terms of probation. (Appellant’s App. p. 61). Moreover, no language in the plea agreement even confers the trial court with discretion over the probationary terms. [28] It is well established that where the terms of probation are not contemplated by the plea agreement, “[t]rial courts are free to impose administrative or ministerial conditions as terms of probation.” S.S. v. State, 827 N.E.2d 1168, 1171 (Ind. Ct. App. 2005), trans. denied. Such conditions may include reporting to a probation department, supporting dependents, and maintaining employment. Disney v. State, 441 N.E.2d 489, 494 (Ind. Ct. App. 1982). In fact, an offender “should reasonably expect that the county’s standard conditions [of probation] may apply.” Freije v. State, 709 N.E.2d 323, 325 (Ind. 1999). However, the court is precluded from levying “‘substantial obligations of a Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 17 of 18  punitive nature’ if the plea agreement ‘is silent to such punitive conditions.’” Jackson, 968 N.E.2d at 332 (quoting Bennett, 802 N.E.2d at 921). Home detention is undisputedly a condition that “materially add[s] to the punitive obligation.” Freije, 709 N.E.2d at 325-26. Because the plea agreement did not specify that the trial court had the discretion to impose punitive conditions of probation, I would find that it lacked the authority to order Madden to be placed on home detention. See Berry v. State, 10 N.E.3d 1243, 1249 (Ind. 2014). Even Madden’s verbal assent to the Terms of Probation is insufficient to permit the trial court to vary the terms of the plea agreement by adding a punitive obligation. Jackson, 968 N.E.2d at 332. [29] Based on the foregoing, I would reverse and remand with instructions for the trial court to revise Madden’s Terms of Probation. Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 18 of 18 

424 N.W.2d 155 (1988) Rodney Dean CARROLL, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Lynne De Lano, Warden of the Springfield Correctional Facility, Respondents. No. 15859. Supreme Court of South Dakota. Considered on Briefs November 20, 1987. Decided June 1, 1988. *156 Richard Braithwaite, Sioux Falls, for petitioner. Roger A. Tellinghuisen, Atty. Gen., Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for respondents. SABERS, Justice. Carroll claims his misdemeanor DWI conviction cannot be enhanced once to felony status and then enhanced again under the habitual felony statute. The court denied Carroll's habeas corpus action and he appeals. We reverse and remand for resentencing. Facts Carroll was indicted for driving while under the influence of alcoholic beverages (DWI) on August 28, 1986, a violation of SDCL 32-23-1(2). The state filed two separate part II informations. The first part II information alleged that the DWI offense was his third such offense within five years based upon July 22, 1983, and March 3, 1986, convictions. As such, it constituted a class 6 felony. SDCL 32-23-4. The second part II information was filed pursuant to SDCL 22-7-7 (habitual felony offender). It alleged that Carroll was a second time felony offender based upon a prior DWI felony conviction of March 11, 1986. Carroll pled guilty to the DWI offense charged in the indictment and admitted the repeat offender allegations contained in both part II informations. Due to the state's filing of the first part II information under SDCL 32-23-4 (punishment for third offense DWI), the penalty for his DWI offense was increased from a class 1 misdemeanor to a class 6 felony. Because the second part II information was filed under SDCL 22-7-7 (habitual felony offender), the penalty was increased from a class 6 felony to a class 5 felony. The trial court sentenced Carroll to four years in the state penitentiary. Carroll claims that the sentencing court erred in using the provisions of both SDCL 32-23-4 and SDCL 22-7-7 to allow the double enhancement of the penalty for his DWI conviction from a class 1 misdemeanor to a class 6 felony and then to a class 5 felony. We agree. Improper Double Enhancement This court has not determined whether a criminal penalty may be enhanced under both the third offense DWI statute, SDCL 32-23-4, and the habitual felony offender provision, SDCL 22-7-7. The only similar situation confronted by this court was in State v. Layton, 337 N.W.2d 809 (S.D. 1983). In Layton an inmate defendant was convicted of a felony. He was sentenced as an inmate felon subject to a double penalty under SDCL 22-6-5.1 and, in turn, sentenced as a habitual felony offender under SDCL 22-7-8. We approved the sentence in Layton because each of the two penalty enhancement provisions served a distinct purpose. In reaching our conclusion in Layton we stated: The individual who commits felonies while incarcerated exhibits a callous disregard *157 of our penal system, is dangerous to penitentiary personnel, and wreaks havoc with an institution which can exist only through discipline. SDCL 22-6-5.1, the inmate doubling statute, operates in part to protect the unarmed penitentiary guards who must risk their safety to enforce penitentiary rules. SDCL 22-7-8, our habitual offender statute, operates to protect society from the individual who, through his continued felonious conduct, exhibits that efforts of rehabilitation have failed. These two statutes serve distinct purposes, each being a vital concern to our criminal justice system. Layton, 337 N.W.2d at 816. This case presents a situation unlike that in Layton. The use of both SDCL 32-23-4 and SDCL 22-7-7 to enhance the penalty for petitioner's DWI offense accomplishes the same purpose: it enhances his punishment for the subsequent commission of the same criminal offense. As a result, the dual purpose rationale relied upon in allowing double enhancement of the penalty in Layton is not present in this case. In a case involving a factual situation nearly identical to this one, the Supreme Court of Nebraska ruled that the specificity of the language in that state's DWI repeat offender statute, which was, "if such conviction is for a third offense, or subsequent offense thereafter, such person shall be imprisoned ...," (emphasis original) yielded the conclusion that it was a specific DWI habitual criminal statute excluding application of a general habitual felony provision. State v. Chapman, 205 Neb. 368, 287 N.W.2d 697, 699 (1980), citing Neb.Rev.Stat. § 39-669.07(3) (1943). We find the reasoning of the Nebraska Supreme Court persuasive in our review of SDCL 32-23-4, the third offense DWI statute. Like the Nebraska statute, it specifically states, "[i]f conviction for a violation of § 32-23-1 is for a third offense, or subsequent offense thereafter, the person is guilty of a Class 6 felony...." (emphasis added). We similarly conclude that SDCL 32-23-4 is a self-contained, specific habitual criminal statute. Rules of statutory construction require that a statute that is specific and express controls over a more general statute, Marshall v. State, 302 N.W.2d 52 (S.D.1981). We find the general felony habitual offender statute inapplicable in sentencing a repeat DWI offender. SDCL 22-7-7 provides, in part: When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe. The determination of whether a prior offense is a felony for purposes of this chapter shall be determined by whether it is a felony under the laws of this state or under the laws of the United States at the time of conviction of such prior offense.... On its face, this language purports to apply to "principal" and "prior felonies" as opposed to misdemeanors enhanced to felony status.[*] This conclusion is in keeping with our holding that, "[t]he habitual offender act [SDCL ch. 22-7] is a highly penal enactment and, therefore, it should be strictly construed and applied." State v. Grooms, 339 N.W.2d 318 (S.D.1983). This conclusion is also in keeping with State v. Helling, 391 N.W.2d 648, (S.D.1986) where we held that a person charged with a third offense DWI was not entitled to additional (felony) peremptory challenges on the underlying charge. We hold, therefore, that SDCL 32-23-4 provides an exclusive sentencing scheme for repeat DWI offenders and that the sentencing court erred in levying a sentence enhanced under both SDCL 32-23-4 and SDCL 22-7-7. Therefore, we reverse and remand for resentencing. *158 WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., concurs in result. MILLER, J., disqualified. HENDERSON, Justice (concurring in result). As the State and appellant briefed propriety/impropriety of jurisdiction through the use of habeas corpus, and this Court by its decision has not addressed this issue, I concur in the result only. NOTES [*] See Chapman, supra, 287 N.W.2d at 698 (DWI offenses which are "felonies" because a defendant has previously been convicted of the same crime, do not constitute "felonies" within the meaning of "prior felonies" that enhance penalties under the habitual criminal statute.)

31 So.3d 392 (2010) Hieu V. NGUYEN v. LOUISIANA BOARD OF PAROLE, et al. No. 2009-CI-1224. Supreme Court of Louisiana. April 9, 2010. Denied.

424 P.2d 96 (1967) George E. STILES, Petitioner, v. Warden Ray PAGE, State Penitentiary, McAlester, Oklahoma, Respondents. No. A-14181. Court of Criminal Appeals of Oklahoma. February 15, 1967. George E. Stiles, pro se. No response by State. NIX, Presiding Judge: This is an Original Proceeding in which the petitioner, George E. Stiles, seeks a Writ of Mandamus from this Court directing the Warden of the State Penitentiary to credit petitioners time served with some number of days spent in jail, and on bail, before being received at the penitentiary. However, this petition must fail on its face. Petitioner states that he was sentenced from the District Court of Oklahoma County for the crime of "Grand Larceny, After Former Conviction of a Felony." This Court has held, as in the Application of Roberson, Okl.Cr., 400 P.2d 459, that: "All inmates in state penal institution who are serving their first terms with good conduct record and who have no infraction of rules and regulations of penal institution shall be allowed, as deduction from term of imprisonment, jail term, if any, served prior to being received at penal institution." (Emphasis ours) The only inmates who receive credits for their jail time, are first offenders. "Defendant who was sentenced after former conviction of felony was not entitled to deduction for jail time served prior to being received at penal institution." Application of Neal, Okl.Cr., 373 P.2d 1022. The Writ prayed for, is accordingly denied. BUSSEY and BRETT, JJ., concur.

23 F.3d 403NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Raymond STOKES, Plaintiff-Appellant,v.David A. WILLIAMS; Thomas R. Lanyi, Defendants-Appellees. No. 93-7156. United States Court of Appeals, Fourth Circuit. Submitted: April 21, 1994.Decided: May 9, 1994. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CA-92-1177-AM) Raymond Stokes, Appellant Pro Se. Pamela Anne Sargent, Assistant Attorney General, Richmond, Virginia; William Rittenhouse Culbreth, Russell, Cantor, Arkema & Edmonds, P.C., Richmond, Virginia, for Appellees. E.D.Va. AFFIRMED. Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and CHAPMAN, Senior Circuit Judge. PER CURIAM: 1 Appellant appeals from the district court's order denying relief on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion discloses that this appeal is without merit.* Accordingly, we affirm on the reasoning of the district court. Stokes v. Williams, No. CA-92-1177-AM (E.D. Va. Aug. 10, 1993; Sept. 24, 1993). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED * Although Stokes did not receive the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), on this record we find this to be harmless error. Fed.R.Civ.P. 61

731 So.2d 626 (1998) Lamar Christovia NETTLES v. STATE. CR-96-2409. Court of Criminal Appeals of Alabama. June 19, 1998. Opinion on Return to Remand November 20, 1998. *627 John Bertolotti, Jr., Mobile, for appellant. Bill Pryor, atty gen., and J. Thomas Leverette, asst. atty. gen., for appellee. COBB, Judge. Lamar Christovia Nettles appeals from his convictions on charges of kidnapping in the first degree, a violation of § 13A-6-43, Ala.Code 1975, and second-degree burglary, a violation of § 13A-7-6, Ala.Code 1975. At an earlier trial, Nettles was convicted of both offenses, and he appealed to this court. On March 8, 1996, this Court reversed the convictions and returned the case for a new trial. Nettles v. State, 683 So.2d 9 (Ala.Cr.App.1996). On May 21, 1997, Nettles was retried before a jury on charges that he kidnapped Tim Phillips at gunpoint to get the door keys to the Mc-Donald's restaurant where Mr. Phillips was assistant manager and the combination to the restaurant's safe, and then used the keys and the safe combination to burglarize the restaurant. Following the guilty verdict, the trial judge sentenced Nettles to life imprisonment for the first-degree kidnapping and to 20 years' imprisonment for the second-degree burglary. This appeal follows. Nettles argues that the trial court erred in not granting a hearing outside the presence of the jury to determine the admissibility of the confession Nettles made to a police investigator. The evidence tends to show the following. Nettles was caught inside the Mc-Donald's restaurant on October 2, 1993. He was arrested and was taken to the police station, where he was interrogated by police investigator James Graham. Investigator Graham was called as a witness during the State's presentation of its case. *628 As Investigator Graham began to testify as to the confession he took from Nettles, trial counsel interrupted, stating: "MR. QUINLIVAN: Judge, I would like to have a hearing on the voluntariness of this outside the presence of the jury." (R. 75.) The trial judge denied the request, stating that he would explore the matter more fully on the record when the jury was "on break." As Investigator Graham began to identify signatures on the Miranda rights form, trial counsel again objected: "MR. QUINLIVAN: Judge, I am going to have to object to any testimony by this officer about any kind of statement given unless there is a proper predicate laid both outside the presence of the jury and before the jury as to the voluntariness and constitutionality of it." (R. 76.) The trial judge reminded trial counsel that he had already ruled on his request for a hearing outside the presence of the jury, but told the prosecutor to lay the proper predicate for the admission of the confession. Investigator Graham testified that he read Nettles his Miranda rights from a form provided to officers by the Mobile Police Department; he then enumerated the specific rights he had read to Nettles and said that Nettles appeared to understand his rights. Graham then testified that no one threatened, coerced, or sought to induce Nettles to give a statement; that no one told Nettles that it would be better or worse for him if he made a statement; and that no one offered Nettles any hope of reward in return for a statement. He then said that Nettles waived his rights and made a confession. Over the repeated objections of trial counsel, the trial court then admitted the taped confession, it was played to the jury, and the State rested. After the jury was released for its lunch break, the trial court made the following statement concerning its decision to deny a hearing outside the presence of the jury to determine the voluntariness and admissibility of the confession: "THE COURT: ... I am not sure how much of this was on the record, but it was brought to the Court's attention earlier that the state intended to use the statement, which statement was used at the previous trial. That further the Court was advised that at that trial a hearing was held outside the presence of the jury concerning the voluntariness and other essentials of the admissibility of the statement, and that following that hearing the judge at that trial ruled that the statement was admissible. The Court does not believe that a second hearing is necessary for that purpose, the evidence having been presented to a judge and ruled on by him and the matter having winded its way up to and back from the appellate court on that record. So I deny—on that basis the Court denied the request for a second hearing on the same subject outside the presence of the jury. Anything else?" (R. 86-87.) The trial counsel argued that this was a new trial with a new trial judge and a new defense lawyer, and that Nettles should be entitled to have a new hearing for the trial judge to determine whether the confession was freely, voluntarily, and intelligently made. He further argued that Nettles was entitled to a hearing outside the presence of the jury and that Nettles had a right to testify before the trial judge then presiding over his case. He then proffered that, had he been given the opportunity to testify, Nettles would have said that he was intoxicated and under the influence of marijuana when he confessed. The trial judge responded that Nettles had had the right to testify at the hearing that took place during the first trial and that if he chose not to testify, the right to another hearing to determine the admissibility of the confession was not revived by the fact that his first conviction was reversed. The trial judge concluded: "THE COURT: ... [T]here is no question but that there was a hearing held *629 and that a [duly] acting judge of this court made a ruling on the facts presented, which ruling ... the Court finds is a matter decided." (R. 88.) While the record of the first trial was not made a part of the record in the present appeal, this Court may take judicial notice of its own records in this situation. Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Cr.App.1992). In reviewing the admission of Nettle's confession in his first trial, we note that Nettles testified outside the presence of the jury regarding his having drunk alcohol and having smoked marijuana before making the statement and that his confession was subsequently admitted into evidence without a motion to suppress or an objection to its admission. The record of the first trial showed that Nettles was permitted to question Investigator Graham on voir dire regarding the circumstances surrounding the taking of the statement. This was done in the presence of the jury. Trial counsel then asked the judge to allow Nettles to testify about the confession outside the presence of the jury. The trial judge granted that request. The pertinent parts of that testimony are as follows: "Q [Defense counsel]: Okay, Lamar, you remember giving a statement, remember talking to the police officer? "A: Yeah, I remember them taking me to the precinct. ". . . . "Q: Did you understand your rights? "A: At the time, I did, yes, sir. "Q: Had you had any sort of alcohol? "A: Yes, sir. "Q: Tell the Court how much alcohol you had consumed or drugs [you had taken] that night. ". . . . "A: Yes, sir. It was about two [or] three fifths of Thunderbird [wine]. We had been smoking marijuana laced joint[s] practically all day. "Q: Do you remember saying a lot of this—you read the statement? "A: Yeah, I remember saying this. "Q: Do you remember saying what you read in this statement? "A: Some of the information I remember, some of it, I don't. It's been quite a while. I don't remember making some of those statements. "Q: Did the alcohol and the drugs have an affect on you, if you recall, when you were at the station? "A: Yes, it did." (R. in first trial 75-76.) Then the prosecutor and trial judge asked Nettles some questions: "Q [Prosecutor]: You told Mr. White at the time you gave your statement you did understand your rights, correct? "A: Yes, I understood what the officer was saying. "Q: And you understood you have a right to a lawyer and you could [have] stopped the interview, right? "A: Yes, sir.... "Q [Trial judge]: ... [D]id any of these officers there or anyone there in their presence threaten or intimidate you in any way? "A: As far as interrogating for questioning, that's all that went on there. Wasn't no physical threat, anything by word of mouth. "Q [Prosecutor]: Did this officer here or Officer Bush or anyone else in their presence promise you anything to get you—they didn't promise you anything, did they? "A: Just that they would try to do their best to try to help this case when I go to court. That's only thing I know. They said they would try to help as best they could. "Q: They did not promise you any kind of sentence, did they? "A: No. "Q: And they didn't threaten? "A: No. *630 "Q: And you understood what was going on? "A: Yes." (R. in first trial 76-77.) After a discussion of the mechanics of presenting the tape recording of the statement or a transcript of it, the trial judge turned to the trial counsel and said, "Well, I wondered, Mr. White, why you wanted to bring him up here and give testimony the way he did. Only thing about it is this Court is going to submit his statement as being prima facie and voluntary and that, of course, is for the jury to weigh." Trial counsel candidly admitted that Nettles's testimony was not what Nettles had told him before he took the witness stand. There was no objection to the trial court's finding that the State had met its burden of proving the confession was voluntary, and there was no objection when the trial court admitted the statement into evidence at appellant's first trial. The procedure for determining the voluntariness of a confession has been wellsettled for over 30 years. The Alabama Supreme Court first outlined the procedure in Duncan v. State, 278 Ala. 145, 176 So.2d 840 (Ala.1965), in response to the United States Supreme Court's mandate in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Duncan, the Court set out the following procedure: "We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant will not waive his right to decline to take the stand in his own defense on the trial in chief nor will he waive any of the other rights stemming from his choice not to testify. If the confession is held voluntary and admitted, the jury's consideration of that confession and surrounding circumstances shall proceed in accordance with the `Orthodox' procedure, that is, the jury considers the voluntariness as affecting the weight or credibility of the confession." Duncan v. State, 278 Ala. at 165, 176 So.2d at 859. The question before us is whether the trial court's compliance with that procedure during the first trial was sufficient to allow the trial court in the second trial to decline to hear testimony outside the presence of the jury and then decline to determine the voluntariness of the confession before admitting it into evidence. We hold that, under the circumstances presented at this trial, the trial court at the second trial could not consider the admissibility of the confession "a matter decided."[1] An unqualified reversal would require a new trial and place the parties in the trial court in the same position as if the case had never been tried. In this case, the voluntariness of the confession was not an issue before this court on the appeal from the first trial. Thus, absent direction by this court limiting relitigation, or an opinion by this court determining the issue of the voluntariness of the confession at the first trial, trial counsel had to object to the admission of the confession at the second trial to preserve the issue for review, and the trial court was required to consider the admissibility of the confession when it was offered. See People v. Mattson, 50 Cal.3d 826, 849, 789 *631 P.2d 983, 999, 268 Cal.Rptr. 802, 818, cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990). The trial court erred when it declined to consider evidence and determine the voluntariness of the confession when it was offered. When Nettles requested a hearing outside the presence of the jury and informed the trial court that he wished to testify concerning the voluntariness of his confession, the trial court was required to grant that request, pursuant to Jackson v. Denno, supra. Although we find that the trial court erred in failing to grant Nettles a hearing outside the presence of the jury, we do not agree that Nettles is entitled to a new trial. Heard v. State, 584 So.2d 556, 562 (Ala.Cr.App.1991). Instead, we hold that Nettles is entitled to a post-trial evidentiary hearing to determine whether the confession was voluntary under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Jackson v. Denno, 378 U.S. at 393-94, 84 S.Ct. 1774; Ex parte Smith, 554 So.2d 451, 452-54 (Ala. 1989). We therefore remand the case to the trial court for a post-trial hearing to determine the voluntariness and admissibility of the confession. Return is to be made to this Court within 60 days. REMANDED WITH DIRECTIONS. All the Judges concur. On Return to Remand COBB, Judge. On June 19, 1998, this Court remanded this cause to the trial court for a post-trial hearing to determine the voluntariness and admissibility of the appellant's confession. Nettles v. State, 731 So.2d 626 (Ala.Cr.App.1998). The trial court "reached back to the first trial and considered the testimony" of both the defendant and the police investigator in the admissibility hearing conducted by another trial judge in Nettles's first trial. The trial court then independently concluded that the findings and conclusions made by the trial judge in the first trial were correct and it adopted those findings in admitting the confession. The trial court did not err in considering and adopting the findings made by the first trial court and in determining that the confession was admissible. In Bass v. State, 626 S.W.2d 769, 774 (Tex.Crim.App. 1982), the Texas Court of Criminal Appeals held: "Furthermore, if a procedurally and substantively adequate hearing has been held on this issue, a trial judge may consider evidence presented before a different fact-finder and adopt the findings and conclusions of the fact-finder in determining the admissibility of a confession, without the necessity of holding a second hearing to hear the same evidence. We emphasize the narrowness of our holding in this case: absent a claim of new evidence on the issue of a confession's voluntariness, and as long as a procedurally and subtantively[substantively] adequate hearing has been held before a fact-finder other than a jury which determines the defendant's guilt or innocence, the United State's Constitution does not require that a trial judge hold a second hearing to determine the voluntariness of a confession. He may make his determination based upon the evidence presented at the earlier hearing and may adopt the findings and conclusions of the fact-finder at the earlier hearing." We agree with that court, and we believe this procedure is acceptable in Alabama courts. We hold that the trial court's finding that Nettles's confession was voluntary and admissible based on its adoption of the findings and conclusions of the first trial court is correct. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); O'Shields v. State, 689 So.2d 227, 230 (Ala.Cr.App.1996). *632 The judgment of the circuit court is affirmed. AFFIRMED. LONG, P.J., and McMILLAN, BROWN, and BASCHAB, JJ., concur. NOTES [1] Because the trial court considered the issue already settled by the first trial court, we must hold for another day the question whether it could have reached back to the first trial and considered the testimony of Nettles at that hearing and then adopted the findings and conclusions of the first trial judge in making its own determination as to the voluntariness of the confession. See Bass v. State, 626 S.W.2d 769, 774 (Tex.Crim.App. 1982).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2277 DAVID HENRY ROGERS, Plaintiff – Appellant, v. R. S. BURKE, JR. as Agent for the U.S. Veterans Administration, personally and individually; U.S. VETERANS ADMINISTRATION, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cv-00068-FL) Submitted: May 20, 2010 Decided: May 24, 2010 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. David Henry Rogers, Appellant Pro Se. Edward D. Gray, Assistant United States Attorney, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Henry Rogers appeals the district court’s order dismissing his claims of “malfeasance” and intentional infliction of emotional distress against the Veterans’ Administration and one of its officials. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rogers v. Burke, No. 5:09-cv-00068-FL (E.D.N.C. Nov. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

699 N.W.2d 704 (2005) 473 Mich. 881-886 People v. St. Pierre. No. 127957. Supreme Court of Michigan. July 26, 2005. SC: 127957, COA: 258855. On order of the Court, the application for leave to appeal the December 27, 2004 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

(Slip Opinion) OCTOBER TERM, 2011 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MILLER v. ALABAMA CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA No. 10–9646. Argued March 20, 2012—Decided June 25, 2012* In each of these cases, a 14-year-old was convicted of murder and sen- tenced to a mandatory term of life imprisonment without the possibil- ity of parole. In No. 10−9647, petitioner Jackson accompanied two other boys to a video store to commit a robbery; on the way to the store, he learned that one of the boys was carrying a shotgun. Jack- son stayed outside the store for most of the robbery, but after he en- tered, one of his co-conspirators shot and killed the store clerk. Ar- kansas charged Jackson as an adult with capital felony murder and aggravated robbery, and a jury convicted him of both crimes. The trial court imposed a statutorily mandated sentence of life imprison- ment without the possibility of parole. Jackson filed a state habeas petition, arguing that a mandatory life-without-parole term for a 14- year-old violates the Eighth Amendment. Disagreeing, the court granted the State’s motion to dismiss. The Arkansas Supreme Court affirmed. In No. 10−9646, petitioner Miller, along with a friend, beat Miller’s neighbor and set fire to his trailer after an evening of drinking and drug use. The neighbor died. Miller was initially charged as a juve- nile, but his case was removed to adult court, where he was charged with murder in the course of arson. A jury found Miller guilty, and the trial court imposed a statutorily mandated punishment of life without parole. The Alabama Court of Criminal Appeals affirmed, holding that Miller’s sentence was not overly harsh when compared to his crime, and that its mandatory nature was permissible under —————— * Together with No. 10–9647, Jackson v. Hobbs, Director, Arkansas Department of Correction, on certiorari to the Supreme Court of Arkan- sas. 2 MILLER v. ALABAMA Syllabus the Eighth Amendment. Held: The Eighth Amendment forbids a sentencing scheme that man- dates life in prison without possibility of parole for juvenile homicide offenders. Pp. 6−27. (a) The Eighth Amendment’s prohibition of cruel and unusual pun- ishment “guarantees individuals the right not to be subjected to ex- cessive sanctions.” Roper v. Simmons, 543 U. S. 551, 560. That right “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. Ibid. Two strands of precedent reflecting the concern with proportionate punishment come together here. The first has adopted categorical bans on sentencing practices based on mismatches between the cul- pability of a class of offenders and the severity of a penalty. See, e.g., Kennedy v. Louisiana, 554 U. S. 407. Several cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper v. Simmons held that the Eighth Amend- ment bars capital punishment for children, and Graham v. Florida, 560 U. S. ___, concluded that the Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted of a non- homicide offense. Graham further likened life without parole for ju- veniles to the death penalty, thereby evoking a second line of cases. In those decisions, this Court has required sentencing authorities to consider the characteristics of a defendant and the details of his of- fense before sentencing him to death. See, e.g., Woodson v. North Carolina, 428 U. S. 280 (plurality opinion). Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life without parole for juveniles violates the Eighth Amendment. As to the first set of cases: Roper and Graham establish that chil- dren are constitutionally different from adults for sentencing purpos- es. Their “ ‘lack of maturity’ ” and “ ‘underdeveloped sense of respon- sibility’ ” lead to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U. S., at 569. They “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And because a child’s character is not as “well formed” as an adult’s, his traits are “less fixed” and his actions are less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570. Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harsh- est sentences on juvenile offenders, even when they commit terrible crimes. While Graham’s flat ban on life without parole was for nonhomi-  Cite as: 567 U. S. ____ (2012) 3 Syllabus cide crimes, nothing that Graham said about children is crime- specific. Thus, its reasoning implicates any life-without-parole sen- tence for a juvenile, even as its categorical bar relates only to non- homicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarcera- tion without the possibility of parole. The mandatory penalty schemes at issue here, however, prevent the sentencer from consider- ing youth and from assessing whether the law’s harshest term of im- prisonment proportionately punishes a juvenile offender. This con- travenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. Graham also likened life-without-parole sentences for juveniles to the death penalty. That decision recognized that life-without-parole sentences “share some characteristics with death sentences that are shared by no other sentences.” 560 U. S., at ___. And it treated life without parole for juveniles like this Court’s cases treat the death penalty, imposing a categorical bar on its imposition for nonhomicide offenses. By likening life-without-parole sentences for juveniles to the death penalty, Graham makes relevant this Court’s cases de- manding individualized sentencing in capital cases. In particular, those cases have emphasized that sentencers must be able to consid- er the mitigating qualities of youth. In light of Graham’s reasoning, these decisions also show the flaws of imposing mandatory life- without-parole sentences on juvenile homicide offenders. Pp. 6−17. (b) The counterarguments of Alabama and Arkansas are unpersua- sive. Pp. 18–27. (1) The States first contend that Harmelin v. Michigan, 501 U. S. 957, forecloses a holding that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Harmelin de- clined to extend the individualized sentencing requirement to non- capital cases “because of the qualitative difference between death and all other penalties.” Id., at 1006 (KENNEDY, J., concurring in part and concurring in judgment). But Harmelin had nothing to do with chil- dren, and did not purport to apply to juvenile offenders. Indeed, since Harmelin, this Court has held on multiple occasions that sen- tencing practices that are permissible for adults may not be so for children. See Roper, 543 U. S. 551; Graham, 560 U. S ___. The States next contend that mandatory life-without-parole terms for juveniles cannot be unconstitutional because 29 jurisdictions im- pose them on at least some children convicted of murder. In consid- ering categorical bars to the death penalty and life without parole, this Court asks as part of the analysis whether legislative enact- ments and actual sentencing practices show a national consensus 4 MILLER v. ALABAMA Syllabus against a sentence for a particular class of offenders. But where, as here, this Court does not categorically bar a penalty, but instead re- quires only that a sentencer follow a certain process, this Court has not scrutinized or relied on legislative enactments in the same way. See, e.g., Sumner v. Schuman, 483 U. S. 66. In any event, the “objective indicia of society’s standards,” Graham, 560 U. S., at ___, that the States offer do not distinguish these cases from others holding that a sentencing practice violates the Eighth Amendment. Fewer States impose mandatory life-without-parole sentences on juvenile homicide offenders than authorized the penalty (life-without-parole for nonhomicide offenders) that this Court invali- dated in Graham. And as Graham and Thompson v. Oklahoma, 487 U. S. 815, explain, simply counting legislative enactments can pre- sent a distorted view. In those cases, as here, the relevant penalty applied to juveniles based on two separate provisions: One allowed the transfer of certain juvenile offenders to adult court, while another set out penalties for any and all individuals tried there. In those cir- cumstances, this Court reasoned, it was impossible to say whether a legislature had endorsed a given penalty for children (or would do so if presented with the choice). The same is true here. Pp. 18–25. (2) The States next argue that courts and prosecutors suffi- ciently consider a juvenile defendant’s age, as well as his background and the circumstances of his crime, when deciding whether to try him as an adult. But this argument ignores that many States use manda- tory transfer systems. In addition, some lodge the decision in the hands of the prosecutors, rather than courts. And even where judges have transfer-stage discretion, it has limited utility, because the deci- sionmaker typically will have only partial information about the child or the circumstances of his offense. Finally, because of the limited sentencing options in some juvenile courts, the transfer decision may present a choice between a light sentence as a juvenile and standard sentencing as an adult. It cannot substitute for discretion at post- trial sentencing. Pp. 25−27. No. 10−9646, 63 So. 3d 676, and No. 10−9647, 2011 Ark. 49, ___ S. W. 3d ___, reversed and remanded. KAGAN, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. BREYER, J., filed a con- curring opinion, in which SOTOMAYOR, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.  Cite as: 567 U. S. ____ (2012) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–9646 and 10–9647 _________________ EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS [June 25, 2012] JUSTICE KAGAN delivered the opinion of the Court. The two 14-year-old offenders in these cases were convict- ed of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentenc- ing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, 2 MILLER v. ALABAMA Opinion of the Court ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amend- ment’s prohibition on “cruel and unusual punishments.” I A In November 1999, petitioner Kuntrell Jackson, then 14 years old, and two other boys decided to rob a video store. En route to the store, Jackson learned that one of the boys, Derrick Shields, was carrying a sawed-off shotgun in his coat sleeve. Jackson decided to stay outside when the two other boys entered the store. Inside, Shields pointed the gun at the store clerk, Laurie Troup, and demanded that she “give up the money.” Jackson v. State, 359 Ark. 87, 89, 194 S. W. 3d 757, 759 (2004) (internal quotation marks omitted). Troup refused. A few moments later, Jackson went into the store to find Shields continuing to demand money. At trial, the parties disputed whether Jackson warned Troup that “[w]e ain’t playin’,” or instead told his friends, “I thought you all was playin’.” Id., at 91, 194 S. W. 3d, at 760 (internal quotation marks omitted). When Troup threatened to call the police, Shields shot and killed her. The three boys fled empty-handed. See id., at 89–92, 194 S. W. 3d, at 758–760. Arkansas law gives prosecutors discretion to charge 14- year-olds as adults when they are alleged to have commit- ted certain serious offenses. See Ark. Code Ann. §9–27– 318(c)(2) (1998). The prosecutor here exercised that au- thority by charging Jackson with capital felony murder and aggravated robbery. Jackson moved to transfer the case to juvenile court, but after considering the alleged facts of the crime, a psychiatrist’s examination, and Jack- son’s juvenile arrest history (shoplifting and several inci-  Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court dents of car theft), the trial court denied the motion, and an appellate court affirmed. See Jackson v. State, No. 02–535, 2003 WL 193412, *1 (Ark. App., Jan. 29, 2003); §§9–27–318(d), (e). A jury later convicted Jackson of both crimes. Noting that “in view of [the] verdict, there’s only one possible punishment,” the judge sentenced Jackson to life without parole. App. in No. 10–9647, p. 55 (hereinaf- ter Jackson App.); see Ark. Code Ann. §5–4–104(b) (1997) (“A defendant convicted of capital murder or treason shall be sentenced to death or life imprisonment without pa- role”).1 Jackson did not challenge the sentence on appeal, and the Arkansas Supreme Court affirmed the convic- tions. See 359 Ark. 87, 194 S. W. 3d 757. Following Roper v. Simmons, 543 U. S. 551 (2005), in which this Court invalidated the death penalty for all juvenile offenders under the age of 18, Jackson filed a state petition for habeas corpus. He argued, based on Roper’s reasoning, that a mandatory sentence of life with- out parole for a 14-year-old also violates the Eighth Amendment. The circuit court rejected that argument and granted the State’s motion to dismiss. See Jackson App. 72–76. While that ruling was on appeal, this Court held in Graham v. Florida that life without parole violates the Eighth Amendment when imposed on juvenile nonhomi- cide offenders. After the parties filed briefs addressing that decision, the Arkansas Supreme Court affirmed the dismissal of Jackson’s petition. See Jackson v. Norris, 2011 Ark. 49, ___ S. W. 3d ___. The majority found that Roper and Graham were “narrowly tailored” to their con- texts: “death-penalty cases involving a juvenile and life- imprisonment-without-parole cases for nonhomicide of- —————— 1 Jackson was ineligible for the death penalty under Thompson v. Oklahoma, 487 U. S. 815 (1988) (plurality opinion), which held that capital punishment of offenders under the age of 16 violates the Eighth Amendment. 4 MILLER v. ALABAMA Opinion of the Court fenses involving a juvenile.” Id., at 5, ___ S. W. 3d, at ___. Two justices dissented. They noted that Jackson was not the shooter and that “any evidence of intent to kill was severely lacking.” Id., at 10, ___ S. W. 3d, at ___ (Danielson, J., dissenting). And they argued that Jack- son’s mandatory sentence ran afoul of Graham’s admoni- tion that “ ‘[a]n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.’ ” Id., at 10–11, ___ S. W. 3d, at ___ (quoting Gra- ham, 560 U. S., at ___ (slip op., at 25)).2 B Like Jackson, petitioner Evan Miller was 14 years old at the time of his crime. Miller had by then been in and out of foster care because his mother suffered from alcoholism and drug addiction and his stepfather abused him. Miller, too, regularly used drugs and alcohol; and he had at- tempted suicide four times, the first when he was six years old. See E. J. M. v. State, 928 So. 2d 1077, 1081 (Ala. Crim. App. 2004) (Cobb, J., concurring in result); App. in No. 10–9646, pp. 26–28 (hereinafter Miller App.). One night in 2003, Miller was at home with a friend, Colby Smith, when a neighbor, Cole Cannon, came to make a drug deal with Miller’s mother. See 6 Record in No. 10–9646, p. 1004. The two boys followed Cannon back to his trailer, where all three smoked marijuana and —————— 2 For the first time in this Court, Arkansas contends that Jackson’s sentence was not mandatory. On its view, state law then in effect allowed the trial judge to suspend the life-without-parole sentence and commit Jackson to the Department of Human Services for a “training- school program,” at the end of which he could be placed on probation. Brief for Respondent in No. 10–9647, pp. 36–37 (hereinafter Arkansas Brief) (citing Ark. Code Ann. §12–28–403(b)(2) (1999)). But Arkansas never raised that objection in the state courts, and they treated Jack- son’s sentence as mandatory. We abide by that interpretation of state law. See, e.g., Mullaney v. Wilbur, 421 U. S. 684, 690–691 (1975).  Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court played drinking games. When Cannon passed out, Miller stole his wallet, splitting about $300 with Smith. Miller then tried to put the wallet back in Cannon’s pocket, but Cannon awoke and grabbed Miller by the throat. Smith hit Cannon with a nearby baseball bat, and once released, Miller grabbed the bat and repeatedly struck Cannon with it. Miller placed a sheet over Cannon’s head, told him “ ‘I am God, I’ve come to take your life,’ ” and delivered one more blow. Miller v. State, 63 So. 3d 676, 689 (Ala. Crim. App. 2010). The boys then retreated to Miller’s trailer, but soon decided to return to Cannon’s to cover up evidence of their crime. Once there, they lit two fires. Cannon even- tually died from his injuries and smoke inhalation. See id., at 683–685, 689. Alabama law required that Miller initially be charged as a juvenile, but allowed the District Attorney to seek re- moval of the case to adult court. See Ala. Code §12–15–34 (1977). The D. A. did so, and the juvenile court agreed to the transfer after a hearing. Citing the nature of the crime, Miller’s “mental maturity,” and his prior juvenile offenses (truancy and “criminal mischief”), the Alabama Court of Criminal Appeals affirmed. E. J. M. v. State, No. CR–03–0915, pp. 5–7 (Aug. 27, 2004) (unpublished memo- randum).3 The State accordingly charged Miller as an adult with murder in the course of arson. That crime (like capital murder in Arkansas) carries a mandatory mini- —————— 3 The Court of Criminal Appeals also affirmed the juvenile court’s denial of Miller’s request for funds to hire his own mental expert for the transfer hearing. The court pointed out that under governing Alabama Supreme Court precedent, “the procedural requirements of a trial do not ordinarily apply” to those hearings. E. J. M. v. State, 928 So. 2d 1077 (2004) (Cobb, J., concurring in result) (internal quotation marks omitted). In a separate opinion, Judge Cobb agreed on the reigning precedent, but urged the State Supreme Court to revisit the question in light of transfer hearings’ importance. See id., at 1081 (“[A]lthough later mental evaluation as an adult affords some semblance of proce- dural due process, it is, in effect, too little, too late”). 6 MILLER v. ALABAMA Opinion of the Court mum punishment of life without parole. See Ala. Code §§13A–5–40(9), 13A–6–2(c) (1982). Relying in significant part on testimony from Smith, who had pleaded to a lesser offense, a jury found Miller guilty. He was therefore sentenced to life without the possibility of parole. The Alabama Court of Criminal Appeals affirmed, ruling that life without parole was “not overly harsh when compared to the crime” and that the mandatory nature of the sentencing scheme was permissi- ble under the Eighth Amendment. 63 So. 3d, at 690; see id., at 686–691. The Alabama Supreme Court denied review. We granted certiorari in both cases, see 565 U. S. ___ (2011) (No. 10–9646); 565 U. S. ___ (2011) (No. 10–9647), and now reverse. II The Eighth Amendment’s prohibition of cruel and un- usual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” Roper, 543 U. S., at 560. That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. Ibid. (quoting Weems v. United States, 217 U. S. 349, 367 (1910)). As we noted the last time we consid- ered life-without-parole sentences imposed on juveniles, “[t]he concept of proportionality is central to the Eighth Amendment.” Graham, 560 U. S., at ___ (slip op., at 8). And we view that concept less through a historical prism than according to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). The cases before us implicate two strands of precedent reflecting our concern with proportionate punishment. The first has adopted categorical bans on sentencing  Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See Graham, 560 U. S., at ___ (slip op., at 9–10) (listing cases). So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana, 554 U. S. 407 (2008); Atkins v. Virginia, 536 U. S. 304 (2002). Sev- eral of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomi- cide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of our precedents. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the charac- teristics of a defendant and the details of his offense before sentencing him to death. See Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion); Lockett v. Ohio, 438 U. S. 586 (1978). Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.4 —————— 4 The three dissenting opinions here each take issue with some or all of those precedents. See post, at 5–6 (opinion of ROBERTS, C. J.); post, at 1–6 (opinion of THOMAS, J.); post, at 1–4 (opinion of ALITO, J.). That is not surprising: their authors (and joiner) each dissented from some or all of those precedents. See, e.g., Kennedy, 554 U. S., at 447 (ALITO, J., joined by ROBERTS, C. J., and SCALIA and THOMAS, JJ., dissenting); Roper, 543 U. S., at 607 (SCALIA, J., joined by THOMAS, J., dissenting); Atkins, 536 U. S., at 337 (SCALIA, J., joined by THOMAS, J., dissent- ing); Thompson, 487 U. S., at 859 ((SCALIA, J., dissenting); Graham v. Collins, 506 U. S. 461, 487 (1993) (THOMAS, J., concurring) (contending that Woodson was wrongly decided). In particular, each disagreed with 8 MILLER v. ALABAMA Opinion of the Court To start with the first set of cases: Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, “they are less deserving of the most severe punishments.” Graham, 560 U. S., at ___ (slip op., at 17). Those cases relied on three significant gaps between juve- niles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U. S., at 569. Second, children “are more vulner- able . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570. Our decisions rested not only on common sense—on what “any parent knows”—but on science and social sci- ence as well. Id., at 569. In Roper, we cited studies showing that “‘[o]nly a relatively small proportion of adoles- cents’ ” who engage in illegal activity “ ‘develop entrenched patterns of problem behavior.’ ” Id., at 570 (quoting Stein- berg & Scott, Less Guilty by Reason of Adolescence: De- velopmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, —————— the majority’s reasoning in Graham, which is the foundation stone of our analysis. See Graham, 560 U. S., at ___ (ROBERTS, C. J., concurring in judgment) (slip op., at 1); id., at ___ (THOMAS, J., joined by SCALIA and ALITO, JJ., dissenting) (slip op., at 1–25); id., at ___ (ALITO, J., dissenting) (slip op., at 1). While the dissents seek to relitigate old Eighth Amendment battles, repeating many arguments this Court has previously (and often) rejected, we apply the logic of Roper, Graham, and our individualized sentencing decisions to these two cases.  Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court 1014 (2003)). And in Graham, we noted that “develop- ments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, in “parts of the brain involved in behavior control.” 560 U. S., at ___ (slip op., at 17).5 We reasoned that those findings—of transient rashness, pro- clivity for risk, and inability to assess consequences—both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological devel- opment occurs, his “ ‘deficiencies will be reformed.’ ” Id., at ___ (slip op., at 18) (quoting Roper, 543 U. S., at 570). Roper and Graham emphasized that the distinctive at- tributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not as strong with a minor as with an adult.’ ” Graham, 560 U. S., at ___ (slip op., at 20–21) (quoting Tison v. Arizona, 481 U. S. 137, 149 (1987); Roper, 543 U. S., at 571). Nor can deter- rence do the work in this context, because “ ‘the same characteristics that render juveniles less culpable than adults’ ”—their immaturity, recklessness, and impetuos- ity—make them less likely to consider potential punish- —————— 5 The evidence presented to us in these cases indicates that the sci- ence and social science supporting Roper’s and Graham’s conclusions have become even stronger. See, e.g., Brief for American Psychologi- cal Association et al. as Amici Curiae 3 (“[A]n ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Court’s conclusions”); id., at 4 (“It is in- creasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance”); Brief for J. Lawrence Aber et al. as Amici Curiae 12–28 (discussing post-Graham studies); id., at 26–27 (“Numerous studies post-Graham indicate that exposure to deviant peers leads to increased deviant behavior and is a consistent predictor of adolescent delinquency” (footnote omitted)). 10 MILLER v. ALABAMA Opinion of the Court ment. Graham, 560 U. S., at ___ (slip op., at 21) (quoting Roper, 543 U. S., at 571). Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a “juvenile offender forever will be a danger to society” would require “mak[ing] a judgment that [he] is incorrigible”—but “ ‘incorrigibility is inconsistent with youth.’ ” 560 U. S., at ___ (slip op., at 22) (quoting Work- man v. Commonwealth, 429 S. W. 2d 374, 378 (Ky. App. 1968)). And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” Graham, 560 U. S., at ___ (slip op., at 23). It reflects “an irrevocable judgment about [an offender’s] value and place in society,” at odds with a child’s capacity for change. Ibid. Graham concluded from this analysis that life-without- parole sentences, like capital punishment, may violate the Eighth Amendment when imposed on children. To be sure, Graham’s flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distin- guish those offenses from murder, based on both moral culpability and consequential harm. See id., at ___ (slip op., at 18). But none of what it said about children—about their distinctive (and transitory) mental traits and en- vironmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same de- gree, when (as in both cases here) a botched robbery turns into a killing. So Graham’s reasoning implicates any life- without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incar- ceration without the possibility of parole. In the circum- stances there, juvenile status precluded a life-without- parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the charac- teristics of youth, and the way they weaken rationales for  Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court punishment, can render a life-without-parole sentence disproportionate. Cf. id., at ___ (slip op., at 20–23) (gener- ally doubting the penological justifications for imposing life without parole on juveniles). “An offender’s age,” we made clear in Graham, “is relevant to the Eighth Amend- ment,” and so “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Id., at ___ (slip op., at 25). THE CHIEF JUSTICE, concurring in the judgment, made a similar point. Al- though rejecting a categorical bar on life-without-parole sentences for juveniles, he acknowledged “Roper’s conclu- sion that juveniles are typically less culpable than adults,” and accordingly wrote that “an offender’s juvenile status can play a central role” in considering a sentence’s propor- tionality. Id., at ___ (slip op., at 5–6); see id., at ___ (slip op., at 12) (Graham’s “youth is one factor, among others, that should be considered in deciding whether his pun- ishment was unconstitutionally excessive”).6 But the mandatory penalty schemes at issue here pre- vent the sentencer from taking account of these central considerations. By removing youth from the balance— by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s —————— 6 In discussing Graham, the dissents essentially ignore all of this reasoning. See post, at 3–6 (opinion of ROBERTS, C. J.); post, at 4 (opinion of ALITO, J.). Indeed, THE CHIEF JUSTICE ignores the points made in his own concurring opinion. The only part of Graham that the dissents see fit to note is the distinction it drew between homicide and nonhomicide offenses. See post, at 7–8 (opinion of ROBERTS, C. J.); post, at 4 (opinion of ALITO, J.). But contrary to the dissents’ charge, our decision today retains that distinction: Graham established one rule (a flat ban) for nonhomicide offenses, while we set out a different one (individualized sentencing) for homicide offenses. 12 MILLER v. ALABAMA Opinion of the Court most severe penalties on juvenile offenders cannot proceed as though they were not children. And Graham makes plain these mandatory schemes’ defects in another way: by likening life-without-parole sentences imposed on juveniles to the death penalty itself. Life-without-parole terms, the Court wrote, “share some characteristics with death sentences that are shared by no other sentences.” 560 U. S., at ___ (slip op., at 19). Im- prisoning an offender until he dies alters the remainder of his life “by a forfeiture that is irrevocable.” Ibid. (citing Solem v. Helm, 463 U. S. 277, 300–301 (1983)). And this lengthiest possible incarceration is an “especially harsh punishment for a juvenile,” because he will almost inevi- tably serve “more years and a greater percentage of his life in prison than an adult offender.” Graham, 560 U. S., at ___ (slip op., at 19–20). The penalty when imposed on a teenager, as compared with an older person, is therefore “the same . . . in name only.” Id., at ___ (slip op., at 20). All of that suggested a distinctive set of legal rules: In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment. We imposed a categorical ban on the sentence’s use, in a way unprecedented for a term of imprisonment. See id., at ___ (slip op., at 9); id., at ___ (THOMAS, J., dissenting) (slip op., at 7) (“For the first time in its history, the Court declares an entire class of offend- ers immune from a noncapital sentence using the categori- cal approach it previously reserved for death penalty cases alone”). And the bar we adopted mirrored a proscription first established in the death penalty context—that the punishment cannot be imposed for any nonhomicide crimes against individuals. See Kennedy, 554 U. S. 407; Coker v. Georgia, 433 U. S. 584 (1977). That correspondence—Graham’s “[t]reat[ment] [of] juvenile life sentences as analogous to capital punish- ment,” 560 U. S., at ___ (ROBERTS, C. J., concurring in  Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court judgment) (slip op., at 5)—makes relevant here a second line of our precedents, demanding individualized sentenc- ing when imposing the death penalty. In Woodson, 428 U. S. 280, we held that a statute mandating a death sen- tence for first-degree murder violated the Eighth Amend- ment. We thought the mandatory scheme flawed because it gave no significance to “the character and record of the individual offender or the circumstances” of the offense, and “exclud[ed] from consideration . . . the possibility of compassionate or mitigating factors.” Id., at 304. Subse- quent decisions have elaborated on the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating fac- tors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses. See, e.g., Sumner v. Shuman, 483 U. S. 66, 74– 76 (1987); Eddings v. Oklahoma, 455 U. S. 104, 110–112 (1982); Lockett, 438 U. S., at 597–609 (plurality opinion). Of special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the “mitigat- ing qualities of youth.” Johnson v. Texas, 509 U. S. 350, 367 (1993). Everything we said in Roper and Graham about that stage of life also appears in these decisions. As we observed, “youth is more than a chronological fact.” Eddings, 455 U. S., at 115. It is a time of immaturity, ir- responsibility, “impetuousness[,] and recklessness.” John- son, 509 U. S., at 368. It is a moment and “condition of life when a person may be most susceptible to influence and to psychological damage.” Eddings, 455 U. S., at 115. And its “signature qualities” are all “transient.” Johnson, 509 U. S., at 368. Eddings is especially on point. There, a 16-year-old shot a police officer point-blank and killed him. We invalidated his death sentence because the judge did not consider evidence of his neglectful and violent family background (including his mother’s drug abuse and his father’s physical abuse) and his emotional disturbance. 14 MILLER v. ALABAMA Opinion of the Court We found that evidence “particularly relevant”—more so than it would have been in the case of an adult offender. 455 U. S., at 115. We held: “[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered” in assessing his culpability. Id., at 116. In light of Graham’s reasoning, these decisions too show the flaws of imposing mandatory life-without-parole sen- tences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sen- tence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14- year-olds) will receive the same sentence as the vast ma- jority of adults committing similar homicide offenses—but really, as Graham noted, a greater sentence than those adults will serve.7 In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison. So Graham and Roper and our individualized sentenc- —————— 7 Although adults are subject as well to the death penalty in many jurisdictions, very few offenders actually receive that sentence. See, e.g., Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts 2006— Statistical Tables, p. 28 (Table 4.4) (rev. Nov. 22, 2010). So in practice, the sentencing schemes at issue here result in juvenile homicide offenders receiving the same nominal punishment as almost all adults, even though the two classes differ significantly in moral culpability and capacity for change.  Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court ing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and conse- quences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how bru- tal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U. S., at ___ (slip op., at 27) (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U. S. ___, ___ (2011) (slip op., at 5–6) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. Both cases before us illustrate the problem. Take Jack- son’s first. As noted earlier, Jackson did not fire the bullet that killed Laurie Troup; nor did the State argue that he intended her death. Jackson’s conviction was instead based on an aiding-and-abetting theory; and the appellate court affirmed the verdict only because the jury could have believed that when Jackson entered the store, he warned Troup that “[w]e ain’t playin’,” rather than told his friends that “I thought you all was playin’.” See 359 Ark., at 90–92, 194 S. W. 3d, at 759–760; supra, at 2. To be sure, Jackson learned on the way to the video store that his 16 MILLER v. ALABAMA Opinion of the Court friend Shields was carrying a gun, but his age could well have affected his calculation of the risk that posed, as well as his willingness to walk away at that point. All these circumstances go to Jackson’s culpability for the offense. See Graham, 560 U. S., at ___ (slip op., at 18) (“[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability”). And so too does Jackson’s family background and immersion in violence: Both his mother and his grandmother had previously shot other individuals. See Record in No. 10–9647, pp. 80–82. At the least, a sen- tencer should look at such facts before depriving a 14- year-old of any prospect of release from prison. That is true also in Miller’s case. No one can doubt that he and Smith committed a vicious murder. But they did it when high on drugs and alcohol consumed with the adult victim. And if ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here. Miller’s stepfather physically abused him; his alco- holic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten. See 928 So. 2d, at 1081 (Cobb, J., concurring in result); Miller App. 26–28; supra, at 4. Nonetheless, Miller’s past criminal history was limited— two instances of truancy and one of “second-degree crimi- nal mischief.” No. CR–03–0915, at 6 (unpublished memo- randum). That Miller deserved severe punishment for killing Cole Cannon is beyond question. But once again, a sentencer needed to examine all these circumstances before concluding that life without any possibility of parole was the appropriate penalty. We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U. S., at ___ (slip op., at 24) (“A State is not required  Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demon- strated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not con- sider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile of- fender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U. S., at 573; Graham, 560 U. S., at ___ (slip op., at 17). Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences coun- sel against irrevocably sentencing them to a lifetime in prison.8 —————— 8 Given our holding, and the dissents’ competing position, we see a certain irony in their repeated references to 17-year-olds who have committed the “most heinous” offenses, and their comparison of those defendants to the 14-year-olds here. See post, at 2 (opinion of ROBERTS, C. J.) (noting the “17-year old [who] is convicted of deliberately murder- ing an innocent victim”); post, at 3 (“the most heinous murders”); post, at 7 (“the worst types of murder”); post, at 5 (opinion of ALITO, J.) (warning the reader not to be “confused by the particulars” of these two cases); post, at 1 (discussing the “171⁄2-year-old who sets off a bomb in a crowded mall”). Our holding requires factfinders to attend to exactly such circumstances—to take into account the differences among de- 18 MILLER v. ALABAMA Opinion of the Court III Alabama and Arkansas offer two kinds of arguments against requiring individualized consideration before sen- tencing a juvenile to life imprisonment without possi- bility of parole. The States (along with the dissents) first contend that the rule we adopt conflicts with aspects of our Eighth Amendment caselaw. And they next assert that the rule is unnecessary because individualized cir- cumstances come into play in deciding whether to try a juvenile offender as an adult. We think the States are wrong on both counts. A The States (along with JUSTICE THOMAS) first claim that Harmelin v. Michigan, 501 U. S. 957 (1991), precludes our holding. The defendant in Harmelin was sentenced to a mandatory life-without-parole term for possessing more than 650 grams of cocaine. The Court upheld that pen- alty, reasoning that “a sentence which is not otherwise cruel and unusual” does not “becom[e] so simply because it is ‘mandatory.’ ” Id., at 995. We recognized that a different rule, requiring individualized sentencing, applied in the death penalty context. But we refused to extend that command to noncapital cases “because of the qualitative difference between death and all other penalties.” Ibid.; see id., at 1006 (KENNEDY, J., concurring in part and concurring in judgment). According to Alabama, invali- dating the mandatory imposition of life-without-parole terms on juveniles “would effectively overrule Harmelin.” Brief for Respondent in No. 10–9646, p. 59 (hereinafter Alabama Brief); see Arkansas Brief 39. We think that argument myopic. Harmelin had nothing to do with children and did not purport to apply its hold- —————— fendants and crimes. By contrast, the sentencing schemes that the dissents find permissible altogether preclude considering these factors.  Cite as: 567 U. S. ____ (2012) 19 Opinion of the Court ing to the sentencing of juvenile offenders. We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children. Capital punishment, our decisions hold, generally comports with the Eighth Amendment—except it cannot be imposed on children. See Roper, 543 U. S. 551; Thompson, 487 U. S. 815. So too, life without parole is permissible for nonhom- icide offenses—except, once again, for children. See Gra- ham, 560 U. S., at ___ (slip op., at 24). Nor are these sentencing decisions an oddity in the law. To the contrary, “ ‘[o]ur history is replete with laws and judicial recogni- tion’ that children cannot be viewed simply as miniature adults.” J. D. B., 564 U. S., at ___ (slip op., at 10–11) (quoting Eddings, 455 U. S., at 115–116, citing examples from criminal, property, contract, and tort law). So if (as Harmelin recognized) “death is different,” children are different too. Indeed, it is the odd legal rule that does not have some form of exception for children. In that context, it is no surprise that the law relating to society’s harshest punishments recognizes such a distinction. Cf. Graham, 560 U. S., at ___ (ROBERTS, C. J., concurring in judgment) (slip op., at 7) (“Graham’s age places him in a significantly different category from the defendan[t] in . . . Harmelin”). Our ruling thus neither overrules nor undermines nor con- flicts with Harmelin. Alabama and Arkansas (along with THE CHIEF JUS- TICE and JUSTICE ALITO) next contend that because many States impose mandatory life-without-parole sentences on juveniles, we may not hold the practice unconstitutional. In considering categorical bars to the death penalty and life without parole, we ask as part of the analysis whether “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice,’ ” show a “na- tional consensus” against a sentence for a particular class of offenders. Graham, 560 U. S., at ___ (slip op., at 10) (quoting Roper, 543 U. S., at 563). By our count, 29 juris- 20 MILLER v. ALABAMA Opinion of the Court dictions (28 States and the Federal Government) make a life-without-parole term mandatory for some juveniles convicted of murder in adult court.9 The States argue that this number precludes our holding. We do not agree; indeed, we think the States’ argument on this score weaker than the one we rejected in Graham. For starters, the cases here are different from the typical one in which we have tallied legislative enactments. Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sen- tencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham, and our individualized sen- tencing cases that youth matters for purposes of meting out the law’s most serious punishments. When both of those circumstances have obtained in the past, we have not scrutinized or relied in the same way on legislative —————— 9 The States note that 26 States and the Federal Government make life without parole the mandatory (or mandatory minimum) punish- ment for some form of murder, and would apply the relevant provision to 14-year-olds (with many applying it to even younger defendants). See Alabama Brief 17–18. In addition, life without parole is mandatory for older juveniles in Louisiana (age 15 and up) and Texas (age 17). See La. Child. Code Ann., Arts. 857(A), (B) (West Supp. 2012); La. Rev. Stat. Ann. §§14:30(C), 14:30.1(B) (West Supp. 2012); Tex. Family Code Ann. §§51.02(2)(A), 54.02(a)(2)(A) (West Supp. 2011); Tex. Penal Code Ann. §12.31(a) (West 2011). In many of these jurisdictions, life without parole is the mandatory punishment only for aggravated forms of murder. That distinction makes no difference to our analysis. We have consistently held that limiting a mandatory death penalty law to particular kinds of murder cannot cure the law’s “constitutional vice” of disregarding the “circumstances of the particular offense and the character and propensities of the offender.” Roberts v. Louisiana, 428 U. S. 325, 333 (1976) (plurality opinion); see Sumner v. Shuman, 483 U. S. 66 (1987). The same analysis applies here, for the same reasons.  Cite as: 567 U. S. ____ (2012) 21 Opinion of the Court enactments. See, e.g., Sumner v. Shuman, 483 U. S. 66 (relying on Woodson’s logic to prohibit the mandatory death penalty for murderers already serving life without parole); Lockett, 438 U. S., at 602–608 (plurality opinion) (applying Woodson to require that judges and juries consider all mitigating evidence); Eddings, 455 U. S., at 110–117 (similar). We see no difference here. In any event, the “objective indicia” that the States offer do not distinguish these cases from others holding that a sentencing practice violates the Eighth Amendment. In Graham, we prohibited life-without-parole terms for juveniles committing nonhomicide offenses even though 39 jurisdictions permitted that sentence. See 560 U. S., at ___ (slip op., at 11). That is 10 more than impose life without parole on juveniles on a mandatory basis.10 And —————— 10 In assessing indicia of societal standards, Graham discussed “ac- tual sentencing practices” in addition to legislative enactments, noting how infrequently sentencers imposed the statutorily available penalty. 560 U. S., at ___ (slip op., at 11). Here, we consider the constitutional- ity of mandatory sentencing schemes—which by definition remove a judge’s or jury’s discretion—so no comparable gap between legislation and practice can exist. Rather than showing whether sentencers consider life without parole for juvenile homicide offenders appropriate, the number of juveniles serving this sentence, see post, at 1, 3–4 (ROBERTS, C. J., dissenting), merely reflects the number who have com- mitted homicide in mandatory-sentencing jurisdictions. For the same reason, THE CHIEF JUSTICE’s comparison of ratios in this case and Gra- ham carries little weight. He contrasts the number of mandatory life-without-parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, with “the corresponding number” of sentences in Graham (i.e., the number of life-without-parole sentences for juveniles who committed serious nonhomicide crimes, as compared to arrests for those crimes). Post, at 4. But because the mandatory nature of the sentences here necessarily makes them more common, THE CHIEF JUSTICE’s figures do not “correspon[d]” at all. The higher ratio is mostly a function of removing the sentencer’s discretion. Where mandatory sentencing does not itself account for the number of juveniles serving life-without-parole terms, the evidence we have of practice supports our holding. Fifteen jurisdictions make life without 22 MILLER v. ALABAMA Opinion of the Court in Atkins, Roper, and Thompson, we similarly banned the death penalty in circumstances in which “less than half ” of the “States that permit[ted] capital punishment (for whom the issue exist[ed])” had previously chosen to do so. Atkins, 536 U. S., at 342 (SCALIA, J., dissenting) (emphasis deleted); see id., at 313–315 (majority opinion); Roper, 543 U. S., at 564–565; Thompson, 487 U. S., at 826–827 (plu- rality opinion). So we are breaking no new ground in these cases.11 Graham and Thompson provide special guidance, be- cause they considered the same kind of statutes we do and —————— parole discretionary for juveniles. See Alabama Brief 25 (listing 12 States); Cal. Penal Code Ann. §190.5(b) (West 2008); Ind. Code §35–50– 2–3(b) (2011); N. M. Stat. §§31–18–13(B), 31–18–14, 31–18–15.2 (2010). According to available data, only about 15% of all juvenile life-without- parole sentences come from those 15 jurisdictions, while 85% come from the 29 mandatory ones. See Tr. of Oral Arg. in No. 10–9646, p. 19; Human Rights Watch, State Distribution of Youth Offenders Serv- ing Juvenile Life Without Parole (JLWOP), Oct. 2, 2009, online at http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offenders- serving-juvenile-life-without-parole (as visited June 21, 2012, and available in Clerk of Court’s case file). That figure indicates that when given the choice, sentencers impose life without parole on children relatively rarely. And contrary to THE CHIEF JUSTICE’s argument, see post, at 5, n. 2, we have held that when judges and juries do not often choose to impose a sentence, it at least should not be mandatory. See Woodson v. North Carolina, 428 U. S. 280, 295–296 (1976) (plurality opinion) (relying on the infrequency with which juries imposed the death penalty when given discretion to hold that its mandatory imposi- tion violates the Eighth Amendment). 11 In response, THE CHIEF JUSTICE complains: “To say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.” Post, at 5. To be clear: That description in no way resembles our opinion. We hold that the sentence violates the Eighth Amendment because, as we have exhaustively shown, it conflicts with the fundamental principles of Roper, Graham, and our individualized sentencing cases. We then show why the number of States imposing this punishment does not preclude our holding, and note how its mandatory nature (in however many States adopt it) makes use of actual sentencing numbers unilluminating.  Cite as: 567 U. S. ____ (2012) 23 Opinion of the Court explained why simply counting them would present a distorted view. Most jurisdictions authorized the death penalty or life without parole for juveniles only through the combination of two independent statutory provisions. One allowed the transfer of certain juvenile offenders to adult court, while another (often in a far-removed part of the code) set out the penalties for any and all individuals tried there. We reasoned that in those circumstances, it was impossible to say whether a legislature had endorsed a given penalty for children (or would do so if presented with the choice). In Thompson, we found that the statutes “t[old] us that the States consider 15-year-olds to be old enough to be tried in criminal court for serious crimes (or too old to be dealt with effectively in juvenile court), but t[old] us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders.” 487 U. S., at 826, n. 24 (plurality opinion) (emphasis deleted); see also id., at 850 (O’Connor, J., concurring in judgment); Roper, 543 U. S., at 596, n. (O’Connor, J., dissenting). And Graham echoed that reasoning: Although the confluence of state laws “ma[de] life without parole possible for some juvenile nonhomicide offenders,” it did not “justify a judgment” that many States actually “intended to subject such offenders” to those sentences. 560 U. S., at ___ (slip op., at 16).12 All that is just as true here. Almost all jurisdictions allow some juveniles to be tried in adult court for some —————— 12 THE CHIEF JUSTICE attempts to distinguish Graham on this point, arguing that there “the extreme rarity with which the sentence in question was imposed could suggest that legislatures did not really intend the inevitable result of the laws they passed.” Post, at 6. But neither Graham nor Thompson suggested such reasoning, presumably because the time frame makes it difficult to comprehend. Those cases considered what legislators intended when they enacted, at different moments, separate juvenile-transfer and life-without-parole provi- sions—by definition, before they knew or could know how many juve- nile life-without-parole sentences would result. 24 MILLER v. ALABAMA Opinion of the Court kinds of homicide. See Dept. of Justice, H. Snyder & M. Sickmund, Juvenile Offenders and Victims: 2006 National Report 110–114 (hereinafter 2006 National Report). But most States do not have separate penalty provisions for those juvenile offenders. Of the 29 jurisdictions mandat- ing life without parole for children, more than half do so by virtue of generally applicable penalty provisions, im- posing the sentence without regard to age.13 And indeed, some of those States set no minimum age for who may be transferred to adult court in the first instance, thus apply- ing life-without-parole mandates to children of any age— be it 17 or 14 or 10 or 6.14 As in Graham, we think that “underscores that the statutory eligibility of a juvenile offender for life without parole does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration.” 560 U. S., at ___ (slip —————— 13 See Ala. Code §§13A–5–45(f), 13A–6–2(c) (2005 and Cum. Supp. 2011); Ariz. Rev. Stat. Ann. §13–752 (West 2010), §41–1604.09(I) (West 2011); Conn. Gen. Stat. §53a–35a(1) (2011); Del. Code Ann., Tit. 11, §4209(a) (2007); Fla. Stat. §775.082(1) (2010); Haw. Rev. Stat. §706– 656(1) (1993); Idaho Code §18–4004 (Lexis 2004); Mich. Comp. Laws Ann. §791.234(6)(a) (West Cum. Supp. 2012); Minn. Stat. Ann. §§609.106, subd. 2 (West 2009); Neb. Rev. Stat. §29–2522 (2008); N. H. Rev. Stat. Ann. §630:1–a (West 2007); 18 Pa. Cons. Stat. §§1102(a), (b), 61 Pa. Cons. Stat. §6137(a)(1) (Supp. 2012); S. D. Codified Laws §22-6- 1(1) (2006), §24–15–4 (2004); Vt. Stat. Ann., Tit. 13, §2311(c)(2009); Wash. Rev. Code §10.95.030(1) (2010). 14 See Del. Code Ann., Tit. 10, §1010 (1999 and Cum. Supp. 2010), Tit. 11, §4209(a) (2007); Fla. Stat. §985.56 (2010), 775.082(1); Haw. Rev. Stat. §571–22(d) (1993), §706–656(1); Idaho Code §§20–508, 20–509 (Lexis Cum. Supp. 2012), §18–4004; Mich. Comp. Laws Ann. §712A.2d (West 2009), §791.234(6)(a); Neb. Rev. Stat. §§43–247, 29–2522 (2008); 42 Pa. Cons. Stat. §6355(e) (2000), 18 Pa. Cons. Stat. §1102. Other States set ages between 8 and 10 as the minimum for transfer, thus exposing those young children to mandatory life without parole. See S. D. Codified Laws §§26–8C–2, 26–11–4 (2004), §22–6–1 (age 10); Vt. Stat. Ann., Tit. 33, §5204 (2011 Cum. Supp.), Tit. 13, §2311(a) (2009) (age 10); Wash. Rev. Code §§9A.04.050, 13.40.110 (2010), §10.95.030 (age 8).  Cite as: 567 U. S. ____ (2012) 25 Opinion of the Court op., at 16). That Alabama and Arkansas can count to 29 by including these possibly (or probably) inadvertent legislative outcomes does not preclude our determination that mandatory life without parole for juveniles violates the Eighth Amendment. B Nor does the presence of discretion in some jurisdictions’ transfer statutes aid the States here. Alabama and Ar- kansas initially ignore that many States use mandatory transfer systems: A juvenile of a certain age who has committed a specified offense will be tried in adult court, regardless of any individualized circumstances. Of the 29 relevant jurisdictions, about half place at least some juvenile homicide offenders in adult court automatically, with no apparent opportunity to seek transfer to juvenile court.15 Moreover, several States at times lodge this deci- sion exclusively in the hands of prosecutors, again with no statutory mechanism for judicial reevaluation.16 And those “prosecutorial discretion laws are usually silent regarding standards, protocols, or appropriate considera- tions for decisionmaking.” Dept. of Justice, Office of Juve- nile Justice and Delinquency Prevention, P. Griffin, S. Addie, B. Adams, & K. Firestine, Trying Juveniles as —————— 15 See Ala. Code §12–15–204(a) (Cum. Supp. 2011); Ariz. Rev. Stat. Ann. §13–501(A) (West Cum. Supp. 2011); Conn. Gen. Stat. §46b–127 (2011); Ill. Comp. Stat. ch. 705, §§405/5–130(1)(a), (4)(a) (West 2010); La. Child. Code Ann., Art. 305(A) (West Cum. Supp. 2012); Mass. Gen. Laws, ch. 119, §74 (West 2010); Mich. Comp. Laws Ann. §712A.2(a) (West 2002); Minn. Stat. Ann. §260B.007, subd. 6(b) (West Cum. Supp. 2011), §260B.101, subd. 2 (West 2007); Mo. Rev. Stat. §§211.021(1), (2) (2011); N. C. Gen. Stat. Ann. §§7B–1501(7), 7B–1601(a), 7B–2200 (Lexis 2011); N. H. Rev. Stat. Ann. §169–B:2(IV) (West Cum. Supp. 2011), §169–B:3 (West 2010); Ohio Rev. Code Ann. §2152.12(A)(1)(a) (Lexis 2011); Tex. Family Code Ann. §51.02(2); Va. Code Ann. §§16.1– 241(A), 16.1–269.1(B), (D) (Lexis 2010). 16 Fla. Stat. Ann. §985.557(1) (West Supp. 2012); Mich. Comp. Laws Ann. §712A.2(a)(1); Va. Code Ann. §§16.1–241(A), 16.1–269.1(C), (D). 26 MILLER v. ALABAMA Opinion of the Court Adults: An Analysis of State Transfer Laws and Reporting 5 (2011). Even when States give transfer-stage discretion to judges, it has limited utility. First, the decisionmaker typically will have only partial information at this early, pretrial stage about either the child or the circumstances of his offense. Miller’s case provides an example. As noted earlier, see n. 3, supra, the juvenile court denied Miller’s request for his own mental-health expert at the transfer hearing, and the appeals court affirmed on the ground that Miller was not then entitled to the protections and services he would receive at trial. See No. CR–03– 0915, at 3–4 (unpublished memorandum). But by then, of course, the expert’s testimony could not change the sen- tence; whatever she said in mitigation, the mandatory life-without-parole prison term would kick in. The key mo- ment for the exercise of discretion is the transfer—and as Miller’s case shows, the judge often does not know then what she will learn, about the offender or the offense, over the course of the proceedings. Second and still more important, the question at trans- fer hearings may differ dramatically from the issue at a post-trial sentencing. Because many juvenile systems require that the offender be released at a particular age or after a certain number of years, transfer decisions often present a choice between extremes: light punishment as a child or standard sentencing as an adult (here, life without parole). In many States, for example, a child convicted in juvenile court must be released from custody by the age of 21. See, e.g., Ala. Code §12–15–117(a) (Cum. Supp. 2011); see generally 2006 National Report 103 (noting limitations on the length of juvenile court sanctions). Discretionary sentencing in adult court would provide different options: There, a judge or jury could choose, rather than a life- without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years. It is easy  Cite as: 567 U. S. ____ (2012) 27 Opinion of the Court to imagine a judge deciding that a minor deserves a (much) harsher sentence than he would receive in juvenile court, while still not thinking life-without-parole appro- priate. For that reason, the discretion available to a judge at the transfer stage cannot substitute for discretion at post-trial sentencing in adult court—and so cannot satisfy the Eighth Amendment. IV Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard- less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual pun- ishment. We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings not inconsistent with this opinion. It is so ordered.  Cite as: 567 U. S. ____ (2012) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–9646 and 10–9647 _________________ EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS [June 25, 2012] JUSTICE BREYER, with whom JUSTICE SOTOMAYOR joins, concurring. I join the Court’s opinion in full. I add that, if the State continues to seek a sentence of life without the possibil- ity of parole for Kuntrell Jackson, there will have to be a determination whether Jackson “kill[ed] or intend[ed] to kill” the robbery victim. Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 18). In my view, without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing Jackson to such a sentence, regardless of whether its application is mandatory or discretionary under state law. In Graham we said that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” Ibid. (em- phasis added). For one thing, “compared to adults, juve- niles have a lack of maturity and an underdeveloped sense 2 MILLER v. ALABAMA BREYER, J., concurring of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed.” Id., at ___ (slip op., at 17) (internal quotation marks omitted). See also ibid. (“[P]sychology and brain science continue to show fundamental differences between juvenile and adult minds” making their actions “less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults” (quoting Roper v. Simmons, 543 U. S. 551, 570 (2005))); ante, at 8–9. For another thing, Graham recognized that lack of intent normally dimin- ishes the “moral culpability” that attaches to the crime in question, making those that do not intend to kill “categori- cally less deserving of the most serious forms of punish- ment than are murderers.” 560 U. S., at ___ (slip op., at 18) (citing Kennedy v. Louisiana, 554 U. S. 407, 434–435 (2008); Enmund v. Florida, 458 U. S. 782 (1982); Tison v. Arizona, 481 U. S. 137 (1987)). And we concluded that, because of this “twice diminished moral culpability,” the Eighth Amendment forbids the imposition upon juveniles of a sentence of life without parole for nonhomicide cases. Graham, supra, at ___, ___ (slip op., at 18, 32). Given Graham’s reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. Quite simply, if the juvenile either kills or intends to kill the victim, he lacks “twice diminished” responsibility. But where the juvenile neither kills nor intends to kill, both features emphasized in Gra- ham as extenuating apply. The dissent itself here would permit life without parole for “juveniles who commit the worst types of murder,” post, at 7 (opinion of ROBERTS, C. J.), but that phrase does not readily fit the culpability of one who did not himself kill or intend to kill. I recognize that in the context of felony-murder cases, the question of intent is a complicated one. The felony-  Cite as: 567 U. S. ____ (2012) 3 BREYER, J., concurring murder doctrine traditionally attributes death caused in the course of a felony to all participants who intended to commit the felony, regardless of whether they killed or intended to kill. See 2 W. LaFave, Substantive Criminal Law §§14.5(a) and (c) (2d ed. 2003). This rule has been based on the idea of “transferred intent”; the defendant’s intent to commit the felony satisfies the intent to kill required for murder. See S. Kadish, S. Schulhofer, & C. Streiker, Criminal Law and Its Processes 439 (8th ed. 2007); 2 C. Torcia, Wharton’s Criminal Law §147 (15th ed. 1994). But in my opinion, this type of “transferred intent” is not sufficient to satisfy the intent to murder that could subject a juvenile to a sentence of life without parole. As an initial matter, this Court has made clear that this artificially constructed kind of intent does not count as intent for purposes of the Eighth Amendment. We do not rely on transferred intent in determining if an adult may receive the death penalty. Thus, the Constitution forbids imposing capital punishment upon an aider and abettor in a robbery, where that individual did not intend to kill and simply was “in the car by the side of the road . . . , waiting to help the robbers escape.” Enmund, supra, at 788. Cf. Tison, supra, at 157–158 (capital punishment permissi- ble for aider and abettor where kidnaping led to death because he was “actively involved” in every aspect of the kidnaping and his behavior showed “a reckless disregard for human life”). Given Graham, this holding applies to juvenile sentences of life without parole a fortiori. See ante, at 12–13. Indeed, even juveniles who meet the Tison standard of “reckless disregard” may not be eligible for life without parole. Rather, Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who “kill or intend to kill.” 560 U. S., at ___ (slip op., at 18). 4 MILLER v. ALABAMA BREYER, J., concurring Moreover, regardless of our law with respect to adults, there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill. At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dan- gerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. See 2 LaFave, supra, §14.5(c). Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively. Ante, at 8–9. Justice Frank- furter cautioned, “Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncrit- ically transferred to a determination of a State’s duty to- ward children.” May v. Anderson, 345 U. S. 528, 536 (1953) (concurring opinion). To apply the doctrine of transferred intent here, where the juvenile did not kill, to sentence a juvenile to life without parole would involve such “fallacious reasoning.” Ibid. This is, as far as I can tell, precisely the situation pres- ent in Kuntrell Jackson’s case. Jackson simply went along with older boys to rob a video store. On the way, he became aware that a confederate had a gun. He initially stayed outside the store, and went in briefly, saying some- thing like “We ain’t playin’ ” or “ ‘I thought you all was playin,’ ” before an older confederate shot and killed the store clerk. Jackson v. State, 359 Ark. 87, 91, 194 S. W. 3d 757, 760 (2004). Crucially, the jury found him guilty of first-degree murder under a statute that permitted them to convict if, Jackson “attempted to commit or committed an aggravated robbery, and, in the course of that of- fense, he, or an accomplice, caused [the clerk’s] death under circumstance manifesting extreme indifference to the value of human life.” Ibid. See Ark. Code Ann. §5–10– 101(a)(1) (1997); ante, at 15. Thus, to be found guilty, Jackson did not need to kill the clerk (it is conceded he did  Cite as: 567 U. S. ____ (2012) 5 BREYER, J., concurring not), nor did he need to have intent to kill or even “ex- treme indifference.” As long as one of the teenage accom- plices in the robbery acted with extreme indifference to the value of human life, Jackson could be convicted of capital murder. Ibid. The upshot is that Jackson, who did not kill the clerk, might not have intended to do so either. See Jackson v. Norris, 2011 Ark. 49, at 10, ___ S. W. 3d ___ (Danielson, J., dissenting) (“[A]ny evidence of [Jackson’s] intent to kill was severely lacking”). In that case, the Eighth Amend- ment simply forbids imposition of a life term without the possibility of parole. If, on remand, however, there is a finding that Jackson did intend to cause the clerk’s death, the question remains open whether the Eighth Amend- ment prohibits the imposition of life without parole upon a juvenile in those circumstances as well. Ante, at 17.  Cite as: 567 U. S. ____ (2012) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–9646 and 10–9647 _________________ EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS [June 25, 2012] CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting. Determining the appropriate sentence for a teenager con- victed of murder presents grave and challenging ques- tions of morality and social policy. Our role, however, is to apply the law, not to answer such questions. The perti- nent law here is the Eighth Amendment to the Constitu- tion, which prohibits “cruel and unusual punishments.” Today, the Court invokes that Amendment to ban a pun- ishment that the Court does not itself characterize as un- usual, and that could not plausibly be described as such. I therefore dissent. The parties agree that nearly 2,500 prisoners are pres- ently serving life sentences without the possibility of pa- role for murders they committed before the age of 18. Brief for Petitioner in No. 10–9647, p. 62, n. 80 (Jackson 2 MILLER v. ALABAMA ROBERTS, C. J., dissenting Brief ); Brief for Respondent in No. 10–9646, p. 30 (Ala- bama Brief ). The Court accepts that over 2,000 of those prisoners received that sentence because it was mandated by a legislature. Ante, at 22, n. 10. And it recognizes that the Federal Government and most States impose such mandatory sentences. Ante, at 19–20. Put simply, if a 17- year-old is convicted of deliberately murdering an innocent victim, it is not “unusual” for the murderer to receive a mandatory sentence of life without parole. That reality should preclude finding that mandatory life imprisonment for juvenile killers violates the Eighth Amendment. Our precedent supports this conclusion. When deter- mining whether a punishment is cruel and unusual, this Court typically begins with “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice.’ ” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 10); see also, e.g., Kennedy v. Louisiana, 554 U. S. 407, 422 (2008); Roper v. Simmons, 543 U. S. 551, 564 (2005). We look to these “objective indicia” to ensure that we are not simply following our own subjective values or beliefs. Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Such tangible evidence of societal standards enables us to determine whether there is a “consensus against” a given sentencing practice. Graham, supra, at ___ (slip op., at 10). If there is, the punishment may be regarded as “un- usual.” But when, as here, most States formally require and frequently impose the punishment in question, there is no objective basis for that conclusion. Our Eighth Amendment cases have also said that we should take guidance from “evolving standards of decency that mark the progress of a maturing society.” Ante, at 6 (quoting Estelle v. Gamble, 429 U. S. 97, 102 (1976); inter- nal quotation marks omitted). Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as  Cite as: 567 U. S. ____ (2012) 3 ROBERTS, C. J., dissenting unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this re- quires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty. In this case, there is little doubt about the direction of society’s evolution: For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legis- latures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. See, e.g., Alschuler, The Changing Purposes of Criminal Punish- ment, 70 U. Chi. L. Rev. 1, 1–13 (2003); see generally Crime and Public Policy (J. Wilson & J. Petersilia eds. 2011). Statutes establishing life without parole sentences in particular became more common in the past quarter century. See Baze v. Rees, 553 U. S. 35, 78, and n. 10 (2008) (Stevens, J., concurring in judgment). And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to manda- tory life without parole. Jackson Brief 54–55; Alabama Brief 4–5. The Court attempts to avoid the import of the fact that so many jurisdictions have embraced the sentencing prac- tice at issue by comparing this case to the Court’s prior Eighth Amendment cases. The Court notes that Graham found a punishment authorized in 39 jurisdictions uncon- stitutional, whereas the punishment it bans today is mandated in 10 fewer. Ante, at 21. But Graham went to 4 MILLER v. ALABAMA ROBERTS, C. J., dissenting considerable lengths to show that although theoretically allowed in many States, the sentence at issue in that case was “exceedingly rare” in practice. 560 U. S., at ___ (slip op., at 16). The Court explained that only 123 prisoners in the entire Nation were serving life without parole for nonhomicide crimes committed as juveniles, with more than half in a single State. It contrasted that with statis- tics showing nearly 400,000 juveniles were arrested for serious nonhomicide offenses in a single year. Based on the sentence’s rarity despite the many opportunities to im- pose it, Graham concluded that there was a national consensus against life without parole for juvenile nonhom- icide crimes. Id., at ___ (slip op., at 13–16). Here the number of mandatory life without parole sen- tences for juvenile murderers, relative to the number of juveniles arrested for murder, is over 5,000 times higher than the corresponding number in Graham. There is thus nothing in this case like the evidence of national consen- sus in Graham.1 The Court disregards these numbers, claiming that the prevalence of the sentence in question results from the number of statutes requiring its imposition. Ante, at 21, n. 10. True enough. The sentence at issue is statutorily mandated life without parole. Such a sentence can only result from statutes requiring its imposition. In Graham the Court relied on the low number of actual sentences to explain why the high number of statutes allowing such —————— 1 Graham stated that 123 prisoners were serving life without parole for nonhomicide offenses committed as juveniles, while in 2007 alone 380,480 juveniles were arrested for serious nonhomicide crimes. 560 U. S., at ___ (slip op., at 13–14). I use 2,000 as the number of prisoners serving mandatory life without parole sentences for murders committed as juveniles, because all seem to accept that the number is at least that high. And the same source Graham used reports that 1,170 juveniles were arrested for murder and nonnegligent homicide in 2009. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, C. Puzzanchera & B. Adams, Juvenile Arrests 2009, p. 4 (Dec. 2011).  Cite as: 567 U. S. ____ (2012) 5 ROBERTS, C. J., dissenting sentences was not dispositive. Here, the Court excuses the high number of actual sentences by citing the high number of statutes imposing it. To say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.2 The Court also advances another reason for discounting the laws enacted by Congress and most state legisla- tures. Some of the jurisdictions that impose mandatory life without parole on juvenile murderers do so as a result of two statutes: one providing that juveniles charged with serious crimes may be tried as adults, and another gener- ally mandating that those convicted of murder be impris- oned for life. According to the Court, our cases suggest that where the sentence results from the interaction of two such statutes, the legislature can be considered to have imposed the resulting sentences “inadvertent[ly].” Ante, at 22–25. The Court relies on Graham and Thompson v. Oklahoma, 487 U. S. 815, 826, n. 24 (1988) (plurality opinion), for the proposition that these laws are therefore not valid evidence of society’s views on the punishment at issue. It is a fair question whether this Court should ever assume a legislature is so ignorant of its own laws that it does not understand that two of them interact with each —————— 2 The Court’s reference to discretionary sentencing practices is a dis- traction. See ante, at 21–22, n. 10. The premise of the Court’s decision is that mandatory sentences are categorically different from discretion- ary ones. So under the Court’s own logic, whether discretionary sen- tences are common or uncommon has nothing to do with whether mandatory sentences are unusual. In any event, if analysis of discre- tionary sentences were relevant, it would not provide objective support for today’s decision. The Court states that “about 15% of all juvenile life-without-parole sentences”—meaning nearly 400 sentences—were imposed at the discretion of a judge or jury. Ante, at 22, n. 10. Thus the number of discretionary life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is about 1,000 times higher than the corresponding number in Graham. 6 MILLER v. ALABAMA ROBERTS, C. J., dissenting other, especially on an issue of such importance as the one before us. But in Graham and Thompson it was at least plausible as a practical matter. In Graham, the extreme rarity with which the sentence in question was imposed could suggest that legislatures did not really intend the inevitable result of the laws they passed. See 560 U. S., at ___ (slip op., at 15–16). In Thompson, the sentencing practice was even rarer—only 20 defendants had received it in the last century. 487 U. S., at 832 (plurality opinion). Perhaps under those facts it could be argued that the leg- islature was not fully aware that a teenager could re- ceive the particular sentence in question. But here the widespread and recent imposition of the sentence makes it implausible to characterize this sentencing practice as a collateral consequence of legislative ignorance.3 Nor do we display our usual respect for elected officials by asserting that legislators have accidentally required 2,000 teenagers to spend the rest of their lives in jail. This is particularly true given that our well-publicized decision in Graham alerted legislatures to the possibility that teenagers were subject to life with parole only because of legislative inadvertence. I am aware of no effort in the wake of Graham to correct any supposed legislative over- sight. Indeed, in amending its laws in response to Gra- ham one legislature made especially clear that it does intend juveniles who commit first-degree murder to re- ceive mandatory life without parole. See Iowa Code Ann. §902.1 (West Cum. Supp. 2012). In the end, the Court does not actually conclude that mandatory life sentences for juvenile murderers are un- usual. It instead claims that precedent “leads to” today’s —————— 3 The Court claims that I “take issue with some or all of these prece- dents” and “seek to relitigate” them. Ante, at 7–8, n. 4. Not so: apply- ing this Court’s cases exactly as they stand, I do not believe they support the Court’s decision in this case.  Cite as: 567 U. S. ____ (2012) 7 ROBERTS, C. J., dissenting decision, primarily relying on Graham and Roper. Ante, at 7. Petitioners argue that the reasoning of those cases “compels” finding in their favor. Jackson Brief 34. The Court is apparently unwilling to go so far, asserting only that precedent points in that direction. But today’s deci- sion invalidates the laws of dozens of legislatures and Congress. This Court is not easily led to such a result. See, e.g., United States v. Harris, 106 U. S. 629, 635 (1883) (courts must presume an Act of Congress is constitutional “unless the lack of constitutional authority . . . is clearly demonstrated”). Because the Court does not rely on the Eighth Amendment’s text or objective evidence of society’s standards, its analysis of precedent alone must bear the “heavy burden [that] rests on those who would attack the judgment of the representatives of the people.” Gregg, 428 U. S., at 175. If the Court is unwilling to say that prece- dent compels today’s decision, perhaps it should reconsider that decision. In any event, the Court’s holding does not follow from Roper and Graham. Those cases undoubtedly stand for the proposition that teenagers are less mature, less re- sponsible, and less fixed in their ways than adults—not that a Supreme Court case was needed to establish that. What they do not stand for, and do not even suggest, is that legislators—who also know that teenagers are differ- ent from adults—may not require life without parole for juveniles who commit the worst types of murder. That Graham does not imply today’s result could not be clearer. In barring life without parole for juvenile non- homicide offenders, Graham stated that “[t]here is a line ‘between homicide and other serious violent offenses against the individual.’ ” 560 U. S., at ___ (slip op., at 18) (quoting Kennedy, 554 U. S., at ___ (slip op., at 27)). The whole point of drawing a line between one issue and an- other is to say that they are different and should be treated differently. In other words, the two are in different 8 MILLER v. ALABAMA ROBERTS, C. J., dissenting categories. Which Graham also said: “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” 560 U. S., at ___ (slip op., at 18) (emphasis added). Of course, to be especially clear that what is said about one issue does not apply to another, one could say that the two issues cannot be com- pared. Graham said that too: “Serious nonhomicide crimes . . . cannot be compared to murder.” Ibid. (internal quotation marks omitted). A case that expressly puts an issue in a different category from its own subject, draws a line between the two, and states that the two should not be compared, cannot fairly be said to control that issue. Roper provides even less support for the Court’s holding. In that case, the Court held that the death penalty could not be imposed for offenses committed by juveniles, no matter how serious their crimes. In doing so, Roper also set itself in a different category than this case, by ex- pressly invoking “special” Eighth Amendment analysis for death penalty cases. 543 U. S., at 568–569. But more importantly, Roper reasoned that the death penalty was not needed to deter juvenile murderers in part because “life imprisonment without the possibility of parole” was available. Id., at 572. In a classic bait and switch, the Court now tells state legislatures that—Roper’s promise notwithstanding—they do not have power to guarantee that once someone commits a heinous murder, he will never do so again. It would be enough if today’s decision proved JUSTICE SCALIA’s prescience in writing that Roper’s “reassurance . . . gives little comfort.” Id., at 623 (dissent- ing opinion). To claim that Roper actually “leads to” re- voking its own reassurance surely goes too far. Today’s decision does not offer Roper and Graham’s false promises of restraint. Indeed, the Court’s opinion suggests that it is merely a way station on the path to further judicial displacement of the legislative role in  Cite as: 567 U. S. ____ (2012) 9 ROBERTS, C. J., dissenting prescribing appropriate punishment for crime. The Court’s analysis focuses on the mandatory nature of the sentences in this case. See ante, at 11–17. But then— although doing so is entirely unnecessary to the rule it announces—the Court states that even when a life with- out parole sentence is not mandatory, “we think appropri- ate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Ante, at 17. Today’s holding may be limited to mandatory sentences, but the Court has already announced that discretionary life with- out parole for juveniles should be “uncommon”—or, to use a common synonym, “unusual.” Indeed, the Court’s gratuitous prediction appears to be nothing other than an invitation to overturn life without parole sentences imposed by juries and trial judges. If that invitation is widely accepted and such sentences for juvenile offenders do in fact become “uncommon,” the Court will have bootstrapped its way to declaring that the Eighth Amendment absolutely prohibits them. This process has no discernible end point—or at least none consistent with our Nation’s legal traditions. Roper and Graham attempted to limit their reasoning to the circumstances they addressed—Roper to the death penalty, and Graham to nonhomicide crimes. Having cast aside those limits, the Court cannot now offer a credible substi- tute, and does not even try. After all, the Court tells us, “none of what [Graham] said about children . . . is crime- specific.” Ante, at 10. The principle behind today’s deci- sion seems to be only that because juveniles are different from adults, they must be sentenced differently. See ante, at 14–17. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults. Learning that an 10 MILLER v. ALABAMA ROBERTS, C. J., dissenting Amendment that bars only “unusual” punishments re- quires the abolition of this uniformly established practice would be startling indeed. * * * It is a great tragedy when a juvenile commits murder— most of all for the innocent victims. But also for the mur- derer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another. In recent years, our society has moved toward requiring that the murderer, his age notwithstanding, be imprisoned for the remainder of his life. Members of this Court may disagree with that choice. Perhaps science and policy suggest society should show greater mercy to young kill- ers, giving them a greater chance to reform themselves at the risk that they will kill again. See ante, at 8–11. But that is not our decision to make. Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole. I respectfully dissent.  Cite as: 567 U. S. ____ (2012) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–9646 and 10–9647 _________________ EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS [June 25, 2012] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. Today, the Court holds that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Ante, at 2. To reach that result, the Court relies on two lines of precedent. The first involves the categorical prohibition of certain pun- ishments for specified classes of offenders. The second requires individualized sentencing in the capital punish- ment context. Neither line is consistent with the original understanding of the Cruel and Unusual Punishments Clause. The Court compounds its errors by combining these lines of precedent and extending them to reach a result that is even less legitimate than the foundation on which it is built. Because the Court upsets the legislatively enacted sentencing regimes of 29 jurisdictions without 2 MILLER v. ALABAMA THOMAS, J., dissenting constitutional warrant, I respectfully dissent.1 I The Court first relies on its cases “adopt[ing] categorical bans on sentencing practices based on mismatches be- tween the culpability of a class of offenders and the severity of a penalty.” Ante, at 6–7. Of these categorical propor- tionality cases, the Court places particular emphasis on Roper v. Simmons, 543 U. S. 551 (2005), and Graham v. Florida, 560 U. S. ___ (2010). In Roper, the Court held that the Constitution prohibits the execution of an offender who was under 18 at the time of his offense. 543 U. S., at 578. The Roper Court looked to, among other things, its own sense of parental intuition and “scientific and socio- logical studies” to conclude that offenders under the age of 18 “cannot with reliability be classified among the worst offenders.” Id., at 569. In Graham, the Court relied on similar considerations to conclude that the Constitution prohibits a life-without-parole sentence for a nonhomicide offender who was under the age of 18 at the time of his offense. 560 U. S., at ___ (slip op., at 24). The Court now concludes that mandatory life-without- parole sentences for duly convicted juvenile murderers “contraven[e] Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penal- ties on juvenile offenders cannot proceed as though they were not children.” Ante, at 11–12. But neither Roper nor Graham held that specific procedural rules are required for sentencing juvenile homicide offenders. And, the logic of those cases should not be extended to create such a requirement. The Eighth Amendment, made applicable to the States by the Fourteenth Amendment, provides that: “Excessive —————— 1 I join THE CHIEF JUSTICE’s opinion because it accurately explains that, even accepting the Court’s precedents, the Court’s holding in today’s cases is unsupportable.  Cite as: 567 U. S. ____ (2012) 3 THOMAS, J., dissenting bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As I have previously explained, “the Cruel and Unusual Punish- ments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.” Graham, supra, at ___ (dissenting opinion) (slip op., at 3) (internal quotation marks and citations omitted).2 The clause does not contain a “proportionality principle.” Ewing v. Cali- fornia, 538 U. S. 11, 32 (2003) (THOMAS, J., concurring in judgment); see generally Harmelin v. Michigan, 501 U. S. 957, 975–985 (1991) (opinion of SCALIA, J.). In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty.” Graham, supra, at ___ (THOMAS, J., dissenting) (slip op., at 5). The legislatures of Arkansas and Alabama, like those of 27 other jurisdictions, ante, at 19–20, have determined —————— 2 Neither the Court nor petitioners argue that petitioners’ sentences would have been among “the ‘modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.’ ” Graham, 560 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 10, n. 3) (quoting Ford v. Wainwright, 477 U. S. 399, 405 (1986)). Nor could they. Petitioners were 14 years old at the time they commit- ted their crimes. When the Bill of Rights was ratified, 14-year-olds were subject to trial and punishment as adult offenders. See Roper v. Simmons, 543 U. S. 551, 609, n. 1 (2005) (SCALIA, J., dissenting). Further, mandatory death sentences were common at that time. See Harmelin v. Michigan, 501 U. S. 957, 994–995 (1991). It is therefore implausible that a 14-year-old’s mandatory prison sentence—of any length, with or without parole—would have been viewed as cruel and unusual. 4 MILLER v. ALABAMA THOMAS, J., dissenting that all offenders convicted of specified homicide offenses, whether juveniles or not, deserve a sentence of life in prison without the possibility of parole. Nothing in our Constitution authorizes this Court to supplant that choice. II To invalidate mandatory life-without-parole sentences for juveniles, the Court also relies on its cases “prohib- it[ing] mandatory imposition of capital punishment.” Ante, at 7. The Court reasons that, because Graham compared juvenile life-without-parole sentences to the death penalty, the “distinctive set of legal rules” that this Court has imposed in the capital punishment context, including the requirement of individualized sentencing, is “relevant” here. Ante, at 12–13. But even accepting an analogy between capital and juvenile life-without-parole sentences, this Court’s cases prohibiting mandatory capi- tal sentencing schemes have no basis in the original un- derstanding of the Eighth Amendment, and, thus, cannot justify a prohibition of sentencing schemes that mandate life-without-parole sentences for juveniles. A In a line of cases following Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), this Court prohibited the manda- tory imposition of the death penalty. See Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325 (1976) (same); Sumner v. Shuman, 483 U. S. 66 (1987). Furman first announced the principle that States may not permit sentencers to exercise unguided discretion in imposing the death pen- alty. See generally 408 U. S. 238. In response to Furman, many States passed new laws that made the death pen- alty mandatory following conviction of specified crimes, thereby eliminating the offending discretion. See Gregg v. Georgia, 428 U. S. 153, 180–181 (1976) (joint opinion  Cite as: 567 U. S. ____ (2012) 5 THOMAS, J., dissenting of Stewart, Powell, and Stevens, JJ.). The Court invali- dated those statutes in Woodson, Roberts, and Sumner. The Court reasoned that mandatory capital sentencing schemes were problematic, because they failed “to allow the particularized consideration” of “relevant facets of the character and record of the individual offender or the circumstances of the particular offense.” Woodson, supra, at 303–304 (plurality opinion).3 In my view, Woodson and its progeny were wrongly decided. As discussed above, the Cruel and Unusual Punishments Clause, as originally understood, prohibits “torturous methods of punishment.” See Graham, 560 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 3) (inter- nal quotation marks omitted). It is not concerned with whether a particular lawful method of punishment— whether capital or noncapital—is imposed pursuant to a mandatory or discretionary sentencing regime. See Gard- ner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed”). In fact, “[i]n the early days of the Republic,” each crime generally had a defined punishment “prescribed with specificity by the legisla- ture.” United States v. Grayson, 438 U. S. 41, 45 (1978). Capital sentences, to which the Court analogizes, were —————— 3 The Court later extended Woodson, requiring that capital defend- ants be permitted to present, and sentencers in capital cases be permit- ted to consider, any relevant mitigating evidence, including the age of the defendant. See, e.g., Lockett v. Ohio, 438 U. S. 586, 597–608 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, 110–112 (1982); Skipper v. South Carolina, 476 U. S. 1, 4–5 (1986); Johnson v. Texas, 509 U. S. 350, 361–368 (1993). Whatever the validity of the requirement that sentencers be permitted to consider all mitigating evidence when deciding whether to impose a nonmandatory capital sentence, the Court certainly was wrong to prohibit mandatory capital sentences. See Graham v. Collins, 506 U. S. 461, 488–500 (1993) (THOMAS, J., concurring). 6 MILLER v. ALABAMA THOMAS, J., dissenting treated no differently. “[M]andatory death sentences abounded in our first Penal Code” and were “common in the several States—both at the time of the founding and throughout the 19th century.” Harmelin, 501 U. S., at 994–995; see also Woodson, supra, at 289 (plurality opin- ion) (“At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses”). Accordingly, the idea that the mandatory imposition of an otherwise- constitutional sentence renders that sentence cruel and unusual finds “no support in the text and history of the Eighth Amendment.” Harmelin, supra, at 994. Moreover, mandatory death penalty schemes were “a perfectly reasonable legislative response to the concerns expressed in Furman” regarding unguided sentencing discretion, in that they “eliminat[ed] explicit jury discre- tion and treat[ed] all defendants equally.” Graham v. Collins, 506 U. S. 461, 487 (1993) (THOMAS, J., concur- ring). And, as Justice White explained more than 30 years ago, “a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively estab- lishes that a criminal’s character is such that he deserves death.” Roberts, supra, at 358 (dissenting opinion). Thus, there is no basis for concluding that a mandatory capi- tal sentencing scheme is unconstitutional. Because the Court’s cases requiring individualized sentencing in the capital context are wrongly decided, they cannot serve as a valid foundation for the novel rule regarding mandatory life-without-parole sentences for juveniles that the Court announces today. B In any event, this Court has already declined to extend its individualized-sentencing rule beyond the death pen- alty context. In Harmelin, the defendant was convicted of  Cite as: 567 U. S. ____ (2012) 7 THOMAS, J., dissenting possessing a large quantity of drugs. 501 U. S., at 961 (opinion of SCALIA, J.). In accordance with Michigan law, he was sentenced to a mandatory term of life in prison without the possibility of parole. Ibid. Citing the same line of death penalty precedents on which the Court relies today, the defendant argued that his sentence, due to its mandatory nature, violated the Cruel and Unusual Pun- ishments Clause. Id., at 994–995 (opinion of the Court). The Court rejected that argument, explaining that “[t]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so sim- ply because it is ‘mandatory.’ ” Id., at 995. In so doing, the Court refused to analogize to its death penalty cases. The Court noted that those cases had “repeatedly suggested that there is no comparable [individualized-sentencing] requirement outside the capital context, because of the qualitative difference between death and all other penal- ties.” Ibid. The Court observed that, “even where the difference” between a sentence of life without parole and other sentences of imprisonment “is the greatest,” such a sentence “cannot be compared with death.” Id., at 996. Therefore, the Court concluded that the line of cases re- quiring individualized sentencing had been drawn at cap- ital cases, and that there was “no basis for extending it further.” Ibid. Harmelin’s reasoning logically extends to these cases. Obviously, the younger the defendant, “the great[er]” the difference between a sentence of life without parole and other terms of imprisonment. Ibid. But under Harmelin’s rationale, the defendant’s age is immaterial to the Eighth Amendment analysis. Thus, the result in today’s cases should be the same as that in Harmelin. Petitioners, like the defendant in Harmelin, were not sentenced to death. Accordingly, this Court’s cases “creating and clarifying the individualized capital sentencing doctrine” do not apply. Id., at 995 (internal quotation marks omitted). 8 MILLER v. ALABAMA THOMAS, J., dissenting Nothing about our Constitution, or about the qualitative difference between any term of imprisonment and death, has changed since Harmelin was decided 21 years ago. What has changed (or, better yet, “evolved”) is this Court’s ever-expanding line of categorical proportionality cases. The Court now uses Roper and Graham to jettison Har- melin’s clear distinction between capital and noncapital cases and to apply the former to noncapital juvenile of- fenders.4 The Court’s decision to do so is even less sup- portable than the precedents used to reach it. III As THE CHIEF JUSTICE notes, ante, at 8–9 (dissenting opinion), the Court lays the groundwork for future incur- sions on the States’ authority to sentence criminals. In its categorical proportionality cases, the Court has considered “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentenc- ing practice at issue.” Graham, 560 U. S., at ___ (slip op., at 10) (quoting Roper, 543 U. S., at 563). In Graham, for example, the Court looked to “[a]ctual sentencing prac- tices” to conclude that there was a national consensus against life-without-parole sentences for juvenile nonhom- icide offenders. 560 U. S., at ___ (slip op., at 11–14); see also Roper, supra, at 564–565; Atkins v. Virginia, 536 U. S. 304, 316 (2002). Today, the Court makes clear that, even though its —————— 4 In support of its decision not to apply Harmelin to juvenile offend- ers, the Court also observes that “ ‘[o]ur history is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults.’ ” Ante, at 19 (quoting J. D. B. v. North Carolina, 564 U. S. ___, ___ (2011) (slip op., at 10–11) (some internal quotation marks omitted)). That is no doubt true as a general matter, but it does not justify usurp- ing authority that rightfully belongs to the people by imposing a consti- tutional rule where none exists.  Cite as: 567 U. S. ____ (2012) 9 THOMAS, J., dissenting decision leaves intact the discretionary imposition of life- without-parole sentences for juvenile homicide offenders, it “think[s] appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.” Ante, at 17. That statement may well cause trial judges to shy away from imposing life without parole sentences and embolden appellate judges to set them aside when they are imposed. And, when a future petitioner seeks a categorical ban on sentences of life without parole for juvenile homicide offenders, this Court will most assuredly look to the “actual sentencing practices” triggered by this case. The Court has, thus, gone from “merely” divining the societal consen- sus of today to shaping the societal consensus of tomorrow. * * * Today’s decision invalidates a constitutionally permissi- ble sentencing system based on nothing more than the Court’s belief that “its own sense of morality . . . pre-empts that of the people and their representatives.” Graham, supra, at ___ (THOMAS, J., dissenting) (slip op., at 29). Because nothing in the Constitution grants the Court the authority it exercises today, I respectfully dissent.  Cite as: 567 U. S. ____ (2012) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–9646 and 10–9647 _________________ EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS [June 25, 2012] JUSTICE ALITO, with whom JUSTICE SCALIA joins, dissenting. The Court now holds that Congress and the legislatures of the 50 States are prohibited by the Constitution from identifying any category of murderers under the age of 18 who must be sentenced to life imprisonment without parole. Even a 17½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teach- ers is a “child” and must be given a chance to persuade a judge to permit his release into society. Nothing in the Constitution supports this arrogation of legislative authority. The Court long ago abandoned the original meaning of the Eighth Amendment, holding instead that the prohi- bition of “cruel and unusual punishment” embodies the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) 2 MILLER v. ALABAMA ALITO, J., dissenting (plurality opinion); see also Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 7); Kennedy v. Louisiana, 554 U. S. 407, 419 (2008); Roper v. Simmons, 543 U. S. 551, 560–561 (2005); Atkins v. Virginia, 536 U. S. 304, 311–312 (2002); Hudson v. McMillian, 503 U. S. 1, 8 (1992); Ford v. Wainwright, 477 U. S. 399, 406 (1986); Rhodes v. Chap- man, 452 U. S. 337, 346 (1981); Estelle v. Gamble, 429 U. S. 97, 102 (1976). Both the provenance and philosoph- ical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccount­ able judges to reflect changing societal standards?) But at least at the start, the Court insisted that these “evolving standards” represented something other than the personal views of five Justices. See Rummel v. Estelle, 445 U. S. 263, 275 (1980) (explaining that “the Court’s Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices”). In- stead, the Court looked for objective indicia of our society’s moral standards and the trajectory of our moral “evolu­ tion.” See id., at 274–275 (emphasizing that “ ‘judgment should be informed by objective factors to the maximum possible extent’ ” (quoting Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion))). In this search for objective indicia, the Court toyed with the use of public opinion polls, see Atkins, supra, at 316, n. 21, and occasionally relied on foreign law, see Roper v. Simmons, supra, at 575; Enmund v. Florida, 458 U. S. 782, 796, n. 22 (1982); Thompson v. Oklahoma, 487 U. S. 815, 830–831 (1988); Coker, 433 U. S., at 596, n. 10 (plu­ rality opinion). In the main, however, the staple of this inquiry was the tallying of the positions taken by state legislatures. Thus,  Cite as: 567 U. S. ____ (2012) 3 ALITO, J., dissenting in Coker, which held that the Eighth Amendment prohib­ its the imposition of the death penalty for the rape of an adult woman, the Court noted that only one State permit­ ted that practice. Id., at 595–596. In Enmund, where the Court held that the Eighth Amendment forbids capital punishment for ordinary felony murder, both federal law and the law of 28 of the 36 States that authorized the death penalty at the time rejected that punishment. 458 U. S., at 789. While the tally in these early cases may be character­ ized as evidence of a national consensus, the evidence became weaker and weaker in later cases. In Atkins, which held that low-IQ defendants may not be sentenced to death, the Court found an anti–death-penalty consen­ sus even though more than half of the States that allowed capital punishment permitted the practice. See 536 U. S., at 342 (SCALIA, J., dissenting) (observing that less than half of the 38 States that permit capital punishment have enacted legislation barring execution of the mentally retarded). The Court attempted to get around this prob­ lem by noting that there was a pronounced trend against this punishment. See id., at 313–315 (listing 18 States that had amended their laws since 1986 to prohibit the execution of mentally retarded persons). The importance of trend evidence, however, was not long lived. In Roper, which outlawed capital punishment for defendants between the ages of 16 and 18, the lineup of the States was the same as in Atkins, but the trend in favor of abolition—five States during the past 15 years— was less impressive. Roper, 543 U. S., at 564–565. Never­ theless, the Court held that the absence of a strong trend in support of abolition did not matter. See id., at 566 (“Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change”). In Kennedy v. Louisiana, the Court went further. Hold­ 4 MILLER v. ALABAMA ALITO, J., dissenting ing that the Eighth Amendment prohibits capital punish­ ment for the brutal rape of a 12-year-old girl, the Court disregarded a nascent legislative trend in favor of permit- ting capital punishment for this narrowly defined and heinous crime. See 554 U. S., at 433 (explaining that, although “the total number of States to have made child rape a capital offense . . . is six,” “[t]his is not an indication of a trend or change in direction comparable to the one supported by data in Roper”). The Court felt no need to see whether this trend developed further—perhaps be­ cause true moral evolution can lead in only one direction. And despite the argument that the rape of a young child may involve greater depravity than some murders, the Court proclaimed that homicide is categorically different from all (or maybe almost all) other offenses. See id., at 438 (stating that nonhomicide crimes, including child rape, “may be devastating in their harm . . . but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability” (internal quotation marks and citation omitted)). As the Court had previously put it, “death is different.” Ford, supra, at 411 (plurality opinion). Two years after Kennedy, in Graham v. Florida, any pretense of heeding a legislative consensus was discarded. In Graham, federal law and the law of 37 States and the District of Columbia permitted a minor to be sentenced to life imprisonment without parole for nonhomicide crimes, but despite this unmistakable evidence of a national con­ sensus, the Court held that the practice violates the Eighth Amendment. See 560 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 1–3). The Court, however, drew a distinction between minors who murder and minors who commit other heinous offenses, so at least in that sense the principle that death is different lived on. Today, that principle is entirely put to rest, for here we  Cite as: 567 U. S. ____ (2012) 5 ALITO, J., dissenting are concerned with the imposition of a term of imprison­ ment on offenders who kill. The two (carefully selected) cases before us concern very young defendants, and de­ spite the brutality and evident depravity exhibited by at least one of the petitioners, it is hard not to feel sympathy for a 14-year-old sentenced to life without the possibility of release. But no one should be confused by the particulars of the two cases before us. The category of murderers that the Court delicately calls “children” (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies; much more typical are murderers like Donald Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday. Roper, 543 U. S., at 556. Seventeen-year-olds commit a significant number of murders every year,1 and some of these crimes are incred­ ibly brutal. Many of these murderers are at least as ma­ ture as the average 18-year-old. See Thompson, 487 U. S., at 854 (O’Connor, J., concurring in judgment) (noting that maturity may “vary widely among different individuals of the same age”). Congress and the legislatures of 43 States have concluded that at least some of these murderers should be sentenced to prison without parole, and 28 States and the Federal Government have decided that for some of these offenders life without parole should be man­ datory. See Ante, at 20–21, and nn. 9–10. The majority of this Court now overrules these legislative judgments.2 —————— 1 Between 2002 and 2010, 17-year-olds committed an average com­ bined total of 424 murders and nonnegligent homicides per year. See Dept. of Justice, Bureau of Justice Statistics, §4, Arrests, Age of per­ sons arrested (Table 4.7). 2 As the Court noted in Mistretta v. United States, 488 U. S. 361, 366 (1989), Congress passed the Sentencing Reform Act of 1984 to eliminate discretionary sentencing and parole because it concluded that these practices had led to gross abuses. The Senate Report for the 1984 bill 6 MILLER v. ALABAMA ALITO, J., dissenting It is true that, at least for now, the Court apparently permits a trial judge to make an individualized decision that a particular minor convicted of murder should be sentenced to life without parole, but do not expect this possibility to last very long. The majority goes out of its way to express the view that the imposition of a sentence of life without parole on a “child” (i.e., a murderer under the age of 18) should be uncommon. Having held in Gra- ham that a trial judge with discretionary sentencing authority may not impose a sentence of life without parole on a minor who has committed a nonhomicide offense, the Justices in the majority may soon extend that holding to minors who commit murder. We will see. What today’s decision shows is that our Eighth Amend­ ment cases are no longer tied to any objective indicia of society’s standards. Our Eighth Amendment case law is now entirely inward looking. After entirely disregarding objective indicia of our society’s standards in Graham, the Court now extrapolates from Graham. Future cases may extrapolate from today’s holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency. The Eighth Amendment imposes certain limits on the —————— rejected what it called the “outmoded rehabilitation model” for federal criminal sentencing. S. Rep. No. 98–225, p. 38 (1983). According to the Report, “almost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated.” Ibid. The Report also “observed that the indeterminate-sentencing system had two ‘unjustifi[ed] and ‘shame­ ful’ consequences. The first was the great variation among sentences imposed by different judges upon similarly situated offenders. The second was uncertainty as to the time the offender would spend in prison. Each was a serious impediment to an evenhanded and effective operation of the criminal justice system.” Mistretta, supra, at 366 (quoting S. Rep. No. 98–225, at 38, 65 (citation omitted)).  Cite as: 567 U. S. ____ (2012) 7 ALITO, J., dissenting sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures—and with good reason. Determining the length of imprison­ ment that is appropriate for a particular offense and a particular offender inevitably involves a balancing of in­ terests. If imprisonment does nothing else, it removes the criminal from the general population and prevents him from committing additional crimes in the outside world. When a legislature prescribes that a category of killers must be sentenced to life imprisonment, the legisla­ ture, which presumably reflects the views of the elec­ torate, is taking the position that the risk that these offenders will kill again outweighs any countervailing consideration, including reduced culpability due to imma­ turity or the possibility of rehabilitation. When the major­ ity of this Court countermands that democratic decision, what the majority is saying is that members of society must be exposed to the risk that these convicted murder­ ers, if released from custody, will murder again. Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey. 

Illinois Official Reports Supreme Court People v. LeFlore, 2015 IL 116799 Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KEITH Court: LeFLORE, Appellee. Docket No. 116799 Filed May 21, 2015 Decision Under Appeal from the Appellate Court for the Second District; heard in that Review court on appeal from the Circuit Court of Kane County, the Hon. Allen M. Anderson, Judge, presiding. Judgment Appellate court affirmed in part and reversed in part. Circuit court affirmed in part and reversed in part. Cause remanded. Counsel on Lisa Madigan, Attorney General, of Springfield, and Joseph H. Appeal McMahon, State’s Attorney, of St. Charles (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, and Patrick Delfino, Lawrence M. Bauer and Jay Paul Hoffmann, of the Office of the State’s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People. Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Darren E. Miller, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, and Christopher D. Moore, law student, for appellant.  Justices JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Kilbride and Karmeier concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justices Freeman and Theis. OPINION ¶1 Defendant, Keith LeFlore, was charged with aggravated robbery, robbery and burglary in connection with an April 24, 2009, robbery of a gas station in Aurora, Illinois. Defendant filed a pretrial motion to quash arrest and suppress evidence, arguing that police improperly used a Global Positioning System (GPS) device without a warrant to track the movements of a vehicle he used. The trial court denied the motion. Following a jury trial, defendant was convicted of all charges, and sentenced to 20 years in prison on the aggravated robbery charge. The appellate court reversed and remanded. We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). ¶2 BACKGROUND ¶3 In April 2009, Aurora police received a tip from the Crime Stoppers hotline that defendant was committing burglaries on the west side of Aurora and bringing “various items” into his apartment complex. The police located defendant’s address at the apartment complex after a data search. Police also discovered that defendant was on mandatory supervised release from prison. They also knew that in a recent police encounter defendant had been arrested for fleeing in a red Kia Spectra with license plate X743***. The Kia was registered to Stephanie Powell, who lived at the same address as defendant. ¶4 On April 23, 2009, Aurora police detective Jeremy Shufelt placed a GPS device under the rear bumper of the Kia while it was parked at the apartment complex where defendant resided. Detective Shufelt did not obtain a warrant to place the GPS device on the car’s exterior. Early the next morning, a local gas station located a few minutes from defendant’s residence was held up. Tracking from the GPS device showed that the Kia was parked near the gas station at the time it was robbed around 4:40 a.m. ¶5 A surveillance camera captured the robbery on video. It showed that the robber used what looked like a shotgun. He took the cash drawer and a carton of Newport cigarettes from the cashier and fled. The video also showed that the robber was wearing a pair of Steve Madden athletic shoes, which have a distinctive striping pattern on them. ¶6 On the evening of the same day as the robbery, police conducted a parole search of defendant’s residence. Defendant arrived at the apartment complex driving the Kia at the same time the police were conducting their search of his residence. Defendant was taken into custody for driving with a revoked license. He was wearing Steve Madden athletic shoes. During the search, the police recovered a hollow metal cane that had the rubber tip removed from the end. -2- ¶7 When defendant was interviewed, the police told him that he had been under surveillance, but they did not tell him about the use of the GPS device. The police also told him that the apartment complex’s video camera showed him leaving early in the morning. After the police placed the metal cane in the interview room, defendant confessed, explaining that he made the cane look like a gun by removing the rubber stopper at the end and placing a black grocery-type bag around the center. The cashier from the store later picked defendant out of a photo lineup. ¶8 Defendant was eventually charged with aggravated robbery, robbery and burglary in the circuit court of Kane County. Defendant filed a motion to quash his arrest and suppress evidence, arguing that it was solely through information received through the GPS tracking device that defendant became a suspect in the robbery and therefore all the evidence against him should be suppressed. The trial court denied the motion, finding that the use and “the existence” of the GPS device, which did not interfere with defendant’s possessory interest in the vehicle, did not constitute a search under either the federal or state constitutions. Relying upon United States v. Knotts, 460 U.S. 276 (1983), United States v. Karo, 468 U.S. 705 (1984), and United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), as controlling authority, the court concluded that the fourth amendment was not violated because “the information secured by the police was equal to what personal surveillance would have revealed and [was] available from the observations that could have been made on or about the public way or the publicly accessible locations.” ¶9 Defendant represented himself at his trial and the jury found him guilty of all charges. The trial court entered judgment on the aggravated battery charge and sentenced defendant to 20 years in prison. On appeal, defendant argued that the trial court erred in denying his motion to quash arrest and suppress evidence, and that the court erroneously allowed him to waive counsel without properly admonishing him under Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). ¶ 10 While this case was pending on appeal in the appellate court, the United States Supreme Court decided United States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945, 948-49 (2012), which held that the attachment of a GPS tracking device and the subsequent use of the device to monitor a vehicle’s movements on public streets was a search under the fourth amendment because the placement of the device constituted an unlawful trespass. Also while this case was pending on appeal, the Supreme Court decided Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419 (2011). In Davis, the Court applied the good-faith exception to the exclusionary rule to an automobile search conducted by a state police officer “in objectively reasonable reliance on binding judicial precedent.” Id. at ___, 131 S. Ct. at 2428-29. ¶ 11 Prior to the oral argument before the appellate court in the present case, the State submitted Jones as additional authority. 2013 IL App (2d) 100659, ¶ 83 (Birkett, J., concurring in part and dissenting in part). The parties were then directed to address Davis and whether the good-faith exception applied. Id. At oral argument, the State argued that Knotts and Karo were “binding precedent” at the time the search was conducted, and defendant argued that those two cases were distinguishable because they involved “beeper” tracking devices and not the more advanced GPS technology used here. Id. ¶ 108. ¶ 12 A divided appellate court reversed defendant’s conviction based on Jones and remanded for further proceedings to determine whether defendant borrowed the vehicle with Powell’s -3-  consent so as to establish standing under Jones. Id. ¶ 29 (majority opinion). The appellate court majority accepted defendant’s argument that the good-faith exception to the exclusionary rule was not applicable due to the more advanced nature of GPS tracking. Id. ¶¶ 44-45. However, Justice Birkett in his partial dissent determined, among other things, that the good-faith exception applied and that the evidence that resulted from the GPS tracking should not be excluded. He concluded that the trial court correctly ruled that Knotts and Karo were “binding precedent” that controlled the outcome at the time the search was conducted in April 2009. Id. ¶ 115 (Birkett, J., concurring in part and dissenting in part). Finally, the appellate court was in unanimous agreement that the defendant’s convictions must be reversed and the cause remanded for a new trial based on the trial court’s failure to properly admonish defendant pursuant to Supreme Court Rule 401(a) (Ill. S. Ct. R. 401(a) (eff. July 1, 1984)). 2013 IL App (2d) 100659, ¶ 60. ¶ 13 We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). Before this court, the State concedes that the appellate court correctly determined that defendant must be retried based on the lack of proper admonishments under Supreme Court Rule 401(a). The State contends, however, that upon remand for a new trial, there is no need for the trial court to hold a new suppression hearing. In that regard, three issues are raised before this court: (1) whether the fourth amendment permitted police to place a GPS device on a car associated with defendant, where defendant was on mandatory supervised release from prison at the time and thus had a diminished expectation of privacy from that of an ordinary citizen; (2) whether defendant is entitled to a remand to present new evidence to establish his interest in the Kia so that he can avail himself of the holding in Jones; and (3) whether the good-faith exception to the exclusionary rule is applicable under the circumstances of this case so that the evidence compiled against defendant as a result of the installation and use of the GPS device should not be excluded. For the reasons that follow, we find that the good-faith exception to the exclusionary rule is applicable and that a new suppression hearing is therefore not warranted. Because this issue is dispositive, we find it unnecessary to address the two other issues raised by the parties. ¶ 14 ANALYSIS ¶ 15 The fourth amendment to the United States Constitution provides that: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. ¶ 16 In a similar fashion, the Illinois Constitution provides that: “[t]he people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6. This court interprets the search and seizure clause of the Illinois Constitution in “limited lockstep” with its federal counterpart. People v. Caballes, 221 Ill. 2d 282, 314 (2006). -4- ¶ 17 Searches conducted without a warrant are per se unreasonable under the fourth amendment subject only to a few exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). The Supreme Court created the exclusionary rule as a general deterrent to future fourth amendment violations. Arizona v. Evans, 514 U.S. 1, 10 (1995). Despite the exclusionary rule’s relationship to the fourth amendment, however, there is no constitutional right to have the fruits of an illegal search or seizure suppressed at trial. United States v. Katzin, 769 F.3d 163, 170 (3d Cir. 2014) (en banc) (noting that the fourth amendment “ ‘says nothing about suppressing evidence in violation of [its] command’ ” (citing Davis, 564 U.S. at ___, 131 S. Ct. at 2426)). The judicially created doctrine of exclusion at times suppresses the evidence and makes it unavailable for trial. However, even when a fourth amendment violation has occurred, the evidence that resulted will not be suppressed when the good-faith exception to the exclusionary rule applies. Katzin, 769 F.3d at 169-70. ¶ 18 In the present case, we need not determine whether Aurora police conducted an unreasonable search in violation of Jones. Nor do we need to remand for further proceedings to determine whether defendant had a sufficient possessory interest in the Kia to avail himself of the holding in Jones. This is because even assuming that the search violated the fourth amendment, the good-faith exception is applicable and suppression is not warranted. ¶ 19 Defendant seeks to avoid that result by arguing that Aurora police do not fall under the good-faith exception as explained in Davis because Knotts and Karo are distinguishable cases that the officers could not have reasonably relied upon. Defendant argues that both cases are distinguishable because they involved beeper tracking and not GPS technology and did not involve a trespass of the device onto the vehicle’s exterior without the consent of the owner. Defendant also argues that police could not have reasonably relied upon Garcia, a Seventh Circuit Court of Appeals case directly on point, because that case “is not binding precedent on Illinois courts.” In defendant’s view, binding precedent only exists if it is from the same jurisdiction in which the case is prosecuted, is followed by police to the “letter,” and is on all fours with the case to be decided. ¶ 20 As we will explain more fully below, defendant’s reading of Davis is incorrect and too narrow. Acceptance of the narrow interpretation of Davis proposed by defendant would mean neglecting or ignoring the important principles that have been set forth by the Supreme Court to help determine whether the good-faith exception to the exclusionary rule should apply in any given case. We also note at the outset that all of the federal circuits that have considered post-Jones whether the good-faith exception applies in cases of warrantless GPS searches conducted pre-Jones have rejected a narrow reading of Davis and have instead concluded that the good-faith exception applies under circumstances identical to the present case. E.g., United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) (en banc) (although the facts of Knotts and Karo differ from Jones, it is the rationale that underpins those decisions that is considered binding appellate precedent and that it was objectively reasonable for the officers to rely upon the precedent under Davis); United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014) (“[w]ithout the benefit of hindsight *** and with no contrary guidance from the Supreme Court or this Court, *** a reasonably well-trained officer in this Circuit could have relied on Knotts as permitting the type of warrantless GPS usage in this case”); United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014) (rehearing and rehearing en banc denied) (observing that “all of the extant appellate precedent is on the side of applying Davis” and its good-faith exception to “all pre-Jones GPS tracking,” even when installation was nonconsensual and without a -5-  warrant (emphasis in original)); United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (found that at the time police placed the GPS tracking device on the defendant’s car in 2009, law enforcement could reasonably rely upon the binding appellate precedent of Knotts and Karo); United States v. Sparks, 711 F.3d 58, 65 (1st Cir. 2013) (noting that even though the circuit had not addressed warrantless GPS tracking prior to Jones, the Supreme Court’s decision in Knotts was “sufficiently clear and apposite” to trigger Davis’s good-faith exception); see also Kelly v. State, 82 A.2d 205, 214 (Md. 2013) (the state’s highest court determined that Knotts was sufficient binding appellate precedent in Maryland to authorize GPS tracking at the time officers installed the device to the defendant’s vehicle pre-Jones). ¶ 21 I. Exclusionary Rule and the Good-Faith Exception ¶ 22 We turn now to the guiding principles that should govern any analysis as to the applicability of the exclusionary rule or its good-faith exception. There is no constitutional right to have the evidence resulting from an illegal search or seizure suppressed at trial. Katzin, 769 F.3d at 170 (quoting Davis, 564 U.S. at ___, 131 S. Ct. at 2426). The mere fact of a fourth amendment violation does not mean that exclusion necessarily follows. Id. Instead, application of the exclusionary rule has been restricted to those “unusual cases” where it can achieve its sole objective: to deter future fourth amendment violations. Id. (citing United States v. Leon, 468 U.S. 897, 909 (1984)). The Supreme Court has repeatedly expressed the notion that “exclusion ‘has always been our last resort, not our first impulse.’ ” Herring v. United States, 555 U.S. 135, 140 (2009). ¶ 23 In order for exclusion of the evidence to apply, the deterrent benefit of suppression must outweigh the “substantial social costs.” Leon, 468 U.S. at 907. “ ‘Exclusion exacts a heavy toll on both the judicial system and society at large,’ because it ‘almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence,’ and ‘its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.’ ” Stephens, 764 F.3d at 335 (quoting Davis, 564 U.S. at ___, 131 S. Ct. at 2427). “As this result conflicts with the ‘truth-finding functions of judge and jury,’ United States v. Payner, 447 U.S. 727, 734 *** (1980), exclusion is a ‘bitter pill,’ Davis, 131 S. Ct. at 2427, swallowed only as a ‘last resort,’ Hudson, 547 U.S. at 591, 126 S. Ct. 2159.” Katzin, 769 F.3d at 171. In order for the exclusionary rule to be appropriate then, the deterrent benefits must outweigh its heavy costs. Davis, 564 U.S. at ___, 131 S. Ct. at 2427. ¶ 24 Where the particular circumstances of a case show that police acted with an “ ‘objectively “reasonable good-faith belief” that their conduct [was] lawful,’ ” or when their conduct involved only simple, isolated negligence, there is no illicit conduct to deter. Katzin, 769 F.3d at 171 (quoting Davis, 564 U.S. at ___, 131 S. Ct. at 2427-28, quoting Leon, 468 U.S. at 909). In such a case, “ ‘the deterrence rationale loses much of its force and exclusion cannot pay its way.’ ” (Internal quotation marks omitted.) Id. (quoting Davis, 564 U.S. at ___, 131 S. Ct. at 2428, quoting Leon, 468 U.S. at 907 n.6, 919). Thus, exclusion is invoked only where police conduct is both “sufficiently deliberate” that deterrence is effective and “sufficiently culpable” that deterrence outweighs the cost of suppression. Herring, 555 U.S. at 144; Katzin, 769 F.3d at 171. ¶ 25 The “pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of arresting officers.” (Internal quotation marks omitted.) Herring, 555 -6-  U.S. at 145. Thus, in determining whether the good-faith exception applies, a court must ask “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” (Internal quotation marks omitted.) Id. (quoting Leon, 468 U.S. at 922 n.23). ¶ 26 II. Davis’s Application to the Specific Circumstances Before It ¶ 27 In Davis, the Supreme Court applied the good-faith exception in one specific instance: to an automobile search following an arrest conducted by a local Greenville, Alabama, city police officer investigating a state DUI offense. The question for the Court was whether the officer could have reasonably relied upon an Eleventh Circuit Court of Appeals precedent as authority for his conduct in deciding to search the vehicle. In that case, police found in the course of their search a handgun in defendant’s jacket left inside the vehicle, and defendant was subsequently prosecuted for a firearm charge in federal court. Davis held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24. The Court explained that “[a]n officer who conducts a search in reasonable reliance on binding appellate precedent does no more than ac[t] as a reasonable officer would and should act under the circumstances. [Citation.] The deterrent effect of exclusion in such a case can only be to discourage the officer from do[ing] his duty.” (Internal quotation marks omitted.) Id. at ___, 131 S. Ct. at 2429. Of paramount importance to the Court’s holding was the lack of police culpability: “Under our exclusionary-rule precedents, [the] acknowledged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’ [Citation.] The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s *** rights deliberately, recklessly, or with gross negligence. [Citation.] Nor does this case involve any ‘recurring or systemic negligence’ on the part of law enforcement. [Citation.] The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regimen, it can have no application in this case. Indeed, in 27 years of practice under Leon’s good-faith exception, we have ‘never applied’ the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct.” Id. at ___, 131 S. Ct. at 2428-29. ¶ 28 ¶ 29 Thus, if it can be said in the present case that “binding appellate precedent” existed on April 23, 2009, allowing for warrantless GPS use when Detective Shufelt installed the device, then Davis controls without a doubt and the exclusionary rule does not apply. However, even if it could be concluded that “binding appellate precedent” did not exist in this case, it would not end the inquiry. It would still be necessary to conduct the “good-faith inquiry” and consider “whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” (Internal quotation marks omitted.) Herring, 555 U.S. at 145. Clearly, application of the good-faith inquiry is not limited to the specific circumstances addressed by the Supreme Court in Davis or any other Supreme Court case. Stephens, 764 F.3d at 336. The Supreme Court has found the exclusionary rule to be inapplicable in a variety of -7-  settings after undertaking the good-faith analysis, and the fact that a court might apply the good-faith exception in a new context not yet addressed by the Supreme Court does not mean that it is creating a “new, freestanding exception” to the exclusionary rule. Id. at 336 n.10; see also Davis, 564 U.S. at ___, 131 S. Ct. at 2428 (noting that “[t]he Court has over time applied this ‘good-faith’ exception across a range of cases”). ¶ 30 III. Exclusionary Rule Does Not Apply for Three Reasons ¶ 31 We find that application of the exclusionary rule to this case is not appropriate for three reasons. First, the exclusionary rule does not apply because at the time of Detective Shufelt’s conduct in April 2009, the United States Supreme Court’s decisions in Knotts and Karo were “binding appellate precedent” that he could have reasonably relied upon. Second, we find in the alternative that, pursuant to the Supreme Court’s general good-faith analysis, the police conduct in relying on the legal landscape that existed at the time was objectively reasonable and a reasonable officer had no reason to suspect that his conduct was wrongful under the circumstances. And third, this case fits squarely within the specific holding of Davis, because United States v. Garcia, 474 F.3d 994, 996-97 (7th Cir. 2007), was binding precedent as far as the Aurora police detective was concerned and he stood in exactly the same shoes as the Alabama police officer in Davis that relied upon binding Eleventh Circuit Court of Appeals precedent when he conducted a search in the course of investigating a state law traffic offense. Accordingly, suppression of the evidence is not warranted for each of these reasons. ¶ 32 IV. Knotts and Karo Were Binding Appellate Precedent ¶ 33 There is no question that decisions of the United States Supreme Court interpreting fourth amendment law are binding precedent for Illinois police officers and Illinois courts. We conclude that the Supreme Court cases of Knotts and Karo clearly authorized the police conduct in this case. Even though the underlying facts of those cases differ from the facts of the present case, it is the rationale that underlies those cases that is relevant to our discussion. See Katzin, 769 F.3d at 173-74; Stephens, 764 F.3d at 337-38. ¶ 34 In Knotts, the police were investigating suspects relative to a conspiracy to manufacture illegal drugs. Knotts, 460 U.S. at 278. The police arranged for one of the suspects to voluntarily take into his vehicle a container of chloroform that, unbeknownst to the suspect, contained a beeper. By tracking the signals emitted from the beeper, police were able to locate it at defendant’s secluded manufacturing site. The defendant sought to suppress the evidence that was obtained as a result of the warrantless monitoring of the beeper. The Supreme Court held that the use of the beeper to track a vehicle was not a search under the fourth amendment. Id. at 285. The Court explained that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” and the beeper simply revealed what could have been seen by the public through visual surveillance and it made no difference that the officers’ “sensory faculties” were augmented by its use. Id. at 281, 282. ¶ 35 In Karo, the defendant ordered 50 gallons of ether (for use in cocaine smuggling) from an informant. Karo, 468 U.S. at 708. After obtaining the informant’s consent, federal agents substituted one of the informant’s cans of ether with its own can, which contained a beeper. Defendant bought the can and took it into his car. For the next several months, the agents -8-  monitored the beeper to determine the location of the ether. One of the questions presented before the Supreme Court was whether the warrantless installation of the beeper was legal. Id. at 711. ¶ 36 The Court in Karo concluded that the warrantless installation of the beeper did not violate the fourth amendment. Id. at 713. The Court found that the transfer of the can with the beeper did not convey any information, and although there was a potential that the defendant’s privacy could be invaded, the transfer itself infringed no privacy interest. Id. at 712. Moreover, the Court found that the transfer was not a seizure despite the “technical trespass on the space occupied by the beeper,” which the Court referred to as “unknown and unwanted foreign object.” Id. The Court then proceeded to “broadly discredit[ ] the relevance of trespass in the context of electronic surveillance of vehicles: ‘[A] physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, ... for an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Katzin, 769 F.3d at 175 (quoting Karo, 468 U.S. at 712-13); see also Aguiar, 737 F.3d at 261 (also noting that Karo discounted the importance of trespass in placing a tracking device). ¶ 37 As the Court of Appeals, Second Circuit, explained in Aguiar: “Karo’s de minimis treatment of the trespass issue gave no indication that the issue of trespass would become the touchstone for the analysis in Jones. Moreover, Karo’s brushing off of the potential trespass fits logically with earlier Supreme Court decisions concluding that ‘the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein.’ ” Aguiar, 737 F.3d at 261 (quoting New York v. Class, 475 U.S. 106, 112 (1986) (to examine the exterior of an automobile does not constitute a search)). See also Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion) (warrantless taking of paint scrapings from the exterior of a vehicle does not constitute an unlawful search). 1 ¶ 38 We conclude that it was objectively reasonable for the police to rely upon Knotts and Karo for the conclusion that warrantless installation and monitoring of the GPS device was legal. We acknowledge that the facts are different here, but again it was reasonable for Detective Shufelt to rely upon the legal principles set forth by the Supreme Court. Here, police monitored the movement of the Kia by GPS not by a beeper signal. But there is no legally significant difference between the two technologies, and in both cases the devices were “unknown and unwanted objects.” Moreover, the police surreptitiously affixed a GPS device to the underside of the Kia’s bumper rather than surreptitiously “tricking him into unwittingly taking the GPS device into his vehicle,” but otherwise the conduct of law enforcement here “echoed that in Knotts and Karo.” Katzin, 769 F.3d at 176. Just like in Karo, the attachment of the GPS device did not itself convey any information or infringe any privacy interest apart from its use. ¶ 39 We fully agree with the conclusion reached by the United States Court of Appeals, Third Circuit, in its en banc decision in Katzin in considering the same issue under the identical facts 1 It must be recognized that there would have been no merit to any argument raised before Jones that a physical trespass to private property, standing alone, would constitute a search. See, e.g., Florida v. Riley, 488 U.S. 445, 459 n.3 (1989) (noting that Katz v. United States, 389 U.S. 347, 351 (1967), “made plain that the question whether or not the disputed evidence had been procured by means of a trespass was irrelevant”). -9-  presented here: “It would have been objectively reasonable for a law enforcement officer to conclude that Karo’s sweeping rejection of the trespass theory applied not only to the [federal] agents’ elaborate ruse therein, but also to the unremarkable strategy of magnetically attaching a battery-operated GPS unit onto the exterior of a vehicle. In sum *** the Supreme Court’s rationale was broad enough to embrace the agents’ conduct, and their reliance on this binding appellate precedent was objectively reasonable under Davis.” Katzin, 769 F.3d at 175. ¶ 40 V. Conclusion That Knotts and Karo Are Binding Precedent for Pre-Jones GPS Searches Is Supported by All of the Federal Court of Appeals Decisions to Address the Issue ¶ 41 In the aftermath of Jones, all of the federal circuit court of appeals decisions to directly consider whether Knotts and/or Karo are binding appellate precedent under Davis—so that evidence obtained through warrantless GPS installation and use pre-Jones should not be excluded—have answered the question in the affirmative and have applied the good-faith exception. See United States v. Katzin, 769 F.3d 163, 173-75 (3d Cir. 2014); United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014); United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013); see also United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014) (finding Knotts and Karo are binding appellate precedent for purposes of consensual GPS installation and subsequent monitoring; and stating that “all of the extant appellate precedent is on the side of applying Davis[’s]” good-faith exception to all nonconsensual searches conducted pre-Jones as well, and doubting the deterrent benefit of prohibiting police from relying on out-of-circuit authority just because a particular circuit lacks its own authority); United States v. Sparks, 711 F.3d 58, 65, 67 (1st Cir. 2013). 2 Thus, the First, Second, Third and Fourth Circuits all clearly hold that Knotts and/or Karo are binding appellate precedent for purposes of Davis. Additionally, many of the other circuits will likely not have much opportunity to address this precise point because they already had decided cases before Jones was decided, holding that warrantless attachment and use of a GPS device on a suspect’s vehicle was acceptable under Knotts and/or Karo. Consequently, there would be no need to consider Knotts and Karo specifically as supporting application of the good-faith exception where their own circuit precedent had already existed. See, e.g., United States v. Hernandez, 647 F.3d 216, 220-21 (5th Cir. 2011) (relying on Knotts and its own prior precedent on beepers to hold that warrantless GPS attachment and monitoring was not a search in a case decided before Jones); United States v. Garcia, 474 F.3d 994, 996-97 (7th Cir. 2007) (same holding that warrantless GPS installation and use was not a search); United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (GPS installation and use requires only reasonable suspicion, not a warrant); United States v. Pineda-Moreno, 591 F.3d 1212, 1215-17 (9th Cir. 2010) (GPS installation and use is not a search); United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999) (holding that GPS installation was not a search); United States v. Smith, 387 F. App’x 918, 921 (11th Cir. 2010) (per curiam) (installation of a GPS device did not violate the fourth amendment because the defendant had no reasonable expectation of privacy in the exterior of his vehicle). There is, 2 Sparks also relied upon its own pre-Jones precedent in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), a case decided years before Knotts. Sparks did not delineate where its reliance on Knotts ended and its reliance on Moore began, but Sparks relied upon Knotts as binding appellate precedent for the same reasons we do. See Sparks, 711 F.3d at 65-67. - 10 -  then, nearly a clean sweep across the federal circuits holding that Knotts and Karo are controlling precedent for GPS searches pre-Jones, and there is not any definitive authority to the contrary. Cf. United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) (holding only that prolonged use of a GPS device, for 28 days, violated the fourth amendment, a question it considered specifically reserved by Knotts). ¶ 42 The first of several such cases to squarely address, after Jones and Davis, the issue of whether Knotts and Karo can be considered binding precedent for GPS searches conducted before Jones was the Second Circuit’s decision in United States v. Aguiar, which we have already quoted above. It will suffice to note that Aguiar unequivocally held that Knotts and Karo were binding precedent at the time police installed the GPS device on January 23, 2009, and then used it for the next 11 days. Aguiar, 737 F.3d at 261. Aguiar concluded that those cases were sufficient precedent for police to reasonably conclude that a warrant was not necessary. Id. In reaching this conclusion, the court noted that all of the circuits to consider warrantless GPS installation pre-Jones had concluded the same, and that no unsettling authority existed among the circuits until at least August 2010 when the District of Columbia Circuit in Maynard, 615 F.3d at 565, found only that prolonged use of GPS tracking for 28 days, 24 hours a day, violated the fourth amendment. 3 Aguiar further noted its conclusion that the officers relied in good faith on Knotts in placing the GPS device on the defendant’s vehicle was reinforced by the fact that many of its sister circuits had reached similar results. Aguiar, 737 F.3d at 262. The court further noted that “[t]hese [out-of-circuit] cases are not binding precedent and thus do not control our analysis ***, but do support the conclusion that relying on Knotts was objectively reasonable.” Id. 4 ¶ 43 The next United States Court of Appeals decision to address whether Knotts and Karo are binding precedent for GPS searches pre-Jones was rendered by the Fourth Circuit in United States v. Stephens, 764 F.3d 327 (4th Cir. 2014). In Stephens, federal and state law enforcement officers in the Baltimore area were investigating the defendant, a convicted felon, for possible drug and firearm charges. On May 13, 2011, a Baltimore police officer, acting without a warrant, placed a GPS device under the rear bumper of the defendant’s vehicle. Three days later, Baltimore city police tracked defendant in the vehicle. When the defendant arrived at his destination, the officers searched the vehicle and found a loaded handgun. The defendant was charged with state law crimes and remained in state custody for about three months, until a federal grand jury indicted the defendant on a federal firearm charge. The State 3 This was the case taken up by the Supreme Court, now captioned United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), which brought forth a “tectonic shift” in the legal landscape, to hold that the installation and use of the GPS device was an illegal search because of the trespass to the vehicle’s exterior. In Maynard, the defendant apparently thought any question as to a possible trespass due to the attachment of the GPS was so well settled that he did not raise it. Moreover, Maynard rested its holding on the prolonged surveillance (28 days duration), a question it considered left open by Knotts. Maynard, 615 F.3d at 558. 4 Aguiar stated that in the aftermath of Jones, there was a split in the circuits, as United States v. Katzin, 732 F.3d 187, 210 (3d Cir. 2013), “adopted a much stricter rule” declining to apply the good-faith exception because Knotts and Karo were distinguishable based on the lack of physical intrusion in those cases. Aguiar, 737 F.3d at 260. However, the Third Circuit granted rehearing en banc in Katzin, vacated its previous decision, and instead held that Knotts and Karo were indeed binding appellate precedent under Davis. - 11 -  of Maryland dismissed the charges after the federal indictment. Id. at 330. The cause then proceeded in federal court. Defendant then filed a motion to suppress based on Jones, which was denied by the district court. Id. ¶ 44 The Fourth Circuit in Stephens affirmed the denial of the suppression motion. Id. at 339. In so doing, it began by rejecting the defendant’s narrow view of the good-faith inquiry. Id. at 337. It noted that “Davis merely establishes the inapplicability of the exclusionary rule in one specific circumstance. Davis does not, however, alter the general good-faith inquiry which, we reiterate, requires consideration of whether a reasonably well-trained officer would have known that a search was illegal in light of all of the circumstances.” Id. The court then stated that in May 2011, when the search was conducted, which was before Jones, neither the Supreme Court nor the Fourth Circuit had expressly approved or disapproved of warrantless GPS usage. Id. It then noted that Knotts was “not exactly on point.” Id. But that it was “ ‘widely and reasonably understood to stand for the proposition that the Fourth Amendment simply was not implicated by electronic surveillance of public automotive movements’ [citation], and it was the ‘foundational Supreme Court precedent for GPS-related cases’ [citation].” Id. at 338. The court continued: “After Jones, we know that such an interpretation of Knotts is incorrect. Without the benefit of hindsight, however, and with no contrary guidance from the Supreme Court or this Court, we believe that a reasonably well-trained officer in this Circuit could have relied upon Knotts as permitting the type of warrantless GPS usage in this case.” Id. ¶ 45 The Stephens court found its conclusion to be undergirded by Maryland state law precedent (see Kelly, 82 A.3d at 216) holding that Knotts was binding appellate court precedent in Maryland under Davis, and therefore, “Maryland police officers could ‘reasonably rely on Knotts, pre-Jones, in affixing a GPS tracking device to the vehicle of a person under their investigation for the purpose of conducting surveillance.’ ” Stephens, 764 F.3d at 338. The court noted that the fact that defendant was later charged federally did not alter its determination. Id. The court then rejected the defendant’s argument that Maryland state law was irrelevant because the investigation was federal. Id. at 338 n.13. The court further noted that it was a joint state and federal investigation. Id. Moreover, the court observed that “ ‘in the initial stages of a criminal investigation, it may be anything but clear whether the conduct being investigated violates state law, federal law, or both,’ [citation] and ‘the decision with respect to the court in which charges are to be brought is often made by the Office of the United States Attorney and the state prosecutor, not the investigating officer,’ [citation].” Id. ¶ 46 The most recent federal court of appeals case to hold that Knotts and Karo are “binding appellate precedent” under Davis is United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) (decided en banc on rehearing), where the court conducted an excellent and exhaustive analysis of the issues. In Katzin, local police officers and the FBI were investigating a series of burglaries of pharmacies in the greater Philadelphia area. Id. at 167. On December 13, 2010, officers attached a GPS device to the undercarriage of defendant’s van while it was parked on a public street. Two days later the van was tracked to a certain pharmacy that was burglarized at the time defendant’s van was there. The defendant was eventually pulled over by state police and defendant was found with items consistent with the burglary of the pharmacy. Id. at 168 - 12 - ¶ 47 For the same reasons noted above, Katzin found Knotts and Karo to be binding precedent under Davis and law enforcement’s reliance upon it to be objectively reasonable. Additionally, Katzin rejected a narrow reading of Davis by noting the following: “[I]f binding appellate precedent specifically authorizes the precise conduct under consideration, then it will likely be binding appellate precedent *** under Davis. However, this does not make the reverse syllogism true, namely, that if a case is binding appellate precedent under Davis, then it must specifically authorize the precise conduct under consideration. Davis’ holding is broader: ‘[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.’ [Citation.] While reliance is likely reasonable when the precise conduct under consideration has been affirmatively authorized by binding appellate precedent, it may be no less reasonable when the conduct under consideration clearly falls well within rationale espoused in binding appellate precedent, which authorizes nearly identical conduct. Accordingly, what is far more important to our conclusion is that, despite these few dissimilarities [i.e., clandestinely installing a GPS to the exterior of the van rather than clandestinely tricking him into unwittingly taking the beeper device into his vehicle], the agents’ nearly identical conduct fits squarely within the rationale of these decisions.” Id. at 176. ¶ 48 Katzin then found in the alternative that even if the factual dissimilarities somehow disqualified Knotts and Karo from being binding precedent, which could be reasonably relied upon under Davis, the inquiry would not end there. Katzin noted that Davis was “but one application of the good faith exception,” although undoubtedly the most analogous one. Id. at 177. Katzin further noted that “[e]ven where Davis does not control, it is our duty to consider the totality of the circumstances to answer the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal.” (Internal quotation marks omitted.) Id. It further explained that: “Davis did not begin, nor end, with binding appellate precedent. Rather, binding appellate precedent informed—and ultimately determined—the Supreme Court’s greater inquiry: whether the officers’ conduct was deliberate and culpable enough that application of the exclusionary rule would ‘yield meaningful[l] deterrence,’ and ‘be worth the price paid by the justice system.’ [Citation.] We must conduct the same analysis on the facts before us, even in the absence of binding appellate precedent.” Id. at 178. ¶ 49 Katzin then reviewed the legal landscape as it existed at the time law enforcement installed the GPS device in December 2010, which included Knotts and Karo and several out-of-circuit decisions specifically upholding warrantless GPS installation and tracking. The court found that “[g]iven the panoply of authority authorizing their actions, we cannot conclude that a ‘reasonably well trained officer would have known that the search was illegal,’ [citation] nor that the agents acted with a ‘deliberate, reckless, or grossly negligent disregard for [Appellees’] Fourth Amendment rights,’ [citation].” Id. at 184. - 13 - ¶ 50 VI. Objectively Reasonable Good-Faith Belief ¶ 51 This brings us to our second reason for holding that the exclusionary rule is inapplicable under the circumstances. We find in the alternative, as the court did in Katzin, that, pursuant to the Supreme Court’s general good-faith analysis, the detective’s conduct, in relying on the legal landscape that existed at the time the search was conducted, was objectively reasonable, and he had no reason to suspect that his conduct was wrongful under the circumstances. Therefore, the exclusionary rule cannot be invoked here. It simply cannot be applied to a situation where it offers little or no deterrent benefit and where there is not the least bit of culpability that can be charged to the officer’s conduct in conducting a warrantless GPS search in 2009. ¶ 52 As noted, “when the police act with an objectively reasonable good-faith belief that their conduct is lawful ***, the deterrence rationale loses much of its force, and exclusion cannot pay its way.” (Internal quotation marks omitted.) Davis, 564 U.S. at ___, 131 S. Ct. at 2427-28 (quoting Leon, 468 U.S. at 907 n.6). We have already discussed the rationale of Knotts and Karo and how they were widely and reasonably understood to stand for the proposition that the fourth amendment was simply not implicated by electronic surveillance of automotive movements. Moreover, Karo’s “brushing off” and “discount[ing]” of the trespass theory meshed logically with earlier Supreme Court decisions concluding that the physical characteristics of an automobile and its use result in a lessened expectation of privacy. Additionally, it must be conceded that there would have been no merit to any argument raised prior to Jones that a physical trespass to the private property of a vehicle’s exterior would have constituted a search. See supra ¶ 37 n.1. When all of this is combined with the fact that there was no contrary federal circuit court or Illinois precedent in existence—but rather all of the federal court of appeals authority was in agreement, including the Seventh Circuit, one of the jurisdictions in which the police officers in this case operated, specifically having concluded that warrantless installation and use of a GPS device did not violate the fourth amendment (Garcia, 474 F.3d at 996-98; McIver, 186 F.3d at 1126-27)—then the circumstances are overwhelmingly in favor of concluding that suppression is not warranted here. ¶ 53 Given the state of the law with which police officers were faced in 2009, there is no merit to defendant’s intimation that the police in this case were risking that their conduct would be held unconstitutional. To characterize the officer’s conduct in such a manner is simply not a fair assessment in view of the legal landscape. ¶ 54 There is also no merit to the notion that the good-faith exception may never be applied in a state prosecution where local police reasonably rely upon the legal landscape in existence but there are no state law cases addressing the issue. “Nothing in Davis itself supports such an interpretation.” Stephens, 764 F.3d at 337; see also Brown, 744 F.3d at 478 (questioning whether there is any deterrence to be gained by telling police they may not “rely on decisions issued by several circuits, just because the circuit covering the state in which an investigation is ongoing lacks its own precedent”). And none of the Supreme Court precedent cited by the parties supports the idea that police may not rely upon the “ ‘constitutional norm’ ” that has been established by the legal landscape. See Katzin, 769 F.3d at 184 (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (where the Court considered the “constitutional norm” established by the court of appeals when determining whether an officer “had knowledge, or [could] properly be charged with knowledge, that the search was unconstitutional under the - 14 -  Fourth Amendment”)). ¶ 55 VII. Garcia Was Binding Appellate Precedent Under Davis ¶ 56 The third major point supporting our holding is that for purposes of Davis’s good-faith inquiry, the Seventh Circuit Court of Appeals decision in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), was “binding appellate precedent” for Illinois police officers that they could have reasonably relied upon in 2009. In Garcia, the defendant was a convicted felon who had served time for methamphetamine offenses. Id. at 995. Shortly after his release from prison, police received a tip from an informant that the defendant was selling meth and wanted to start manufacturing it again. The police located defendant’s vehicle and secretly placed a GPS device underneath the rear bumper. Evidence was subsequently gathered as a result of the GPS tracking that showed that defendant had resumed the manufacture of the illegal drug. Id. at 995-96. Garcia specifically rejected the contention that the warrantless installation of the GPS device violated the fourth amendment. Id. at 996-98. The court held that “[t]he defendant’s contention that by attaching the *** tracking device the police seized his car is untenable.” Id. at 996. And there is no search in the attachment either. Id. at 996-97. In so holding, Garcia stated the following: “But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.” (Emphasis in original.) Id. at 997. Thus, Garcia specifically authorized the police practice of attaching a GPS device to a vehicle without a warrant in the Seventh Circuit, which geographically includes Illinois. ¶ 57 Illinois law enforcement’s reliance upon Garcia fits squarely within the specific holding of Davis, because it was “binding appellate precedent” in the absence of any contrary Illinois state authority as far as the Aurora police detective was concerned, who stood in exactly the same shoes as the Alabama police officer in Davis that relied upon binding Eleventh Circuit Court of Appeals precedent when he conducted a search in the course of investigating a state law traffic offense. Accordingly, suppression of the evidence is not warranted. ¶ 58 In Davis, local police officers in Greenville, Alabama, conducted a routine traffic stop that resulted in the arrest of the defendant, the driver of the vehicle, for a state DUI offense. Davis, 564 U.S. at ___, 131 S. Ct. at 2425. The defendant was handcuffed by police and placed in the back of the squad car. Id. at ___, 131 S. Ct. at 2425. Police then searched the passenger compartment of the vehicle and found a gun in the defendant’s jacket. Id. at ___, 131 S. Ct. at 2425. Defendant was ultimately prosecuted in federal court on a firearm charge. Id. at ___, 131 S. Ct. at 2425-26. ¶ 59 Even after a defendant has stepped out of the vehicle and has been subdued by police, the prevailing understanding among courts was that New York v. Belton, 453 U.S. 454 (1981), had set down a bright-line rule, authorizing searches incident to arrest regardless of the location of the arrestee at the time of the search. Davis, 564 U.S. at ___, 131 S. Ct. at 2424. The federal district court in Davis denied the motion to suppress based on Belton. However, while the case was pending on appeal, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009), - 15 -  which upset the prevailing interpretation of Belton. Before Gant, the Eleventh Circuit had been one of many federal appeals courts to read Belton permissively so as to allow searches of the vehicle even after the suspects were handcuffed and placed under arrest. See United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir. 1996) (allowing search pursuant to Belton where the suspect was already arrested and handcuffed). When the Davis case reached the Supreme Court, it consequently became necessary to resolve the question of “whether to apply the exclusionary rule when the police *** [rely upon] binding judicial precedent.” Davis, 564 U.S. at ___, 131 S. Ct. at 2428. ¶ 60 As noted, the Supreme Court found the Eleventh Circuit precedent in Gonzalez to be “binding appellate precedent” for the local Alabama police officers who were conducting a routine traffic stop and investigating a purely state traffic offense when they decided to conduct a search in objectively reasonable reliance upon Gonzalez. 5 Davis, 564 U.S. at ___, 131 S. Ct. at 2428. As we have emphasized throughout this opinion, absolutely crucial to the decision in Davis was the lack of police culpability. It is hard to fathom, then, how the Aurora police officer in the present case—who could have reasonably relied upon Garcia as a case directly on point, which was followed to “the letter”—could be considered to be in any different position than the Alabama officers in Davis, who relied upon Gonzalez, which was followed to the letter. There appears to be no principled basis on which to distinguish Davis from the present case, and defendant has not offered one. ¶ 61 The only reason defendant offers for not applying the good-faith exception based on reliance upon Garcia is that in the present case, “[t]here is no indication in the record that police were doing anything other than investigating a state offense, and [defendant] was ultimately charged in state court.” But that is the exact same situation as Davis, where state police officers were investigating a state crime they had no reason to believe would be prosecuted in federal court. As Davis itself shows, in the initial stages of a criminal investigation, it is not clear whether the conduct being investigated will end up supporting a violation of state law, federal law, or both. Moreover, the decision as to which court to bring the charges, federal or state, is almost certainly never made by the investigating officer. See Stephens, 764 F.3d at 338 n.13. Surely, the decision in Davis cannot be read to rest on the fortuitous and conceptually irrelevant distinction that—after the search was already undertaken and without knowing what it would produce—Davis’s weapon charge could be prosecuted in federal court whereas the robbery charge here could not. We decline the invitation to presume that the Supreme Court intended such an absurd result. ¶ 62 As a final matter, we address the dissent’s claim that we have made a “deeply troubling departure” from the holding in People v. Krueger, 175 Ill. 2d 60 (1996), and People v. Madison, 121 Ill. 2d 195 (1988), by recognizing the good-faith exception of Davis. The dissent is clearly mistaken in its belief that Krueger and Madison are at odds with the outcome in the present case. ¶ 63 In Krueger, this court first addressed the constitutionality of an Illinois statute that allowed police to enter a home without first knocking and announcing their office where a warrant had 5 At the time the Alabama police officers conducted their search of the vehicle in Davis, the Alabama Supreme Court had not specifically addressed the location of the arrestee at the time of arrest. See Gundrum v. State, 563 So. 2d 27, 28 (Ala. Crim. App. 1990) (noting that its state supreme court had not addressed the issue). - 16 -  been issued pursuant to the no-knock provision contained in the statute. Specifically, the statute allowed a no-knock entry if the occupant of the building had possessed a firearm “within a reasonable time period.” People v. Krueger, 175 Ill. 2d at 64; 725 ILCS 5/108-8(b)(2) (West 1994). This court began by noting that the search and seizure clauses of both the federal and state constitutions should be measured using the same standard. Krueger, 175 Ill. 2d at 65 (which held that any variance between the Supreme Court’s construction of the fourth amendment and similar provisions in the Illinois Constitution must be based on language in our state constitution, or the debates or committee reports of the constitutional convention, that indicate that the provisions of our state constitution are intended to be construed differently than the provisions of the federal constitution after which they are patterned) (citing People v. Tisler, 103 Ill. 2d 226, 235-36 (1984)). Relying upon Wilson v. Arkansas, 514 U.S. 927 (1995), and People v. Condon, 148 Ill. 2d 96, 101 (1992), Krueger found that although a no-knock entry can be constitutionally permitted if exigent circumstances are present, simple possession of firearms by the occupant without more does not qualify. Krueger rejected the argument that it would decrease the danger to officers to dispense with the usual requirements of knocking and announcing. Krueger, 175 Ill. 2d at 67-68. This court noted that in a situation where the occupant is not known to be violent, it might actually increase the risk of harm to the officers when the occupant is threatened by a completely unexpected and unannounced entry. Id. at 68-69. ¶ 64 After finding that the statutory provision in question was unconstitutional, Krueger then turned to the question of whether the evidence seized from the defendant’s home pursuant to the unconstitutional statute should be excluded from trial. The State urged this court to adopt Illinois v. Krull, 480 U.S. 340 (1987), where the Supreme Court applied the good-faith exception to the exclusionary rule in the specific instance of a police officer having relied, in good faith, on a statute that authorized a warrantless administrative search, but the statute was later declared unconstitutional. Krueger, 175 Ill. 2d at 70-71. Krueger recognized that Krull was controlling as a matter of federal constitutional law, but Krueger nevertheless held that “the exclusionary rule arising out of our state constitution (Ill. Const. 1970, art. I, § 6) continues to afford the protection abrogated by Krull.” Id. at 73-74. ¶ 65 In departing from the lockstep doctrine of following Supreme Court decisions in fourth amendment cases, Krueger referred to this state’s particular history with respect to the exclusionary rule’s application to evidence obtained under an unconstitutional statute: “[Our] exclusionary rule has always been understood to bar evidence gathered under the authority of an unconstitutional statute (see Brocamp, 307 Ill. 448, (adopting the reasoning in Weeks for purposes of our state exclusionary rule); Weeks, 232 U.S. at 394, 58 L. Ed. at 656, 34 S. Ct. at 345 (making it clear that the federal exclusionary rule was intended to apply to evidence gathered by officers acting under ‘legislative *** sanction’)), so long as that statute purported to authorize an unconstitutional search or seizure (see Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979) (recognizing a substantive-procedural distinction not at issue here; specifically holding that the fourth amendment exclusionary rule did not apply where an ordinance was held unconstitutional on vagueness grounds)). Consequently, to adopt Krull’s extended good-faith exception would drastically change this state’s constitutional law.” Id. at 74-75. - 17 - ¶ 66 From the foregoing, it is crystal clear that Krueger held only that the good-faith exception as expressed in Krull—which dealt only with an officer’s reliance upon a statute later declared unconstitutional—would not be recognized in Illinois for purposes of our state constitution. Krueger therefore has no application to the present case where an officer could have reasonably relied in objective good faith on binding appellate judicial decisions and the constitutional norm that had been established thereby. This is further borne out by Krueger’s heavy reliance upon Justice O’Connor’s dissenting opinion in Krull arguing that “ ‘the core concern’ ” of the framers of the fourth amendment was the enactment of unconstitutional statutes by the legislative branch. Id. at 72 (quoting Krull, 480 U.S. at 362-63 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). Krueger further noted that Justice O’Connor found this history illustrative of the fact that the relevant state actors in Krull—legislators—often pose a serious threat to fourth amendment values and that this presented a clear distinction from the situation in United States v. Leon, 468 U.S. 897 (1984), where a judicial officer issues a warrant that is not supported by probable cause. Krueger, 175 Ill. 2d at 72. We find that the same threat to fourth amendment values that was of concern in Krueger is not present when police reasonably rely in objective good faith on judicial precedent. Nor is there any concern here of a “grace period” giving effect to the operation of an unconstitutional legislative act. ¶ 67 Finally, Krueger expressly reaffirmed that this court would continue to accept both the good-faith exception as expressed in Leon and the rationale used to support it. Notably, Krueger did not imply that it would refuse to follow any further expansion or a different articulation of the good-faith exception made by the Supreme Court in future cases. ¶ 68 Given the actual rationale and holding of Krueger, it is no surprise that defendant did not argue before this court that it controlled the outcome here. The dissent’s treatment of it obviously misses the mark. ¶ 69 The same can be said for the dissent’s unsolicited reliance upon Madison. In that case, the plain language of the statute required police to obtain a warrant before searching and seizing evidence discovered during an administrative inspection. Madison, 121 Ill. 2d at 201. The Madison court noted that the problem with the State’s argument for application of the good-faith exception was that “[t]he officers were acting in defiance of, not reliance on,” the plain words of the statute when they conducted their warrantless search and seizure. Id. at 208. Such conduct cannot be considered objectively reasonable, and therefore the dissent’s use of Madison to support its position is puzzling. Madison would be instructive if, in the present case, police had defied the plain language of an existing statute or judicial ruling and substituted their own erroneous interpretation. But that of course is not the case here. In trying to fit a square peg into a round hole, the dissent seems to purposely ignore that the good-faith exception has an objective reasonableness component. See Davis, 564 U.S. at___, 131 S. Ct. at 2423-24 (“searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule”); see also Katzin, 769 F.3d at 176 (reliance is reasonable “when the conduct under consideration clearly falls within rationale espoused in binding appellate precedent, which authorizes nearly identical conduct”). - 18 - ¶ 70 CONCLUSION ¶ 71 We hold that the good-faith exception applies and that the evidence obtained against defendant should not be excluded. We find Knotts, Karo and Garcia to be “binding appellate precedent” within the meaning of Davis and that Aurora police could have reasonably relied upon such precedent in placing and using the GPS device in 2009. In the alternative, we further find that it would have been objectively reasonable for police to rely upon the legal landscape and the constitutional norm that had been established at the time of the search that allowed warrantless attachment and use of GPS technology. In so doing, we conclude that there was a complete lack of police culpability in this case and that there would be little or no deterrent value to suppressing the evidence. At the same time, the cost to society of letting a clearly guilty repeat offender go free is too great and the exclusionary rule cannot pay its way in this case. Finally, we caution that after Jones law enforcement should beware of its holding and how it relates to GPS attachment and monitoring. ¶ 72 For the foregoing reasons, we affirm the appellate court’s remand for a new trial because of the Rule 401(a) violation. However, we reverse the portion of the appellate court’s judgment that vacated the trial court’s order denying defendant’s motion to quash arrest and suppress evidence. We also reverse the portion of the appellate court’s judgment that remanded the cause for further proceedings on defendant’s motion. ¶ 73 Appellate court affirmed in part and reversed in part. ¶ 74 Circuit court affirmed in part and reversed in part. ¶ 75 Cause remanded. ¶ 76 JUSTICE BURKE, dissenting: ¶ 77 In a deeply troubling departure from this court’s constitutional precedent, the majority now recognizes for purposes of our state exclusionary rule the “good-faith” exception to the federal exclusionary rule set forth by the United States Supreme Court in Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419 (2011). Under Davis, when, in good faith, the police conduct an unconstitutional search based on their objectively reasonable reliance on “binding appellate precedent” which is later overruled, evidence resulting from the search is not subject to the federal exclusionary rule. Id. at ___, 131 S. Ct. at 2423-24. Applying Davis to the facts before this court, the majority holds that the good-faith exception applies because binding appellate precedent at the time of the search authorized the warrantless installation of a GPS device on the vehicle driven by defendant. Alternatively, the majority holds that the evidence obtained from the GPS device is not subject to suppression because the police reasonably relied upon persuasive, nonbinding precedent from other jurisdictions. In applying the good-faith exception, the majority unfortunately chooses not to resolve the issue at the heart of this case—the constitutionality of warrantless GPS tracking of a suspect by the police. ¶ 78 I disagree with the decision reached by the majority in several respects. First, the majority’s extension of the good-faith exception in Davis to our state exclusionary rule is directly at odds with People v. Krueger, 175 Ill. 2d 60 (1996), where we refused to recognize a good-faith exception for searches conducted in objectively reasonable reliance on a statute which is later held to be unconstitutional. In Krueger, we held that the good-faith exception was incompatible with the exclusionary rule arising out of our state constitution. We - 19 -  interpreted our exclusionary rule as providing greater protection of a citizen’s right to be free from unconstitutional searches and seizures than the federal exclusionary rule. Id. at 73-76. For reasons similar to those set forth in Krueger, I would decline the State’s request to recognize the Davis good-faith exception for searches conducted in reasonable reliance on binding appellate precedent. ¶ 79 The majority’s alternative holding, based on a broad reading of dicta in Davis, amply demonstrates why this court should reject Davis as contrary to the Illinois exclusionary rule. The majority goes well beyond the holding in Davis and finds that the good-faith exception applies to searches conducted in the absence of any binding precedent where the police reasonably rely on the prevailing “legal landscape.” The majority also invites the lower courts to conduct a general “good-faith inquiry” which is not limited to the specific circumstances in Davis or any other Supreme Court case. By reading into Davis a much broader good-faith exception than the one delineated in the Court’s holding, the majority affords less protection to the rights of Illinois citizens to be free from unconstitutional searches and seizures than intended by the Supreme Court. The result will be the erosion, and possible destruction, of the exclusionary rule in this state. ¶ 80 Lastly, I disagree with the majority that, at the time the police officers installed the GPS device and used it to monitor the vehicle’s movements, there was any relevant, binding authority which could have authorized their conduct. The case law cited by the majority is either inapposite or was not binding on Illinois state courts. For these reasons, I respectfully dissent. ¶ 81 BACKGROUND ¶ 82 In 2009, the Aurora police covertly installed a GPS device on a vehicle defendant was known to drive for the purpose of tracking defendant’s movements in the vehicle. The police did not obtain a warrant prior to installing the GPS device. Location data from the GPS device was used to connect defendant to a gas station robbery which took place approximately 24 hours after the device was installed. Defendant was subsequently arrested and charged with aggravated robbery, robbery, and burglary. His motion to quash arrest and suppress the evidence gleaned from the GPS tracker was denied, and he was convicted of all charges. ¶ 83 While defendant’s appeal was pending in the appellate court, the United States Supreme Court decided United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012). The Jones Court held that the government’s installation of a GPS device on a suspect’s vehicle, and its use of the device to monitor the vehicle’s movements, constitutes a search under the fourth amendment (U.S. Const., amend. IV). Jones, 565 U.S. at ___, 132 S. Ct. at 949. Taking Jones into consideration, the appellate court below held that a fourth amendment search took place when the police attached the GPS device to the vehicle and used it to track defendant’s movements. 2013 IL App (2d) 100659, ¶ 13. Accordingly, the appellate court vacated the trial court’s order denying defendant’s motion to quash arrest and suppress evidence. The court then remanded the matter for a new suppression hearing to determine whether defendant had a - 20 -  sufficient possessory interest in the vehicle to raise a constitutional claim under Jones. Id. ¶ 29. 6 ¶ 84 Addressing the State’s appeal of that judgment, the majority now declines to consider whether defendant had a sufficient possessory interest in the vehicle to challenge the search under Jones, or even whether an unconstitutional search took place in the first instance. Supra ¶ 18. Instead, the majority finds that the good-faith exception in Davis applies because the police installed the GPS device in objectively reasonable reliance on the “legal landscape” in existence at that time, or, alternatively, on binding appellate precedent authorizing the installation. Supra ¶ 31. The majority thus finds that defendant is not entitled to a new suppression hearing because, even if an unconstitutional search took place, any evidence resulting from the search would be admitted upon retrial. ¶ 85 ANALYSIS ¶ 86 I. The Davis Good-Faith Exception Is Incompatible With Our State Exclusionary Rule ¶ 87 The United States Supreme Court first recognized a limited “good-faith” exception to the federal exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court held that the fourth amendment exclusionary rule does not bar evidence obtained by a police officer who reasonably relies, in objective good faith, on a search warrant issued by a neutral and detached magistrate, but which is later found to be unsupported by probable cause. Id. at 919-22. The Court reasoned that application of the exclusionary rule in this situation would not serve the primary purpose of the rule, which is to deter future police misconduct. Id. at 918-21. This court recognized the Leon good-faith exception for purposes of the state exclusionary rule in People v. Stewart, 104 Ill. 2d 463, 477 (1984); see also People v. Turnage, 162 Ill. 2d 299 (1994) (applying Leon). ¶ 88 The Supreme Court extended Leon to a warrantless search for the first time in Illinois v. Krull, 480 U.S. 340 (1987). Krull held that the federal exclusionary rule does not bar evidence seized by a police officer who reasonably relies, in objective good faith, on a statute authorizing a warrantless administrative search, where the statute is later held to be unconstitutional. Id. at 349-50. In People v. Krueger, 175 Ill. 2d 60 (1996), however, this court declined to recognize Krull’s expansion of the Leon good-faith exception as a matter of state constitutional law. ¶ 89 In Krueger, police officers executed a search warrant issued pursuant to a “no-knock” statute (725 ILCS 5/108-8(b) (West 1994)), which this court held was unconstitutional under both the fourth amendment and article I, section 6, of the Illinois Constitution of 1970. Krueger, 175 Ill. 2d at 69-70. The State argued that we should reverse the circuit court’s suppression order pursuant to the Krull good-faith exception. We rejected the State’s argument, holding that the exclusionary rule arising from article I, section 6, provides greater protection from unconstitutional searches and seizures than the federal exclusionary rule. Id. at 73-74. We observed that this court has the authority to interpret state constitutional provisions 6 The appellate court also reversed defendant’s convictions and remanded the matter for a new trial based on improper Illinois Supreme Court Rule 401(a) admonishments. The majority affirms this part of the appellate court’s judgment. - 21 -  more broadly than the Supreme Court interprets similar provisions of the federal constitution. Id. at 74 (citing People v. Perry, 147 Ill. 2d 430, 436 (1992)). We also noted that the exclusionary rule is a judicially created remedy with a long history in Illinois, traced back to People v. Brocamp, 307 Ill. 448 (1923). In Brocamp, this court adopted an independent state exclusionary rule almost 40 years before Mapp v. Ohio, 367 U.S. 643 (1961), made the federal exclusionary rule applicable to the states. Krueger, 175 Ill. 2d at 74-75. See also Illinois v. Gates, 462 U.S. 213, 221-22 (1983); id. at 251 (White, J., concurring) (a state court may rest a decision to modify its state exclusionary rule on adequate and independent state grounds). ¶ 90 In rejecting Krull as a matter of state law, we balanced the legitimate aims of law enforcement against the right of our citizens to be free from unreasonable governmental intrusion. We found that the citizens’ rights prevailed, holding: “[w]e are not willing to recognize an exception to our state exclusionary rule that will provide a grace period for unconstitutional search and seizure legislation, during which time our citizens’ prized constitutional rights can be violated with impunity. We are particularly disturbed by the fact that such a grace period could last for several years and affect large numbers of people. This is simply too high a price for our citizens to pay. We therefore conclude that article I, section 6, of the Illinois Constitution of 1970 prohibits the application of Krull’s extended good-faith exception to our state exclusionary rule.” Krueger, 175 Ill. 2d at 75-76. ¶ 91 Our decision in Krueger relied on the reasoning set forth in Justice O’Connor’s dissent in Krull. See id. at 72-73. Justice O’Connor criticized the Krull majority’s extension of the Leon good-faith exception, arguing that this newly created exception was not supported by the rationale in Leon. Id. at 72 (citing Krull, 480 U.S. at 361 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). First, she observed that, in contrast to a search authorized by a facially valid warrant later found to be defective, there was a “ ‘powerful historical basis for the exclusion of evidence gathered pursuant to a search authorized by an unconstitutional statute.’ ” Id. (quoting Krull, 480 U.S. at 362 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). Second, Justice O’Connor argued that legislators were much more likely to pose a threat to fourth amendment protections than a neutral magistrate issuing a search warrant in a specific case. She noted: “ ‘Judicial authorization of a particular search does not threaten the liberty of everyone, but rather authorizes a single search under particular circumstances. The legislative act, on the other hand, sweeps broadly, authorizing whole classes of searches, without any particularized showing. A judicial officer’s unreasonable authorization of a search affects one person at a time; a legislature’s unreasonable authorization of searches may affect thousands or millions and will almost always affect more than one. Certainly the latter poses a greater threat to liberty.’ ” Id. at 72-73 (quoting Krull, 480 U.S. at 365 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). ¶ 92 Moreover, Justice O’Connor observed that the majority’s decision was at odds with the retroactivity principles in Griffith v. Kentucky, 479 U.S. 314 (1987), which held that “ ‘basic norms of constitutional adjudication’ and fairness to similarly situated defendants” required that opinions announcing new constitutional rules in criminal cases apply to all cases pending on direct review at the time the new rule is declared. Krull, 480 U.S. at 368 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.) (quoting Griffith, 479 U.S. at 322). - 22 -  Justice O’Connor pointed out that, under the novel approach taken by the Krull majority, “ ‘no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional.’ ” Krueger, 175 Ill. 2d at 73 (citing Krull, 480 U.S. at 368 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). As Justice O’Connor noted, “the lack of a remedy leaves no incentive for the aggrieved defendant to challenge the statute as unconstitutional.” Id. (citing Krull, 480 U.S. at 369 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). ¶ 93 The same flaws identified by this court in Krueger with respect to the Krull good-faith exception are inherent in the good-faith exception for police searches “conducted in objectively reasonable reliance on binding appellate precedent” (Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24), applied by the majority in the case at bar. Under both good-faith exceptions, the police are said to have reasonably relied on existing authority (an authorizing statute in Krull; binding appellate authority in Davis), which is later found to be unconstitutional or overruled by subsequent case law. In both situations, there is a “grace period,” which could last several years, during which the state is free to perform unconstitutional searches and seizures with impunity. See Krueger, 175 Ill. 2d at 75; Krull, 480 U.S. at 361 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.). Just as in Krull, the Davis good-faith exception has the potential to affect thousands of people by authorizing a whole class of searches, in contrast to a single search authorized by a defective search warrant. See Krueger, 175 Ill. 2d at 72-73; Krull, 480 U.S. at 365 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.). Moreover, under both Krull and Davis, the lack of a remedy leaves no incentive for a defendant to challenge a statute as unconstitutional or to seek to overturn case law authorizing an unconstitutional search. See Krueger, 175 Ill. 2d at 73; Krull, 480 U.S. at 368 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.); see also Davis, 564 U.S. at ___, 131 S. Ct. at 2438 (Breyer, J., dissenting, joined by Ginsburg, J.) (criticizing the Davis majority for adopting a good-faith exception at odds with retroactivity principles and arguing that a defendant has little incentive to challenge court precedent). Finally, unlike Leon, which “simply instructs courts that police officers may rely upon a facially valid search warrant,” the good-faith exceptions in Krull and Davis are difficult for courts to administer because it is “not apparent how much constitutional law the reasonable officer is expected to know.” Krull, 480 U.S. at 366-67 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.); see also Davis, 564 U.S. at ___, 131 S. Ct. at 2437 (Breyer, J., dissenting, joined by Ginsburg, J.) (application of the Davis good-faith exception will result in “complex legal argument and police force confusion”). ¶ 94 This court noted in Krueger that Krull had been severely criticized by fourth amendment scholars. See Krueger, 175 Ill. 2d at 76 (citing 1 Wayne R. LaFave, Search and Seizure § 1.3(h), at 96-99 (3d ed. 1996)). Davis also has received sharp criticism from legal scholars for its potential to erode, or even nullify, the federal exclusionary rule. See 1 Wayne R. LaFave, Search and Seizure § 1.3(h), at 132-46 (5th ed. 2012); George M. Dery III, “This Bitter Pill”: The Supreme Court’s Distaste for the Exclusionary Rule in Davis v. United States Makes Evidence Suppression Impossible to Swallow, 23 Geo. Mason U. Civ. Rts. L.J. 1, 19-23 (2012); James J. Tomkovicz, Davis v. United States: The Exclusion Revolution Continues, 9 Ohio St. J. Crim. L. 381, 400-02 (2011); David A. Moran, Hanging on by a Thread: The Exclusionary Rule (or What’s Left of It) Lives for Another Day, 9 Ohio St. J. Crim. L. 363, 375-80 (2011). Several state courts already have rejected Davis on state law grounds. See, e.g., - 23 -  Brown v. State, 767 S.E.2d 299, 302-03 (Ga. Ct. App. 2014); State v. Anderson, 445 S.W.3d 895, 912 (Tex. App. 2014); State v. Koivu, 272 P.3d 483, 518-19 (Idaho 2012). ¶ 95 The majority’s recognition of the Davis good-faith exception in this case is totally at odds with Krueger, where this court held that our state exclusionary rule provides greater protection of our citizens’ constitutional rights than the federal exclusionary rule. I cannot see a way to reconcile today’s decision with Krueger. I would find that Krueger precludes this court from adopting the Davis good-faith exception for purposes of our state exclusionary rule, and thus, that defendant is entitled to a new suppression hearing. ¶ 96 II. The Majority’s “Good-Faith Inquiry” and “Legal Landscape” Theories Are Not Supported by the Narrow Holding in Davis ¶ 97 Even if I agreed that the Davis good-faith exception should be extended to the exclusionary rule arising out of article I, section 6, of the Illinois Constitution, I could not sign on to the majority’s alternative holding in this case. The majority finds that the good-faith exception in Davis is not limited to “objectively reasonable reliance on binding appellate precedent.” See Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24. According to the majority, in the absence of any binding precedent authorizing the actions of the police: “[i]t would still be necessary to conduct the ‘good-faith inquiry’ and consider ‘whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.’ [Citation.] Clearly, application of the good-faith inquiry is not limited to the specific circumstances addressed by the Supreme Court in Davis or in any other Supreme Court case. [Citation.] The Supreme Court has found the exclusionary rule to be inapplicable in a variety of settings after undertaking the good-faith analysis, and the fact that a court might apply the good-faith exception in a new context not yet addressed by the Supreme Court does not mean that it is creating a ‘new, freestanding exception’ to the exclusionary rule. [Citations.] *** *** [W]e find in the alternative that, pursuant to the Supreme Court’s general good-faith analysis, the police conduct in relying on the legal landscape that existed at the time was objectively reasonable and a reasonable officer had no reason to suspect that his conduct was wrongful under the circumstances.” Supra ¶ 29. ¶ 98 I disagree with both aspects of the majority’s alternative holding: (1) that the Supreme Court’s good-faith decisions contemplate a general “good-faith inquiry” not limited to the specific circumstances in those decisions; and (2) that, in the absence of binding appellate precedent, the good-faith exception applies to a search conducted in objectively reasonable reliance on the existing “legal landscape.” ¶ 99 First, the authority the majority cites for the proposition that the “good-faith inquiry” is not limited to the specific circumstances in Davis, or in any other Supreme Court case, is a decision of the United States Court of Appeals for the Fourth Circuit (United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014)), which, obviously, is not binding on this court. See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992). I do not find the reasoning in that case to be persuasive. The Supreme Court has, thus far, taken great care to limit application of the good-faith exception to specific, atypical searches involving reasonable reliance by the police. See United States v. Leon, 468 U.S. 897 (1984) (later-invalidated - 24 -  warrant); Illinois v. Krull, 480 U.S. 340 (1987) (subsequently overturned statute); Arizona v. Evans, 514 U.S. 1 (1995) (error in court-maintained database); Herring v. United States, 555 U.S. 135 (2009) (error in police-maintained database); Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419 (2011) (later-reversed binding appellate precedent). In my view, these decisions should be read narrowly and their holdings limited to the particular factual scenarios before the Court. Warrantless searches generally are considered per se unreasonable unless they fall within “ ‘a few specifically established and well-delineated exceptions.’ ” People v. Galvin, 127 Ill. 2d 153, 169-70 (1989) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The majority’s adoption of a “general good-faith analysis” (supra ¶ 31) under which evidence resulting from an unconstitutional search will be admitted in the absence of gross negligence by the police, regrettably turns the exception into the rule. See United States v. Katzin, 769 F.3d 163, 189-90 (3d Cir. 2014) (en banc) (Greenaway, J., dissenting, joined by McKee, C.J., and Ambro, Fuentes, and Smith, JJ.). ¶ 100 Under the majority’s reasoning, police officers are authorized to conduct warrantless searches based solely on their own good judgment about the existence of probable cause, and, if they are wrong, the evidence will almost never be suppressed. The alarming scope of the majority’s alternative holding is exactly why this court rejected the Krull good-faith exception in Krueger. We feared that the good-faith exception would weaken our state exclusionary rule by leaving citizens without a remedy for constitutionally invalid searches and seizures. The dissenters in Davis echoed this concern with respect to the federal exclusionary rule. “[A]n officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding,’ where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was ‘deliberate, reckless, or grossly negligent,’ then the ‘good faith exception’ will swallow the exclusionary rule. *** Any such change (which may already be underway) would affect not ‘an exceedingly small set of cases,’ [citation] but a very large number of cases, potentially many thousands each year. [Citation.] And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from ‘unreasonable searches and seizures.’ [Citations.] It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.” (Emphasis in original.) Davis, 564 U.S. at ___, 131 S. Ct. at 2438-40 (Breyer, J., dissenting, joined by Ginsburg, J.). ¶ 101 The majority’s expansion of the Davis good-faith exception also runs afoul of this court’s holding in People v. Madison, 121 Ill. 2d 195 (1988), abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). In Madison, 121 Ill. 2d at 207-08, police officers conducted a warrantless inspection of a salvage yard pursuant to an authorizing provision in the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95½, ¶ 5-403). The officers then seized 26 incomplete - 25 -  certificates of vehicle title without first obtaining a search warrant, despite statutory language stating that a warrant was required. The owner of the salvage yard was charged with possession of the incomplete titles. At trial, the defendant’s motion to suppress the evidence was granted, and the case was dismissed. The appellate court affirmed. This court affirmed the lower courts. Madison, 121 Ill. 2d at 211. We first held that the plain language of section 5-403 of the Vehicle Code required police officers to obtain a warrant before seizing evidence in the course of a valid administrative search. Id. at 200-06. Because the officers seized the titles without a warrant, the evidence was illegally obtained and subject to suppression. The State next argued that the evidence, even if illegally obtained, was not subject to the exclusionary rule because the officers relied, in good faith, on their own interpretation of the statute. We rejected the State’s invitation to extend the good-faith exceptions in Leon and Krull to these circumstances. We said that the officers were acting in defiance of, not reliance on, the language in the authorizing statute. Id. at 208. Moreover, we held: “to adopt the extension of the good-faith exception proposed by the State would essentially eviscerate the exclusionary rule as it is currently enforced. Police officers would be encouraged to defy the plain language of statutes as written in favor of their own interpretations in conducting searches and seizures. Such a proposal, giving the police unlimited authority to conduct searches and seizures until specifically restricted by the legislature or the courts, is fundamentally at odds with the central purpose of deterring police misconduct which underlies the exclusionary rule.” Id. ¶ 102 Thus, this court in Madison expressly refused to recognize an extension of the good-faith exception, reasoning that such an extension would eviscerate our state exclusionary rule by encouraging police officers to rely on their own interpretations of statutes rather than seek to obtain a warrant. In contravention of what we said in Madison, the majority now recognizes a general exception to the exclusionary rule, whereby an officer’s interpretation of a statute or case law, if made in “good faith,” would prevent the exclusion of evidence. Today’s decision is a radical departure from our settled case law in both Krueger and Madison, which the majority does not reconcile. ¶ 103 Under the second part of the majority’s alternative holding, the majority rules that, in the absence of binding appellate precedent authorizing a search, Davis allows a good-faith exception for searches conducted in reasonable reliance on the “legal landscape” that existed at the time the search was conducted. Supra ¶¶ 31, 51. The majority identifies only two cases decided prior to April 23, 2009, which might have justified the officers’ actions at the time of the search. See supra ¶ 52 (citing United States v. Garcia, 474 F.3d 994, 996-98 (7th Cir. 2007), and United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999)). These two nonbinding decisions were, in the majority’s view, sufficient to comprise the prevailing “legal landscape” upon which the police could have reasonably relied in conducting their warrantless search. 7 7 The majority states that the Supreme Court’s “beeper” cases, United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), were “widely and reasonably understood to stand for the proposition that the fourth amendment was simply not implicated by electronic surveillance of automotive movements.” Supra ¶ 52. However, most of the federal court opinions referenced by the majority were decided after the search in this case took place, and, thus, could not have been relied upon by the Aurora police. - 26 - ¶ 104 The majority’s “legal landscape” theory is directly at odds with Davis, which contains multiple, repeated references to the officers’ reasonable reliance on “binding” precedent. Davis recognized a narrow exception, whereby “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24. The Court found that the officers’ search of the defendant incident to his arrest “followed the Eleventh Circuit’s Gonzalez precedent to the letter.” Id. at ___, 131 S. Ct. at 2428. The Court emphasized that the officers strictly complied with “then-binding Circuit law” and “scrupulously adhered to governing law” in the Eleventh Circuit. Id. at ___, ___, 131 S. Ct. at 2428, 2434. Furthermore, in the course of explaining that its acceptance of a good-faith exception would not deter defendants from challenging existing fourth amendment doctrine in future cases, the Court noted that “defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue.” (Emphasis added.) Id. at ___, 131 S. Ct. at 2433. See also Davis, 564 U.S. at ___, 131 S. Ct. at 2435 (Sotomayor, J., concurring in the judgment) (noting that “[t]his case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled”). Davis thus recognized that its holding was limited to jurisdictions which clearly authorized the officers’ conduct. ¶ 105 The majority’s alternative holding is an alarming and unwarranted expansion of the carefully circumscribed good-faith exception in Davis. There are no references in Davis to “generally accepted authority,” “legal landscape,” or persuasive or well-reasoned precedent. See United States v. Ortiz, 878 F. Supp. 2d 515, 539-40 (E.D. Pa. 2012). See also United States v. Martin, 712 F.3d 1080, 1081-82 (7th Cir. 2013) (per curiam) (where there was no binding appellate precedent in the Eighth Circuit at the time that Iowa law enforcement officers attached a GPS device to the defendant’s car, the court declined to expand Davis to allow police to rely on “a diffuse notion of the weight of authority around the country”). Accordingly, the majority’s holding that the Davis good-faith exception applies based on the officers’ objectively reasonable reliance on the “legal landscape” is a deliberate misreading of Davis. ¶ 106 The majority’s alternative holding is troubling for the additional reason that it signifies this court’s abandonment of its duty to decide constitutional issues and shifts such decisionmaking to the police. Based on its application of the Davis good-faith exception, the majority declines to consider the important constitutional issues raised in this appeal. At the time of the search in this case, there was no binding precedent in Illinois with respect to warrantless, surreptitious GPS installation and monitoring. And because the majority refuses to address the constitutionality of GPS surveillance, there still is none. I fear that the majority’s expansion of the good-faith doctrine will inevitably lead to the avoidance of meaningful analysis of the constitutionality of searches and seizures, particularly those involving new technology. ¶ 107 III. Knotts, Karo, and Garcia Were Not “Binding” Authority Under Davis ¶ 108 My final point of disagreement is with the majority’s application of the Davis good-faith exception to the police officers’ objectively reasonable reliance on United States v. Knotts, 460 U.S. 276 (1983), United States v. Karo, 468 U.S. 705 (1984), and United States v. Garcia, 474 - 27 -  F.3d 994 (7th Cir. 2007). None of these cases constitutes “binding” precedent within the meaning of Davis. ¶ 109 Knotts held that the use of a covert beeper device to monitor a vehicle’s movements during a single journey did not amount to a search because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, 460 U.S. at 281-82, 285. The beeper was placed in a chloroform container with the consent of the container’s owner before being transferred to the defendant. Id. at 278. The Court expressly left open the question of whether the warrantless installation of the device converted the subsequent tracking into a search. Id. at 279 n.*. See also id. at 286 (Brennan, J., concurring in the judgment, joined by Marshall, J.) (“I think this would have been a much more difficult case if respondent had challenged, not merely certain aspects of the monitoring of the beeper ***, but also its original installation.”). Thus, Knotts did not “specifically authorize[ ]” the “particular police practice” (emphasis omitted) (Davis, 564 U.S. at ___, 131 S. Ct. at 2429) in this case—the installation of the GPS device on the Kia, and officers could not have reasonably relied on Knotts in their decision to install the device without a warrant. ¶ 110 Karo addressed the government’s placement of a beeper device in a container of ether, which was sold to the respondents by a government informant and used to monitor them without respondents’ knowledge. The Court held that the respondents had no legitimate expectation of privacy in the container because, at the time of the beeper’s placement, the respondents did not own the container. Karo, 468 U.S. at 711. Because the container’s owner consented to the beeper placement, the actual installation of the beeper violated no one’s fourth amendment rights. Id. The Court went on to hold that the transfer of the beeper-laden can to the respondents did not constitute a search because it conveyed no information that respondents wished to keep private and, thus, infringed no privacy interests. Id. at 712. Nor did the transfer constitute a seizure, because there was no “meaningful interference with an individual’s possessory interests” in the property. (Internal quotation marks omitted.) Id. As in Knotts, the Karo Court “did not consider a scenario in which the government installs a tracking device on property that already belongs to the defendant.” United States v. Sparks, 711 F.3d 58, 65 n.4 (1st Cir. 2013). ¶ 111 Neither Knotts nor Karo stands for the proposition that the warrantless installation of a tracking device onto a privately owned vehicle without the owner’s consent is lawful under the fourth amendment. Therefore, the police in this case could not have reasonably relied on either of these cases to conclude that the nonconsensual installation of the GPS device was constitutionally authorized. Significantly, United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), in which the Court found that installation of a GPS device was a search, did not overrule either Knotts or Karo but distinguished them on the basis that neither case involved the nonconsensual installation of a tracking device onto private property. In other words, the Supreme Court expressly rejected the reading of those cases which the majority adopts here. See id. at ___, 132 S. Ct. at 951-52 (holding that a trespassory installation of a tracking device was not at issue in Knotts because the beeper was placed in the container with the consent of the then-owner, and Knotts did not challenge that installation); id. at ___, 132 S. Ct. at 952 (holding that the installation of the beeper in Karo was with the consent of the original owner; moreover, because “Karo accepted the container as it came to him, beeper and all, [he] was therefore not entitled to object to the beeper’s presence. [Citation.] Jones, who possessed the - 28 -  Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.”) ¶ 112 The fact that the Jones Court distinguished Knotts and Karo, but did not overrule them, takes this case out of the Davis good-faith exception. In Davis, the police officers’ search followed binding circuit precedent “to the letter,” and, although that precedent was later overturned, the officers’ conduct at the time of the search “was in strict compliance with then-binding Circuit law and was not culpable in any way.” Davis, 564 U.S. at ___, 131 S. Ct. at 2428. The complete absence of police culpability or deliberate misconduct “doom[ed] Davis’s claim” because exclusion of the evidence would not yield any meaningful deterrence. Id. at ___, 131 S. Ct. at 2428-29. Under the Court’s reasoning, where binding appellate authority “specifically authorizes a particular police practice” (emphasis in original) (id. at ___, 131 S. Ct. at 2429), exclusion of the evidence does not serve the purpose of deterring unconstitutional police conduct because the sole responsibility for the fourth amendment violation lies with the appellate judiciary and not with the police. When the police conduct a search in reliance on precedent that does not specifically authorize the particular practice, however, the exclusionary rule does provide meaningful deterrence. It deters law enforcement officers from taking the fourth amendment inquiry into their own hands by extrapolating from, or analogizing to, existing case law, instead of seeking a warrant from a neutral magistrate. See United States v. Katzin, 769 F.3d 163, 191-92 (3d Cir. 2014) (en banc) (Greenaway, J., dissenting, joined by McKee, C.J., and Ambro, Fuentes, and Smith, JJ.). The exclusionary rule also encourages law enforcement officials to “err on the side of constitutional behavior” in the face of unsettled or equivocal fourth amendment law. See Davis, 564 U.S. at ___, 131 S. Ct. at 2435 (Sotomayor, J., concurring in the judgment); State v. Mitchell, 323 P.3d 69, ¶ 31 (Ariz. Ct. App. 2014). “[T]he Davis requirement of ‘binding appellate precedent’ means that government agents should not be and need not be vested with discretion in predicting or anticipating how the law will develop and how it should be applied. *** The solution is simple: the import of Davis is that officers acting without clearly applicable binding appellate guidance should err on the side of caution and obtain a warrant.” United States v. Ortiz, 878 F. Supp. 2d 515, 542 (E.D. Pa. 2012). ¶ 113 In contrast to Davis, where binding precedent explicitly authorized the officers’ actions and the officers were not culpable in any way because they followed the Eleventh Circuit precedent “to the letter” (Davis, 564 U.S. at ___, ___, 131 S. Ct. at 2428, 2429), here there was no binding precedent which specifically authorized the police officers’ conduct. See, e.g., id. at ___, 131 S. Ct. at 2437 (Breyer, J. dissenting, joined by Ginsburg, J.) (Davis did not address officers’ reliance on a decision with “clearly distinguishable” or “highly analogous” facts); United States v. Sparks, 711 F.3d 58, 64 (1st Cir. 2013) (Davis good-faith exception applies only to precedent that is “clear and well-settled”). Thus, there is no basis for holding that the police reasonably relied on Knotts or Karo as authorization for their installation of the GPS device without first obtaining a warrant or permission from the vehicle’s owner. ¶ 114 The majority also holds that Davis applies because the Aurora police acted in objectively reasonable reliance on the Seventh Circuit’s decision in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). Garcia held that the warrantless installation of a GPS tracking device on a vehicle in order to obtain information about a suspect’s movements in the vehicle was not a fourth amendment “search.” Id. at 996-98. Unlike the Eleventh Circuit precedent relied on by the police in Davis, however, Garcia was not “binding appellate precedent” on Illinois state - 29 -  courts, the jurisdiction in which the Aurora police were operating and in which defendant was prosecuted. ¶ 115 The applicable body of case law upon which a law enforcement officer may reasonably rely consists of those decisions that are binding on the jurisdiction in which the officer operates. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (noting that officers are expected to learn and abide by “what is required of them” by courts having jurisdiction over them). The Davis good-faith exception thus is not available unless there exists binding precedent within the particular jurisdiction governing the law enforcement officials. See United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (holding that “binding appellate precedent” within the meaning of Davis refers only to precedent of the Second Circuit and the United States Supreme Court); United States v. Barraza-Maldonado, 732 F.3d 865, 867 (8th Cir. 2013) (“[f]or the good faith exception to apply, officers performing a particular investigatory action—such as GPS tracking—must strictly comply with binding appellate precedent governing the jurisdiction in which they are acting”). ¶ 116 Where state courts are silent on the constitutionality of a particular police practice, law enforcement officers who engage in that practice without first obtaining a search warrant from a neutral magistrate must knowingly accept the risk that their conduct will be found unconstitutional. First, they risk that a state court may decide to depart from federal case law in interpreting a federal constitutional provision. Caleb Mason, New Police Surveillance Technologies and the Good-Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60, 76 (2012). Decisions of a United States court of appeals, while persuasive, are not binding on state courts. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992) (citing People v. Fields, 135 Ill. 2d 18, 72 (1990)); see also People v. Eyler, 133 Ill. 2d 173, 225 (1989) (“[u]ntil the Supreme Court of the United States has spoken, State courts are not precluded from exercising their own judgments on Federal constitutional questions”). Second, the police risk that a state court may interpret a constitutional provision in its own state constitution more strictly than a corresponding provision in the federal constitution. See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 390 (1992). In fact, this court has held that the Illinois Constitution of 1970 “offers greater protection against the invasion of an individual’s privacy rights than does the Federal Constitution.” Id. Thus, in a posture of state silence and federal approval of a particular search, the exclusionary rule serves its intended purpose: to “deter future Fourth Amendment violations.” Davis, 564 U.S. at ___, 131 S. Ct. at 2426; see also id. at ___, 131 S. Ct. at 2435 (Sotomayor, J., concurring in the judgment) (“when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations” (emphasis added)); Caleb Mason, New Police Surveillance Technologies and the Good-Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60, 76 (2012). ¶ 117 Of course, the police can avoid the harsh consequence of the evidence being excluded by obtaining a warrant in the first place, rather than gambling that the search will not eventually be held unconstitutional by a court in that jurisdiction. 8 In this case, the officers were state police 8 A warrant is now statutorily required in Illinois before the police may use a GPS to track a person’s movements. Effective August 26, 2014, the Freedom From Location Surveillance Act requires a law enforcement agency to obtain a court order supported by probable cause before using an electronic - 30 -  officers investigating a state crime and had no reason to believe that the case would be prosecuted in federal court. 9 Accordingly, the officers could not have presumed, in reliance on Garcia, that the warrantless installation of the GPS device was constitutional. ¶ 118 For the foregoing reasons, I respectfully dissent. ¶ 119 JUSTICES FREEMAN and THEIS join in this dissent. device to obtain “current or future location information pertaining to a person or his or her effects.” Pub. Act 98-1104, § 10 (eff. Aug. 26, 2014). 9 The majority emphasizes that the Aurora police detective “stood in exactly the same shoes” as the Alabama police officer in Davis, who conducted a search in the course of investigating a state traffic offense and was found to have relied on federal appellate precedent. Supra ¶¶ 31, 52. At the time of the search in Davis, however, Alabama state case law expressly authorized the search. State v. Gargus, 855 So. 2d 587, 590 (Ala. Crim. App. 2003); see Caleb Mason, New Police Surveillance Technologies and the Good-Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60, 77 n.101 (2012). By contrast, prior to the search in this case, no Illinois state court had addressed the constitutionality of GPS installation or tracking. - 31 - 

586 F.Supp. 1160 (1984) INTERSTATE PROPERTIES, Plaintiff, v. PYRAMID COMPANY OF UTICA, Robert J. Congel, Leonard Leveen, James McDonald, Joseph Scuderi, Gerald Dick, Woodchuck Hill Associates, and Teachers Insurance and Annuity Association, Defendants. No. 81 Civ. 1874. United States District Court, S.D. New York. April 9, 1984. Finley, Kumble, Wagner, Heine, Underberg & Casey, New York City, for plaintiff; Neil Underberg, Alan M. Gelb, P.C., Jerome Kowalski, Frederick S. Gold, New York City, of counsel. Donovan Leisure Newton & Irvine, New York City, and Bond, Schoeneck & King, Syracuse, N.Y., for Pyramid defendants; Sanford M. Litvack, New York City, and Thomas J. Valenti, James E. Wilber, Syracuse, N.Y., of counsel. Fried, Frank, Harris, Shriver & Jacobson, New York City, for defendant Teachers Insurance and Annuity Association; Gregory P. Joseph, New York City, of counsel. OPINION ROBERT L. CARTER, District Judge. The motion to vacate the March 18, 1984 Addendum to the Opinion of February 23, 1984, is granted. The Addendum is vacated and recalled. Movant is correct in part in alleging that the Addendum is based upon a mistake of fact. Defendants, Pyramid Company of Utica, Robert J. Congel, Leonard Leveen, James McDonald, Joseph Scuderi, Gerald Dick, and Woodchuck Hill Associates (hereinafter referred to collectively as Pyramid or Pyramid defendants), filed counterclaims in this action. Three of these counterclaims alleged Sherman Act violations. Pyramid contends that Interstate made fraudulent misrepresentations to the New York State Department of Environmental Conservation ("NYSDEC") at hearings held between August and October, 1977 on Pyramid's application to build a shopping mall on wetlands in the Utica-Rome, New York area, close to the site on which the mall, which is the subject of this litigation, was built; that those fraudulent representations were made to block Pyramid from building an enclosed shopping mall and to preserve Interstate's *1161 monopoly on enclosed shopping malls in the Utica, New York area. The fraudulent misrepresentations are said to be Interstate's not revealing to the NYSDEC hearing officer that Interstate, itself, wanted to build an enclosed mall on wetlands in the area. It is also contended that subsequent to the NYSDEC's denial of Pyramid's application, Interstate joined forces with Pyramid as the Joint Venture and took the opposite position to that presented at the 1977 NYSDEC hearings, seeking this time successfully to secure permission from NYSDEC to build the instant shopping mall on state wetlands. At the commencement of the trial, it was agreed that plaintiff would proceed first with its contract case, and, thereafter, Pyramid would proceed with the evidence on the counterclaims. Plaintiff, from the outset, took the position that the counterclaims' antitrust allegations were legally deficient. Pyramid set forth its legal theory as to the basis for the counterclaims in colloquy with the court. Tr. 1031-1039. The claim was said to be "narrowly focused ... on the Noerr-Pennington doctrine the sham exception." Id. at Tr. 1031. On the final day of the trial, Pyramid was allowed to make an offer of proof on its antitrust allegations as to how, if permitted, it proposed to proceed. Counsel stated that he proposed to establish the merits of the claims through Robert Congel, Steven Roth of Interstate and damages through James Anthony Tuozzolo, Pyramid's accountant. Counsel proposed to question Congel concerning the background leading up to the proposed mall, the filing of Pyramid's application with NYSDEC for permission to build on the state wetlands, the facts that gave rise to the applications and the effort Pyramid undertook in their preparation, the nature of Interstate's posture at the hearings, conversations Congel had with Roth concerning the true facts, showing what was going on behind the scenes and the testimony concerning the Joint Venture and the change in approach of Interstate in 1979. While conceding that Interstate disclosed its competitive posture at the 1977 hearings, Pyramid's counsel alleged that Interstate misled NYSDEC "on their own intentions and their own determination as to economic need," for a mall in the area. Tr. 1230. Through witnesses Interstate allegedly convinced the hearing officer that there was no paramount economic need for the mall to be built on a site requiring the destruction of 22 acres of state wetlands. Interstate expressly represented to the NYSDEC that it had no interest in building a mall in the area, although conversations between Roth and Congel would establish that Interstate wanted to secure permission to build a regional mall close to the site on which Pyramid was seeking permission to build. Counsel proposed to show that when Pyramid filed its 1977 application seeking to use the wetlands as a site for the mall, it offered to form a substitute wetlands and cede it to the state. Interstate's lawyer took the position that such a course was illegal, but in 1979 when Interstate became a part of the Joint Venture, permission to build the mall on wetlands was granted and the Joint Venture offered to cede substitute wetlands to the state. He proposed to take Roth through his various different positions, his conversations with Congel to establish that Interstate's initial opposition in 1977 to Pyramid's building a mall on wetlands was designed to suppress competition. For market definition purposes, the product was said to be an enclosed regional mall which is so distinct and different from a strip center regional mall that it is not interchangeable with the latter. Therefore, an enclosed regional mall must be classified as a separate product for purposes of antitrust market analysis and definition. The geographical market was the Utica-Rome, New York metropolitan area. (Tr. 1228-1237 passim). There are standing problems for these defendants, since the entity involved in the 1977 NYSDEC hearings was Pyramid Systems, Inc., apparently a Pyramid related company (see Feb. 23, 1984 slip. opinion), but not the Pyramid Co. involved in this *1162 proceeding. Sierra Club v. Alexander, 484 F.Supp. 455, 460 (N.D.N.Y.), aff'd, 633 F.2d 206 (2d Cir.1980). Moreover, the NYSDEC office at the 1979 hearings "made a finding that the 1979 project was an entirely new proposal and not a resubmission of the 1977 plan" Id. at 461. These questions were not even addressed in defendants' proffer which would be enough to reject the counterclaims as insufficiently proved. Assuming arguendo that these issues were put to one side, and the merits were considered nonetheless, even accepting the defendants' allegations as summarized above as true, Pyramid cannot bring its claims within the sham exception to the Noerr Pennington doctrine as defined in Eastern Railroad President's Conference v. Noerr Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) and cognate cases. California Motor Transport Co., supra, first articulated the extension of the Noerr Pennington sham exception to adjudicatory and administrative proceedings. There the Court held that where a defendant abused the administrative process by "a pattern of baseless, repetitive claims", not to influence official behavior but to stifle competition, id. at 513, 92 S.Ct. at 613, the activity was not shielded by the First Amendment from the reach of the antitrust laws. In that case the core issue concerning the Court was the effective exclusion of a competitor from the decision making process. Id. Subsequent cases have made clear, however, that access to an administrative tribunal is but one facet of the sham exception. Litton Systems, Inc. v. American Telegraph & Telephone Co., 700 F.2d 785, 809 n. 36 (2d Cir.1983). The sham exception embraces the whole spectrum of activities which abuse and corrupt the administrative process to further anticompetitive objectives. Nor is repetitive activity required. In the context of this case, a one time debasement of the NYSDEC 1977 hearings to achieve Interstate anticompetitive ends would suffice to bring the sham exception into play. Energy Conservation, Inc. v. Heliodyne, Inc., 698 F.2d 386 (9th Cir.1983); Clipper Express v. Rocky Mt. Motor Tariff Bureau, 690 F.2d 1240 (9th Cir.1982). The cases are clear, however, that Interstate does not violate the antitrust laws in opposing before the NYSDEC Pyramid's application for permission to destroy wetlands to build a mall, even though its motive is to deal a fatal blow to a competitor. Eastern Railroad President's Conference v. Noerr Motor Freight, Inc., supra, 365 U.S. at 135, 81 S.Ct. at 528; United Mine Workers of America v. Pennington, supra, 381 U.S. at 670, 85 S.Ct. at 1593. Nor would even a pattern of activities or a multiplicity of activities with an anticompetitive intent suffice. Ad Visor, Inc. v. Pacific Tel. & Tel. Co., 640 F.2d 1107 (9th Cir.1981). Pyramid is required to show that Interstate subverted the integrity of the NYSDEC process or impaired the fair and impartial functioning of that agency in 1977. Landmarks Holding Corp. v. Bermant, 664 F.2d 891 (2d Cir.1981); Federal Prescription Service, Inc. v. American Pharmaceutical Assn., 663 F.2d 253 (D.C.Cir.1981), cert. denied, 455 U.S. 928, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982). Solicitation of governmental action to obtain an economic or competitive advantage is not prohibited by the antitrust laws. Central Savings & Loan Assn. of Chariton, Iowa v. Federal Home Loan Bank Bd., 422 F.2d 504 (8th Cir.1970). Thus, the fact that Interstate did not disclose to the hearing officer in 1977 that it wanted to build a mall in the area is not sufficient to encumber its 1977 opposition to Pyramid with Sherman Act overtones. Pyramid was before the NYSDEC seeking, as I understand it, to convince the agency that it should be permitted to destroy 22 acres of wetlands because economic need for the mall outweighed the environmental loss the public would suffer. Even if Interstate stated to the hearing officer that it had no *1163 interest in building a mall, although it was privately and in reality prepared to build if permitted, no sham exception can be invoked on that scenario. The deliberate misrepresentation is to be faulted, but that misrepresentation could not have been material to the NYSDEC conclusion that Pyramid had failed to establish an economic necessity warranting the wetlands' destruction. The decision of the hearing officer had to concern to what extent the area's economic well being would be served by the mall, and would the gain to the public thereby be greater than the ecological loss that would be required. Moreover, whatever Interstate's motive, a denial to Pyramid to build the mall would not necessarily result in Interstate's being permitted to do so. It would have to file an application with the NYSDEC, and if its plans were to seek to use wetlands as a site for construction, it would have to successfully establish economic need. Pyramid contends that this is what happened when Interstate joined forces with Pyramid in the Joint Venture. In 1979, Interstate's lawyers, now working for the Joint Venture, apparently successfully guided the new application through NYSDEC proceedings. Even if Interstate's activities in 1977 could be traced to the Joint Venture activities in 1979 in respect of NYSDEC, all that shows is Interstate's skillful use of the administrative process. Pyramid would have to establish bribery, fraud or unethical procedures by Interstate that corrupted the hearing officer and robbed or attempted to rob him of independent judgment. Proof that Interstate conspired with the hearing officer or NYSDEC staff to secure denial of Pyramid's 1977 application would bring the sham exception into play. Hopkinsville Cable TV v. Pennyroyal Cable Television, Inc., 562 F.Supp. 543, 546-47 (W.D.Ky.1982). That kind of proof is not close to what Pyramid seeks to prove. Although counsel insists he does not intend to do so, his proffered proof is designed to regurgitate the arguments and contentions at the 1977 hearings, with counsel seeking to establish here that Interstate's opposition was without foundation. Not every business tort can be molded into an antitrust violation. Here the proof is insufficient to lift the shield which the First Amendment affords. Antitrust claims raised in the counterclaims are dismissed as legally deficient. Because of the basis of this holding, Interstate's collateral estoppel and time barred contentions need not be reached. In so far as Pyramid's counterclaims raised allegations other than Sherman Act violations, no proof was presented or offered in support of those counterclaims. Accordingly, they are dismissed as waived and unproved. All counterclaims are dismissed. IT IS SO ORDERED.

379 So.2d 594 (1980) BENDER SHIP REPAIR, INC. v. Charles J. STEVENS, II. 78-359. Supreme Court of Alabama. January 11, 1980. *595 Robert M. Montiel, Mobile, for appellant. Gary A. Hudgins, Gary P. Alidor, Mobile, for appellee. ON APPLICATION FOR REHEARING FAULKNER, Justice. The original opinion in this case is withdrawn and the following opinion is substituted in its place. This is an appeal from an interlocutory order permitted by this Court pursuant to Rule 5, ARAP. The circuit court order denying Bender's motion for judgment on the pleadings is reversed. While employed by Bender under an employment contract terminable at will by either employer or employee, Stevens served on the Mobile County Grand Jury May 8, 9, 10 and 12. On May 11, during a break of jury service, Stevens contends by affidavit that he was fired, for service on the grand jury. Bender's evidence affidavits reflect that it terminated Stevens' employment on May 31, because he did not report to work after grand jury service. Stevens sued Bender, alleging breach of employment contract by firing him for serving on the grand jury. Bender's motions to dismiss, for summary judgment, and for judgment on the pleadings were denied. The trial court certified the appealability of the denial of the motion for judgment on the pleadings. This Court granted permission to appeal. Even though there is a conflict in the reason for termination, the crux of the case is whether an employer may terminate the employment under a terminable at will contract for any reason. Under the decisions of this court, an employment contract terminable at the will of either the employer or the employee, may be terminated by either of them with or without cause or justification. Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala. 1977); Martin v. Tapley, 360 So.2d 708 (Ala. 1978). The provisions of Code 1975, § 12-16-8, protecting an employee from loss of his usual compensation while serving on a grand jury, do not alter this rule. REVERSED AND REMANDED, OPINION SUBSTITUTED FOR ORIGINAL OPINION, AND APPLICATION FOR REHEARING OVERRULED. TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.

786 F.2d 1019 UNITED STATES of America, Plaintiff-Appellee,v.Howard JONAS, Lewis Jonas, Anthony Lewis Guarino, and HowardMark Mandel, Defendants-Appellants. No. 84-5735. United States Court of Appeals,Eleventh Circuit. April 14, 1986. Bierman, Sonnett, Shohat & Sale, P.A., Jon A. Sale, Benedict Kuehne, Miami, Fla., for Jonas & Jonas. Charles G. White, Miami, Fla., for A. Guarino. Timothy W. Harrington, Stephen H. Broudy, Ft. Lauderdale, Fla., for mandel. Norman Moscowitz, Jon May, Nancy L. Worthington, Leon B. Kellner, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S. Appeal from the United States District Court for the Southern District of Florida. Before GODBOLD, Chief Judge, FAY, Circuit Judge, and PECK*, Senior Circuit Judge. PECK, Senior Circuit Judge: 1 Appellants are four of five defendants named in a ten count indictment charging a series of fraudulent acts. The fifth defendant, Walter Woodby, pled guilty and testified at trial for the government. The specific charges included engaging in a scheme to defraud by mail in violation of 18 U.S.C. Sec. 1341, wire fraud in violation of 18 U.S.C. Sec. 1343, transportation of property obtained by fraud in violation of 18 U.S.C. Sec. 2314, and mail fraud in violation of 18 U.S.C. Sec. 1341. At the conclusion of a protracted trial, the jury returned verdicts finding all defendants guilty as charged. Committed sentences followed by period of probation were imposed as to each of the four. 2 * Evidence offered by the government established that appellants Howard and Lewis Jonas, who are brothers, formerly worked as salesmen for First Federal Bullion in New York City. First Federal Bullion was what has come to be known as a "boiler-room operation" in which salesmen used hard sell, high-pressure tactics to obtain investments in precious metals which the company neither possessed nor purchased. In March of that year Howard Jonas reported to the Federal Bureau of Investigation that the company by which he and his brother were employed was engaged in illegal operations, but the government states that "[b]ecause of limited prosecutorial and investigative resources, First Federal Bullion was never prosecuted." It subsequently ceased operations and the Jonases moved to Florida. 3 During the same period of time, Walter Woodby and the Jonases worked as salesmen for First Federal Bullion, and in 1980 Woodby was arrested for a burglary that the brothers helped plan. They provided bail, and following his conviction they appeared at the sentencing procedure, offering a job in the event of probation. They paid for his transportation to Florida and the three discussed various businesses which they could enter. They decided on an operation similar to that of First Federal Bullion and formed an enterprise named Conti Associates, Inc., of which Woodby was president, vice president and secretary and the Jonases would be the financiers. 4 The Jonases, representing Conti Associates, leased space in a Ft. Lauderdale, Florida building, stating that the office would be headquarters for a toy manufacturing company. The name "Conti" was chosen because of its similarity to a very large precious metals company in New York. Woodby signed the corporation papers and opened the company's checking account, but because circumstances aroused its suspicions, the bank closed the account a month later. A second account was opened and closed, and a third account was subsequently opened. Woodby signed checks drawn on this account, but Howard Jonas kept the checkbook and usually made out the checks. 5 In due course, Melvin Rosoff and appellants Guarino and Mandel, who had worked together in another office, became employees of Conti and all three of them worked as salesmen, primarily selling tantalum, titanium and silver by telephone. During the summer of 1981 ten individuals invested a total of $52,630 with Conti Associates as a result of these solicitations, although Conti neither purchased nor delivered the metals ordered, nor did it return the investors' money. 6 Rosoff testified that when he began working at Conti, the company had three or four telephones, but that additional lines were subsequently installed. He worked with Guarino, Mandel and Woodby, whom Rosoff, testifying under a grant of immunity, described as a "front" in case anything went wrong. It always appeared to Rosoff that the business belonged to the Jonas brothers. He further testified that he got both names and his "sales pitch" from Guarino and Mandel, and he detailed the technique of making sales. When Rosoff had done all he could to convince a customer to buy, he would turn the telephone over to Guarino or Mandel, experts at closing a deal. The ten purchasers of interests in non-existent metals referred to above all testified to the conversations leading to their investments, and with minor variations the techniques used by the salesmen were identical. 7 During the FBI investigation of this matter, Howard Jonas gave a statement which was received in evidence at trial. In that statement he alleged that he and his brother has formed Conti Associates for the purpose of manufacturing and selling toys, but that that enterprise failed due to their lack of experience in the area. He further alleged that at that time they became acquainted with Guarino and Mandel and that the transformation of the enterprise then occurred with the later two being the principals while he and his brother Lewis simply did their bidding. However, no further evidence concerning a toy business was offered, and since appellants do not challenge the sufficiency of the evidence on which their convictions were based there is no occasion to further examine that contention here. II. 8 All four of the appellants assign as error the district court's denial of their respective motions for severance. 9 In support of this assignment of error they again contend that the Jonas brothers defended on the theory that Guarino and Mandel, along with Walter Woodby, "ran a sophisticated investment scheme, with the Jonases acting 'as mere gofers' ", while Guarino and Mandel presented "a different defensive posture," representing themselves to have been innocent salesmen working for the Jonases. All argue that the defenses are antagonistic, irreconcilable and mutually exclusive, citing United States v. Carter, 760 F.2d 1568 (11th Cir.1985). They submit that the jury in order to believe the core of the defense offered on behalf of one defendant would necessarily have to disbelieve the defense offered by a co-defendant, so that severance was mandatory pursuant to United States v. Stephenson, 708 F.2d 580, 582 (11th Cir.1982). While recognizing their burden in establishing an abuse of discretion on the part of the trial judge in this regard, United States v. Pirolli, 742 F.2d 1382, 1386 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); Fed.R.Crim.P. 14, they argue that the irreconcilability of the defenses caused the court's action to amount to such abuse. The trouble with that contention, however, is simply that it is not supported by the record. None of the defendants testified on his own behalf, so this case markedly differs from those in which co-defendants take the stand and directly blame one another. See Stephenson, 708 F.2d at 580; United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B 1981). As previously noted, the only indication in the evidence supporting the allegation that the Jonases had intended to go in the toy business was contained in the Howard Jonas statement received in evidence and in testimony relative to the renting of the offices, and at the very best the other contentions essential to the asserted defense may be discernible from inferences to be gleaned from the cross-examinations of government witnesses. One of the appellant's briefs observes that the situation presented "was more than the classic finger pointing by defendants scenario." However, on the basis of the record the "scenario" cannot even be said to rise to that level. In short, the appellants have failed to prove that they suffered the specific and compelling prejudice, which is necessary to finding an abuse of the district court's discretion. Carter, 760 F.2d at 1574-75. We add that considering the evidence in the light most favorable to the government, as we must in the present posture of the case, we conclude that the record demonstrates a sophisticated scheme of merchandising non-existent metals on the basis of telephone solicitation by an organization created and operated by the defendants acting in concert. III. 10 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) established the principle that where there is a substantial risk that the trier of fact will look to incriminating extra-judicial statements of one co-defendant in determining the guilt of another co-defendant, the admission of the former's confession in a joint trial violates the latter's right to confront the witnesses against him. United States v. Garrett, 727 F.2d 1003, 1013 (11th Cir.1984), aff'd on other grounds, --- U.S. ----, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). 11 In the present case, both Jonases and Guarino assign as error the receipt in evidence of statements made by Howard Jonas and Guarino to the FBI, arguing that such receipt violated their right to confrontation under the Sixth Amendment. They argue that the government's attempt to redact these statements was ineffective and that the jury must have known that the "other people" mentioned in Howard Jonas' statement included Guarino and Mandel and that the "other people" mentioned in the Guarino statement included the Jonas brothers. However, the statements received in evidence were unsuccessful efforts by Howard Jonas and Guarino respectively to exculpate themselves and no reasonable reading of the redacted statements could be considered to inculpate the others. In Garrett, 727 F.2d at 1013, we stated that "in order to invoke the Bruton doctrine, the confession in question must directly, rather than indirectly, implicate the complaining defendant." The statements here under consideration neither directly nor indirectly implicate "the complaining [appellant]," and no error is perceived in their receipt in evidence. IV. 12 Guarino contends on appeal that the statement made by him to the FBI was received in evidence in violation of his Fifth Amendment rights as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The evidence establishes that Guarino learned indirectly that an FBI agent had attempted to contact him, and that he thereupon telephoned that agent. The agent stated that she wanted to talk with him in connection with an investigation of Conti Associates. He agreed to talk with the FBI and appeared voluntarily at its offices. An agent testified that Guarino was not at any time under restraint and that at all times he was free to terminate the interview. 13 Guarino contends that in spite of the circumstances the district court failed to follow an objective, "reasonable man" standard in deciding whether a suspect was "in custody" when the statement was made. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984) the Court stated "The only relevant inquiry is how a reasonable man in the suspect's position would have understood his position." In view of Guarino's voluntary appearance at the FBI office and the circumstances prevalent at the interview it must be concluded that a reasonable man in his position would not have considered himself in custody, and we conclude that no violation of his Miranda rights has been established. V. 14 The remaining contention raised by the appellants concerns a situation which involved a member of the jury. On the morning of the sixth day of trial as the mid-point in trial was being reached, this juror stated to the court at a side bar conference, "On the break I was thinking about it, and I came to the conclusion that I have pretty well made up my mind about it." The district judge immediately stated, "Do not tell us anything." The juror responded, "No, no, but I just wondered if it was okay for me to continue on that basis." In the colloquy that followed the judge observed that he suspected "that a lot of people have arrived at conclusions." After a further discussion, the court said, "I am going to ask you to do your very best to keep an open mind until you have heard everything. All right?", to which the juror responded "Yes, Sir." 15 The following day the court reopened the matter and again received an affirmative response to a further inquiry as to whether the juror would and could keep his mind open until, in effect, the case was submitted to the jury. 16 In a case in which a juror allegedly said on the second day of a four day trial, "As far as I'm concerned, [from] what I have already heard he's guilty," the judge allowed that juror to remain without even an interrogation. This determination was held to be within the court's discretion. The reviewing court went on to say, "A juror's statement that '[from] what I have heard already he's guilty' at the conclusion of the prosecutor's case and before the defendant presents any evidence does not reflect serious prejudice, but only an objective evaluation of the evidence presented to date in trial." Grooms v. Wainwright, 610 F.2d 344, 346, 348 (5th Cir.), cert. denied 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980), cited with approval United States v. Williams, 716 F.2d 864, 865 (11th Cir.1983). 17 After receiving the assurance of the juror that he would keep an open mind, the trial court in the present case stated to counsel, "This juror obviously has taken what we have said very seriously, and he had some feelings that he wanted to communicate to all of us.... I would say it was a commendable display of honesty." 18 The determination as to whether or not a juror should be relieved in such circumstances is peculiarly within the discretion of the trial court, Grooms, 610 F.2d at 347, and we observe no abuse of that discretion in the established circumstances. VI. 19 We are not unmindful of the government's contention that the harmless error rule applies to each of the contentions of the appellants except the last, on the grounds that no prejudice is shown to have resulted from any error which may have occurred. Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.) (en banc), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). While we are not in disagreement with that contention, it need not be explored herein in view of our conclusion that the district judge committed no such error. It nevertheless seems appropriate to observe that in the course of a twelve day trial the government through thirty-two witnesses and a large number of exhibits constructed an overwhelming case to which defendants provided scant response through their two witnesses. 20 Accordingly, the judgments of conviction are AFFIRMED. * Honorable John W. Peck U.S. Circuit Judge for the Sixth Circuit, sitting by designation

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6933 DOUGLAS G. WHITFIELD, Plaintiff - Appellant, v. DICK JENKINS, Sheriff; RANDLE SMITH, Lieutenant; DARREL LAND, Detective; OFFICER LEE; OFFICER STANCIL; LIEUTENANT SMITH, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:10-ct-03151-D) Submitted: November 17, 2011 Decided: November 23, 2011 Before KING, DAVIS, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Douglas G. Whitfield, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Douglas G. Whitfield seeks to appeal the district court’s order dismissing in part Whitfield’s 42 U.S.C. § 1983 (2006) complaint, and granting him leave to amend. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The order Whitfield seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We also deny Whitfield’s motions to appoint counsel, his motion to amend the complaint to add a party, his motion for a subpoena, and his motion for injunctive relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

[Cite as First-Knox Natl. Bank v. MSD Properties, Ltd., 2015-Ohio-4574.] COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT FIRST-KNOX NATIONAL BANK, et al., : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiffs - Appellees : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : MSD PROPERTIES, LTD., et al., : Case No. 15CA6 : Defendants - Appellants : OPINION CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 14OT11-0371 JUDGMENT: Affirmed in part; Reversed and Remanded in part DATE OF JUDGMENT: November 3, 2015 APPEARANCES: For Plaintiffs-Appellees For Defendants-Appellants KIM M. ROSE JACK L. MOSER, JR. Critchfield, Critchfield & Johnston LTD. 107 W. Johnstown Road 10 S. Gay Street Gahanna, OH 43230 P.O. Box 469 Mount Vernon, OH 43050 Knox County, Case No. 15CA6 2 Baldwin, J. {¶1} Appellants MSD Properties, LTD and Michael Shawn Dennis appeal a judgment of the Knox County Common Pleas Court dismissing their claims against appellees First-Knox National Bank and Sunny Green LLC. STATEMENT OF THE FACTS AND CASE {¶2} Appellants MSD Properties, LTD leased property from appellees, which they in turn leased to Todd Hempfield as Unit 16, Inc., who operated a bar on the premises known as “Banana Joe’s.” According to the pleadings in the case, in March of 2014, Todd Hempfield as Unit 16, Inc., approached appellee First Knox directly about executing a lease agreement for the property. {¶3} Appellees provided appellants and Hempfield notice of termination of the lease on August 30, 2014, effective September 30, 2014. Appellants remained on the property and on October 1, 2014, appellees served a three-day notice to vacate the premises. When appellants failed to vacate, appellees filed a forcible entry and detainer action in the Mount Vernon Municipal Court. Appellants filed counterclaims for retaliatory eviction, tortious interference with a business relationship, and fraud. Because the amount of damages sought in the counterclaims exceeded the jurisdictional limits of the municipal court, and after the forcible entry and detainer action was resolved in the municipal court, the case was transferred to the Knox County Common Pleas Court. {¶4} Following the transfer, appellees filed a motion to dismiss the complaint pursuant to Civ. R. 12(B)(6). Appellants sought leave to amend the pleadings, which Knox County, Case No. 15CA6 3 the trial court did not expressly overrule but implicitly overruled by granting appellees' Civ. R. 12(B)(6) motion to dismiss. The trial court dismissed the counterclaims on the basis that retaliatory eviction is not actionable under R.C. 5321.02 for a commercial lease, appellants had not alleged a set of facts that appellees interfered with a business relationship between them and a third party, and appellants failed to plead fraud with specificity. {¶5} Appellants assign four errors on appeal: {¶6} “I. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 15(A) BY IMPLICITLY DENYING APPELLANTS’ MOTION FOR LEAVE TO AMEND APPELLANTS’ ANSWER AND COUNTERCLAIMS. {¶7} “II. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 15(A) BY REFUSING TO GRANT APPELLANTS’ MOTION FOR LEAVE TO AMEND APPELLANTS’ ANSWER AND COUNTERCLAIMS. {¶8} “III. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 12(B)(6) WHEN IT GRANTED PLAINTIFFS’ FIRST MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS FOR TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS. {¶9} “IV. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE Knox County, Case No. 15CA6 4 12(B)(6) WHEN IT GRANTED PLAINTIFFS’ FIRST MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS FOR FRAUD.” I., II. {¶10} We address appellants’ first and second assignments of error together, as both claim error in the trial court’s implicit overruling of their motion to amend their answer and counterclaim. {¶11} Civ. R. 15(A) provides in pertinent part: A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court shall freely give leave when justice so requires. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within fourteen days after service of the amended pleading, whichever is later. {¶12} While Civ.R. 15(A) favors a liberal policy when the trial court is confronted with a motion to amend a pleading, the role of this Court is to determine whether the trial court's decision was an abuse of discretion, not whether it was the same decision Knox County, Case No. 15CA6 5 we might have made. Wilmington Steel vs. Cleveland Electric Illuminating Company, 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). The term “abuse of discretion” connotes more than an error or law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Id. {¶13} Appellants sought to amend their counterclaims on February 6, 2015, to “address issues raised in Plaintiffs’ Motion to Dismiss and related pleadings.” They further sought to add a cause of action for voluntary bailment and conversion. {¶14} While appellants’ motion states that the amended counterclaims are attached to the motion, the proposed amendment is not attached to the original motion in the file as transmitted to this Court for review. Appellants did append a file-stamped copy of the amended counterclaims to their brief. However, appellants did not plead fraud with specificity in this amended document, and their cause of action for conversion and bailment was based on facts known to them at the time they filed their original answer and counterclaims. The trial court did not abuse its discretion in overruling the motion to amend the answer and counterclaims. {¶15} The first and second assignments of error are overruled. III. {¶16} In their third assignment of error, appellants argue the court erred in dismissing their cause of action for tortious interference with a business relationship. {¶17} To dismiss a complaint for failure to state a claim upon which relief may be granted under Civ.R. 12(B)(6), it must be shown “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). In applying Knox County, Case No. 15CA6 6 this standard, all factual allegations in the complaint are taken as true and all reasonable inferences are made in favor of the nonmoving party. Appellate review of a Civ. R. 12(B)(6) dismissal is de novo. Hunt v. Marksman Prod. Div. of S/R Industries, Inc., 101 Ohio App.3d 760, 656 N.E.2d 726 (1995). {¶18} Civ. R. 12(B)(6) further sets forth what the trial court may consider in ruling on a motion to dismiss: When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. {¶19} The elements of tortious interference with a business relationship are: (1) the existence of a prospective business relationship; (2) the wrongdoer's knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom. Gen. Medicine, P.C. v. Morning View Care Ctr ., 5th Dist. Tuscarawas No. 2003AP12–0088, 2004–Ohio–4669, ¶ 48.. {¶20} Appellants’ counterclaim alleged that appellees intentionally disrupted the relationship between MSD and Unit 16, Inc. by entering into a “second lease” with Unit Knox County, Case No. 15CA6 7 16, Inc. for the purpose of conducting the business known as Banana Joe’s. The claim further alleged that appellees interfered with the business relationship between MSD and Unit 16 by locking MSD out of possession of the premises. The counterclaim alleged that appellees knowingly leased the premises to MSD for the specific purpose of MSD subleasing to Unit 16, for the operation of the business known as Banana Joe’s. Appellants alleged that they had been damaged by appellees’ actions. These allegations, when taken as true and construing all inferences in favor of appellants, set forth a claim for tortious interference with a business relationship. {¶21} In the trial court and before this Court, appellees rely on the findings of fact of the Mount Vernon Municipal Court and the evidence presented in that case to support their argument that appellants cannot demonstrate entitlement to relief for tortious interference with a business relationship. However, appellees’ argument relies on evidence outside the pleadings. In the instant case, the trial court did not convert the motion to a motion for summary judgment and dispose of it in accordance with Civ. R. 56, and thus could not consider matters outside of the pleadings. Appellees’ argument is in the nature of a claim that the issues raised by appellants are res judicata; however, res judicata cannot be raised in a Civ. R. 12(B)(6) motion. See Wellman v. Wheeling & Lake Erie Railway Co., 5th Dist. Stark No. 999CA00161, 2000 WL 93986 (December 29, 1999). The court erred in granting appellees’ Civ. R. 12(B)(6) motion as to the claim for tortious interference with a business relationship. {¶22} Appellants’ third assignment of error is sustained. Knox County, Case No. 15CA6 8 IV. {¶23} In their fourth assignment of error, appellants argue that the court erred in dismissing their claim for fraud for lack of specificity. {¶24} To prove fraud, a plaintiff must establish the following elements: (1) a representation, or silence where there is a duty to disclose, (2) which is material to the transaction, (3) made falsely, with knowledge of its falsity, or with such utter disregard as to its truth that knowledge may be inferred, (4) with the intent to mislead another into relying on it, (5) justifiable reliance on the representation, and (6) resulting injury proximately caused by the reliance. E.g., Williams v. Aetna Financial Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998). {¶25} In addition, a plaintiff alleging fraud must plead with particularity the circumstances constituting fraud. Civ. R. 9(B). The circumstances constituting fraud include the time, place, and content of the false representation; the fact misrepresented; the identification of the individual giving the false representation; and the nature of what was obtained or given as a consequence of the fraud. Aluminum Line Products Co. v. Smith Roofing Co., Inc, 109 Ohio App.3d 246, 259, 671 N.E.2d 1343 (1996). {¶26} Appellants’ claim for fraud does not set forth the facts constituting their fraud claim. They did not set forth the time, place, or content of the false representation, and generally allege that they were misled by appellees at the time they entered the lease. The claim does not set forth the fact misrepresented or the nature of what was obtained or given as a consequence of the fraud. The court did not err in dismissing the fraud claim for failure to plead with specificity as require by Civ. R. 9(B). {¶27} The fourth assignment of error is overruled. Knox County, Case No. 15CA6 9 {¶28} The judgment of the Knox County Common Pleas Court dismissing appellant’s claim for tortious interference with a business relationship is reversed. The judgment is affirmed in all other respects. This cause is remanded to that court for further proceedings according to law. Costs are to be divided equally between the parties. By: Baldwin, J. Gwin, P.J. and Delaney, J. concur. 

681 F.Supp. 1175 (1987) STATE OF WEST VIRGINIA and the Honorable Arch A. Moore, Jr., Governor, Plaintiffs, v. ANCHOR HOCKING CORPORATION, a foreign corporation, and Newell Company, a foreign corporation, Defendants. Civ. A. No. 87-0140-C(K). United States District Court, N.D. West Virginia, Clarksburg Division. December 21, 1987. Charles G. Brown, Atty. Gen., Bradley Russell, Sr., Asst. Atty. Gen., Benjamin L. Bailey, Sp. Asst. Atty. Gen., Charleston, W. Va., for plaintiffs. David D. Johnson and Larry W. Blalock, Charleston, W. Va., for defendants. ORDER KIDD, District Judge. This civil action is now before the Court on plaintiffs, State of West Virginia ("State") and The Honorable Arch A. Moore, Jr., Governor's ("Governor") motion to remand. On November 6, 1987, the defendants, Anchor Hocking Corporation ("Anchor Hocking") and Newell Company ("Newell") filed their joint verified petition for removal pursuant to 28 U.S.C. § 1446. Anchor Hocking and Newell assert that this Court has both federal question and diversity jurisdiction over this civil action. Specifically, Anchor Hocking and Newell contend that this Court is bestowed with federal question jurisdiction as a result of plaintiffs' allegation contained in Count II of their complaint. Paragraph Number 14 of Count II states that: *1176 The State of West Virginia, by allocating part of a discrete pool of job training funds for the defendants, has been damaged in the direct amount of One Hundred Sixty-two Thousand Six Hundred Ninety-two Dollars ($162,692.00) which represents the costs of training 202 employees of the defendant corporations. Anchor Hocking and Newell state in Paragraph 8(b) of their verified petition that the "discrete pool" of funds referred to in Paragraph Number 14 of Count II of the complaint are federal funds provided to West Virginia under the mandates of the Job Training Partnership Act. 29 U.S.C. §§ 1501, et seq. The defendants further assert that a reading of Counts II and III supports the conclusion that the State and the Governor have alleged a federal question. The plaintiffs, in their motion to remand filed on November 25, 1987, firmly profess that no federal statute or law is implicated in this civil action. They state, citing Justice Cardoza: [That before a federal question can be found to exist,] `a right or immunity created by the Constitution or laws of the United States must be an element, an essential element of the plaintiff's cause of action.' Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). The Supreme Court in Gully, further stated that "[a] genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto." Id. at 113, 57 S.Ct. at 97-98 (citations omitted). It is well established that [t]he presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of plaintiff's properly pleaded complaint. Caterpillar, Inc. v. Williams, ___ U.S. ___, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Gully, 299 U.S. at 112-113, 57 S.Ct. at 97-98; Cook v. Georgetown Steel Corp., 770 F.2d 1272, 1274 (4th Cir.1985) ("To be removable to federal court under 28 U.S.C. § 1441 a state action must be within the original jurisdiction of the district court and its jurisdiction must be ascertainable from the face of the complaint") (quoting Hunter Douglas, Inc. v. Sheet Metal Workers International Association, 714 F.2d 342, 345 (4th Cir.1983). Moreover, the "well-pleaded complaint rule" essentially "makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 107 S.Ct. at 2429; see Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480, 35 S.Ct. 658, 658, 59 L.Ed. 1056 (1915) ("[T]he plaintiff is absolute master of what jurisdiction he will appeal to"); see also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913) ("Of course, the party who brings a suit is master to decide what law he will rely upon"). In a recent Supreme Court case of particular import here, the Court in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) held that: [A] complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim "arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. Id. 106 S.Ct. at 3237. Anchor Hocking and Newell, in their removal petition, cite Clinch v. Montana AFL-CIO, 633 F.Supp. 872 (D.Mont. 1986) as providing a federal cause of action under the Job Training Partnership Act ("Act"), 29 U.S.C. § 1501 et seq. In Clinch, plaintiff was deemed to have been provided a cause of action under § 1553 of the Act. From a complete review of the Act it is apparent to this Court that the only private cause of action created thereunder would inure to the benefit of an employee who has been treated unfairly in light of the standards imposed under § 1553 or who has been discriminated against in violation of § 1577. Nowhere could it be construed that the Act provides *1177 for a private cause of action to the State of Governor against the defendants here. Furthermore, a "defendant cannot, merely by injecting a federal question [as a defense or otherwise] into an action that asserts what is plainly a state law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Gully, 299 U.S. at 113, 57 S.Ct. at 98; Cook, 770 F.2d at 1275. Accordingly, the Court is of the opinion that, consistent with the representations made by the State and the Governor in the motion to remand, Counts II and III of the complaint allege only state law claims. Thus, upon full consideration of the complaint, the memoranda filed by the parties and the authority cited herein, the Court is of the opinion and concludes as a matter of law that plaintiffs' complaint does not state a claim arising under the Constitution, laws or treaties of the United States for purposes of creating original federal question jurisdiction in this Court. Anchor Hocking and Newell have, in the alternative, asserted in their verified petition that this civil action is properly before the Court pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441 et seq. It is well settled that a state may not be considered a citizen in order to establish diversity jurisdiction. Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894); State of Wis. (Dept. of Rev.) v. Maryland Nat. Bank, 734 F.2d 1015 (4th Cir.1984). This is not disputed by Anchor Hocking and Newell.[1] Likewise, Anchor Hocking previously stated that the Governor, in bringing this action in his official capacity as chief executive of the State, does so "for the benefit, not of himself, but of the citizens and residents of the state at large."[2] It appears to the Court that the Governor has filed the instant civil action in his official capacity as chief executive and "alter ego" of the State and does so seeking to benefit the "citizens and residents" of West Virginia. Therefore, to the extent Anchor Hocking and Newell contend that the Governor is a citizen in this civil action for purposes of diversity jurisdiction, such contention is unavailing. Hughes-Bechtol, Inc. v. West Virginia Board of Regents, 737 F.2d 540 (6th Cir.1984). Finally, it is asserted by Anchor Hocking and Newell that: The real party-in-interest to the claims set forth in Count I and Counts III through V of the complaint ... is the Harrison County Industrial Development Authority ["HCIDA"].... Verified Petition For Removal, at Page 5, Paragraph 9(b). In the alternative, the defendants suggest that the West Virginia Economic Development Authority ("EDA") is the real party in interest. A thorough review of the complaint establishes that the State and the Governor are the only party plaintiffs appearing in the style of this civil action. Further examination reveals that the allegations contained in the complaint support requests for relief which are specific to the plaintiffs and not the HCIDA or EDA. The Court being mindful of the well reasoned arguments propounded by Anchor Hocking and Newell finds that the State and Governor, and not HCIDA and EDA, have an inseparable and substantial stake in the outcome of this civil action. See Krier-Hawthorne v. Beam, 728 F.2d 658, 664, n. 8 (4th Cir.1984) (citing Lester v. McFaddon, 415 F.2d 1101 (4th Cir.1969). *1178 The Court follows the rule that the party with the "substantial stake" in the outcome is the real party in interest for purposes of determining diversity jurisdiction. Further, the Court is guided here by the principle enunciated in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), which requires the question as to the real party in interest to be determined from the "essential nature and effect of the proceedings." Id. at 464, 65 S.Ct. at 350; see also Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th Cir.1981). In this light, the Court, in examining the West Virginia Economic Development Authority Act, West Virginia Code §§ 31-15-1 et seq., finds that the true stake holders in the outcome of this civil action are the citizens of West Virginia; thus, West Virginia has a real and legal interest in the outcome of this civil action. See Ex Parte Nebraska, 209 U.S. 436, 28 S.Ct. 581, 52 L.Ed. 876 (1908). This finding is borne out by the complaint and a reading of the purpose of the West Virginia Economic Development Authority Act, contained in § 31-15-3.[3] Therefore, the Court holds, for purposes here, that the State and the Governor, as "alter ego" of the State, are the real parties in interest for purposes of determining diversity jurisdiction. Even assuming for argument purposes that either HCIDA or EDA were determined to be the real parties in interest in this civil action, the Court is of the opinion under the nature and effect of the proceeding as it appears from the entire record, that the HCIDA and EDA are also agencies and alter egos of the State. See Hughes-Bechtol, Inc. v. West Virginia Board of Regents, supra 437 F.2d 540; West Virginia State Bar v. Bostic, 351 F.Supp. 1118 (S.D.W.Va.1972); State of West Virginia v. Haynes, 348 F.Supp. 1374 (S.D.W.Va.1972). Therefore, the Court holds, for the reasons expressed above, that this civil action was removed improvidently and without jurisdiction. 28 U.S.C. § 1447(c). Accordingly, it is ORDERED that plaintiffs' motion to remand is hereby GRANTED and this civil action shall be remanded to the Circuit Court of Harrison County, West Virginia. NOTES [1] See Defendant's "Memorandum in Opposition to Remand Motion" at Pages 2-3. [2] See Defendant's "Memorandum of Law In Support Of Motion To Dissolve Temporary Restraining Order And Dismiss Complaint" filed in Arch A. Moore, Jr. v. Newell Corporation, Civil Action No. 87-0117-C(K), (N.D.W.Va.1987), a related case previously filed and later dismissed by this Court. In the earlier related civil action, Newell successfully argued that Arch A. Moore, Jr., plaintiff, acting in his official capacity as Governor, was the "alter ego" of the State of West Virginia and the State was the "real party in interest" in that civil action. This Court's Order entered dismissing the action for lack of diversity of citizenship read, in pertinent part: "[T]hat although unnamed in the caption of this civil action, the State of West Virginia is the real party in interest in this action." Civil Action No. 87-0117-C(K) (N.D.W.Va.1987). [3] West Virginia Code § 31-15-3 provides in pertinent part that: The purposes of this article shall be to provide for the formation of a public economic development authority to promote, assist, encourage and, in conjunction with such banking corporations ... or other institutions to develop and advance the business prosperity and economic welfare of the State of West Virginia ... Such purposes are hereby declared to be public purposes for which public money may be spent and are purposes which will promote the health, safety, morals, right to gainful employment, business opportunities and general welfare of the inhabitants of the State.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA T.P.B., : Petitioner : : v. : No. 339 M.D. 2018 : Pennsylvania State Police, : Megan's Law Section, : Respondent : PER CURIAM ORDER NOW, December 11, 2019, upon consideration of Petitioner’s application for reconsideration, and Respondent’s answer in response thereto, the application is denied. 

189 F.Supp. 265 (1960) UNITED STATES of America, Plaintiff, v. Alexander L. GUTERMA, Virgil D. Dardi, Lowell M. Birrell, Robert C. Leonhardt, Louis Levin, Pierre A. Duval, Harry W. Bank, and United Dye & Chemical Corporation, Defendants. United States District Court S. D. New York. February 2, 1960. *266 *267 *268 S. Hazard Gillespie, U. S. Atty., Southern Dist. of New York, by Jerome Londin and Leonard Glass, New York City, for plaintiff. Moss, Wels & Marcus (by Richard H. Wels, New York City), for Guterma. Lord, Day & Lord, New York City, for Leonhardt. Corcoran, Kostelanetz, Gladstone & Dowell, New York City, for Dardi and United Dye and Chemical Corp. John F. Dailey, Jr., New York City, for Duval. EDELSTEIN, District Judge. Under an indictment charging a conspiracy to violate and substantive violations of the Securities Act of 1933, 15 U.S.C. § 77a et seq., 15 U.S.C.A. § 77a et seq., 48 Stat. 74, and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., 15 U.S.C.A. § 78 et seq., 48 Stat. 881, motions to dismiss have been made by four of the defendants: Alexander L. Guterma, Virgil D. Dardi, Robert G. Leonhardt and United Dye and Chemical Corporation. Only Dardi and the corporate defendant are named in all fifteen counts, but the discussion will be applicable to all the grounds advanced against all counts. The entire indictment is attacked as vague and conclusory, with an extensive elaboration on the lack of factual allegations. It is true that the indictment could have been drawn with more factual specification, but "* * * [t]he true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.'" Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. By this test, I conclude that the indictment withstands attack. *269 The first count is a conspiracy charge. The elements of the offense of conspiracy are the agreement, the offense-object toward which the agreement is directed, and an overt act. United States v. Offutt, 75 U.S.App.D.C. 344, 127 F.2d 336, 338. The indictment charges that the named defendants did, during a specified time, conspire with each other, with others named as co-conspirators but not as defendants, and with others unknown, to commit certain offenses against the United States. These offenses are defined generally as the violation of specified sections of the Securities Act of 1933 and of the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder, and further, the defrauding of the United States by impeding, impairing, obstructing and defeating the lawful governmental functions of the Securities and Exchange Commission. Succeeding paragraphs refine this generality with a clear indication of the nature and scope of the offenses, including names and dates, and substantially in statutory language. It is true that these offenses are insufficiently alleged to be properly pleaded as substantive offenses. But such pleading is not required. "It is well settled that in an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy * * * or to state such object with the detail which would be required in an indictment for committing the substantive offense * * *. In charging such a conspiracy `certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is' necessary. Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 52 L.Ed. 278 * * *." Wong Tai v. United States, 273 U.S. 77, 80, 47 S.Ct. 300, 301, 71 L.Ed. 545. The offense objects are, in count one, sufficiently identified in accordance with this standard. "The particularity of time, place, circumstances, causes, etc. * *" is not essential to the sufficiency of the indictment. Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680. To complain of the absence of allegations of specific fact from which it can be determined that a particular defendant entered into a conspiratorial agreement is to complain of the failure to plead evidence from which a jury may ultimately infer his guilt. It is the agreement and the offense-object which must be clearly described, not the detailed participation of each defendant. Inasmuch as it is unnecessary to a finding of guilt under a conspiracy charge that the offense-object be achieved, it is manifestly unnecessary to allege or prove the details of achievement. It is an identification of the offense, rather than its definition, which must be indicated "with certainty to a common intent". Where the indictment alleges, for example, that it was part of the conspiracy for named defendants to file an annual report, Form 10-K, of the corporate defendant for the calendar year 1954 from which they would omit information required to be set forth therein concerning the material interest of another (officer, director and stockholder) defendant in material transactions to which subsidiaries of the corporate defendant were parties, it has unmistakably identified the partial offense-object, without stating the information omitted (or to be omitted), the material interest of the person named or the identity of the transactions. Details of the specificity urged by the defendants to be necessary can by no effort be stretched to essentials. They are a far cry from the allegations omitted in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419, where there was no direct allegation that it was the purpose of the conspiracy to interfere with federal court proceedings, there being no allegation that the defendants knew about the injunction; or in Hamner v. United States, 5 Cir., 134 F.2d 592, where there was merely a charge of conspiracy to commit offenses and frauds, followed only by "confused allegations" of what the defendants did; or in Asgill v. United *270 States, 4 Cir., 60 F.2d 780, where the charge merely recited the purpose of the performance of certain unlawful acts. Overt acts having been pleaded, the elements of the conspiracy have been set forth in the indictment with sufficient particularity for the defendants to understand what they are charged with having conspired to do, in "a plain, concise and definite written statement of the essential facts constituting the offense charged * * *", Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. Count two charges the willful failure to set forth certain information in an annual report of the corporate defendant required to be filed with the New York Stock Exchange, in violation of sections 78m and 78ff(a) of Title 15 United States Code, 15 U.S.C.A. §§ 78a, 78ff(a). Section 78m commands every issuer of a security registered on a national securities exchange to file with the exchange, in accordance with such rules and regulations as the Commission may prescribe, generally described information and documents, including annual reports, as prescribed by the Commission. Section 78ff (a) provides that any person who willfully violates any provision of the chapter, or any rule or regulation thereunder, the observance of which is required under the terms of the chapter, shall upon conviction be subject to the specified penalties. Thus, the crime consists of the willful failure to set forth identified information required by the Commission in a specified document prescribed by the Commission. Count two adequately incorporates the elements of the crime. It charges three of the defendants by name with willfully and knowingly failing to set forth in an annual report, Form 10-K, prescribed by the Securities and Exchange Commission, the required information about the approximate amount of and material interest, direct or indirect, of Lowell M. Birrell, a director and officer of the corporate defendant, in material transactions during a specified period of time and with specified persons. The defendants are fully and fairly informed of the charges they are required to answer, without any further statement of facts showing how the alleged omission was material, what the particular transactions were, or the amount of and material interest of the defendant-director. The remaining counts have been drawn substantially in the language of the statute and regulations which the defendants are charged with violating, with particularization of generic language. When statutory language alone embodies all the elements of the crime, clearly informing defendants what the charges are so that they are able to prepare their defenses and plead the judgments in bar of any further prosecutions for the same offense, it is sufficient. United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 94. United States v. Achtner, 2 Cir., 144 F.2d 49; United States v. Palmiotti, 2 Cir., 254 F.2d 491; United States v. Varlack, 2 Cir., 225 F.2d 665. The situation is otherwise, of course, where the statute itself omits an essential element of the offense or includes it only by implication. See Robertson v. United States, 5 Cir., 168 F.2d 294, 295. In United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135, for example, an indictment alleging in the words of the statute that the defendant, feloniously and with intent to defraud, did pass, utter and publish a falsely made, forged, counterfeited and altered obligation of the United States, but not further alleging that the defendant knew it to be false, forged and counterfeited, was insufficient. The knowledge of the defendant was an element of the crime. It was, however, not specifically recited in the statute, but inferred by the court as the intent of the legislature. The indictment, therefore, set forth in the statutory language, was insufficient because it omitted an element of the crime. An indictment that does not allege all the elements of the crime is not cured by an allegation that what was done was "in violation of" the statute. Alabama Packing Co. v. United States, 5 Cir., 167 F.2d 179. And if the statute includes generic terms, describing only the general nature of the offense, statutory language is insufficient. *271 For example, in United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 573, 31 L.Ed. 516, the statute (R.S. § 5480, 18 U.S.C.A. § 1341) was directed against "devising, or intending to devise, any scheme or artifice to defraud", to be effected by communication through the post office. The particulars of the scheme are matters of substance, and an indictment drawn in the statutory language, without alleging any particulars of the scheme, omitted a necessary element of the crime. By these principles, I have concluded, the remaining counts of the indictment are sufficient. Basic facts are alleged in statutory language that contains no fatal omissions, and insofar as generic statutory language is employed there is ample particularization, so that the essential elements of the crimes are alleged in a manner that fairly apprises the defendants of the nature of the charges and enables them to protect themselves from subsequent prosecution for the same offenses. Counts three, five and fifteen charge the unlawful hindering, delaying and obstructing of the making and filing of current reports of the defendant corporation with the New York Stock Exchange, in violation of sections 78m, 78t (c) and 78ff(a) of Title 15. Section 78m, as indicated, requires the filing of reports prescribed by the Securities and Exchange Commission and the failure to file is made a crime by the overall penal section, 78ff(a). Section 78t(c), making it unlawful to hinder, delay or obstruct the making or filing of documents required to be filed, supplies the charging language of the indictment, and the generic terminology is adequately particularized by the designation in each count of a specific document, the substance of the information required to be filed therein, and the specific months involved, as well as a recital of the administrative regulation requiring filing. It is urged, however, that an element of the crime has not been charged because the regulation which is charged to have been violated defines the necessity of filing in exceptive terminology: "* * * except as provided in paragraph (b) * * *" and "* * * unless the same information * * * has been previously reported * * *". And it is argued that when the very clause imposing a duty or forbidding an act exempts certain persons, acts or circumstances, it is necessary to state in an indictment for its violation that the defendant does not come within the restriction and to negative the exception. But I conceive the true rule to be, under the authority of McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301, "that if it is impossible to frame the statutory charge without negativing the exception, then it should be negatived; but where, as here, the statute states a clear, definite, and general offense, and then excepts certain classes or acts from its scope, the exception need not be negatived. Nor is it a matter of importance whether the excepting clause is in parentheses, or set off by commas, at the beginning of the sentence, or follows a proviso at the end." Nicoli v. Briggs, 10 Cir., 83 F.2d 375, 379. The exceptions here are not so substantively imbedded in the definition of the offense that it is impossible to frame the statutory charge without negativing the exceptions. A clear, definite and general offense is stated. Moreover, by alleging that the defendants unlawfully did hinder, etc. the filing of the reports required to be filed pursuant to the regulation, the possibility that the reports were not required to be filed was excluded. United States v. Winnicki, 7 Cir., 151 F.2d 56, 58; contra, Sutton v. United States, 5 Cir., 157 F.2d 661; but note dissenting opinion at page 666. The indictment, in these counts, has not omitted an element of the crime, and it is incumbent upon the defendants who rely upon an exception to set it up and establish it. McKelvey v. United States, supra. Count four charges a violation of section 78n (and of section 78ff(a) by which it is made a crime) in the use of the mails and the facilities of the New York Stock Exchange for a proxy solicitation by means of a proxy statement containing statements which were false *272 with respect to material facts and omitting to state material facts. The charge sets forth the basic facts substantially in the language of the statute and a cited regulation, in addition to being adequately particularized by date, stock, the quotation of the allegedly false statements with a specification of how they were false and misleading, and with a specification of the material facts omitted. The elements of the crime are obviously pleaded, but objection is made that the alleged misstatements and omissions had no materiality, or that such materiality does not appear on the face of the indictment. As Judge Murphy said in United States v. Shindler, D.C., 173 F.Supp. 393, for the purpose of a motion to dismiss, the defendants admit the truth of the allegations of the indictment, including the allegation of materiality, and, in any event, materiality must be judged by the facts and circumstances in the particular case and should properly await the trial to be determined from all the evidence. Counts six through fourteen charge fraud in the offer and sale of the common stock of the defendant corporation by the use of the mails, in violation of section 77q(a), which is made a crime by section 77x. The counts are identical except for the specific mailings alleged. Again the charges are made in the language of the statute and further particularized by date, stock and a long list of persons said to have been defrauded, and followed by eighteen paragraphs of facts detailing the manner and means by which the defendants carried out the scheme to defraud the investing public. The contention that the indictment must expressly allege an offer or sale of securities by mail or other means of communications is not well made. United States v. Monjar, D.C., 47 F.Supp. 421, affirmed 3 Cir., 147 F.2d 916, certiorari denied 325 U.S. 859, 65 S.Ct. 1191, 89 L.Ed. 1979. The objection to these counts is further made that they do not specifically detail such facts as the substance of false statements and how they are false, and the omissions to state material facts. But the gist of the crime is the use of the mails in executing the scheme. Frank v. United States, 10 Cir., 220 F.2d 559; Harper v. United States, 8 Cir., 143 F.2d 795. At pages 801-802 of the latter case, it is said: "The devising of a scheme or artifice to defraud or to obtain money by means of fraud or false pretenses is not a crime either under the Securities Act or the Mail Fraud Act. It becomes a crime only in the event that in furtherance of the scheme or artifice to sell securities any means or instruments of transportation or communication in interstate commerce or the mails be employed. Under the Mail Fraud Act it becomes a crime only in the event the United States Mails are used in carrying out the scheme. The use of the United States mails or means or instruments or transportation or communication in interstate commerce in execution of the alleged scheme to defraud is the gist of the offense which these statutes denounce and not the scheme to defraud. * * * The scheme and artifice to defraud is not required to be set forth with that particularity which would be required if the scheme were the gist of the offense. * * *" The particulars of the scheme are matters of substance and must be described with a degree of certainty sufficient to show its existence or character, and fairly to acquaint the defendant with the particular fraudulent scheme charged against him; but the scheme itself need not be pleaded with all the certainty in respect of time, place and circumstance requisite in charging the mailing of the letter. Cf. United States v. Crummer, 10 Cir., 151 F.2d 958, certiorari denied 327 U.S. 785, 66 S.Ct. 704, 90 L.Ed. 1012. Consequently, cases cited where the gist of the offense is the fraud or false statement are inapposite. Counts six through fourteen adequately charge the substance of the scheme with sufficient detail to show its existence and character and to *273 acquaint the defendants with the nature of the offense. It is further contended that counts six through fourteen, charging fraud in the offer and sale of stock by the use of the mails, and counts two, three, five and fifteen, charging violations in connection with the filing of reports and information, are duplicitous, each series alleging a course of conduct constituting a single violation, under the authority of United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. But in counts six through fourteen, charging violations under section 77q of Title 15, the gist of the crime is the use of the mails; the scheme, falsehood and deceitful transactions charged become a crime only when the mails are used in execution. Harper v. United States, supra; Frank v. United States, supra. Each mailing, therefore, constitutes a separate offense. Cf. Schumpert v. United States, 6 Cir., 245 F.2d 233; Nelson v. United States, 9 Cir., 178 F.2d 458; Holmes v. United States, 8 Cir., 134 F.2d 125, certiorari denied, 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722; United States ex rel. Bernstein v. Hill, 3 Cir., 71 F.2d 159. And although counts two, three, five and fifteen all allege violations of the so-called "housekeeping" provisions of the Securities Exchange Act, they nevertheless do not involve identical kinds of violations, so that it does not follow that the penal section 78ff(a) which makes these violations crimes prescribes only one offense. See United States v. Universal C. I. T. Credit Corp., supra, 344 U.S. note 4 at page 221, 73 S.Ct. 227. Count two defines a violation under section 78m, while counts three, five and fifteen define different violations with distinct requirements under section 78t (c) as well as section 78m. Moreover, count three defines a violation with a requirement distinct from that involved in counts five and fifteen, in that separately prescribed classifications of information are involved. Thus, accepting the course of conduct contention, it is arguable, duplicity attaches only to counts five and fifteen. But, despite the fact that there is a good deal of technical analogy to the C. I. T. case and to United States v. Personal Finance Company, D.C., 174 F. Supp. 871, cited by defendants, I am not persuaded that this is the kind of situation in which the course of conduct theory of violations is applicable. In the C. I. T. case, to have held the offenses alleged to be distinct and separate crimes would have subjected the defendant to a possible fine of $320,000 instead of $30,000, and in the Personal Finance case, the defendant would have been subjected to a possible fine of $1,000,000 instead of $15,000. In both of these cases, a consistent pattern of doing business involved an indefinite potential of violations with a resulting possibility of astronomical fines, and it was felt that Congress could not have intended such results without clearly indicating them. Compare Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, and Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199. The kind of acts here involved are not the subject of such a consistent course of business dealing—the paying of employees or the making of loans—as to incur the danger as a matter of course. Accordingly, the situation does not pose the same problem or suggest the same answer. Defendants argue, finally, that sections 78m, 78n, 78t(c) and 78ff (a) of Title 15, are unconstitutional. Sections 78m (in which section 78t(c) is involved by its reference to the documents and information required to be filed by the Commission, under section 78m) and 78n, it is urged, contain impermissibly broad delegations of power to the Commission in violation of the Fifth and Sixth Amendments. The argument is thoroughly shopworn. The standards laid down for the Commission, in section 78m, "for the proper protection of investors and to insure fair dealing in the security", and in section 78n, "in the public interest or for the protection of investors", are adequate by long settled doctrine. American Power & Light Co. v. S. E. C., 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103; Yakus v. United States, *274 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. The constitutionality of section 78n has been specifically upheld by the Court of Appeals for the Second Circuit, S. E. C. v. May, 2 Cir., 229 F.2d 123, 55 A.L.R.2d 1123; cf., Charles Hughes & Co. v. S. E. C., 2 Cir., 139 F.2d 434, certiorari denied 321 U.S. 786, 64 S.Ct. 781, 88 L.Ed. 1077. It is true, of course, that a law may be valid in its delegation of administrative power but invalid as a criminal statute, because the statute does not clearly enough define the nature and quality of the offense. Champlin Ref. Co. v. Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062. But here the criminal violations are defined by the legislative language taken together with the applicable regulations, and these definitions meet the standards of definiteness required of criminal enactments. The necessity of filing the information in the annual report Form 10-K (involved in counts one and two) derives from section 78m, which requires the filing of such information and reports and the Commission may require in accordance with its rules and regulations as "necessary or appropriate for the proper protection of investors and to insure fair dealing in the security * *." Rule X-13A-1 (of Regulation X-13A) requires the filing of an annual report. Rule X-12B-1 (of Regulation X-12B) makes all reports required pursuant to section 13 of the Act (15 U.S.C. § 78m, 15 U.S.C.A. § 78m) subject to the rules contained in Regulation X-12B. Rule X-12B-10 of that Regulation requires every report to be on the form prescribed by the Commission as in effect on the date of filing. And the form contains instructions clearly defining the information required. The necessity of filing the information in the current report Forms 8-K (involved in counts one, three, five and fifteen) derives similarly from section 78m. Rule X-13A-11 requires, with exceptions (defined with adequate certainty pursuant to an adequate delegation of authority), those subject to Rule X-13A-1 to file a current report on Form 8-K, in specified circumstances and within a specified time. And Form 8-K contains clear instructions for the information required. The instructions specifically refer to definitions contained in Rule 12B-2, and those definitions adequately explain the terminology of the instructions. It is simply impossible to understand a complaint of the vagueness or indefiniteness of section 78n taken together with Rule X-14A-9 in connection with proxies (involved in counts one and four). The violation described is as clear as a bell. Defendants have gone to some length to demonstrate that they have, under these provisions, been cast into a hopelessly tangled rat maze. The effort is labored. The statutory and regulatory scheme is certainly more involved than the injunction, "Thou shalt not steal." But the conditions of society giving rise to the necessity for regulation are more involved than in the days of the patriarchs. It is entirely reasonable and proper to employ a relatively sophisticated scheme for the regulation of relatively sophisticated transactions. Clarity is relative to context and in the context of a complex field of human activity clarity is not precluded by a commensurate complexity of regulation. Indeed, it would appear that, in the circumstances, complexity is at a minimum, and those engaging in the regulated dealings are quite fully advised of what is required of them. The paths from statute to regulation, and, where necessary, to instruction sheet, are neither devious nor obstructed even though they are not without turns. The signposts are not hidden and their legends are not obscure. A reasonable degree of certainty is provided. As said in Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367: "A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. [Citing Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. *275 618, 83 L.Ed. 888].] But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. [Citing Nash v. United States, 229 U.S. 373, 377 [33 S.Ct. 780, 57 L.Ed. 1232]. Hygrade Provision Co. v. Sherman, 286 U.S. 497, 502-503 [45 S.Ct. 141, 69 L.Ed. 402]; United States v. Petrillo, 332 U.S. 1, 7-8 [67 S.Ct. 1538, 91 L.Ed. 1877].]" The statute and regulations, in their language, convey "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *", United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542. They quite clearly establish an ascertainable standard of guilt. The penal section 78ff(a) (involved in counts one, two, three, four, five and fifteen), is said to be defective because the first clause makes only a "willful" violation of any provision of the chapter, or rule or regulation thereunder, a crime, but the last clause states: "* * but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation." A strained reading serves to raise a host of difficulties, including the shifting of the burden of proof to the defendant. But it is difficult to strain the obvious. The clause obviously means that "[i]f a defendant is convicted of willfully violating a rule or regulation, he may be punished by the imposition of a fine even if he proves that he had no knowledge of such rule or regulation. The statutory proviso applies only to punishment by imprisonment. Whether a fine will be imposed at all depends upon the discretion of the judge passing upon the sentence." Herlands, Criminal Aspects of the Securities Exchange Act of 1934, 21 Virginia L.Rev. 139, 190-191. The writer, now a judge of this court, points out that the provision is a compromise between proposed provisions offered in the bills before Congress, impliedly recognizing that a great mass of rules and regulations would be issued by the Commission, rendering ludicrous a strict adherence to the fiction of presumed knowledge of the law. The section presents no constitutional problems. The motions to dismiss are denied.

943 So.2d 1090 (2006) Mickey O'CONNOR v. WESTBANK INNS, a Louisiana Partnership, John F. Stumpf, Jr., Lincoln T. Case and Harry C. Stumpf. No. 2005-CC-1134. Supreme Court of Louisiana. December 8, 2006. Denied. TRAYLOR, J., recused.

247 F.Supp.2d 90 (2003) Ilianita SANCHEZ RIVERA, et al., Plaintiffs, v. DOCTORS CENTER HOSPITAL, INC., et al., Defendants. No. CIV. 01-2713(JP). United States District Court, D. Puerto Rico. February 25, 2003. *93 Rafael E. García Rodón, Esq., San Juan, for Plaintiff. Raphael Peña Ramón, Esq., Enrique Nassar-Risek, Esq., Humberto Vázquez Sandoval, Esq., Ivan Domínguez, Esq., San Juan, for Defendant. OPINION AND ORDER PIERAS, Senior District Judge. I. INTRODUCTION The Court has before it Defendant Doctors Center Hospital's Motion for Summary *94 Judgment (docket No. 52)[1], and Plaintiffs' opposition thereto (docket No. 61). Plaintiffs Ana Rivera, Tomas Molina, Giovanna Molina, and Cristal Molina (hereinafter "Plaintiffs")[2] bring forth this action under the Emergency Medical Treatment and Active Labor Act, known as "EMTLA", alleging negligent screening and transfer of their son and brother, Gian Javier Molina Rivera, who died after he was brought to Doctors Center Hospital in Manati, Puerto Rico, after being involved in a violent car accident. Plaintiffs also bring forth causes of action for negligence under Article 1802 of the Puerto Rico Civil Code. For the reasons herein stated, Defendant's Motion for Partial Summary Judgment is hereby GRANTED, and Plaintiffs Ana Rivera, Tomas Molina, Giovanna Molína, and Cristal Molina's EMTLA claims are hereby DISMISSED WITH PREJUDICE. However, the Court is unclear whether Plaintiffs are suing the hospital alone or are also suing Dr. Javier Rodriguez and Dr. John Psarras Castro. Therefore, it will defer its decision whether to exercise jurisdiction over Plaintiffs' remaining state law claims until this matter has been cleared up. II. STANDARD Summary judgment serves to "assess the proof in order to see whether there is a genuine need for a trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is in order when the record, including "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," and viewed in the light most favorable to the nonmoving party, [in this case Plaintiffs] "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir.1999) (stating that summary judgment is appropriate when, after evaluating the record in the light most favorable to the non-moving party, the evidence "fails to yield a trial worthy issue as to some material fact"); Goldman v. First National Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); Canal Insurance Co. v. Benner, 980 F.2d 23, 25 (1st Cir.1992). A fact is material if, based on the substantive law at issue, it might affect the outcome of the case. See Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989). The Supreme Court has stated that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In a summary judgment motion, the movants, in this case Defendants, bear the initial burden of "informing the district court of the basis for their motion and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex *95 Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where the movant does not bear the burden of proof at trial, it must show that no reasonable fact-finder could find that the non-movant, in this case, the Plaintiffs, have established the requisite elements of their claim. Id. at 325, 106 S.Ct. 2548. Once the moving party meets his burden of proof, the burden shifts to the nonmovant, who may not "rest upon mere allegations or denials of ... the pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Goldman, 985 F.2d at 1116; see Celotex, 477 U.S. at 324, 106 S.Ct. at 2554; Anderson, All U.S. at 248, 106 S.Ct. at 2511. In view of this standard and after studying the parties' briefs and the documents attached thereto, the Court makes the following findings of fact. III. FINDINGS OF FACT 1. On July 3, 2000, around 4:15 p.m., Gian Javier Molina Rivera was involved in a violent motor vehicle accident. 2. The accident occurred at Road 685, km 6.5, Manatf, Puerto Rico. 3. The car was being driven by minor Elliot Rosario Morales. 4. Gian Javier was a passenger in the car. 5. Both minors received multiple body traumas. 6. Driver Elliot Rosario died at the scene of the accident. 7. Around 5:00 p.m., 15 year old Gian Javier was brought in an ambulance by state paramedics to the emergency room of Doctors Center Hospital. 8. According to the paramedic's report, the ambulance was called at 4:39 p.m. 9. The ambulance arrived at the scene at 4:44 p.m., departed at 4:50 p.m., and arrived at the emergency room at 4:55 p.m. 10. The record indicates that Gian Javier arrived at the emergency room with multiple traumas, including left otorrhagia, left ear wound, head trauma, left femur displaced fracture, traumatic amputation of the distal portion of the left second finger, peroneal fracture, and was not responding to verbal or pain stimuli. 11. Gian Javier was unconscious upon his arrival at the hospital. 12. His neurological condition was recorded as Glasgow 5, with bilateral midriasis. 13. Gian Javier's condition was a very serious medical emergency condition. 14. Gian Javier was evaluated by Dr. Jorge Rodriguez, the internist and emergency room physician. 15. Dr. Rodriguez' initial diagnosis was: head trauma, pelvis trauma with hematuria, left displaced femoral fracture, left second finger distal partial amputation, suspected left hand phalangeal fracture, left ear auricle wound, otorrhagia and comatose state Glasgow 5. 16. At 5:10 p.m., Dr. Rodriguez ordered cardiac monitoring, endotracheal intubation, oxygen therapy, new peripheral vein canalization, IV fluids with normal saline solution and ringer lactate to run full drip, foley catheter, reduction and traction of the left femoral fracture, laboratories (CBC, arterial blood gases, coagulation test, chemistry test, type and cross match), x-ray (chest, skull, left leg and KUB), *96 Manitol and Decadron, Tetanus Toxoid, antibiotic IV, mechanical ventilation, brain CT Scan, Narcan, nasogastric tube and gastric lavage. 17. A foley catheter was placed on Gian Javier and it showed a gross hematuria, which is a profuse bleeding through the urethra. 18. Gian Javier was a poly-traumatized patient. 19. At 6:05 p.m. Dr. Rodriguez formally consulted with Dr. Peter Psarras, a surgeon, regarding the need for surgical intervention at that moment. 20. Dr. Psarras decided not to operate on Gian Javier, and recommended he be transferred to Puerto Rico Medical Center ("Centro Medico") for neuro-surgical, orthopaedist, and general surgeon evaluation, and treatment at 6:15 p.m. 21. Both doctors stated as their diagnosis that Gian Javier had a soft, depressible abdomen, which is normal and does not present the possibility of an internal rupture. 22. At the time Gian Javier was treated by Doctors Center Hospital, the hospital did not have the facilities for neurosurgery. 23. A CBC was performed upon arrival and no other CBC was ordered. 24. The nursing personnel did not take Gian Javier's vital signs every 15 minutes, but instead did so approximately every 20-30 minutes. 25. The Protocol for poly-traumatized patients required the execution of the necessary arrangements in order to transfer a poly-traumatized patient to the trauma unit of Centro Medico. 26. Dr. Rodriguez consulted with Dr. Maldonado from Centro Medico, and Dr. Maldonado accepted Gian Javier as a patient for surgery screening. 27. Doctors Center Hospital arranged for the transfer of the patient to Centro Medico by air ambulance at 7:45 p.m. 28. Aeromed has a physician performing duties as "medical control", who evaluates the transfer requests pursuant to his medical judgment, based on what the physician treating the patient indicates. 29. Dr. Benjamin Rodriguez, who served as medical control on the evening in question, recommended that Gian Javier be immediately transferred to Centro Medico. 30. Two units of packed red blood cells were ordered, and were available. 31. The blood was never administered to Gian Javier. 32. Dr. Benjamin Rodriguez opined that the administration of the blood to Gian Javier at Doctors Center was going to delay the transfer, and recommended the blood be sent with Gian Javier to the Centro Medico to be administered there. 33. The transfer was accepted by the Puerto Rico Medical Center. 34. The transfer order written by Dr. Rodriguez at 7:15 p.m. indicated head trauma, pelvic trauma, gross hematuria, left femoral fracture and hypovolemic shock. 35. At 8:30 p.m., moments before the time Gian Javier was placed in the Aeromed air ambulance, his blood pressure was 135/62, within acceptable limits. 36. Gian Javier's mother signed the authorization for the transfer. *97 37. Doctors Center Hospital had the facilities and the personnel necessary to conduct an abdominal surgery. 38. The air ambulance (Aeromed) arrived at 7:45 p.m. at Doctors Center, and departed at 8:45 p.m. 39. The two units of blood were sent with Gian Javier to Centro Medico. 40. A patient cannot receive a blood transfusion during air transport. 41. A physician did not accompany Gian Javier during transport. 42. Gian Javier died after his arrival at Centro Medico. 43. Gian Javier's autopsy revealed abrasions in different external body parts, partial amputation of second distal finger of the left hand, left femur fracture, thoracic muscle contusion, pulmonary contusion, fracture of the seventh right rib, liver laceration, left kidney laceration, spleen laceration and hemoperitoneum. 44. The cause of death was classified as severe corporal trauma. 45. Doctors Center Hospital is a Medicare recipient and subject to ETALA provisions. IV. CONCLUSIONS OF LAW A. Screening and Treatment The Emergency Medical Treatment and Active Labor Act, better known by its acronym, "EMTALA," imposes three duties which "reside in three principal statutory silos." López-Soto v. Hawayek, 175 F.3d 170, 172 (1st Cir.1999). The first duty, codified in subsection (a) of the statute, requires that covered hospitals perform "an appropriate medical screening examination" on "any individual" who comes to an emergency department for treatment. 42 U.S.C. § 1395dd(a). The duty to screen applies only in cases of individuals who arrive at the hospital's emergency room. See López-Soto, 175 F.3d at 173. In order to be able to determine whether a hospital has complied with its duty to screen a patient, the particular hospital's capabilities must be taken into account. See Brooks v. Maryland Gen'l Hosp., Inc., 996 F.2d 708 (4th Cir.1993). Although the statute is not clear in defining what an appropriate medical screening is, case law has defined this duty as providing an examination "reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints." Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995); see also Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C.Cir.1991) ("`appropriate' screening is properly determined not by reference to particular outcomes, but instead by reference to a hospital's standard screening procedures"). The duty to stabilize patients with emergency conditions and the process of transferring them are set forth in subsections (b) and (c), respectively. If an emergency medical condition is detected during the screening, then an additional duty arises, and the hospital must either: provide further medical examination and treatment required to stabilize the condition, or transfer the individual to another facility in accordance with subsection (c). See 42 U.S.C. § 1395dd(b)(1); In Matter of Baby "K", 16 F.3d 590 (4th Cir.1994). Subsection 1395dd(e)(1) defines "emergency medical condition" as: "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate *98 medical attention could reasonably be expected to result in—(A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part." 42 U.S.C. § 1395dd(e)(1). Under this definition, a patient will suffer from an emergency medical condition if he is in "imminent danger of death or serious disability." Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir.1990). Therefore, once it is established that a patient appeared at a hospital's emergency department with an emergency medical condition, or when an individual has been diagnosed as presenting an emergency medical condition, the hospital must provide that treatment necessary to prevent the material deterioration of the individual's condition or provide for an appropriate transfer to another facility. The hospital will be liable under EMTALA either if it fails to detect the nature of the emergency condition as a result of a disparate screening or, if the hospital detects the emergency condition, by failing to stabilize the condition prior to releasing the plaintiff. See Deberry v. Sherman Hosp. Ass'n, 741 F.Supp. 1302, 1305 (N.D.IU. 1990). A plaintiff seeking to show a violation of subsections (b) or (c) must show that the hospital had actual knowledge of his or her emergency medical condition. See Urban v. King, 43 F.3d 523, 525-26 (10th Cir.1994); Baber v. Hospital Corp. of America, 977 F.2d 872, 883 (4th Cir.1992); Cleland v. Branson Health Care Group, Inc., 917 F.2d 266, 270 (6th Cir.1990). Actual knowledge is not required, however, to show a violation of subsection (a), because screening usually precedes a conclusion that an emergency condition exists. Finally, the Court must clarify that EMTALA does not create a cause of action for medical malpractice. See Gatewood, 933 F.2d at 1041. A faulty screening does not give rise to an EMTALA claim. See Correa, 69 F.3d at 1192 ("A refusal to follow regular screening procedures in a particular instance contravenes the statute, but faulty screening in a particular opposed to disparate screening or refusing to screen at all, does not contravene the statute") (citations omitted); Baber, 977 F.2d at 878 ("While EMTALA requires a hospital emergency department to apply its standard screening examination uniformly, it does not guarantee that the emergency personnel will correctly diagnose a patient's condition as a result of this screening"). Rather, an EMTALA claim may only ensue for failure to screen in a manner comparable to others brought into the emergency room with the same conditions. That is to say, the treatment administered to Gian Javier must have differed significantly from the treatment offered to patients arriving at the emergency room under the same conditions. 42 U.S.C. § 1395dd(a); Guadalupe v. Negron Agosto, 299 F.3d 15, 18 (D. Puerto Rico 2002); Correa, 69 F.3d at 1192 ("The essence of EMTALA's screening requirements is that there be some screening procedure and that it be administered evenhandedly"); Reynolds v. MaineGeneral Health, 218 F.3d 78, 84 (1st Cir.2000) (screening received must have been "materially different" than that provided to others in the same condition). Thus, there is both a substantive and a procedural component to an appropriate medical screening under EMTALA: "[a] hospital fulfills its statutory duty to screen patients in its emergency room if it provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that *99 level of screening uniformly to all those who present substantially similar complaints." Id. Guadalupe, 299 F.3d at 19. In the instant case, the parties agree that upon his arrival at the emergency room, Gian Javier presented an emergency condition and that the medical staff knew of this condition. Therefore, the question is whether the hospital failed to detect the nature of the emergency condition as a result of a disparate screening or if it failed to stabilize the condition prior to transferring him. Simply put, the treatment Doctors Center administered to Gian Javier must have differed significantly from the treatment offered to patients arriving at the emergency room under the same conditions in order for this cause of action to ensue. As an initial matter, the Court finds that Gian Javier almost continuously received treatment after he arrived at Doctors Center Hospital until he departed via Aeromed to the Centro Medico, and therefore this is a prima facie showing that the screening requirement was met. See Reynolds, 218 F.3d at 83-84; see also "Nurse's Notes", Plaintiffs' Exhibit 6 and Defendant's Exhibit III, showing entries in Gina Javier's record for: 5:00, 5:03, 5:05, 5:15, 5:20, 5:20 again, 5:30, 5:30 again, 6:00, 6:20, 6:45, 7:00, 7:15, 7:30, 7:45, 8:15, 8:30, and 8:45 p.m. However, after comparing the procedures ordered by Dr. Rodriguez and the standard hospital Protocol for management of a poly-traumatized patient, the Court finds that out of the 28 procedures contained therein, Dr. Rodriguez complied with 22 of them, and that the staff complied with 21 of them. Compare Plaintiffs' Exhibit 6, Defendant's Exhibit IVto Plaintiffs' Exhibit 6, Defendant's Exhibit III. Specifically, Dr. Rodríguez ordered: cardiac monitoring (No. 7 on the Protocol) endotracheal intubation (not on the Protocol); oxygen therapy (Nos. 4, 5 on the Protocol); new peripheral vein canalization (No. 9 on the Protocol); IV fluids with normal saline solution and ringer lactate to run full drip (No. 9 on the Protocol); foley catheter (No. 12 on the Protocol); reduction and traction of the left femoral fracture (No. 19 on the Protocol); laboratories (CBC, arterial blood gases, coagulation test, chemistry test, type and cross match) (No. 10 on the Protocol); x-ray (chest, skull, left leg and KUB) (No. 14 on the Protocol); Manitol and Decadron (administration of medication not on the Protocol); Tetanus Toxoid (No. 17 on the Protocol); antibiotic IV (No. 16 on the Protocol); mechanical ventilation (No. 4 on the Protocol); brain CT Scan (not on the Protocol); Narcan (administration of medication not on the Protocol); nasogastric tube (No. 13 on the Protocol) and gastric lavage (not on the Protocol). The Court notes that some of the procedures ordered by Dr. Rodríguez' were not included in the protocol, and thus went further than the Protocol (for instance, the gastric lavage). In addition, although not explicitly complied with[3] the Court finds that the hospital complied with No. 20(a) in the Protocol (Noting the patient's Glasgow Coma Scale; Defendant's Exhibit III at 1); complied with No. 20(b) in the Protocol (Examining the head for liquids in the ears—Defendant's Exhibit III, at 1); complied with No. 20(d)(1) in the Protocol (examining patient for injuries to abdomen—Dr. Rodríguez' deposition at 85-86, 95; Plaintiffs' Exhibit 6 at 5; Defendant's Exhibit III at 4); and complied with No. 20(e)(1) in the Protocol (examining patient for injuries to the pelvis—Dr. Rodríguez' deposition at 85-86, Plaintiffs' Exhibit 6 at 5). *100 Only one of all of these, the brain CT scan, which the Court was unable to find in the Protocol, and therefore, was not on the Protocol, was not complied with. Plaintiffs attempt to raise an issue of material fact by apparently combing through the protocol, detecting all deviations therefrom and labeling them as "disparate" treatment. However, the Court finds no such disparate treatment occurred here as evidenced above. See Feighery v. York Hosp., 59 F.Supp.2d 96 (D.Me.1999) (Holding no EMTALA violation for failure to conduct neuro tests, de minimus deviations from hospital's standard screening examination). For instance, Plaintiffs allege that the hospital failed to document the secondary evaluation in the trauma sheet. However, a second evaluation was in fact performed, as discussed in the previous paragraph, even if it was not documented in the trauma sheet or labeled as such. Plaintiffs further aver that Gian Javier's vital signs were not taken exactly every fifteen (15) minutes as stated on the protocol. However, the Nurse's Notes indicate that this procedure, even if it was not followed exactly, was substantially complied with. See "Nurse's Notes", showing annotations for vital signs and general monitoring at 5:50, 5:30, 6:00, 6:20, 6:45, 7:15 and before getting on the air ambulance at 8:30 p.m. See also Hutchinson v. Greater S.E. Comm. Hosp., 793 F.Supp. 6 (D.D.C.1992) (Holding that ETALA requires no documentation of screening examination and deviation from this does not establish a cause of action under said statute). A person cannot expect precise and exact times for emergency room procedures, given the fact that it is a high traffic and congested area, and in the midst of other emergencies. Therefore, the Court finds that the taking of the vital signs was not exactly complied with, but was sufficient to meet EMTALA requirements. In addition, the Court can see that, although not listed in Gian Javier's medical record, even more requirements from the hospital's Protocol were met: moving of the patient to the operating room of emergency room or CPR (No. 1 in the Protocol; uncontested fact No. 7); re-evaluation of vital signs (No. 21 in the Protocol; "Nurse's Notes"); Ordering of blood (No. 23 in the Protocol; uncontested fact No. 30); a consultation with the surgeon on call (No. 24 in the Protocol; uncontested fact 19, Dr. Rodriguez' deposition at 75, 84-86); making the necessary arrangements for the transfer to the Centro Medico (No. 26 in the Protocol, uncontested fact No. 27); obtaining consent for the procedures (No. 25 in the Protocol, uncontested fact No. 36); the use of an adequately equipped ambulance (No. 27 in the Protocol; uncontested fact No. 27); and that the doctor in charge of the patient sign the forms (No. 28 in the Protocol; Plaintiffs' Exhibit 6, Defendant's Exhibit III, pages 1-4). The Court also notes Plaintiffs' eagerness to point out deviations from the protocol in stating that every single item in the Protocol must be complied with. However, some of the indications in the Protocol were not necessary in order to ascertain the actual level care provided, such as number 3 (listing the factors which the staff must do to prepare for treatment); see Deposition of Dr. Rodríguez at 99 ("Each patient has his own particular way at the moment of an emergency, but that is a guide to be followed, but it's not a cooking recipe"). Therefore, the fact that all the requirements in the protocol were not met is not indicative that an EMTALA claim is present—it is the treatment or care provided that must be administered even-handedly. The fact that Doctors *101 Center might have not filled out specific forms (for instance, regarding the discharge and transfer from the emergency room) does not change the fact that the treatment provided was administered according to the Protocol. The Court further notes that some of the requirements in the Protocol might not have been immediately necessary, and once again, the mere fact that the hospital did not comply with some of them does not automatically give rise to an inference that EMTALA was violated. See Hutchinson, 793 F.Sup. 6 (EMTALA requires no documentation of screening examination and deviation from this does not establish a cause of action under EMTALA). The Court further notes that Plaintiffs make a series of assumptions, now based on hindsight, and now with the expertise of an expert, that simply cannot be utilized to create a genuine issue of material fact. Dr. Raul Marcial, one of Plaintiffs' expert witnesses, also appears to have combed through the protocol in order to be able to determine what aspects of it were not complied with. Like Plaintiffs, his disparate treatment analysis is reduced to: the recording (or lack thereof) of the vital signs in the trauma page; the performance (or lack thereof) of the secondary evaluation; and the fact that a radiologist was not called to examine x-rays. This is not enough to establish disparate treatment under EMMA. However, even more importantly, the Court must mention that it finds that Dr. Marcial's evaluation of the screening afforded to Gian Javier is flawed, since he begins his analysis by stating "If an adequate and proper evaluation and screening would have been performed on this patient, as it is required, a correct diagnosis would have been established". Dr. Marcial's Report at 4. In other words, Dr. Marcial is of the opinion that a correct diagnosis would have resulted if a proper screening would have been conducted. This misconstrues the proper focus under EMMA, which only requires that an evaluation and screening be performed equal to that of similarly situated patients. Under this standard, a proper evaluation and screening can be performed, and the result can still be a misdiagnosis. See Baber, 977 F.2d at 878 (4th Cir.1992) (Under EMTALA, the standard screening examination must be applied uniformly, but that does not guarantee that the emergency personnel will correctly diagnose a patient's condition as a result of this screening). Further, the Court finds his report to be centered on standard medical malpractice instead of EMTALA disparate screening violations. "These two procedures ... are mandatory requirements according to the norms established for the good practice of medicine in these circumstances") Dr. Marcial's Report at 5; "The secondary evaluation of the patient, as well as the primary one ... was totally inadequate and does not comply, even remotely, with the Trauma Management Protocol of the American College of Surgeons Advanced Trauma Life Support", Id.; "Dr. Rodriguez Martinez must have recognized that the patient was in shock, probably in hypovolemic shock". Id. at 6. Dr. Lautz' expert report fares no better. He limits his report to what, in hindsight should have been done in compliance with accepted medical standards to Gian Javier (some procedures which were not on the hospital Protocol), instead of analyzing whether a substantially disparate screening occurred. "In my opinion, this case presents a significant important departure from accepted medical standards in the management of blunt trauma in a number of respects" Dr. Lautz' Report at 2; "To leave a patient who presents as a multitrauma *102 victim with a class four hemorrhagic shock and to then not resuscitate him beyond the first bolus for some two and a half hours is completely outside the standards of care". Dr. Lautz' Report at 3 (emphasis added); "In addition to aggressive and early fluid resuscitation, the patient should have been ordered for a cervical spine series ... Id. (emphasis added); "A head CT may have been useful, but an abdominal CT, which was critical, was not ordered". Id.; "His resuscitation throughout the entire emergency room visit was woefully inadequate ..." Id. at 4. Again, while both expert's reports may create an issue of fact with regard to whether Dr. Rodriguez' treatment of Gian Javier deviated from accepted medical standards of care, a topic not at issue here, it does not create a material question of fact as to whether Dr. Rodriguez examined Gian Javier substantially differently from any other patient with a similar history, signs, and symptoms according to hospital protocol. See Jones v. Wake Cty. Hosp. Sys., Inc., 786 F.Sup. 538 (E.D.N.C.1991) (Holding that hospital is not liable if it acts consistently with its customer screening procedure, even if said procedure would be inadequate under state malpractice law). Under these circumstances, the Court cannot hold that an inadequate screening and treatment occurred. Doctors Center had a clear manual describing internal procedures for treatment of polytraumatized patients such as Gian Javier. See generally Protocol. Dr. Rodriguez went almost by the book in the procedures and treatment administered to Gian Javier, and even went further than the Protocol dictated and ordered treatments not therein stated. Therefore, Plaintiffs' claims that he did not follow hospital procedure and performed a faulty screening ring hollow. The Court finds that Plaintiffs' criticisms of Dr. Rodriguez' diagnosis and treatment of Gian Javier are indistinguishable from the standard of care criticism that one would hear from an expert in a malpractice case triggered by a misdiagnosis. Regarding the spleen, Dr. Rodriguez specifically stated that he not only consulted with the surgeon, Dr. Psarras, regarding Gian Javier's spleen (No. 24 in the Protocol), but that when he himself examined Gian Javier's abdomen, it was "depressible, soft", and that "it had given me no indication that it had ruptured". (No. 20(d) in the Protocol; Dr. Rodriguez deposition at 94.) Dr. Psarras came to the same conclusion when he examined Gian Javier: his abdomen was depressible. Plaintiffs' Exhibit 6, Defendant's Exhibit III at 5.[4] Aremoed's notes indicate the same thing. Defendant's Exhibit VI at 5. Further, Dr. Rodriguez performed a gastric lavage and found coagulated blood, which in his opinion, was further evidence that the blood came from the head injury, not from an internal ruptured spleen. Dr. Rodriguez' deposition at 60-61. Plaintiffs' allegations that he "knew" or "should have known" about Gian Javier's ruptured spleen are issues that go to malpractice, not a disparate screening analysis. Again, the Court must mention that under EMMA, the issue is not what deficiencies in the standard of emergency room care contributed to a mis-diagnosis, but rather whether the procedures followed in the emergency room, even if they resulted in a mis-diagnosis, were reasonably calculated to identify a patient's critical medical condition. See Gatewood, 933 *103 F.2d at 1041; Guadalupe, 299 F.3d at 21; and Green v. Reddy, 918 F.Sup. 329 (D.Kan.1996) (Holding no violation of EMMA when hospital knew emergency condition existed, but there was no evidence that it had specific knowledge of collapsed lung or torn renal artery prior to transfer). The Court thinks the screening and treatment offered by Doctors Center, even if it resulted in a mis-diagnosis, were adequate under the auspices of EMTALA. Therefore, Plaintiffs' claims under EMTALA for inadequate screening are not viable, and are hereby DISMISSED WITH PREJUDICE. B. Stabilization Before Transfer Plaintiffs' second claim comes under the EMMA statute which requires that the hospital or emergency room stabilize the patient before transferring him to another facility. Under 42 U.S.C. § 1395dd(c), If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless— (A)(i) the individual (or a legally responsible person acting on the individual's behalf) after being informed of the hospital's obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility, (ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification that [FN1] based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or (iii) if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician (as defined in section 1395x(r)(1) of this title), in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and (B) the transfer is an appropriate transfer. 42 U.S.C. § 1395dd(c). An appropriate transfer, in turn, is described as one: (A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health and, in the case of a woman in labor, the health of the unborn child; (B) in which the receiving facility— (i) has available space and qualified personnel for the treatment of the individual, and (ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment; (C) in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual's emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any oncall physician (described in subsection (d)(1)(C) of this section) who has refused or failed to *104 appear within a reasonable time to provide necessary stabilizing treatment; (D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer. 42 U.S.C. § 1395dd((c)(2). It is clear from the statute that only unstable patients require a certification and consent of the receiving hospital. On the other hand, a patient who has been stabilized in the emergency room of the transferring hospital may be transferred to a receiving hospital without a certification, as described above, and without obtaining the express agreement of the receiving hospital. In other words, stabilized patients may be transferred without limitation under the language of the statute. Therefore, in order to prove a transfer violation, Plaintiffs must show not only that the transferred patient was not stabilized and was not accepted by the receiving hospital, but also that the doctor was negligent in transferring the patient in the sense that, under the circumstances, "the physician knew or should have known that the benefits [of transfer] did not outweigh the risks." Cherukuri v. Shalala, 175 F.3d 446, 450 (6th Cir.1999). As with screening, in determining whether or not a patient has been stabilized, the Court must consider whether the medical treatment was reasonable in view of the circumstances that existed at the time the hospital discharged or transferred the individual and at the time the diagnosis was made. See Delaney v. Cade, 986 F.2d 387, 393 (10th Cir.1993). Once again, the Court makes clear that EMTALA liability does not hinge on the result of the plaintiffs condition after the release or transfer, but rather on whether the hospital would have considered another patient in the same condition as unstable that would not warrant his or her release or transfer. See Cleland v. Branson Health Care Group, Inc., 917 F.2d 266, 269 (6th Cir.1990). The Fourth Circuit has reached a conclusion that to stabilize for purposes of transfer is a relative concept that depends on the situation: The stabilization requirement is thus defined entirely in connection with a possible transfer and without any reference to the patient's long-term care within the system. It seems manifest to us that the stabilization requirement was intended to regulate the hospital's care of the patient only in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment. Bryan v. Rectors of the University of Virginia, 95 F.3d 349, 352 (4th Cir.1996). Assuming facts most favorable to the nonmoving party, the Court will assume that Gian Javier was not stable at the time of his transfer. Therefore, the question becomes whether an appropriate transfer was performed. Plaintiffs allege that no relative of Gian Javier ordered the transfer, but instead that it was Dr. Rodriguez who ordered it. However, under EMTLA, a hospital may transfer an unstable patient with an emergency condition if the patient or a legal representative gives informed consent or a physician certifies that the benefits expected from the transfer outweigh the risks of effecting the transfer. See 42 U.S.C. § 1395dd(c)(1); Estate of Robbins v. Osteopathic Hosp. Founders Assoc., 178 F.Sup.2d 1221 (N.D.Okl.2000). Therefore, under the disjunctive *105 language of the statute, either of these circumstances preclude liability. Applied to the case at bar, Dr. Rodriguez certified in writing that, in his best judgment, it was necessary to transfer Gian Javier to Centro Medico because of his condition at that time and according to the diagnosis. See Dr. Rodriguez' deposition at 86, 94; Defendant's Exhibit VI at 25; and Plaintiffs' Exhibit 6, Defendant's Exhibit VII. In addition, the certification indicated that the benefits of transfer outweighed the risks to the patient. Plaintiffs' Exhibit 6, Defendant's Exhibit VI, "Certification and Transfer Authorization" ("Certification y Permiso de Traslado"). Again, the fact that the diagnosis later turned out to be erroneous is immaterial to this particular analysis. Further, the consultation with Dr. Benjamin Rodriguez of medical control[5] stated that "the patient needed to be in the operating room as soon as possible", and that they "should proceed with the transfer." "Aeromed Progress Notes", Defendant's Exhibit VI at 7. In addition, the Protocol for the treatment of poly-traumatized patients like Gian Javier indicated that the proper procedure in those cases was a transfer of the patient to Centro Medico. See Protocol No. 26. The Centro Medico accepted Gian Javier as a patient. See "Nurse's Notes", Plaintiffs' Exhibit 6 at 15, Defendant's Exhibit III at 15. As a final matter, Gian Javier's mother, Mrs. Molina, signed the certification stating that she understood Dr. Rodriguez' explanations and that she accepted the transfer voluntarily. Plaintiffs' Exhibit 6, Defendant's Exhibit VII. A hospital is charged only with the responsibility of providing an "adequate first response to a medical crisis" which "means the patient must be evaluated and, at a minimum, provided with whatever medical support services and/or transfer arrangements that are consistent with the capability of the institution and the well-being of the patient." 131 Cong. Rec. 28569 (1985). Obviously a doctor in Dr. Rodriguez' position must weigh what he can do for a patient at his hospital at that moment versus the services available at the receiving hospital. Under the particular circumstances of the case at bar, the Court can find no violation of the transfer requirement. See generally, Cherukuri, 175 F.3d 446. The Court finds that this case is, maybe, a medical malpractice case. EMMA is not the federal counterpart of a state medical malpractice suit. Plaintiffs EMMA claims for inappropriate transfer are therefore also hereby DISMISSED WITH PREJUDICE. C. Malpractice Claims Plaintiffs also bring forth claims for malpractice against Dr. Psarras and Dr. Rodriguez under Articles 1802 and 1803 of the Puerto Rico Civil Code. After having dismissed all the federal claims in this case, the Court does not reach the issue at this time of whether it will entertain Plaintiffs' malpractice claims brought under Puerto Rico law until the nature of the claims is clarified. V. CONCLUSION In conclusion, the Court GRANTS Summary Judgment in favor of Defendant Doctors Center Hospital, and hereby DIMISSES Plaintiffs Ana Rivera, Tomas Molina, Giovanna Molina, and Cristal Molina's EMMA claims WITH PREJUDICE. Regarding Plaintiffs' state law *106 claims for malpractice, the Court does not decide at this time whether it will exercise supplemental jurisdiction over them. IT IS SO ORDERED, ADJUDGED AND DECREED. NOTES [1] Defendant's Motion is really only a motion for partial summary judgment, since Defendant did not address the causes of action for malpractice brought under diversity by the decedent's relatives living in Pennsylvania and Florida. [2] Gian Javier's relatives living in Pennsylvania and Florida, Ilianita Sánchez Rivera, Felix Rivera Guerrero and Maria Molina Rodriguez, are also Plaintiffs in this cause of action, but have only brought forth causes of action against Dr. Rodríguez and Dr. Psarras under Puerto Rico law for negligence. They have raised no EMTALA claims, and therefore, are not part of the Court's analysis of this particular issue. [3] Protocol mandated that these signs be noted in a form called the "trauma sheet". [4] A depressible, soft abdomen indicates that there hasn't been any type of internal rupture of organs. [5] As previously stated, the medical control staff receives the calls and decides whether the use of an Aeromed helicopter is justified in light of the particular circumstances of each case.

05/19/2020 Case Number: DA 20-0097 IN THE SUPREME COURT OF THE STATE OF MONTANA JOHN O. MILLER, Case No. DA 20-0097 Plaintiff/Appellant, vs. ORDER STATE OF MONTANA, MONTANA BOARD OF PARDONS AND PAROLE, Defendant/Appellee. Appellee Montana Board of Pardons and Parole filed an Unopposed Motion for Extension of Time within which to file Appellee’s Answer Brief, and good cause appearing therefor; IT IS HEREBY ORDERED that said motion is GRANTED. Appellee Answer Brief is due June 26, 2020. ORDER Electronically signed by: PAGE 1 Bowen Greenwood Clerk of the Supreme Court May 19 2020 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-04-00721-CR Henry Gauna, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 3040205, HONORABLE JON N. WISSER, JUDGE PRESIDING M E M O R A N D U M O P I N I O N A jury convicted Henry Gauna of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (a)(2)(B) (West Supp. 2006). Gauna elected to have punishment assessed by the trial court, which found that Gauna had previously been convicted of indecency with a child and sentenced him to imprisonment for life in the Institutional Division of the Texas Department of Criminal Justice. See id. § 12.42(c)(2)(A)(I), (c)(2)(B)(ii) (West Supp. 2006) (mandating life imprisonment for defendant convicted of aggravated sexual assault with prior conviction for indecency with child). Gauna raises ten points of error on appeal, arguing that the evidence presented at trial is legally and factually insufficient to prove various elements of the crime and that the trial court erred by admitting certain testimony over Gauna's objection and allowing the seven-year-old complainant to testify by closed-circuit television. We will affirm the trial court's judgment. BACKGROUND The complainant, E.J.D., was six years old at the time of the events in question and seven years old at trial. Since she was nine months old, E.J.D. has lived with her maternal grandmother, Antonia Davis. Samanthea Davis, E.J.D.'s mother, was fifteen years old when she gave birth to E.J.D. and abandoned her shortly thereafter, according to Antonia. (1) In late September 2003, Antonia's car broke down, and Samanthea began providing transportation to get Antonia and E.J.D. to and from work and school. Samanthea would pick up Antonia and E.J.D. in time to get Antonia to work by 6:00 a.m., bring E.J.D. back to Samanthea's apartment, then drive E.J.D. to school; she would pick up Antonia and E.J.D. in the afternoon. Samanthea and her two younger children shared an apartment with her sister Dorothea Contreras and Contreras's child. Around the same time, Samanthea started dating Gauna, who began spending much of his time at Samanthea's apartment. Gauna frequently stayed overnight at the apartment. One morning in early October, Gauna accompanied Samanthea when she picked up Antonia and E.J.D. A few days later, Gauna showed up alone at Antonia's house in Samanthea's car. Gauna explained that Samanthea was asleep, so he would be transporting Antonia and E.J.D. For about a week and a half after that, Gauna arrived alone at Antonia's house every morning around 5:30 a.m., took Antonia to work and E.J.D. to school, and picked them up in the afternoon. On October 16, after having a heated argument with Gauna, Samanthea related some troubling information about him to Antonia. Antonia testified that this information caused her to question E.J.D. about whether "Henry had touched her inappropriately in areas that he was not supposed to." Antonia continued that E.J.D. "said yes, and she pointed to her chest and to her private part." E.J.D. was acting nervous and scared, and Antonia reassured E.J.D. that she had not done anything wrong and that she would not get in trouble for telling Antonia what happened. E.J.D. then described what Gauna had done: [A]fter [Gauna] would drop [Antonia] off at work, he would drive off to a--some parking lot with lots of trees and no lights and dark--dark place. And then he would climb in the back seat and pull [E.J.D.'s] pants down and put his thing in her piggy and start wiggling. E.J.D. and others testified that E.J.D. refers to her vagina as her "piggy." Antonia asked E.J.D. how many times Gauna had done this to her. While attempting to count on her fingers, E.J.D. first replied that it had occurred thirteen times, then stated that Gauna did this twenty-seven times, according to Antonia. Antonia also testified that E.J.D. related that, while most instances occurred in Samanthea's car, it had also happened in Samanthea's bed and in the living room of Samanthea's apartment. After hearing these allegations, Antonia called Contreras to pick her up to take E.J.D. to a hospital. Antonia stated that she did not call Samanthea both because she was not home and because "Samanthea does not really concern herself about [E.J.D.]'s well-being." When she arrived, Contreras questioned E.J.D. about what Gauna had done to her. Contreras testified that, although E.J.D. was hesitant to talk about it, she eventually told Contreras that in the mornings after Gauna had dropped Antonia off at work, he drove E.J.D. to a "dark place in a park-like area" and got on top of her inside the car and kissed her. Contreras then asked E.J.D. whether Gauna ever touched her below the waist, and she replied that he had. Antonia and Contreras took E.J.D. to Brackenridge Hospital where she was examined by Dr. Stan Rice, an emergency room physician, shortly after midnight on October 17. Rice testified that E.J.D. was sleeping as he entered the room and that he had to wake her up to speak to her. Rice stated that E.J.D. was shy and that he did not spend "enough time to develop a significant rapport" with her. Antonia testified that E.J.D. appeared to be nervous around Rice and did not want to talk to him, look at him, or have him touch her. E.J.D. told Rice that something had happened to her but she was not quite sure what it was. E.J.D. stated that Gauna laid on top of her and thrust his body back and forth. When Rice asked E.J.D. whether Gauna's penis entered her vagina, rectum, or mouth, she replied that it had not; however, Rice testified that E.J.D. "was not real clear on any of these details." Antonia testified that Rice did not use words like "piggy" that were familiar to E.J.D. Rice testified that he attempted to explain ejaculation to E.J.D. and that she stated that "she wasn't sure that [Gauna] had spilled any liquids onto her." Rice performed a visual examination of the exterior of E.J.D.'s genitals and found no evidence of bruising, bleeding, or discharge from her vagina or rectum. Rice did not use any instruments to magnify the area he examined and did not examine the inside of E.J.D.'s vagina. Based on his conversation with E.J.D., the findings of his visual examination, and the information related by the hospital's social worker that the most recent alleged sexual assault was at least two days prior and that E.J.D. had bathed since then, Rice concluded that a full examination by a sexual assault nurse examiner would not have been useful. Nevertheless, Rice decided that "calling CPS [was] warranted." Antonia and E.J.D. met with representatives of Child Protective Services and the Austin Police Department at the hospital. Dr. Beth Nauert, the medical director of the Child Assessment Program, interviewed and examined E.J.D. on November 12, 2003, at the request of the Austin Police Department. Nauert testified, [E.J.D.] told me she had come to see me because she was touched by, quote, Henry, my momma's boyfriend, end quote. She stated that this would happen in the car. She said, quote, one time he did it in the back seat and a lot of times he did it in the front seat, end quote. When I asked [E.J.D.] where Henry touched her, she pointed to her vaginal area. When I asked her what he touched her with, she says, quote, two things, his hand and his thing, end quote. When I asked her whether her clothes were on or off, she said that her pants were off and her underwear was off and his pants were down and his boxers were down. [E.J.D.] said that Henry would touch her vaginal area, quote, inside, end quote. When I asked her what he told her, she said, quote, don't tell anyone or he'd never see anyone or my mom again, end quote. After interviewing E.J.D., Nauert performed a physical examination. Nauert used a colposcope (2) to examine E.J.D.'s vaginal and rectal areas. Nauert testified that E.J.D. had a normal genital examination and a normal head-to-toe examination; Nauert found no injuries. Nauert testified that she was not surprised by the normal examinations because only around twenty-five percent of child victims of sexual abuse with penetration have abnormal examinations. Nauert explained that redness and swelling may disappear within a matter of hours and that bruises and tears can heal over a few days. E.J.D. began treatment with Helen Williams, a licensed professional counselor, in February 2004. Williams testified that she began treating E.J.D. for a variety of emotional and behavioral issues, including encopresis, (3) enuresis, (4) fear of the dark, difficulty falling asleep, aggressive behavior, hostility, and age-inappropriate behavior such as using "baby talk" and hiding from Antonia and other caregivers. Williams stated that play therapy and art therapy were effective for E.J.D. and that her problem behaviors and overall demeanor improved as she continued attending counseling sessions with Williams. Around July 2004, Antonia was notified that Gauna's trial was approaching; she asked Williams to talk to E.J.D. about testifying against Gauna in court. Williams testified that E.J.D.'s problem behaviors reappeared at that time: her encopresis and enuresis became major problems again, she started using "baby talk" and hiding from caregivers again, her sleeping difficulty returned, and she began spending many nights on the bathroom floor with the light on. DISCUSSION Sufficiency of the Evidence Penetration In his first and third points of error, Gauna argues that the evidence presented at trial is legally and factually insufficient to support a finding that he penetrated E.J.D.'s sexual organ. However, as the State notes, penetration is not an essential element of aggravated sexual assault. The penal code provides that a person commits aggravated sexual assault if he intentionally or knowingly "causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person." Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (emphasis added). In the indictment, the State alleged both that Gauna caused penetration of E.J.D.'s sexual organ with his sexual organ and that Gauna caused contact between E.J.D.'s sexual organ and his sexual organ. The State argued both theories in its closing arguments. Even though some or all of the jurors may have relied on the penetration theory to reach a guilty verdict, any juror who believed beyond a reasonable doubt that Gauna's sexual organ penetrated E.J.D.'s sexual organ necessarily believed that E.J.D.'s sexual organ contacted Gauna's sexual organ. See Vick v. State, 991 S.W.2d 830, 834 n.2 (Tex. Crim. App. 1999) (stating that penetration of genitals necessarily includes contact); Hendrix v. State, 150 S.W.3d 839, 848 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) (rejecting challenge to lack of juror unanimity in case with similar pleadings "because all of the jurors who believed there was penetration necessarily also believed that antecedent contact had occurred"). Because Gauna does not challenge the sufficiency of the evidence supporting a finding that he caused E.J.D.'s sexual organ to contact his sexual organ, we do not reach his first and third issues. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (limiting legal and factual sufficiency review to "essential elements"). Identity In his second and fourth points of error, Gauna argues that there is legally and factually insufficient evidence to support a finding that he is the individual that sexually assaulted E.J.D. Gauna bases this argument on E.J.D.'s inability to identify a photograph of Gauna at trial. On direct examination by the State, the following exchange occurred: Q: If I show you a picture of Henry, would you recognize him? A: Yes. Q: Okay. I want to show you what's been marked as State's Exhibit number six and ask you to look at this. Do you recognize this? Is there--does the person in this picture look familiar? A: No. Q: This person doesn't look familiar? A: (Witness moving head side to side). Q: You don't know who that is? A: (Witness moving head side to side). Q: Do you know what Henry looks like? A: No. In reviewing a legal sufficiency challenge, we look at all the evidence in the light most favorable to the prosecution to determine whether a rational jury could have found the challenged element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson, 23 S.W.3d at 7. When determining whether the evidence of a challenged finding is factually sufficient, we review all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Johnson, 23 S.W.3d at 6-7. In conducting a factual sufficiency review, we must defer to the jury's findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not reweigh the evidence and set aside a jury verdict simply because we feel that a different result is more reasonable.  Id. Although E.J.D. was unable to identify a photograph of Gauna at trial, ample other evidence was presented linking Gauna to the sexual assault. E.J.D. testified that the person who sexually assaulted her was her mother's boyfriend "Henry" who would take her grandmother to work and take E.J.D. to school. E.J.D. testified that her mother only had one friend named Henry that took her to school. The testimony of all the prosecution witnesses who spoke about what E.J.D. told them concerning her sexual assault indicated that E.J.D. has always identified her assailant as her mother's boyfriend "Henry" who took her to school. Antonia identified Gauna as the man named Henry who was dating Samanthea in September and October 2003 and as the man who took Antonia to work and E.J.D. to school. Samanthea also identified Gauna as the man named Henry whom she had dated and who took E.J.D. to school. Likewise, Contreras identified Gauna as the man named Henry who began spending a lot of time at Samanthea's apartment in late September 2003 and who picked E.J.D. up in the mornings. Detective Robert Bowers of the Austin Police Department testified that when he spoke with Gauna, "he confirmed that he . . . was seeing Samanthea." Bowers also testified that, during the investigation, he showed E.J.D. the same photograph that she was unable to identify at trial, and she reacted by saying, "That's Henry." A reasonable jury could have decided to credit the other evidence linking Gauna to the crime despite E.J.D.'s inability to identify the photograph at trial. The trial occurred over a year after the last time seven-year-old E.J.D. had any contact with Gauna, and testifying at trial was a source of significant stress for E.J.D. Also, Bowers testified that he showed E.J.D. the same photograph in a less stressful setting that was closer in time to E.J.D.'s most recent contact with Gauna and that she identified the person in the photograph as "Henry." We hold that the evidence presented at trial is legally and factually sufficient to support a finding that Gauna is the person who sexually assaulted E.J.D. Therefore, we overrule his second and fourth issues. Venue In his fifth and sixth points of error, Gauna argues that the evidence presented at trial is legally and factually insufficient to demonstrate that the events occurred in Travis County. Gauna contends that the only evidence regarding where the sexual assaults occurred came from E.J.D., who could not verify that the location is in Travis County. In criminal cases, venue must be proved by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005). The evidence may be either direct or circumstantial. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983); Gonzalez v. State, 784 S.W.2d 140, 142 (Tex. App.--Austin 1990, no pet.). In a sexual assault case, venue is proper "in the county in which [the sexual assault] is committed, in the county in which the victim is abducted, or in any county through or into which the victim is transported in the course of the abduction and sexual assault." Tex. Code Crim. Proc. Ann. art. 13.15 (West 2005). The word "abduction" in this statute has no technical meaning and does not necessarily require the use of force. Cavazos v. State, 668 S.W.2d 435, 438 (Tex. App.--Austin 1984, pet. ref'd). Alternatively, if the county of the commission of the crime cannot be determined, venue is proper in the county of the defendant's residence or the county where the defendant was apprehended. Tex. Code Crim. Proc. Ann. art. 13.19 (West 2005). Venue may be proved under any theory listed above even if the indictment only alleges that the offense was committed in the county of prosecution. Id. art. 13.17. The jury heard evidence that Antonia's residence, Antonia's place of employment, and Samanthea's residence are all located in Travis County. Evidence was also presented indicating that Antonia was required to be at work by 6:00 a.m. everyday, and Samanthea testified that Gauna returned to her residence with E.J.D. every morning by 6:10 a.m. at the latest. This evidence allows a reasonable inference that the sexual assaults were committed in Travis County or a reasonable conclusion that E.J.D. was abducted in Travis County. Also, although E.J.D. testified at trial that the sexual assaults only took place in Samanthea's car, Antonia testified that E.J.D. confided that Gauna had raped her in Samanthea's apartment, which is located in Travis County. Furthermore, if it is impossible to determine in which county the sexual assaults were committed, as Gauna contends, the record contains evidence suggesting that venue was proper in Travis County because Gauna resided there. Detective Bowers testified that Gauna resided with his mother in Travis County at the time of the offenses; this testimony was not controverted. We hold that the evidence presented at trial is sufficient to support a finding that venue was proper in Travis County. We overrule Gauna's fifth and sixth issues. Admission of Evidence Expert Testimony In his seventh point of error, Gauna claims that the trial court erred by admitting the testimony of Dr. William Carter, the State's expert witness who testified about child abuse dynamics, and Helen Williams, E.J.D.'s counselor who testified about E.J.D.'s behavioral issues. Gauna insists that the State used Williams's testimony to set up Carter's testimony, (5) in which he answered hypothetical questions based on the facts of the instant case. Gauna contends that this testimony was improperly admitted because it directly commented on E.J.D.'s truthfulness. We review decisions on the admission of expert testimony for an abuse of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). Expert testimony is admissible where specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Tex. R. Evid. 702. Expert testimony does not assist a jury if it constitutes "a direct opinion on the truthfulness" of a child complainant's allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (quoting Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993)). The State may not elicit testimony that a particular child is telling the truth or that child complainants as a class are worthy of belief. Yount, 872 S.W.2d at 712. However, expert testimony that provides useful background information to aid the jury in evaluating the testimony of another witness is admissible. For instance, expert testimony indicating that children who have been sexually abused sometimes give conflicting accounts of their abuse and even recant initial outcries is admissible to assist a factfinder in determining the impeachment value of prior inconsistent statements by a complainant. Pavlacka v. State, 892 S.W.2d 897, 903 n.6 (Tex. Crim. App. 1994). In addition, expert testimony explaining that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused is admissible. Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Perez v. State, 113 S.W.3d 819, 832 (Tex. App.--Austin 2003, pet. ref'd); Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.--Austin 2001, pet. ref'd); Vasquez v. State, 975 S.W.2d 415, 417 (Tex. App.--Austin 1998, pet. ref'd). The State may also elicit testimony concerning the typical characteristics of victims of sexual abuse. Schutz, 957 S.W.2d at 69. Carter testified about the characteristics of child victims of sexual abuse, explaining that they are usually abused by people known to the family, that they feel shame and confusion about the abuse, that they often wait for long periods before making outcries, that they often tell more and more of the story as time goes on, and how their situations are complicated when their abusers have relationships with their other family members. Carter also testified that certain hypothetical fact situations, based on the facts in the instant case, are consistent with sexual abuse, although they do not prove that abuse has occurred. The following is one such exchange about which Gauna complains: Q: Doctor, if you had a six-year-old child who was sexually abused by her mother's boyfriend and was asked directly by her grandmother whether anything happened to her, and she told her grandmother "yes" and made an outcry statement to the grandmother that the boyfriend took her to a dark place in the car after he dropped the grandma off at work and got on top of her, pulled his pants down, pulled her pants down, put his thingy in her piggy, which was explained to be his penis and her vagina, and wiggled, would you--is that detailed information in an outcry? A: If I got that information, I would be very cautious and I would be quite interested in knowing more about what the girl had to tell me. The answer quoted above is as close as Carter ever came to a direct comment on truthfulness. Carter never claimed that the child accusers in the State's hypothetical situations were telling the truth, that E.J.D. was telling the truth, or that child complainants in sexual abuse cases always tell the truth. Carter was careful to speak in generalities and testified that it was not his position that E.J.D. had been sexually assaulted or that Gauna had sexually assaulted her. Because Carter limited his testimony to the general characteristics of child victims of sexual abuse and whether hypothetical fact situations are consistent with sexual abuse and because the court of criminal appeals and this Court have upheld the admissibility of such testimony, the trial court did not abuse its discretion by admitting the testimony. We overrule Gauna's seventh issue. Irrelevant, Unfairly Prejudicial, and Hearsay Evidence In his eighth and ninth points of error, Gauna contends that the trial court erred by admitting the testimony of Abby Stancik, an investigator with Child Protective Services, and Cyndi Cantu, a forensic interviewer for the Center for Child Protection, because it was irrelevant, unfairly prejudicial, and contained inadmissible hearsay. The subjects discussed during Stancik's testimony included the process used to investigate a claim of sexual abuse, her visits with E.J.D., E.J.D.'s demeanor during those visits, and Samanthea's level of cooperation with Child Protective Services. Cantu testified regarding her qualifications to interview children about sexual abuse, the procedures involved in such an interview, E.J.D.'s interview in particular, and E.J.D.'s demeanor during the interview. We review a trial court's decision to admit evidence using an abuse-of-discretion standard. Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Evidence must be relevant to be admissible. Id. R. 402. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Id. R. 403. Trial judges are afforded significant discretion to make admissibility decisions under rule 403. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). We may not reverse a trial judge's ruling if it was within the zone of reasonable disagreement. Id. Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). In this context, a statement includes "nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression." Id. R. 801(a)(2). Hearsay is not admissible unless it is specifically permitted by the rules of evidence or statute. Id. R. 802. Gauna insists that evidence concerning the process of investigating claims of sexual abuse was not relevant to the issue of whether Gauna committed sexual assault. The State argues that, because the defense questioned E.J.D.'s credibility, evidence of the safeguards employed in investigating claims of sexual abuse was relevant because it made the possibility that E.J.D. was lying less likely. Indeed, Gauna argued to the jury that E.J.D.'s many interviews with investigators and counselors caused her to fabricate her allegations against Gauna to placate those seeming authority figures. Evidence that those who interviewed E.J.D. were trained to ask open-ended, nonleading questions and not to push children for answers certainly made this theory less likely and was therefore relevant. Next, Gauna contends that Stancik's and Cantu's testimony was more unfairly prejudicial than probative because it allowed the jury to infer that E.J.D. presented a consistent account of the sexual assaults to different people throughout the investigation. This testimony was likely prejudicial to Gauna. However, rule 403 only allows exclusion of relevant evidence where the probative value is outweighed by the danger of unfair prejudice. Id. R. 403. The danger of unfair prejudice exists when the evidence creates an undue tendency to suggest a decision on an improper basis such as an emotional one. Erazo v. State, 144 S.W.3d 487, 501-02 (Tex. Crim. App. 2004) (citing Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)). Here, the testimony of Stancik and Cantu, though it allowed an inference that E.J.D. told a consistent story, was not likely to inflame the emotions of the jurors nor to invite a decision on any other improper basis. Gauna also argues that Stancik's and Cantu's testimony violated the hearsay prohibition because it allowed the jury to infer the contents of E.J.D.'s out-of-court statements. An out-of-court statement need not be directly quoted to run afoul of the hearsay rules. Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). Whether the testimony violates the hearsay prohibition turns on how strongly the contents of the out-of-court statement can be inferred from the context. Id. "[T]he question is whether the strength of the inference produces an 'inescapable conclusion' that the evidence is being offered to prove the substance of an out-of-court statement." Id. at 262. Here, Stancik's and Cantu's testimony did not lead to an inescapable conclusion regarding what E.J.D. told them. Each merely testified that the investigation continued after her interview with E.J.D. A wide range of statements by E.J.D. could have caused the investigation to continue. Neither Stancik's nor Cantu's testimony allowed the jury to infer the details of what E.J.D. said out of court. Gauna claims that Stancik's and Cantu's testimony also violated the hearsay prohibition by referring to E.J.D.'s nonverbal conduct that was intended as a substitute for verbal expression. See Tex. R. Evid. 801(a)(2). Stancik testified that E.J.D. seemed to be sad and depressed. Cantu testified that at the beginning of their interview, E.J.D. was open, talkative, and playful and that at one point her demeanor shifted and she became quiet and hesitant to talk and sucked on her fingers. Gauna has not hypothesized, nor can we imagine what verbal expression E.J.D.'s glum affect and shift in demeanor were intended as a substitute for. For the reasons discussed above, we hold that the trial court did not abuse its discretion by admitting the testimony of Stancik and Cantu over Gauna's objections that it was irrelevant and more unfairly prejudicial than probative and that it violated the hearsay prohibition. We overrule Gauna's eighth and ninth issues. Testimony by Closed-Circuit Television In his tenth point of error, Gauna asserts that the trial court erred and violated his Sixth Amendment rights by allowing E.J.D. to testify through closed-circuit television. See U.S. Const. amend. VI. The use of closed-circuit television testimony does not violate the Confrontation Clause if it is necessary to protect a child witness from significant emotional trauma caused by physical confrontation with the defendant in a courtroom. Maryland v. Craig, 497 U.S. 836, 855 (1990); Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999). The trauma must be more than "mere nervousness or excitement or some reluctance to testify." Craig, 497 U.S. at 856. The trial court must find that the child witness would be traumatized by the presence of the defendant, not by the courtroom generally. Id. We review a trial court's decision to allow a child witness to testify by closed-circuit television for an abuse of discretion. Marx, 987 S.W.2d at 581 n.2. At the hearing on whether to allow E.J.D. to testify through closed-circuit television, Antonia and Helen Williams testified. Antonia testified that E.J.D.'s problems with encopresis, enuresis, and "baby talk," which began after she was sexually assaulted by Gauna, improved with therapy but that E.J.D. regressed after being told that she would have to testify against Gauna in court. Antonia testified that after E.J.D. attended "court school," a program to familiarize children with the courtroom setting, she began spending nights in the bathroom with the light on. Antonia stated her opinion that E.J.D. would be traumatized if she had to be present with Gauna in the courtroom. Williams similarly testified that E.J.D.'s behavioral issues had been improving through therapy but that their severity increased as Gauna's trial date approached and E.J.D. began preparing to testify against Gauna. Williams testified that she believed the use of closed-circuit television was necessary to protect E.J.D.'s welfare and that E.J.D. would be traumatized if she had to face Gauna in the courtroom. Williams relayed E.J.D.'s statements that "she did not want to see Henry," "she was afraid of Henry," "she was really afraid that he would get out and come and get her; find her." Before she testified at trial, E.J.D. was questioned by Gauna's attorney. E.J.D. stated that it would scare her to testify in front of Gauna, that she would rather not do that, and that she did not think she could do it if she had to. On these facts, we hold that the trial court did not abuse its discretion by finding that allowing E.J.D. to testify by closed-circuit television was necessary to protect E.J.D. from significant emotional trauma caused by physical confrontation with Gauna in the courtroom. We overrule Gauna's tenth issue. CONCLUSION Having overruled all of Gauna's points of error, we affirm the trial court's judgment of conviction. __________________________________________ David Puryear, Justice Before Justices B. A. Smith, Patterson and Puryear Affirmed Filed: December 29, 2006 Do Not Publish 1. For convenience, we refer to Antonia Davis and Samanthea Davis by their first names. 2. A colposcope is "an instrument for examination of the tissues of the vagina and cervix by means of a magnifying lens." Dorland's Illustrated Medical Dictionary 393 (Douglas M. Anderson chief lexicographer, 30th ed. 2003) [hereinafter Dorland's]. 3. Encopresis is "fecal incontinence that does not have an organic cause." Dorland's, supra note 2, at 611. 4. Enuresis is "urinary incontinence after the age at which urinary control should have been achieved." Dorland's, supra note 2, at 623. 5. Although Gauna's seventh issue challenges the admission of both Williams's and Carter's testimony, Gauna makes no argument explaining why Williams's testimony was inadmissible. Gauna only states that "[t]he prosecutor used Helen Williams to set up Dr. Carter's testimony as she described the behavioral issues which the complainant experienced." We hold that the portion of the issue relating to Williams's testimony is inadequately briefed and therefore waived. See Tex. R. App. P. 38.1(h) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Texas Med. Ass'n v. Texas Workers Comp. Comm'n, 137 S.W.3d 342, 352 n.6 (Tex. App.--Austin 2004, no pet.) (holding that inadequately briefed arguments are waived).

291 So.2d 338 (1974) Virgil BROADWAY v. STATE. 1 Div. 404. Court of Criminal Appeals of Alabama. January 2, 1974. Rehearing Denied January 29, 1974. *339 Donald E. Brutkiewicz, Mobile, for appellant. William J. Baxley, Atty. Gen., and Charles R. Hare, Jr., Sp. Asst. Atty. Gen., for the State. HARRIS, Judge. Appellant was put to trial in the Circuit Court of Mobile County upon an indictment for perjury. Omitting the formal parts, the indictment reads as follows: "The GRAND JURY of said County charge, that, before the finding of this indictment VIRGIL BROADWAY whose name is to the Grand Jury otherwise unknown than as stated, on his examination as a witness, duly sworn to testify, on the habeas corpus proceeding of Evelyn Louise Jordan vs State of Alabama, in the Circuit Court of Mobile County, Alabama which said Court had authority to administer such oath, falsely swore that he saw Evelyn Louise Jordan at the scene of the shooting of L. Quincey Rhoten, the matters so sworn to being material, and the testimony of the said Virgil Broadway being wilfully (sic) and corrupty (sic) false, against the peace and dignity of the State of Alabama." At the time of the alleged offense, appellant, a Negro boy, was fifteen (15) years of age. Upon his appearance in court, attended by counsel, he requested that he be treated as a youthful offender. He agreed to waive trial by jury and the trial court called for a probation officer's report to aid him in determining if he qualified for treatment under the Youthful Offender Law and passed the case. Upon the filing of the probation officer's report, a hearing was held. At this hearing the trial court interrogated appellant at great length as to his rights to a public trial by a jury, his right to confront his accusers, his right to testify in his defense if he so desired, his right to compulsory process to have his witnesses in court, and the range of punishment for the offense of perjury. The court further told appellant that if the court decided to treat him as a youthful offender, he would have to give up these rights and plead guilty to the offense of being a youthful offender and the court would determine his punishment. The court explained that the maximum punishment for the latter offense was three years in the penitentiary and a fine up to one thousand dollars. Appellant made clear to the court he wanted the benefits of the Youthful Offender Act. Thereupon a jury trial was waived and a guilty plea was accepted. In the light of appellant's unblemished record as to encounters with law enforcement officers, his attorney made an impassioned plea for probation. The Assistant District Attorney made an equally impassioned plea that appellant be sentenced to the penitentiary for at least one year. This plea for denial of probation was grounded on the ancient concept of punishment which is "an eye for an eye, and a tooth for a tooth." It was the state's position that the perjured testimony of appellant caused an innocent woman to be denied bond on a first degree murder charge and confined in *340 the Mobile County jail for eleven months. The woman mentioned in the indictment, Evelyn Louise Jordan, was released from jail after two other women confessed to the murder of L. Quincey Rhoten, for whose death Ms. Jordan had been charged. The debate between the state's attorney and appellant's attorney on the issue of punishment became so heated, vituperative and vehement, as to result in charges and countercharges, recriminations heaped upon recriminations, that their voices reached the level of crescendos. It appeared to appellant's attorney that the state's attorney might be "carrying the day." He sought, and was granted, permission to withdraw the guilty plea and a day was set for the trial of appellant as a youthful offender. At trial the state, without objection, introduced into evidence the transcript of appellant as a state's witness in the habeas corpus proceeding filed by Evelyn Louise Jordan seeking bond on the murder charge pending against her. According to his testimony in this proceeding, appellant was at a friend's house near the place where the killing occurred. He left to go to a neighborhood store to get a package of cigarettes and a pack of gum. While walking along a path in a park he heard four or five shots. The shots came from the direction he was going. He continued walking and came to a street where he saw a red automobile with a Mississippi tag parked in the street without the head or tail lights on. When he got within about twenty feet of the car he observed that both front doors of the vehicle were wide open. The dome light of the car was on and he saw two females on opposite sides of the car. He fixed the time between eight and nine o'clock p. m. He recognized the woman on the driver's side. She was Evelyn Jordan. It appeared to him that she was wearing psychedelic pants and was stooping over. He moved closer to the rear of the car and saw the woman on the passenger's side reaching over into the car. When she raised up he saw her face. Some of her front teeth were missing and her hair was fairly short. He had seen her before but could not recall her name. He heard Evelyn Jordan tell the other woman to "hurry up." He saw an object on the ground on the driver's side of the car but did not know it was a man's body at that time. He continued on to the store and found it closed. He waited around the store about five minutes expecting the owner of the store to return and open it but no one came. He left and traversed the route that brought him to the store. As he approached the parked car, he saw a number of police cars around and they had blocked off the street. He did not stop and report to the police what he had heard and seen. A few minutes later he returned to the scene with a boy and his grandmother who had also heard the shots. He got near enough on this occasion to observe a man lying face down on the ground and saw lots of blood around him. In conducting an investigation relative to the homicide the officers received information that appellant could probably give them the information they wanted. The officers interviewed appellant on one or more occasions and he was reluctant to talk. According to the officers, they appealed to him to tell the truth, stating that something similar might happen to his own family. He finally told the officers what he knew as set forth above. The next day they picked up appellant and carried him to the Sheriff's Department. He told the same story to a detective. Appellant signed a waiver of rights form after he was given the Miranda warnings. He then signed a written statement substantially like the testimony he gave at the habeas corpus hearing. Appellant was carried to the District Attorney's Office where the district attorney interrogated him and taped the interview. There he reaffirmed his story. On the strength of these several interviews, Evelyn Jordan was arrested for the murder of Rhoten. Appellant appeared before the Grand Jury and testified as a witness against Ms. Jordan. His testimony was recorded. Ms. Jordan was indicted for murder *341 in the first degree. She demanded and was given a preliminary hearing. Appellant testified at the preliminary hearing as a witness for the state, giving substantially the same testimony he subsequently gave at the habeas corpus trial and the statements he gave on every interview and before the Grand Jury. She was bound over without bond. Eleven months later appellant repented and recanted his testimony and statements. Following this he was indicted for perjury. When he appeared before the trial court seeking to be treated as a youthful offender, he was duly sworn and testified that he "lied" when he said Evelyn Jordan was at the automobile on the night that Rhoten was killed. He claimed that he told the law officers when they interviewed him on two or three occasions that he did not know anything about the killing and had not been in the area where the body was found. He stated the officers kept telling him that if he withheld information concerning a felony that he would be guilty of a crime and would be committed to the detention home. The repeated threats of being sent to the detention home was just more than he could take and he had rather see a woman go to the electric chair than allow himself to be confined in such a place. He said the officers brought two photographs to him and told him they thought these were the women who were involved, and he then picked out Ms. Jordan and made up the monstrous story; that because of police harassment and threats he finally succumbed to their suggestions that Ms. Jordan was involved. The officers denied making any threats to him with reference to jail or the detention home. Over appellant's objections, the trial court admitted into evidence a transcript of his testimony before the Grand Jury, his testimony at the preliminary hearing, his testimony at the habeas corpus trial, his signed statement to the investigating officers, the testimony of the law officers, testimony of the district attorney, and appellant's testimony before the trial judge in which he confessed perjury before he was allowed to withdraw his guilty plea. The two law enforcement officers who investigated the murder case testified that they did not know that appellant had recanted his testimony. They further testified that they believed appellant when he signed the written statement concerning the homicide. They believed he told the truth at the preliminary hearing and at the habeas corpus hearing, and, furthermore, they still believed he had told the truth. When the state rested, appellant moved to exclude the evidence on the ground that the state failed to prove the corpus delicti. The court overruled the motion and adjudged appellant guilty of the offense of being a youthful offender. Appellant, in response to a question from the court, told the court that he did not have anything to say with reference to why the judgment and sentence of the law should not be passed upon him. The court committed him to the Director of the Department of Corrections of the State of Alabama for a term of one year to be served in the Mobile Juvenile Home of Mobile County. Appellant gave immediate notice of appeal and requested a free transcript. Appellant's request was granted and his trial counsel was appointed to represent him on this appeal. After appellant's guilty plea was withdrawn, he did not thereafter take the witness stand. We are compelled to reverse. To authorize a conviction for perjury, as detestable as that crime is, there must be two witnesses, or one witness with strong corroboration. There can be no conviction of the crime of perjury on the unaided testimony of a single witness. This would be oath against oath. Peterson v. State, 74 Ala. 34. This is precisely what occurred in this case if we can legally consider appellant's recanting testimony before he was allowed to withdraw his guilty plea. *342 The law is well settled that where the state relies on proof of two contradictory sworn statements without any evidence to show that the testimony alleged in the indictment was false, and the jury (court) was of necessity left to the task of determining which of the two indicated statements was willfully and corruptly false, the burden of proof on the state was not sustained. Williams v. State, 34 Ala.App. 462, 41 So.2d 605. The effect of the court's order in permitting the withdrawal of the guilty plea was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against appellant was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. Such is the weight of authority in this country. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582 at page 583, 71 L.Ed. 1009; State v. Wright, 103 Ariz. 52, 436 P.2d 601; White v. Georgia, 51 Ga. 285; Dean v. State, 72 Tex.Cr.R. 274, 161 S.W. 974; Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7; State v. Joyner, 228 La. 927, 84 So.2d 462. Thus, in this case the state used the sworn testimony of appellant before the trial court to impeach and contradict his previous sworn testimonies to hinge a conviction of perjury on the allegations laid in the indictment. The testimony of every witness for the state was in corroboration of appellant's testimony at the habeas corpus hearing. Not a single witness was produced to testify that his sworn testimony was false. In a court of law nothing is more unsatisfactory than recanting testimony. This falls far short of the proof required in perjury prosecutions. The trial court was without warrant to consider the guilty plea and the sworn testimony in connection therewith after allowing the plea to be withdrawn, and the state having failed to introduce any additional extrinsic evidence going to establish the falsity of appellant's sworn testimony given at the habeas corpus hearing, the corpus delicti was not proved. This may appear to be a miscarriage of justice and, indeed, it is, but when the law is respected and followed, justice will not be hurled from her high seat in a civilized society. The court erred to a reversal in overruling appellant's motion to exclude the state's evidence. Reversed and remanded. All the Judges concur.

315 S.E.2d 640 (1984) In The Matter of Magistrate Gary OSBURN. No. 15-83. Supreme Court of Appeals of West Virginia. May 9, 1984. *641 Charles R. Garten, Charleston, for Judicial Investigation Comn. George D. Beter, Huntington, for Magistrate Osburn. PER CURIAM: This is a judicial disciplinary proceeding in which the Judicial Hearing Board recommends that Wayne County Magistrate Gary Osburn be publicly reprimanded for failing to discharge his administrative responsibilities diligently and for failing to maintain professional competence in judicial administration. After examining the record before us, we concur in the Board's recommendation, and we, therefore, publicly reprimand Magistrate Osburn, and we caution him to discharge his responsibilities diligently in the future. On June 28, 1983, a complaint was filed against Magistrate Osburn which charged him with violating Canon 3 A(1), Canon 3 A(4), Canon 3 B(1), and Canon 3 B(2) of the Judicial Code of Ethics.[*] The complaint specifically alleged that Magistrate Osburn, who was on duty in Wayne County, on September 17, 1982, was out of his office when a prisoner, Glen Rideout, was taken to the office. The magistrate was contacted by telephone and told that the prisoner was in the office. It was alleged that the magistrate directed his assistant to commit Mr. Rideout to jail by rubber-stamping a jail commitment form with his signature. It was also alleged that the magistrate's conduct was improper in that he failed to have the prisoner brought personally before him for a hearing, in that he failed to inform the prisoner in plain terms of the nature of the complaint against him and of his right to counsel, and in that he failed to inform the prisoner that he was not required to make a statement, and that any statement made by him could be used against him. The Complaint also averred that the Magistrate failed to provide Mr. Rideout with reasonable means to communicate with an attorney or at least one other person for the purpose of obtaining counsel or arranging bail. On October 11, 1983, a hearing in the matter was held before the West Virginia Judicial Hearing Board. At the hearing the testimony of a number of witnesses was taken. Glen Rideout testified that he had been arrested on September 17, 1982, and that he had been taken to Magistrate Osburn's office. The magistrate was not there at the time, and according to Rideout the assistant showed him papers which he read and signed. He said that the assistant spoke to the Magistrate on the telephone, but he could not remember speaking to him. He could not remember anyone other than the arresting officers telling him what he was charged with. He also testified that he did not believe that he was informed that he had the right to have an attorney appointed to represent him. A bond, however, was set for him. *642 While being questioned, Mr. Rideout was shown a document which he had signed on September 17, 1982. In that document he had stated that he had been informed of the charges against him, that he understood that he did not have to make incriminating statements, that any such statements might be used against him, and that he also understood that he was entitled to the assistance of counsel. In the document Rideout also had indicated that he had wanted an attorney appointed for him. Rideout testified that he had read through the document and that he had signed it. Geraldine Rideout, Glen Rideout's mother, contradicted the testimony of other witnesses at the hearing and testified that her son was taken to jail directly after his arrest and denied that he was even taken to the magistrate's office. Patricia Napier, the magistrate's assistant who was in the magistrate's office at the time Rideout arrived, testified that she called the magistrate and that he asked to speak to Mr. Rideout. According to her, a telephone conversation ensued between the magistrate and Rideout. She indicated that she had given Mr. Rideout a "right's sheet" and that he had signed it. She verified Mr. Rideout's testimony that Magistrate Osburn did not appear in the office while Rideout was there. She also testified that she had affixed the magistrate's name to Rideout's commitment papers with a rubber stamp. Magistrate Osburn testified that he was on duty on September 17, 1982, and that he was at home eating when Mr. Rideout was taken to his office. He said that he talked with the prisoner over the telephone and informed him of his rights. He stated that he remained on the telephone while his assistant advised Mr. Rideout of his rights. He admitted that he had a rubber stamp which had been used for official papers, but when he had instituted the use of it, he had not considered such use wrong or improper. He testified that since the Rideout incident he had been informed by a judge that its use was improper. At the conclusion of the hearing the Judicial Hearing Board found that Magistrate Osburn was absent from his duty post during the incident in question. The Board also found that the magistrate had informed the prisoner of his right over the telephone and that he had authorized his assistant to affix his signature to the commitment form by rubber stamp. The Board specifically found that Magistrate Osburn failed to have the prisoner Rideout personally brought before him for a hearing. In syllabus point 4 of In Re Pauley, 314 S.E.2d 391 (W.Va.1983), we said: "Under Rule III(C)(3) (1983 Supp.) of the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, the allegations of a complaint in a judicial disciplinary proceeding `must be proved by clear and convincing evidence.'" We have also held that the decision of the Judicial Hearing Board is not conclusive since, "The Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial Review Board [now Judicial Hearing Board] in disciplinary proceedings." Syllabus Point 1, West Virginia Judicial Inquiry Commission v. Dostert, W.Va., 271 S.E.2d 427 (1980). As previously noted, Canon 3 of the West Virginia Judicial Code of Ethics (1982 Replacement Vol.) provides, in part, that "[t]he judicial duties of a judge [magistrate] take precedence over all his other activities." We believe that the evidence in the case before us clearly and convincingly shows that Magistrate Osburn failed to return to his office on September 17, 1982, to attend to the arraignment of Mr. Rideout. Although his assistant may have performed the arraignment, she was not authorized to do so. See W.Va.Code 50-1-9. W.Va.Code, 62-1-5, requires that law enforcement officers take arrested persons before a magistrate without unnecessary delay, and W.Va.Code, 62-1-6 requires the magistrate to follow certain mandatory arraignment *643 procedures. See, State v. Persinger, W.Va., 286 S.E.2d 261 (1982). After an independent evaluation of the record, we agree that the Judicial Hearing Board was correct in concluding that the magistrate failed to give his official duties preference in violation of Canon 3 of the Judicial Code of Ethics. Accordingly, the Court hereby reprimands Magistrate Osburn for failing to attend to his official duties on September 17, 1982. Reprimanded. NOTES [*] The relevant sections of Canon 3 of the Judicial Code of Ethics provide: "The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply: A. Adjudicative Responsibilities (1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism. . . . . . . (4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. B. Administrative Responsibilities. (1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials. (2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him."

540 U.S. 816 WILLINGHAMv.LOUGHNAN ET AL. No. 02-1694. Supreme Court of United States. October 6, 2003. 1 Appeal from the C. A. 11th Cir. 2 Certiorari denied. Reported below: 321 F. 3d 1299.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1404 FRANKLIN C. SMITH, Plaintiff - Appellant, v. MS. AMY; ANDREW SAUL, Commissioner of the Social Security Administration, Defendants - Appellees, and MS. JACKSON, Case manager; ELIZABETH B. DEJARNETTE, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:16-cv-00494-MSD-LRL) Submitted: August 20, 2019 Decided: August 22, 2019 Before FLOYD and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Franklin C. Smith, Appellant Pro Se. Garry Daniel Hartlieb, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Franklin C. Smith appeals the district court’s order denying relief on his civil action filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and also challenging the temporary suspension of his social security benefits. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Amy, No. 2:16-cv-00494-MSD- LRL (E.D. Va. Mar. 21, 2019). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2 

2 U.S. 179 2 Dall. 179 1 L.Ed. 339 Shawv.Wallace Supreme Court of Pennsylvania September Term, 1792 1 This cause was set down for trial; but was afterwards continued by the plaintiff. The defendant's attorney, prayed a rule might be granted for security for costs, the plaintiff residing in New York. Moylan, objected, that the motion came too late, after the cause had been marked for trial. 2 But, By the Court: It is never too late to grant the rule, when it will not delay the trial. 3 Rule granted.

205 F.Supp.2d 1358 (2000) MANDY S., by and through her mother and next friend SANDY F., Plaintiff, v. FULTON COUNTY SCHOOL DISTRICT, Defendant. No. CIV.A.1:99-CV-676GET. United States District Court, N.D. Georgia, Atlanta Division. August 30, 2000. *1359 Torin Dana Togut, Office of Torin D. Togut, Roswell, GA, for plaintiffs. *1360 Thomas Alan Cox, Alexa Roberta Ross, Allegra J. Lawrence, Sutherland, Asbill & Brennan, Atlanta, GA, for defendant. ORDER G. ERNEST TIDWELL, District Judge. The above-styled matter is presently before the court on: (1) Plaintiff's motion for summary judgment [docket no. 21]; (2) Defendant's motion for final judgment [docket nos.22, 23]. Procedural History On May 19, 1998, Mandy S. ("Mandy") requested a due process hearing against Fulton County School District ("School District") that alleged, inter alia, that the School District violated Mandy's substantive and procedural rights to receive a free appropriate public education ("FAPE") for the 1991-92 through 1997-98 school years and that she was entitled to compensatory education and reimbursement of private educational expenses for those school years. Mandy was a twenty-one year old adult at the time. An administrative due process hearing was held on August 17, 18, September 23, 24, 25, and November 4, 1998. On February 12, 1999, the Special Assistant Administrative Law Judge ("ALJ") issued a final decision against Mandy which denied her all relief. On March 12, 1999, Mandy filed this action in district court pursuant to the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., and its implementing regulations, 34 C.F.R. §§ 300.1, et seq. (1997) seeking a de novo review of the administrative proceedings and reversal of the findings of fact and resulting decision, as well as attorneys' fees and costs. On October 5, 1999, this court denied defendant's motion to dismiss. On February 18, 2000, the parties filed an amended joint motion to waive the pre-trial order requirements, stipulating that neither party would initiate a trial or move to introduce additional evidence in this case. The parties also stipulated that they would file cross-motions for final judgment on April 10, 2000, which would be dispositive of all claims, issues, and defenses in this case. The parties' motion was granted on February 24, 2000. On April 10, 2000, plaintiff filed a motion for summary judgment and defendant filed a motion for judgment. There is some question as to the proper procedural mechanism to be implemented in the district court in bringing an IDEA case before the court for final decision. The Eleventh Circuit has not yet addressed this issue. See Walker County School District v. Bennett, 203 F.3d 1293, 1297 n. 11 (11th Cir.2000). Both the Sixth and the Ninth Circuits have noted that a motion for summary judgment under Federal Rule of Civil Procedure 56 may not be an appropriate procedural device for triggering a district court decision because the district court in reviewing the administrative record, whether additional evidence is taken or not, must weigh and decide disputed issues of fact, an improper exercise under Rule 56. Compare Capistrano Unified School District v. Wartenberg, 59 F.3d 884, 891-92 (9th Cir.1995) and Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384, 387 n. 2 (6th Cir.1998). Having considered the relevant legal authorities, the procedure of filing motions for final judgment appears to this court to be the better practice. Therefore, based on the foregoing and in light of the parties' stipulation, the court will treat plaintiff's motion for summary judgment as a motion for final judgment. *1361 Standard of Review Under the IDEA, any party aggrieved by the result of the administrative proceedings in the state system has the right to bring a civil action in the district court. In that lawsuit "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 20 U.S.C. 1415(e)(2). The Supreme Court has delineated the following guideline for review: [A] court's inquiry in suits brought under 20 U.S.C. § 1415(e)(2) is two-fold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these two requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. Doe v. Alabama State Dep't of Educ., 915 F.2d 651, 655 (11th Cir.1990)(quoting Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982)). Reviewing courts must give "due weight" to the record of the administrative proceeding. Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. In Rowley, the Supreme Court made it clear that § 1415(e)(2) is not an invitation to the district court to substitute its own judgment on sound educational policy for those made at the state administrative level. Rowley, 458 U.S. at 206, 102 S.Ct. at 3050. The Eleventh Circuit has recognized that the role of the district court is simply to "review the administrative determinations contemplated by the Act." Manecke v. School Bd., 762 F.2d 912, 919 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). The extent of deference to be given the administrative findings of fact is an issue left to the discretion of the district court. Jefferson County Board of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir.1988). The court must consider the administrative findings of fact, but is free to accept or reject them. Id. (citing Town of Burlington v. Department of Educ., Com. of Mass., 736 F.2d 773, 792 (1st Cir.1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). Facts Having reviewed the administrative record in light of the foregoing standard, the court credits the factual findings of the ALJ and finds that they are supported by the preponderance of the evidence in the record. Furthermore, the court independently finds the following facts, many of which the plaintiff admitted in either her statement of material facts or her response to defendant's statement of material facts. On June 28, 1987, Mandy, an eleven year old child, suffered an accident involving a four-wheel all-terrain vehicle. As a result of this accident, Mandy incurred a severe traumatic brain injury ("TBI"). Mandy's brain injury severely affected her abilities to engage in daily activities, perform self-help skills, and to appropriately engage in social interactions with others. Mandy's brain injury also significantly impaired her motor coordination, memory, speech and language. In the Spring of 1991, Mandy and her family moved to Atlanta, Georgia. Before Mandy enrolled in the School District, the School District provided her with a comprehensive computer evaluation through the Georgia Institute of Technology ("Georgia Tech"). While the Georgia Tech evaluation was being performed, the *1362 School District provided plaintiff with homebound instruction. Mandy enrolled as a special education student in the School District at age sixteen. Mandy attended Holcomb Bridge Middle School. For the 1992-93 school year, Mandy qualified to receive special education and related services from the School District under the IDEA category of "other health impaired" with the description "traumatic brain injury, left side weakness, walks with quad cane, and balance problems." At the time, the State Department of Education did not recognize a specific classification for TBI. Plaintiff was enrolled in the special education program at Roswell High School for the 1993-94 through 1996-97 school years. The School District developed an IEP and transition plan for Mandy for the 1992-93 through 1997-98 school years. The School District provided special education services and transition services for Mandy for the 1992-93 through the 1996-97 IEPs until she dropped out of Roswell High School ("RHS") on or about February 10, 1997. In 1994, the TBI classification became available in Georgia. The State Department of Education advised the School District that TBI students were to be reclassified upon reevaluation. Plaintiff was classified as TBI at her next evaluation in 1995. Mandy was served as TBI in the "Learning Disabilities" program. Plaintiff's IEPs were developed by a team composed of School District personnel, outside consultants hired by the School District, an attorney for the School District, plaintiff, plaintiff's attorney, and plaintiff's mother. Plaintiff's mother and attorney actively participated in developing the IEPs for the 1991-92 through 1997-98 school years. Their recommendations were, in part, incorporated into the IEPs. Each year, they were informed of the School District's placement and classification of plaintiff. After conferring with counsel, plaintiff's mother signed each resulting IEP indicating their agreement, with the exception of the IEPs for May 24, 1996 and August 19, 1997. Plaintiff received comprehensive services, including cognitive therapy and other therapies, technological services and equipment for the 1991-92 through 1996-97 school years. Some of these services were provided by School District staff specialists. The School District also hired outside providers to deliver educational services to plaintiff. The School District provided Mandy with a computer and special software which could compensate for some of Mandy's difficulties. The School District paid for a seating and positioning clinic at the Shepherd Spinal Center for Mandy and, as a result of Shepherd's recommendations, the School District purchased a customized office chair with an arm trough and a customized desk to accommodate Mandy's special needs. The School District provided plaintiff with textbooks on tape because plaintiff could more easily grasp material if she heard it rather than read it. The School District also provided Mandy with an assistant to help her throughout the day. According to Harold Smith, former Director of Programs for Exceptional Children, the School District expended more resources on plaintiff than on any other non-residential student in his twenty years of service to the School District. The School District provided cognitive therapy through Julie Krupa, a speech language therapist, from January 1995 through the end of that school year. Ms. Krupa gave plaintiff one-to-one cognitive evaluation, assistance and instruction. Ms. Krupa also gave Mandy computer-related training and speech/language-related therapies. She worked directly with School District personnel in a team approach to plaintiff's education. *1363 Prior to the 1996-97 school year, Mandy was on a college preparation diploma course of study at the request of Mandy and her mother. In addition to the academic course work, Mandy received integrated speech, physical, and occupational therapies. Daily living skills also were addressed. On May 24, 1996, Mandy, her mother, and the School District met to develop an IEP for plaintiff for the 1996-97 school year. At this meeting, Mandy, her mother, and the School District staff agreed that Mandy would not be able to secure a regular high school diploma by the time of her expected graduation in May 1998 and that other options should be considered. The committee proposed that plaintiff receive instruction in study skills, English, personal management, work study and keyboarding. Mandy would receive the keyboard training in a classroom with nondisabled peers. The IEP also had as a goal that Mandy would increase her social awareness and development of social skills. The committee recommended that plaintiff receive occupational therapy, physical therapy, speech therapy and career services. The School District did not invite anyone from the Division of Vocational Rehabilitation to attend the May 24, 1996 IEP meeting. The School District did, however, refer Mandy to Vocational Rehabilitation to determine her eligibility for its services as part of her 1996-97 transition plan. Mandy was eligible for vocational rehabilitation services. Dr. Anthony Stringer, Ph.D., completed a neuropsychological evaluation of Mandy at the request of Vocational Rehabilitation on December 13, 1996. Donald Blosser, a counselor for the Division of Vocational Rehabilitation contacted Dr. Stringer about developing a vocational plan for Mandy. Prior to the 1996-97 school year, Mandy and her mother had rejected services from Vocational Rehabilitation. The proposed 1996-97 IEP included goals for Mandy to achieve and set out a certain amount of time each week to be spent on most tasks. For example, the speech language therapist recommended no more than 90 minutes of speech therapy instruction per week to increase her speech skills, as well as more speech practice and repetition in other "real life" contexts. An individual transition plan ("ITP"), necessary for students aged sixteen and older, also was developed for plaintiff on May 24, 1996. According to the School District, plaintiff and her parent had declined information about independent living for Mandy prior to the 1996-97 IEP. At the 1996-97 IEP meeting, plaintiff's counsel asked about career preparation for Mandy. The Instructional Support Teacher for the Career Services Program, Donna Faulkner, emphasized that the School District was without sufficient information to identify possible post-secondary options for plaintiff and urged plaintiff to complete a vocational assessment. The 1996-97 ITP proposed the following transition objective areas: (1) Post-secondary—vocational training; (2) Employment—supported employment; (3) Personal Management—social/interpersonal & living arrangements; (4) Community Participation—Leisure & Community resources. The transition plan specified that plaintiff would explore available leisure groups in the community. The transition plan included a personal management class to help plaintiff increase her ability to act independently in various settings through role-playing, and covered topics including social interactions, job skills, interview etiquette, restaurant etiquette, and time management. All of the instruction occurred at Roswell High *1364 School. The primary goal of the personal management class was personal independence. The transition plan also included a worksite experience in the media center at Roswell High School. This work experience was based on Mandy's expressed interest in a career in computers. Ms. Faulkner and Julie Butler also set up a duplication of a job at a collection agency after plaintiff indicated that she would like to work at a collection agency. To set up the collection agency project for plaintiff, Ms. Faulkner visited different collection agencies and task-analyzed the situations so that she could set up a situation in the school to address plaintiff's interests. Dr. Fjordbak, the neuropsychologist retained to assist in developing educational services for plaintiff, recommended that the treatment team working with Mandy avoid challenging her goals and objectives, even if they seemed unattainable, because plaintiff was so emotionally involved in them. The School District considered Dr. Fjordbak's advice when it created the simulated work situations. At the 1996-97 IEP meeting, plaintiff stated that she did not want to return to RHS. According to plaintiff, the school environment was overwhelming for her, the students were immature "babies" and she did not have any friends at school. Plaintiff wanted to enter a community based instruction program and continue her education in a private placement. Mandy's mother requested that the School District pay for plaintiff to be trained at the Asher Business School ("Asher"). Ms. Faulkner visited Asher and, based on her observations and interviews with the faculty and staff, determined that the school was unable to provide an appropriate education for Mandy. For example, Ms. Faulkner learned that Asher had never dealt with a TBI student and the school's previous experience with providing accommodations consisted of a clothespin attached to the student's hand to assist the student with typing. Mandy and her mother did not sign the May 24, 1996 IEP, however, Mandy did receive services under the IEP until she dropped out of school in February 1997. Until plaintiff withdrew on February 10, 1997, Marilyn Swinehart, in her capacity as case manager, ensured that the objectives and goals of the IEP were implemented. To monitor plaintiff's progress, Ms. Swinehart held meetings for all of plaintiff's providers and collected data from those who worked with plaintiff. Ms. Swinehart met with Mandy's providers to ensure that the necessary modifications or accommodations had been implemented. Due to plaintiff's withdrawal from school, the plans memorialized in the IEP could not be completed, however, Ms. Swinehart testified that Mandy's communication with other students improved during the school year. On August 19, 1997, the IEP placement committee convened to develop an IEP for Mandy for the 1997-98 school year. Prior to developing the 1997-98 IEP, the School District staff evaluated Mandy to determine her current levels so that goals and objectives could be developed for 1997-98. During the assessments, Mandy's mother interrupted and raised concerns about the evaluations. Mandy's mother also stated that the School District should be sued for its failure to provide Mandy with an education. The committee reviewed Mandy's mastery of the 1996-97 IEP goals to determine a starting point for the 1997-98 IEP. Mandy had mastered several of her physical therapy and speech therapy objectives and was in the process of mastering several more. Mandy's speech and language skills regressed over the months since she left school. Mandy was in the process of *1365 mastering some of her life skills objectives such as planning her time and completing class assignments. She also mastered her objective of participating in group settings and activities at school at least once a day. She was in the process of mastering her objective of socializing through group interaction in speech therapy. The IEP placement committee proposed that plaintiff be served as TBI through the "Learning Disability" program in 1997-98. The School District offered a community based instruction program. The committee also proposed that plaintiff receive speech, physical, and occupational therapies, as well as career services each week. The IEP resulting from the August 1997 meeting incorporated goals and objectives including the improvement of social and vocational behaviors, the improvement of keyboarding skills and the exploration of recreation and leisure skills. The School District was disadvantaged in preparing the 1997-98 IEP because it was not in possession of several evaluations which outside providers had conducted on Mandy since she left RHS. The evaluation by neuropsychologist Dr. Jay Uomoto, however, was provided to the School District by Mandy and the meeting recessed temporarily so that all present could read his report. The School District incorporated some of Dr. Uomoto's suggestions into the IEP. For example, Mandy's schedule was changed to give her an additional period to practice the computer in a room by herself with her assistant. A transition plan also was developed for Mandy following the 1997-98 IEP meeting. The transition plan proposed objectives in the areas of: (1) Post-secondary—vocational training and career awareness; (2) Employment—supportive employment; (3) Personal Management—social/interpersonal skills, financial planning, and living arrangements; (4) Community Participation—leisure and community resources. The transition plan includes a personal management course focusing on independent living skills and a work-site experience. The community-based instructional program and some of the independent living skills classes were explained to Mandy and her mother at the IEP meeting. At the time of the IEP meeting, Mandy and her mother had not provided sufficient information regarding Mandy's preferences and interests to specifically formulate objectives incorporating these interests. The transition plan asked plaintiff to identify post-secondary vocations in which she had an interest, offered information about supported employment programs and Vocational Rehabilitation services, specified that plaintiff would increase management of her personal skills and practice them in community and classroom settings, and provided that plaintiff would explore community resources and leisure activities. The transition plan identifies the Career Services staff, Special Education, other outside agencies, Mandy and Mandy's mother as persons potentially responsible for delivering these services. No outside agencies were invited to the 1997-98 IEP meeting. Based on the School district's knowledge and experience regarding the services provided by MARTA, the School District itself evaluated which services would be available from MARTA to assist Mandy with her transportation goals. Mandy and her mother rejected the proposed IEP. Mandy and her mother instead developed and implemented a private rehabilitation program to educate plaintiff after she withdrew from the School District. On October 1, 1997, Mandy moved out of her mother's house and moved into the Grandview Apartments. These apartments are located outside the School District. When Mandy turned 21 years old, she was living in the Grandview Apartments. *1366 In fact, Mandy resided outside the boundaries of the School District for all but a few weeks of the 1997-98 school year. According to Mandy, she chose to move out of her mother's home in order to develop an educational program and placement so that she could become more independent and self-sufficient. Discussion The stated purpose of the IDEA is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs. 20 U.S.C. § 1400(d)(1)(A). To effectuate that purpose, federal funds are made available to state and local educational entities which are required through an evaluation process to identify children with disabilities and to develop for each disabled child an annual individualized education program or IEP. See 20 U.S.C. §§ 1411, 1414-1415. If the parents of a disabled child are dissatisfied with their child's IEP, the statute requires the educational agency to afford them an impartial due process hearing. 20 U.S.C. § 1415(f). In order to satisfy its duty to provide a free appropriate public education to a disabled child, the state must provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Drew P. v. Clarke County School Dist., 877 F.2d 927, 930 (11th Cir.1989) (citing Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853 (11th Cir.1988)), cert. denied, 494 U.S. 1046, 110 S.Ct. 1510, 108 L.Ed.2d 646 (1990). The state is not required, however, to maximize the handicapped child's potential; rather, the state must provide the child a "basic floor of opportunity," consisting of access to specialized instruction and related services. Bd. of Educ. v. Rowley, 458 U.S. 176, 200-01, 102 S.Ct. 3034, 3048, 73 L.Ed.2d 690 (1982). Statute of Limitation for 1994-95 and 1995-96 School years Plaintiff requests that she be permitted to pursue relief under the IDEA for the 1994-95 and 1995-96 school years. In considering defendant's motion to dismiss, this court has already determined that the statute of limitation applicable to plaintiff's IDEA claims is the two-year statute of limitation applicable to personal injury actions. At that time, however, the court was unable to determine from plaintiff's Complaint when plaintiff's claims had accrued. IDEA claims accrue when the parents know or have reason to know of the injury or event that is the basis for their claim. Hall v. Knott County Bd. of Educ., 941 F.2d 402, 408 (6th Cir.1991). The cause of action accrues when the plaintiff learns (or should have learned) of the injury, whether or not they know that the injury is actionable. Id. at 408. Having reviewed the record, the court finds that plaintiff's claims for the 1994-95 and 1995-96 school years are barred by the statute of limitation. To be timely, plaintiff's claims must have accrued within two years prior to her filing her due process request on May 19, 1996. Plaintiff argues that she was not aware of any "harm" related to the 1994-95 or 1995-96 IEP's until May 24, 1996 when she first learned that she would not have enough credits to obtain a regular high school diploma by graduation. Plaintiff is advocating a "guaranteed outcome" standard that is inapplicable to the IDEA. See Rowley, 458 U.S. at 192, 208, 102 S.Ct. at 3034, 3052 (IDEA enacted more to open the door for disabled students to public education than to reach a particular level of education). *1367 Plaintiff and her mother, with the assistance of counsel, were active and assertive participants in the creation of the 1994-95 and 1995-96 IEPs. Plaintiff and her mother requested the pursuit of the regular college preparatory diploma. While, in hindsight, this may have been an optimistic endeavor on plaintiff's part, it seems evident to this court that Mandy and her mother were well informed about the extent of Mandy's disabilities at the time the IEPs at issue were adopted. Furthermore, there is no evidence that the School District concealed information regarding Mandy's continued eligibility for special education or her potential for completion of a college preparatory diploma. Likewise, there is no argument or evidence of any procedural defect related to the creation of these IEPs. Therefore, the court finds that plaintiff's claims accrued when Mandy and her mother signed and accepted the 1994-95 and 1995-96 IEPs. Accord Leake by Shreve v. Berkeley County Bd. of Educ., 965 F.Supp. 838, 846 (N.D.W.Va.1997)(parent who signed Education Plan form and knew daughter was not receiving special education services barred from bringing compensatory education claim when daughter subsequently qualified for special education). Accordingly, plaintiff's May 19, 1998 claim with regard to the 1994-95 and 1995-96 IEPs is time-barred. 1996-97 IEP and Transition Services/Compensatory Education "An IEP is a snapshot, not a retrospective. In striving for `appropriateness' an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, the time that the IEP was promulgated." Frank S. v. School Comm. of the Dennis-Yarmouth Reg'l Sch. Dist., 26 F.Supp.2d 219, 226 n. 15 (quoting Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir.1990)). Having reviewed the record, the court finds that the 1996-97 IEP was appropriate. The 1996-97 IEP was developed with the participation of plaintiff, her mother and their counsel, and the School District. It included observations regarding Plaintiff's current abilities and interests and set forth specific goals and objectives in all necessary areas. Functional learning opportunities were included, as well as computer skills training and the creation of two work sites utilizing computer skills. The IEP provided opportunity for plaintiff to work on daily living skills and social awareness such as time management and restaurant etiquette. Although plaintiff contends that the 1996-97 IEP was deficient because it did not propose a community-based program, at the time of the 1996-97 IEP meeting, plaintiff did not request a community based program. Rather, plaintiff wanted to attend the Asher Business School to prepare for a career in computers. In any event, the court notes that the School District was unable to introduce independent living skills in preparation for a community-based program prior to 1996-97 due to plaintiff's insistence upon a college preparation education. The 1996-97 transition plan provided for services in all areas contemplated by the IDEA and, thus, the School District was not required to indicate reasons why certain services were not provided. See eq. Yankton School District v. Schramm, 900 F.Supp. 1182, 1193 (D.S.D.1995), aff'd, 93 F.3d 1369 (8th Cir.1996)(identifying three areas specified in 34 C.F.R. § 300.18(b)(2)). Mandy was given an open referral to Vocational Rehabilitation where she was referred for and received a neuropsychological evaluation in preparation for the development of a vocational plan. Plaintiff did, in fact, gain educational benefit from the 1996-97 IEP before her *1368 withdrawal from RHS. She had mastered or was in the process of mastering many of her speech and physical therapy goals. Plaintiff had increased her rate of typing and was in the process of increasing her independent use and application of the computer. Therefore, the court finds that the 1996-97 IEP was appropriate for plaintiff's individual needs and reasonably calculated to confer an educational benefit. 1997-98 IEP and Transition Services/ Reimbursement Plaintiff seeks reimbursement of expenses related to her private education instruction and services for the 1997-98 school year. The Eleventh Circuit has recognized that reimbursement is an available remedy when the public school IEP is found to be statutorily insufficient and the private schooling chosen by the parents of a disabled child is found to be appropriate. See e.g., Walker County School Dist. v. Bennett, 203 F.3d 1293, 1296 n. 8 (11th Cir.2000)(citing Breen, 853 F.2d at 857). When the court ultimately determines that "the IEP proposed by the school officials was appropriate, the parents [are] barred from obtaining reimbursement." School Comm. of the Town of Burlington v. Department of Educ., 471 U.S. 359, 374, 105 S.Ct. 1996, 2004, 85 L.Ed.2d 385 (1985). After reviewing the record, the court agrees with the ALJ that the 1997-98 IEP and transition plan were appropriate and capable of conferring an educational benefit. The IEP was based on the available information regarding plaintiff's current abilities, interests and preferences. Computer instruction and assistance, as well as speech/language services were included in the IEP. The IEP identified specific goals and objectives for plaintiff to address in these areas. Likewise, the IEP adequately provided for transition services. The 1997-98 ITP proposed that plaintiff be taught in a community-based instruction program. Furthermore, the ITP identified specific objectives in the required major categories specified in 34 C.F.R. § 300.18(b)(2)(I)(b)(2)(iii) and therefore, no additional statements were required. Although no outside agencies were invited to the IEP, such procedural noncompliance with the IDEA is not violative unless it actually results in "substantial deprivation" to the student. See Urban v. Jefferson County School Dist., 89 F.3d 720, 726 (10th Cir.1996). In the instant case, the School District was capable of discussing the programs offered by outside agencies such as Vocational Rehabilitation and MARTA. Furthermore, Vocational Rehabilitation was not likely to provide transition services to Mandy because she rejected those services. Furthermore, with regard to expenses incurred after Mandy moved to the Grandview apartments in October 1997, the court finds that Mandy was not a resident of Fulton County and does not have standing to assert a reimbursement claim against the School District for that period. As an adult at the time of the move, it is plaintiff's residence and not that of her mother which determines the school district responsible for providing FAPE. See 20 U.S.C. § 1415(m)(1). It is undisputed that the Grandview Apartments are located outside of the Fulton County School District. A school district must provide services only to students residing within its jurisdiction. See 20 U.S.C. § 1413(a); O.C.G.A. § 20-2-133(a) (free instruction provided to eligible children who enroll in programs within local school system in which they reside); Susan R.M. v. Northeast Indep. Sch. Dist., 818 F.2d 455, 458-59 (5th Cir.1987)(school district not required to disregard established rules of residency). Although plaintiff attempts to argue that the move to the *1369 Grandview was necessary for plaintiff to receive an education and therefore should be treated more like a private school placement, there is no evidence to support this claim. Even assuming plaintiff could not receive a beneficial education while living in the same home as her mother, there is no evidence that a move outside the district to the Grandview was necessary for plaintiff to develop independent living skills. In light of the foregoing, the court finds that the School District substantially complied with the procedural requirements of the IDEA and that the IEPs and transition plans developed for Mandy for the 1996-97 and 1997-98 school years were appropriate and reasonably calculated to enable Mandy to receive educational benefits. Because the court finds that the 1997-98 proposed IEP was appropriate, it is unnecessary for the court to consider whether plaintiff's private education plan was appropriate. Therefore, defendant's motion for final judgment [docket nos. 22, 23] is GRANTED and plaintiff's motion for final judgment ("a/k/a/ motion for summary judgment") [docket no. 21] is DENIED as to all of plaintiff's claims. Summary (1) Plaintiff's motion for summary judgment (a/k/a motion for final judgment) [docket no. 21] is DENIED; (2) Defendant's motion for final judgment [docket nos.22, 23] is GRANTED.

J-S86011-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAQUAN WATSON : : Appellant : No. 9 WDA 2016 Appeal from the Judgment of Sentence November 3, 2015 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0002009-2014 BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E. MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2017 Appellant Jaquan Watson appeals from the judgment of sentence entered in the Court of Common Pleas of Cambria County on November 3, 2015, following his guilty plea to one count each of third-degree murder, and Persons not to possess, use, manufacture, control, sell or transfer firearms.1 We affirm. The trial court briefly set forth the facts of this case as follows: The testimony at the preliminary hearing established that at approximately 1:30 a.m. on July 13, 2014, [Tyrone] Williams arrived at Building 28 at the Oakhurst Homes looking for a ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), respectively. *Former Justice specially assigned to the Superior Court. J-S86011-16 female friend. He approached a group that included [Richard A.] Cook, [Fidel L.] Cosby and [Appellant] that was gathered outside the building. Williams was informed by someone in the group where to locate his friend and he left for that location. Williams returned shortly thereafter and for reasons that are unclear had an altercation with one person in the group and was struck by that person or someone else in the group. Williams then walked away toward Grandinetti Avenue. While Williams was standing near Grandinetti Avenue, Cook, Cosby, and [Appellant] drew handguns and began firing at him. Williams fled toward Daniel Street while the three continued firing. Williams’ body was eventually found a short distance up a hill near Daniel Street. An autopsy revealed that Williams was struck multiple times with rounds from different caliber handguns with the fatal shot being a back to front through and through that passed his heart and lung. This round was never recovered. Eyewitnesses stated that [Appellant] was firing a semi-automatic handgun with silver on top, Cook was firing a revolver, and Cosby was firing a larger semi-automatic handgun with a laser sight. Detectives from the Johnstown Police Department (JPD) were eventually able to locate and arrest all three suspects. During interviews Cook admitted to being present at the scene, to possessing a .22 caliber revolver that night, to seeing [Appellant] pull a handgun, to seeing [Appellant] firing at Williams, and to drawing his own revolver. Cook stated that he did not recall firing his weapon that night. Trial Court Opinion, filed 3/1/16, at 3-4. Appellant initially was charged in a Criminal Complaint on July 15, 2014, as a “principle [sic] or accomplice” of criminal homicide in the death of Mr. Williams. In the Criminal Information filed on November 21, 2014, Appellant was charged as “the Actor” in the homicide. Thereafter, on September 17, 2015, the Commonwealth filed an Amended Information wherein Appellant was charged as “a principal or accomplice.” Appellant challenged the amendment, and following a hearing on September 21, 2015, on this issue and other pretrial motions, the trial court permitted the -2- J-S86011-16 Criminal Information to be amended. In doing so, the trial court reasoned Appellant had not been surprised or prejudiced since the matter had been viewed from the outset as one wherein the codefendants acted in concert. N.T., 9/21/15, at 26-27. The Commonwealth filed a Motion for Consolidation on July 7, 2015, and Appellant filed a Motion to Sever under Pa.R.Crim.P. 583.2 Following the Consolidation Hearing held on September 11, 2015, at which Appellant opposed the Commonwealth’s Motion to Consolidate, the trial court granted the Commonwealth’s motion and denied Appellant’s motion to sever.3 On September 22, 2015, the day upon which jury selection was scheduled to begin, Appellant and his codefendants entered guilty pleas and agreed to waive their right to withdraw those pleas.4 Sentencing was ____________________________________________ 2 This Rule states that: The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together. Pa.R.Crim.P 583. 3 While the Docket Entries indicate an Order was entered denying Appellant’s Motion to Sever on September 11, 2015, no corresponding written motion appears in the certified record. 4 While Appellant initially hesitated to enter into a plea due to the fact he had not been promised a definitive period of incarceration, following a detailed discussion with his counsel and the trial court, Appellant eventually decided to plead guilty. N.T. Guilty Plea, 9/22/15, at 4-10. -3- J-S86011-16 scheduled for November 3, 2015; however, on November 2, 2015, Appellant filed his “Motion for Withdrawal of Guilty Plea” wherein he alleged, inter alia, that: “there is a fair and just reason that he should be permitted to withdraw his guilty pleas as he avers he that he is not guilty of the alleged offenses, and further avers that he was under great pressure and not thinking clearly when he entered his guilty pleas. . . . ” See Motion to Vacate Guilty Plea, filed 11/2/15, at ¶ 3. On November 3, 2015, the trial court denied Appellant’s motion and sentenced him to a period of incarceration of two hundred four (204) months to four hundred eighty (480) months in prison on the third-degree murder charge and to a consecutive term of forty-eight (48) months’ to one hundred twenty (120) months’ incarceration on the firearms charge. N.T. Sentencing, 11/3/15, at 52-53. Appellant filed a post-sentence motion to modify his sentence, and following a hearing, the trial court denied the same on December 22, 2015. On December 29, 2015, Appellant filed a timely notice of appeal. 5 On January 6, 2016, the trial court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed the same on January 29, 2016, wherein he raised five claims. ____________________________________________ 5 Codefendant Richard A. Cook’s appeal from his judgment of sentence is pending in this Court. See Commonwealth v. Cook, 5 WDA 2016. -4- J-S86011-16 The trial court filed its opinion pursuant to Pa.R.A.P. 1925(a) on March 1, 2016. Appellant now presents the following Statement of Questions Involved: 1. Did the [t]rial [c]ourt commit reversible error when it granted the Commonwealth’s request to consolidate the trials of Fidel Cosby, Richard Cook and [ ] [A]ppellant [] over objection from Appellant[?] 2. Did the [t]rial [j]udge commit reversible error by allowing the Commonwealth [to] file an amended Criminal Information over objection from [Appellant] on 09/17/15 when jury selection was scheduled to begin on 09/22/15[?] 3. Did the [t]rial [j]udge commit reversible error by not continuing the trial to give the [Appellant] additional time to prepare for trial based on the material change in the Information set forth in paragraph 2 above[?] 4. Did the [t]rial [c]ourt err in denying [Appellant’s] pre- sentence motion to withdraw his guilty plea where he asserted a plausible claim of innocence? 5. Did the [c]ourt err in sentencing [Appellant] to an aggregate twenty-one (21) to fifty year period of incarceration? Brief for Appellant at 5. Appellant first maintains the trial court erred in granting the Commonwealth’s motion to consolidate the trials of Appellant and his codefendants. Appellant relies upon Pa.R.CrimP. 582(B)(1) and (2) to support his claim that the Commonwealth’s failure to file a written Notice of Joinder prior to formal arraignment on November 25, 2014, and its failure to file a motion for consolidation as part of an omnibus pretrial motion within thirty days of formal arraignment rendered its motion untimely and, -5- J-S86011-16 therefore, the trial court should have denied it on procedural grounds. Brief for Appellant at 11-12. Appellant further notes Pa.R.Crim.P. 583 provides that where it appears a party may be prejudiced if offenses or defendants are tried together, the trial court may order separate trials. Appellant maintains “[a] problem of constitutional proportions arises in joint trials when the prosecutor seeks to offer into evidence a confession of one defendant which implicates another,” and that herein, while he did not make a confession, Appellant’s codefendant Cook clearly implicated Appellant as the shooter such that Appellant had been denied his rights under the “confrontation clause.” Id. at 13. Appellant reasons that were a trial held, based upon the evidence the Commonwealth would have presented and the complex nature of the case, the jury could not have separated such evidence and likely would have convicted all three defendants as it “would have been unable to determine who fired the fatal shot, and all three would have or could have been unjustly convicted of 1st Degree Murder.” Id. at 13-14. Finally, Appellant claims that while his codefendants made statements which could be introduced against them, such statements would constitute inadmissible hearsay against Appellant, who did not make a statement, and that evidence would be unfairly prejudicial to him at a joint trial. Id. Initially, we note it is well-settled that the decision to join or sever offenses for trial is within the trial court’s discretion and will not be reversed on appeal absent a manifest abuse thereof or a showing of prejudice or clear -6- J-S86011-16 injustice to the defendant. Commonwealth v. Wholaver, 605 Pa. 325, 351, 989 A.2d 883, 898 (2010). Herein, the trial court reasoned that numerous factors, including the fact that the charges against Appellant and his codefendants arose from the same course of events and the same witnesses would be called in the trial of each, militated in favor of joinder. Trial Court Opinion, filed 3/1/16, at 7. In addition, the trial court determined Appellant could not meet the standard to prove prejudice, because the charges were not so numerous or disparate that a properly-instructed jury would have been rendered unable to separate the evidence against each defendant. Id. at 7-8. In addition, the trial court pointed out that whether the statements of Appellant’s codefendants would have been admitted into evidence never had been determined, and Appellant could have sought at trial to limit what portions thereof the Commonwealth might introduce. Id. at 8. Further, the trial court found Appellant had not been prejudiced by the Commonwealth’s motion, since all pretrial proceedings involved all three defendants, and nothing in the Pennsylvania Rules of Procedure places a deadline on the Commonwealth for filing a motion to consolidate. Id. at 9. As the trial court stated, Rule 582(B)(2) provides that a motion to consolidate “must ordinarily be included in the omnibus pretrial motion.” Pa.R.Crim.P. 582(B)(2) (emphasis added). The use of the word “ordinarily” plainly indicates that while motions to consolidate should normally be included in an omnibus pretrial motion, the rule is not absolute, and there -7- J-S86011-16 are certain circumstances where a motion to consolidate will be considered outside of an omnibus motion. This Court will not make a rule absolute when the plain language does not purport to do so; thus, under the facts presented herein, where Commonwealth filed its motion several weeks before trial and each pretrial proceeding involved all three defendants, we find the trial court did not err by considering the Commonwealth’s motion. The timeliness of the Commonwealth’s motion aside, we find Appellant’s challenge to be moot as Appellant and his codefendants entered guilty pleas prior to trial; thus, there was no joint trial at which Appellant was subjected to prejudice. Indeed, Appellant speaks in terms of the prejudice that might have or would have befallen him had trial occurred and if statements of codefendants Cook and Cosby were introduced into evidence. Brief for Appellant at 13-14. “A defendant requesting a separate trial must show real potential for prejudice rather than mere speculation.” Commonwealth v. Serrano, 61 A.3d 279, 285 (Pa.Super. 2013) (citation omitted). As such, the trial court correctly determined Appellant simply cannot show that he was prejudiced by its decision to consolidate the matters for trial. This claim, therefore, does not warrant relief. In his second and third issues, Appellant argues the trial court committed reversible error by permitting the Commonwealth to amend the Criminal Information several days prior to the date upon which trial was scheduled to commence without providing Appellant with additional time to -8- J-S86011-16 prepare a defense for trial based upon the alleged material change. Specifically, Appellant explains that while the original Criminal Complaint filed on July 15, 2014, named him as an actor or accomplice in the death of Tyrone Williams, the Criminal Information filed on November 21, 2014, charged him only as the principal actor; thus, Appellant and his counsel prepared for trial based upon the Criminal Information. Brief for Appellant at 14. Appellant maintains that the Commonwealth’s Amended Information filed on September 17, 2015, alleging he acted either as a principal or as an accomplice was impermissible as it clearly expanded and changed the nature of the offense. Id. at 15-16. While he admits he never sought to have his trial continued, Appellant reasons the trial court may have sua sponte granted a continuance pursuant to Pa.R.Crim.P. 106.6 Appellant posits that in light of the gravity of the charged offenses, the trial court should have continued the trial in the interests of justice to allow such a young man more time to make an informed decision to enter a guilty plea or proceed to trial. Id. at 17-18.7 Pa.R.Crim.P. 564 states: ____________________________________________ 6 This rule provides in relevant part that: “[t]he court or issuing authority may, in the interests of justice, grant a continuance, on its own motion, or on the motion of either party.” Pa.R.Crim.P. 106 (A). 7 Prior to pleading guilty, Appellant indicated he was twenty years old. N.T. Guilty Plea, 9/22/15, at 20. -9- J-S86011-16 The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice. Pa.R.Crim.P. 564. Additionally, [i]n reviewing a grant to amend an information, the Court will look to whether the appellant was fully apprised of the factual scenario which supports the charges against him. Where the crimes specified in the original information involved the same basis elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results. Commonwealth v. Mentzer, 18 A.3d 1200, 1202–03 (Pa.Super. 2011) (citation omitted). Herein, as has been stated above, the Criminal Complaint filed on July 15, 2014, charged Appellant as both the principal and accomplice to the offenses of homicide and aggravated assault. The Commonwealth explained that although the charge was “typed over defectively by the [District Attorney’s] office,” N.T., 9/21/15 at 25, its theory of the case never changed. The Commonwealth stressed that from the time of the preliminary hearing held on October 1, 2014, Appellant was aware he was charged with acting as an accomplice to his and his codefendants. Brief for Appellee at 9 - 10 - J-S86011-16 citing N.T. Preliminary Hearing, 10/1/14, at 118-19.8 Indeed, Appellant adduced no evidence at the September 21, 2015, hearing that he was prejudiced by the amendment. Even if he had, it is clear that Appellant and his counsel were well aware of the charges, as they negotiated a plea bargain with the Commonwealth, and the plea colloquy included a recitation of the facts alleged as well as stated the criminal charges. Appellant also was reminded that no promises regarding his sentence had been made. We read such conduct by Appellant as a knowing acquiesce in the technical error and conclude that the Commonwealth provided Appellant with a sufficiently specific accusation of the crimes charged, as upon pleading guilty a defendant admits to all of the facts averred in the indictment. See Commonwealth, Department of Transportation v. Mitchell, 517 Pa. 203, 212, 535 A.2d 581, 585 (1987) (plurality). See also Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979) (stating that a guilty plea constitutes a waiver of all nonjurisdictional defects and defenses and stressing that a defendant who pleads guilty waives the right ____________________________________________ 8 Appellant has not provided the notes of testimony of the preliminary hearing for our review. “It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa.Super. 1996) (citation omitted). - 11 - J-S86011-16 to challenge anything but the legality of his sentence and the validity of his plea). Thus, despite the technical flaw, the trial court did not err in its decision to permit the Commonwealth to amend the information. With regard to Appellant’s claim the trial court erred by failing to sua sponte continue his scheduled trial in light of its decision to allow the Commonwealth to amend the Criminal Information, we note that it was not required to do so under Pa.R.Crim.P. 564. Also, Appellant admits he never sought a continuance either orally or in writing, and our review of the record confirms he neither requested additional time nor objected on the record after the trial court found the Amended Information did not result in prejudice or unfair surprise to Appellant and his codefendants. See Brief for Appellant at 17; N.T., 9/21/15, at 27. To the contrary, Appellant asked only that the accomplice liability language be stricken from the Amended Information so that he may “proceed with trial tomorrow on the original charge that he was charged with some nine months ago.” N.T., 9/21/15, at 17. On Appeal, Appellant has proffered only a bald assertion he was prejudiced by the amendment and failed to assert how he would have prepared differently for trial had a continuance been granted sua sponte. Accordingly, Appellant has waived this claim. See Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014) (stating, “the failure to make a timely and specific objection before the trial court at the appropriate stage - 12 - J-S86011-16 of the proceedings will result in waiver of the issue.” (citation omitted)); Pa.R.A.P. 302(a) (stating an issue not raised in the trial court is considered waived for purposes of appellate review). In his fourth claim, Appellant avers the trial court erred in denying his pre-sentence motion to withdraw his guilty plea filed on November 2, 2015, in light of his assertion of a plausible claim of innocence. In support of this claim, Appellant argues that through his counsel he asserted at the sentencing hearing he was “not guilty of this offense” and was under a “great deal of pressure” when he entered his plea and “said things that were not accurate.” Brief for Appellant at 20. He claims that his confusion arose, in part, from his inability to discuss with counsel the ramifications of the Commonwealth’s amendment to the Criminal Information to include a theory of accomplice liability. Id. citing N.T. Sentencing, 11/03/15, at 5-6. Relying upon Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284 (2015), Appellant reasons that “given the unique situation that [he] was placed in the day of jury selection, i.e. the delayed Amended Information, [he] stated fair and just reasons for his desire to withdraw his guilty plea, and said request should have been granted by the trial judge.” Brief for Appellant at 20. Acknowledging the fact that he had agreed to waive his opportunity to withdraw his guilty plea, Appellant posits he should not be prevented from exercising his right to do so notwithstanding. Appellant stresses he had entered an open plea and that the Commonwealth would - 13 - J-S86011-16 have had difficulty proving him guilty of first-degree murder beyond a reasonable doubt. Id. at 21-22. Under Pa.R.Crim.P. 591, a trial court may, in its discretion, allow a defendant to withdraw a guilty plea at any time before his sentence is imposed. Pa.R.Crim.P. 591(A) (“At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty.”). The standard of review that we employ in challenges to a trial court's decision regarding a pre-sentence motion to withdraw a guilty plea is well-settled: A trial court's decision regarding whether to permit a guilty plea to be withdrawn should not be upset absent an abuse of discretion. An abuse of discretion exists when a defendant shows any fair and just reasons for withdrawing his plea absent substantial prejudice to the Commonwealth. In its discretion, a trial court may grant a motion for the withdrawal of a guilty plea at any time before the imposition of sentence. Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing should be liberally allowed. The policy underlying this liberal exercise of discretion is well-established: The trial courts in exercising their discretion must recognize that before judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all constitutional rights that surround the right to trial—perhaps the most devastating waiver possible under our constitution. In [Commonwealth v.]Forbes, [299 A.2d 268 (Pa. 1973)] our Supreme Court instructed that, in determining whether to grant a pre[-]sentence motion for withdrawal of a guilty plea, the test to be applied by the trial courts is fairness and justice. - 14 - J-S86011-16 Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa.Super. 2013) (internal quotations and citations omitted). In addition, our Supreme Court in Carrasquillo recently reaffirmed the Forbes ruling, stating: there is no absolute right to withdraw a guilty plea; trial courts have discretion in determining whether a withdrawal request will be granted; such discretion is to be administered liberally in favor of the accused; and any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth. Carrasquillo, 631 Pa. at 704, 115 A.3d at 1291–1292 (footnote omitted). In Carrasquillo the Supreme Court also declared a defendant's innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for pre-sentence withdrawal of a plea. Carrasquillo, 631 Pa. at 704, 115 A.3d at 1292.9 The Court concluded that a per se approach to allowing a pre-sentence withdrawal of a guilty plea on one’s mere assertion of his innocence is unsatisfactory. Id. It further noted that in evaluating a pre-sentence request to withdraw a guilty plea, courts could consider the timing of the innocence claim. Carrasquillo., 631 Pa. at 705, 115 A.3d at 1292 citing Commonwealth v. Forbes, 450 Pa. 185, 192, 299 A.2d 268, 272 (1973) (“Obviously, the appellant, by his assertion of innocence—so early in the proceedings, i.e., one month after the initial ____________________________________________ 9 The Supreme Court arrived at the same conclusion in a companion case, Commonwealth v. Hvizda, ___ Pa. ____, 116 A.3d 1103 (2015), decided the same day. - 15 - J-S86011-16 tender of a plea,—offered a ‘fair and just’ reason for withdrawal of the plea.”) (brackets omitted). In considering this issue, the trial court stressed that Appellant had indicated when entering his guilty plea he was aware jurors and all parties were ready for trial and understood he was, therefore, giving up his right to withdraw his plea. The trial court explained it had informed Appellant that it would not grant such a motion were Appellant to file one “between now and at the time of [his] sentencing.” Trial Court Opinion, filed 3/1/16, at 12 citing N.T. Guilty Plea, 9/22/15, at 15. Accordingly, the trial court reasoned that since Appellant had waived his right to withdraw his guilty plea, it did not err in denying his subsequent motion. Id. at 14. In the alternative, the trial court asserted that even if Appellant had not waived his right to withdraw his plea, he could not have been entitled to do so for his failure to present a plausible claim of innocence or colorable demonstration that permitting withdrawal of the plea would promote fairness and justice in this matter as is required under Carrasquillo and Hvizda. The trial court reasoned that: the evidence presented at the preliminary hearing clearly place[s] him at the scene of the murder with a weapon in his hand firing at Williams. Further, eyewitness testimony was that [Appellant], along with Cook and Cosby continued to fire at Williams as he fled. Viewing [Appellant’s] claim against the totality of the evidence available reveals that his claim of innocence is implausible under the factual circumstances of this case. Trial Court Opinion, filed 3/1/16, at 15. - 16 - J-S86011-16 Initially, we note that this Court has held a trial court abused its discretion when it found a defendant waived his right to withdraw a guilty plea prior to sentencing where the defendant had entered an open plea and later asserted his innocence, and where there was no alleged prejudice to the Commonwealth if the plea were to be withdrawn. Commonwealth v. Pardo, 35 A.3d 1222, 1224 (Pa.Super. 2011). We further have held that in keeping with the dictates of Pa.R.Crim.P. 590 and 591 and our Supreme Court's liberal standard of granting pre-sentence requests to withdraw guilty pleas, a trial court may not “curtail a defendant's ability to withdraw his guilty plea via a boilerplate statement of waiver in a written guilty plea colloquy.” Id. In light of the foregoing, while we acknowledge the Commonwealth’s position that the waiver in this case was not a boilerplate waiver but, rather, was attendant to jury selection, Brief for Appellee at 16, we decline under the facts of this case to find Appellant waived his right to withdraw his guilty plea. However, relying on the most recent pronouncements of our Supreme Court in Carrasquillo and Hvizda, we find no abuse of discretion on the part of the trial court in concluding, in the alternative, that Appellant failed to assert a plausible claim of innocence or to show that permitting withdrawal of the plea would promote fairness and justice herein. Appellant entered his guilty plea on September 22, 2015, yet he did not file his motion to withdraw his plea until November 2, 2015, the day before his scheduled sentencing. Therein, he simply averred “he is not - 17 - J-S86011-16 guilty of the alleged offenses,” and that “he was under great pressure and not thinking clearly when he entered his guilty pleas on the above referenced date.” See Motion for Withdrawal of Guilty Plea, filed November 2, 2015, at ¶ 3. Such assertions in a last minute motion to withdraw a guilty plea do not amount to a colorable claim of innocence or suggest Appellant should have been permitted to withdraw his plea in the interest of justice. To the contrary, prior to filing his motion, Appellant prepared a written colloquy, and the trial court conducted an extensive discussion with Appellant in response to the latter’s inquiry as to what his sentence might be. N.T. Guilty Plea, 9/22/15, at 5-6. During this time, the trial court explained to Appellant the potential for a life imprisonment sentence should a jury convict him of first-degree murder and the ramifications of the proffered plea agreement. N.T. Guilty Plea, 9/22/15, at 5-8. Therefore, we find the trial court did not abuse its discretion when it refused Appellant’s attempted withdrawal of his plea.10 ____________________________________________ 10 Because Appellant did not demonstrate this prerequisite, we need not consider whether the withdrawal of his plea would substantially prejudice the Commonwealth. See Carrasquillo, supra, 115 A.3d at 1293 n. 9. Notwithstanding, in reliance on the tendered pleas, witnesses and jurors who were present to participate in Appellant’s trial on September 22, 2015, were dismissed. Our Supreme Court has found substantial prejudice and affirmed the denial of a defendant’s pre-sentence motion to withdraw his guilty plea where the Commonwealth dismissed numerous key witnesses in reliance upon the plea. Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982). - 18 - J-S86011-16 Finally, in an argument which consists of just one statement, Appellant avers his sentence was excessive and that the trial court failed to consider his age, his expression of remorse and the psychological report he submitted in his post-sentence motion prior to sentencing. Upon noting it never had viewed Appellant’s brief and, therefore, could not discern whether the averments he made therein met the standard set forth in Pa.R.A.P. 2119(f), the trial court assumed, arguendo, the brief was not defective and that Appellant had raised a substantial question permitting appellate review. Notwithstanding, the trial court proceeded to determine this issue lacked merit and explained it properly had considered the Sentencing Guidelines, Appellant’s Pre-sentence Investigation (PSI) report, mitigating factors, and the circumstances surrounding the crimes when fashioning Appellant’s sentence which fell within the standard range of the Sentencing Guidelines. Upon our review, we find Appellant has waived this issue. A claim the trial court failed to consider mitigating factors implicates the discretionary aspects of one’s sentence.11 See Commonwealth v. Raven, 97 A.3d 1244, 1252 (Pa.Super. 2014) (a claim that the sentencing court failed to consider mitigating factors when imposing sentence is a ____________________________________________ 11 Open plea agreements do not preclude a defendant from appealing the discretionary aspects of his sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 n. 5 (Pa.Super. 2005). - 19 - J-S86011-16 challenge to the discretionary aspects of one's sentence). It is well-settled that a challenge to the discretionary aspects of one’s sentence must be treated as a petition for permission to appeal, as the right to pursue such a claim is not absolute. Id. When considering an appellant’s challenge to the discretionary aspects of his sentence, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42. Pa.C.S.A. § 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (quotation marks and some citations omitted). Herein, Appellant disputed his sentence in a post-sentence motion and filed a timely appeal. However, Appellant’s brief fails to include the requisite Rule 2119(f) statement, and the Commonwealth has objected to this deficiency. “Because the Appellant failed to comply with Pa.R.A.P. 2119(f) and the Commonwealth objected to the omission, this Court may not review the merits of the claim[.]” Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004).12 ____________________________________________ 12 Even had Appellant included the requisite Rule 2119(f) statement in his appellate brief, we would have found this claim waived for lack of (Footnote Continued Next Page) - 20 - J-S86011-16 Judgment of sentence affirmed.13 PJ Gantman and Judge Moulton concur in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/17/2017 _______________________ (Footnote Continued) development. See Commonwealth v. Spotz, 610 Pa. 17, 157, 18 A.3d 244, 327 (2011). 13 “It is well-settled that an appellate court may affirm the decision of the trial court if there is any basis on the record to support the trial court's action. This is so even if we rely upon a different basis in our decision to affirm.” Commonwealth v. Harper, 611 A.2d 1211, 1213 n. 1 (Pa.Super. 1992) (citations omitted). - 21 - 

47 Md. App. 202 (1980) 422 A.2d 389 MARCIA S. DECKER v. GERALD H. FINK. No. 246, September Term, 1980. Court of Special Appeals of Maryland. Decided November 12, 1980. The cause was argued before THOMPSON, MOORE and LISS, JJ. Donald P. McLaughlin, with whom were Powers & McLaughlin on the brief, for appellant. William A. Ehrmantraut, with whom were Kenneth *203 Armstrong and Donahue, Ehrmantraut & Montedonico, Courtland K. Townsend, Jr., and Mannes, Meyers, Nadonley, Townsend & O'Brien on the brief, for appellee. LISS, J., delivered the opinion of the Court. In April, 1965, Marcia J. Decker, appellant, then age twenty-nine, consulted Dr. Gerald H. Fink, appellee, a practicing psychiatrist, for assistance for certain mental and emotional problems she was then experiencing. The appellant commenced a course of psychotherapy treatments which required weekly fifty minute visits to the doctor's office located in his residence. Appellant subsequently went into psychoanalysis, a more intense form of treatment, which required four visits a week. Treatment consisted of the appellant lying on a couch and relating to the appellee her innermost thoughts, emotions, dreams, desires and conflicts, the objective being to resolve these conflicts through the process of analysis. On March 7, 1977, appellant filed, in the Circuit Court for Montgomery County, a one count declaration against the appellee, claiming medical malpractice and alleging that during the course of psychoanalysis at the doctor's office he improperly manipulated the analysis for the purpose of engaging in sexual relations with the appellant, and that as a result of the appellee's actions, the appellant's mental and emotional condition worsened. The appellee filed a general issue plea and a special plea of limitations. The appellee denied a sexual relationship ever existed between the appellant and himself at any time and contended further that his professional treatment of the appellant terminated in December, 1971. On January 7, 1980, a jury trial of the case began, and at the close of appellant's case, appellee moved for a directed verdict on the grounds that the patient-physician relationship terminated in December of 1971, or alternatively, that the appellant knew or reasonably should have known of the appellee's alleged malpractice before March, 1974. The trial judge granted appellee's motion for a *204 directed verdict on March 17, 1980 finding as a matter of law that the appellant knew or in the exercise of reasonable diligence should have known of the alleged malpractice of the appellee in May of 1973, and that the appellant's declaration filed in March of 1977 was barred by limitations. It is from this judgment that appellant has filed the instant appeal. Appellant raises two questions for determination by this appeal: 1. Whether the impairment of appellant's judgment which she contends resulted from the transference phenomenon during the course of the psychoanalysis by the appellee was sufficient to toll the running of the statute of limitations? 2. Whether the trial court erred in ruling as a matter of law that the appellant knew or in the exercise of reasonable diligence should have known of the alleged malpractice of the appellee in May of 1973, and that the claim of appellant filed in March of 1977 was barred by limitations? 1. Appellant offered testimony of experts that an essential element of successful psychoanalysis is the creation of a special relationship recognized in the field of psychiatry as the transference phenomenon. That phenomenon, she contends, gives rise to an emotional reaction by the patient to the analyst which produces an ancient and subconscious parent-childlike relationship, as a result of which the patient is freed of the necessity to interact with the analyst on the level of an adult face-to-face relationship, and the patient is thus permitted to focus on her innermost thoughts and feelings which may then become subject to free association and lead to the resolution of the patient's emotional conflicts. Inherent in the transference neurosis is the development of a strong dependence by the patient upon the analyst and an extraordinary faith and trust in him which may frequently develop into a love relationship and *205 which can deprive the patient of her independent judgment and ability to distinguish the reality of her interaction with the analyst and vice versa. Further, such a phenomenon renders the patient vulnerable and susceptible to the influence and suggestion of the analyst. Appellant testified that after receiving psychotherapy and psychoanalysis from the appellee from April, 1965 to February, 1971, appellee commenced a sexual relationship with her during each and every visit to his office thereafter until the end of the summer of 1975. Early in 1971, appellee suggested that treatment be concluded at the end of that year. Regular treatment was, in fact, terminated at that time. Appellant testified that due to her strong feelings for the appellee and her emotional and psychological dependence on him because of the transference phenomenon, she was in a state of confusion and anxiety which caused her to consult another psychiatrist whom she saw from April to September of 1973. She told the new psychiatrist of the treatment and relationship between the appellee and herself. She was advised not to continue in psychoanalysis with the appellee, and that treatment of that nature could not be beneficial so long as she continued a sexual relationship with the appellee. She was referred to still another psychoanalyst whom she saw three or four times during the summer of 1973 and to whom she also related her experiences with the appellee. She was advised to continue analysis but with a female physician. She continued analysis with the female doctor from September, 1973 until August, 1976. In the meantime, appellant testified, she continued to see the appellee's at his office through the summer of 1975 and psychoanalysis and sexual activity continued at the appellee's office until that time. Appellant stopped treatment with the female physician in August of 1976 and filed suit against the appellee on March 7, 1977. Maryland Code, Courts and Judicial Proceedings Article, Section 5-101 (1980) provides "a civil action at law shall be filed within three years from the date it accrues...." The statute of limitations as adopted by the Legislature of the State of Maryland reflects what is deemed an adequate *206 period of time in which a "person of ordinary diligence" should bring his action. Walko Corp. v. Burger Chef Systems, Inc., 281 Md. 207, 378 A.2d 1100 (1977). The legislative policy underlying statutes of limitation include the encouragement of promptness in instituting actions, the suppression of stale or fraudulent claims, and most of all, the providing of the elements of fairness to defendants. Judge Levine, quoting from Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137 (1945), in Walko, supra, said: Statutes of limitation find their justification in necessity and convenience rather than logic. They represent expedience, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.... They represent a public policy about the privilege to litigate. [281 Md. at 210.] Statutes of limitation are to be strictly construed, the courts refusing to give such statutes a strained construction to evade their effect. See McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 40 A.2d 313 (1944). There are exceptions to the general statutory three year limitation period which are contained in Section 5-101 of the Courts and Judicial Proceedings Article. Two exceptions are statutory and are found in Sections 5-201 and 5-203. Section 5-201 states, in pertinent part, as follows: Persons under a disability. (a) Extension of time. — When a cause of action subject to a limitation under Subtitle 1 accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed. *207 The statutory disabilities which toll the statute are infancy or lunacy. Rettaliata v. Sullivan, 208 Md. 617, 119 A.2d 420 (1956). It is generally recognized that a person may be under the legal disability of insanity, or unsoundness of mind, within the meaning of the exception to the statute of limitations, when the disability is of such a nature as to show him unable to manage his business affairs or estate, or to comprehend his legal rights or liabilities. Roberts v. Stith, 383 P.2d 14 (Okla. 1963); Hurd v. County of Alleghany, 39 App. Div.2d 499, 336 N.Y.S.2d 952 (1972). The term "disability" as used in the applicable Maryland statutes has been held to mean "... the general disability of lunacy or infancy as to the care of property and the safeguarding of rights." Funk v. Wingert, 134 Md. 523, 527, 107 A. 345 (1919). In McDonald v. Boslow, 363 F. Supp. 493 (D. Md. 1973), the plaintiff, while confined at the Maryland Patuxent Institution, brought a Civil Rights Act suit against the director of Patuxent and others alleging violation of his constitutional rights, particularly infliction of cruel and unusual punishment in the nature of beatings and denial of medical attention. The court, applying Maryland law in granting the defendant's motion to dismiss, held that commitment of the plaintiff to Patuxent Institution did not constitute an adjudication of non compos sufficient to toll the statute of limitations. The court in analyzing the disability exception to the statute of limitations stated: In short, the purpose ... behind Art. 57, Section 2 [Section 5-201 of the Courts Article] is, the protection of those who suffer from a debilitating incapacity to such an extent as to render them incapable of caring for themselves or their property, and as to render their assent to a contract nugatory. It is to that class of individuals to which the benefit of a tolling of the statute of limitations was addressed, i.e., that group of individuals whose cognitive functioning was so severely impaired as to render them incapable of husbanding a presently existing, known right. [363 F. Supp. at 496.] *208 Appellant seeks to have this Court add the category of "impaired judgment" to the list of disabilities which will toll the running of the statute of limitations. She offers no authority for that proposition, nor have we been able to find such authority. Even if there were such authority, the factual testimony of the three psychiatrists who treated the appellant during 1973 does not support her contention that she was the victim of impaired judgment which prevented her from realizing that she had a malpractice action against the appellee. Dr. Gross testified that when he saw the appellant she was not psychotic, not hallucinating, but could make decisions. In his professional analysis of the appellant's mental condition, he said: Q. Now, when she came to you, as I understand it, there was no disassociation, no lack of touch with reality and she was able to make decisions on her own, is that correct? A. Yes, basically. Q. I don't want to be just qualified by your term basically. Isn't this what you testified to in your deposition on page 5: "what about decision-making? Was she able to in your opinion, able to make decisions regarding her own welfare, her interests, and things of that nature?" and your answer was "yes." Wasn't that your testimony at that time? A. I presume it was. * * * * Q. You had mentioned on direct examination that you performed a mental status exam, is that correct? A. Yes. Q. And let me correct — you can correct me if I'm wrong, but your mental status exam, as I understand your testimony, indicated she had no delusions, no hallucinations, that she could *209 relate with people well or good I think was your expression, that she was in touch with reality, could make decisions. Is there anything else you want to add to that? A. No. The record extract discloses that essentially similar testimony as to the appellant's medical and mental condition was given by the other two psychiatrists who saw and treated the appellant in 1973. Appellant's impaired judgment, if it existed, is not sufficient legal justification for failing to file her medical malpractice claim against the appellee within the time allowed by the statute of limitations. 2. Section 5-203 of the Courts Article provides for an exception to the general statutory period in those instances where a party is kept in ignorance of a cause of action by the fraud of an adverse party. That exception is not applicable in this case, and we shall therefore not discuss the legal principles governing those circumstances. The Court of Appeals enunciated an exception to the strict construction of the limitation statute in the medical malpractice case of Hahn v. Claybrook, 130 Md. 149, 100 A. 83 (1917). In that case, the Court adopted the "discovery test" which provides that the statute begins to run from the time of the discovery of the alleged injury or when it should have been discovered by the exercise of due diligence. The discovery exception has been frequently applied in medical malpractice cases in this State since that time. The rule is that when there is a continuing course of treatment the statute does not begin to run until the treatment is terminated. A corollary to this rule is that, if during the course of treatment, the patient learns or should reasonably have learned of the injury sustained by the patient then the statute runs from the time of knowledge actual or constructive. Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d *210 825 (1966); Jones v. Sugar, 18 Md. App. 99, 305 A.2d 219 (1973).[1] As we stated in Jones, There is no doubt but that in medical malpractice cases in this jurisdiction, the limitation period starts to run when the patient discovers, or by reasonable diligence should have discovered, the negligent act which caused his injury, or in other words that he may have the basis for an actionable claim, whether or not there is a continuing course of treatment. [18 Md. App. at 105.] There is no statutory definition of when a medical malpractice cause of action accrues, and in the absence of such a definition the resolution of that question is left to judicial determination. Goldstein v. Potomac Electric Power Co., 285 Md. 673, 404 A.2d 1064 (1979); Harig v. Johns Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); James v. Weisheit, 279 Md. 41, 367 A.2d 482 (1977). In Jones, supra, we cited the philosophy which required the establishment of the discovery rule and the role of the trial judge in applying the rule. Quoting from Lopez v. Sawyer, 62 N.J. 267, 271, 300 A.2d 563 (1973), we said: The discovery rule is essentially a rule of equity. It has been said that in equity lies its genesis. [Citation omitted.] Like so many other equitable doctrines it has appeared and is developing as a means of mitigating the often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law. On the face of it, it seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless.... It may also be unjust, however, to compel a person to defend a lawsuit long after the alleged injury has occurred, when memories have faded, witnesses have died, and evidence has been lost. After all, *211 statutes of limitation are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant. [Citation omitted.] So in each case the equitable claims of opposing parties must be identified, evaluated and weighed. Where, as is often the case, they cannot be wholly reconciled, a just accommodation must be reached. We think this can better be done by a judge than a jury. [18 Md. App. at 105-06, n. 4.] Appellant contends the law governing the granting of a motion for directed verdict to be from Campbell v. Jenifer, 222 Md. 106, 159 A.2d 353 (1960): [The] Court must ... resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated the evidence must be considered in the light most favorable to the plaintiff. [222 Md. at 110.] Generally that would suffice; however, in Moy v. Bell, 46 Md. App. 364, 368-69, 416 A.2d 289 (1980), we pointed to an added dimension when such motion is predicated upon a purely legal question (such as limitations) which would end the case if, from the plaintiff's own case, that issue is found factually to apply. In such instance the judge becomes the factfinder for purposes of determining the applicability of the statute of limitations and we may not set aside his factual findings unless he was clearly in error. Id. at 369; Md. Rule 1086. Applying that standard, there was evidence before the trial court to establish that in May, 1973 the appellant knew or should have known that the appellee's alleged treatment of her and his alleged sexual involvement with her was grossly unprofessional, improper, and harmful to her mental and emotional well being. Appellant admitted that she was so advised at the time she discussed her situation with each of the three psychiatrists with whom she met. The psychiatrist who treated her from April until *212 September of 1973 testified that he informed her in May of 1973 that a sexual relationship with the appellee was inappropriate conduct, that she should not continue seeing the appellee, and that she should terminate the relationship. He stated that in his opinion such conduct on the part of the appellee, if it occurred, was a violation of medical standards. When asked if the appellant was able to understand the ramifications of continuing the relationship and his advice to terminate it, he testified that appellant understood and appreciated what he was saying. The trial judge had evidence before him that the appellant knew or should have known in May of 1973 that the alleged sexual relationship between appellee and appellant was inappropriate medical conduct and was detrimental to her mental health and well being. Once this was established, there was no legal excuse for her failure to enter her medical malpractice action against the appellee until ten months beyond the expiration of the three year limitation period. Judgment affirmed, costs to be paid by appellant. NOTES [1] United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352 (1980).

438 F.Supp. 613 (1977) UNITED STATES of America v. Alfred Henry MANUSZAK a/k/a Sassy Doc. Crim. No. 73-647. United States District Court, E. D. Pennsylvania. May 25, 1977. Addendum To Opinion July 13, 1977. *614 Joel M. Friedman, Philadelphia Strike Force, Philadelphia, Pa., for plaintiff. Donald J. Goldberg, Philadelphia, Pa., for respondent. OPINION DITTER, District Judge. The question presented in this case is whether probation may be revoked upon the basis of court-authorized wiretap evidence without first giving the probationer an opportunity to litigate the validity of the wiretap. Reluctantly, I conclude that it may not. *615 On January 30, 1974, respondent, Alfred Henry Manuszak, also known as "Sassy Doc," plead guilty to operating an illegal gambling business in violation of 18 U.S.C. § 1955. I imposed a fine of $4,000., suspended sentence of imprisonment, and placed Manuszak on probation for a period of three years upon the condition, inter alia, that he "refrain from any unlawful conduct." Subsequently, on January 27th of this year, the government petitioned to have Manuszak's probation revoked on the grounds that he has continued to engage in illegal gambling activities. The evidence upon which the government intends to rely at the revocation hearing consists of a telephone conversation between Manuszak and another individual which was intercepted pursuant to a wiretap order initially entered by Judge Broderick and extended by Judge Newcomer. After the petition was filed Manuszak requested that the government supply him with copies of the original and extension wiretap applications, orders, and supporting affidavits so that he might file a motion to suppress the intercepted conversations. Since Local Rule of Criminal Procedure 16(b) requires that motions to suppress evidence derived from electronic surveillance be heard by the judge who originally authorized it, in effect respondent requests this court to stay his probation revocation hearing until after Judge Broderick has ruled on his motion to suppress. The government resists disclosure[1] of the requested items and opposes staying the revocation hearing on the grounds that these measures are unnecessary since, in its view, respondent is not entitled to test the validity of wire interceptions as a prerequisite to the use of evidence derived therefrom in a probation revocation proceeding. Two arguments are advanced by the government in support of its position. First, it contends that the legality of the interceptions is simply immaterial because the exclusionary rule does not apply to probation revocation proceedings. Alternatively, the government contends that even if the exclusionary rule does apply to probation revocation proceedings, this court's review of the legality of the interceptions should be limited to an in camera inspection of the court orders to see if they are facially valid.[2] The respondent takes issue with both of the government's arguments. At the outset it is important to note that respondent does not and could not rely on the exclusionary rule developed by the courts as a remedy designed to safeguard fourth amendment rights through its supposed deterrent effect. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Numerous cases have held that this judicially created doctrine has no application in the probation revocation context. See, e. g., United States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir. 1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (parole revocation). Rather, respondent relies on the statutory exclusionary rule contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Section 802, as amended, 18 U.S.C. § 2515[3] which, he contends, provides a significantly *616 broader exclusionary remedy where illegal electronic surveillance is involved than does the judicially created exclusionary rule. The government disputes that this statute has a broader sweep than its judicially created counterpart, yet in support of its position it relies primarily on cases which have refused to apply the judicially created rule to non-wiretap evidence in a variety of contexts. These cases are not controlling in the matter at hand.[4] The only authority supporting the government's position that the statutory exclusionary rules does not apply to probation revocation proceedings is United States v. Caron, 474 F.2d 506, 509-10 (5th Cir. 1973), in which the court held that Section 2515 did not proscribe the use of evidence obtained by unlawful wiretapping for impeachment purposes.[5] In reaching its decision on the statutory point the court relied on a certain passage in the legislative history of Title III as evidencing Congress' intent that Section 2515 was not to expand the exclusionary rule beyond the confines of the judicially-created doctrine. The passage in question, contained in the Senate Report on the bill that included Title III, states: Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. It provides that intercepted wire or oral communications or evidence derived therefrom may not be received in evidence in any proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State, where the disclosure of that information would be in violation of this chapter. The provision must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. It applies to suppress evidence directly (Nardone v. United States, 58 S.Ct. 275, 302 U.S. 379 [82 L.Ed. 314] (1937)) or indirectly obtained in violation of the chapter. (Nardone v. United States, 60 S.Ct. 266, 308 U.S. 338 [84 L.Ed. 307] (1939).) There is, however, no intention to change the attenuation rule. See Nardone v. United States, 127 F.2d 521 (2d), certiorari denied, 62 S.Ct. 1296, 316 U.S. 698 [86 L.Ed. 1767] (1942); Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471 [9 L.Ed.2d 441] (1963). Nor generally to press the scope of the suppression role beyond present search and seizure law. See Walder v. United States, 74 S.Ct. 354, 347 U.S. 62 [98 L.Ed. 503] (1954). S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Adm.News, pp. 2184-85 (emphasis added), quoted in Caron, supra, at 509-10. The problem with the quoted statement is that it is in fundamental conflict with the language of the statute itself, which plainly does extend the scope of the suppression remedy beyond conventional search and seizure law by providing that unlawfully intercepted communications may not be received in evidence "in any trial, hearing or other proceeding in or before any court, grand jury, department, . . . [etc.]" *617 (Emphasis added.) The most obvious example of the expanded scope of the statutory exclusionary rule is found in the grand jury context. It traditionally has been the rule that the grand jury may consider incompetent or illegally obtained evidence and that an indictment based upon such evidence is not subject to challenge. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Yet Section 2515 specifically excludes from use by the grand jury evidence derived from unlawful electronic surveillance. See Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). While disagreeing with the majority over the right of a grand jury witness to raise Section 2515 as a defense to a contempt charge brought for failure to answer questions based on information obtained through allegedly unlawful wiretapping, even the dissenters in Gelbard agreed that the statute "prohibits the use of illegally overheard . . . communications before grand juries as well as other governmental bodies." Id. at 72-73, 92 S.Ct. at 2373-74 (Rehnquist, J., dissenting). In Calandra, Mr. Justice Powell, who was one of the dissenters in Gelbard, offered the following explanation for the differing results reached in the two cases: The dissent's reliance on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), is misplaced. . . The Court's holding [in Gelbard] rested exclusively on the interpretation of Tit. III, which represented a congressional effort to afford special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance. There was no indication, in either Gelbard or the legislative history, that Tit. III was regarded as a restatement of existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. III "unquestionably works a change in the law with respect to the rights of grand jury witnesses . . ." 408 U.S. at 70, 92 S.Ct. at 2372. Calandra, supra at 355 n. 11, 94 S.Ct. at 623 (emphasis added). Taken together, the combined force of Gelbard, Calandra, and the plain language of Section 2515 are sufficiently compelling to override the single passage in the legislative history relied on in Caron[6] and to convince me that the statute does indeed create a broader exclusionary rule than the judicially-created one. And since it cannot be disputed that a probation revocation proceeding is a "proceeding" within the meaning of Section 2515, I conclude that the statutory exclusionary rule is applicable here. The government's fallback position is that even if the exclusionary rule does apply to probation revocation proceedings, the respondent is not entitled to a fullblown suppression hearing on the legality of the interceptions. Rather, relying on In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974),[7] the government contends *618 that the court should conduct only a limited in camera inspection of the interception order and supporting papers to determine their facial validity. In Persico the court adopted the position espoused in Justice White's concurring opinion in Gelbard and held that a grand jury witness was not entitled to a full suppression hearing prior to answering questions based on electronic surveillance where the government produced a court order authorizing such surveillance. The court concluded that only where the illegality of the surveillance may be established without resort to a suppression hearing, that is where the government either has admitted its illegality or failed to produce a court order or where the illegality has been determined in a prior judicial proceeding, could a grand jury witness rely on Section 2515 as a defense to a contempt charge. Id. at 1161. The government's reliance on Persico here is misplaced. The Persico court based its decision on legislative history revealing Congress' understanding that the statutory exclusionary rule contained in Section 2515 would be limited by Section 2518(10)(a), which governs the class of persons entitled to make a motion to suppress and that the latter section did not extend to grand jury witnesses. Id. But while the legislative history of Section 2518(10)(a) clearly does show an intent to exclude grand jury witnesses from the class entitled to make a motion to suppress,[8] it evinces no similar intent with respect to a person facing probation revocation. More importantly, the legislative history of Section 2518(9) affirmatively shows that a probationer subject to revocation proceedings may invoke the suppression motion provided for in Section 2518(10)(a). Paragraph 9 provides that the contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any Federal or State trial, hearing, or other proceeding unless each party not less than 10 days before the trial has been furnished with a copy of the court order under which the interception was authorized or approved. "Proceeding" is intended to include all adversary type hearings. It would include a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence. It would not include a grand jury hearing. Compare [United States v.] Blue, 384 U.S. 251, 86 S.Ct. 1416, [16 L.Ed.2d 510] (1966). The 10-day period is designed to give the party an opportunity to make a pretrial motion to suppress under paragraph (10)(a), discussed below. Compare Segurola v. United States, [275 U.S. 106,] 48 S.Ct. 77, [72 L.Ed. 186] (1927). Where it is not possible to furnish the party the information 10 days before trial, and he would not be prejudiced, the judge may waive the requirement. Such a situation might arise, for example, when an intercepted communication became relevant only as a *619 result of the character of a defense presented by the defendant. Ordinarily, prejudice would be shown only where it was established that the trial could not be reasonably recessed in order that the motion to suppress could be fully heard or that the granting of a mistrial rather than excluding the evidence would be grossly unfair. S.Rep.No.1097, supra, 1968 U.S.Code Cong. & Adm.News at pp. 2194-95 (emphasis added). For the reasons stated above I conclude that the respondent is entitled to litigate the validity of the wiretaps in question prior to their use as evidence at his probation revocation hearing. I recognize and fully agree[9] with the government that the reasons for not applying the judicially-created exclusionary rule in the probation revocation context are equally applicable here and that the delay inherent in the statutory suppression remedy is likely to be every bit as inimical to the rehabilitation objectives of probation policy as it would be to the proper functioning of the grand jury. Nonetheless Congress has spoken and I am not free to disregard its clear mandate. Relief from perceived undesirable effects of the statutory exclusionary rule must be sought through legislative, not judicial action.[10] The government's petition to revoke Manuszak's probation will be stayed pending resolution of the motion to suppress which respondent forthwith shall file before Judge Broderick. ADDENDUM TO OPINION The government has asked that I reconsider my opinion of May 25, 1977, in the above matter. In that opinion I held that before probation may be revoked on the basis of evidence obtained through court-authorized electronic surveillance, the probationer must be given the opportunity to litigate the validity of the wiretap.[1] I have engaged in the requested reconsideration and will abide by my earlier decision. My reasons follow. The specific portion of my prior opinion with which the government takes issue is footnote 10, which reads as follows: (10) The government also resists disclosure of the court orders and supporting papers on the grounds that it will impair an on-going grand jury investigation by revealing the identity of actual or prospective grand jury witnesses who might then be subjected to pressure to refrain from testifying or to testify falsely. While I am sympathetic to the government's plight, the fact remains that it has sought to revoke respondent's probation and therefore under Section 2518(9) he has the right to be furnished with a copy of the court order and accompanying application. Unlike Section 2518(8)(d), dealt with by Judge Fogel in Application of United *620 States, [413 F.Supp. 1321 (E.D.Pa. 1976)] which gives the court discretion to deny access to the order and application, Section 2518(9) mandates that these items be made available to a party facing . . . "any proceeding," although Section 2518(10)(a) does give the court some discretion to deny access to the intercepted communications themselves. The government objects to the intimation in the above footnote that courts have no discretion to deny Section 2518(10)(a) suppression movants access to the wiretap application and order. It is the government's view that such discretion does exist and it therefore requests that I "strike footnote 10 from [my] Opinion and hold that Section 2518(9) does not divest the hearing judge of his discretion in determining what disclosure is appropriate on a motion to suppress."[2] In support of its position that Section 2518(9) does not require disclosure of the wiretap application and order, the government first argues that this section is a notice and not a disclosure provision. The plain language of the statute is to the contrary, however. The statute does not say that a party facing a trial, hearing or other proceeding must be given notice of the wiretap; it says that he must be "furnished with a copy of the court order, and accompanying application." 18 U.S.C. § 2518(9) (emphasis added).[3] See United States v. Ripka, 349 F.Supp. 539, 541-42 (E.D.Pa. 1972), aff'd mem. Appeal of Manuszak, 480 F.2d 919 (3d Cir.), cert. denied sub nom., United States v. Manuszak, 414 U.S. 979, 94 S.Ct. 285, 38 L.Ed.2d 223 (1973). The government cites a number of cases which have held that failure to comply with various disclosure or inventory provisions of Title III do not necessarily require suppression of evidence derived from electronic surveillance. These cases[4] do not support the government's position. In relying on them it has failed to distinguish between the requirements of the Act and the remedy for failure to comply with those requirements. For example, in United States v. Kohne, supra, the court held that the failure to serve the order and application on the defendants ten days prior to trial did not require suppression of the wiretap evidence. But the court most certainly did not hold that the defendants had no right to obtain these documents from the government prior to moving for suppression. In fact the whole basis for the court's decision was that the defendants had suffered no prejudice since they had been provided with the application and order prior to the suppression hearing and had utilized them in cross-examining the government's witnesses at this hearing. 358 F.Supp. at 1057 and n. 4. Noting that Section 2518(10)(a) enumerates in general terms the issues which may be raised in a motion to suppress but does not specify the nature of the proceeding which must be held to resolve these issues, the government next argues that this section does not require that an evidentiary hearing be held in every case. See United States v. Losing, 539 F.2d 1174 (8th Cir. 1976). I agree with this much of the government's argument and to the extent *621 my prior opinion may have suggested that an evidentiary hearing is mandatory in every case, I now expressly declare that it was not my intention to do so.[5] However, I do not agree that the court's discretion as to whether or not to hear evidence means that the court also has discretion to deny disclosure of the wiretap applications and order mandated by Section 2518(9) or that the court may determine the validity of the electronic surveillance ex parte by an in camera submission of these documents. Again, the case relied on by the government to support its position does not do so. Losing, supra, holds only that the court has discretion to deny a hearing on the suppression motion. It makes no suggestion that a similar discretion exists with respect to disclosure of the application and order and in fact, as in Kohne, supra, the defendants in Losing had been provided with the application and order prior to moving to suppress. See 539 F.2d at 1176-77. Section 2518(10)(a) provides that a motion to suppress may be made on the grounds that: (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which [the communication] was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of interception or approval. And the purpose of Section 2518(9) is not, as the government contends, merely to provide a person facing a "proceeding" with notice of the wiretap so that he can move to suppress; it is "designed to give the party an opportunity to make a pre-trial motion to suppress." S.Rep.No.1097, supra, 1968 U.S.Code Cong. & Admin.News, pp. 2194-95 (emphasis added). But how can a party realistically have an opportunity to move to suppress on one or more of the statutory grounds if all he is told is that a wiretap has occurred and that evidence derived therefrom will be used against him in the forthcoming proceeding? Unless the legislative history is to be interpreted as contemplating that a party may be given only the opportunity to file a conclusory motion in language tracking that used in Section 2518(10)(a), Section 2518(9) must be construed as making disclosure of the application and order mandatory. Losing also supports this interpretation of Section 2518(9). The Losing court adopted the criterion set forth in United States v. Ledesma, 499 F.2d 36 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974), for determining when a hearing on a suppression motion is required: Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required. Id. at 39, quoted in Losing, supra at 1177. It is difficult to believe that a party would ever be able to file "definite, specific, detailed and nonconjectural" moving papers so as to obtain a hearing if he is not provided with a copy of the wiretap application and order. This is true regardless of the grounds upon which the motion is based. Without access to the wiretap application the party against whom the government is proceeding would not know the information presented to the judge who approved the interceptions and could not challenge its accuracy nor could his counsel make an intelligent assessment of whether *622 the application established probable cause.[6] The party therefore would be in no position to assert (except in a conclusory fashion) that the communications were unlawfully intercepted. Denial of access to the application and order also would effectively preclude motions to suppress based on the second and third statutory grounds. Obviously, a party cannot argue that the wiretap authorization is facially insufficient unless he has an opportunity to review the face of the authorization. And to determine whether it would be fruitful to argue that the interception was not made in conformity with the order the party must be able to compare the terms of the order with the reality of the manner in which the interception was carried out. This, again, necessitates that the party have access to the order.[7] I recognize that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), provides a modicum of support for the government's position that the validity of the wiretap may be determined by the court in camera,[8] but that case involved a grand jury witness and I agree with In re Persico, 491 F.2d 1156, 1161-62 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), that such a person is not entitled to make the Section 2518(10)(a) suppression motion. I therefore find Lochiatto distinguishable from the case sub judice.[9] The government's third argument is that construing Section 2518(9) as a mandatory disclosure provision is inconsistent with Section 2518(8)(b) which provides for sealing of the wiretap application and order and disclosure only upon a showing of good cause.[10] The attempted analogy between *623 Sections 2518(8) and 2518(9) must fail, however, because the two sections do not operate in the same context. Section 2518(8) establishes a procedural framework for providing notice to those who have been the target of an actual or attempted[11] wiretap or whose conversations have been overheard regardless of whether or not they have become the subject of a specific charge of wrongdoing.[12] See Petition of Leppo, 497 F.2d 954, 956 (5th Cir. 1974); United States v. Best, 363 F.Supp. 11, 19-21 (S.D.Ga.1973); United States v. Lanza, 341 F.Supp. 405, 420-21 (M.D.Fla.1972); Application of United States, supra. However, Section 2518(9) applies only to those who are facing a trial or other adversary proceedings, that is those against whom the government has sought the infliction of some form of punishment. This distinction was recognized by the Ninth Circuit in United States v. Chun, 503 F.2d 533 (1974). Section 2518(8)(d) was clearly meant to provide this post-use notice. The Senate Report on that subparagraph states: "Yet the intent of the provision is that the principle of post-use notice will be retained." 1968 U.S.Code Cong. and Adm.News at 2194. Such post-use notice functions to provide individuals with the opportunity to exercise their constitutional right to challenge the validity of a wiretap, and, thereby, the admissibility of evidence obtained or derived therefrom. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Section 2518(9) performs a dual function. First, it operates to provide the requisite post-use notice to aggrieved persons in those instances where it is not supplied by subparagraphs 2518(8)(d). United States v. Ripka, 349 F.Supp. 539, 541-542 (E.D.Pa.1972). At the same time it also operates to provide additional information to an individual who has received § 2518(8)(d) notice, and who is subsequently indicted, so that he may be in a better position to attack the validity of the initial order. Id. at 537 n. 6. (emphasis added). In view of the consequences facing persons covered by Section 2518(9), i. e. the potential loss of liberty, it is not at all surprising that Congress would provide them with significantly greater procedural protections than those who have suffered only the invasion of privacy entailed in the wiretap itself or the affront to dignity which may result from learning one is under government suspicion of wrongdoing.[13] Finally the government argues that it is incongruous to require disclosure of the *624 application and order and at the same time leave disclosure of intercepted communications or evidence derived therefrom to the discretion of the court. Even if this contention were entirely accurate, I would be forced to reject it because the plain language of Sections 2518(9) and 2518(10)(a) draw just such a distinction with respect to disclosure of these items.[14] In any event, the distinction appears not to be as irrational as the government suggests. First, Congress may well have believed that in the usual case information actually gathered through electronic surveillance would be more likely to be of a sensitive or highly personal character than information contained in the application and order for the interception and therefore concluded that the trial judge should have some leeway with respect to the former items but not the latter. Secondly, the information contained in the application and order usually will be of much greater importance to a party contemplating the filing of a suppression motion than the intercepted communications themselves. As noted previously access to intercepted communications would seem to be important only when the suppression motion is based on the third statutory ground, i. e., that the interception was not made in conformity with the application or order, and even then only when the nature of the communications would be relevant to determining the motion.[15] The application and order, however, establish the very foundation upon which any surveillance was conducted in the first place and upon which its legality must stand or fall. Thus, a party must have access to these documents in order to make any kind of effective assessment of the surveillance's validity no matter what grounds may ultimately be relied upon to support a suppression motion.[16] In summary then, I conclude that Section 2518(9) makes disclosure of the wiretap application and order mandatory to those, such as respondent Manuszak, within the class entitled to make a Section 2518(10)(a) suppression motion. I further conclude that the validity of the wiretap may not be determined in an ex parte proceeding by the court's reviewing these documents (i. e. the application and order) in camera, although the court may review intercepted communications which are not part of the application in camera if it becomes necessary to do so. After the application and order have been disclosed to the party facing a "proceeding" as explained in the legislative history of Section 2518(9) he is then entitled to move for suppression on any of the grounds enumerated in Section *625 2518(10)(a). While the decision to hold an evidentiary hearing on the suppression motion rests with the discretion of the judge hearing it depending upon the issues raised therein, the motion must be decided in an adversary context; that is the movant must at least be given an opportunity to present written or oral arguments in support of his position. I recognize that where the wiretap application and order contain sensitive information the disclosure of which could prejudice an ongoing investigation, the government may be put to the hard choice of either foregoing its proceeding against the defendant or risking the frustration of its investigation. But this is a choice which Congress has in plain language decreed the government must make when it seeks to deprive a person of his liberty on the basis of wiretap evidence. In truth it is not much different than a number of other difficult decisions which the government must make in pursuing a criminal prosecution, such as when it must decide whether to proceed with a case that will require revelation of the identity of an informant. Cf. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). ORDER AND NOW, this 13th day of July, 1977, having reconsidered this court's opinion of May 25, 1977, in the above matter, it is hereby ordered that the government's motion to strike footnote 10 from the opinion is denied. NOTES [1] The government has allowed counsel for the respondent to listen to the tape recording of the conversation upon which it will rely in seeking revocation of Manuszak's probation and also has provided counsel with a transcript of this conversation. [2] The government has supplied the court with copies of the court orders and supporting papers for in camera review. Presumably it is the government's position that since only the facial validity of the court orders is at issue, I may conduct such review without violating the spirit of Local Rule 16(b). In view of my disposition of this case, I have no occasion to decide the correctness of the government's position. Cf. In re Proceedings to Enforce Grand Jury Subpoena, 430 F.Supp. 1071, at 1076 (E.D.Pa., filed April 14, 1977) (Lord, C. J.). [3] 18 U.S.C. § 2515 provides: Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. [4] The only cases cited by the government that involved electronic surveillance are Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) and United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971). However, both of those cases involved electronic surveillance that was conducted prior to the effective date of Title III and were not decided with reference to Section 2515. [5] The precise question presented to the Fifth Circuit in Caron was the propriety of the district court's action in allowing the government to utilize the wiretap evidence for impeachment purposes without a prior evidentiary hearing on its validity. However, the appeals court decided the case on the grounds that even if the tap "had been found . . . unlawful, use of the tape recordings solely for impeachment purposes would not be proscribed." 474 F.2d at 508. [6] Arguably the result reached in Caron may be supported on the ground that the citation of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), in the legislative history is a particularly persuasive indicia that Congress did not intend to preclude impeachment use of evidence obtained through unlawful electronic surveillance. Another basis upon which Caron arguably is supportable is that the commission of perjury is so offensive to judicial integrity that the court's own interest in neutralizing its effects is strong enough to overcome all but a specific legislative command that otherwise reliable evidence not be used for impeachment purposes. Cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Obviously, neither of these rationales apply to the government's use of unlawfully obtained wiretap evidence to support its case in chief in a probation revocation hearing. [7] See also In re Grand Jury Proceedings (Worobyzt), 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976); Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 450 (1975); In re Vigorito, 499 F.2d 1351 (2d Cir. 1974), cert. denied, 419 U.S. 1056, 95 S.Ct. 640, 42 L.Ed.2d 654 (1975). But see In re Lochiatto, 497 F.2d 803 (1st Cir. 1974). Cf. Application of United States Authorizing Interception, 413 F.Supp. 1321 (E.D.Pa.1976). [8] (10)(a) provides that any aggrieved persons, as defined in section 2510(11), discussed above, in any trial hearing or other proceeding in or before any court department, officer, agency, regulating body or other authority of the United States, a State, or a political subdivision of a State may make a motion to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom. This provision must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. ([United States v.] Blue, [384 U.S. 251,] 86 S.Ct. 1416, [16 L.Ed.2d 510] (1965).) There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding. S.Rep.No.1097, supra, 1968 U.S.Code Cong. & Adm.News at p. 2195. [9] Cf. United States v. Iannece, 405 F.Supp. 599, 606 (E.D.Pa.1975), aff'd sub nom., United States v. Manuszak, 532 F.2d 311 (3d Cir. 1976). [10] government also resists disclosure of the court orders and supporting papers on the grounds that it will impair an on-going grand jury investigation by revealing the identity of actual or prospective grand jury witnesses who might then be subjected to pressure to refrain from testifying or to testify falsely. While I am sympathetic to the government's plight, the fact remains that it has sought to revoke respondent's probation and therefore under Section 2518(9) he has the right to be furnished with a copy of the court order and accompanying application. Unlike Section 2518(8)(d), dealt with by Judge Fogel in Application of United States, supra, which gives the court discretion to deny access to the order and application, Section 2518(9) mandates that these items be made available to a party facing . . . "any proceeding," although Section 2518(10)(a) does give the court some discretion to deny access to the intercepted communications themselves. [1] The specific issues I decided in the earlier opinion were (1) that the statutory exclusionary rule contained in 18 U.S.C. § 2515 applies to probation revocation proceedings and (2) that a probationer facing revocation is among the class of persons entitled to make the statutory motion to suppress provided for by 18 U.S.C. § 2518(10)(a). [2] Memorandum in Support of Government's Motion for Reconsideration at 2. [3] Section 2518(9) gives the trial judge discretion to waive the ten-day advance disclosure period but not to dispense with disclosure entirely. In fact the legislative history of the section reveals that even failure to comply with this ten-day provision will require exclusion of the wiretap evidence unless the motion to suppress can be "fully heard" anyway. S.Rep.No. 1097, 90th Cong. 2d Sess., 1968 U.S.Code Cong. & Admin.News, p. 2195. [4] See United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 673-74, 50 L.Ed.2d 652; United States v. Johnson, 539 F.2d 181, 194 and n. 53 (D.C. Cir. 1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977); United States v. Vento, 533 F.2d 838, 864 (3d Cir. 1976); United States v. Iannelli, 477 F.2d 999, 1003 (3d Cir. 1973), aff'd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Kohne, 358 F.Supp. 1053, 1057 (W.D.Pa.1973), aff'd mem. Appeal of Jabella, 485 F.2d 682 (3d Cir.), cert. denied, 417 U.S. 918, 94 S.Ct. 2624, 41 L.Ed.2d 224 (1974). [5] As noted earlier, see note 1 supra, in my previous opinion I held only that a probationer facing revocation is entitled to make the statutory motion to suppress. See slip op. at 618. However, on page 617 of that opinion I stated, "The government's fallback position is that even if the exclusionary rule does apply to probation revocation proceedings, the respondent is not entitled to a fullblown suppression hearing on the legality of the interceptions." As the context makes clear, this statement was intended merely to reflect the government's position on the necessity of a hearing and not to suggest that I felt a hearing was mandatory. [6] Contrary to the government's argument, supplying petitioner with a transcript of the conversation it intends to rely on at the revocation hearing is no substitute for furnishing the application and order because the transcript of what was actually overheard would be of no assistance in determining if there was probable cause for the interception in the first place. [7] Where the suppression motion is based upon the manner in which the interception was carried out, i. e. that it was not in conformity with the order of authorization, it is possible that the movant will desire access to some or all of the intercepted communications in addition to the application and order. As footnote 10 of my original opinion points out, disclosure of the communications themselves is committed to the court's discretion. [8] Unlike the Second, Fifth and Ninth Circuits, see In re Persico, supra; In re Grand Jury Proceedings (Worobyzt), 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976); Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 450 (1975) the First Circuit in Lochiatto held that Section 2518(10)(a) does extend to a grand jury witness facing contempt proceedings. 497 F.2d at 806-07 & n. 7. Since the court also held that the validity of the wiretap could be determined in camera if the district judge, in his discretion, determined that disclosure would prejudice the government, the decision arguably would support using the same procedure here by analogy. However, as noted in the text, I agree with the courts that have held Section 2518(10)(a) inapplicable to grand jury witnesses and therefore find the analogy unpersuasive. [9] The government also relies on Justice Stewart's concurring opinion in Giordano v. U. S., 394 U.S. 310, 313, 89 S.Ct. 1163, 1165, 22 L.Ed.2d 297 (1969). In that case the Justice noted that the Court's decision in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), dealt only with the question of what procedures should be utilized to determine if the defendant's convictions had been tainted by admittedly illegal electronic surveillance and did not hold that determination of the validity of the surveillance required an adversary proceeding. See also Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969) (per curiam). These and several other cases cited by the government involved pre-Title III wiretaps and were decided on fourth amendment rather than statutory grounds. Here the basis of my decision is Section 2518(9), the plain language of which makes disclosure of the application and order mandatory for those, such as petitioner, entitled to make the statutory suppression motion. [10] Not only the contents of the application and order, but also their very existence may be protected from disclosure at least temporarily under the provision of Section 2518(8)(d) allowing for the postponement of service of the post-intercept inventory on an ex parte showing of good cause. But this section may not be invoked to delay disclosure of the application and order beyond the point when it is required to be made under Section 2518(9) to a party facing a "proceeding." See United States v. Eastman, 465 F.2d 1057, 1063 n. 13 (3d Cir. 1972). [11] Notice must be given to the targets of a wiretap application that has not been approved by the court. See Section 2518(8)(d). [12] Grand jury witnesses fall into this category, which also explains why they are excluded from the class entitled to make the Section 2518(10)(a) suppression motion. The purpose of calling a witness before the grand jury is not to inflict punishment upon him but to secure the information he possesses with regard to a matter under investigation. In cases such as Persico and Lochiatto prosecution for contempt was not sought as an end in itself but only as a means of forcing the witness to provide the requested information. [13] The legislative history of Section 2518(8)(b) does contain the following statement, "Applications and orders may not be disclosed except incidental to the disclosure or use of the records themselves after a showing of good cause, for example, under [Section 2518](10)(a) discussed below." S.Rep.No.1097, supra, 1968 U.S.Code Cong. & Adm.News, at p. 2194. In view of the clearly directory character of the language used in Section 2518(9), the section which specifically deals with disclosure to a party facing a "proceeding," I believe the above statement must be taken to mean not that a showing of good cause is required for disclosure of the application and order incident to a Section 2518(10)(a) motion, but that the opportunity to file such a motion is in itself an example of "good cause" for the disclosure. [14] Of course, the very fact that Sections 2518(8) and (10)(a) plainly do give the courts discretion with respect to certain matters shows that Congress was at no loss to find appropriate language when it wished to do so. Its failure to use such language with respect to Section 2518(9) is thus persuasive evidence that disclosure of the application and order under that section was intended to be mandatory. [15] For example if the motion were based on, say, failure to minimize interceptions of attorney-client conversations, review of such interceptions would be relevant to deciding the motion. Cf. Losing, supra, at 1179-80. In giving this example, I emphasize that the mere fact the intercepted communication is relevant to the motion to suppress does not mean that it must be disclosed. As noted in the text under Section 2518(10)(a) the judge has discretion with respect to such disclosure. [16] The government points out that applications and orders covered by Section 2518(9) need not be mutually exclusive of intercepted communications covered by Section 2518(10)(a). This situation would arise where evidence derived from one wiretap was utilized as part of the probable cause for obtaining a second wiretap. I agree with the government's observation as a factual matter, but am unable to agree that this justifies a conclusion that disclosure of the application and order is discretionary. While a communication may be more sensitive than other information contained in an application, once it is incorporated into another application it becomes part of the foundation upon which the legality of the other interception depends and for the reasons stated in the text its disclosure then becomes of paramount importance to a party facing a "proceeding" based on that interception.

443 F.Supp. 1320 (1978) The CONSERVATION SOCIETY OF SOUTHERN VERMONT et al., v. SECRETARY OF TRANSPORTATION et al. Civ. A. No. 6598. United States District Court, D. Vermont. January 19, 1978. *1321 Harvey D. Carter, Jr., of Witten & Carter, Bennington, Vt., for plaintiffs. Robert Schwartz, Deputy Atty. Gen., Montpelier, Vt., for the Vermont Highway Dept. William B. Gray, U. S. Atty., and Richard H. Thomas, Dept. of Transp., Albany, N.Y., for the United States. Arthur J. O'Dea, Manchester Center, Vt., for the amici curiae. FINDINGS OF FACT, CONCLUSIONS OF LAW and OPINION on MOTION OF DEFENDANTS TO DISSOLVE INJUNCTION OAKES, Circuit Judge, Sitting by Designation. This matter again came on for hearing on November 10, 1977,[1] when the federal and *1322 state defendants moved to dissolve an injunction issued on October 26, 1972, see Conservation Society of Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761 (D.Vt.1972), which remained in full force and effect until a good and sufficient Section 4(f) statement is filed with and approved by the court. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, No. 6598, at 8 (D.Vt. July 26, 1977). The basis for defendants' motion is that the Section 4(f) statement filed with this court on August 23, 1977, meets the requirements of Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) and of Section 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138.[2] RECAPITULATION The lengthy prior proceedings in this case[3] began when the Vermont Highway Department, with the approval of the United States Department of Transportation, proposed a four-lane highway project involving U.S. Route 7. A new highway extending from Bennington, Vermont, to Manchester, Vermont, was contemplated. It has been referred to throughout the litigation in terms of its three component projects, F 019-1(8) (Project 8), F 019-1(9) (Project 9), and F 019-1(10) (Project 10). Project 9 is the subject of the current proceedings. On October 26, 1972, this court enjoined the defendants from proceeding with the project until a final environmental impact statement (EIS) required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), was filed, and the requirements of Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and of Section 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, were met. See Conservation Society of Southern Vermont, Inc. v. Volpe, supra, 343 F.Supp. at 766, 768. After the EIS was filed, on July 27, 1973, this court refused to dissolve the injunction on a number of grounds, including defendants' failure to comply with the requirements of Section 4(f). Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F.Supp. 627, 638-39 (D.Vt.1973), aff'd, 508 F.2d 927 (2d Cir. 1974), affirmance vacated & remanded sub nom., Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), rev'd, 531 F.2d 637 (2d Cir. 1976). Appeals followed culminating in the reversal of that portion of the July 27, 1973, decision dealing with Vermont Highway Department preparation of the NEPA-required EIS and the necessity of a regional EIS. The propriety of the Section 4(f) determination was not considered in any of the subsequent proceedings. Nor was the propriety of the court's rulings that approval of the NEPA EIS was limited to two-lane construction only and that the EIS was "insufficient to support four-lane construction, within the reasonably foreseeable future since no present need therefor is demonstrated." 362 F.Supp. at 635. In an order of June 7, 1977, this court held that its injunction of October 26, 1972, had not been dissolved in full by the court of appeals' reversal, 531 F.2d 637, but remained binding on defendants with regard to Section 4(f) compliance, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, No. 6598, at 2-3 (D.Vt. June 7, 1977), as well as with respect to the two-lane limitation. Section 4(f) was originally implicated because Project 9 is to border what in 1973 was known as the Lye Brook Backwoods area. That area consists of approximately 11,000 acres, constituting a substantial portion of the Green Mountain National *1323 Forest. At the time of this court's July 27, 1973, opinion legislation had been introduced in Congress to declare Lye Brook a wilderness area, and it had been placed by the United States Forest Service in a "no development" status. Since then, by act of Congress, it has become the Lye Brook Wilderness area. Pub.L. No. 93-622, § 3(a)(11), 88 Stat. 2097 (1975). Both in the opinion of this court, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 362 F.Supp. at 639, and by designation of the Forest Service in January, 1976, the close proximity of the proposed highway project to the Lye Brook Wilderness area constitutes a "use" of publicly owned recreation land as defined in Section 4(f). Accord, Monroe County Conservation Council, Inc. v. Adams, No. 77-6129, 566 F.2d 419 at 424 (2d Cir., 1977). It was not until August, 1976, that a draft supplemental EIS under Section 4(f) was prepared and distributed. Thereafter a final supplemental 4(f) EIS was prepared. It was executed by the appropriate United States Department of Transportation authorities on July 20, 1977, and its availability was published in the Federal Register on July 29, 1977. On July 26, 1977, this court dissolved its injunction precluding construction of Projects 8 and 10 in two-lane form. It was held that these projects were severable from Project 9 for Section 4(f) purposes because only Project 9 is adjacent to the Lye Brook Wilderness area. It was further determined that Projects 8 and 10 would be usable even if Project 9 were not built. Project 9, however, remained enjoined, pending approval by this court of a valid, final 4(f) statement. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, No. 6598 at 5-6, 8. The validity of the final 4(f) statement with regard to Project 9 is now before the court. Pursuant to this court's order on motion for rehearing dated August 23, 1977, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, No. 6598 (D.Vt. Aug. 23, 1977), the Section 4(f) statement previously filed with the court is treated as filed as of August 23, 1977. More than thirty days have elapsed since the final 4(f) statement was made available to the Council on Environmental Quality, commenting agencies and the public, in accordance with Paragraph 6(e) of the Federal Aid Highway Program Manual 7-7-2. See letter from David B. Kelly, Division Administrator, to Ronald E. W. Crisman, Acting Commissioner, Vermont Department of Highways (Sept. 2, 1977) (Exhibit 1 to State Defendants' Motion to Dissolve Injunction and Memorandum of Law in Support Thereof, dated Sept. 20, 1977). The matter is thus ripe for consideration at this time. On November 10, 1977, testimony was taken from witnesses called by the plaintiffs, Joseph Landry, State Highway Department Transportation Plannings and Programs Engineer; Arthur J. Goss, Chief of Design of the Vermont Agency of Transportation; David B. Kelly, Division Administrator of the Federal Highway Administration for the State of Vermont; and Robert L. Morris, a highway transportation planner. Gordon MacArthur, Traffic Research Engineer for the Vermont Agency of Transportation, testified for defendants on rebuttal. On the basis of the testimony, the exhibits and the entire record, this court makes the following findings of fact. FINDINGS OF FACT 1. Project 9 involves the acquisition of a right of way for a four-lane, limited-access, divided highway, extending from Sunderland, Vermont, northerly approximately ten miles to its junction with Vermont State Route 11, east of Manchester Center, Vermont, with initial construction of only two lanes proposed and permissible, absent another NEPA EIS and 4(f) statement, under the prior orders and decisions of the court. 2. The final Section 4(f) statement was duly circulated to federal, state and local agencies, officials and individuals.[4] *1324 3. The court finds that there has been substantial compliance with the requirement that the proposed two-lane construction and four-lane right of way acquisition minimize environmental harm. The authorities have carefully selected the precise location of construction along the right of way, with the goal of reducing noise impacts on the Wilderness area. The original 4(f) statement proposed construction along the easterly portion of the right of way. The final proposal envisions construction along the westerly side of the right of way. This change in alignment of the proposed two-lane construction resulted from the United States Department of Transportation's review of the final 4(f) statement. It was made for the purpose of "alleviat[ing] somewhat the noise impact from Route 7 on the Lye Brook Wilderness [area]," Final Supplemental EIS § 4(f) Statement, Addendum, at 1, because the highway will be located 200 to 300 feet further away from the Wilderness boundary under the new proposal. The additional 200 to 300 feet of wooded area between the highway and the Wilderness area will, it is now estimated, provide sufficient noise attenuation to reduce noise within the Wilderness to a level meeting FHWA's noise level standards. Id. This court duly notes that "[t]his adjustment in the project plans appears to be a necessary measure to minimize harm to the wilderness, in compliance with the requirements of section 4(f)." Id. Implicitly, then, construction of two lanes on the easterly portion of the right of way would both fail to minimize harm to the Wilderness and fail to meet noise level standards within the Wilderness area.[5] Additional aspects of the proposal will serve to minimize environmental harm. Although the project calls for acquisition of thirty-six acres of National Forest land, these are not Section 4(f) lands. The scenic views along the proposed alignment will be magnificent, while the visual impact of the highway on the Lye Brook Wilderness area will be minimized by the highway's location on a shelf below "The Burning." Landscaping projects have been added to prevent erosion, enhance the view from the road and, most importantly, to screen the highway from the Wilderness area. In addition, no overhead utility lines will be permitted along the highway. Limited access will both prevent strip development along the highway and protect the natural integrity of the area.[6] No known historic sites will be affected by the proposed alignment. Similarly, a survey by an archaeological reconnaissance group indicates that archaeological resources will probably not be encountered since the terrain along the proposed route is topographically unsuited for habitation. As is often the case in Vermont, however, wildlife crossing the highway may present a problem. But according to the Forest Service, most of the deer in the area stay in the higher country to the east and do not migrate through the area of the proposed highway. It is estimated that air pollution will be minimal. The impact on water resources of the Wilderness area will also be negligible because most of the Wilderness area is at an elevation higher than the proposed highway. Finally, adverse environmental impacts during the construction period will be minimized by adherence to the "General Specifications for Highway and Bridge Construction" established by Vermont's Department of Highways. 4. The court further finds that the 4(f) statement sufficiently considered the possibility of prudent and feasible alternates to the proposed alignment, including doing *1325 nothing, improving existing Route 7, constructing the highway at any one of three alternate locations, and utilizing alternate means of transportation such as passenger trains and buses. There is substantial evidence to support the conclusion of the 4(f) statement that these alternatives are not prudent or feasible. A. The "no-build" alternate is unacceptable because it fails to provide necessary safe and efficient traffic service. (1) Present Route 7 is too narrow (width of eighteen feet of traveled-way as compared to the proposed width of twenty-four feet) with approximately twelve curves in the ten miles of highway involved greater than the five degrees desirable standard, and a maximum grade of 7.3%, also more than desirable. (2) The present narrow, winding, rolling alignment increases traffic hazards, as indicated by the 231 accidents including two fatalities over the five-year period 1971-75. This accident rate is more than double that experienced on rural highways up to standards consistent with the proposed construction. (3) Highway sufficiency ratings covering safety, service and condition of the existing highway are "bad." (4) Despite the energy crisis, 1977 was the busiest traffic year ever on Route 7, which is used not only by residents for business and pleasure but by tourists wishing to view the scenic grandeur of southwestern Vermont and to engage in other recreational activities. (5) Traffic volumes are expected to increase by 38% by 1995. This increase in traffic demand would result in greater safety hazards and increasing deterioration of the inadequate sections of the present highway. B. While improvement of existing Route 7 is perhaps the most feasible alternative to the proposed construction,[7] there is substantial evidence supporting the 4(f) statement and militating against implementation of a reconstruction plan. (1) Current State Highway Department requirements concerning the appropriate widths of rights of way could not be met by reconstruction. (2) Any significant improvement of Route 7 would both disrupt traffic flow during construction and result in considerable inconvenience to residences, businesses and historic sites located along the present highway. (3) If the highway remained a nonlimited access facility as it would for all practical purposes have to remain, (a) adequate future highway safety could not be ensured since the roadway would still traverse the towns and settlements located along Route 7; (b) reducing accident potential would necessitate at a minimum an additional lane or similar device to accommodate left-turn vehicles, with a corresponding need to acquire greater amounts of land from adjacent property, including, possibly, certain historic sites; and (3) it is unclear whether even an improved facility could accommodate projected future traffic volume. (4) Although a limited access highway would alleviate some of these safety hazards, it would be economically disastrous to those enterprises presently located along the highway and would create serious practical problems for the persons in homes adjacent to the highway. C. While the alternate locations for the new highway would avoid contact with the Lye Brook Wilderness area, there is substantial evidence to support the finding of the 4(f) statement that each of these alternate routes would engender even more severe unavoidable environmental impacts. (1) An alternate line on the west side of U.S. Route 7 would likely damage sensitive areas in the corridor between Equinox Mountain and present Route 7.[8] It would *1326 also necessitate crossing the Batten Kill, a nationally renowned trout stream and an invaluable recreational resource in Vermont. (2) An alternate line on the east side of the valley between the proposed location and the National Forest boundary would similarly not be practical due to potential adverse impacts on the Batten Kill and physical restrictions necessitating construction along a steep slope.[9] (3) Similarly, as explained by the 4(f) statement and by plaintiffs' witnesses on cross-examination, to construct an alternate line between existing Route 7 and the Vermont Railway would again involve the Batten Kill and its floodplain, requiring at least two crossings of both the Batten Kill and the Vermont Railway.[10] Furthermore, this route would require the purchase of agricultural and residential properties as well as termination or bridging of at least three local roads. D. Finally, the court finds that the use of alternate modes of travel would not sufficiently reduce traffic demands on Route 7 to alter significantly the scope of the needed highway improvement. Operation of a large-scale mass transit system is not feasible given the scattered population base of the area, the diversity of origins and destinations and the propensities of the traveling public in the area. 5. The Section 4(f) statement, as revised by the addendum, see Finding 3 supra, is proper and sufficient. It contains an accurate description and history of the proposed action and considers alternatives and means of minimizing environmental harm. The summary of environmental impacts is complete and accurate with the exception of the statement that "[n]oise levels will meet FHWA Design Standards if the roadway is widened to four lanes by the design year." Final Supplemental EIS § 4(f) Statement at 6. This conclusion is inconsistent with the most recent finding in the addendum, see Finding 3 supra, and is rejected as based on insufficient evidence. CONCLUSIONS OF LAW AND OPINION The role of a district court in reviewing the sufficiency of a 4(f) statement has recently been set forth by the Second Circuit Court of Appeals: Insofar as the 4(f) Statement is concerned, the district court must ascertain first whether the Secretary of Transportation acted within the scope of his authority, i. e., whether the Secretary could have reasonably believed that there were no feasible alternatives to the use of parklands or that the alternatives involved unique problems. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court, without substituting its own judgment for that of the agency, must then determine that the choice made was not arbitrary, capricious, an abuse of discretion or a violation of law. Id. Finally, the court must satisfy itself that the correct procedures have been followed in arriving at the decision under review. Id. at 417, 91 S.Ct. 814. The burden of proof is on the challenging plaintiff to establish . . . that the Secretary of Transportation had acted improperly in approving the use of parklands. Sierra Club v. Morton, supra, 510 F.2d at 818; Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974). Monroe County Conservation Council, Inc. v. Adams, supra, No. 77-6129, 566 F.2d 419 at 422. This court is satisfied that in choosing the proposed alignment the responsible authorities analyzed in good faith and in a reasonably comprehensive manner the various alternatives. There is substantial evidence *1327 in the record supporting their conclusion that these alternative plans are not feasible or prudent. Furthermore, the administrative decision was not arbitrary, capricious or a clear abuse of discretion, as demonstrated by the considerable amount of planning to minimize harm to the Wilderness area. Finally, there is nothing in the record to indicate non-compliance with the requisite procedures. Accordingly, the injunction is modified to permit acquisition of a four-lane right of way and construction of a two-lane highway along the westerly portion of the right of way, in accordance with the proposal set forth in the addendum to the 4(f) statement. The parties are to submit proposed decrees within twenty days. No costs. NOTES [1] The Conservation Society of Southern Vermont was permitted to withdraw as plaintiff at this time. The remaining plaintiffs are Ruth and Lawrence Wasco and Leon Eldred. [2] Both sections, in relevant part, prohibit the Secretary of Transportation from approving any project requiring the use of specified publicly owned land, including park land, unless there is no feasible and prudent alternative to the use and the project includes all possible planning to minimize harm to the land. These identical provisions will be referred to jointly as Section 4(f). [3] Only those proceedings bearing on the issues now before the court will be summarized below. [4] The court notes that the proposed alignment is supported by the Bennington County Regional Planning Commission and by the various towns affected by the construction plans, including Manchester, Sunderland and Arlington, all amici curiae. [5] While the addendum to the 4(f) statement states that "[a]t such time as the traffic demand increases to a point that a four-lane facility is required, the [two additional] lanes would be constructed immediately adjacent to the wilderness area boundary," Final Supplemental EIS § 4(f) Statement at 2, the injunction of this court has been, is and remains in effect against any four-lane construction between Bennington and Manchester under any of the proposed highway projects until a proper EIS under NEPA and a Section 4(f) statement pertaining to such four-lane construction have been filed. Concededly, such "construction is not likely to be needed for at least several years . . .." Id. See also 362 F.Supp. at 635. [6] Fencing of the right-of-way line between the access points will also help to prevent illegal vehicle entry into the Wilderness area. [7] Mr. Morris testified to the feasibility of improving present Route 7. He indicated that certain dangerous curves could be straightened, additional lanes could be built for passing traffic, and other improvements could be made to raise the safety and efficiency of the highway. He though that it might be possible to bypass part of the town of Arlington. The court notes, however, that Mr. Morris' conclusions were primarily in terms of generalities, based on his having traveled Route 7 four times. He took no measurements, made no traffic surveys or conceptual designs, and never drove on the highway during the snow season. [8] The western alignment could adversely affect, to name a few locations, Cook Hollow, a unique geological area, three watershed areas supplying the Manchester water system, and Equinox Pond. [9] A slight relocation of this alternate route to the west might minimize, to some extent, harm to the Batten Kill. However, it would necessitate the acquisition, at excessive costs, of a five-mile strip of privately owned land which would be landlocked by the highway. [10] In addition to the two crossings, which would require channel work with a direct impact on the river, the highway would be located adjacent to the river at certain points. Construction at these conflict points could have a detrimental effect on aquatic life, particularly on the trout population, a very important natural resource of the area.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6527 UNITED STATES OF AMERICA, Petitioner - Appellee, v. KEVIN SEAN POLK, Respondent - Appellant. No. 08-6823 UNITED STATES OF AMERICA, Petitioner - Appellee, v. KEVIN SEAN POLK, Respondent - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:06-hc-02182-BR) Submitted: October 24, 2008 Decided: November 13, 2008 Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. James B. Craven, III, Durham, North Carolina, for Appellant. Rudolf A. Renfer, Jr., Assistant United States Attorney, Michelle T. Fuseyamore, Raleigh, North Carolina; David T. Huband, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In each of these consolidated appeals, Kevin Sean Polk appeals the district court’s April 7, 2008 order continuing his civil commitment to the custody of the Attorney General under 18 U.S.C. § 4246 (2006). In Appeal No. 08-6527, Polk’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising one issue but stating that, in his view, there are no meritorious grounds for appeal. Counsel questions whether the district court erred in concluding that Polk posed a substantial risk of danger to others as a result of his mental disorder. Polk has filed a pro se supplemental informal brief in each appeal. ∗ We affirm. After a hearing, the district court found by clear and convincing evidence that Polk “continues to suffer from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another.” (J.A. at 33). Our thorough review of the record leads us to conclude that the district court did not clearly err in finding that continued civil commitment was warranted. See United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005) (providing standards). ∗ We have reviewed carefully the issues raised in the pro se supplemental informal briefs and find them to be without merit. 3  Accordingly, we affirm the order of the district court. We deny counsel’s motion to withdraw and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4 

535 U.S. 1022 SONTCHIv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 01-8520. Supreme Court of the United States. April 22, 2002. 1 C. A. 5th Cir. Certiorari denied.

509 F.Supp. 992 (1981) Theodore W. WEYHMUELLER, Plaintiff, v. JANITORS UNION LOCAL NO. 1, SERVICE EMPLOYEES INTERNATIONAL UNION, Defendant. No. 79 C 2297. United States District Court, N. D. Illinois, E. D. March 9, 1981. *993 John M. Bowlus and Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., for plaintiff. Kalman D. Resnick, Martin J. Burns, Linda R. Hirshman, and Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for defendant. MEMORANDUM OPINION WILL, Senior District Judge. In this case, the plaintiff, a member and former appointed official of the defendant, alleges that he was discharged from his position as business agent because he ran against the incumbent president in an election held shortly before his dismissal. The plaintiff claims that his discharge under these circumstances violated section 609 of the Labor Management Reporting and Disclosure Act (LMRDA). The defendant now moves for summary judgment. For the reasons stated below, we deny the motion. BACKGROUND The facts in this case, with a few crucial exceptions, are undisputed. The plaintiff has been a member in good standing of the defendant union since 1953. From 1953 to 1960, plaintiff worked as a janitor in the Chicago area. In 1960, he was appointed a business agent. He served in this capacity until October 4, 1978. As business agent of one of eight districts within the defendant's jurisdiction, the plaintiff occupied a position of responsibility and authority and exercised considerable discretion.[1] A business agent is expected to supervise all union employees within his district, investigate and attempt to settle informally employers' complaints regarding union members' job performance, assist in the processing of grievances, supervise the collection of members' dues and employers' contributions to the health and welfare fund, supervise and engage in organizing efforts within the district, investigate employers' compliance with the collective bargaining agreement, refer union members for employment to employers with whom the union has a collective bargaining agreement, and explain and generate support for the union's policies and positions on various issues among the membership. In May 1978, the plaintiff announced that he intended to run for president in the next election against the incumbent, Charles Burg. Mr. Burg and other officials of the local union and its international affiliate apparently were displeased by plaintiff's candidacy. In June 1978, the plaintiff met briefly with Mr. Burg and Eugene Moats, the vice president of the international union, to discuss the upcoming election. Mr. Moats informed the plaintiff that, in Mr. Moats' opinion, the plaintiff stood no chance of winning the presidency, was not qualified for the job, and would harm the union by dividing the membership if he continued to run for the position. Mr. Moats also told the plaintiff, in an allegedly threatening tone, that he "[didn't] think everyone can shake hands and walk away from it when its over." He reminded the plaintiff that he was an appointed, rather than elected, official and that he served at the pleasure of the elected officials. Mr. Moats continued, "[a] lot of people would like your job. There are a hundred guys out there swinging a mop and broom for every business agent in Local 1 ... and they'd love to be in your job tomorrow." Despite Mr. Moats' and others' disapproval of his candidacy, the plaintiff continued campaigning for president of the union. However, on September 14, 1978, he lost the election to Mr. Burg. *994 What occurred thereafter is in dispute. According to the defendant, the relationship between Mr. Burg and the plaintiff was cordial following the election. On September 29, 1978, however, a union member named Slobodan Ilic allegedly came to the defendant's offices and charged the plaintiff with having taken money in exchange for the plaintiff's referring him to a new job. Accepting money for referring a member for employment was contrary to union policy. And, according to the defendant, business agents were frequently warned not to engage in such a practice. The defendant allegedly interviewed Mr. Ilic at length about the incident and concluded that the charges were true. On October 4, 1978, Mr. Burg and other union officials informed the plaintiff that he was summarily fired for "selling jobs." According to the plaintiff, however, Mr. Ilic's charges were unfounded or exaggerated, and the defendant simply seized on them as a convenient excuse for discharging him. The real reason for his discharge, according to the plaintiff, is that he opposed Mr. Burg for the union's presidency. The plaintiff points to the summary way in which he was dismissed, despite his denial of Mr. Ilic's charges, as evidence that the defendant's stated reason for dismissing him was a pretext. Mr. Moats' "threats" prior to the election, together with the fact that the plaintiff's discharge occurred less than a month after the election and without any hearing, plaintiff asserts, indicate the real reason for his firing. Although the plaintiff retains his membership in the defendant union, he has not held an elected or appointed post since his dismissal as business agent. In June 1979, he initiated this action, claiming that he was unlawfully disciplined by the defendant for exercising his rights under sections 101(a)(1) and (2) of the LMRDA. DISCUSSION Section 101(a)(1) and (2) of the LMRDA, 29 U.S.C. §§ 411(a)(1) and (2), provide in relevant part: Equal rights — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, .... Freedom of speech and assembly — Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings.... Additionally, section 609 of the Act, 29 U.S.C. § 529, provides in part: It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. There is no dispute in the present case that the plaintiff's active candidacy against the incumbent president of the union and his criticism throughout the campaign of the incumbent leadership's policies are rights protected by sections 101(a)(1) and (2). The primary issue here is whether the union's discharge of the plaintiff for exercising these rights is actionable under section 609. A number of courts have recently addressed the question whether a union member can challenge his removal from an appointed position, and have reached different conclusions. Several courts have concluded that an appointed official may be removed from office for any reason or no reason, including for exercising his rights under section 101(a). See, e. g., Wambles v. International Brotherhood of Teamsters, 488 *995 F.2d 888, 889-90 (5th Cir. 1974) (per curiam); Cehaich v. International Union, UAW, 496 F.Supp. 912, 916 (E.D.Mich. 1980); Navarro v. Leu, 469 F.Supp. 832, 835 (N.D.Ohio 1979). See also Wood v. Dennis, 489 F.2d 849, 858 (7th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974) (Stevens, J., concurring). These courts point out that elected union officials necessarily rely on appointed officials to implement their policies and plans and, therefore, need the full cooperation and support of these appointed officials. Unless elected officials are free to choose the people who will be carrying out their directives, their plans may not be fully implemented and, indeed, may be frustrated; to be able to choose those who will be carrying out their plans, elected officials must have a free hand to hire — and fire — appointed officials. See Wambles v. International Brotherhood of Teamsters, supra at 889-90; Cehaich v. International Union, UAW, supra at 915. Moreover, these courts have concluded that union officials need not wait for evidence of insubordination before discharging appointed officials. As one court has explained, It can be argued that an appointed office holder under the president who has opposed him in the election does not guarantee obstructionist policies while he serves in his position as an appointed Union official and that before the appointed official could be discharged for cause he would have to show an actual conflict of interest. This is a rather charitable view of persons recently involved in political conflict. A more realistic view would be that in a great majority of cases the friction generated in the election campaign would infect and seriously impede the successful candidate's implementation of his program approved by the membership electing him. Wambles v. International Brotherhood of Teamsters, supra at 889. See also Cehaich v. International Union, UAW, supra at 916; Navarro v. Leu, supra at 835.[2] At the heart of these courts' conclusion that an appointed union official can be discharged for exercising his rights under section 101(a) is their belief that Congress did not intend in the LMRDA to interfere with the conduct of internal union affairs beyond guaranteeing certain minimum democratic rights for union members. To attempt to distinguish between the firing of union officials for dissent and firing for insubordination, according to these courts, would intrude more deeply into internal union affairs than Congress intended. See Wambles v. International Brotherhood of Teamsters, supra at 890. See also Wood v. Dennis, supra at 858 (Stevens, J., concurring). Also central to these courts' conclusion is their conviction that to restrict in any way elected officials' hiring and firing of appointed officials would actually decrease, rather than increase, union democracy. As one court has stated, To extend the protection of labor's "Bill of Rights," ... to such office holders would, in effect, give such officers a lifetime job except on dismissal for cause. The elected officials necessarily rely on appointed officials to implement policies and plans presumably approved by the Union membership in the election. To tie the President's hands, an elected official, by not allowing him to discharge without cause or for any reason those who must serve under him would so restrict the elected officers in the discharge of their duties that elections could be meaningless. An appointed official should carry out the approved policies of the Union. His convictions and loyalties should be to the Union and not a personal fiefdom beyond the reach of the membership, here expressed by the appointive powers of elected officers. Wambles v. International Brotherhood of Teamsters, supra at 889-90. See also Cehaich v. International Union, UAW, supra at 915. *996 In a second group of cases, several courts that have addressed the question whether a union member can challenge his removal from an appointed position, where his removal was allegedly occasioned by the exercise of his rights under section 101(a), have reached a different result. These courts have concluded that, while an appointed official cannot be discharged simply for exercising his section 101(a) rights, he may be discharged for insubordination; however, these courts have defined insubordination broadly enough to encompass activities which arguably are protected by section 101(a). See, e. g., Miller v. Holden, 535 F.2d 912, 916 (5th Cir. 1976); Sewell v. Grand Lodge of the International Association of Machinists and Aerospace Workers, 445 F.2d 545, 550-51 (5th Cir. 1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972). These courts agree with Wambles, Cehaich, etc., that elected union officials necessarily rely on appointed officials to carry out their policies and programs. They also agree that elected union officials have the right to expect loyalty and cooperation from the appointed officials. Consequently, these courts have concluded that an appointed union official who "spend[s] his employer's time opposing the plans and policies he was employed to execute" can be discharged even though, as a union member, the official has a right to express his dissatisfaction with union policies and programs. Sewell v. Grand Lodge of the International Association of Machinists and Aerospace Workers, supra at 551. Thus, in Sewell, the court held that the dismissal of an appointed union representative because of his active opposition to a referendum proposal that the union's elected leadership supported was entirely proper. See id. at 552. At the same time, however, these courts, unlike Wambles, Cehaich, etc., apparently believe that a distinction should be drawn between the firing of union officials for dissent and firing for insubordination. See Miller v. Holden, supra at 916; Sewell v. Grand Lodge of the International Association of Machinists and Aerospace Workers, supra at 550-51. Moreover, they, unlike the courts in Wambles, Cehaich, etc., apparently do not condone the dismissal of appointed union officials before any evidence of insubordination surfaces. See Miller v. Holden, supra at 916. In a third group of cases, courts have concluded that a union member can challenge his discharge under the LMRDA. See, e. g., Grand Lodge of the International Association of Machinists v. King, 335 F.2d 340, 346 (9th Cir. 1964), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); DeCampli v. Greeley, 293 F.Supp. 746, 752 (D.N.J.1968); George v. Bricklayers, Masons, and Plasterers International Union of America, 255 F.Supp. 239, 242 (E.D.Wis.1966). These courts have concluded that, although partisan participation by appointed officials in intra-union politics may threaten the smooth internal administration of unions, Congress intended to extend the rights set out in section 101(a) to all union members and not simply to rank and file, non-office holding members. As one court has explained, It would seem, in protecting the exercise of democratic rights of free speech and assembly at union meetings involving matters bearing on the affairs of the full membership, that union officers and important officials, such as Business Agents, have a greater obligation to speak up than do the ordinary members, because of the responsibility and prestige of their positions. A Business Agent is just such a union official to whom the membership looks for guidance, .... It is widely known that in many unions the Business Agent is the most important administrative representative. To reduce him to silence through fear of disciplinary reprisal is tantamount to saying that the member who succeeds in becoming an official of the union forfeits membership rights guaranteed to him by the LMRDA. Certainly, Congress never contemplated the imposition of such a "Hobson's Choice." DeCampli v. Greeley, supra at 752. These courts, it seems, are likely to scrutinize more carefully than would the courts in *997 Sewell and Miller the reasons for a union official's discharge. Additionally, these courts, unlike those in Sewell and Miller, do not discuss insubordination, or suggest that an appointed official may be discharged for exercising his section 101(a) rights even if the exercise may rise to the level of insubordination. Nevertheless, the difference between these courts' view and that of the courts in Sewell and Miller is primarily one of degree — the degree to which they believe dissent among appointed union officials should be tolerated — and not a difference in their views concerning whether an appointed official can state a claim under the LMRDA. Had the Seventh Circuit taken a position on this issue we would, of course, be bound to follow its lead. But this circuit has not yet addressed the issue whether an appointed union official can challenge his dismissal from office under the LMRDA. Wood v. Dennis, 489 F.2d 849 (7th Cir. 1973) (en banc), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974), is a strong indication of how the Seventh Circuit would rule if it were faced with this question, however. In Wood, an elected union official challenged his discharge, claiming that he was dismissed for exercising his rights under section 101(a). The court concluded that the official's charge that the union leadership attempted to chill the exercise of his right to free speech and right to stand for office by removing him from office stated a cause of action under the LMRDA. See id. at 853. The court, drawing no distinction between the rights of elected and appointed officials,[3] adopted the position set forth in King, supra. See id. at 853. The court concluded that there was nothing in the legislative history of the Act indicating that officers forfeited their right under section 101(a) when they assumed office. See id. at 854. At the same time, however, the court noted that it was "not unmindful of the fine line which must be drawn between what might be termed insubordination on the one hand and freedom of speech on the other," and cited Sewell as an example of a case in which this distinction was important. See id. at 855-56. We believe, in light of Wood, that the Seventh Circuit would hold that an appointed union official can challenge his dismissal from office if he believes it was occasioned by his exercising his rights under section 101(a). At the same time, we believe that the Seventh Circuit would recognize the right of union leadership to discharge an appointed official where his behavior rises to the level of insubordination, interfering with the performance of his official duties. We also believe that this is the preferable approach. So long as union leadership is free to discharge appointed officials whose activities and attitudes interfere with the performance of their duties, appointed officials need not put up with uncooperative officers or fear that their policies will be frustrated by the individuals upon whom they must rely to implement them. Additionally, under this approach, appointed union officials will not be frozen into their jobs and insulated from attack by a voting membership dissatisfied with their performance, as the courts in Wambles and Cehaich feared. Elected union leadership will be free to replace inept or uncooperative appointed officials, provided that their dismissal is not simply in retaliation for their exercise of their section 101(a) rights. We recognize, nevertheless, as Wambles and Cehaich point out, that it may be difficult in many cases to distinguish between discharges intended to eliminate an insubordinate or incompetent officer and discharges in retaliation against an officer's expression of dissent. But, courts are frequently asked to distinguish between employers' discharges of employees for proper and improper reasons—in Title VII cases and cases involving alleged retaliatory discharges in OSHA and Wage and Hour cases, for example *998 — so this task is not an unfamiliar one. More importantly, the difficulty involved in distinguishing between simple dissidence and insubordination is worth the effort to preserve the rights which Congress, in the LMRDA, intended all union members to enjoy. Turning to the facts of the present case, we conclude that the defendant is not entitled to summary judgment. As our discussion above indicates, we reject the defendant's argument that it was entitled to discharge the plaintiff even if the reason for the discharge was the plaintiff's unsuccessful candidacy against the incumbent president and his outspoken criticism of the incumbent leadership's policies. As our earlier discussion explained, the defendant cannot discharge the plaintiff simply for exercising the rights protected by section 101(a). If, however, the plaintiff's disagreement with the incumbent leadership's policies and programs had interfered with the performance of his duties as business agent then, of course, the defendant would have been entitled to discharge him for this reason. Although the defendant has charged the plaintiff with having violated an important union policy by "selling jobs," there remain unresolved issues of material fact regarding this charge. The plaintiff has produced evidence of threats, made by the defendant prior to the election, to discharge him if he persisted in running against the incumbent president. These purported threats and the timing of the plaintiff's discharge are circumstantial evidence suggesting that the plaintiff's dismissal was in retaliation for his exercise of his rights under section 101(a) and, therefore, improper under the LMRDA. Moreover, even though the plaintiff admitted in his deposition that he received an unsolicited $200 from Mr. Ilic after he referred Mr. Ilic for employment, this is hardly conclusive evidence that the plaintiff violated a union policy against "selling jobs" or that the defendant fired him for "selling jobs." We therefore deny the defendant's motion for summary judgment. NOTES [1] Although the plaintiff "doubt[s] very much" that a business agent enjoys significant discretion in his performance of these functions, he has presented no evidence to support his view. Consequently, we accept the defendant's characterization of a business agent's responsibilities and authority. [2] Although Wambles has been limited to its facts, see Rosser v. Laborers' International Union of North America, Local No. 438, 616 F.2d 221, 222 n. 1 (5th Cir. 1980); Miller v. Holden, 535 F.2d 912, 916 (5th Cir. 1976), we have discussed the opinion at length because a number of courts have relied heavily, and continue to rely, on it. [3] Almost every other court has distinguished between appointed and elected union officials, since a stronger case can be made that elected officials cannot be removed from office for expressing dissenting views.

313 B.R. 701 (2004) In re Rebecca Sue MOURER and Ronald Lee Mourer, Debtors. Rebecca Sue Mourer and Ronald Lee Mourer, Plaintiffs, v. Equicredit Corporation of America, Defendant. Bankruptcy No. SG 00-10103. Adversary No. 01-88196. United States Bankruptcy Court, W.D. Michigan. August 23, 2004. *702 *703 John A. Potter, Twohey Maggini PLC, Grand Rapids, MI, for Debtor. Michael O. Nelson, Attorney at Law, Grand Rapids, MI, for Plaintiffs. Arthur F. Radke, Richard E. Gottlieb, Dykema Gossett Rooks Pitts PLLC, Chicago, IL, Michael W. Donovan, Randall J. Groendyk, Varnum Riddering Schmidt & Howlett, Sarah E. Heineman, Dykema Gossett PLLC, Michael M. Malinowski, Attorney at Law, Grand Rapids, MI, for Defendant. OPINION AWARDING ATTORNEY FEES AND DENYING EQUICREDIT CORPORATION OF AMERICA'S MOTION FOR AN EXTENSION OF TIME FOR FILING AN APPEAL JO ANN C. STEVENSON, Bankruptcy Judge. This matter comes before the Court upon the Application for Attorney Fees and Costs submitted by Michael O. Nelson, attorney for the Debtor Plaintiffs (the Mourers) in an adversary proceeding *704 brought against Equicredit Corporation of America (Equicredit). The request for fees presented in the context of this adversary proceeding arises in a case referred to this Court by the Standing Order of Reference entered by the United States District Court for the Western District of Michigan on July 24, 1984. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(O). Accordingly, the Bankruptcy Court is authorized to enter a final judgment subject to those appeal rights afforded by 28 U.S.C. § 158 and Fed. R. Bankr.P. 8001 et seq. The following constitutes the Court's findings of fact and conclusions of law in accordance with Fed. R. Bankr.P. 7052. In reaching its determinations, this Court has considered the parties' briefs and oral arguments. Background of the Case On May 7, 2001, the Mourers filed a Complaint against Equicredit and Cascade Capital Funding, L.L.C. alleging various violations of the Truth In Lending Act (TILA), the Home Ownership and Equity Protection Act (HOEPA), and certain state law claims. After a trial, the Court issued an Opinion and Order ruling in favor of the Mourers, finding that Equicredit did indeed violate both TILA and HOEPA. Equicredit appealed the Bankruptcy Court's Opinion and Order to the United States District Court on January 21, 2003. In its decision, the District Court affirmed in part and reversed in part the Bankruptcy Court's findings. It vacated the Bankruptcy Court's decision and remanded for entry of a new judgment, awarding relief to the Mourers based exclusively on the violation of the 12 C.F.R. § 226.17 disclosure requirements. On April 14, 2004, the Bankruptcy Court issued an Order awarding the Mourers, $2,000.00 (the $2,000.00 Judgment), which was the maximum award allowed pursuant to 15 U.S.C. § 1640(2)(A)(iii) for Equicredit's violation of the disclosure requirements. There was no appeal of this decision. On May 14, 2004, Michael O. Nelson (Nelson), the Mourers' attorney, filed an Application for Attorney Fees and Costs (Application) in the total amount of $17,234.91, arguing that as the prevailing party in a TILA action, the Mourers are entitled to an award of attorney fees and costs pursuant to 15 U.S.C. § 1640(a)(3), and that such an award is mandatory. Equicredit objected to Nelson's Application and requested an extension of time for filing a notice of appeal of the $2,000.00 Judgment. It argued that the $2,000.00 Judgment did not provide for attorney fees; that the fees are not reasonably related to the work performed to obtain the $2,000.00 Judgment; and that Nelson failed to present the Court with evidence of actual time expended on the matter in which the Mourers prevailed. Should the Mourers prevail, Equicredit also requested leave to appeal the $2,000.00 Judgment and the grant of attorney fees. Analysis The TILA imposes mandatory disclosure requirements by those entities who extend credit to consumers. The purpose of the TILA is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit . . ." 15 U.S.C. § 160(a). Certain regulations have been designed to carry out the purpose of the TILA and they, among other things, mandate specific disclosures in credit transactions. See 15 U.S.C. § 1604 and 12 C.F.R. § 226.17. If *705 a creditor should fail to disclose any of the credit terms required under the TILA and its related regulations, a consumer may bring a civil action against the creditor under 15 U.S.C. § 1640. Among its provisions, the TILA requires that when the consumer prevails in an action involving a close ended credit transaction secured by a dwelling, he or she may recover not less than $200.00 nor greater than $2,000.00. The purpose of the statutory recovery is "to encourage lawsuits by individual consumers as a means of enforcing creditor compliance with the Act." Watkins v. Simmons & Clark, Inc., 618 F.2d 398, 399 (6th Cir.1980). The TILA also permits recovery of reasonable attorney fees and costs. 15 U.S.C. § 1640(a)(3). A plaintiff in a TILA case need not prove that he or she suffered actual monetary damage in order to recover the statutory damages and attorney's fees. Watkins, 618 F.2d at 399. Due to "the mandatory nature of the award of attorney's fees under TILA" and because the District Court held that Equicredit violated the Act, it is appropriate to consider the issue of attorney's fees. Purtle v. Eldridge Auto Sales, 91 F.3d 797, 802 (6th Cir.1996); See also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 262, 95 S.Ct. 1612, 1624, 44 L.Ed.2d 141 (1975); Zagorski v. Midwest Billing Services, Inc., 128 F.3d 1164, 1166 (7th Cir.1997). The amount of attorney fees is not limited by the sum of the Mourers' recovery. Purtle, 91 F.3d at 802; Sosa v. Fite, 498 F.2d 114 (5th Cir.1974); Smith v. Chapman, 436 F.Supp. 58, 66 (W.D.Texas 1977). Even so, the Supreme Court has instructed that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney fees. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). However, the Supreme Court also stated that the amount of the fee must be determined on the facts of each case.[1]Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. The initial point of inquiry to determine the right to attorney fees pursuant to 15 U.S.C. § 1640, is whether the plaintiff has brought a "successful action" under 15 U.S.C. § 1635. The standard for making this threshold determination has been formulated in various ways. The most generous of which is that plaintiffs are considered to be the prevailing party if they succeed on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit. Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978). Here, the Mourers succeeded on their claim that before consummation of the transaction, full disclosure in writing was not made in a form they could keep as required by 12 C.F.R. § 226.17(a) and (b). The Mourers were ultimately awarded the *706 maximum amount of damages allowed by the statute on this claim. We find that success on this claim "brings the plaintiff . . . across the statutory threshold." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Success is also measured by the degree of advancement of the principle behind the statute and the harm thwarted. See Zagorski, 128 F.3d at 1167. Since the principle behind the TILA is to provide meaningful and proper disclosure of credit terms, the Mourers' success on the claim that they did not receive written disclosure terms prior to or even immediately after the closing is not to be seen as minimal. "The cumulative effect of [seemingly] petty violations . . . may not be petty." Hyde v. Small, 123 F.3d 583, 585 (7th Cir.1997). "The mere fact that the suit does not result in a large award of damages or the breaking of new . . . ground is not a good ground for refusing to award attorney's fees." Hyde, 123 F.3d at 585. In Hensley, after a thorough look at several cases cited in the legislative history of the Civil Rights Attorney's Fees Awards Act of 1976, and the enumeration of twelve factors[2] derived directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106, as found in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), the Supreme Court noted that "the legislative history does not provide a definitive answer as to the proper standard for setting a fee award where the plaintiff has achieved only limited success." Hensley, 461 U.S. at 431, 103 S.Ct. at 1938. Different courts of appeals however, have adopted varying standards for determining the relevance of the results obtained, to the amount of a fee award where the plaintiff did not succeed on all claims asserted. Although some of these courts of appeals have found that plaintiffs should not recover fees for any work done on unsuccessful claims, the Sixth Circuit has stated that prevailing plaintiffs should generally receive a fee, even for hours expended on unsuccessful research or litigation, unless the positions asserted were frivolous or in bad faith. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 636 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000, 64 L.Ed.2d 862 (1980). There have been no allegations of bad faith or frivolity in this case. Consequently, it remains for us to determine what fee is reasonable and fair to everyone. We note that, "Hours that are not properly billed to one's client also are not properly billed to one's adversary." Copeland v. Marshall, 641 F.2d 880, 891 (C.A.D.C.1980) (en banc) (emphasis in original).[3] The first, and simplest method for determining a reasonable fee is the "lodestar method" which takes the number of hours reasonably expended, multiplied by a reasonable hourly rate. "This calculation provides an objective basis on which to make an initial estimate of the value of *707 the lawyer's services." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Attorney Nelson asserts that he spent 81.8 hours in preparation and litigation of the case. He charges $200.00 per hour, bringing his total amount of fees to $16,360.00. The Supreme Court also instructs us to "exclude from this initial fee calculation, hours that were not reasonably expended." Hensley, 461 U.S. at 434, 103 S.Ct. at 1939. It cites such examples of overstaffing and the variance of lawyers' experience and expertise. This however, we find unnecessary, as Attorney Nelson is a sole practitioner and the only lawyer who worked on the case. Consequently, both the number of hours worked and the hourly fee charged appear reasonable. Once we have determined the initial fee amount, we must factor in the "results obtained." This is "particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief." Hensley 461 U.S. at 434, 103 S.Ct. at 1940. To aid in making this determination, the Supreme Court requires us to address two questions. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded; and second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for a fee award? As to the first inquiry, the Mourers' two basic arguments involving TILA and HOEPA as it related to Equicredit, were that they did not receive the required disclosures pursuant to 15 U.S.C. § 1638, § 1639, and 12 C.F.R. § 226.32, and that they were entitled to rescind their agreement with Equicredit pursuant to 15 U.S.C. § 1635. The Mourers prevailed on one of three claims regarding disclosure, where the remedy was a fine imposed by statute. They failed entirely to prevail on their claim requiring rescission. Notwithstanding this difference, we find that the actual claims, if not the remedies, brought in the lawsuit were inextricably intertwined. The TILA and HOEPA claims arise from the same set of facts and the same sequence of statutes. They involve a common core of facts and are based on related legal theories. In regard to the second question, the Mourers achieved only partial success. Although we have been told by the Sixth Circuit Court of Appeals that an attorney should receive a fee even for hours spent on unsuccessful claims, the Supreme Court has said that when there is limited success, the product of hours reasonably expended on the litigation as a whole multiplied by a reasonable hourly rate may be excessive. "Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill." Hensley, 461 U.S. at 436, 103 S.Ct. at 1941. Even though the statute does not provide for an excessive fine when the creditor falls short of the proper disclosure requirements, this is not a reflection of the importance of the principle violated. Because the purpose of the act is meaningful disclosure of credit terms and informed decision making on the part of the consumer, we believe Congress meant to implement the TILA through individual actions. Therefore, in order to encourage counsel to undertake TILA actions, as Congress intended, it is necessary that counsel be awarded fees commensurate with those which they could obtain by taking other types of cases. "Paying counsel in [TILA] cases at rates lower than those they can obtain in the marketplace is inconsistent with the congressional desire to enforce *708 the [TILA] through private actions, and therefore misapplies the law." Tolentino v. Friedman, 46 F.3d 645, 653 (7th Cir.1995) cert. denied, 515 U.S. 1160, 115 S.Ct. 2613, 132 L.Ed.2d 856 (1995). We are also required to scrutinize the actual Application for evidence supporting the hours worked and the rates claimed. "Where the documentation of hours is inadequate, the . . . court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Attorney Nelson's Application is not necessarily inadequate, but it lacks the detail that is normally found and is commonplace in bankruptcy.[4] Although separate entries are made listing various activities, it is unclear what the subject of these activities were. For example, there are numerous entries regarding legal research and drafting of pleadings but it is unclear exactly what legal question was researched or which pleadings were drafted. We know however, that work of this kind was done in this case. When all is said and done, "There is no precise rule or formula for making [reasonable attorney fee] determinations. The . . . court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-437, 103 S.Ct. at 1941. Therefore, taking into account the limited success of the litigation, the reasonableness of the time expended and the hourly fee charged, the quest for advancement of the principles of the statute, its remedial nature, the harm prevented, and the lack of detail in the Application, we award attorney fees to Attorney Nelson in the amount of $12,270.00, plus costs in full of $874.91, for a total of $13,144.91. Equicredit requests an extension of time to file an appeal of the $2,000.00 Judgment, stating that its failure to do so timely is excusable. Fed.R.Bankr.P. 8002 provides that upon expiration of the time for filing the notice of appeal, the bankruptcy judge may extend the time for filing the notice of appeal for a period not to exceed twenty days, if a request is made within that twenty day period and there is a "showing of excusable neglect." Fed.R.Bankr.P. 8002(c)(2). In this case, the $2,000.00 Judgment was filed on April 16, 2004. The Motion to Extend Time was filed on May 17, 2004. The twenty day extension period expired on May 16, 2004. Consequently, the Motion to Extend Time was not timely filed. However, we note that Equicredit's decision not to file an appeal of the $2,000 Judgment was admittedly intentional and conscious, based on financial considerations. See Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (Authorizing relief in cases where the failure was the result of *709 excusable neglect, not as to incidents where neglect is excusable in light of current knowledge); In re F/S Communications Corp., 59 B.R. 824 (Bankr.N.D.Ga.1986) (Strict standard of excusable neglect applies to motions to extend time for filing appeal under Fed. R. Bankr.P. 8002). Equicredit had notice of the appeal period. It also had notice that pursuant to the TILA, the award of attorney fees to the prevailing party was mandatory. Therefore, we find there is ample basis to deny the Motion to Extend Time for Filing an Appeal of the $2000.00 Judgment. Equicredit's untimely filing of the request to extend the time to file the appeal, coupled with its intentional decision to forego its appeal rights, and its notice of the law, enforce this conclusion. As stated earlier however, this Opinion and Order Awarding Attorney Fees is subject to all appeal rights afforded by 28 U.S.C. § 158 and Fed. R. Bankr.P. 8001 et. seq. NOTES [1] Although in Hensley, the issue of attorney's fees was brought in the context of the Civil Rights Attorney's Fees Award Act of 1976, the Supreme Court made clear that "It is intended that the amount of fees awarded . . . be governed by the same standards which prevail in other types of equally complex Federal litigation . . . and not be reduced because the rights involved may be nonpecuniary in nature. In computing the fee, counsel for a prevailing party should be paid, as is traditional with attorneys compensated by a fee-paying client, `for all time reasonably expended on a matter.' "S.Rep. No. 94-1011, p. 6 (1976), U.S.Code Cong. & Admin. News 1976, pp. 5908, 5913. The Supreme Court also stated, "The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party." Hensley, 461 U.S. at 433, 103 S.Ct. 1933, 1939. [2] The twelve factors are: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the "undesirability" of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson, 488 F.2d at 717-719. [3] At this point it should be noted that Equicredit alone, retained two law firms in this adversary proceeding, and was represented by five attorneys. [4] The overriding concern behind the requirement of detailed fee applications in bankruptcy is conservation of the estate. Through the Bankruptcy Reform Act, Congress sought to repudiate a series of judicial decisions which set an arbitrary limit on fees in a quest to preserve the estate. However, detailed fee applications are required to enable the bankruptcy court to fulfill its obligation to examine carefully the requested compensation in order to ensure that the claimed expenses are justified. Pursuant to 11 U.S.C. § 330, "the compensation is to be reasonable, for economy in administration is the basic objective." S.Rep. No. 989, 95th Cong., 2d Sess. 40-41 (1978). We note however, that Attorney Nelson's was not appointed by the Bankruptcy Court and his fees will not be paid by the bankruptcy estate.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before COOK, CAMPANELLA, and HAIGHT Appellate Military Judges UNITED STATES, Appellee v. Specialist BRANDON C. BELCHER United States Army, Appellant ARMY 20110895 Third Army, United States Army Central Frank D. Whitney, Military Judge Colonel Stephanie L. Stephens, Staff Judge Advocate For Appellant: Colonel Edye U. Moran, JA; Captain James S. Trieschmann, Jr., JA (on brief). For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 31 July 2013 ------------------------------------- SUMMARY DISPOSITION ------------------------------------- CAMPANELLA, Judge: An officer panel sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of wrongful use of heroin on divers occasions while receiving special pay under 37 U.S.C § 310 and one specification of wrongful distribution of heroin on one occasion while receiving special pay under 37 USC § 310, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a bad conduct discharge, confinement for nine months, forfeiture of all pay and allowances, and reduction to the grade of E-1. Additionally, the convening authority deferred adjudged forfeitures until action and waived automatic forfeitures in the amount of $1,000.00 per month for a period of six months. This case is before this court for review pursuant to Article 66, UCMJ. After conducting our review of the record, we are not convinced beyond a reasonable doubt that the appellant used heroin on divers occasions. This issue merits discussion and relief. BELCHER—ARMY 20110895 BACKGROUND Appellant was charged with only one specification of wrongful use of heroin but on divers occasions, in violation of Article 112a, UCMJ. The specification alleged: In that [the appellant], U.S. Army, did at or near Camp Phoenix, Afghanistan, on divers occasions, between on or about 15 November 2010 and on or about 30 December 2010, wrongfully use Heroin, a schedule I controlled substance, while receiving special pay under 37 U.S.C. § 310. Appellant’s heroin use was discovered by his command after he tested positive, while deployed, during a 100% unit urinalysis. At trial, without the benefit of a pretrial agreement, appellant pleaded not guilty to use of heroin on divers occasions but guilty to the use of heroin on only one occasion. Appellant further pleaded not guilty to the distribution of heroin on divers occasions. During the providence inquiry, appellant admitted he obtained heroin from a local national and ingested it on 29 December 2010, at Camp Phoenix, Afghanistan. Appellant admitted he knew the substance was heroin when he ingested it and that his use was wrongful. He then acknowledged testing positive on the unit urinalysis conducted the day after his heroin use. Following appellant’s guilty plea inquiry, t he government attempted to prove up appellant’s use of heroin on divers occasions and his distribution of heroin on divers occasions. Appellant was tried before an officer panel on the remaining specifications. The government built its case upon two witnesses who testified they observed appellant using heroin, the appellant’s positive urinalysis, and a non-commissioned officer who testified he observed behavior by appellant which he believed to be indicative of drug use for the approximate charged period of time in question. First, Specialist (SPC) KS, testifying under a grant of immunity, stated he witnessed appellant use heroin on only one occasion, that Private (PVT) LP was present on this occassion, and that a unit urinalysis was conducted the following day. On cross-examination, defense counsel questioned SPC KS regarding how many times he actually observed the appellant use heroin. SPC KS’s testimony was consistent in that he stated he witnessed the appellant use heroin on only one occasion. 2 BELCHER—ARMY 20110895 The government then called PVT LP. Private LP was another soldier in appellant’s unit. Private LP testified under a grant of immunity, and with the benefit of a pretrial agreement. Private LP specifically testified that over a two to four hour period, while SPC KS was present, he witnessed the a ppellant use heroin two to four times. He also testified that a unit urinalysis was conducted within the next twenty- four to forty-eight hours after this occasion. He further testified that he only witnessed the appellant use heroin on that one occasion during the two to four hour period. As to the testing of the urine sample, the government called Major (MAJ) DS, commander of the Forensic Toxicology Drug Testing Laboratory at Tripler Army Medical Center. On direct-examination, the government questioned MAJ DS on the scientific background of the drug testing procedures. D efense counsel then cross- examined MAJ DS as follows: DC: . . . all of that data you just testified to, you cannot say that [the appellant] ingested on more than one occasion, correct? MAJ DS: No. DC: You cannot say that, correct? MAJ DS: I cannot. During its case in rebuttal, the government called Sergeant (SGT) JJ in an apparent attempt to establish that the appellant used heroin on multiple dates within the charged time bracket. As a basis for his testimony, SGT JJ testified that he took courses “like DARE,” (an apparent reference to “Drug Abuse Resistance Education”) college courses in psychology, and drug prevention classes provided by the Army, as well as his experiences witnessing his father after he used [unspecified] drugs. Based on SGT JJ’s experience and his observation of the appellant’s behavior, SGT JJ testified he believed appellant was under the influence of drugs for a period of approximately three weeks. He based his opinion on appellant’s bloodshot eyes, pale complexion, a change in demeanor, seeing him vomit, and appellant’s declining duty performance. The government neither offered nor established SGT JJ as an expert witness. Ultimately, the panel found the appellant guilty of heroin use on divers occasions between on or about 15 November 2010 and 30 December 2010 and distribution of heroin on or about 29 December 2010. 3 BELCHER—ARMY 20110895 LAW AND DISCUSSION Having reviewed the evidence in the record, we are not convinced beyond a reasonable doubt of appellant’s guilt as to specification 1 of Charge 1, as it relates to “divers occasions.” We find, however, the evidence does sufficiently supports, both legally and factually, a finding that the appellant used heroin on one occasion, on or about 29 December 2010. Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we will approve only those findings of guilt we determine to be correct in both law and fact. The test for legal sufficiency is whether, when the evidence is viewed in the light most favorable to the government, any rational fact finder co uld have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The test for factual sufficiency is whether, after weighing the evidence and making allowances for not having observed the witnesses, we ourselves are convinced of the appellant's guilt beyond a reasonable dou bt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). We apply the latter test in the present case. The evidence elicited from SPC KS and PVT LP indicates they both witnessed appellant use heroin on the same day. Each testified the other was present during the time frame they witnessed appellant use heroin. Each said they only saw the appellant use heroin on one occasion. Each said the urinalysis was conducted within the next day or two after witnessing appellant’s heroin use. The positive urinalysis corroborates the date appellant and PVT LP used heroin, in that both tests were positive for heroin. Additionally, the government’s laboratory expert could not confirm more than one use of heroin by appellant. The government attempted to establish “divers occasions” by eliciting from PVT LP that he witnessed appellant use heroin between two to four times over an approximately two to four hour period. Private LP described a series of acts or occurrences which constituted a single course of criminal conduct. We find, therefore, that the appellant’s multiple ingestions of the same drug from the same original supply over a period of hours at the same location on the same date, were but one criminal act. The only other evidence that appellant used heroin on more than one occasion during the three week period charged was SGT JJ’s lay testimony that the appellant appeared to be on drugs for approximately a three week period. We find this evidence insufficient to prove appellant used heroin on more than one occasi on. Therefore, we find the evidence factually insufficient to find appellant guilty of using heroin on divers occasions and will take appropriate action in our decretal paragraph. We find, however, the evidence to be both legally and factually 4 BELCHER—ARMY 20110895 sufficient to support the finding of guilty as to appellant’s use of heroin on one occasion. CONCLUSION On consideration of the entire record, we approve and affirm only so much of Specification 1 of The Charge as finds appellant did at or near Camp Phoenix, Afghanistan, on 29 December 2010, wrongfully use heroin, a Schedule I controlled substance, while receiving special pay under 37 U.S.C. § 310. The remaining findings of Guilty are AFFIRMED. Reassessing the sentence on the basis of the factual insufficienc y noted, the entire record, and in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion in Moffeit, the sentence is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside by this decis ion, are ordered restored. See UCMJ art. 75(a). Senior Judge COOK and Judge HAIGHT concur. FOR THE COURT: ANTHONY O. POTTINGER ANTHONY O. POTTINGER Chief Deputy Clerk Chief Deputy Clerk of Court of Court 5 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 18, 2008 No. 06-41771 Charles R. Fulbruge III Summary Calendar Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. VICTOR HUGO ALVARADO-AYALA, also known as Jose Luis Romero Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-2683-ALL Before GARWOOD, WIENER and BARKSDALE, Circuit Judges. PER CURIAM:* Victor Hugo Alvarado-Ayala, an alien, pleaded guilty to violating 8 U.S.C. § 1326 by illegally reentering the United States after being deported. In December 2006 the district court sentenced him to 41 months’ imprisonment, and he now appeals. We affirm. Alvarado-Ayala claims that the circumstances attendant to his manslaughter conviction counsel in favor of a sentence below the guidelines * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 06-41771 range. He asserts that his manslaughter conviction was, ultimately, the product of a mistake that Oregon authorities made when they improperly prosecuted him for murder although he was a juvenile. The ensuing murder conviction was later reduced to first degree manslaughter as the result of a stipulation between Alvarado-Ayala and the State of Oregon in a federal habeas proceeding. We do not have jurisdiction to review the district court’s denial of Alvarado-Ayala’s motion for a downward departure. United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S.Ct. 163 (2007). There is an exception to this rule where the defendant points to something in the record indicating that the district court held an erroneous belief that it lacked the authority to depart. United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999). Based on a review of the record, we see no indication that the district court believed that it lacked the authority to grant a downward departure. Nor does anything in the record even suggest that the district court believed it lacked the authority to impose a below-guideline sentence under United States v. Booker, 543 U.S. 220 (2005). Nevertheless, a defendant, like Alvarado-Ayala, whose motion for a downward departure has been overruled may still argue on appeal that his sentence was unreasonable because the district court “failed adequately to consider factors counseling in favor of a downward departure.” Nikonova, 480 F.3d at 375. This court reviews a sentence within a properly calculated guideline range for reasonableness. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In reviewing for reasonableness, an appellate court “merely asks whether the trial court abused its discretion.” Rita v. United States, 127 S.Ct. 2456, 2465 (2007). It is proper for an appellate court to rebuttably presume the reasonableness of a district court’s sentence which reflects a proper application of the Sentencing Guidelines. Id. at 2462-63. A district court’s sentencing decision is entitled to great deference. Gall v. United States, 128 S.Ct. 586, 597- 2  No. 06-41771 98 (2007) (fact that appellate court might reasonably impose different sentence is insufficient justification for reversal of district court). Our review of the record does not reveal that the district court committed any procedural error or failed to address or improperly balanced the sentencing factors set forth in 18 U.S.C. § 3553(a). Moreover, when a sentence is within a properly calculated guidelines range, this court infers that the district court considered all of the guidelines factors. United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). Having considered Alvarado-Ayala’s arguments, the district court crafted a sentence at the bottom of the advisory guideline range that it believed to be just. The district court did not abuse its discretion in doing so. Alvarado-Ayala alternatively contends, for the first time on appeal, that his sentence is infected with error because this court’s post-Booker jurisprudence erroneously and unduly restricted the ability of district courts to give nonguideline sentences. As neither this contention nor anything like it was raised below, our review is only for plain error. There is none. It is not clear or plain that our post-Booker jurisprudence is erroneous in this respect. Nor does anything in the record suggest that the district court likely would have given a lesser sentence but for some such aspect of our post-Booker jurisprudence (or that it otherwise felt constrained to give a within guideline range sentence despite believing that a lesser sentence would be more appropriate under 18 U.S.C. § 3553(a) apart from the guidelines). That the district court consciously elected to sentence within the guidelines does not suffice to demonstrate reversible error. Nor may error be predicated on the fact that this court on appeal affords a rebuttable presumption of reasonableness to a district court’s sentence that reflects a proper application of the guidelines, despite the fact that it “may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences.” Rita, 127 S.Ct. at 2467. 3  No. 06-41771 Finally, light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alvarado- Ayala challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated-felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This court has stated that this issue is “fully foreclosed from further debate.” United States v. Pineda- Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008). AFFIRMED. 4 

1 F.3d 1231NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Danny M. KELLY, Plaintiff, Appellant,v.Niles L. NORDBERG, et al., Defendants, Appellees. No. 93-1138. United States Court of Appeals,First Circuit. August 17, 1993 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Danny M. Kelly on brief pro se. Scott Harshbarger, Attorney General, and Steve Berenson, Assistant Attorney General, on Memorandum in Support of Appellee's Motion for Summary Affirmance, for appellee. D. Mass. VACATED AND REMANDED. Before Breyer, Chief Judge, Selya and Stahl, Circuit Judges. Per Curiam. 1 The narrow question before us is whether plaintiff was required to exhaust state administrative remedies before bringing this suit. Plaintiff appears pro se seeking unspecified damages, injunctive and declaratory relief against the Massachusetts Department of Employment and Training's ("DET's") practice of disqualifying for unemployment benefits those persons who travel outside of the State for the dual purpose of seeking work and engaging in other activities. The district court granted to defendant a judgment on the pleadings. We vacate and remand without prejudice to consideration of any other issue in the case. 2 A grant of judgment on the pleadings is subject to plenary review. International Paper Co. v. Jay, 928 F.2d 480, 482 (1st Cir. 1991). We accept as true all of the non-movant's factual allegations and draw all reasonable inferences in his favor. Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991). We are aided here by the parties' apparent agreement as to the administrative posture of plaintiff's claim. 3 According to the complaint, plaintiff was qualified to receive unemployment benefits of $282 per week beginning in September, 1991, after he lost his job as a software engineer at Wang Laboratories. He sought new employment locally and in the midwest. When he filed a required periodic claim for benefits in December, 1991, he certified that he would be in Chicago, Illinois from December 23, 1991 until January 5, 1992. He alleged that his reason for travel was to look for work and to visit family and friends. He also certified that while he was there he actively sought work, and was "available" for employment.1 4 The DET denied plaintiff any benefits for the two weeks he was in Chicago because of the dual purpose of his trip. According to both parties' pleadings, the agency's rule, as reflected in its "Service Representative Handbook," is that a claimant who travels or stays outside of the registration area must do so "for the SOLE purpose of seeking new employment or reporting for a pre-arranged job or job interview" in order to qualify for benefits.2 Answer Exh. D., Complaint p 7. Based on plaintiff's written answers to questions about his trip, a DET adjudicator decided that plaintiff's trip "did not meet the requirements of the law because ... looking for employment was not the sole purpose of the trip." Answer p 7, Exh. D. 5 Under M.G.L. c. 151A, Sec. 39(b), a claimant may seek reconsideration of the DET's initial determination by requesting a de novo hearing before a review examiner. In the absence of such a request, the initial determination is final. The parties agree that plaintiff did not request agency review, but the DET spontaneously treated plaintiff's correspondence as a notice of appeal, advising plaintiff of a hearing date. Plaintiff did not appear at the scheduled hearing and did not respond to a further notice from the DET offering to consider any justifications for his failure to appear. DET dismissed the appeal. 6 Plaintiff instead filed this complaint pro se alleging that DET's travel rule unconstitutionally infringed on his right to travel and to enjoy the same benefits as lifelong residents of Massachusetts.3 Defendant answered and moved for judgment on the pleadings on the ground that plaintiff had failed to exhaust his administrative remedies and failed to state a claim. At the hearing on the motion, the judge inquired whether DET was still willing to afford a hearing on plaintiff's claim and gave DET two weeks to respond to the question.4 DET answered with an affidavit stating that it would reschedule a hearing if the plaintiff showed satisfactory reasons for his initial failure to appear. The judge then dismissed the instant action for failure to exhaust administrative remedies, "in view of the Commissioner's willingness to afford what appears to be a meaningful hearing on the merits." 7 We sense in the district court's decision an attempt to fashion an equitable solution to a practical dilemma. The DET procedure strikes us as affording to a pro se plaintiff the benefit of a fast, streamlined, and certainly less expensive procedure for litigating the issue he urges upon the federal courts.5 Moreover, requiring exhaustion of administrative remedies normally "serves the interests of accuracy, efficiency, agency autonomy and judicial economy." Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981). While common sense would seem to dictate that plaintiff ought to avail himself of the benefits of the state forum, plaintiff here adamantly insists, as he did in his memorandum below, that he has deliberately chosen to bypass the state's procedure in favor of a federal forum. 8 The court cannot insist on exhaustion of state remedies as a prerequisite to a federal suit, however, where Congress has left that choice to the plaintiff. Reading plaintiff's complaint liberally, especially in light of his pro se status, it appears to assert a claim under 42 U.S.C. Sec. 1983, in that plaintiff alleges that the state defendant adopted a policy which violates his right to equal protection of the laws, and impedes his constitutional right to interstate travel.6 It may also be read as attempting to state a claim for violation by state officials of Title III of the Social Security Act, 42 U.S.C. Sec. 503(a)(1), which requires states receiving federal funds to provide for "methods of administration ... that are ... reasonably calculated to assure full payment of unemployment compensation when due." The courts have consistently recognized a private right of action for equitable relief to enforce this provision.7 9 "It is now firmly settled that exhaustion or resort to state remedies is not a prerequisite to a Sec. 1983 claim." Miller v. Hull, 878 F.2d 523 (1st Cir.) (citing Patsy v. Board of Regents, 457 U.S. 496 (1982)), cert. denied, 493 U.S. 976 (1989). A section 1983 claimant who alleges that he has been injured by an unconstitutional practice need not pursue state administrative remedies "but may proceed directly to federal court" in order to press his claims. Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 260 (1st Cir. 1987) (while abstention may be warranted where a civil rights plaintiff seeks to use the federal courts to nullify an ongoing coercive state proceeding, where the plaintiff is given the option to initiate a state proceeding, the Patsy rule prevails), cert. denied, 486 U.S. 1044 (1988). Cf. Darby v. Cisneros, 1993 U.S. LEXIS 4246 at (June 21, 1993) (in suit under the APA federal courts do not have the authority to require a plaintiff to exhaust administrative remedies where neither statute nor rules mandate administrative appeals in order to render the agency action final, citing Patsy with approval). 10 And the cases recognizing a private right of action to enforce 42 U.S.C. Sec. 503 leave little doubt that state administrative exhaustion cannot be required where the challenge is to a state rule that allegedly conflicts with the "payment ... when due" provision. See, e.g., Java, 402 U.S. at 121 (where private plaintiffs brought class action challenging state practice of suspending unemployment benefits pending appeal, suit commenced before conclusion of administrative hearings allowed, without discussion); Wheeler v. Vermont, 335 F. Supp. 856, 860 (D. Vt. 1971) (exhaustion of state administrative remedies not required where claimant challenges agency's initial redetermination practice and terminates benefits before a hearing); cf. International Union, UAW v. Brock, 477 U.S. 274 (1986) (citing cases decided under 42 U.S.C. Sec. 503 for holding that Eleventh Amendment does not bar suits challenging application of federal guidelines to benefit claims, even though individual eligibility for benefits may be confined to state processes); Shaw v. Valdez, 819 F.2d 965, 966 n.2 (10th Cir. 1987) (availability of state judicial remedies does not bar private suit challenging state's notice provisions under Sec. 503(a)(3) where deprivation is allegedly caused by established state procedure, rather than random or unauthorized act). 11 Exhaustion is not required in cases challenging system wide errors at the initial benefits determination stage because of the economic aims of the statute. Prompt replacement of wages is vital to effectuate "[b]oth the humane (or redistributive) objectives of unemployment insurance and its macroeconomic objective (dampening the business cycle by keeping up the purchasing power of people laid off in a recession) ... " Jenkins, 691 F.2d at 1229 (Posner, J.); see also Java, 402 U.S. at 131-32 (Congress' intention in enacting Sec. 503(a)(1) was to assure both purposes by making payments available at the earliest stage that is administratively feasible). While individual administrative appeals may effectively correct errors in individual cases, the process may not result in speedy correction of systemic errors at the initial determination stage. Cf. Schoolcraft v. Sullivan, 971 F.2d 81, 87 (8th Cir. 1992) (under statute allowing discretionary waiver of exhaustion requirements, applying similar reasoning to waive requirement). 12 In conclusion we decide here only the exhaustion of remedies issue presented to us. We express no opinion on any other question of justiciability, including standing, ripeness, mootness, or the like. And as our footnotes repeatedly emphasize we express no opinion on the merits of plaintiff's claims, the desirability of the relief sought, nor the ability of these claims to withstand a proper motion for summary judgment or other dismissal on the merits. 13 Vacated and remanded. 1 Under Massachusetts' Employment Security Law, to be eligible for unemployment compensation during any week a claimant must provide evidence to the employment office that he is available for and actively engaged in a systematic and sustained effort to obtain work. M.G.L. c. 151A, Secs. 24, 30 2 The record does not explain DET's rulemaking practices, but we note a suggestion in the case law that agency rules relating to eligibility are frequently incorporated into circulars, rather than the Code of Massachusetts Regulations ("CMR"). See Grand v. Director of the Div. of Employment Sec., 393 Mass. 477, 480-81, 472 N.E.2d 250, 252 (1984) (rejecting claimant's argument that review examiner acted without standards when he held claimant's job search to be inadequate, because agency's circularized notice "constitutes a guideline or standard set forth by the division"). We note, too, rules in the CMR for interstate claims subject to plans approved by the Interstate Conference of Employment Security Agencies. See 430 C.M.R. Secs. 4.02, 4.05; see also M.G.L. c. 151A, Sec. 66. There are insufficient facts in this record to determine the relevancy, if any, of the codified rules 3 Claimants who remained in the State were allowed benefits if they actively sought work "at least three days a week and made at least four job contacts/week," according to a 1984 Supreme Judicial Court opinion. Grand, 393 Mass. at 481, 472 N.E. at 252. The record before us offers no facts as to DET's current eligibility rules for those who remain in the state while seeking work, facts against which any claim of unequal treatment necessarily must be measured. Without a full record we imply no opinion as to the ability of the instant claim to withstand a motion to dismiss on the merits 4 Since the parties have not provided a transcript of the hearing, our understanding of the proceedings below is limited to the judge's abbreviated written orders 5 Plaintiff maintains that an agency factual hearing would be futile since the examiner would have no power to change the DET's admitted policy, only to award benefits. However, state law also provides a subsequent discretionary appeal to the Board of Review, which is expressly empowered to search the record for errors of law as well as fact. M.G.L. c. 151A, Secs. 40, 41. And claimants are further afforded a streamlined method for appeal to the state's district courts where jurisdiction includes any constitutional errors, errors of law or procedure. M.G.L. c. 151A, Sec. 42; M.G.L. c. 30, Sec. 14(7) 6 We emphasize again that the record is too slim to assess the ability of these claims to withstand a proper motion to dismiss on the merits. We have before us no information on basic issues like the actual burden, if any, on interstate travel or commerce and the state's legitimate interest or need for the rule. Moreover the factual basis for plaintiff's unequal treatment claim is not clear, see supra n.3. See generally Hooper v. Bernalillo County Assessor, 472 U.S. 612, 624 (1985); Zobel v. Williams, 457 U.S. 55, 58-65 (1982); Jones v. Helms, 452 U.S. 412, 417-22 (1981); Shapiro v. Thompson, 394 U.S. 618 (1969) (overruled in part on another and by Edelman v. Jordan, 416 U.S. 1000 (1974)); Edwards v. California, 314 U.S. 160 (1941); Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). We observe only that general federal question jurisdiction is sufficiently pleaded under 28 U.S.C. Sec. 1331. See Charles A. Wright et. al., 5 Federal Practice and Procedure Sec. 1209 (2d Ed. Supp. 1993) 7 See California Dep't of Human Resources Dev. v. Java, 402 U.S. 121 (1971); Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471 (1977). Though the statute contains no language allowing a private action, to assure state compliance, the result makes "practical sense." Jenkins v. Bowling, 691 F.2d 1225, 1228 (7th Cir. 1982); see also Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987); Wilkinson v. Abrams, 627 F.2d 650 (3d Cir. 1980); Pennington v. Ward, 1989 U.S. Dist. LEXIS 7651, at (N.D. Ill.) (citing Maine v. Thiboutot, 448 U.S. 1 (1980) for point that Sec. 1983 embraces claims that state defendants violated rights secured by statute); Brewer v. Cantrell, 622 F. Supp. 1320 (W.D. Va. 1985), aff'd without op., 796 F.2d 472 (4th Cir. 1986) Payment "when due" is interpreted by the federal regulations to mean with "the greatest promptness that is administratively feasible," 20 C.F.R. Sec. 640.3(a). We have not been offered a direct explanation of DET's procedure for handling travel claims, but its brief suggests that the travel rule is an initial administrative "rule of thumb." DET states that despite the "sole purpose" language in the rule and the dual purpose of plaintiff's trip, plaintiff's benefits could have been reinstated at a factual hearing. A review examiner, we are told, could have weighed evidence of the comparative time plaintiff devoted to seeking work versus the time he spent on personal matters to arrive at a result different from that mandated by the rule. We read this as implying that DET initially denies benefits to claimants who travel for a dual purpose as an administrative "rule of thumb" subject to change on appeal in individual cases. Whether this procedure is one sufficiently calculated to result in payment "when due" within the meaning of 42 U.S.C. Sec. 503(a)(1), is a fact specific issue which we cannot meaningfully assess on the rudimentary record before us. See Fusari v. Steinberg, 419 U.S. 379, 387, 389 (1975). Nor can we determine the relevancy, if any, of the federal statute encouraging certain interstate payments and procedures on behalf of unemployed workers who relocate while seeking employment. See 26 U.S.C. Sec. 3304(B)(9); see also M.G.L. c. 151A, Sec. 66.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-7185 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SHAUN A. BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Frederick P. Stamp, Jr., District Judge. (CR-00-7-2, CA-02-22-2) Submitted: October 9, 2003 Decided: October 21, 2003 Before LUTTIG, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Shaun A. Brooks, Appellant Pro Se. Sherry L. Muncy, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia; Paul Thomas Camilletti, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Shaun A. Brooks seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2000) motion. Brooks cannot appeal this order unless a circuit judge or justice issues a certificate of appealability, and a certificate of appealability will not issue absent a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A habeas appellant meets this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, , 123 S. Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S. 941 (2001). We have independently reviewed the record and conclude Brooks has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

27 Cal.App.2d 240 (1938) NELLA MARIE WIRES, Appellant, v. Dr. ELMER W. LITLE, Respondent. Civ. No. 11793. California Court of Appeals. Second Appellate District, Division Two.-- June 23, 1938. Morris Lavine for Appellant. W. I. Gilbert for Respondent. WOOD, J. The plaintiff seeks by this action to recover damages which she alleges were caused by the malpractice of defendant. The action was tried with a jury and upon the termination of plaintiff's evidence the trial court granted a motion for a nonsuit. Plaintiff appeals from the judgment thereafter entered. According to the evidence presented by plaintiff, she was working on Saturday, March 2, 1935, as a seamstress and accidentally ran a needle into her right ring finger through the second joint, where part of it became imbedded. She was taken to the office of defendant, a physician, who was asked to remove the needle. It was shortly after noon and defendant was about to leave his office, but he stated that he was familiar with that type of case and would have no trouble in removing the needle. At the time plaintiff went to defendant's office her hand was discolored by a dark stain from the goods upon which she had been working. Defendant did not wash the finger or hand but swabbed the finger with a liquid which he stated was iodine. Defendant tried to locate the needle with a Zio-Lite, but was not able to do so. He sent plaintiff to Dr. Ekes, a dentist in the building, who had X-ray equipment for taking pictures of teeth. An X-ray picture was taken, but it was not clear or distinct. Dr. Ekes stated that the picture was not clear because it was wet and that it should have been allowed to stand for some time after being washed, but that this was not done because of the shortness of the time. He also stated that "it was not *242 very clear and distinct, because I am not in the habit of taking X-rays, only of matters of dentistry". Although the needle could not be seen from the picture that was taken, no effort was made to secure another picture. Defendant made an incision in the finger and probed for the needle for from four to five minutes without locating it. He put some gauze in the wound to establish drainage, stitched up the side of the incision and bandaged the finger and hand. He gave plaintiff a box of pills to relieve pain and sent her home with instructions to come back the following Monday morning in order to get X-ray pictures. He gave her no further advice or instructions. Saturday evening the hand became very painful and on Sunday efforts were made to telephone to defendant, but he could not be located. The finger and hand became swollen and in order to relieve pain plaintiff cut the bandages. She became feverish and ill. Plaintiff was taken on Monday morning to Dr. Henderson, who found evidence of infection. An X-ray picture was taken and plaintiff was sent to a hospital, where her hand was put under a fluoroscope and the needle was extracted. Her arm became swollen up to the shoulder and she was treated by Dr. Henderson for two or three weeks, after which time she was sent to the General Hospital, where her finger was amputated. Dr. Henderson testified that plaintiff was suffering from blood poisoning and that although the infection was present when the needle entered the finger, it could not be controlled otherwise than by subsequent treatment and that the removal of the needle accompanied by free bleeding and washing reduces the possibility of infection. He further testified that plaintiff's general physical condition was not good in that her resistance was low, that she "appeared to be tired and exhausted and worn out from probably a little too continuous hard work". Dr. Burnight qualified as a medical expert. He testified that he was acquainted with the usual and customary practice in this type of case in Los Angeles; that the effect of leaving a needle in the finger of a person in a run-down condition would be to cause trauma or injury to the tissue and that if allowed to remain it would undoubtedly set up infection; that the leaving of the needle in the tissue was the primary cause of the infection and that as it became more advanced it would develop gangrene. He further testified *243 that it is the usual and ordinary custom in this community to take an X-ray of a finger before it is incised for the purpose of removing a needle; that where an X-ray is faded and the needle is entirely incased in the finger and not visible to the eye, it would not be the customary and usual practice in this community for a doctor to cut and incise the finger relying upon that type of an X-ray; that due to the infection, and pressure from the swelling, all the tissues and blood vessels in the immediate vicinity would become infected and deteriorated so as to stop the natural flow of the blood stream, resulting in gangrene; that when gangrene sets in amputation is necessary to save the life of the patient. [1] The rules to be applied in the case of a motion for a nonsuit are too well established to require the citation of authority. The trial court must assume that all the evidence in plaintiff's favor is true and every favorable inference fairly deducible from the evidence and every favorable presumption fairly arising from the evidence must be drawn in plaintiff's favor. Measured by these rules it must be held that the issues should have been submitted to the jury. We are not unmindful of the general rule, which is relied upon by defendant, that in cases of malpractice it must be shown by expert testimony that the damages suffered by plaintiff resulted from the failure of the defendant to possess and use that degree of care and skill ordinarily possessed and used by physicians and surgeons in good standing practicing in the locality. The testimony of the experts in the case now before us was sufficient to meet the requirements of the general rule, considered in connection with the facts established by the lay witnesses. Even in actions for malpractice the jury can consider without the testimony of experts matters which are within the common knowledge of mankind. Although it is necessary that experts be called to establish matters peculiarly within the knowledge of experts there are also "facts which may be ascertained by the ordinary use of the senses of a nonexpert". (Barham v. Widing, 210 Cal. 206 [291 P. 173].) If the defendant had undertaken to remove a needle from the ring finger but had made an incision in the thumb it could not be successfully argued that an expert witness would be necessary to establish negligence. In Rankin v. Mills, 207 Cal. 438, 441 [278 P. 1044], the court stated: "Expert testimony appears in the record to the effect that, *244 under such conditions, and in view of the fact that no improvement occurred in the limb under the treatment for dislocation of the hip, the next step, logically and scientifically, was to investigate further the nature of the injury by taking X-ray pictures. Indeed, this would seem so obvious as to be a permissible inference without expert testimony on the subject, as would be the conclusion that a failure to do this was negligence." (See, also, Thomsen v. Burgeson, 26 Cal.App.2d 235 [79 PaCal.2d 136]; Evans v. Roberts, 172 Iowa, 653 [154 N.W. 923].) It might be well argued that it is a matter of common knowledge that a needle accidentally embedded in the finger of a seamstress might cause infection if not promptly extracted; that a clear X-ray picture would be of assistance to the surgeon; and that if an indistinct picture be secured from a dental office an effort should be made to secure a clear picture from those equipped with apparatus for that purpose. Plaintiff complains that the trial court unduly curtailed the examination of the expert witnesses. In several instances the court erroneously sustained objections to plaintiff's questions. It would prolong this opinion unnecessarily to set forth the various questions, a number of which, being hypothetical, were quite lengthy. Upon a new trial it is to be assumed that the rulings on the admission of evidence will be correctly made. For the purposes of this appeal it is sufficient to state that if a verdict had been rendered in plaintiff's favor it would have found ample support in the evidence admitted. The judgment is reversed. The attempted appeal from the order denying a motion for a new trial is dismissed. Crail, P. J., and McComb, J., concurred. A petition by respondent to have the cause heard in the Supreme Court was denied on August 22, 1938, and the following opinion was then rendered: THE COURT. The petition for hearing in this court after decision by the District Court of Appeal of the Second Appellate District, Division Two, is denied. However, such denial is not to be taken as indicating approval by this court of the discussion concerning matters of common knowledge *245 which, it is said, a jury may properly consider in an action for malpractice. HOUSER, J., Concurring. I concur in the general order by which a hearing of the cause by this court is denied; but I am not in accord with that part of the order which is to the effect that the denial of the petition for hearing in this court "is not to be taken as indicating approval by this court of the discussion concerning matters of common knowledge", etc. The language which occurs in the opinion of the District Court of Appeal to which the order has reference is as follows: "It might be well argued that it is a matter of common knowledge that a needle accidentally embedded in the finger of a seamstress might cause infection if not promptly extracted; that a clear X-ray picture would be of assistance to the surgeon; and that if an indistinct picture be secured from a dental office an effort should be made to secure a clear picture from those equipped with apparatus for that purpose." (Emphasis added.) It is obvious that an order of denial of hearing which contains express language that "such denial is not to be taken as indicating approval by this court" of specified discussion which appears in the opinion of the District Court of Appeal, is the equivalent, and is but another way of stating, that the criticized portion of the opinion is disapproved. At the outset, it may be observed that it is questionable whether this court is constitutionally empowered or authorized as an incident to the instant proceeding, either specifically to approve or to "disapprove" of any declaration of law that has been made by the District Court of Appeal. Of course, it must be conceded that the constitutional provisions are the source of power of the Supreme Court. Apparently sections 4 and 4c of article VI of the Constitution contain the only provisions that have a bearing upon such assumed authority. In the former section, it is provided that "the said court shall have appellate jurisdiction in all cases, matters and proceedings pending before a District Court of appeal, which shall be ordered by the Supreme Court to be transferred to itself for hearing and decision, as hereinafter provided"; and the pertinent provision of the latter section is that "the Supreme Court shall have power ... to *246 order any cause pending before a District Court of Appeal to be heard and determined by the Supreme Court". (Emphasis added.) With respect to the instant inquiry, the jurisdiction of the Supreme Court is thus established, and is as fixed as is the jurisdiction of any other court. The constitutional provisions in that regard contemplate only that either a hearing of a cause shall be granted, or that it shall be denied. No middle course is available. If a hearing be granted, manifestly the cause is then before the court for determination; and in that event such a decision and opinion may be rendered as may accord with the views of a majority of the members of the court. But should the petition for a hearing be denied, by no constitutional provision is it implied or even suggested that the court possesses any power other than to make its unqualified order to that effect. In that regard, neither direct nor implied authority is conferred upon the Supreme Court either to modify an opinion theretofore rendered by a District Court of Appeal, or to exercise any sort of supervisory control with reference thereto. It is obvious that without and in the absence of a regular hearing of a cause, if the Supreme Court has authority to modify such a decision or opinion in any particular, it should follow that the court may so modify the decision or the opinion as to render it of no effect;--in other words, it might "modify" an opinion of the District Court of Appeal out of existence; and at the same time, in the place of such "modified" opinion, either expressly or impliedly, substitute an opinion and decision which might be to the same effect as that theretofore rendered by the District Court of Appeal, or, at its pleasure or option, expressly reach an opposite conclusion, accompanied by an appropriate opinion,--all without any hearing having been granted. But even assuming the existence of the constitutional power in this court which herein has been exercised, it is not clear that the "discussion" to which the order herein has made reference, and regarding which "approval by this court" is withheld, does not constitute a fair and correct expression of the law in the matter to which it relates. Directing attention to the opening words of the "discussion" which apply to each of the several statements thereafter following, it will be noted, not that a positive declaration *247 is made with reference thereto, but only that "it might be well argued that it is a matter of common knowledge", etc. Otherwise stated, the opinion does not purport to declare that either in fact or in law it is a matter of common knowledge, but only that whether such conditions exist may be debatable. In that light, I fail to discern any ground for "disapproval" by this court. Although not admitted, even should it be conceded that by the criticized language of the District Court of Appeal, an impression was sought to be conveyed that the specified statements actually constituted and were "matters of common knowledge", again I must confess my inability to detect any error therein. Is it not a fact that practically every one knows that either a needle or any other foreign substance which may become "embedded (either) in the finger", or in any other part of the body "might (may) cause infection if not promptly extracted"? And in these more advanced days, is there any responsible person who does not know that in treating a patient who has been so unfortunate as to have a broken needle embedded in a finger joint, "a clear X-ray picture (of such joint) would be of assistance to the surgeon"? Furthermore, would not common sense indicate that if in the first instance a poor or "indistinct picture be secured", either from a dental office or from any other source, "an effort should be made to secure a clear picture from those equipped with apparatus for that purpose"? A denial of the existence of such knowledge on the part of the average layman amounts to a refusal to accredit to him any observation whatsoever relating to the most common and ordinary conditions that surround transactions and happenings of our daily life. (Emphasis added.) Nor in my judgment may it properly be declared that either of such assumed statements regarding that which may constitute "judicial notice" was erroneous. In 23 C.J., pages 58, 59, 61, it is declared that "The term 'judicial notice' means no more than that the court will bring to its aid and consider, without proof of the facts, its knowledge of those matters of public concern which are known by all well-informed persons. ... Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence." And as affecting a situation such *248 as here is in question, in 15 Ruling Case Law, pages 1101 and 1130 (where many judicial illustrations are cited) it is respectively stated that "Courts will take judicial notice of those facts relating to human life, health, habits and acts known to men of ordinary understanding, ...; the general rule is that it is the duty of a court to take judicial cognizance of all matters affecting the public health which are of certainty to general or scientific knowledge. ..." Within cited cases where it has been held that the court may "take judicial notice" of facts which may include and affect the physical condition of persons, the following several rulings appear: The size of an ordinary man is a matter of common knowledge, which extends not only to height and thickness of the body as a whole, but also to the measurement of the various parts; a man could not accidentally fall through a hole of a certain size; the destruction of the sight of one eye impairs the general power of vision; the instinct of self-preservation will be judicially noticed; also the effect of fright or exposure on the nervous system; the habits and qualities of the more common animals; certain strains and breeds of animals of the same species are more valuable than others; certain objects or events are or are not such as to frighten horses of ordinary gentleness; Texas cattle have some contagious or infectious disease, communicable to native cattle outside that state; certain animals are the natural enemies of others; epilepsy tends to weaken mental force, and often descends from parent to child, or entails upon the offspring of the sufferer some other grave form of nervous malady; man's susceptibility to certain diseases; means or method by which disease spreads from one victim to another; diseases of the skin may be spread in barbershops; reclamation of swamp and overflowed lands may concern the public health; considerations of public health necessitates that streets be kept clean of refuse; hogs kept within thickly populated cities tend to create a condition hazardous to the public health; a high, rank growth of weeds in a thickly populated district tends to injuriously affect the health of the inhabitants; the manufacture of wearing apparel in unsanitary and overcrowded working quarters may promote or spread disease; and that long hours in certain employments are injurious to health. *249 As a conclusion, it is clear to my mind that that part of the order to which reference hereinbefore has been had, is erroneous.

94 U.S. 741 (1876) CORCORAN v. CHESAPEAKE AND OHIO CANAL COMPANY. Supreme Court of United States. Mr. J.D. McPherson, Mr. Conway Robinson, and Mr. Joseph Bryan, for the appellant. Mr. John P. Poe and Mr. Bernard Carter, for the appellee MR. JUSTICE MILLER delivered the opinion of the court. The Chesapeake and Ohio Canal Company, from the date of its organization in 1824-25, issued several series of bonds, secured by as many mortgages on its property. The largest of these mortgages was the earliest, and was given to the State of Maryland for several millions of dollars; another was made to the State of Virginia; both of which States contributed largely, by the use of their credit, to the construction of this important work. In the last stages of the struggle to extend the canal to Cumberland, where it reached the coal-beds, which alone have made it of any value, the company issued another series of bonds to the amount of $1,700,000, for the payment of which it *742 pledged, by way of mortgage, the revenues and tolls of the canal, after deducting the necessary costs of running the canal and its repairs, and perhaps some other defined outlays. In this mortgage, Corcoran, the complainant and appellant in the present suit, was one of several trustees for the benefit of the bondholders. He also became, and according to the statements of the present bill is now, a larger holder of these bonds, or of the coupons for interest on them. The purpose of this bill, which was filed by him on behalf of himself and all others in like condition as holders of this class of bonds, is to enforce the payment of the coupons of interest due and unpaid for many years past. The defendants to the bill are the Chesapeake and Ohio Canal Company, the State of Maryland, and the remaining trustees of the mortgage bonds on which the suit is founded. They have all answered, except the State of Maryland. The answer of the trustees is unimportant. The canal company admit the indebtedness and the failure to pay, but deny that, under the reservations of the mortgage of the tolls and revenues in plaintiff's mortgage, there is now or has been in their hands any part of the said revenues which they could lawfully appropriate to the payment of said coupons, except so far as they have already done so. After several amendments of the pleadings and stipulations as to facts, the issue was finally narrowed to two questions; namely, the jurisdiction of the Supreme Court of the District, and the right of the holders of the interest coupons to exact out of the net revenues of the company payment of interest on those coupons from the respective dates when they fell due. The first of these questions is raised by the proposition of the defendants, the canal company, that the State of Maryland is a necessary party to this suit; and, as she has not voluntarily appeared, and cannot be made amenable to any process to compel an appearance, the bill must be dismissed on that ground. In the view which this court takes of the other question, and as the court has jurisdiction as to the canal company, it is unnecessary to consider or decide this one. In reference to the question of interest upon the interest coupons, the canal company, in its answer to complainant's bill, *743 alleges that, in a suit brought by the State of Virginia in the Circuit Court of Baltimore City, to which suit the present complainant and his co-trustees, the State of Maryland, the canal company and others, representing all the various classes of bondholders, were parties, "the issue raised in this case, that the coupons upon said preferred bonds are entitled to bear interest from their maturity, which is to be allowed payment out of the revenues of this respondent in preference to the claims of the State of Maryland, was distinctly presented, was argued, amongst others, by the solicitors of complainant in this case, and was decided by the court in opposition to the claims of said complainant as then asserted and as reiterated in the bill in this case." The record of that suit, including the opinion of the Court of Appeals and the brief of the counsel of the present appellant, are made exhibits. The bill of the State of Virginia distinctly claims interest upon the coupons which she held, standing in the same relation as those of the appellant here. The right to that interest as a preference to the debt of the State of Maryland is denied by the answers of the canal company and of the State of Maryland. Corcoran and his co-trustees submit all those matters to the decision of the court. It was, therefore, properly in issue. Indeed, the whole subject of priority of lien as to the revenues and tolls of the canal was before the court and was the very matter to be decided, and necessarily included the question whether the State of Maryland in the statute by which she waived her prior lien, so far as the revenues of the company were concerned, in favor of the class of bonds and coupons held by the State of Virginia, and those represented by Corcoran, as trustee, included interest upon interest, or only principal and current interest. The opinion of the Court of Appeals of Maryland, found in the record as an exhibit, and reported in 32 Md. 501, while conceding the general rule, that where the annual or semiannual interest on a bond is represented by a distinct coupon, capable of separation and removal from the main instrument, it bears interest from its maturity, if unpaid; holds that, under the special statute of Maryland authorizing the pledge by the canal company of its revenues for the payment of these preferred *744 bonds and interest, and waiving her own existing priority of claim on those revenues, simple interest only was meant, and that as to the lien on those revenues and tolls, the interest on the coupons was not included in the lien. The opinion, undoubtedly, decides the very point in controversy here. It is said, however, that this is only an opinion, and that unless a judgment or decree is produced there can be no estoppel; and the principle asserted is undoubtedly correct. But, in a stipulation signed by the parties to the present suit, it is agreed "that a decree has been passed by the Circuit Court of Baltimore City making distribution of the net revenues of said canal company, and ordering their payment from time to time as the same accrue, in conformity with the said opinion." The opinion of the court, then, by virtue of that decree, has become, by the well-settled principles of jurisprudence, the law of the case as to the parties who are bound by that decree. In avoidance of the application of this doctrine to the present case several objections are urged, some of which are answered sufficiently by the foregoing statement of the record of that suit. We will notice one or two others. It is said that Corcoran and his co-trustees, the canal company, and the State of Maryland, were all defendants to that suit, and that as between them no issue was raised by the pleadings on this question, and no adversary proceedings were had. The answer is, that in chancery suits, where parties are often made defendants because they will not join as plaintiffs, who are yet necessary parties, it has long been settled that adverse interests as between co-defendants may be passed upon and decided, and if the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree. It is to be observed, also, that the very object of that suit was to determine the order of distribution of the net revenue of the canal company, and that the Corcoran trustees were made defendants for no other purpose than that they might be bound by that decree. And, lastly, as the decree did undoubtedly dispose of that question, its conclusiveness cannot now be *745 assailed collaterally on a question of pleading, when it is clear that the issue was fairly made and was argued by Corcoran's counsel, as is shown by the third head of their brief, made a part of this record by stipulation. It is also argued that in that suit Corcoran was only a party in his representative capacity of trustee, and he here sues in his individual character as owner of the bonds and coupons, and in this latter capacity is not bound by that decree. But why is he not bound? It was his duty as trustee to represent and protect the holders of these bonds; and for that reason he was made a party, and he faithfully discharged that duty. It would be a new and very dangerous doctrine in the equity practice to hold that the cestui que trust is not bound by the decree against his trustee in the very matter of the trust for which he was appointed. If Corcoran owned any of these bonds and coupons then, he is bound, because he was representing himself. If he has bought them since, he is bound as privy to the person who was represented. Kerrison, Assignee, v. Stewart et al., 93 U.S. 155, and the authorities there collected. It seems to us very clear that the question we are now called on to decide has been already decided by a court of competent jurisdiction, which had before it the parties to the present suit; that it was decided on an issue properly raised, to which issue both complainant and defendant here were parties, and in which the appellant here was actually heard by his own counsel; and that it therefore falls within the statutory rule of law which makes such a decision final and conclusive between the parties, and that none of the exceptions to that rule exists in this case. Decree affirmed. MR. JUSTICE CLIFFORD dissented.

496 F.2d 1119 Marc Aurele JEANTY and Maxence Jeanty, Plaintiffs-Appellants,v.McKEY & POAGUE, INC., et al., Defendants-Appellees. No. 73-1634. United States Court of Appeals, Seventh Circuit. Argued April 9, 1974.Decided May 23, 1974. Douglas C. Nohlgren, Robert G. Schwemm, Chicago, Ill., for plaintiffs-appellants. Raymond H. Groble, Jr., Joseph H. Taylor, Sr., Chicago, Ill., for defendants-appellees. Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and NOLAND,* District Judge. NOLAND, District Judge. This action under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et seq.) arises from plaintiffs' assertions that the defendants refused to rent an apartment to them on the basis of their race. After trial the District Court dismissed the complaint as to defendants McKey and Poague, Inc., and its employees, defendants George M. Hiles and H. M. Migely. The Court entered judgment against defendant Presbitero & Sons, Inc., awarding $701.64 in damages, costs and attorneys' fees. Plaintiffs contend that the Trial Court erred in dismissing the defendant rental management company and its employees and in awarding inadequate damages and attorneys' fees. With respect to the plaintiffs' first contention, the Trial Court found that the plaintiffs made application to lease the premises in question and were refused on the ground that the defendant owner would no longer rent to single men. The Court found further that the reason given was a subterfuge and concluded that the refusal to rent to the plaintiffs was racially discriminatory. On the basis of these findings the dismissal of the complaint as to McKey & Poague and its employees, Presbitero's exclusive rental agents, cannot be sustained. Though the management agreement between McKey and Poague and Presbitero states that 'Leases and tenants shall be approved by the owner,' the evidence disclosed that, whoever decided not to rent to the plaintiffs, the discriminatory acts alleged were performed by McKey & Poague's employees. It is well established that agents will be liable for their own unlawful conduct, even where their actions were at the behest of the principal. Sanborn v. Wagner, 354 F.Supp. 291, 295 (D.Md.1973); Young v. AAA Realty Co. of Greensboro, Inc., 350 F.Supp. 1382, 1387 (M.D.N.Car.1972); Williamson v. Hampton Management Company, 339 F.Supp. 1146, 1149 (N.D.Ill.1972). Plaintiffs next contend that the Trial Court erred in limiting its award of compensatory damages to $100.00, representing plaintiffs' out-of-pocket expenses. It appears from the District Court's opinion that the Court considered only out-of-pocket costs in determining the amount of compensatory damages to be awarded. However, recovery may also be had for emotional distress and humiliation, Steele v. Title Realty Company, 478 F.2d 380, 384 (10th Cir. 1973); Smith v. Sol D. Adler Realty Company, 436 F.2d 344, 351 (7th Cir. 1970) and the Court therefore should have considered this element in arriving at the damage award figure. The plaintiffs next contend that the Trial Court erred in refusing to award punitive damages. In making this determination the Court appears to have considered solely the personality of plaintiff Marc Aurele Jeanty as it appeared to the Trial Judge during that plaintiff's testimony. Upon remand, the appropriate consideration in deciding the issue of punitive damages is the motive and attitude of the defendants in refusing the apartment in question to the plaintiffs. Thus, while punitive damages are not to be allowed for every Title VIII violation, in each case the Court should consider whether or not the defendants acted wantonly and wilfully, Wright v. Kaine Realty, 352 F.Supp. 222, 223 (N.D.Ill.1972) or were motivated in their actions by ill will, malice, or a desire to injure the plaintiffs. Steele v. Title Realty Company, supra at 384. Finally, plaintiffs assert that the Trial Court erred in limiting attorneys' fees awarded to $400. In view of the substantial time expenditure involved by plaintiffs' highly qualified counsel in bringing this action and the several hearings involved, we feel that the question of attorneys' fees should be reconsidered. Plaintiffs have also requested in their brief that they be awarded attorney fees for the appeal.1 The court has the authority under 42 U.S.C. 3612(c) to award attorney fees when the plaintiff, as here, is financially unable to assume them. Steele v. Title Realty Company, 478 F.2d at 385. The general policy behind the award of attorney fees was set forth by the Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Although that case was under Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(a), the language is equally applicable to a Title VIII action: When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees-- not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II, 390 U.S. at 401-02, 88 S.Ct. 966. We accordingly award attorney fees for this appeal to the plaintiff in the sum of $1,000. The judgment appealed from is therefore reversed and the cause remanded under terms of Circuit Rule 23 for further proceedings consistent with this order. Defendants are to bear the costs and attorney fees of this appeal except for the cost of the appendix which shall be borne by the plaintiffs. Reversed and remanded. * District Judge James E. Noland of the Southern District of Indiana is sitting by designation 1 The defendant did not oppose this request

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT JOE ESCOBAR, : No. 94 EM 2017 : Petitioner : : : v. : : : D.A. KELLEY B. HODGES, ESQ.; AND : D.J. SUZANNE I. SCHULMAN, : : Respondents : ORDER PER CURIAM AND NOW, this 19th day of October, 2017, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED. 

950 A.2d 829 (2008) 405 Md. 292 UNIVERSITY GARDENS v. PRINCE GEORGE'S COUNTY. Pet. Docket No. 115. Court of Appeals of Maryland. Denied June 20, 2008. Petition for writ of certiorari denied.

Filed 4/30/09 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2009 ND 74 Farmers Union Oil Company of Garrison, d/b/a Cenex, Plaintiff and Appellee v. George A. Smetana, Carolyn J. Smetana, Defendants and Appellants           and Lewis Bauer, Constance T. Scheel, and Constance M. Narad,                                                                               Defendants No. 20080158 Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge. REVERSED AND REMANDED. Opinion of the Court by Kapsner, Justice. Michael Geiermann, Schulz Geiermann & Bergeson Law Offices, P.C., P.O. Box 2196, Bismarck, N.D. 58502-2196, for plaintiff and appellee. James G. Wolff, Farhart Wolff, P.C., 600 22nd Avenue NW, Minot, N.D. 58703, for defendants and appellants. Farmers Union v. Smetana No. 20080158 Kapsner, Justice. [¶1] George and Carolyn Smetana appeal from a district court summary judgment reforming a deed and quieting title to a disputed tract of property in favor of Farmers Union Oil Company of Garrison, doing business as Cenex (“Cenex”).  We reverse and remand for further proceedings, concluding the district court erred in determining that, as a matter of law, the Smetanas were not good faith purchasers for value. I [¶2] In the early 1990s, Cenex and Lewis Bauer owned adjacent properties in Garrison.  Bauer owned the northernmost 196 feet of Lots 13 and 14 in Block 1 of the McLean County Addition to the City of Garrison.  Cenex owned the remainder of Lots 13 and 14 lying south of Bauer’s property. There was a house on the northern end of Bauer’s property, and Cenex operated a convenience store and gas station on its part of the property.   [¶3] In March 1992, Cenex contacted Bauer about purchasing a portion of his property.  Using a tree on Bauer’s lot as a reference point, Bauer and Cenex representatives “stepped off” the parcel to be sold and, using a tape measure, determined that the intended parcel was 116 to 117 feet long.  On March 30, 1992, Bauer executed a deed to Cenex conveying: The Southern most 116 feet of the Northern most 196 feet of Lots Thirteen (13) and Fourteen (14) in Block One (1) of McLean County Addition to the City of Garrison, State of North Dakota, all in McLean County. By the terms of the deed, Bauer retained the northernmost 80 feet of Lots 13 and 14, including the house.  Bauer erected a fence adjacent to the tree, running east to west, marking what Cenex and Bauer believed to be the boundary between their properties. [¶4] In 1996, Bauer sold his property, including the house, to Constance Scheel and Constance Narad.  In 2000, Scheel and Narad sold the property to the Smetanas.  Both deeds described the property transferred as the northernmost 80 feet of Lots 13 and 14. [¶5] In 2005, the Smetanas learned that their house did not lie entirely within the northernmost 80 feet of Lots 13 and 14.  They hired a surveyor, who determined that approximately two-thirds of their house extended beyond the northern boundary of Lots 13 and 14, into a vacated street right-of-way owned by the City of Garrison.  According to the survey, the northern 80 feet of Lots 13 and 14 begins in the middle of the Smetanas’ house and extends 42 feet to the south of the fence which had been erected by Bauer.  After the discrepancies were discovered, the City of Garrison executed a quit claim deed transferring a fifty-foot wide strip directly north of Lots 13 and 14 to the Smetanas for one dollar. [¶6] In 2007, Cenex brought this action seeking to quiet title to the disputed 42- foot strip lying between the fence and the actual boundary line. The Smetanas counterclaimed, requesting that title to the disputed property be quieted in them and seeking damages for trespass.  Cenex moved for summary judgment, arguing Bauer and Cenex had intended that Cenex would receive all of the property up to the fence and seeking reformation of the original 1992 deed from Bauer to Cenex.  The district court found it was the intention of Bauer and Cenex that Cenex would purchase the property south of the fence and that the descriptions in the 1992 deed were the result of a mutual mistake. The court therefore ordered that the 1992 deed be reformed to indicate Cenex purchased property running 116 feet to the south “starting at the southern edge of the fence on the Smetana property,” and summary judgment was entered quieting title to the disputed parcel in Cenex.   II [¶7] The Smetanas have attempted to appeal from the district court’s “Order Granting Plaintiff’s Motion for Summary Judgment.”  An order granting summary judgment is not appealable.   E.g. , Alerus Financial, N.A. v. Western State Bank , 2008 ND 104, ¶ 15, 750 N.W.2d 412; Wheeler v. Gardner , 2006 ND 24, ¶ 6, 708 N.W.2d 908.  An attempted appeal from the order granting summary judgment will, however, be treated as an appeal from a subsequently entered consistent judgment, if one exists.   Alerus Financial , at ¶ 15; Wheeler , at ¶ 6.  Because a consistent judgment was subsequently entered in this case, we will treat the Smetanas’ appeal as an appeal from the judgment. III [¶8] We outlined the relevant standards governing summary judgment in Hasper v. Center Mut. Ins. Co. , 2006 ND 220, ¶ 5, 723 N.W.2d 409 (citations omitted): Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.  A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.  In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record.  On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law.  Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. [¶9] Although the district court purported to resolve this case on Cenex’s motion for summary judgment, the court issued “Findings of Fact, Conclusions of Law, and Order for Judgment,” including 54 separate findings of fact encompassing twelve pages.  In its brief on appeal, Cenex argues that “[s]ince this matter was subject to Summary Judgment, it is governed by the principles of Summary Judgment and the clearly erroneous rule under North Dakota Rule of Civil Procedure 52(a).”  Cenex thereby demonstrates a misconception of the fundamental principles governing summary judgment. [¶10] On a motion for summary judgment, the district court’s “role is limited to determining whether the evidence and inferences to be drawn therefrom, when viewed in the light most favorable to the party opposing summary judgment, demonstrate that there are no genuine issues of material fact.”   Heng v. Rotech Med. Corp. , 2004 ND 204, ¶ 34, 688 N.W.2d 389.  This Court has repeatedly held that summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment.   See Heng , at ¶ 34; Campbell Farms v. Wald ,1998 ND 85, ¶ 11, 578 N.W.2d 96; Wachter Dev., L.L.C. v. Gomke , 544 N.W.2d 127, 131 (N.D. 1996); Greenfield v. Thill , 521 N.W.2d 87, 92 (N.D. 1994); Red River Human Servs. Found. v. State , 477 N.W.2d 225, 229 (N.D. 1991); Brown v. North Dakota State Univ. , 372 N.W.2d 879, 883 (N.D. 1985); Albers v. NoDak Racing Club, Inc. , 256 N.W.2d 355, 359 (N.D. 1977).  The district court may not weigh the evidence, determine credibility, or attempt to discern the truth of the matter when ruling on a motion for summary judgment.   Heng , at ¶ 34; Schaefer v. Souris River Telecomm. Coop. , 2000 ND 187, ¶ 8, 618 N.W.2d 175; Opp v. Source One Mgmt., Inc. , 1999 ND 52, ¶ 16, 591 N.W.2d 101.  Because findings of fact are inappropriate on a motion for summary judgment, the clearly erroneous standard set out in N.D.R.Civ.P. 52(a), which governs our review of a district court’s findings of fact in a bench trial, is inapplicable to our review of the court’s resolution of a motion for summary judgment. [¶11] A motion for summary judgment is not an opportunity to conduct a mini-trial.  If there are disputed issues of material fact that require resolution by findings of fact, the party opposing summary judgment is entitled to present its evidence to a finder of fact in a full trial.   See Albers , 256 N.W.2d at 359 (“[i]t was not the purpose of [summary judgment] to require a party to try his case on affidavits with no opportunity to cross-examine witnesses”) (quoting Dulansky v. Iowa-Illinois Gas & Elec. Co. ,191 F.2d 881, 883 (8th Cir. 1951)).   [¶12] Although the existence of findings of fact ordinarily indicates that the district court deemed it necessary to resolve factual disputes and make findings of fact, see Brown , 372 N.W.2d at 883; Albers , 256 N.W.2d at 359, in this case the district court expressly stated that there were no genuine issues of material fact.  Under the unusual circumstances presented in this case, we will proceed to review whether summary judgment was warranted based upon the record before the district court.  That issue is a question of law which we review de novo.   Hasper , 2006 ND 220, ¶ 5, 723 N.W.2d 409.   IV [¶13] The dispositive issue on appeal is whether the district court could have concluded, as a matter of law, that the Smetanas were not good faith purchasers for value. [¶14] Reformation of a deed is governed by N.D.C.C. § 32-04-17: When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value. Reformation under N.D.C.C. § 32-04-17 is an equitable remedy.   E.g. , Ritter, Laber and Assocs., Inc. v. Koch Oil, Inc. , 2007 ND 163, ¶ 12, 740 N.W.2d 67; Anderson v. Selby , 2005 ND 126, ¶ 8, 700 N.W.2d 696; Wehner v. Schroeder , 354 N.W.2d 674, 677 (N.D. 1984).  A court may grant reformation of a written instrument to correct a mutual mistake “when justice and conscience so dictate.”   Ritter, Laber and Assocs. , at ¶ 13 (quoting Ell v. Ell , 295 N.W.2d 143, 150 (N.D. 1980)); Wehner , at 678.  Each case seeking reformation of a written agreement must be determined on its own facts and circumstances.   Anderson , at ¶ 9.   [¶15] The Smetanas argue they purchased the property “in good faith and for value” and that the original 1992 deed therefore cannot be reformed because it cannot be done without affecting their rights.  “Good faith” is defined in N.D.C.C. § 1-01-21: Good faith shall consist in an honest intention to abstain from taking any unconscientious advantage of another even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. The determination whether a party acted in good faith under N.D.C.C. § 1-01-21 is a question of fact.   Ballensky v. Flattum-Riemers , 2006 ND 127, ¶ 27, 716 N.W.2d 110. [¶16] In Diocese of Bismarck Trust v. Ramada, Inc. , 553 N.W.2d 760, 768 (N.D. 1996) (citations omitted), this Court addressed the concepts of good faith and notice in the context of reformation of a deed under N.D.C.C. § 32-04-17: Under N.D.C.C. § 32-04-17, a good faith purchaser must acquire rights without actual or constructive notice of another’s rights.  Actual notice consists of express information of a fact, N.D.C.C. § 1-01-23, while constructive notice is notice imputed by law to a person having no actual notice. N.D.C.C. § 1-01-24. Under N.D.C.C. § 1-01-25, a person who has actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular fact and who omits to make an inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.  The issues of good faith and constructive notice are similar in that they both require an examination of the information possessed by a person.  The information, however, need not be so detailed as to communicate a complete description of an opposing interest; instead, the information must be sufficient to assert the existence of an interest as a fact, which in turn gives rise to a duty to investigate.  In making inquiry, a person must exercise reasonable diligence; a superficial inquiry is not enough. A party’s status as a good faith purchaser without notice of a competing interest is a mixed question of fact and law.  The factual circumstances relating to events surrounding the transaction–the realities disclosed by the evidence as distinguished from their legal effect–constitute the findings of fact necessary to determine whether a party has attained the status of a good faith purchaser without notice.  A court’s ultimate determination that a party is not a good faith purchaser for value is a conclusion of law, because that determination describes the legal effect of the underlying factual circumstances. [¶17] The district court in this case made a “finding” that the Smetanas “had at least constructive notice of Cenex’s interest in the property because of the existence and placement of the fence and because of Cenex’s use of the property.”  As previously noted, although the district court made “findings of fact,” for purposes of reviewing the summary judgment we will presume the district court meant that, as a matter of law, the Smetanas had constructive notice which precluded their status as good faith purchasers for value.  The district court and Cenex, however, have misconstrued the type of notice that was required to be shown.  The crucial question in this case is not whether the Smetanas had notice of the existence of the fence and Cenex’s use of the property up to the fence.  The crucial question is whether that knowledge placed the Smetanas on constructive notice of the mistake in the 1992 Bauer/Cenex deed which resulted in the discrepancy in placement of the legal boundaries between the two parcels. [¶18] Under our statutory definition of “good faith,” a party acts without good faith if he has “information or belief of facts which would render the transaction unconscientious.”  N.D.C.C. § 1-01-21.  In the context of reformation, such information must provide constructive notice of the specific defect to be cured by reformation: When a bona fide purchaser acquires an interest in land and makes an investment in the land, that party is entitled to have his or her expectations protected. This is in accord with the principles behind the recording acts.  A person should not be deprived of his or her investment when he or she had no means of discovering the defect.  As a result, reformation is available only against the parties to the transaction and against those who have notice of the defect which is sought to be cured by reformation . 14 Richard R. Powell, Powell on Real Property § 81A.07[3][d] (Michael Allan Wolf ed., 2009) (emphasis added; citation and footnotes omitted).  Professor Lord states the rule in a similar fashion: To avoid reformation of an instrument, one must be both a subsequent purchaser for value and have no notice (before purchase) of the problematic situation.  Notice can be acquired directly or indirectly by any means sufficient to place a reasonable purchaser on alert of a situation out of the ordinary. 27 Richard A. Lord, Williston on Contracts § 70:46 (4th ed. 2003) (footnote omitted). [¶19] The “problematic situation” in this case was the discrepancy between the description in the 1992 Bauer/Cenex deed and the location of the fence on the property.  The location of the fence and Cenex’s use of the property up to the fence did not conclusively place the Smetanas on notice that this was a “situation out of the ordinary.”  Under N.D.C.C. § 1-01-21, the Smetanas would gain an “unconscientious” advantage and lose their status as good faith purchasers only if they had notice that there was some problem or discrepancy with the boundary.   [¶20] A review of the record title would have shown that, on their face, the various deeds were consistent.  Bauer owned the northernmost 196 feet of Lots 13 and 14 in 1992.  He deeded the southernmost 116 feet of his property to Cenex, and the northernmost 80 feet to Scheel and Narad, who subsequently deeded the 80 feet to the Smetanas.  Purchasers of real property “have a right to rely on recorded public records,” and mutual mistakes in earlier deeds “cannot be corrected to the prejudice of third parties who have relied on the public records.”  27 Lord, supra , at § 70:47; see also 14 Powell, supra , at § 81A.07[3][d].  Because of the equitable nature of the remedy, “reformation is unavailable where its application would inflict an injury upon innocent parties as a result of an act of which they had no knowledge and for which they were not responsible, especially when reformation is sought by one who has committed some careless or negligent act.”  27 Lord, supra , at § 70:45.  The “act” which has caused injury to the Smetanas is the error in the 1992 deed, and unless they had constructive or actual notice of that “act” the Smetanas acted in good faith when they purchased the property.    [¶21] In Levien v. Fiala , 902 P.2d 170 (Wash. Ct. App. 1995), the court addressed the nature of notice required to preclude a purchaser’s good faith status under facts similar to this case.  In Levien , the Fialas had purchased property designated as Lot 23 and placed a chain link fence along the property. The fence encroached upon neighboring property, Lot 25, and cut off a 175 square foot triangular strip of land in Lot 25.  The Riddells, owners of Lot 25, executed a quit claim deed for the triangular piece of property to the Fialas.  This deed was not recorded.  The Riddells then sold Lot 25 to Levien. When Levien subsequently learned that the triangular strip was actually within Lot 25 and the fence encroached upon Lot 25, she sued to quiet title and for trespass.  The court of appeals noted that the trial court found the chain link fence was sufficient to put a reasonable person on notice that the owners of Lots 23 and 25 considered the fence the boundary between their properties, but agreed with the trial court’s conclusion that that was not the relevant issue: As noted above, the trial court found that the chain link fence was sufficient to prompt a reasonable person to conclude that the owners of Lots 23 and 25 considered the fence the boundary between their properties. The trial court, however, separated this finding from the question whether the fence’s presence was sufficient to put a person of average prudence on inquiry notice as to a possible discrepancy between it and the boundary shown on the plat. Here, the evidence was sufficient for the trial court to find that Levien lacked the information that would put a reasonable person on inquiry notice and, thus, for it to conclude that Levien was a good faith purchaser for value entitled to the protection of Washington’s recording statute. Id. at 173.  The court therefore concluded: Thus, the trial court did not err in finding that the chain link fence was not sufficient to put Levien on notice that she was receiving less than the 70- by 110-foot lot described in the statutory warranty deed.  The missing shallow triangle apparently was not detectable to the untrained eye, and Levien had no other way of knowing of the existence of the quit claim deed, since it had not been recorded and since she was not informed of its existence by the Riddells. Id. at 174.   [¶22] The same issue is presented in this case.  Although the presence of the fence may have been notice that the parties believed the fence was the boundary between  their properties, the critical, separate question is whether the presence of the fence was sufficient to put the Smetanas on notice of the discrepancy between the location of the fence and the boundary established in the recorded deeds.  Reformation is available against the Smetanas only if they had constructive notice of the discrepancy in the 1992 deed.  The district court erred when it concluded that, as a matter of law, the Smetanas had constructive notice of facts which precluded them from being good faith purchasers for value. [¶23] Cenex argues that it would be inequitable to allow the Smetanas to acquire the disputed 42-foot strip of property because they received the “benefit of their bargain” when the City deeded a portion of the abandoned street to them for a nominal price.  Cenex’s argument is disingenuous.  The City’s subsequent agreement to deed property underlying the house to the Smetanas does not “cure” their failure to receive the benefit of their bargain when they purportedly purchased 80 feet of Lots 13 and 14 from Scheel and Narad.  Under the district court’s judgment quieting title, the Smetanas would only receive the northernmost 38 feet of Lots 13 and 14 through their deed.  That result does not provide them with the benefit of their bargain with Scheel and Narad. [¶24] Cenex further argues the Smetanas would receive an inequitable windfall if they are allowed to acquire the disputed 42-foot strip, because they did not believe they were purchasing any property south of the fence.  The district court relied upon this argument in concluding: “The Court also finds Cenex’ equity argument compelling in that a decision in the Smetana’s favor would give them property they never intended to buy, and would deprive Cenex of property Cenex thought it had owned and had used since 1992.”  Ironically, Cenex and the district court apparently fail to realize that the judgment quieting title in Cenex creates a windfall to Cenex and deprives the Smetanas of property they believed they had purchased.  If the judgment is allowed to stand, Cenex will receive 158 feet of Lots 13 and 14 through their 1992 deed, rather than the 116 feet for which they contracted and paid.  Conversely, the Smetanas would receive only 38 feet of Lots 13 and 14, less than one-half of the 80 feet they paid for, through their deed from Scheel and Narad.  Because of the mistake in the 1992 deed, someone will ultimately be deprived of the full amount of property they believed they were purchasing.  If the Smetanas purchased in good faith and for value, the equitable remedy of reformation is not available if it will prejudice their rights.  N.D.C.C. § 32-04-17.   [¶25] We conclude the district court erred in determining that, as a matter of law, the Smetanas were not good faith purchasers for value. V [¶26] There are additional problems with the judgment entered in this case which we feel compelled to address to prevent a similar recurrence on remand.  The judgment purports to quiet title in the disputed property in Cenex, using the following language: That plaintiff, Farmers Union Oil Company of Garrison, d/b/a Cenex, is the sole owner in fee simple of the premises described in the complaint which consists of real property starting at the southern edge of the fence on the Smetana property described in the complaint and extending southward One hundred Sixteen (116) feet in Lots Thirteen (13) and Fourteen (14) in Block One (1) of the McLean County Addition to the city of Garrison, state of North Dakota, all in McLean County. [¶27] There are significant problems created by the language of the judgment.  The purpose of a quiet title judgment is to provide clarity and finality to legal ownership of a disputed parcel of property.   See 74 C.J.S. Quieting Title § 1 (2002) (the purpose of a quiet title action is “to clear up all doubts or disputes concerning land”).  In order to create that clarity and finality, the judgment must precisely describe the property in which title is quieted.  Thus, N.D.C.C. § 32-17-04 requires that, in a quiet title action, “the property must be described in the complaint with such certainty as to enable an officer upon execution to identify it.”  In Ward v. Shipp , 340 N.W.2d 14, 17 (N.D. 1983), this Court held that, in a quiet title action, evidence describing the property by referencing a fence line was insufficient to adequately describe the property.  If the judgment in this case were recorded, it provides little or no permanent guidance as to the exact property included within the judgment.  A judgment quieting title to land extending 116 feet southward from “the southern edge of the fence on the Smetana property” is only as final as the amount of time it takes to dismantle a fence.  It is easy to imagine that in ten, twenty, or thirty years the fence will be gone.  At that point, this quiet title judgment would be wholly ineffective.  A quiet title judgment should include precise description, rather than merely referencing an impermanent fence. VI [¶28] We have considered the remaining issues and arguments raised by the parties and find they are either unnecessary to our decision or are without merit.  We reverse the judgment and remand for further proceedings.   [¶29] Carol Ronning Kapsner Mary Muehlen Maring Daniel J. Crothers Dale V. Sandstrom VandeWalle, Chief Justice, concurring specially. [¶30] I agree that this case should not have been decided on a motion for summary judgment because there are fact questions which should be decided after a trial.  The majority opinion emphasizes the deeds to the property in determining whether or not the Smetanas were purchasers in good faith.  I also agree that the deeds are a significant factor in that determination.  I write separately to note that it is also significant whether the Smetanas intended to purchase only the property to the fence line, notwithstanding the legal description of the lot, or whether they intended to purchase the entire lot regardless of the fence.  Their knowledge and true intent can be determined only after a trial.   [¶31] Gerald W. VandeWalle, C.J.

547 F.2d 1164 Thomasv.Tribuiani No. 76-1620 United States Court of Appeals, Third Circuit 1/17/77 1 E.D.Pa. VACATED

NOT FOR PUBLICATION File Name: 06a0116n.06 Filed: February 14, 2006 No. 05-5447 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, ON APPEAL FROM THE v. UNITED STATES DISTRICT COURT FOR THE WESTERN HONEY LYNN WOLFE, DISTRICT OF KENTUCKY Defendant-Appellee. __________________________________/ BEFORE: SUHRHEINRICH and GRIFFIN, Circuit Judges, and HOOD,* District Judge. SUHRHEINRICH, J., Circuit Judge. The government appeals from an order of the district court suppressing incriminating statements made by Defendant Honey Lynn Wolfe (“Wolfe” or “Defendant”) during a murder investigation of an infant on a U.S. Army base. The issue presented is whether the taint from a temporary detention was sufficiently attenuated that Defendant’s subsequent incriminating statements are admissible in evidence. We hold that it was, and reverse and remand for further proceedings. I. Background Defendant, the wife of an American soldier stationed in Korea, was babysitting three-month- old infant Braydon Grover on the morning of August 6, 2002, at her home on the U.S. Army base at Fort Campbell, Kentucky. Braydon’s mother was stationed at Fort Campbell. At approximately * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. 10:30 a.m., Defendant called 911 to report that the child had stopped breathing. Paramedics were dispatched to the scene. They transported the child to the base hospital, where he was pronounced dead. At approximately 10:45 a.m., Military Policeman Sergeant Steven Wentzel arrived to investigate. According to Wentzel, Defendant told him that she had put the baby to sleep “at 0600 hours, and placed it face down, boxed in with blankets, because that’s the way the baby likes to sleep.” “She then said that she checked on the baby right before she called 911, because it wasn’t breathing.” “[S]he said at 0730 was the last time she heard the baby cry, because the baby would cry when it wasn’t sleeping.” Wentzel stated that Defendant told him that it normally took the baby about an hour to fall asleep and that “if it wasn’t sleeping it was always crying.” The military policemen secured the scene until agents from the Central Investigations Command (“CID”) arrived. CID Special Agent David Maier arrived at about 11:50 a.m. After being briefed by the military policemen, Maier asked Defendant if he could speak to her, and she agreed. She further agreed to go back to his office to discuss the matter. Maier stated that he did not tell Defendant that she had to go to the CID office. Maier did not read Defendant her Miranda rights at any point. Military police escorted Defendant to the CID office, which is about five minutes away from her home. Defendant was placed in the interview suite. Defendant waited there approximately two hours. The interview began about 2:00 p.m. Maier did not read Defendant her Miranda rights, because in his view, “to that point there was nothing that led me to believe that she had committed any crime.” During the course of the interview, one of Maier’s colleagues, Agent Shawn Burke, returned from the hospital with pictures of the baby, which had been taken at 11:56 a.m. The photographs showed lividity (pooled blood) on both the back and front of the baby. Maier felt that the -2- photographs raised “inconsistencies with the information that she had given me up until that point dealing with the time line and the way that she found the child and how that was inconsistent with the lividity found on the child.” Maier decided to advise Defendant of her Miranda rights, utilizing a DA form 3881, military rights waiver. Defendant stated that she understood her rights and executed the waiver. The interview ended around 4:30 p.m. FBI Special Agent Franklin Charles also interviewed Defendant. Charles asked Defendant if she would be willing to come back to the FBI office and take a polygraph examination, and Defendant assented. She further agreed to wait the three hours it would take for the polygraph examiner, FBI Special Agent Carl Christiansen, to arrive. Charles’ interview with Defendant ended at about 4:30 p.m. While waiting to be transported to the FBI office to take the polygraph examination, Defendant was kept in a locked holding area, which consisted of a room approximately seven feet by twenty feet with a bench. She was allowed to take smoking and bathroom breaks outside the room. The FBI asked Maier to get a written statement from Defendant, which he took at approximately 6:40 p.m. Defendant’s statement read: “I got drilled and questioned about what happened. Then they demanded a lie detector test. Now I’m writing–now I’m waiting on that. I have told the whole truth. No one believes me.” At approximately 7:30 p.m., a CID officer transported Defendant to the FBI office. Agent Charles, who was waiting for Defendant, introduced her to the polygraph examiner, Agent Christiansen. Christiansen testified that he made Defendant aware that she was not under arrest, and that “no matter what happened that evening she was not going to be arrested.” Defendant signed -3- a consent form.1 Christiansen also advised Defendant of her Miranda rights and she signed another form identifying those rights and waiving them, agreeing “to answer questions without a lawyer present.” The questioning and advice prior to the commencement of the polygraph examination took approximately an hour and a half. The polygraph examination itself lasted approximately fifteen minutes. The room where the questioning and examination took place was locked from the outside, but anyone inside the room could get out. After Christiansen analyzed the results of the polygraph examination, he concluded Defendant was lying about the day’s events. Christiansen told Defendant that, in his opinion, she was not being truthful, and that he “wanted to talk to her about that and try to figure out why she didn’t do well on the test.” Christiansen then questioned her for several more hours. Christiansen said that Defendant changed her story a number of times during this period of questioning, but that she eventually told him that she may have wrapped the baby so tight in a blanket that it stopped breathing.2 At this point, Christiansen called Agent Charles into the room. Christiansen asked 1 The consent form explained: “You have the right to refuse to take the polygraph test. If you agree to take the polygraph test, you have the right to stop the test at any time. If you agree to take the polygraph test, you have the right to refuse to answer any individual questions.” The consent form also contained the following acknowledgments: “I have read this statement of my rights and I understand what my rights are. I voluntarily agree to be examined by means of the polygraph during this interview. I understand what I am doing. No threats or promises have been used against me to obtain my consent to use the polygraph.” 2 The district court noted that in his notes, Christiansen recorded that Defendant agreed with him that she was in bed sleeping and that she snapped when the baby was crying and suffocated him. During the suppression hearing, however, Christiansen stated that Defendant volunteered the statement, rather than merely agreeing with his statement of the purported events. The court noted that Christiansen’s choice of words in his notes was ambiguous, in that one could agree with a statement and also freely volunteer a statement. On the other hand, “the choice could have significance.” The court also found that there was a credibility issue–namely between Christiansen’s account that Defendant’s denial that she made a confession at all. -4- Defendant to repeat to Charles what she allegedly had told to him. Defendant refused to say anything and the interview was terminated, at approximately 3:00 a.m. On November 5, 2003, Defendant was indicted on one count of second-degree murder, in violation of 18 U.S.C. § 1111. Defendant moved to suppress all statements that she made to the investigators. The government opposed the motion, arguing that Defendant’s “temporary detention” at the CID office “was supported by probable cause” and that “her statements to law enforcement authorities . . . should be admitted because they were entirely voluntary and consistent with her written waivers of her Miranda rights.” After holding an evidentiary hearing, the district court granted Defendant’s motion to suppress. The court found that Defendant “voluntarily agreed to go” to the CID office and was not under arrest when she was transported to the CID. The district court further found that Defendant was placed in custody when her Miranda rights were read to her at about 2:25 p.m. The district court held that the government did not have probable cause to arrest Defendant at that time. Specifically, the court determined that the photographs of the baby showing pooled blood on both the baby’s front and back were “not sufficient to establish probable cause,” because “they did not show that Ms. Wolfe had done anything wrong nor . . . lead to a reasonable conclusion that Ms. Wolfe’s statements were inconsistent.” The court held that the prosecution had not identified what statements made by Defendant led Maier to believe that she was not telling the truth, and, in fact, Maier had actually testified that Defendant “‘continued to provide [him] the same time lines of her story for the duration of [his] portion of the interview.’” Thus, the district court ruled that the prosecution had not met its burden of showing that there were inconsistencies within Defendant’s statements to justify Maier’s finding of probable cause. The district court therefore -5- concluded that Defendant was the victim of an illegal arrest that lacked probable cause, and that, as a result, her subsequent statements must be suppressed. Although it suppressed Defendant’s statements, the district court also made a finding that they were voluntary under the Fifth Amendment. The court felt that the length of the interrogation, the location of the interrogation, and the continuity of the interrogation were all factors that weighed in favor of finding the alleged confession was involuntary, but that the totality of the circumstances, did not demonstrate that Ms. Wolfe was coerced into an alleged confession. “Ms. Wolfe was read her Miranda rights, she was not mistreated in anyway [sic], she had a high school degree with some college education, she was 31 years old and married, and there is no basis for finding that the officers used coercive techniques.” The court granted the motion to suppress, however, “because Ms. Wolfe was arrested without probable cause.” The government moved for reconsideration, arguing that even if Defendant had been illegally arrested at the CID office, her statements at the FBI office were purged of any taint of that illegality because of intervening events and the passage of time, so that her subsequent statements to the FBI polygraph examiner should be admissible. The district court denied the government’s motion for reconsideration. The district court stated in pertinent part: The Supreme Court found that police misconduct . . . does not have to include physical abuse or a confession that was involuntary under the Fifth Amendment. Taylor v. Alabama, 457 U.S. 687, 693 (1982). Instead, it is enough that an interrogation takes place “in the hope that something would turn up.” Id. That is exactly what happened in this case. Ms. Wolfe was interrogated for hours by several different investigators hoping that they would get a “breakthrough.” The Supreme Court also noted that a longer length of time does not make a significant impact as an intervening circumstance where as here the defendant was in polic[e] custody, unrepresented by counsel, and questioned on several occasions. Id. at 691. After 2:25 p.m., Ms. Wolfe was in continuous custody and was being transported by officers, locked in a cell, interrogated, or [sic] given a break upon her request. Ms. Wolfe was not represented by counsel. In contrast to the Government’s assertion -6-  that Ms. Wolfe should have felt she was free to go, when Ms. Wolfe was asked to make a statement, she stated that the officers had demanded that she take a polygraph. No intervening circumstances have purged the taint from Ms. Wolfe’s illegal arrest. The United States appeals both rulings. II. Analysis A. Standard of Review This court reviews a district court’s findings of fact in a suppression hearing for clear error and its conclusions of law de novo. United States v. Lopez-Arias, 344 F.3d 623, 627 (6th Cir. 2003). B. Merits The government concedes that Defendant was unlawfully detained at the CID office when she was kept in a locked room for several hours while she waited to be transported to the FBI office to take the polygraph examination. The government further assumes for purposes of this appeal that there were insufficient grounds to detain her at that time. Notwithstanding, the government argues that Defendant’s inculpatory statements were not causally related to her period of detention at the CID office. Specifically, the government maintains that even if Defendant was unlawfully detained when she was held in a locked room at the CID office, the admissions she made at the FBI office approximately six hours later, after she failed the polygraph examination, were not the fruit of that unlawful detention. The government claims that the mild nature of the detention and its benign purpose, as well as the events intervening between that detention and Defendant’s admissions, establish that her admissions were sufficient acts of free will to purge the taint of any unlawful detention. See Brown v. Illinois, 422 U.S. 590, 602 (1975). -7-  An illegal detention or arrest does not render all subsequently discovered evidence inadmissible per se. Wong Sun v. United States, 371 U.S. 471 (1963). Rather, the question is “whether, granting establishment of the primary illegality, the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488 (quotation omitted). Thus, a confession obtained through custodial interrogation following an illegal arrest in violation of the Fourth Amendment must be excluded from evidence unless the confession was “‘sufficiently an act of free will to purge the primary taint.’” Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486). The threshold requirement for admissibility under Brown is that the confession must have been voluntary for purposes of the Fifth Amendment. Id. at 601-02. The Brown Court also articulated a number of factors that a court should take into account in determining the admissibility of a confession following a custodial arrest: The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factors to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. Brown, 422 U.S. at 603-04 (internal citations omitted). The government has the burden of proving the admissibility of a confession following an illegal arrest. Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam) 1. Voluntariness As noted, the threshold issue for admission under Brown is that the confession must have been voluntary for purposes of the Fifth Amendment. Brown, 422 U.S. at 602; accord United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003). The district court found that Defendant’s incriminatory -8- statements at the FBI office were voluntary under Fifth Amendment principles. As noted above, the court ruled that the totality of the circumstances did not demonstrate that Defendant was coerced into an alleged confession because she received her Miranda warnings, was not mistreated or subjected to coercive tactics, and has a high school education. Defendant does not contest this ruling. Thus, this factor supports the admission of Defendant’s alleged confession. With this in mind, we turn to the other Brown factors. 2. Temporal Proximity Before discussing the second Brown factor, we must consider the government’s argument concerning the establishment of the primary illegality, namely that Defendant was not in custody until around 4:30 p.m., when she was placed in the locked holding cell, and not at 2:30 p.m., after she was shown the photographs and read her Miranda rights, as the district court held. a. In Custody First, the government challenges the district court’s ruling that Defendant was “in custody by the time Agent Maier gave her the Miranda warnings at 2:25 p.m.” The government contends that Defendant was not detained prior to being confined in the locked holding area at the CID office. While it is true that Miranda warnings are required when “a suspect’s freedom of action is curtailed to a ‘degree associated with a formal arrest,’” Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)), the mere reading of Miranda warnings does not convert a noncustodial interview into a custodial interrogation, United States v. Lewis, 556 F.2d 446, 449 (6th Cir. 1977) (per curiam) (“The precaution of giving Miranda rights in what is thought could be a non-custodial interview should not be deterred by -9- interpreting the giving of such rights as a restraint on the suspect, converting a non-custodial interview into a custodial interrogation for Miranda purposes.”). The district court’s ruling that Defendant was in custody at the CID office when she was read her Miranda rights at approximately 2:25 p.m. was based on the view that custody resulted from Maier’s act of giving those warnings and Maier’s subjective belief that he had probable cause to arrest her. This ruling is contrary to both Lewis and Berkemer. See Berkemer, 468 U.S. at 442 (officer’s subjective intention “has no bearing on the question whether a suspect is ‘in custody’”).3 Also, the fact Maier confronted Defendant with the photographs and indicated that he thought she was lying also does not, without more, transform the encounter into a custodial interrogation. Cf. Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (per curiam) (stating that an officer’s false statement about having discovered the suspect’s fingerprints at the scene had “nothing to do with whether respondent was in custody for purposes of the Miranda rule”). Further, nothing in the record suggests that a reasonable person in Defendant’s position would believe that he or she was being detained or compelled to answer Maier’s questions. Rather, the record shows that Maier’s interview with Defendant, even after Maier gave her the Miranda warnings, was “a calm exchange between two people trying to ascertain what had happened.” Cf. United States v. Drayton, 536 U.S. 194, 204 (2002) (holding that an encounter was consensual, 3 Defendant contends that Lewis is distinguishable because the suspect in that case came by himself to the interview, was given his Miranda warnings prior to any discussion, and no new information was presented during the questioning. See Lewis, 556 F.2d at 447. Here, by contrast, Defendant was taken to the CID office in her pajamas and questioned for some time before Maier read Defendant her Miranda warnings and confronted her with the pictures of the dead child. Defendant’s argument must be rejected. Most importantly, the district court found as a matter of fact that Defendant voluntarily accompanied the officers to the CID office. Thus, the fact that she did not drive herself is immaterial. -10- despite the suspect’s subjective belief that he must cooperate, because the officers did nothing that objectively made the encounter coercive: “no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice”). b. Temporal Relationship Brown also directs courts to consider the temporal proximity of the arrest and the confession. Brown, 422 U.S. at 603. However, “there is no ‘bright-line’ test for temporal proximity.” United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003) (citations omitted). Here, the time between the initiation of the illegal detention and the alleged confession was almost ten hours. Although longer than the period of time in Brown, see Brown, 422 U.S. at 604-05 (less than two hour interval between illegal arrest and first statement with no intervening event “of significance whatsoever” not sufficient to cure taint), and Dunaway, see Dunaway v. New York, 442 U.S. 200, 218 (1979) (two hour interval with no intervening event of significance; holding that taint was not cured), the time frame here is still within the ambit of that in Taylor, see Taylor v. Alabama, 457 U.S. 687, 691 (1982) (holding that six hour length of time between illegal arrest and confession was not a significant amount of time to break the connection between the illegal arrest and the petitioner’s confession where the petitioner was in police custody, without counsel, was questioned on several occasions, fingerprinted, and subjected to a lineup). We therefore consider the temporal proximity factor in conjunction with any intervening circumstances. See Reed, 349 F.3d at 464. 3. Intervening Circumstances Next, Brown directs courts to consider whether any circumstances intervened between the initial detention and the challenged statements. As noted, the Supreme Court has observed that the -11- mere giving of Miranda warnings does not sufficiently break the connection between the illegal detention and the confession or search. Taylor, 457 U.S. at 691 (holding that three Miranda warnings did not sufficiently purge the taint of the illegal arrest). Instead, there must be present intervening events that sever the causal connection between the illegal arrest or search and the discovery of the incriminating evidence. See, e.g., Rawlings v. Kentucky, 448 U.S. 98,108-09 (1980) (discovery of other incriminating evidence was attenuating circumstance); Wong Sun, 371 U.S. at 491 (holding that confession made several days after illegal arrest and preceded by arraignment and release from custody was admissible); cf. Reed, 349 F.3d at 464 (holding that non-confrontational interviews between the defendant and police, and the defendant’s periods of solitary reflection combined with fact that confession occurred within six hours of illegal arrest was not sufficient to sever the connection). The government claims that there are two intervening events of significance. First, it claims that Defendant’s unlawful detention ended when she arrived at the FBI office and was told by Christiansen that she was not under arrest, that she was free to leave at any time, and that she would not be arrested in any event. Second, the government claims that Defendant’s admissions were the result of being told that she failed the polygraph examination, which she voluntarily agreed to take, and not the result of her detention at the CID office. The district court did not address the events at the FBI office, but simply held that Defendant was in continuous custody after 2:25 p.m. Defendant, for her part, states that she did not consent to take a polygraph, pointing to her handwritten statement that the officers “demanded” a polygraph. Nonetheless, Defendant did sign a “Consent to Interview With Polygraph” form, which explicitly provided that: “I voluntarily agree to be examined by means of the polygraph. . . . No threats or -12- promises have been used against me to obtain my consent.” Furthermore, and most importantly, as the district court found, Defendant agreed to take the polygraph examination and further agreed to wait three hours for the polygraph examiner to arrive. We hold that these voluntary decisions by Defendant –to take the polygraph examination (both times), and to wait three hours for the polygraph examiner–were acts of free will sufficient to purge the taint of the illegal arrest. The government cites as the second intervening circumstance the polygraph examination, or more precisely, Defendant’s reaction to the results of the polygraph examination. It is apparent that Defendant’s allegedly incriminatory admissions were triggered by the information that she failed the polygraph examination, and not by the fact that she was illegally detained for three hours while voluntarily waiting for the polygraph examiner nearly ten hours earlier. She maintained her exculpatory explanation throughout the day to each of the officers who questioned her, including Christiansen. Defendant only allegedly began to change her story after Christiansen told her she had failed the polygraph examination. Furthermore, she had no difficulty ending the interview at 3:00 a.m. In short, as the district court found this was not a situation were “a defendant’s will [had] been overcome and a false confession obtained.” In sum, we conclude that Defendant’s consent to take the polygraph examination, both at 4:30 p.m. and again when she signed the consent form, and her agreement to wait three hours for the examiner, were “intervening independent act[s] of free will to purge the primary taint” of the illegal detention. The district court erred in concluding otherwise. 4. Purpose and Flagrancy of Police Misconduct Fourth, Brown requires consideration of the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 604. This factor is considered “particularly” important, see Brown, 422 U.S. at -13- 604; United States v. Fazio, 914 F.2d 950, 958 (7th Cir. 1990) (citing Brown), because it is linked directly to the rationale underlying the exclusionary rule–deterrence of police misconduct, Reed, 349 F.3d at 465 (citing Brown, 422 U.S. at 600); Reed, 349 F.3d at 464-65; Fazio, 914 F.2d at 958. Relevant considerations include whether “the arrest, both in design and in execution, was investigatory,” Brown, 422 U.S. at 605, and also whether the arrest was calculated “to cause surprise, fright, and confusion,” id. This factor weighs against suppression. Defendant was not questioned during the period she was illegally detained, and she was not questioned at the FBI office until after she was again advised that she was not under arrest. Cf. Taylor, 457 U.S. at 691 (finding purposeful misconduct because in a six-hour period between the illegal arrest and confession, the petitioner was unrepresented by counsel, questioned on several occasions, fingerprinted, and subjected to a lineup). The conditions of Defendant’s detention in the locked holding area at the CID office were mild. She was never placed under arrest, handcuffed, or even placed in a traditional cell. It is clear that the purpose of this detention was merely to await the arrival of the polygraph examiner at the FBI office, and Defendant had already agreed to undergo a polygraph examination. Thus, the police misconduct in this case was not flagrant or purposeful in the sense that the officers used the period of the illegal detention to procure a confession. This was not a situation where the defendant was unlawfully detained for interrogation in the hope that something would “turn up.” See Kaupp, 538 U.S. at 628-33 (officers removed the petitioner from his home in the middle of the night without any probable cause); Taylor, 457 U.S. at 693 (finding flagrancy in the fact that police effectuated an investigatory arrest without probable cause, based on an uncorroborated informant’s tip, and involuntarily transported the defendant to -14- the police station for interrogation in the hope that “something would turn up”); Dunaway, 457 U.S. at 218 (holding that the petitioner was seized without probable cause based only on a tip from a jail inmate that admittedly did not supply enough information to obtain a warrant, brought to police headquarters and placed in an interrogation room where he was questioned “in the hope that something might turn up,” and confessed without any intervening circumstances); Brown, 422 U.S. at 605 (finding that the illegality had a quality of purposefulness, that the impropriety of the arrest was obvious from the detectives’ concession that the arrest was investigatory; officers admitted lack of any probable cause to arrest, let alone remove suspect from his residence); cf. Lopez-Arias, 344 F.3d at 630 (finding that illegality of the arrest was “blatant,” and cases discussed therein). Defendant was the only eye witness to the alleged crime, and was therefore naturally a suspect. She volunteered at the outset that the baby had been crying. Even at that, as the district court found, initially the officers did not detain her in any way, and she voluntarily agreed to go to the CID office to make a statement. She was seated in the waiting room until Maier arrived at the CID office. Most importantly, Defendant was not questioned during the three-hour period when she waited for the polygraph examiner to arrive. Under these circumstances, it cannot be said that the illegal detention was an attempt to obtain evidence by “exploitation.” See Fazio, 914 F.2d at 958. “Because the primary purpose of the exclusionary rule is to discourage police misconduct, application of the rule does not serve this deterrent function when the police action, although erroneous, was not undertaken in an effort to benefit the police at the expense of the suspect’s protected rights.” Id. As in Rawlings, “the conduct of the police here does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner’s statements.” Rawlings, 448 U.S. at 110. -15-  Defendant’s illegal detention lacks the “quality of purposefulness” condemned in Brown. See Brown, 422 U.S. at 605. Nor do the circumstances indicate that the manner of Defendant’s detention was “calculated to cause surprise, fright, or confusion.” Id. In short, this factor, the “most important” factor, Reed, 349 F.3d at 464, reinforces the conclusion that Defendant’s alleged statements4 were the act of free will and not the product of an illegal detention. III. Conclusion For the foregoing reasons, this matter is REVERSED and REMANDED for further proceedings consistent with this opinion. 4 As the district court observed, there is a credibility issue on this point that can be presented to the finder of fact. -16- 

2019 WI 87 SUPREME COURT OF WISCONSIN CASE NO.: 2019AP1148-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Gordon C. Ring, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Gordon C. Ring, Respondent. DISCIPLINARY PROCEEDINGS AGAINST RING OPINION FILED: August 23, 2019 SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS:  2019 WI 87 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP1148-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Gordon C. Ring, Attorney at Law: Office of Lawyer Regulation, FILED Complainant, AUG 23, 2019 v. Sheila T. Reiff Clerk of Supreme Court Gordon C. Ring, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM. This is a reciprocal discipline matter. On June 25, 2019, the Office of Lawyer Regulation (OLR) filed a two-count complaint against Attorney Gordon C. Ring. Count one alleged that by virtue of Attorney Ring's recent two-year license suspension by the Illinois Supreme Court, Attorney Ring should be subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. Count two alleged by failing to notify the OLR of his disbarment in Illinois within 20 days of the effective date of the imposition of such discipline, Attorney Ring violated  No. 2019AP1148-D Supreme Court Rule (SCR) 22.22(1).1 After service of the complaint, the parties stipulated to the imposition of reciprocal discipline. We approve the stipulation, and we therefore order a two-year suspension of Attorney Ring's Wisconsin law license. ¶2 Attorney Ring's law license history is as follows. He was admitted to practice law in Wisconsin in May 1984, and in Illinois in November 1977. His Wisconsin disciplinary history consists of a six-month suspension in 1992, as discipline reciprocal to that imposed on him by the Illinois Supreme Court for professional misconduct. See In re Disciplinary Proceedings Against Ring, 168 Wis. 2d 817, 484 N.W.2d 336 (1992). Attorney Ring did not petition for reinstatement of his Wisconsin law license; it remains suspended. Attorney Ring's Wisconsin law license was also administratively suspended in 1985 for failure to comply with continuing legal education requirements, and in 2011 for failure to pay State Bar dues. His license remains administratively suspended. ¶3 On September 20, 2018, the Illinois Supreme Court suspended Attorney Ring's Illinois law license for two years, 1 SCR 22.22(1) provides: An attorney on whom public discipline for misconduct or a license suspension for medical incapacity has been imposed by another jurisdiction shall promptly notify the director of the matter. Failure to furnish the notice within 20 days of the effective date of the order or judgment of the other jurisdiction constitutes misconduct. 2  No. 2019AP1148-D effective October 11, 2018, for multiple counts of misconduct, and ordered him to reimburse the Illinois Client Protection Program Trust Fund for any payments arising from his misconduct prior to the end of his suspension. According to the allegations in the OLR's complaint and the Illinois disciplinary records attached to the complaint, Attorney Ring's misconduct in Illinois included misappropriation of over $124,000 in two client matters, and, in a third matter, failing to work on a case after the filing of the complaint, causing the case to be dismissed. Attorney Ring did not tell his client that he had failed to work on the case or that it had been dismissed, and he later used funds in his client trust account belonging to others to make a $10,000 payment to his client to resolve the matter. By his conduct, Attorney Ring violated Rules 1.3, 1.4(a)(3), 1.15(a), 3.2, 8.4(c), and 8.4(d) of the Illinois Rules of Professional Conduct. ¶4 On July 15, 2019, after the OLR's complaint had been served on Attorney Ring but before a referee had been appointed, Attorney Ring entered into a stipulation with the OLR whereby he agreed that the facts alleged in the OLR's complaint supported a two-year suspension of his Wisconsin law license as reciprocal discipline to that imposed by the Illinois Supreme Court. ¶5 Supreme Court Rule 22.22(3) states as follows: (3) The supreme court shall impose the identical discipline or license suspension unless one or more of the following is present: 3  No. 2019AP1148-D (a) The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process. (b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the supreme court could not accept as final the conclusion in respect to the misconduct or medical incapacity. (c) The misconduct justifies substantially different discipline in this state. ¶6 Attorney Ring does not claim that any of the defenses found in SCR 22.22(3) apply. Attorney Ring further states that the stipulation did not result from plea bargaining; that he understands the allegations against him; that he understands the ramifications should the court impose the stipulated level of discipline; that he understands his right to contest this matter; that he understands his right to consult with counsel, and represents that he has consulted with counsel; that his entry into the stipulation is made knowingly and voluntarily; and that his entry into the stipulation represents his decision not to contest the misconduct alleged in the complaint or the level and type of discipline sought by the OLR's director. ¶7 Upon our review of the matter, we accept the stipulation and impose discipline identical to that imposed by the Illinois Supreme Court; i.e., a two-year suspension of Attorney Ring's Wisconsin law license. Because this matter was resolved by means of a stipulation, the OLR has not sought the imposition of costs, and we impose none. 4  No. 2019AP1148-D ¶8 IT IS ORDERED that the license of Gordon C. Ring to practice law in Wisconsin is suspended for two years, effective the date of this order. ¶9 IT IS FURTHER ORDERED that, to the extent he has not already done so, Gordon C. Ring shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶10 IT IS FURTHER ORDERED that compliance with all conditions of this order is required for reinstatement. See SCR 22.29(4)(c). 5 1 

894 F.2d 1015 58 USLW 2523 UNITED STATES of America, Appellee,v.Dennis Allen WERLINGER, Appellant. No. 89-5269. United States Court of Appeals,Eighth Circuit. Submitted Nov. 14, 1989.Decided Feb. 2, 1990. William Kirschner, Fargo, N.D., for appellant. Lynn E. Crokks, Fargo, N.D., for appellee. Before LAY, Chief Judge, ARNOLD, Circuit Judge, and LARSON,* Senior District Judge. LAY, Chief Judge. 1 Dennis Werlinger pleaded guilty to one count of bank embezzlement in violation of 18 U.S.C. Sec. 656 (1982). The district court sentenced Werlinger to twenty-seven months imprisonment. Under the Sentencing Guidelines, Werlinger received an offense level of ten because the amount he embezzled was between $500,001 and $1 million. See United States Sentencing Guidelines Sec. 2B1.1(b)(1)(K) (1988). In addition, the district court1 applied a two-level upward adjustment because "more than minimal planning" was involved, Sec. 2B1.1(b)(4), and a two-level downward adjustment based on Werlinger's acceptance of responsibility, Sec. 3E1.1. The district court found, however, that Werlinger's attempts to induce his co-workers to help him conceal the embezzlement from internal bank auditors amounted to obstruction of justice within the meaning of section 3C1.1.2 Accordingly, the district court increased the base offense level by two levels. Werlinger argues that in doing so, the district court misapplied section 3C1.1 as a matter of law. We reverse and remand for resentencing. FACTS 2 Werlinger had been employed as a bank teller at the Norwest Bank in Fargo, North Dakota, for approximately ten years. Over the course of his employment, Werlinger embezzled over $600,000. 3 On the morning of February 9, 1989, Werlinger noticed the bank's internal auditors preparing to conduct a surprise cash audit. Werlinger immediately attempted to conceal his embezzlement from the auditors. He asked a co-worker responsible for counting out his cash drawer to falsely report the amount of cash on hand. He then directed another co-worker to make a false ledger entry. Neither co-worker complied. Later that day the auditors discovered a cash shortfall of approximately $660,000, clearly implicating Werlinger as the embezzler. The bank, however, did not notify law enforcement authorities until it notified the FBI the next day, February 10. Werlinger admitted the theft when confronted by the FBI, and cooperated with the FBI throughout its investigation. DISCUSSION Section 3C1.1 reads as follows: 4 Willfully Obstructing or Impeding Proceedings 5 If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level from Chapter Two by 2 levels. 6 The question whether section 3C1.1 applies to Werlinger's conduct calls for an interpretation of the scope of the guideline. It is therefore a question of law which this court may review de novo. See 18 U.S.C. Sec. 3742(e)(1), (f)(1) (1988); United States v. Reyes, 881 F.2d 155, 156 (5th Cir.1989); United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989). Werlinger argues that section 3C1.1 does not reach conduct that is part of the crime itself and that occurs prior to an investigation by law enforcement authorities. The government argues that the guideline is not expressly limited to conduct occurring during formal criminal investigations, but that it also covers actions taken to avoid detection in the first instance. 7 As this court recently observed, the Sentencing Commission intended section 3C1.1 to encompass more than the traditional meaning of obstruction of justice.3 United States v. Patterson, 890 F.2d 69, 71 (8th Cir.1989). Section 3C1.1 and its commentary refer to conduct occurring "during the investigation or prosecution of the offense" that is "calculated to mislead or deceive authorities * * *." Such conduct may include concealing or attempting to conceal material evidence, or procuring or attempting to procure another to do so. Guidelines Sec. 3C1.1 application note 1(a), (b). We have therefore held section 3C1.1 applicable to attempts to deceive authorities and obstruct their investigative efforts before imposition of formal criminal charges. See Patterson, 890 F.2d at 71 (giving false name to arresting officers); United States v. Williams, 879 F.2d 454, 455-56 (8th Cir.1989) (threatening a government informant); see also United States v. Cain, 881 F.2d 980, 981 (11th Cir.1989) (hiding stolen checks upon postal inspectors' approach) (per curiam); United States v. Roberson, 872 F.2d 597, 609 (5th Cir.) (hiding stolen credit card under seat of police car), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); United States v. Galvan-Garcia, 872 F.2d 638 (5th Cir.) (tossing marijuana bags out car window while being chased by officers), cert. denied, --- U.S. ----, 110 S.Ct. 164, 107 L.Ed.2d 122 (1989). However, none of these cases, nor any others of which we are aware, have applied section 3C1.1 as broadly as the government urges here. 8 The government does not contend that "authorities" as used in the commentary to section 3C1.1 refers to persons other than law enforcement officials. The government argues, however, that even though the FBI remained completely unaware of the bank's suspicions of embezzlement until February 10, Werlinger's actions on February 9 were "calculated to deceive or mislead" the FBI. 9 We find no support for this argument either in the Guidelines or the accompanying commentary. Rather, we are persuaded that the Sentencing Commission fully accounted for Werlinger's conduct in section 2B1.1, which sets the offense levels for embezzlement. The Commission, in our view, did not intend for the obstruction adjustment to apply cumulatively to the same conduct. 10 The offense of bank embezzlement itself encompasses elements of fraud, deceit, and concealment. See, e.g., United States v. Dougherty, 763 F.2d 970, 973 (8th Cir.1985) (approving instruction that 18 U.S.C. Sec. 656 requires "intent to injure or defraud bank or deceive its officers, * * * "); United States v. Steffen, 641 F.2d 591, 597 (8th Cir.) (loans to relatives structured to deceive bank officers), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981). It is difficult to imagine an embezzler who does not take some affirmative steps to conceal his wrongdoing. Concealment is crucial to the very success of the crime. Not only does section 2B1.1 provide a base level for embezzlement (with adjustments graduated according to the amount involved), but it also expressly authorizes a two-level upward adjustment when "more than minimal planning" is involved. Guidelines Sec. 2B1.1(b)(4). According to the commentary, "more than minimal planning" occurs when "significant affirmative steps are taken to conceal the offense." Id. Sec. 1B1.1 application note 1(f).4 11 In this case, the district court applied the "more than minimal planning" adjustment, because Werlinger had made false book entries over a period of several years. In our view, Werlinger's actions on February 9 were further attempts to continue this concealment and to once again avoid detection. Therefore, this conduct is accounted for in section 2B1.1. 12 We find support for our decision in Supreme Court cases requiring a clear expression of legislative intent to apply sentence enhancement provisions cumulatively. In Simpson v. United States, 435 U.S. 6, 12-13, 98 S.Ct. 909, 913, 55 L.Ed.2d 70 (1978), the Court held that a statute imposing an enhanced sentence upon a defendant who uses or carries a firearm while committing a federal felony is not applicable where the statute defining the underlying felony provides an enhanced penalty for the very same conduct. The Court reaffirmed this holding in Busic v. United States, 446 U.S. 398, 403-04, 100 S.Ct. 1747, 1751, 64 L.Ed.2d 381 (1980). 13 These decisions comport with the presumption that Congress does not intend to impose multiple punishments for one offense unless it clearly expresses an intent to do so. E.g., Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). These decisions also follow the principle that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Simpson, 435 U.S. at 14, 98 S.Ct. at 914 (quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971)). "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). 14 These principles guide our analysis in the present case.5 Nothing in the Guidelines or its commentary clearly indicates the Sentencing Commission intended cumulative punishment. We therefore will not readily construe section 3C1.1 to apply so broadly as to multiply punishment of conduct already punished through the application of other sections of the Guidelines. 15 In fact, we find direct support for the proposition that the Sentencing Commission intended just the opposite. The Sentencing Commission clearly intended the adjustments under Chapter Three of the Guidelines to take into account circumstances that, for sentencing purposes, aggravate or mitigate the seriousness of the offenses categorized in Chapter Two.6 Indeed, both the authorizing legislation and the Commission's policy statements indicate that a major purpose of providing individualized, conduct-related adjustments is to ensure different sentences for criminal conduct of different severity. See 28 U.S.C. Sec. 991(b)(1)(B) (Supp. II 1984) (a purpose of Commission is to ensure "sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating circumstances not taken into account in the establishment of general sentencing practices"); Guidelines ch. 1, Pt. A policy statement (Congress sought proportionality to ensure different sentences for criminal conduct of different severity). The Commission has recognized that "double-counting" conduct in applying the Guidelines is inconsistent with this goal and has thus sought to avoid it. See id. Sec. 3D1.2 application note 5 (combined offense level for "Groups of Closely Related Counts" prevents "double counting" of offense behavior); id. 3C1.1 application note 4 (obstruction of justice enhancement not applicable to offenses such as contempt, obstruction of justice, perjury, and bribery of witness). This policy of mutual exclusivity indicates that the Sentencing Commission did not intend for multiple Guidelines sections to be construed so as to impose cumulative punishment for the same conduct. The interpretation of section 3C1.1 urged by the government therefore not only stretches that section's text to extreme limits, but also contravenes the intent of the Commission. 16 The government's position also contravenes the policy goal of providing certainty and fairness in sentencing. See Guidelines ch. 1, pt. A policy statement. It offers no discernible boundaries to guide sentencing judges in determining whether the obstruction adjustment is to be applied. Under the government's urged interpretation, any criminal taking affirmative steps to avoid detection (a bank robber wearing a mask, a murderer wearing gloves) would arguably qualify for an adjustment under section 3C1.1. Such a possibility, in our view, promises nothing but inconsistency in the application of section 3C1.1, leaving judges to draw lines based solely on instinct. As the Supreme Court stated in Busic: "Our task here is to locate one of the boundaries, and the inquiry is not advanced by the assertion that Congress wanted no boundaries." 446 U.S. at 408. Our decision that section 3C1.1 may not be cumulatively applied to conduct accounted for in other sections of the Guidelines offers a boundary we think the Sentencing Commission intended. CONCLUSION 17 We hold that the district court erred in applying section 3C1.1 to Werlinger's attempts to solicit his co-workers to help him conceal his embezzlement from the bank's internal auditors. We therefore reverse and remand this case for resentencing consistent with this opinion. * The Honorable EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation 1 The Honorable Rodney K. Webb, United States District Judge for the District of North Dakota 2 The Sentencing Commission has acknowledged the inconsistency in finding that a defendant has accepted responsibility and at the same time obstructed justice. The commentary to the 1988 version of the Guidelines (which were applicable at the time of Werlinger's sentencing) stated: "An adjustment under [Sec. 3E1.1] is not warranted where a defendant perjures himself, suborns perjury, or otherwise obstructs the trial or administration of justice (see Sec. 3C.1), regardless of other factors." Guidelines Sec. 3E1.1 application note 4 (1988). In 1989, the Commission amended this commentary to acknowledge that there may be "extraordinary cases in which adjustments under both Secs. 3C1.1 and 3E1.1 may apply." Guidelines Sec. 3E1.1 application note 4 (1989) The government recognizes this inconsistency, but argues that the error should lie in granting Werlinger a downward adjustment for acceptance of responsibility, not in applying the adjustment for obstruction of justice. Because our decision that the "obstruction" adjustment is not warranted in this case rests on other rationale, we need not examine the effect of the commentary. We do, however, think this inconsistency lends support to our decision. 3 Courts have construed the criminal offense of obstructing justice, 18 U.S.C. Sec. 1503, to apply only to conduct occurring after the commencement of formal judicial proceedings. See, e.g., Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893); United States v. Johnson, 605 F.2d 729, 730 (4th Cir.1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980); United States v. Walasek, 527 F.2d 676, 678 (3d Cir.1975); Ferina v. United States, 302 F.2d 95, 102 (8th Cir.), cert. denied, 371 U.S. 819, 83 S.Ct. 35, 9 L.Ed.2d 59 (1962) 4 The commentary suggests that "more than minimal planning" in the embezzlement context contemplates more than a single taking using a single false book entry. It would apply, however, to "several instances of taking money, each accompanied by false entries." Guidelines Sec. 1B1.1 application note 1(f) 5 We acknowledge that the cases we have cited in support of these principles involve the interpretation of sentence enhancement statutes requiring independent conviction, see Simpson, 435 U.S. at 7-8, 98 S.Ct. at 910; Busic, 446 U.S. at 401, 100 S.Ct. at 1750, or the question whether a single offense authorizes cumulative penalties on separate counts, see Bell, 349 U.S. at 82, 75 S.Ct. at 621, or the question whether cumulative penalties are authorized for lesser included offenses, see Whalen, 445 U.S. at 686, 100 S.Ct. at 1434. Here, of course, we have a conviction on a single count of a single offense, and must determine the extent to which multiple sections of the Sentencing Guidelines apply. Nevertheless, we find these cases sufficiently analogous to allow their principles to guide us in construing the Guidelines 6 For example, Chapter Three authorizes adjustments based on the vulnerability of the victim, Guidelines Sec. 3A1.1, the defendant's relative role in the offense, id. Sec. 3B1.1, and the defendant's acceptance of responsibility for his conduct, id. Sec. 3E1.1

37 Cal.App.3d 1038 (1974) 113 Cal. Rptr. 54 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SHAPIRO, Defendant and Appellant. Docket No. 23755. Court of Appeals of California, Second District, Division Four. March 18, 1974. *1039 COUNSEL Allen King for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Shunji Asari, Deputy Attorneys General, for Plaintiff and Respondent. OPINION JEFFERSON, Acting P.J. By information, defendant was charged in count I with transportation of marijuana in violation of then Health and *1040 Safety Code section 11531 and in count II with possession of marijuana for sale in violation of then Health and Safety Code section 11530.5. Defendant's motions pursuant to Penal Code sections 995 and 1538.5 were denied. The cause was submitted to the court after a jury waiver and pursuant to a stipulation by defendant, with each side reserving the right to put on additional evidence. The court found defendant guilty on count I, transportation of marijuana in violation of section 11531 of the Health and Safety Code. Proceedings were suspended and defendant was granted probation for a period of two years on the condition among other things, that he spend the first 90 days in the county jail. Count II was dismissed on motion of the People. Defendant appeals from the judgment (order granting probation). On November 3, 1971, John Donovan, special agent, United States Customs, Treasury Department, received from a fellow customs officer a newspaper addressed to a Dr. Stoner, in care of Mr. Shapiro and addressed to 1911 North Beverly Glen Drive, Los Angeles County. The newspaper bore a return address in London indicating the return addressee as Michael Shapiro. Inside the newspaper was a package which Mr. Donovan had tested for narcotic content. A Narcoban test indicated that the package contained a quantity of marijuana in the form of hashish. After the package had been tested and it was revealed that a quantity of narcotics was contained therein, it was returned to the United States postal authorities for delivery. On November 19, 1971, Mark Kroeker, a Los Angeles Police Department officer, went to 1911 North Beverly Glen Drive with a search warrant. He was admitted to the residence of Michael Boyt. The officer arrested Boyt and the two other individuals who were present in the front room of the location. He then showed a copy of the warrant to Boyt and read it aloud, after which he conducted a search of the premises. After the premises were searched, the following items were found and recovered for evidence: 13 1/2 kilo bricks of marijuana, a cube of hashish weighing approximately 27 1/2 grams, 2 foil-wrapped cubes of hashish weighing approximately 30 grams; a brown paper bag containing 3 bags of marijuana and 1 cigarette, a white plastic bag containing 4 smaller bags of marijuana, a purse containing 2 bags of marijuana, a bag of hashish weighing approximately 5 grams, a plastic bag containing marijuana, a glass jar containing marijuana seeds, an aspirin bottle containing 33 white pills and 34 red pills, a pink and clear container containing numerous *1041 capsules and pills, a green suitcase, a newspaper addressed to 1911 North Beverly Glen Drive, inside of which hashish had been found, numerous items of personal effects with the names of Michael Shapiro and Michael Boyt and the address of 1911 North Beverly Glen Drive, keys to the residence at 1911 North Beverly Glen Drive, a coin envelope containing $944 and a coin envelope containing $13. Other items recovered in the search were rent receipts, utilities bills, letters addressed to Michael Boyt and Michael Shapiro at 1911 North Beverly Glen Drive and photographs of defendant seated with his feet propped up by approximately 12 packages wrapped in paper having dimensions of 8-10 inches by 3-4 inches by 6 inches. Joseph V. Amore, a Los Angeles Police Department officer, qualified as an expert regarding the manner in which marijuana and dangerous restricted drugs and narcotics are possessed and packaged for sale in Los Angeles County. He testified it was his opinion that the 13 1/2 kilos of marijuana were possessed for sale and the hashish was not possessed for sale. Defendant testified in his own behalf: he resided at 1911 North Beverly Glen Drive; he left for Europe on October 12, returning on December 26; he was aware the police officers discovered several kilos of marijuana and other narcotics at his address on November 19, but he did not know how the narcotics arrived at his residence. The narcotics had not been at his residence on October 12, 1971, when he left for Europe. He admitted that he was aware a mailing wrapper containing a newspaper and some hashish was recovered from his residence during a police search on November 19th. He also admitted that he had mailed the package to the location but denied that he ever possessed the package in the United States. It was stipulated that the handwriting on the mailing wrapper that enclosed the newspaper which in turn contained the hashish was compared with handwriting exemplars furnished by the defendant and that the comparison indicated they belonged to one and the same person. (1) Defendant contends that the search warrant, pursuant to which the contraband in question was discovered, was issued without probable cause. Defendant argues that the search warrant issued upon the affidavit of Sergeant Kroeker was premature. We find no merit in defendant's contention nor his argument. Sergeant Kroeker's affidavit of November 19, 1971, in support of the *1042 search warrant indicated that a package, addressed to defendant's residence, had been intercepted by officials of the United States Customs office, and it was discovered to contain hashish. The affidavit further alleged that the package would be delivered through the U.S. mails later that day. Defendant is in error when he argues that, since the affidavit in support of the warrant did not establish probable cause to conduct an immediate search at the time the warrant was sought, the warrant was improperly issued. The warrant was not invalid because it was based upon an affidavit which established a future, rather than a present, probable cause to search. This exact and identical issue was raised and resolved against a defendant in Alvidres v. Superior Court, 12 Cal. App.3d 575, 580-581 [90 Cal. Rptr. 682]. In the Alvidres case, the affidavit recited, as in the instant case, that the officer had received information from a special agent of the federal Bureau of Customs that a parcel addressed to the defendant Gabriel Alvidres had been opened at the federal Bureau of Customs and the parcel contained marijuana. The parcel was placed back in the mails for delivery to defendant and a search warrant was issued to be served at a later date when the package would arrive. The court held that the affidavit asserting a future mail delivery of narcotics, sufficiently established probable cause to support the issuance of a search warrant. In so holding, the court said, at page 581: "We must ask ourselves whether the objective of the rule is better served by permitting officers under circumstances similar to the case at bar to obtain a warrant in advance of the delivery of the narcotic or by forcing them to go to the scene without a warrant and there make a decision at the risk of being second-guessed by the judiciary if they are successful in recovering evidence or contraband. We believe that achievement of the goals which our high court had in mind in adopting the exclusionary evidence rule is best attained by permitting officers to seek warrants in advance when they can clearly demonstrate that their right to search will exist within a reasonable time in the future. Nowhere in either the federal or state Constitutions, nor in the statutes of California, is there any language which would appear to prohibit the issuance of a warrant to search at a future time. This period, of course, would be subject to the 10-day limitation which is set out in Penal Code section 1534." It was also held in People v. Sloss, 34 Cal. App.3d 74, 82 [109 Cal. Rptr. 583], that a warrant to search for a piece of mail after its delivery to a designated address may issue before such delivery, where the affidavit gave probable cause to believe that the piece will be at that address at the time specified in the affidavit. (2) Defendant contends the search warrant was issued out of an illegal *1043 planting of evidence and is, therefore, invalid. Defendant argues that, once customs officials had intercepted defendant's package and determined it to contain hashish, their delivery of the package to defendant constituted quasi-entrapment. The contention is without merit and the argument is fallacious. A very similar, if not identical, contention was raised by defendant Kosoff, in People v. Kosoff, 34 Cal. App.3d 920, 932 [110 Cal. Rptr. 391], and decided against defendant. The court said, at pages 932, 933: "It is argued that the procedure used herein was a form of `entrapment' or at least of questionable public policy in that, had defendant been given an opportunity to refuse permission for a search of the package the contraband would never have been delivered into the country. But it has consistently been held that it is proper for the authorities to allow a package of known contraband to be delivered to its intended recipient, for the purpose of apprehending or investigating the importers of narcotics. (Chapman v. United States (10th Cir.1971) 443 F.2d 917, 920; [citations].) In Chapman the court said: `Appellants next contend that the customs agents should have seized the contraband in New York when it was first discovered and that failure to do so constituted illegal entrapment. It is permissible to allow contraband to reach its destination. In United States v. Davis, 272 F.2d 149, 153 (7th Cir.1959) the court said: "To require immediate seizure of the contraband upon discovery would deprive federal officers of a most effective method of obtaining evidence against ultimate consignees, clearly a result contrary to Congressional intent." ... If contraband were simply seized by customs agents and disposed of, then the intended receivers of the illicit goods would go unpunished. The government, in cases such as this, does not initiate the crime. It simply monitors the crime until it can identify the participants. We see no merit in appellant's contention that the commission of the offense would have been impossible without the actions of the agents. The offense would still have been committed. Without the actions of government officials the crime would have gone undetected.'" We conclude that the controlled delivery of the narcotics in this case was proper and necessary and in no way constituted unlawful entrapment. (3) Defendant contends the search warrant was issued upon the illegal delivery of contraband, arguing that the package of hashish discovered at the post office was "unmailable matter" pursuant to definitions in 18 United States Code Annotated section 1716, and 39 United States Code Annotated section 4001. Defendant continues, "Once the Post Office Department discovered that the matter was contraband and could not be legally delivered, they were obliged to either destroy it or confiscate the package." Defendant finally reaches the conclusion that "the delivery of the package was an illegal delivery and the Search Warrant resting thereon was invalid." *1044 Defendant's contention is without merit and his arguments in support thereof are fallacious and unsound. "Moreover it has been squarely held by the federal courts that violation of the regulations does not render the search illegal or in violation of the Fourth Amendment or require the fruits of such search to be excluded from evidence in court." (People v. Kosoff, supra, at p. 929.) The Kosoff case relies on United States v. Beckley, 335 F.2d 86, and states, "[A] sealed package was mailed air parcel post from the Canal Zone to Detroit. The package was searched by customs authorities in Miami, rewrapped and sent on to Detroit, where it was delivered to Beckley's home, and a search warrant was obtained authorizing the seizure of the package and contents from the home. It was argued that the delay of the package between Miami and Detroit for customs inspection and the failure to place a stamp on the package indicating that it had been opened was in violation of federal statutes and regulations. The court held that the alleged violation of federal statutes in delaying the package and failing to confiscate it immediately was not a basis for suppressing evidence. The court also declined to suppress evidence based on the alleged violation of an administrative regulation relating to failure to place a seal on the package indicating that it had been opened." We hold that the court properly denied defendant's motion made pursuant to Penal Code section 1538.5, to suppress the hashish. In United States v. Sohnen, 298 F. Supp. 51, the court held that evidence should not be suppressed merely because the search of defendant's mail was contrary to postal regulation although otherwise reasonable. Said the court, at page 53: "... Exclusion of highly reliable and probative evidence is a sanction to be used by the courts only when there is a grave danger to clearly defined national policy. [Citations.] It is not clear whether these postal regulations were designed merely to control internal procedures or whether they were also intended to protect addressees. Even if they were intended to protect recipients of mail from abroad, in light of the historical basis for customs searches discussed above, we cannot say that they rise to the level of national policy so as to require a per se rule of exclusion." "If the federal courts do not consider that the violation of these regulations by federal officers renders the search illegal or the evidence inadmissible, the evidence should not be inadmissible in California courts. The purpose of the exclusionary rule is to deter unlawful conduct and unreasonable searches and seizures by law enforcement officers. Since the federal courts do not enforce the exclusionary rule against federal customs *1045 officials who have violated the regulations, the adoption of a contrary rule by the California state courts would have minimal if any effect as to encouraging customs officials to observe their own regulations. Since the purposes of the exclusionary rule would not be served by applying it in the instant case, we should not do so. The federal courts have uniformly held that the violation of the regulations in question does not render the search illegal. We are bound by that determination because the legality of a customs search is governed by federal, rather than state law. [Citations.]" (People v. Kosoff, supra, 34 Cal. App.3d at p. 930.) The judgment (order granting probation) is affirmed. Kingsley, J., and Dunn, J., concurred. Appellant's petition for a hearing by the Supreme Court was denied May 16, 1974.

Case 1:16-cv-01230-P 3ln tbe Wniteb ~tates QCourt of jfeberal QCiaiuts No. 16-01230C (Filed: November 8, 2016) ) KEITH RUSSELL JUDD, ) FILED ) Plaintiff, ) NOV -8 2016 ) U.S. COURT OF v. ) FEDERAL CLAIMS ) THE UNITED STATES, ) ) Defendant. ) ~~~~~~~~~) OPINION AND ORDER CAMPBELL-SMITH, Chief Judge On November 2, 2016, plaintiff Keith Russell Judd (plaintiff) filed a motion for reconsideration (motion), ECF No. 9, of the court's October 14, 2016 Unreported Opinion and Order, ECF No. 7, dismissing plaintiffs complaint for lack of subject matter jurisdiction. See Rules of the United States Court of Federal Claims (RCFC) 12(b)(l), 59. Thereby, plaintiff "move[d] this court to alter or amend the October 14, 2016, Order and Judgment, and to enjoin the collection of the Affordable Care Act, penalty under 26 U.S.C. § 5000A(g)(l)." Motion at 1. To prevail on a motion for reconsideration under RCFC 59, the movant must identify a manifest error oflaw, or mistake of fact. See Shapiro v . Sec'y of Health & Human Servs .. 105 Fed. Cl. 353, 361 (2012), affd, 503 Fed. Appx. 952 (Fed. Cir. 2013). Specifically, the movant must show: (1) an intervening change in controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity of granting the motion to prevent manifest injustice. Id. The court has considerable discretion in ruling on a motion for reconsideration. See Yuba Natural Res., Inc. v . United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). But, granting such relief requires " a showing of extraordinary circumstances." Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) cert. denied, 546 U.S . 826 (2005) (citation omitted). "A court, therefore, will not  Case 1:16-cv-01230-PEC Document 11 Filed 11/08/16 Page 2 of 2 grant a motion for reconsideration if the movant merely reasserts ... arguments previously made ... all of which were carefully considered by the court." Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002), aff'd, 384 F.3d 1368 (Fed. Cir. 2004) (internal quotation marks omitted). Plaintiff's motion for reconsideration is a recitation of arguments previously asserted in his complaint and fully considered by this court in its October 14, 2016 Opinion. Plaintiff does not identify an intervening change in the controlling law, bring forth new evidence that was previously unavailable, or argue that reconsideration is necessary to prevent manifest injustice. Thus, he has failed to identify any error of law or mistake of fact that would warrant reconsideration. See Shapiro, 105 Fed. Cl. at 361 . The court addressed its lack of jurisdiction over plaintiff's complaint in its October 14, 2016 Opinion, and plaintiff's present motion provides no legally cognizable basis for reconsideration of that decision. Accordingly, plaintiff's motion for reconsideration is DENIED. Furthermore, plaintiff's request to enjoin collection of the Affordable Care Act penalty is DENIED as moot. The Clerk of the Court is directed to not accept any further pleadings in this case. IT IS SO ORDERED. 

789 F.2d 1209 Nason Gene SOILEAU, Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary, etal., Respondents-Appellees. No. 85-4699Summary Calendar. United States Court of Appeals,Fifth Circuit. May 21, 1986. Nason G. Soileau pro se. Glenn B. Foreman, Crowley, La., for respondents-appellees. Appeal from the United States District Court for the Western District of Louisiana. Before POLITZ, GARWOOD, and JOLLY, Circuit Judges. POLITZ, Circuit Judge: 1 Nason Gene Soileau appeals the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, under Rule 9(a) of the Rules Governing Sec. 2254 Cases.1 Finding that Soileau did not receive the requisite notice that a Rule 9(a) dismissal was being considered, we vacate the dismissal and remand. BACKGROUND 2 On December 10, 1975, a jury convicted Soileau of manslaughter for killing a fellow-inmate at the Acadia, Louisiana, Parish Jail. Soileau escaped from custody before sentencing and remained at large for over three years. Ultimately recaptured, Soileau was sentenced on April 6, 1979 to a term of 21 years. There was no direct appeal of the conviction. 3 Having exhausted state post-conviction remedies, on July 15, 1982 Soileau filed the instant federal habeas petition, alleging that: (1) his conviction was not supported by the evidence; (2) he was not advised of his right to appeal; (3) he was denied counsel at sentencing; and (4) the sentencing procedures violated state law. The petition was referred to a magistrate who ordered the state to file all pertinent records and transcripts. The magistrate found that because there had been no appeal no transcript of evidence had been made, and during the delay between the 1975 trial and the 1982 filing of the federal habeas petition the court reporter's notes had been destroyed. 4 Upon completion of her review of the record, the magistrate recommended that Soileau's petition be dismissed under Rule 9(a) because the state had suffered prejudice as a consequence of the delay. The state did not seek a Rule 9(a) dismissal and Soileau received no notice that the magistrate was considering dismissal on that basis. The district court adopted the magistrate's recommendations over Soileau's objection and entered judgment dismissing his application. Soileau appealed and we issued a certificate of probable cause. ANALYSIS 5 The procedure for dismissing a habeas corpus petition under Rule 9(a) was fully explicated in McDonnell v. Estelle, 666 F.2d 246 (5th Cir.1982). Relying on the Advisory Committee Note to Rule 9(a) and analogizing to and applying procedures for a motion for summary judgment, Fed.R.Civ.P. 56, we held "[i]f, after examining the petition and the state's return, it appears that there is a high probability the petition will be barred by Rule 9(a), the court should so notify the petitioner." Id. at 252. The petitioner must then "explain why his or her delay has not been prejudicial and why the delay is excusable." Id. at 253. We have observed that McDonnell requires that where a Rule 9(a) disposition summarily resolves factual issues, the petitioner must be given notice and an opportunity to respond. Norman v. McCotter, 765 F.2d 504 (5th Cir.1985). Prejudice to the state and the reasons for the delay are factual issues. 6 Soileau was neither given notice that the magistrate was considering a Rule 9(a) dismissal nor an opportunity to demonstrate that the delay was excusable or that it was not prejudicial. Because the magistrate relied on evidence outside the pleadings, the matter necessarily fell into a summary judgment posture. A Rule 9(a) dismissal in that setting required notice to Soileau and an opportunity to be heard. McDonnell. 7 We do not decide, and express no opinion whatsoever, whether the state's showing was sufficient to shift the burden of persuasion to Soileau to excuse the delay or to show that the state suffered no prejudice as a consequence of delay chargeable to him. See Strahan v. Blackburn, 750 F.2d 438 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 2683, 86 L.Ed.2d 700 (1985). That remains for the trial court to decide first. We hold only that under the rubrics of McDonnell a Rule 9(a) dismissal was inappropriate without giving Soileau notice and an opportunity to be heard. 8 Accordingly, the judgment is VACATED and the case is REMANDED for further proceedings consistent herewith. 1 Rule 9(a) of the Rules Governing Sec. 2254 Cases, 28 U.S.C. foll. Sec. 2254, provides: Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

42 F.3d 642 Richardsonv.Aldingers* NO. 94-50172 United States Court of Appeals,Fifth Circuit. Dec 08, 1994 Appeal From: W.D.Tex., No. W-93-CA-22 1 AFFIRMED.

436 F.Supp. 234 (1977) In re Samuel J. FRIEDMAN, Receiver for Gilbert Steinhorn and Joyce Steinhorn, Bankrupts. SUPERIOR METAL MOULDING COMPANY, INC. v. Bernard and Elaine SHIPP. Civ. A. No. M-77-696. United States District Court, D. Maryland. August 1, 1977. *235 Michael J. Schwarz, Baltimore, Md., for appellant Superior Metal Moulding Co. Neil Warren Steinhorn, Baltimore, Md., for appellees Bernard & Elaine Shipp. MEMORANDUM JAMES R. MILLER, District Judge. This appeal under Bankruptcy Rule 810 raises a question of the quantum and quality of the evidence that the objector to a creditor's proof of claim must present in order to require the bankruptcy judge to weigh the evidence and make express findings of fact to support the allowance or disallowance of said claim. In this proceeding Elaine and Bernard Shipp, parents of the bankrupts, filed a proof of claim for $16,000 on an unsecured confessed judgment note dated April 30, 1975. Another unsecured creditor, Superior Metal Moulding Company, Inc., filed an objection to $11,000 of the claim, which it argued consisted, in actuality, of gifts made by the parents at important family milestones. At the hearing, before the bankruptcy judge, examination of the claimant, Mrs. Shipp, revealed that for many years prior to the eve of bankruptcy there had been no *236 note or other documentation for the $11,000, no agreement on interest, and no partial repayment. In addition, between the time of the inception of the alleged debt and the declaration of bankruptcy the bankrupts had submitted to bank loan departments three separate financial statements, none of which reported the $11,000 as a debt. Finally, the evidence disclosed that the transfers had been made at happy family times — the grandson's bar mitzvah, the one room addition to the new house, and the opening of a new business. When the $11,000, which had allegedly been loaned to the bankrupts between 1965 and 1968, was finally made the subject, together with a $5,000 loan in 1974, of the $16,000 note on April 30, 1975, it was almost immediately reduced to judgment on May 28, 1975. A sheriff's return was filed showing service of the confessed judgment suit upon the bankrupts on June 4, 1975. On July 3, 1975, the bankrupts filed voluntary Petitions in Bankruptcy. Mrs. Shipp also testified, however, that repayment was expected by the parents, that repayment was promised by the children when business improved, that unpressured inquiries about repayment were made occasionally, and that the informal $11,000 "loans" were made prior to Mr. Shipp's retirement when the claimants were in a better financial position than now. From the evidence before the bankruptcy judge, conflicting inferences could be drawn, and different conclusions reached, depending largely upon the credibility of Mrs. Shipp. If the evidence had been weighed and a finding of fact made, the findings of the bankruptcy judge would be subject to change only if clearly erroneous. Bankruptcy Rule 810. From the record here, this court cannot ascertain whether such a finding was made. In his oral ruling, the bankruptcy judge said: "I don't think the evidence as produced here today is sufficient to overcome the presumption of the existence of a debt that arises by virtue of the filing of claim and the judgment and, therefore, the objection to the claim will be overruled." (Tr. 36) (Paper No. 69). The objector to the claim of the Shipps urges that the evidence presented by it was sufficient to compel the bankruptcy judge to make an express finding of fact on the validity of the debt and that excessive weight was given by the bankruptcy judge to the presumption created by a properly executed proof of claim. I Preliminarily, the objector urges that the proof of claim was not entitled to any evidentiary weight under Bankruptcy Rule 301(b) because it failed to state the consideration for the debt as required. See Bankruptcy Rule 301, Official Form 15; 3 Collier on Bankruptcy § 57.03[3.2] (1976 ed.). Although the proof of claim must present enough detail for the bankruptcy judge to make an informed decision, the objector's argument is mooted by the bankruptcy judge's decision to accept the claimant's oral testimony to compensate for the deficiencies. That decision was entirely within his discretion and is consistent with the expeditious administration of bankruptcy cases. In re Welborne, 266 F. 385, 386-387 (S.D.N.Y.1920); cf. Katchen v. Landy, 382 U.S. 323, 329, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Gardner v. New Jersey, 329 U.S. 565, 573, 67 S.Ct. 467, 91 L.Ed. 504 (1947). Accordingly, for purposes of the appeal, this court will assume that the proof of claim was properly executed. II Bankruptcy Rule 301(b) provides that a "proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim."[1] *237 The term "prima facie evidence" or "prima facie case" has at least two separate, while related, meanings. On the one hand, it may mean evidence which is sufficient to shift the burden of producing evidence and which entitles the proponent to a favorable ruling if the opponent fails to produce evidence. The other meaning is that the proponent has produced enough evidence to go to the finder of fact and to permit a favorable ruling. See J. Wigmore, Evidence § 2494 (1940); McCormick on Evidence § 342, at 803 n.26 (Cleary ed. 1972). In bankruptcy, it is settled that a properly executed proof of claim is sufficient to shift the burden of producing evidence and to entitle the claimant to a share in the distribution of the bankrupt's estate unless an objector comes forward with evidence contradicting the claim. See Bankruptcy Act § 57(d), 11 U.S.C. § 93(d); Bankruptcy Rule 306(b)-(c); Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584 (1906); 3 Collier on Bankruptcy § 57.14. While a properly executed claim does shift the burden of producing evidence to the objector, the burden of persuasion remains at all times with the claimant. See, e. g., Whitney v. Dresser, 200 U.S. at 535, 26 S.Ct. 316; In re Pringle Engineerings & Mfg., 164 F.2d 299 (6th Cir. 1947); In re Sabre Shipping Corp., 299 F.Supp. 97 (S.D.N.Y.1969). At no time does the objector assume the burden of disproving the claim. See 3 Collier § 57.18[5]. The nature and amount of evidence that must be presented by the objector has been described in two ways that diverge in expression and, at least here, in application. Under the first approach, the objector must present "some evidence" contradicting the proof of claim, whereupon the bankruptcy judge must weigh the evidence presented by the objector against the proof of claim, which itself retains some weight as evidence, e. g., Whitney v. Dresser, supra, and any evidence presented by the claimant. After weighing the evidence, the judge must make a finding of fact as to the validity and amount of the claim. See In re Hannevig, 10 F.2d 941, 942 (2d Cir. 1925) ("evidence contradicting [the proof of claim]"); In re Sabre Shipping Corp., 299 F.Supp. 97, 99 (S.D.N.Y.1969) ("contradictory evidence"); In re Bradley, 16 F.2d 301, 302 (S.D.N.Y.1926) ("some evidence contradicting it"); 3 Collier § 57.13, at 225 ("some evidence to the contrary"). Under the other approach, the objector must put on enough evidence to rebut or overcome the prima facie case created by the proof of claim; only then, after a preliminary victory over the presumptive validity of the debt as expressed in the proof of claim, does the objector's additional evidence in nature or amount require the bankruptcy judge to weigh the evidence and find the facts. See In re Estrada's Market, 222 F.Supp. 253, 255 (S.D.Cal.1963) ("evidence to rebut the . . . claim"); 3 Collier § 57.18[5], at 294 ("enough evidence to rebut the claimant's prima facie case"). Apparently this latter view was followed here where, despite the evidence produced by the objector, the bankruptcy judge concluded that the evidence was not "sufficient to overcome the presumption of the existence of a debt." This court concludes that the first approach is the better one to follow. To give the effect of a presumption to a proof of claim and thereby to require an objector to produce sufficient evidence to overcome the presumption is to give greater stature to the proof of claim than is warranted by Rule 301(b) which provides only that a proof of claim is prima facie evidence. To require an objector to produce enough evidence to rebut or overcome the so-called presumption would create a confusing additional step in administering claims against a bankrupt's estate. The Bankruptcy Rules anticipate (1) that an unobjected to proof of claim will be deemed allowed, Rule 306(b); (2) that, upon objection, a hearing will be held, evidence will be presented, and a finding of fact as to the validity and amount of the claim will be made by the bankruptcy *238 judge, see Rule 306(c); and (3) that upon appeal to the district court, the finding of fact may be changed only if clearly erroneous, Rule 810. In this scheme, there is no place for an intermediate ruling that there is not enough evidence to rebut the presumption created by the proof of claim. For these reasons and in accord with the the weight of authority above cited, this court holds that when an objector to a claim goes forward at the hearing with some evidence contradicting the claim, the objector's burden of going forward with the evidence is met. Then the bankruptcy judge must weigh the evidence presented by the objector against the proof of claim, see Whitney v. Dresser, supra, together with any evidence presented by the claimant, and he must make a finding of fact as to the validity and amount of the claim. III It is unclear whether the Order of the bankruptcy judge rested upon the required findings of fact relating to the validity and amount of the claim or instead reflected the use of an erroneous legal standard placing the burden upon the objector to disprove the claim or to overcome a non-existent presumption. The Order of December 21, 1976, denying the objection must be vacated and the case remanded. Upon remand the decision whether or not to reopen the evidence is within the discretion of the bankruptcy judge. If another appeal should be considered after findings of fact by the bankruptcy judge, counsel should bear in mind that the "issue whether the sums paid by [the parents] to the bankrupts were gifts or advancements, or loans is wholly a question of fact." In re German, 193 F.Supp. 948, 950 (S.D.Ill.1961) (emphasis added). This appeal must be remanded so that the finding of fact may be made and expressed. An Order will be entered. NOTES [1] The Federal Rules of Evidence, which apply in bankruptcy subject to specific provisions, see Bankruptcy Rule 917, do not define the effect of "prima facie evidence." F.R.Evid. 301 does govern the effect of a presumption in general in civil actions. To analogize a proof of claim to a complaint, an objection to an answer, and a summary hearing in bankruptcy to a civil trial might be possible, but it seems unnecessary in this case.

201 P.3d 940 (2009) 225 Or. App. 500 HERRERA-ORTIZ v. HOEFEL. Court of Appeals of Oregon. January 28, 2009. Affirmed without opinion.

Order entered November 21, 2012 In The ourt o[ igtritt ol !l exa at No. 05-12-01313-CV INSURANCE ALLIANCE, Appellant VO LAI~ TEXOMA HIGHPORT, LLC, Appellee On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 08-0604-397 ORDER The Court has before it court reporter Paula Thomas’s November 19, 2012 request for an extension of time to file the reporter’s record. The Court GRANTS the request and ORDERS Ms. Thomas to file the reporter’s record by December 3, 2012. MOLLY JUSTICE 

999 So.2d 852 (2009) NORTHROP v. HUTTO. No. 2007-CT-00355-SCT. Supreme Court of Mississippi. January 22, 2009. Petition for writ of certiorari. Granted.

482 So.2d 428 (1985) Ford S. HAUSMAN, Etc., et al., Appellants, v. VTSI, INC., Etc., et al., Appellees. Nos. 84-650, 84-1339. District Court of Appeal of Florida, Fifth District. December 26, 1985. Rehearing Denied January 30, 1986. *429 Steven R. Bechtel, of Mateer, Harbert, Frey, Bechtel & Phalin, P.A., Orlando, and Gaylord A. Wood, Jr., Fort Lauderdale, for appellants Hausman and Earl Wood. Jim Smith, Atty. Gen., and Jospeh Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellant Dept. of Revenue. James M. Spoonhour, of Lowndes, Drosdick, Doster & Kantor, Orlando, and Elliott Messer and Robert S. Goldman, of Messer, Rhodes & Vickers, Tallahassee, for appellees Vistana, Inc., Vistana Resort Management, Inc., and Vistana Condominium Ass'n, Inc. UPCHURCH, Judge. Ford Hausman, the Orange County property appraiser, appeals from a final judgment which held that he improperly assessed time share developments on a per time share basis and that the assessed values exceeded the property's fair market value. Hausman also appeals from a separate order awarding VTSI $13,450.60 in costs. These appeals have been consolidated for our review. We affirm. The question submitted to the lower court concerned the correct method of formulating tax assessments of time share units created in certain condominium units by appellee VTSI, Inc., and managed by appellee Vistana Resort Management, Inc. In 1980, VTSI purchased ninety-eight rental units and associated recreational facilities. In July of 1980, VTSI commenced operating the property as a hotel under a hotel license. Sixty of these units were turned into condominiums and eventually became the time share properties at issue in this case. Each time share unit was divided into fifty-one unit weeks with one week set aside for annual maintenance. At the time the appraisals were done, the unit weeks which had not been conveyed as time share estates were still rented out as hotel rooms. Also, if the owners agreed, their time share units could be rented during the time they were unoccupied. The time share estates at issue here were created by individual deeds, each of which was recorded in the public records for the particular time unit conveyed. Since VTSI was conveying each time share estate by warranty deed, Hausman determined that the assessment for tax year 1982 would be based on the value of each of the three thousand sixty "unit weeks", instead of the actual condominiums. The assigned value appearing on the assessment notice for each condominium unit was derived by adding together actual or assumed sales prices for all the unit weeks which had been or could be conveyed in the condominium and then deducting thirty percent off of the total amount.[1] Of that thirty percent, five percent was a deduction for personalty included in the sales price. The other twenty-five percent deduction was not specifically supported by evidence at trial but was explained by the assistant property appraiser as an attempt to be fair. After examining Florida statutes applicable to tax year 1982, the court below determined that the time share estate or unit week was a fractional or partial interest in real estate. The trial court concluded that since there was no authority under existing law for the appraisal of unit weeks as partial interests and because Hausman did not appraise the actual condominium parcels, the assessments were void. The court also concluded that Hausman failed to adequately consider the criteria for determining just valuation set forth in section 193.011, Florida Statutes (1983). *430 First, we agree with the trial court that at the time Hausman assessed the time share developments he lacked the authority to separately appraise each unit week. Florida's constitution provides that "no tax shall be levied except in pursuance of law." Art. VII, § 1(a), Fla. Const. From this it follows that property taxes are "of a purely statutory nature which can be levied, assessed and collected only as provided by statute." State ex. rel. Seaboard Airline Railway Co. v. Gay, 160 Fla. 445, 35 So.2d 403 (1948). An assessment not authorized by statute is void. Lewis State Bank v. Bridges, 115 Fla. 784, 156 So. 144 (1934). At the time Hausman conducted these assessments, the Florida time share statutes provided: Notwithstanding other provisions of this chapter, either expressed or implied, to the contrary, it is the legislative intent that nothing herein be deemed to alter the existing procedure for the assessment and collection of ad valorem taxes on accommodations or facilities subject to a time-sharing plan. § 721.03(3), Fla. Stat. (1981). Since VTSI's time shares were created in condominium facilities, they should have been assessed accordingly. The Florida Condominium Act provides in part that "[e]ach condominium parcel shall be separately assessed for ad valorem taxes and special assessments as a single parcel." § 718.120(1), Fla. Stat. (1981). The existing statutes did not authorize Hausman to appraise the partial time share interests created in VTSI's condominium units. Due to this lack of authority, the trial court correctly concluded that Hausman's appraisal based on the value of the unit weeks was unlawful. Since Hausman did not proceed lawfully, his assessment is not protected by a presumption of correctness. Blake v. Xerox Corp., 447 So.2d 1348 (Fla. 1984). We note that even though this issue is one of first impression in Florida, it will have limited precedential value. Effective in 1983, the legislature provided for appraisal of time share developments as follows: Fee time-share real property shall be listed on the assessment rolls as a single entry for each time-share development. The assessed value of each time-share development shall be the value of the combined individual time-share periods or time-share estates contained therein. § 192.037(2), Fla. Stat. (1983). Tax statutes, however, operate only prospectively unless legislative intent to the contrary clearly appears. State v. Green, 101 So.2d 805 (Fla. 1958). We find no legislative intent to have section 192.037(2) operate retroactively and thus Hausman cannot rely on this statute to validate his assessment. Second, we conclude that the court below was also correct in finding the assessment unlawful since it exceeded the just value of the real property. The legislature has provided property assessors with statutory criteria to be considered when determining the just valuation or fair market value of real property § 193.011, Fla. Stat. (1981). The parties agreed that five percent of the gross sales price of an individual week was attributable to household furnishings and other items of personal property which should not be included in the assessment of real property. In addition, the trial court found that at least forty-five percent of the gross sales price consisted of the usual and reasonable sales costs and merchandising costs. The court also recognized that atypical and unconventional financing added another seven percent to the cost of the time share units. The court determined that, as a matter of law, the method used by Hausman failed to consider these costs which resulted in an assessment substantially in excess of just value. This conclusion is supported by section 193.011(8), Florida Statutes (1983), which states in relevant part: In arriving at just valuation as required under s. 4, Art. VII of the State Constitution, the property appraiser shall take into consideration the following factors: * * * * * * *431 (8) The net proceeds of the sale of property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements... . An assessor's discretionary judgment as to the weight given to the criteria under section 193.011 will not be disturbed by a reviewing court provided each factor is first carefully considered. Atlantic Int'l. Investment Corp. v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980); Lanier v. Walt Disney World, 316 So.2d 59 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 19 (1976); Clearly, Hausman did not consider the statutory criteria. The conclusory twenty-five percent reduction by Hausman used to approximate fair market value is not a valid exercise of discretion. We suspect that if he had examined these extraneous costs, which add nothing to just value, the appraised value would approximate, if not equal, the value of the same condominium unit if owned by a single fee owner. Third, we find no error in the trial court's award of costs to VTSI. The other points raised by Hausman on appeal are without merit. Since we find no error, the judgment and the award of costs are AFFIRMED. COBB, C.J., and LEE, R.E., Associate Judge, concur. NOTES [1] The sixty condominium parcels involved in this litigation include thirty villas and thirty townhouses. The villas were assigned assessed values by Hausman from $151,059 to $151,063; the townhouses from $182,700 to $189,917. At trial. VTSI contended that the market value of a villa was $61,000 and a townhouse was $65,000.

111 F.3d 127 Paul Rizzov.Paul Revere Insurance Group NO. 96-5408 United States Court of Appeals,Third Circuit. Mar 17, 1997 1 Appeal From: D.N.J. ,No.95cv01791 , 925 F.Supp. 302 2 Affirmed.

51 F.3d 1052 Frank Wilson, Jr.v.Memorial Medical Center Incorporated, Larry Hill NO. 93-9483 United States Court of Appeals,Eleventh Circuit. Mar 31, 1995 S.D.Ga., 43 F.3d 679 1 DENIALS OF REHEARING EN BANC.

206 F.3d 462 (5th Cir. 2000) AMERICAN RIVER TRANS. CO., ET AL., Plaintiffs,v.KAVO KALIAKRA SS, ET AL., Defendants,KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in rem;UNITED KINGDOM MUTUAL STEAMSHIP ASSURANCE ASSOCIATION (BERMUDA) LTD., in personam, Defendants - Appellees,v.COMPASS CONDO CORP., Appellants.In Re: In the Matter of the Complaint of AROSITA SHIPPING CO., LTD., as owner of the M/V Kavo Kaliakra for exoneration from or limitation of liabilityAROSITA SHIPPING CO. LTD., as owner of the M/V Kavo Kaliakra; GROMAR SHIPPING CO., LTD., as owners of the M/V Kavo Kaliakra; GOURDOMICHALIS MARITIME SA, as owners of the M/V Kavo Kaliakra, Petitioners - Appellees,v.COMPASS CONDO CORP., ET AL., Claimants,COMPASS CONDO CORP., Claimant - Appellant.HORACE NICHOLAS, Plaintiff,v.KAVO KALIAKRA SS, ET AL., Defendants,KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in rem; AROSITA SHIPPING CO., LTD., Defendants - Appellees,v.COMPASS CONDO CORP., Appellants. No. 98-31205 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 8, 2000 Appeal from the United States District Court for the Eastern District of Louisiana Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: 1 In this admiralty action, we apply again the principles of Robins Dry Dock & Repair Co. v. Flint.1 Compass Condo Corporationappeals the dismissal of its claims for economic damages arising from the allision of the M/V KAVO KALIAKRA with barges owned by the American River Transportation Company. We AFFIRM the district court's dismissal of Compass's claims for economic damages. 2 * On March 30, 1992, employees of the appellant, Compass Condo Corporation, were engaged as barge washers on a floating barge dock at the Tulane Fleeting Facility. The floating dock was owned by the American River Transportation Company (ARTCO), and Compass's employees were cleaning ARTCO barges. At some point, the M/V KAVO KALIAKRA allided with the ARTCO barges, harming Compass's employees and its equipment. The employees received workers compensation awards under the Longshoreman and Harbor Workers Compensation Act for their personal injuries. Allegedly, as a result of the numerous workers compensation claims, Compass's workers compensation premiums increased. 3 ARTCO filed suit against the owners and operators of the vessel and their insurer. The district court held the defendants liable for the allision, but dismissed Compass's economic damage claims for increased workers compensation premiums. This appeal ensued. II 4 In Robins Dry Dock the Supreme Court held that a steamship charterer could not recover economic damages when the steamship he chartered was rendered useless to him for a period of days after the defendant negligently broke the propeller.2 The charterer had no property interest in the ship when it was harmed, but instead merely had a contract with the ship's owners.3 The Court noted the general rule that "a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong."4 In similar cases, this circuit consistently applies the Robins Dry Dock rule to bar recovery for economic damages in negligence that are unconnected to an injury to a property interest.5 5 In this case, Compass's employees were injured by the negligence of the M/V KALIAKRA. As a result of the accident, Compass's employees filed numerous workers compensation claims, which were paid by Compass's insurer. In turn, the M/V KALIAKRA's owners and insurers paid Compass's insurer 100% of the value of the workers compensation claims, which meant that Compass's insurer endured no loss. Compass apparently changed insurance carriers and pays a higher premium. It blames its new higher premiums on the claims filed by Compass's employees after the allision. 6 Assuming that Compass's higher premiums did result in some finite sense from the M/V KALIAKRA's negligence, Compass's claims are barred under our general rule. These economic damages are traceable only to the personal injuries of Compass's employees, but Compass has no property interest in its employees in any relevant sense. Compass did have a property interest in a few thousand dollars worth of equipment which fell overboard during the accident, but Compass's claimed economic damages are unrelated to the loss of that equipment. 7 Compass argues that the rule is old and eroding. This reliance on the age of the rule in resistance to its application is not persuasive. Its age rather attests to itsutility. And we are otherwise unpersuaded of its erosion. 8 First, Compass argues that employers have been allowed to recover from defendants any compensation payments the employer made to its employees after an accident.6 However, such recovery is a form of indemnification, in which the defendant pays the employer the sums paid to the employees by the employer for damage caused by the defendant. The employer's recovery rests on the employee's personal injury. 9 In this case, Compass bore none of the costs of the compensation awards to its employees. Compass's insurer paid those claims and was in turn fully reimbursed by the defendants. Perhaps Compass's insurance rates should not have been raised by its new insurer in a situation in which the predecessor insurer had no loss, but that is a bone Compass must pick with its new insurer and not the defendants. It is precisely the type of remote economic injury rippling at a distant point from the liability event and unanchored by concrete injury to property that we have consistently disallowed. 10 Second, Compass contends that some courts have allowed the recovery of increased insurance premiums which resulted after an insurer was forced to compensate victims of a defendant's negligence, citing Ledex, Inc. v. Healthbath Corp.7 In Ledex, however, the Ohio Supreme Court merely held that a particular state statute, which purported to void all agreements to indemnify employers against payment of compensation to workers, did not bar an employer from seeking to recover increased workers compensation premiums resulting from injuries suffered by its employees at the hands of a third party.8 Ledex did not hold that such damages were compensable, but only that they were not barred by a particular statute.9 11 In sum, we remain unpersuaded of the need to revise the longstanding admiralty rule that economic damages are not recoverable in negligence untethered to an injury to a property interest. As this circuit explained in Akron Corp. v. M/T Cantigny:10 "The rule's purpose is to prevent limitless liability for negligence and the filing of law suits of a highly speculative nature."11 This case is just another example of the type of speculative and potentially unbounded liability the rule aims to preclude. 12 AFFIRMED. Notes: * Circuit Judge of the Eighth Circuit, sitting by designation. 1 275 U.S. 303 (1927). 2 Id. at 307-08. 3 Id. at 308-09. 4 Id. at 309. 5 See State of Louisiana ex rel Guste v. M/V Testbank, 752 F.2d 1019, 1023-24, 1026-27 (5th Cir. 1985) (en banc). 6 See, e.g., Adams v. Texaco, 640 F.2d 618 (5th Cir. 1981). 7 461 N.E.2d 1299 (Ohio 1984). 8 See id. at 1304. 9 See id. at 1303. Compass also cites Tiger Well Service, Inc., 343 So.2d 1158 (La. App. 3d Cir. 1977), for the proposition that increased insurance premiums may be recovered as economic damages. However, in Tiger Well, the plaintiff suffered property damage and was only allowed to recover economic damages to the degree that they flowed from the claim of property damages. See id. at 1158. Thus, the court in Tiger Well did not oppose the rule at issue here. 10 706 F.2d 151 (5th Cir. 1983). 11 Id. at 152.

648 F.2d 598 UNITED STATES of America, Plaintiff-Appellee,v.Ali Asghar TAHERI, Defendant-Appellant. No. 79-1711. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 8, 1981.Decided June 1, 1981. Kenneth McMullan, San Diego, Cal., for defendant-appellant. Hector E. Salitrero, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., Hector E. Salitrero, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before TRASK, SNEED and SCHROEDER, Circuit Judges. SCHROEDER, Circuit Judge: 1 This is an appeal from a conviction on three counts of charges related to drug possession.1 The case was tried to the Court on stipulated facts. Two issues are presented for review. The first is the admissibility of evidence of heroin seized pursuant to a warrant, but originally discovered in an initial search which had been conducted without a warrant and without probable cause. The second issue is whether, assuming the heroin was inadmissible, the defendant's post-arrest consent to other searches, which yielded opium, was sufficient to purge the primary taint. We reverse all of the convictions. 2 On May 30, 1979, an informant of unknown reliability supplied a DEA agent with the description of a person who was allegedly selling heroin from a certain motel. The agent verified with the motel clerk that a man who matched the informant's description, appellant Ali Taheri, had been staying at the motel but had hurriedly checked out. A few days later, the motel clerk advised the agent that Taheri had returned to the motel and had stated that a package was to arrive for him in the near future. That afternoon the clerk called again and reported that a package had arrived. 3 An agent went to the motel and examined the package, which had suffered during handling in the mail and was held together by a rubberband. While the agent was handling the box, the top opened and the agent observed numerous folded paper bindles inside. He then removed the rubberband and took out one of the bindles, causing some brown powder to fall out. The agent took the powder to the DEA office for testing, and it was determined to be heroin. The government does not seriously dispute the illegality of that search of the package and seizure of the sample. 4 At that point, the agent reported the situation to an assistant U.S. Attorney. On the advice of the assistant U.S. Attorney, agents took a Customs detector dog to the motel. The dog "alerted" on the package, indicating the presence of drugs. The fact of the dog's alert, without mention of the earlier search of the package, was provided to a U.S. magistrate, who issued a search warrant. The agents then, armed with the warrant, returned to the motel, seized 58 of the bindles and substituted bindles of powder for the heroin. One heroin bindle was also left in the package. 5 The following evening, after Taheri returned to the motel and claimed the package, he was arrested with the contents of the package in his possession. After his arrest, he was advised of his rights and gave written consent to searches of his vehicle and his room in another hotel. Opium was found in both places. ADMISSIBILITY OF THE HEROIN 6 The first issue to be decided on appeal is whether the heroin should have been suppressed because it was discovered by means of an unlawful search of the package followed by the equally unlawful seizure and testing of one of the bindles. The government argues that the subsequent "alert" by the dog, which formed the basis for the search warrant and which preceded the seizure of the remaining bindles, was an "independent source" which purged the taint of the initial unlawful activity. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus the government's position is that the taint of an unlawful discovery of evidence is purged by a "rediscovery" by means acceptable for obtaining a warrant.2 7 The test as laid down by this Court, however, is whether "anything seized illegally, or any leads gained from that illegal activity, tend significantly to direct the investigation toward the specific evidence sought to be suppressed." United States v. Cales, 493 F.2d 1215, 1216 (9th Cir. 1974). In this case, the illegally gained knowledge that the substance in the package was heroin formed the impetus for the use of the detector dog. The dog's alert therefore cannot be considered an independent source which removed the taint of the original illegal search. The initial search was part of the same criminal investigation leading to this prosecution and revealed the same evidence which was the subject of the motion to suppress. See the discussion in United States v. Bacall, 443 F.2d 1050 (9th Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971), in which a later investigation uncovered separate evidence of a different crime. 8 The government's position cannot be reconciled with the policy behind the exclusionary rule: the effective deterrence of unlawful searches and seizures. Tehan v. United States ex rel. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965). The subsequent use of the dog and the securing of the warrant amounted to no more than a post hoc justification for using information that had already been illegally obtained. To permit evidence to be admitted under these circumstances would encourage police officers to ignore the dictates of the fourth amendment in conducting initial investigations. As this Court has recently stated: 9 Mechanical application of the traditional Wong Sun "independent source" analysis where a search warrant is subsequently commissioned albeit supported by an affidavit that relies upon independent evidence, would allow police officers to treat the warrant requirement as merely an ex post facto formality. See United States v. Griffin, 502 F.2d 959 (6th Cir. 1974), cert. denied, 419 U.S. 1050, 95 S.Ct. 626, 42 L.Ed.2d 645 (1974) (per curiam) 10 United States v. Allard, 634 F.2d 1182, 1185 n.3 (9th Cir. 1980). 11 This is not a case challenging the sufficiency of a warrant on the ground that the supporting affidavit, in addition to containing legal evidence sufficient to establish probable cause, also referred to illegal evidence. See, e. g., United States v. DiMuro, 540 F.2d 503, 515 (1st Cir. 1976), cert. denied sub nom. Hurley v. United States, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970). Nor is this a case in which the police had legally obtained probable cause before engaging in an illegal, confirmatory search. Krauss v. Superior Court of San Joaquin County, 5 Cal.3d 418, 422-23, 487 P.2d 1023, 1027, 96 Cal.Rptr. 455, 458 (1971).3 In this case the agents had no probable cause before the illegal search, and the efforts to obtain a warrant were merely attempts to validate information unlawfully gained. The evidence of the heroin was not admissible. SEIZURE OF THE OPIUM 12 The second issue is whether the appellant's post-arrest consent to search is sufficient to avoid exclusion of the opium. The only basis for the appellant's arrest was the illegally seized evidence. As a result, the arrest is also illegal since it was not supported by any independent factual basis providing probable cause at the time it was made. See United States v. Marchand, 564 F.2d 983, 991 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); W. LaFave, 3 Search and Seizure § 11.4(e) (1978). Shortly after the appellant was illegally arrested, confronted with the illegally seized evidence, and advised of his Miranda rights, he executed a written consent to search both his car and hotel room where the opium was discovered. 13 The government seeks to justify admission of the opium evidence because of the appellant's consent. Even assuming that the consent was voluntary, however, see Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979), the evidence found as a result of that consent must nonetheless be suppressed if the unconstitutional conduct was not sufficiently attenuated from the subsequent seizure to avoid exclusion of the evidence. Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. at 216, 99 S.Ct. at 2258; United States v. Perez-Esparza, 609 F.2d 1284, 1288 (9th Cir. 1979). See also United States v. Perez-Castro, 606 F.2d 251 (9th Cir. 1979) (inculpatory statements on morning following illegal arrest not sufficiently attenuated). In this case there was no sufficient attenuation. The government, which bears the burden of showing admissibility in these circumstances, United States v. Perez-Esparza, 609 F.2d at 1289, points to no intervening events or lapse of time which would show Taheri's consent was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Id., quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963). See also United States v. Jones, 608 F.2d 386, 392 (9th Cir. 1979). The opium was also inadmissible. 14 The convictions are reversed and the mandate shall issue forthwith. 1 The defendant was found guilty on one count of conspiracy to possess a controlled substance in violation of 21 U.S.C. § 846 and two counts of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) 2 We assume without deciding that use of the dog under these circumstances did not require a warrant. See United States v. Solis, 536 F.2d 880 (9th Cir. 1976) 3 The California Supreme Court has recently re-evaluated the problems inherent in the Krauss position that there is no exploitation of a police illegality within the meaning of Wong Sun when a police officer possesses lawfully acquired information sufficient to support the issuance of a search warrant, but conducts an illegal search before actually seeking the warrant. In People v. Cook, 22 Cal.3d 67, 98-99, 583 P.2d 130, 148-49, 148 Cal.Rptr. 605, 623-24 (1978), the court, noting that the ensuing illegal search would increase the risk of invading innocent privacy and was therefore constitutionally unreasonable, stated: After Krauss, a police officer need not rely solely on lawfully obtained probable cause; he can instead achieve "certain cause" by conducting an unlawful confirmatory search, thus saving himself the time and trouble of obtaining and executing a warrant if he does not find the evidence. He can safely engage in this conduct because Krauss teaches him that if the evidence does turn up in the course of the illegal search, he will still be allowed to seize it later in a second "search" under color of a warrant. The latter prospect thus gives him strong incentive to proceed with the warrantless entry. Yet every time he fails to find the suspected evidence, he has also invaded the privacy of a citizen innocent of any wrongdoing. The second "search" is therefore constitutionally unreasonable because it significantly contributes to increasing the risk of such invasions of privacy. Krauss was therefore overruled insofar as it held to the contrary.

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed January 29, 2008 Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed January 29, 2008.   In The   Fourteenth Court of Appeals ____________   NO. 14-07-01025-CV ____________   IN RE JOHN GRAY, Relator     ORIGINAL PROCEEDING WRIT OF MANDAMUS     M E M O R A N D U M   O P I N I O N On November 30, 2007, relator John Gray filed a petition for writ of mandamus.  See Tex. Gov=t Code Ann. '22.221 (Vernon 2004); see also Tex. R. App. Proc. 52.  In his petition, relator asks this court to direct respondent David Patronella, Justice of the Peace of Harris County, to (1) return to him certain mail (from relator to the clerk of the 230th District Court of Harris County) that was erroneously received by a member of respondent=s staff; or (2) forward such mail to the clerk of the 230th District Court of Harris County at the proper address. Texas Government Code Section 22.221 authorizes this court to issue writs of mandamus (1) against a judge of a district or county court in the court of appeals=s district or (2) where necessary to enforce this court=s jurisdiction.  Tex. Gov=t Code Ann. '22.221 (Vernon 2004).  Relator has not claimed or shown that the relief he requests is necessary to enforce this court=s jurisdiction, and this court has no independent authority to issue a writ of mandamus against a justice of the peace.  See, e.g., Easton v. Franks, 842 S.W.2d 772 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding); Simpson v. Morgan, 779 S.W.2d 509 (Tex. App.CBeaumont 1989, orig. proceeding).  This proceeding is, therefore, dismissed for lack of jurisdiction.   PER CURIAM   Petition Dismissed and Memorandum Opinion filed January 29, 2008. Panel consists of Justices Yates, Guzman, and Brown. Do Not Publish B Tex. R. App. Proc. 47.2(b).

351 F.3d 360 UNITED STATES of America, Appellee,v.Thomas J. BERNARD, Appellant. No. 03-1352. United States Court of Appeals, Eighth Circuit. Submitted: October 21, 2003. Filed: December 8, 2003. Michael J. Tasset, argued, Oakland, NE, for appellant. Steven A. Russell, argued, Asst. U.S. Atty., Lincoln, NE, for appellee. Before RILEY, BEAM, and SMITH, Circuit Judges. RILEY, Circuit Judge. 1 Thomas Bernard (Bernard) appeals the district court's1 dismissal of his 28 U.S.C § 2255 habeas motion challenging a restitution order in excess of $27,000,000. The district court concluded the relief sought by Bernard was beyond the scope of the statute. We agree and affirm. 2 In July 2000, Bernard pled guilty to two counts of bank fraud. The district court held an evidentiary hearing and determined the amount of loss exceeded $20,000,000. The court sentenced Bernard to 54 months imprisonment and ordered restitution in the amount of $27,534,980.03. Bernard did not file a direct appeal. 3 In December 2001, Bernard filed a 28 U.S.C. § 2255 motion challenging his restitution order on the basis the district court failed to consider evidence of Bernard's ability to pay restitution, as required by 18 U.S.C. §§ 3663(a)(1) and 3664(a). The district court granted Bernard an evidentiary hearing, and the government filed a motion to dismiss for lack of jurisdiction. Although the district court did not adopt the government's argument that the court lacked subject matter jurisdiction, the district court dismissed Bernard's habeas motion, ruling that 28 U.S.C. § 2255 "cannot be utilized by a federal prisoner who challenges only the restitution portion of his sentence." The district court concluded that, upon Bernard's release from prison, 18 U.S.C. § 3664(k) would provide an appropriate remedy.2 4 The issue of whether 28 U.S.C. § 2255 affords relief to a prisoner challenging the restitution portion of his sentence is one of first impression in this circuit. We believe the plain and unambiguous language of the statute—"[a] prisoner in custody ... claiming the right to be released"—precludes a restitution challenge. We join a majority of circuits in holding that a federal prisoner cannot challenge the restitution portion of his sentence using 28 U.S.C. § 2255, because this statute affords relief only to prisoners claiming a right to be released from custody. See Kaminski v. United States, 339 F.3d 84, 87 (2d Cir.2003); United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999); United States v. Hatten, 167 F.3d 884, 887 (5th Cir.1999); Blaik v. United States, 161 F.3d 1341, 1342 (11th Cir.1998); Barnickel v. United States, 113 F.3d 704, 706 (7th Cir.1997); Smullen v. United States, 94 F.3d 20, 25 (1st Cir.1996); see also Obado v. New Jersey, 328 F.3d 716, 717-18 (3d Cir.2003); cf. United States v. Watroba, 56 F.3d 28, 29 (6th Cir.1995) (concluding habeas movant was precluded from challenging the imposition of a fine and supervised release in a 28 U.S.C. § 2255 motion); but see Weinberger v. United States, 268 F.3d 346, 351 n. 1 (6th Cir.2001) (finding an ineffective assistance of counsel claim regarding restitution is cognizable under 28 U.S.C. § 2255). Because the relief Bernard requests does not qualify as a "right to be released," as dictated by 28 U.S.C. § 2255, we affirm the dismissal of his habeas motion. Notes: 1 Honorable Warren K. Urbom, United States District Judge for the District of Nebraska 2 Although not necessary to our holding, we believe the district court's conclusion, that 18 U.S.C. § 3664(k) is an appropriate future remedy, is correct

317 F.Supp.2d 220 (2004) DCMR, d/b/a Diversified Components Manufacturing Representative, Plaintiff, v. TRIDENT PRECISION MANUFACTURING, Defendant. No. 02-CV-6237T. United States District Court, W.D. New York. January 28, 2004. *221 *222 Richard L. Bourland, Bourland Kirkman Seidler Evans Jay & Michel, Fort Worth, TX, Thomas N. Trevett, Trevett, Lenweaver & Salzer, P.C., Rochester, NY, for Plaintiff. Greta Katrin Kolcon, Woods Oviatt Gilman LLP, Rochester, NY, Jeff A. Cody, Fulbright & Jaworski, Dallas, TX, for Defendant. DECISION and ORDER TELESCA, District Judge. INTRODUCTION Plaintiff DCMR, d/b/a Diversified Components Manufacturers' Representative ("plaintiff"), brings this diversity action against defendant Trident Precision Manufacturing, Inc. ("defendant"), alleging breach of contract, violation of the Sales Representative Act of Texas, fraud, quantum meruit and breach of the implied covenant of good faith and fair dealing, claiming that defendant failed to honor its contractual obligations to plaintiff. Defendant brings this motion for dismissal pursuant to Federal Rule of Civil Procedure 12 for failure to state a claim, or alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that no triable issue of fact exists, and thus, it is entitled to judgment as a matter of law because it has fully complied with its obligations under the contract.[1] For the reasons set forth below, defendant's motion requesting summary judgment in its favor is granted in its entirety, and each of plaintiff's claims is dismissed with prejudice. BACKGROUND Plaintiff is a corporation duly organized under the laws of the State of Texas, with its principal place of business located in Fort Worth, Texas, and conducts business as a manufacturer's sales representative on behalf of several principals, including defendant. Defendant is a corporation duly organized under the laws of the State of New York, with its principal place of business located in Webster, New York, and is engaged in the business of manufacturing, among other things, electro-mechanical sub-assemblies. The basis of this action is a contract ("the Contract") entered into by the parties on July 1, 1999, and terminated by defendant on September 27, 2001.[2] By the terms of the contract, plaintiff agreed to perform certain marketing services for defendant in exchange for an agreed upon commission. Section "V(C)" of the contract provides that plaintiff is entitled to a 5% commission "on the net invoice price of TRIDENT PRODUCTS provided by TRIDENT and accepted and paid by the customer...." Section "VII(B)" provides that either party may terminate the Contract, stating: either party may terminate this agreement for any reason whatsoever upon thirty (30) days written notice of termination *223 to the other party. Other than a termination by TRIDENT for [DCMR's] material breach of this agreement, TRIDENT shall pay [DCMR] commissions for all orders obtained as a result of [DCMR]'s efforts that were booked, accepted and shipped prior to the end of the one hundred and twenty (120) day period commencing on the date of notice of termination by the terminated party. The Contract further provides that upon termination, defendant's liability to plaintiff is limited, specifically stating: It is agreed and understood that TRIDENT will not, by any reason of any termination of this agreement or for any reason whatsoever, be liable to [DCMR] for indirect, incidental or consequential damages of any kind, including, but not limited to, compensation, reimbursement or damages on account of present or prospective loss of profits on sales, goodwill, termination of employees, salaries, expenditures, investment or commitments made in connection herein. Prior to the termination of the contract on December 27, 2001, plaintiff introduced defendant to Applied Science Fiction ("ASF"), a digital imaging company which manufactured photo kiosks and needed to locate a company to manufacture components for the kiosks. ASF anticipated eventually manufacturing 40,000 kiosks. Defendant informed ASF that it could produce the needed components for a price of $10,000 per unit. Several "test" kiosks were manufactured, but a complete order was never placed. In December 2002, ASF informed defendant that the kiosk project was on hold, and in 2003 ASF was acquired by Eastman Kodak Company. At no point did ASF sign a contract with defendant, nor was an invoice issued for kiosks other than the "test" kiosks. Plaintiff brings this action claiming that it is entitled to a commission for the 40,000 unit forecast ASF provided defendant, and seeks relief based upon: (1) breach of contract; (2) violation of the Sales Representative Act of Texas; (3) fraud; (4) quantum meruit; (5) breach of implied covenant of good faith and fair dealing. Plaintiff also claims that it is entitled to punitive damages based on defendant's willful and malicious conduct and that it is entitled to attorneys fees incurred in this action. Defendant moves for summary judgment requesting that the Court find in its favor and dismiss plaintiff's claims, arguing that there exists no genuine issue as to a material fact, claiming it fully satisfied its obligations under the contract with plaintiff. DISCUSSION Rule 56 of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment as a matter of law only where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...." F.R.C.P. 56(c) (2003). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists, and in making the decision the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003) (citing Marvel Characters v. Simon, 310 F.3d 280, 285-86(2d Cir.2002)). "Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Id.[3] *224 A. Breach of Contract Claim In the Count One of its Amended Complaint (Doc. No. 27), plaintiff alleges that "[i]n breach of the Sales Representative Agreement the Defendant wrongfully and in bad faith terminated the Agreement to the damage of Plaintiff...." (Amended Complaint, Doc. No. 27, p. 3). Defendant, in its motion for summary judgment, argues that dismissal is appropriate because, by contract, the parties had the right to terminate the agreement upon thirty days notice, for any reason or no reason, and thus its choice to exercise that right can not amount to a breach of the Contract. Under New York law, "an employer has the right to terminate an at will employee at any time for any reason or for no reason, except where that right has been limited by express agreement." Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 334, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987). Thus, defendant could terminate plaintiff at any time, for any reason or no reason at all, provided the Contract did not limit its broad right to do so.[4] When a court interprets a contract, the intent of the parties governs, and words and phrases should be given their plain meaning. American Exp. Bank Ltd. v. Uniroyal, Inc., 164 A.D.2d 275, 277, 562 N.Y.S.2d 613 (1st Dep't 1990). "Rather than rewrite an unambiguous agreement, a court should enforce the plain meaning of that agreement." Id. Where, as here, "the intent of the parties can be determined from the face of the agreement, interpretation is a matter of law and the case is ripe for summary judgment." Zolotar v. New York Life Insurance Company, 172 A.D.2d 27, 30, 576 N.Y.S.2d 850 (1st Dep't 1991). Section "VII", Paragraph "B" of the Contract states "either party may terminate this agreement for any reason whatsoever upon thirty (30) days written notice of termination to the other party. ..." By letter dated September 27, 2001, defendant informed plaintiff that it was terminating the Contract in accordance with Section "VII", Paragraph "B" of the Contract.[5] Therefore, plaintiff's first cause of action for "wrongful" breach of contract is dismissed. B. Sales Representative Act of Texas Claim Plaintiff's Second Cause of Action alleges that defendant wrongfully and in bad faith terminated the Contract in violation of the Sales Representative Act of Texas, codified at Tex. Bus. & Comm.Code §§ 35.81-35.86 (2002). Defendant responds claiming that the Contract and any litigation arising from the Contract is governed by New York law, and thus plaintiff's claim under Texas law should be dismissed. Federal courts sitting in diversity in New York State must apply New York's choice of law rules when determining which law governs a contract. Lehman Bros. Commercial Corp. v. Minmetals Int'l Non-Ferrous Metals Trading *225 Co., 179 F.Supp.2d 118 (S.D.N.Y.2000). New York courts may refuse to enforce a choice of law clause only where: (1) there is no reasonable basis for the choice of law; or (2) the application of the chosen law would violate a fundamental public policy of another jurisdiction with materially greater interests in the dispute. Hartford Fire Ins. Co. v. Orient Overseas Container Lines (UK), Ltd., 230 F.3d 549, 556 (2d Cir.2000). Here, the parties agreed that New York law would govern the Contract and any litigation arising from it. Section "IX", Paragraph "A" of the Contract directs that "[t]his agreement and the legal relations between the parties, shall be governed by and interpreted solely in accordance with the laws of the State of New York." Moreover, neither exception to New York's choice of law rule applies. First, as defendant has its principal place of business in Webster, New York, there is a reasonable basis for choosing New York law to control. Second, no fundamental public policy will be offended by the application of New York law, particularly since the parties agreed that New York State law would control their "legal relations." Therefore, I conclude that New York law, and not Texas law, governs this dispute. Accordingly, plaintiff's second cause of action, based on Texas State law, is dismissed. C. Fraud Claim Plaintiff's Count 3 alleges that defendant fraudulently induced plaintiff, to plaintiff's detriment, into entering a contractual relationship with it. Defendant contends that plaintiff fails to plead a proper fraud claim, and instead simply converts its breach of contract claim into a fraud claim by adding an allegation that defendant never intended to fulfill its obligations under the contract. Under New York law, a plaintiff asserting a claim for fraud must establish: (1) a material misrepresentation or omission of fact; (2) made with knowledge of its falsity; (3) with an intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) injury to plaintiff. Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir.1997). However, where a plaintiff alleges only that the defendant entered into a contract with no intention of performing, a claim for fraud is not generally established. Grappo v. Alitalia Linee Aeree Italiane, 56 F.3d 427, 434 (2d Cir.1995). Here, in support of its contention that defendant committed fraud, plaintiff offers nothing more than bald assertions that defendant never intended to fulfill its obligations under the contract. Because plaintiff fails to state a claim for which relief may be granted on its fraud claim, the claim is dismissed. D. Quantum Meruit Claim In Count 4, plaintiff alleges that it is entitled to recover for services it provided to defendant on the basis of quantum meruit. Defendant responds, arguing that plaintiff is unable to recover under quantum meruit because a valid contract covers the subject of this dispute. Quantum meruit is a doctrine of "quasi contract." Zolotar v. New York Life Insurance Company, 172 A.D.2d 27, 576 N.Y.S.2d 850, 852 (1st Dep't 1991). In New York State, "[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. A `quasi contract' only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent unjust enrichment." Clark-Fitzpatrick, *226 Inc. v. Long Island Rail Road Company, 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987)(internal citations omitted). Here, there exists a valid contract between plaintiff and defendant which clearly and concisely establishes the circumstances under which plaintiff would be entitled to a commission. Furthermore, plaintiff has failed to demonstrate any issue of material fact which would indicate that defendant had been unjustly enriched as a result of a benefit conferred by plaintiff. As such, plaintiff is unable to recover on the basis of quantum meruit, and its fourth cause of action is dismissed. E. Breach of Good Faith and Fair Dealing Claim Plaintiff further alleges that defendant violated the covenant of good faith and fair dealing when it terminated the contract. Defendant argues that it cannot be held liable for a breach of the implied covenant of good faith and fair dealing based on its exercise of expressed rights under the Contract. "Implicit in every contract is a promise of good faith and fair dealing, which is breached when a party acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under the agreement." Skillgames, LLC v. Brody, 1 A.D.3d 247, 767 N.Y.S.2d 418, 422 (1st Dep't 2003). A defendant "does not breach its duty of good faith and fair dealing by exercising it rights under the contract[ ]...." Associates Capital Services Corp. of New Jersey v. Fairway Private Cars, Inc., 590 F.Supp. 10, 16 (S.D.N.Y.1982). Moreover, plaintiff has failed to offer any evidence that it is entitled to additional payments under the contract. Plaintiff's claim for breach of the implied covenant of good faith and fair dealing cannot substitute for an unsustainable breach of contract claim. Accordingly, plaintiff's claim for breach of the covenant of good faith and fair dealing is dismissed.[6] CONCLUSION For the reasons set forth above, I find that there exists no material facts in dispute as to any of plaintiff's claims. Accordingly, defendant's motion for summary judgment is granted in its entirety, and each plaintiff's claims is dismissed with prejudice. ALL OF THE ABOVE IS SO ORDERED. NOTES [1] Plaintiff also filed what is purported to be a cross-motion for summary judgment, but in actuality is simply an attorney's affidavit, which raises no additional arguments other than those it used to oppose defendant's motion for summary judgment, and since it supports no triable issue of fact it is dismissed as a matter of law. [2] A copy of the Contract can be found at "Exhibit A" to plaintiff's Amended Complaint. (Amended Complaint, Doc. No. 27, Exhibit A). [3] Defendant asserts for the first time in its reply papers that jurisdiction in this Court is improper because plaintiff fails to plead damages in excess of the statutory minimum required under 28 U.S.C. § 1332. However, in its Complaint, plaintiff claims that it is entitled to a 5% commission on a forecasted sale totaling $40,000,000 — an amount well in excess of $75,000 the amount necessary to confer federal jurisdiction by diversity of citizenship. Therefore, I find that diversity jurisdiction is proper. [4] Although Section "IV", Paragraph "B", of the Contract identifies plaintiff as an "independent contractor", and "not an employee", its duties under the Contract are sufficiently similar to those of an employee so as to negate any distinction. See Arledge v. Stratmar Systems, Inc., 948 F.2d 845 (2d Cir.1991) (Independent contractor relationship sufficiently analogous to employment contract so as to bring it within purview of "at-will" rule of discharge.). [5] See Affidavit of Nicholas Juskiw, Doc. No. 44, Exhibit C. [6] Plaintiff also pleaded two additional causes of action: (1) that it was entitled to punitive damages; and (2) that it was entitled to an award of attorneys' fees. As each of plaintiff's claims upon which an award could be made is hereby dismissed with prejudice, plaintiff's request for punitive damages and attorneys' fees is also hereby dismissed.

445 F.3d 865 UNITED STATES of America, Plaintiff-Appellee,v.Wayne Morgan JONES, Defendant-Appellant. No. 05-5657. United States Court of Appeals, Sixth Circuit. Submitted: January 25, 2006. Decided and Filed: April 17, 2006. ON BRIEF: Adele Burt Brown, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee. Before: MOORE and McKEAGUE, Circuit Judges; POLSTER, District Judge.* POLSTER, D. J., delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 871-874), delivered a separate dissenting opinion. OPINION 1 POLSTER, District Judge. 2 Defendant-Appellant Wayne Morgan Jones ("Jones") was sentenced to twelve months of imprisonment for defrauding and attempting to defraud a financial institution in violation of 18 U.S.C. § 1344(1) and using another person's identity to commit this fraud in violation of 18 U.S.C. §§ 1028(a)(7) and (2). Jones appeals this sentence, arguing that the district court should have reduced his sentence pursuant to U.S. Sentencing Guidelines ("U.S.S.G") § 5K2.23 because he had already served a one-year state sentence for the same conduct. For the reasons stated below, we AFFIRM Jones' sentence. I. 3 On November 12, 2002, Jones fraudulently assumed the identity, including the date of birth and social security number, of Orville Wayne Hudson, to secure a $21,995 loan from Bank of America to purchase a recreational vehicle. On June 2, 2003, Jones traded in the vehicle at a dealership, using the proceeds to purchase another motor vehicle. To finance the purchase of the second motor vehicle, Jones again assumed the identity of Orville Wayne Hudson to secure a second loan from Bank of America.1 4 On December 10, 2003, Jones was sentenced for receiving stolen property in a Kentucky state court based on his illegally obtaining and possessing the second motor vehicle. Jones served 365 days in prison for this offense and was released from state custody on August 27, 2004. 5 On December 14, 2004, Jones was arrested on federal charges of bank fraud and identity theft based on his use of Orville Wayne Hudson's identity to finance the purchase of the two motor vehicles. Jones pled guilty to the charges without a written plea agreement. The presentence investigation report indicated that a § 5K2.23 downward departure2 might be appropriate given that Jones had already served a state sentence for relevant conduct. At the sentencing hearing, Jones did not specifically request a downward departure pursuant to § 5K2.23. He did, however, request probation rather than a custodial sentence because, among other reasons, he had already served twelve months in state prison for the same conduct. The district court denied this request and sentenced Jones to twelve months of imprisonment, the high end of the 6-12 month advisory Guidelines range for offense level 10, Criminal History Category I. II. 6 Jones argues that the trial court erred in failing to give him a below-Guidelines sentence under U.S.S.G. § 5K2.23 because of the one year he had already served in state prison for the same conduct. At the sentencing hearing, Jones' attorney did not specifically reference § 5K2.23 in his remarks to the district court, or specifically request a downward departure, but he did request a sentence of probation. Jones argues that his request for probation "would have required a downward departure because [Jones] was not eligible for probation according [to] the [G]uideline calculation."3 Appellant's Br. at 4. 7 Section 5K2.23 provides as follows: A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense. 8 U.S.S.G. § 5G1.3(b) authorizes an adjustment in a defendant's sentence and the concurrent running of sentences where the defendant is currently serving a sentence that "resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments)."4 9 Prior to the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it was well-established in this Circuit that a district court's decision to deny a request for a downward departure was not reviewable unless the district court judge "incorrectly believed that [he] lacked any authority to consider defendant's mitigating circumstances as well as the discretion to deviate from the guidelines." United States v. Clark, 385 F.3d 609, 623 (6th Cir.2004) (quoting United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994)); United States v. Stewart, 306 F.3d 295, 329 (6th Cir.2002). In United States v. Puckett, 422 F.3d 340, 344-45 (6th Cir.2005), this Court held that the pre-Booker standard foreclosing review of a district court's decision not to depart downward "unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure" survived Booker. Id. at 344 (citing Stewart, 306 F.3d at 329). The Court concluded that it did not have authority to review the district court's decision not to depart downward and affirmed the defendant's sentence. Id. at 346. 10 In United States v. McBride, 434 F.3d 470 (6th Cir.2006), this Court addressed the potential tension between Booker and Puckett and clarified the scope of our review of sentences post-Booker in light of Booker's mandate to review a district court's sentence for reasonableness. The Court limited the holding in Puckett to preclude the review of that narrow determination to deny a Guidelines-based departure within the context of the advisory Guidelines calculation. Since under Booker this would merely be one factor to be considered when imposing a sentence, McBride, 434 F.3d at 474 n. 1, 476, the Court held that Puckett did not alter our ability to review the overall reasonableness of a district court's sentence, and attributed the absence of this review in Puckett to the majority's belief that the defendant did not properly argue for reasonableness review on appeal. Id. at 474-75, 476 n. 4; see id. at 476-77 ("[Puckett] does not prevent our review of a defendant's claim that his sentence is excessive based on the district court's unreasonable analysis of the [18 U.S.C. §] 3553(a) factors in their totality."). III. 11 We now review Jones' sentence for reasonableness. The district court must articulate the reasons for the particular sentence imposed in order to enable this Court to engage in a meaningful reasonableness review of the sentence. United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005) (finding reasonableness review impossible where the district court provided a list of characteristics of the defendant that it considered at sentencing, without any accompanying analysis, and did not reference the applicable Guidelines provisions); see also United States v. James Williams, 432 F.3d 621, 623-24 (6th Cir. 2005) (affirming the district court's decision to depart downward where the district court, in following the framework established in Jackson, considered the applicable Guidelines range and provided a detailed analysis in support of its decision to depart). This Court has determined that a reasonableness review contains both substantive and procedural components. McBride, 434 F.3d at 475 n. 3 (citing United States v. Webb, 403 F.3d 373, 383-85 (6th Cir.2005)). We must consider, therefore, the length of the sentence as well as "the factors evaluated and the procedures employed by the district court in reaching its sentencing determination." Webb, 403 F.3d at 383. 12 In determining the sentence to be imposed, the district court must consider the advisory Guidelines range and all relevant factors identified in 18 U.S.C. § 3553(a). Jackson, 408 F.3d at 305; McBride, 434 F.3d at 476. This Court recently held that sentences properly calculated under the advisory Guidelines are accorded a rebuttable presumption of reasonableness. United States v. Leonard Williams, 436 F.3d 706, 708 (6th Cir.2006). Here, the district court properly calculated and considered the appropriate Guidelines range. We must, however, review under the reasonableness standard the district court's consideration and analysis of the factors listed in § 3553(a). McBride, 434 F.3d at 476-77. 13 Jones argues that his sentence is unreasonable because the district court failed to consider the policy statement set forth in U.S.S.G. § 5K2.23 which authorizes courts to depart downward if the defendant has already served a term of imprisonment for relevant conduct. This Guidelines provision is a pertinent factor under § 3553(a)(5) which requires the district court to consider any relevant policy statements in determining the sentence to be imposed.5 Although the district judge did not explicitly refer to § 5K2.23 in his sentencing determination, he stated on the record that he considered the sentencing objectives set forth in § 3553 and determined that the sentence imposed would meet those objectives. J.A. at 27 (Tr. of Sentencing Hr'g at 7). 14 The district court need not explicitly reference each of the § 3553(a) factors in its sentencing determination. McBride, 434 F.3d at 475 n. 3; Leonard Williams, 436 F.3d at 708. However, there must be "sufficient evidence in the record to affirmatively demonstrate the court's consideration of [these factors]." McBride, 434 F.3d at 475 n. 3. Here, the district court properly considered the factors set forth in § 3553(a) in crafting the appropriate sentence. 15 The court found that "the scope of ... Jones' fraudulent activities spans over 20 years and far exceeds that which is normally encountered by the Court." J.A. at 26 (Tr. of Sentencing Hr'g at 6). A review of the presentence report reveals that these fraudulent activities included convictions for interstate transportation of stolen vehicles, issuing insufficient funds checks, and alteration of automobile odometers. J.A. at 43-45 (Presentence Report ("PSR") at 10-12). These prior convictions were too old to count in computing Jones' criminal history category,6 see U.S.S.G. § 4A1.1(a) cmt. n. 1 (citing id. § 4A1.2(e)), and Jones was therefore in Criminal History Category I. The district judge stated that he believed that the advisory Guidelines range was too low. J.A. at 27 (Tr. of Sentencing Hr'g at 7). The district judge then stated that he gave serious consideration to an upward departure, but, because of Jones' medical condition, decided not to depart upward. J.A. at 27 (Tr. of Sentencing Hr'g at 7). The court indicated that it had sympathy for Jones due to his heart condition but other than that had "absolutely no sympathy" for him. J.A. at 26 (Tr. of Sentencing Hr'g at 6). The court, therefore, considered "the nature and circumstances of the offense" and Jones' "history and characteristics," see 18 U.S.C. § 3553(a)(1), as well as "the need for the sentence imposed ... to reflect the seriousness of the offense... and to provide just punishment for the offense," id. § 3553(a)(2)(A); see J.A. at 27 (Tr. of Sentencing Hr'g at 7) (stating that Jones "deserves to be punished"). 16 Given Jones' criminal history, "it was reasonable for the district court to place substantial weight on [this factor] in reaching its sentencing determination." Webb, 403 F.3d at 384 (finding that the district judge was understandably troubled by the defendant's lengthy criminal history). In fact, after his first federal conviction in 1967, Jones absconded from probation, changed his name to Wayne Thomas Hudson, and adopted a false date of birth and social security number. J.A. at 40, 43 (PSR at 7, 10). In addition to adopting the name Wayne Thomas Hudson and the accompanying identifiers, all of which were fictitious, Jones used the non-fictitious date of birth and social security number of Orville Wayne Hudson to commit the instant offense. J.A. at 39-40 (PSR at 6-7); see also Appellant's Br. at 3 (stating that Orville Wayne Hudson and Wayne T. Hudson are different people). 17 The district court also considered Jones' physical condition, 18 U.S.C. § 3553(a)(5); U.S.S.G. § 5H1.4, in arriving at the appropriate sentence.7 Furthermore, the district court considered "the need to provide restitution to any victims of the offense," 18 U.S.C. § 3553(a)(7), and determined that restitution could be made before, during and after incarceration. J.A. at 29 (Tr. of Sentencing Hr'g at 9). In discussing Jones' inability to pay a fine, the court took into account "the kinds of sentences available," see 18 U.S.C. § 3553(a)(3); J.A. at 29-30 (Tr. of Sentencing Hr'g at 9-10); Leonard Williams, 436 F.3d at 708 (finding that the district court, in discussing the defendant's inability to pay a fine, addressed "the kinds of sentences available"), and, in requiring Jones to undergo mental health treatment while on supervised release, the district court considered "the need for the sentence imposed ... to provide the defendant with ... correctional treatment in the most effective manner," 18 U.S.C. § 3553(a)(2)(D). 18 The dissent contends that because the district court did not explain its rejection of Jones' argument for a reduced sentence, Jones' sentence cannot be meaningfully reviewed. We disagree. The district court complied with this Court's holding in United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006), that a sentencing judge must explain to the parties and the reviewing court its reasons for imposing a particular sentence. 19 The sentencing regime that the U.S. Supreme Court created in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), places the responsibility for sentencing in the hands of the district judge, who must consult the Guidelines and adhere to the factors set forth in 18 U.S.C. § 3553(a). While this Court reviews a sentence for both procedural and substantive reasonableness, McBride, 434 F.3d at 476 n. 3; Webb, 403 F.3d at 383, a sentence within the applicable Guidelines range should not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Otherwise, the procedural reasonableness review will become appellate micromanaging of the sentencing process. 20 The district court considered the applicable Guidelines range, the factors identified in § 3553(a), and articulated its reasons for the sentence imposed. Given that the applicability of U.S.S.G. § 5K2.23 was articulated in the presentence report and defense counsel twice informed the district court that Jones had already served a twelve-month sentence in state court for the same conduct, we find that the district court was aware of Jones' previous state sentence but nevertheless sentenced him to twelve months of imprisonment in light of the gravity of the offense and his extensive criminal history. Accordingly, we find that Jones' sentence is not unreasonable "with regard to the length, the factors considered, or the procedures employed by the district court [in reaching its sentencing determination]," Webb, 403 F.3d at 385, and we affirm the sentence of the district court. Notes: * The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by designation 1 It appears that Jones used the fictitious name Wayne T. Hudson, but adopted the non-fictitious social security number and date of birth of Orville Wayne Hudson, to secure these loansSee J.A. at 39-40 (Presentence Report at 6-7); Appellant's Br. at 3. 2 As the Guidelines are now only advisory,see United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the term "below-Guidelines sentence" is a more accurate term than "departure." 3 The parties agree that Jones was at offense level 10 and Criminal History Category I, which produced an advisory Guidelines range of 6-12 months. U.S.S.G. § 5B1.1(b)(1) prohibits the imposition of a sentence of probation where the offense of conviction is a Class A or B felony. Bank fraud is a Class B felonySee United States v. Burns, 433 F.3d 442, 445 n. 1 (5th Cir.2005); United States v. Wilbon, 150 Fed.Appx. 497, 499 (6th Cir.2005) (unpublished). Furthermore, § 5B1.1(b)(3) bars a sentence of probation where the defendant is simultaneously sentenced to a term of imprisonment for the same or a different offense. See also 18 U.S.C. § 3561(a); United States v. Thornton, 975 F.2d 867 (8th Cir. 1992) (unpublished). 4 The parties apparently agree that § 5G1.3(b) would have provided an adjustment had Jones' completed term of imprisonment been undischarged at the time of Jones' sentencing for the instant offense 5 This provision would also be pertinent under § 3553(a)(2)(A) (requiring the court to consider the need for the sentence imposed to provide just punishment for the offense) and (2)(B) (requiring the court to consider the need for the sentence imposed to afford adequate deterrence to criminal conduct) 6 The only prior conviction listed in the presentence report that was not too old for purposes of computing Jones' criminal history category was the 12-month sentence Jones served in state prisonSee J.A. at 45 (PSR at 12). However, this offense was not assigned any criminal history points because the underlying conduct was considered conduct that is part of the instant offense. See J.A. at 46 (PSR at 13) (citing U.S.S.G. § 4A1.2(a)(1)). 7 The Guidelines discourage courts from considering a defendant's physical condition in determining whether a departure may be warrantedSee U.S.S.G. § 5H1.4. We need not decide whether the district court improperly considered Jones' health pursuant to § 5H1.4 because that provision applies to downward departures. Here, the district court did not rely on Jones' medical condition as a basis to depart downward; rather, this factor was considered by the district court as a basis not to depart upward. See also Jackson, 408 F.3d at 305 n. 3 (addressing the district court's decision to grant a downward departure); United States v. Briceno, 136 Fed.Appx. 856, 857-59 (6th Cir.2005) (unpublished) (same). 21 KAREN NELSON MOORE, Circuit Judge, dissenting. 22 I agree with the majority's conclusion that we must review Jones's overall sentence for reasonableness. However, because the district court's failure to explain why it rejected Jones's argument seeking a lower sentence under a relevant 18 U.S.C. § 3553(a) factor flies in the face of this court's precedents and makes the sentence impossible properly to review, I cannot find Jones's sentence reasonable. Accordingly, I respectfully dissent. 23 After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews a sentence for both procedural and substantive reasonableness. United States v. McBride, 434 F.3d 470, 476 n. 3 (6th Cir.2006); United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). Although procedural reasonableness does not require the district court to cite each § 3553(a) factor in arriving at a sentence, McBride, 434 F.3d at 476 n. 3, it does require, as this court has held and the majority recognizes, that the district court "consider the advisory Guidelines range and all relevant factors identified in 18 U.S.C. § 3553(a)." Majority Opinion ("Maj.Op.") at 869 (emphasis added); accord United States v. Foreman, 436 F.3d 638, 644 (6th Cir.2006); United States v. Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006); United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005); Webb, 403 F.3d at 383. The presumption of reasonableness afforded to sentences within the advisory Guidelines range, United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), does not relieve the district court of its duty "to explain to the parties and the reviewing court its reasons for imposing a particular sentence." Richardson, 437 F.3d at 554. The presumption is rebutted where the district court fails to articulate its rationale in a way that permits meaningful appellate review. This court has held that meaningful reasonableness review requires that "[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." Id. at 554; accord Foreman, 436 F.3d at 644 (explaining that a sentence within the Guidelines range carries no presumption of reasonableness where the record does not reflect that the court considered "all of the relevant section 3553(a) factors"); Jackson, 408 F.3d at 305 (stating that procedural reasonableness requires "reference to the applicable Guidelines provisions"). 24 In this case, Jones clearly argued that he was entitled to a reduction in his sentence because he had already served a one-year sentence for the same conduct at issue in the instant case. The presentence investigation report ("PSR") also discusses the applicability of the policy statement found at U.S. SENTENCING GUIDELINES MANUAL ("USSG") § 5K2.23, which advises courts that they can, when certain circumstances are met, depart downwards for sentences already served based on the same conduct.1 The district court must consider relevant policy statements in its sentencing determinations under 18 U.S.C. § 3553(a)(5). United States v. Williams, 432 F.3d 621, 623-24 (6th Cir.2005); United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005). Under the mandates of procedural reasonableness, the district court was obligated to demonstrate that it considered, as directed by 18 U.S.C. § 3553(a)(5) and USSG § 5K2.23, the fact that Jones had already served a one-year sentence for the same conduct at issue here.2 That the district court has failed to do. Despite the facts that Jones raised the issue of his time already served for the same conduct and that the PSR discussed the potential applicability of USSG § 5K2.23, the district court made no mention of them and provided no indication that it had considered either the policy statement or the time already served. 25 The majority incorrectly asserts that the district court complied with the standards for procedural reasonableness set forth in Richardson, 437 F.3d at 554, because the district court "explain[ed] to the parties and the reviewing court its reasons for imposing a particular sentence." Maj. Op. at 871. Richardson certainly requires this, but it also requires more, namely that "[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." 437 F.3d at 554. Although the majority may believe that "a sentence within the applicable Guidelines range should not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence," Maj. Op. at 871, this panel is not at liberty to contradict the law of this circuit as previously decided by a unanimous panel of this court in Richardson. See 6TH CIR. R. 206(c) (directing that "[r]eported panel opinions are binding on subsequent panels"). 26 Perhaps recognizing that it cannot merely ignore Richardson's conclusion that a sentence is unreasonable if the district court fails to consider a defendant's argument seeking a lower sentence or explain its basis for rejecting such an argument, the majority somehow "find[s]" that the district court "was aware of Jones' previous state sentence but nevertheless sentenced him to twelve months of imprisonment in light of the gravity of the offense and his extensive criminal history," based on the fact that "the applicability of U.S.S.G. § 5K2.23 was articulated in the presentence report and defense counsel twice informed the district court.. . ." Maj. Op. at 871. However, the majority's speculation regarding the district judge's consideration of this factor also directly contradicts Richardson, which requires that for a sentence to be procedurally reasonable, "the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." 437 F.3d at 554 (emphases added). A sentencing court has not met this obligation where this court must guess as to what the court below did or did not consider. Rather, there must be "sufficient evidence in the record to affirmatively demonstrate the court's consideration" of the relevant § 3553(a) factors. McBride, 434 F.3d at 476 n. 3; accord Foreman, 436 F.3d at 644 (explaining that the sentencing court's consideration of "all of the relevant section 3553(a) factors" must be "clear from the record"). Where the district judge fails "to explicitly consider" these factors, there must be "other evidence in the record demonstrating that they were thoroughly considered by the district court." McBride, 434 F.3d at 476 n. 3. Neither the Government nor the majority can point to any such evidence. Indeed, the majority's conjectural "find[ing]" makes plain that the record neither "affirmatively demonstrate[s]," McBride, 434 F.3d at 476 n. 3, nor makes "clear," Foreman, 436 F.3d at 644, that the district court even considered Jones's state sentence, let alone explained its reasons for rejecting his argument on this ground. The majority's conclusion to the contrary is pure speculation in contravention of Richardson, Foreman, and McBride. 27 Due to the district court's failure to explain its consideration and rejection of Jones's argument in support of a reduced sentence, Jones's sentence cannot be meaningfully reviewed. I would therefore vacate Jones's sentence and remand for resentencing. I respectfully dissent. Notes: 1 It is not clear that Jones was eligible for a reduction in his sentence under USSG § 5K2.23. The PSR indicates that Jones's state conviction and sentence would have been considered sufficiently similar conduct under USSG § 5K2.23. The PSR specifically noted that Jones did not receive any criminal history points for his receiving stolen property conviction because it "is considered conduct which is part of the instant offense." Joint Appendix at 46 (PSR at 13). The government did not object to this statement in the PSR. Regardless of whether the policy statement applied, both Jones and the PSR reasonably raised the issue of his time already served as applicable to his sentence, and thus the district court was obligated to consider it and explain the court's assessment as to why it did or did not applySee Richardson, 437 F.3d at 554. Richardson makes clear that the duty of the district court to explain its determination of a defendant's argument for a reduced sentence applies equally where the district court ultimately rejects the defendant's argument. Id. Moreover, even if USSG § 5K2.23 was not applicable, Jones's already-served prison time for the same conduct should have been considered, as the majority acknowledges, as part of the assessment of other § 3553(a) factors, including the need for the sentence to impose a "just punishment," 18 U.S.C. § 3553(a)(2)(A), and the need for the sentence to provide "adequate deterrence to criminal conduct," id. § 3553(a)(2)(B). See Maj. Op. at 869 n. 5. I now turn to a brief note on terminology. Our court has previously explained that departures based on Chapter 5 of the Guidelines should be referred to as "Guideline departures," and that "sentences lower than the Guidelines recommendation based on section 3553(a) factors" can be referred to as "Non-Guideline departures." McBride, 434 F.3d at 477 n. 5. Several of our sister circuits reserve the term "departure" for traditional Chapter 5 departures, and refer to "Non-Guideline departures" as "variances." See, e.g., United States v. Hampton, 441 F.3d 284, 287, (4th Cir.2006); United States v. Gatewood, 438 F.3d 894, 896-97 (8th Cir.2006). The term "variance" is useful in clearly distinguishing traditional departures from sentences that fall below the Guidelines based on the district court's discretion in applying the § 3553(a) factors. 2 The majority notes that Jones specifically sought probation and that probation was not available to him because of the type of crime of which he was convicted and the fact that he had been sentenced to imprisonment for another offense. Maj. Op. at 867-868 n. 3. Whether Jones was eligible for probation does not affect this court's review of the sentence because Jones remained eligible to receive a lesser sentence short of probation under the advisory Guidelines, and thus consideration of the USSG § 5K2.23 policy statement was relevant

89 F.3d 848 77 A.F.T.R.2d 96-2204, 96-1 USTC P 50,307 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Duane H. WALL, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 94-56541. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 10, 1996.Decided May 1, 1996. Before: SCHROEDER and LEAVY, Circuit Judges, and TRIMBLE,* District Judge. MEMORANDUM** Duane H. Wall appeals from the district court's entry of summary judgment in favor of the government, arguing that the district court erred by concluding that it lacked subject matter jurisdiction over his tax refund claim. We review de novo, see Skagit County Pub. Hosp. v. Shalala, --- F.3d ----, ----, No. 95-35385, slip op. 4119, 4133 (9th Cir. Apr. 5, 1996), and we reverse. Prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA"), Pub.L. No. 97-248, 96 Stat. 324 (1982), audits of tax items attributable to partnerships were conducted at the individual partner level. For partnership tax years beginning after September 3, 1982 (i.e., the date of the enactment of TEFRA), however, audits of tax items attributable to partnerships are to be conducted at the partnership level, see 26 U.S.C. §§ 6221-6233, while individual proceedings are governed by 26 U.S.C. § 6212. Thus, the usual authorization for individuals to sue for refund under 26 U.S.C. § 7422(a) is inapplicable to refund claims of partnership items (as defined by 26 U.S.C. § 6231(a)(3)), see 26 U.S.C. § 7422(h), unless the individual can bring his claim within one of two exceptions. Under the peculiar facts of this case, we conclude that the instant refund action falls within the exception set out at 26 U.S.C. § 6228(b), because Wall substantially complied with the procedures governing requests for administrative adjustment of partnership items under 26 U.S.C. § 6227(b). While the situation presented is an unusual one, we can discern no substantive purpose that would be served by requiring Wall to have filed, in addition to his second form 1040X, a partnership form 8082 that would have reflected no information beyond what was already set out in the second 1040X and the Partnership's Schedule K-1, particularly when the government itself treated the instant dispute at all times as an individual matter, and did not suggest that it could or should be viewed as a TEFRA partnership matter until the case was ready for decision by the district court.1 REVERSED and REMANDED. * The Honorable James T. Trimble, Jr., United States District Judge for the Western District of Louisiana, sitting by designation ** This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir. 36-3 1 By virtue of our holding on this point, we necessarily reject the government's contention that Wall's claim is time-barred

81 Cal.App.2d 131 (1947) A. M. FALKENSTEIN et al., Appellants, v. HULDA M. POPPER, Respondent. Civ. No. 13412. California Court of Appeals. First Dist., Div. One. July 31, 1947. Terence J. Boyle for Appellants. Franklyn M. O'Brien for Respondent. BRAY, J. The trial court granted defendant's motion for judgment on the pleadings in an action for specific performance of an option to purchase, on the ground that the complaint did not state a cause of action. On April 25, 1942, the parties entered into a five-year lease of certain business property in San Francisco. The only part of the lease pertinent to this appeal is paragraph 23, subdivisions (a) and (b): "Lessor hereby gives to Lessee an opportunity to purchase the real property and improvements known as No. 4116 Geary Boulevard Street, in the City and County of San Francisco, State of California, at and for the agreed price of Eight thousand, five hundred (8,500.00) Dollars, lawful money of the United States, upon the following terms and conditions, to-wit:" "(a) For the period of two (2) years, Lessee shall have the exclusive option to purchase said property for said price; said option shall expire May 1, 1944." "(b) For the remaining period of said term, to-wit, three (3) years, Lessee shall be given the first opportunity to purchase said property for said price, and in the event that Lessee shall not avail himself of said opportunity and shall not desire to purchase said property, Lessor shall then be free to sell said property to any other person for any price agreeable to her." (Emphasis added.) Subdivision (a) is not involved on this appeal (except as it relates to the construction to be given subdivision (b)), as the plaintiffs did not demand a conveyance of the property until February 8, 1946, almost two years after the expiration date given in subdivision (a). Plaintiffs contend that subdivision (b) is ambiguous and therefore the court should not have granted judgment on the pleadings but should have permitted the introduction of evidence to explain the alleged ambiguity. The court held that subdivision (b) is not ambiguous, and shows on its face that it grants an option to plaintiffs to purchase only in the event that defendant desires to sell. The complaint *133 contains no allegation that defendant desires to sell. The theory of the complaint is that plaintiffs had an exclusive option to purchase under subdivision (b). [1] A study of all of the provisions of paragraph 23 shows that the court was clearly right. Plaintiffs, to sustain their contention, completely ignore the relationship of subdivision (a) to subdivision (b)--"we claim we are in the same position now as we were during the first two years." In construing the agreement here, the court must give some meaning to subdivision (a) in its relation to subdivision (b), for if the parties intended that the plaintiffs were to have an exclusive option to purchase for the entire five-year term of the lease there would have been no reason for subdivision (a), which expressly gives an "exclusive option to purchase" for only two years. It is obvious that after giving the limited exclusive option in subdivision (a), the lessee in subdivision (b) was given the first opportunity to purchase in the event that during the balance of the leased term, the lessor decided to sell. Plaintiffs rely upon certain cases construing words similar to "opportunity" and "first opportunity" used here. In none of the cases was there a situation where there was involved, as here, two clauses in an option to purchase, and hence the cases are not in point. Moreover, the cited cases follow the minority rule on this subject. These cases are: Tantum v. Keller (1924), 95 N.J.Eq. 466 [123 A. 299], where the court construed "first privilege ... to purchase ... at any time" as an exclusive option. In R. I. Realty Co. v. Terrell (1930), 254 N.Y. 121 [172 N.E. 262], the Tantum case was noted as following the minority rule. Schroeder v. Gemeinder (1875), 10 Nev. 355, in considering a similar phrasing to the Tantum case, followed its rule. In De Rutte v. Muldrow (1860), 16 Cal. 505, "the privilege of purchasing ... during the continuance of this lease ... in preference to any other persons" was held to grant an unconditional right to buy. In Wells v. Fisher (1923), 205 App.Div. 212 [199 N.Y.S. 594], the provision read: "... the first privilege of purchasing ... on the 1st day of October of any year during the term. ..." This case was expressly disapproved in R. I. Realty Co. v. Terrell, supra, as was the case of Stetler v. North Branch Transit Co. (1917), 258 Pa. 299 [101 A. 980], where the provision was "if at the expiration *134 of this lease [the lessees] ... shall desire to re- lease ... they shall have the first privilege of re-leasing." Plaintiff there contended that the words "first privilege" meant that at the end of the term, the lessee had only a first right to re-lease, provided the lessor was willing at that time to lease to anyone. In holding that it was an absolute right in the lessee, the court stated as follows: "The court below, however, held that it was apparent from the provisions of the lease that the parties contemplated the use of the land for a park for the entertainment of the public, and that considerable expenditure for improvements would be necessary. Under these circumstances, when the lease was executed, the parties evidently felt that a renewal or extension would probably be desired, otherwise the clause in question would not have been inserted. It was clearly intended for the benefit of the lessee, and it should be so construed as to preserve that benefit, if it be possible to do so. But as the court below well says: 'If the plaintiff's theory as to the meaning of the paragraph is to be accepted, it would, so far as the lessee is concerned, become wholly meaningless, and might as well have been omitted.' " (p. 981 [101 A.]) Plaintiffs contend that the reasoning in the last sentence above quoted should be applied in the instant case. However, applying that language here, if the plaintiff's theory that subdivision (b) granted them the same exclusive option as did subdivision (a) is to be accepted, subdivision (a) would "become wholly meaningless, and might as well have been omitted." In Butt v. Maier & Zobelein Brewery (1907), 6 Cal.App. 581 [92 P. 652], the provision was far removed from that under consideration here. After providing in clause 1 that the lessor at the end of the period of a lease could terminate it upon payment to the lessee of the cost of improvements made by the latter, the agreement, in clause 2, continued as follows: "At the expiration of this lease the said second party shall have the prior right to lease the same, said premises, for a further term of five years, for the rental sum of" etc., fixing terms of payment. It further provided that should the lessee avail itself of the renewal, the lessor, at the end of the second five-year term, could take the property back without paying for improvements. Obviously, the word "prior" as used therein does not qualify the right of renewal, but it is used with entirely different language than *135 is the word "first" in the provision here in question. "Prior" as used, could only mean that the lessee could defeat the termination of the lease after the first five-year period provided for in clause 1, by exercising the right of renewal provided for in the second clause, and should he so choose, his rights under the latter clause would be prior to, and nullify, the rights of the lessor under the former clause. In none of the cases cited by plaintiffs did the option clause vary the conditions of purchase at stated periods, as in our case where the conditions for the first two years are in definite contrast with the conditions for the balance of the term. Moreover, the weight of authority holds that the use of such words as "first privilege," "first right," etc., does not give the lessee an absolute right to purchase or renew a lease. In R. I. Realty Co. v. Terrell, supra, (172 N.E. 262), the clause in a lease of real property read: "Said party of the second part is given first privilege to buy said property" for a stated sum. The lessee elected to purchase and the lessor refused to convey. The contentions of the parties were identical with those of the instant case, the lessee claiming an absolute right to purchase and the lessor claiming that this right was dependent upon his willingness to sell, in which case the former would have prior right over other prospective buyers. The court held that the clause did not give the lessee a valid option requiring the lessor to convey at any time during the term of the lease upon demand and payment by the lessee, but rather that the right to purchase depended upon the lessor's desire to sell at the price named, in which event the lessee would have the "first privilege" to buy. The interpretation of the words is as follows: "In construing the clause in question, the court is required to give some meaning to all the words used. To construe the clause in accordance with the contention of the respondent (lessee) would require that the word 'first' be eliminated. With that word eliminated, the privilege to buy would be absolute and enforceable. (Sandberg v. Reilly, 223 App.Div. 57, 227 N.Y.S. 418, affirmed 250 N.Y. 547, 166 N.E. 319.) Therefore, it must have been used to prevent the agreement from constituting an absolute option to sell. The phrase 'first privilege to buy' and the words 'privilege to buy' have an entirely different meaning; one is conditional and the *136 other absolute." The court further pointed out and disapproved of Wells v. Fisher, supra, as being the only New York case holding to the contrary. The Stetler and Tantum cases, supra, were also noted as contrary decisions in other jurisdictions. The court cited and followed the rule of numerous New York decisions to the same effect as that rendered therein. In Buddenberg v. Welch (1933), 97 Ind.App. 87 [185 N.E. 865], the lease provision read that the lessor granted to the lessee "the first and prior right and option to re-lease said premises for an additional term of five (5) years from the expiration of this lease" on the same terms. After quoting from Blythe v. Gibbons, 141 Ind. 332 [35 N.E. 557], to the effect that in the interpretation of agreements first resort is to the natural significance of the words employed, and if such words embody a definite meaning, without contradiction or absurdity, there is no room for construction, that meaning controls, and neither the courts nor legislatures can detract therefrom, the opinion continues: "Applying this principle of construction, we hold that the words 'first and prior' mean that if the lessor decides to re-lease the premises for a further term, the lessee shall have a first and prior option to re-lease the same. To give this language any other interpretation would do violence to the common rules of construction of written instruments. We cannot say that the parties to this lease put the words 'first and prior' into this lease, intending that they mean nothing. If the lessor had intended to give the lessee the right at his option to re-lease said premises, he would have positively said so; and he would not have used the words 'first and prior,' for there would have been no necessity for such language. Ordinary usage of the English language would not permit any other interpretation. We are sustained in this view by the greater weight of authorities." A clause providing that the lessee should have the "first right to re- lease" for a further term of three years on the same conditions and terms was held not to give an absolute right to re-lease, but merely a preferential right in the event lessors desired to lease. (Coverdale Co. v. Littlefield, 240 Mass. 129 [133 N.E. 565].) To the same effect is Landowners Co. v. Pendry (1940), 151 Kan. 674 [100 P.2d 632, 127 A.L.R. 890], where the lease provided: "The parties of the second part shall have the right to the first option in case *137 they may desire to continue to occupy said premises under a new lease after the expiration of the present term." In Hill v. Prior, 79 N.H. 188 [106 A. 641], the lessor agreed to give the lessee at the expiration of the lease "the first right to a further lease." This was held to give the lessee only the right to a further lease if the lessor should desire to lease the property. To the same effect, as to "first privilege of renewal," Holloway v. Schmidt, 33 Misc. 747 [67 N.Y.S. 169]; Walsh v. Ft. Schuyler Brewing Co., 83 Misc. 488 [146 N.Y.S. 160]. The provisions of subdivision (b) are clear and unambiguous. To hold otherwise, or that they have the exact meaning of the provisions of subdivision (a), would make subdivision (a) meaningless. Subdivision (a) gives an absolute option to purchase for the first two years of the term, while subdivision (b) gives a qualified right or "first opportunity" to purchase for the balance of the term, the latter right being subject to the lessor's determination of whether or not she desires to sell. As the paragraph in question is not ambiguous, the rules of construction in the cited sections of the Civil Code, 1636, 1641, 1647, 1654, and 1649, and section 1860 of the Code of Civil Procedure, are not applicable. "The meaning of plain and ordinary words in common use is a question of law for the court." (13 C.J. 788.) "For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied." (Civ. Code, 1637.) "The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." (Civ. Code, 1638.) [2] We do not find it necessary to decide whether oral evidence is admissible to create an ambiguity in a contract which, as here, appears to be unambiguous. (See majority, concurring and dissenting opinions in Universal Sales Corp. v. California Press Mfg. Co., 20 Cal.2d 751 [128 P.2d 665]; Estate of Rule, 25 Cal.2d 1 [152 P.2d 1003, 155 A.L.R. 1319].) Whatever the proper rule may be, it would seem to be quite clear that, where the contract is clear and unambiguous, before the party who claims the parties intended something different from what the words would seem to mean, can introduce parol evidence, he must put the fact of such intent into issue. In the present case the plaintiff simply pleaded the terms of the contract, and did not plead any intention different from the *138 express terms of the lease, nor that parol evidence was available to show an intent contrary to its clear meaning. The reporter's transcript contains the argument on the motion for judgment on the pleadings. It contains no offer of proof nor any reference to any available parol evidence. No contention is made in the briefs on appeal that plaintiff has available any parol evidence that would show that the parties intended something different from what the clear words of the contract appear to mean. This being so, it is quite clear that, under the circumstances of this case, the question of interpretation was one of law, and that the trial court properly interpreted the contract on the motion for judgment on the pleadings. The judgment appealed from is affirmed. Peters, P. J., and Ogden, J. pro tem., concurred.

30 Mass. App. Ct. 536 (1991) 571 N.E.2d 34 COMMONWEALTH vs. JOHN THOMAS McLEOD. No. 90-P-1026. Appeals Court of Massachusetts, Hampshire. March 12, 1991. May 7, 1991. Present: BROWN, KASS, & LAURENCE, JJ. Brownlow M. Speer, Committee for Public Counsel Services, for the defendant. Ariane D. Vuono, Assistant District Attorney, for the Commonwealth. BROWN, J. In this appeal from convictions of aggravated rape and kidnapping we face once more a situation where, but for the prosecutor's failure to stay within the bounds of proper closing argument, the defendant's appeal could have been dealt with in a summary manner.[1] Instead, we must witness another prosecutor "snatching defeat from the jaws *537 of victory." Commonwealth v. Kozec, 21 Mass. App. Ct. 355, 366 (1985) (Brown, J., concurring), S.C., 399 Mass. 514 (1987). See also Commonwealth v. Harris, 11 Mass. App. Ct. 165, 176 (1981). "We think it unnecessary to explain, once again, the permissible limits of closing argument." Commonwealth v. Sevieri, 21 Mass. App. Ct. 745, 754 (1986). We have now reached the point where we cannot allow appellate counsel merely to state that "the prosecutor could have chosen his words more carefully." Commonwealth v. Phoenix, 409 Mass. 408, 427 (1991). As this court and the Supreme Judicial Court have said too many times, "[I]t is long past time for prosecutors to prepare their closing arguments carefully in order to avoid the possibility of reversals of convictions because of prosecutorial error." Commonwealth v. O'Brien, 377 Mass. 772, 778 (1979), and cases cited. Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 12 (1980). The crucial question at trial in this case was whether the victim had consented to sexual intercourse, a matter which, as might well be expected, was hotly contested. The victim, in the course of her testimony before the jury, was "crying, sobbing, simply hysterical." In his final argument the prosecutor unfairly exploited the victim's expression of emotion, first by telling the jury that it was a "tragedy" that the victim "had to take the witness stand, sobbing and hysterical, and [had] to explain her whole humiliation in public," and then, after a bench conference prompted by an objection, by reiterating his belief that this (the victim's having to testify) was a "tragedy" and commenting that they, the jury, "[had] an opportunity to rectify that [tragedy]."[2] *538 In determining whether reversal is required, we follow the four-part test set out in Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). As noted in Commonwealth v. Cobb, 26 Mass. App. Ct. 283, 288 n. 7 (1988), seasonable objection, "[t]he first factor mentioned in the Kozec case, ... appears to be of large, if not necessarily conclusive, importance upon appellate review." In the present case, unlike Commonwealth v. Harris, 11 Mass. App. Ct. at 176-177, defense counsel made a timely objection to the prosecutor's initial excursion out of bounds. The colloquy at the bench conference[3] called pursuant to that objection should have alerted the prosecutor at this juncture that he was unwisely "sail[ing] unnecessarily close to the wind." Commonwealth v. Redmond, 370 Mass. 591, 597 (1976). The prosecutor, however, failed to heed the warning signs and alter his course, but instead immediately proceeded again beyond permissible limits. The prosecutor's argument[4] suffered from the use of inflammatory language similar to that held as requiring reversal in Commonwealth v. Sevieri, 21 Mass. App. Ct. at 753-755, where the jury "were told by the prosecutor to approach their deliberations, not as impartial evaluators of the defendant's remarks and actions, but from the [alleged sexual assault] victim's point of view."[5] Cf. Commonwealth v. Harris, 11 Mass. App. Ct. at 176-177. Prosecutors should bear in mind that when the question is whether the defendant committed the crime, luxuriating in *539 the ghastliness of the crime and the suffering of the victim does not help to answer the question.[6] Such irrational and irrelevant comments "only serve to make it less likely that the jury will return a verdict based on fair, calm consideration of the evidence." Commonwealth v. Shelley, 374 Mass. 466, 470 (1978), and authorities cited. In addition, the combined effect of the prosecutor's two improper statements here was unmistakably to convey to the jury his personal opinion as to both the truth of the victim's testimony and the guilt of the defendant, in violation of PF 13(b) of Supreme Judicial Court Rule 3:08, Standards Relating to the Prosecution Function, as appearing in 382 Mass. 802 (1981).[7] We again are reminded of the situation in Commonwealth v. Redmond, 370 Mass. at 597 (one of the Supreme Judicial Court's earliest advisories on improper argument), in which the court stated: "The defendant's version was not such as to excite admiration or sympathy for him. In these circumstances, particular care was needed to assure that the central issues were tried factually and dispassionately, without inflammatory diversions." See also Commonwealth v. Smith, 387 Mass. 900, 905 (1983). In the present case, the prosecutor not only "deliberately" went beyond permissible limits, as in Redmond, but, in addition, his subsequent remarks exacerbated the prejudice that may have arisen from his prior improper comment. Our next task is to determine whether the judge's instructions[8] to the jury not to be swayed by emotion should "preserve *540 serve [the] conviction in spite of the error." Commonwealth v. Kozec, 399 Mass. at 519. We cannot say with confidence that the judge's instructions mitigated the effect of the prosecutor's appeal to sympathy. See Commonwealth v. Ward, 28 Mass. App. Ct. 292, 296 (1990). Contrast Commonwealth v. Porter, 24 Mass. App. Ct. 694, 698 (1987). They were "standard, not curative." Commonwealth v. Sevieri, 21 Mass. App. Ct. at 754. We agree with the defendant that the judge's analysis of the impropriety, as he expressed it at the second bench conference, was sound and cogent, and his chastisement of the prosecutor was forceful. But all that was at the side bar, out of the jury's hearing. The instructions the jury actually heard from the judge were lacking in "capacity actually to reach to the trouble generated in the jury's mind." Commonwealth v. Hawley, 380 Mass. 70, 86 (1980). Following the side bar conference the judge told the jury that "any verdict of jurors will not be based on sympathy, pity, bias, or prejudice, but it will be on the evidence." In the final instruction, in pertinent part, the judge rather perfunctorily told the jury that "[t]he openings and the closings of counsel are not evidence" and that they were to "decide the case solely upon the facts you find from the evidence" and not "on the basis of bias, prejudice, sympathy, or pity, but upon the evidence." See Commonwealth v. Hawley, 380 Mass. at 85; Commonwealth v. Sevieri, 21 Mass. App. Ct. at 754. Compare Commonwealth v. Porter, 24 Mass. App. Ct. at 697-698; Commonwealth v. Cobb, 26 Mass. App. Ct. at 287. These "instructions were entirely bland, without even an effort to lay special stress on the boilerplate charge that closing statements were not evidence." Commonwealth v. Gallego, 27 Mass. App. Ct. 714, 720 (1989); nor did the judge give "explicit warnings" to the jury. Ibid. Nothing in the judge's instruction suggested to the jury (1) that it was not a "tragedy" that the victim had had to testify before them, (2) that *541 they did not have the power to "rectify" the purported "tragedy," (3) that the offending argument to that effect was to be struck from their consideration, or (4) that the prosecutor had engaged in misconduct in making that argument to them. See and compare Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 10 (1980). In these circumstances, we cannot say that the improper argument did not make a difference in the jury's conclusions. Unfortunately, again we find it necessary to call attention to that often repeated but seldom followed sage advice of the Supreme Judicial Court: "Advance preparation" is not only "indispensable to good argument" but also the key to proper argument. See Commonwealth v. Haas, 373 Mass. 545, 557 & n. 11 (1977). See also, most recently, Commonwealth v. Phoenix, 409 Mass. at 428, in which the Supreme Judicial Court stated: "We remind prosecutors again that `[a]dvance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper.' [Commonwealth v. Smith, 387 Mass. 900, 903 (1983)], quoting Commonwealth v. Haas, 373 Mass. 545, 557 (1977)."[9] Thoughtful and careful preparation would have saved the Commonwealth and this court much time and expense. Because of the prosecutor's failure so to prepare, scarce judicial resources have been needlessly wasted[10] and a victim witness will endure the emotional hurt of testifying again. Finally, we think that in order to cure the particular type of ill found in this case a formal disciplinary procedure should be established.[11] *542 We do not want to leave the impression that all trial prosecutors have committed similar sins. Many have never engaged in such "ill-advised rhetoric." Commonwealth v. Harris, 11 Mass. App. Ct. at 176. We merely point out that it is the disservice of the few, visited upon the many who have consistently maintained exemplary ethical conduct and a high level of professionalism, that tends to bring all prosecutors into disrepute. Justice Kaplan said it best: "Members of the bar, however, would be most ill-advised to consider that each departure from the norm which is not so grievous as to precipitate a reversal of a conviction sets a new and less elevated standard for lawyers' behavior. The concern of the court in this regard has been expressed repeatedly." Commonwealth v. Johnson, 372 Mass. 185, 197-198 (1977). The defendant's challenge to other aspects of the judge's charge is of no avail. Judgments reversed. Verdicts set aside. NOTES [1] For an example of a similar occurrence, see Commonwealth v. Chandler, 17 Mass. App. Ct. 1022, 1024-1025 (1984) (Brown, J., concurring). [2] The first statement was in full: "I would suggest there are two tragedies here. One tragedy happened on July 16 when she was kidnapped and raped and the other tragedy happened on Wednesday and Thursday of this week, or, excuse me, Tuesday and Wednesday of this week. And that tragedy was when [the victim] had to take the witness stand, sobbing and hysterical, and [had] to explain her whole humiliation in public." After the bench conference, the prosecutor continued by saying: "Well, let me suggest to you that it is a tragedy what this woman went through, and she knew she was going to go through it before she took the stand. And albeit in some way, maybe a small way, maybe a larger way, you have an opportunity to rectify that" (emphasis supplied). [3] In fairness, we note that the judge perhaps may not have heard the remark because at the outset of the bench conference he asked the prosecutor: "What did you say?" [4] The second prong of the Kozec test asks, was the error limited to "collateral issues" or "did it go to the heart of the case ... ?" Commonwealth v. Kozec, 399 Mass. at 518. Commonwealth v. Cobb, 26 Mass. App. Ct. at 287. [5] The argument in this case may have been even worse than the one in Sevieri because here the prosecutor not only was seeking sympathy for the alleged victim, but also inferentially attacked the defendant for asserting his right to trial and, arguably, seemed to be calling on the jury to punish him for exercising that right. [6] To her credit, appellate counsel concedes that the second "comment was the equivalent of an exhortation that the jury had a duty to the victim to return verdicts of guilty." Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989). [7] We find the remarks improper without regard to the defense counsel's assertion that because of the interracial aspect of the rape there was a risk that extraneous issues would influence the jury, which these remarks could have exacerbated. Cf. Commonwealth v. Clary, 388 Mass. 583, 592 (1983) (remarks were calculated "to sweep the jurors beyond a fair and calm consideration of the evidence"). [8] The third prong of the Kozec test is "[w]hat did the judge tell the jury, generally or specifically, that may have mitigated the prosecutor's mistake ...?" Commonwealth v. Cobb, 26 Mass. App. Ct. at 287 (quoting from Commonwealth v. Kozec, 399 Mass. at 518); the fourth, "generally, did the error in the circumstances possibly make a difference in the jury's conclusions?" Ibid. [9] Defense counsel, likewise, are not immune from criticism; they too must adhere to proper professional and ethical standards. See, e.g., Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 653 n. 10 (1981). See also Commonwealth v. Burno, 18 Mass. App. Ct. 796, 797 n. 1 (1984). [10] The plea for prosecutors (and all parties) to steer clear of unnecessary error and to strive for a fair trial has been made on numerous occasions. See, e.g., Commonwealth v. Paiva, 16 Mass. App. Ct. 561, 563 (1983); Commonwealth v. Young, 22 Mass. App. Ct. 452, 457 & n. 1 (1986) (Brown, J., concurring); Commonwealth v. Bodden, 24 Mass. App. Ct. 135, 141 (1987) (Brown, J., concurring). [11] See, for example, the practice in effect in another jurisdiction: "This opinion should be filed separately in the office of the Clerk of this Court, and indexed against the name of the [prosecutor], so that, in the event that his professional conduct in any other connection shall become a subject of inquiry, this case and this record can be referred to for such instruction as it may yield." American Auto. Assn., Inc. v. Rothman, 104 F. Supp. 655, 656 (E.D.N.Y. 1952).

353 F.2d 78 T. Y. ROGERS et al., Appellants,v.The CITY OF TUSCALOOSA and the State of Alabama, Appellees. No. 21700. United States Court of Appeals Fifth Circuit. November 18, 1965. Oscar W. Adams, Jr., Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Charles H. Jones, Jr., New York City, for appellants, Anthony G. Amsterdam, Washington, D. C., of counsel. J. Wagner Fennell, City Atty., Tuscaloosa, Ala., for appellees. Before TUTTLE, Chief Judge, and RIVES and GEWIN, Circuit Judges. TUTTLE, Chief Judge. 1 This is an appeal by Negro defendants in State court prosecutions from an order of the United States District Court ordering a remand to the State court for trial after a petition for removal, under Section 1443, 28 U.S.C.A., had effected a removal to the Federal court. The trial court's order, here appealed from, was entered before this Court's decisions in Rachel v. State of Georgia, 5 Cir., (1965), 342 F.2d 336, and Peacock v. City of Greenwood, 5 Cir., (1965), 347 F.2d 679, and Cox v. State of Louisiana, 5 Cir., (1965), 348 F.2d 750. 2 The grounds for removal asserted by the appellants here, which stand as true on the record before us, after alleging specific arrests of the many persons involved following asserted efforts to carry on demonstrations and protests activities, include the following: 3 "Petitioners' arrests, as described in paragraphs 1 to 6, supra, have been and are being carried on with the sole purpose and effect of intimidating petitioners and of punishing them for, and deterring them from exercising their constitutionally protected rights of free speech, and assembly to protest the conditions of racial discrimination which the State of Alabama now maintains by statute, ordinance, regulation, custom, usage and practice, and to urge Negroes, the victims of this discrimination, to participate in the active social and economic life of the community. But, the championing of an unpopular cause has brought a total and complete commitment by respondents to a systematic and sustained retaliation. This is evidenced not only by the conduct of police officers, but by the frequent, arbitrary, and unconstitutional use of criminal processes to stifle the exercise of rights of petitioners." 4 Under the principles which were announced by this Court in the cases of Rachel v. State of Georgia, Peacock v. City of Greenwood and Cox v. State of Louisiana, all supra, these allegations, if established over the State's motion to remand, clearly satisfy the requirements of Section 1443(1) for removal of the cases to the Federal court for trial. 5 Appellants also make a strong plea here for a holding that the prosecution in the State courts was a prosecution * * * "For an(y) act under color of authority derived from a(ny) law providing for equal rights * * *" and that this provided a separate ground for removal under the second numbered paragraph of Section 1443. We need not reach this question here, because it appears on this record that if the trial court finds that these prosecutions are in reality prosecutions of the appellants for acts done in exercise of their federally protected constitutional rights, then this same finding will ipso facto establish appellants' right to removal to the Federal court under Section (1) as this Court has construed it. 6 The appellants also contend that their right to removal carries with it the right to have the Federal court ascertain and fix a proper amount of bail and that in fixing such bail the Court should take into consideration the deterrent effect of alleged excessive bond on their right to exercise their constitutional First and Fourteenth Amendments protected privileges. Upon remand this matter will, of course, be open for the trial court to consider. 7 In light of the decisions of this Court it is not correct that the grounds for removal under Section 1443(1) are limited to those which "arise out of the denial of such right by the constitution or law of the state wherein the action is pending." As we have done in several cases recently in which the trial court acted without the guidance of this Court's decision in Rachel, Peacock and Cox, the judgment of the trial court ordering the remand is reversed and the case is remanded for further consideration by the trial court in light of the foregoing decisions and opinions of this Court.

STATE OF MICHIGAN COURT OF APPEALS TOWNSHIP OF BIG CREEK, UNPUBLISHED April 24, 2018 Plaintiff-Appellee, v No. 337104 Oscoda Circuit Court SUE ELLEN BOYER, LC No. 16-005738-CE Defendant-Appellant. Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ. PER CURIAM. Defendant appeals as of right the trial court’s order granting summary disposition in favor of plaintiff, Township of Big Creek (the township), under MCR 2.116(C)(10) in this case involving defendant’s violation of township ordinances and state statutes. We affirm. On August 4, 2016, the township filed a complaint against defendant regarding her real property, alleging that she was in violation of an ordinance prohibiting blight and one prohibiting dangerous structures, as well as statutory provisions against maintaining dangerous buildings. The township asserted that there was substantial debris in defendant’s yard, along with junk vehicles, and that defendant’s home was in a dilapidated and dangerous condition. The township further alleged that defendant was notified of the violations and given a reasonable time to bring her property into compliance with the ordinances and state statutes, but defendant had “failed, neglected, and/or refused to do so.” The township claimed that defendant’s property constituted a nuisance in fact and per se, and it requested that the court order defendant to remove the dangerous house or bring it into compliance with the law and to order defendant to clean up the blighted conditions. The township additionally requested, should defendant not bring her property into compliance with the ordinances and statutes, that the court authorize the township to demolish and remove the house and clear the blighted property, with defendant being assessed all of the associated costs. Defendant did not file an answer to the complaint. The court file does contain a letter from defendant to the attorney who filed the complaint on behalf of the township. The letter accuses counsel of acting unlawfully in pursuing the action. On October 19, 2016, the defendant, acting propria persona, filed a document entitled, “IN RE MOTION TO DISMISS SUA SPONTE – TO BE BROUGHT ON WHEN PLAINTIFF [TOWNSHIP] DOES OTHER THAN DISMISS THE CHARGES.” The motion is rambling and disjointed, and defendant -1- concludes the motion by requesting that the “suit be dismissed with prejudice and I don’t think I should have to make a special trip to court to have it dismissed.” The motion was never noticed for hearing. On November 29, 2016, the township filed a motion for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that the property was in a blighted condition, that the house was dilapidated and dangerous, and that defendant had not denied the alleged violations set forth in the complaint. The township attached an affidavit from the township supervisor, who was also a zoning enforcement officer, and he averred that he had inspected defendant’s property, that he notified defendant of the violations of the blight and dangerous-building ordinances, that defendant had not corrected the violations, apparently refusing to do so, and that the property remained in violation of the law. The affiant noted “broken out windows, structural issues[,] and missing siding” relative to the house. In her answer to the township’s motion, defendant argued that the township had “no standing, no jurisdiction, and no sufficiency in their pleadings.” Defendant further contended that there were issues of material fact, although she attached no supporting documentation to her response, that her property was not blighted and in a dangerous condition, and that the township was acting unlawfully. At the hearing on the motion for summary disposition, defendant was disruptive, uncooperative, defiant, and disrespectful from the start. The trial court warned her that she would be held in contempt and jailed if she did not change her behavior, but the court never followed through with its well-deserved threats. After the township presented its argument, the trial court allowed defendant to advance her position, placing her under oath. The court denied defendant’s request to provide the court with “an amicus brief” and letters from neighbors, as they had not been properly and timely submitted for consideration, and the court rejected defendant’s contention that she should not be held to the same standards applicable to attorneys. Defendant then got into an argument with the court regarding the burden of proof on motions for summary disposition, before she objected “because the people against me are all being paid.” At this point, the trial court cut her off, and made its ruling. The court ruled that because the township’s motion for summary disposition was based on MCR 2.116(C)(10), defendant was required to submit documentary evidence to counter the motion and she had failed to attach or otherwise properly submit any documentary evidence. The court awarded the township the requested relief, including taxable costs. The hearing closed with defendant “object[ing] to anyone telling me what I can do with my private property[.]” On appeal, defendant presents a brief that is comprised of: irrelevant matters; undeveloped arguments that are difficult to understand, unsupported by evidence and authorities, and are at times nonsensical; assertions of fact not found in the record; arguments that were not preserved below; and personal musings. Our Supreme Court in Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), observed: “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his -2-  position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.” Ultimately, defendant fails to provide a valid argument addressing and challenging the sole basis of the trial court’s decision to grant summary disposition in favor of the township. Defendant failed to present any documentary evidence in response to the township’s motion brought under MCR 2.116(C)(10), as required by MCR 2.116(G)(4), so the trial court properly granted the township’s motion. Defendant does argue that the affidavit of the township supervisor should not have been considered, as it was conclusory. “[M]ere conclusory allegations within an affidavit that are devoid of detail are insufficient to create a question of fact.” Hamade v Sunoco, Inc (R&M), 271 Mich App 145, 163; 721 NW2d 233 (2006). Although the supervisor’s affidavit was short, it was sufficient for purposes of the township’s motion under MCR 2.116(C)(10). The affidavit indicated that there was “debris scattered around the property,” that there were “junk vehicles still located on the property,” and that the house had “broken out windows, structural issues[,] and missing siding.” The supervisor further averred that the property was in violation of the blight and dangerous-building ordinances, that defendant had been notified of the violations, and that defendant had not corrected the violations. Defendant was thus required to present documentary evidence to counter the township’s summary disposition motion and failed to do so. MCR 2.116(G)(4). Defendant attempts to present various constitutional arguments, including a vagueness challenge, but they are not adequately briefed and they were not specifically presented below and thus not addressed by the trial court. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993) (we need not address issues that were not posed in the lower court); Dresden v Detroit Macomb Hosp Corp, 218 Mich App 292, 300; 553 NW2d 387 (1996) (insufficiently briefed issues are abandoned on appeal). Moreover, as best we can comprehend defendant’s constitutional arguments, we find that they lack substantive merit; the ordinances are not unconstitutionally vague, defendant has not been unlawfully deprived of the reasonable use of her property, the ordinances are authorized by statute, and defendant was not otherwise deprived of her due process rights. On de novo review, Hamade, 271 Mich App at 153, we hold that the trial court did not err in granting summary disposition in favor of the township.1 Affirmed. We decline to award taxable costs under MCR 7.219. /s/ William B. Murphy /s/ Kathleen Jansen /s/ Brock A. Swartzle 1 We also point out that defendant never even filed an answer to the complaint as required by MCR 2.111(C). -3- 

580 S.E.2d 405 (2003) STATE of North Carolina v. Steven Daniel FISHER, Defendant. No. COA01-1504. Court of Appeals of North Carolina. June 3, 2003. *409 Attorney General Roy Cooper, by Special Deputy Attorney General H. Alan Pell and Special Deputy Attorney General Jonathan P. Babb, for the State. Paul M. Green, Durham, for defendant-appellant. EAGLES, Chief Judge. Defendant Steven Daniel Fisher appeals from judgment entered in Harnett County Superior Court upon a plea of guilty to the first-degree murder of Wanda Renee James. The State's evidence tends to establish the following: Defendant first met Wanda Renee James ("James") in June 1995. Defendant was living in Virginia at the time, while James lived in Erwin, North Carolina. Shortly after their first meeting, defendant became romantically involved with James and began driving to Erwin on weekends to stay with James. Sometime during August or September of 1995, defendant quit his job in Virginia and moved in with James at her residence in Erwin. Defendant's romantic relationship with James continued until February 1996, when defendant arrived home from work early one day and discovered James in a state of undress in bed with her ex-boyfriend, Jerry Holder. Defendant was arrested following a brief physical altercation between him and Holder. After his release on bail, defendant returned to Portsmouth, Virginia. On Friday, 1 March 1996, defendant returned to North Carolina to surrender himself to the bail-bondsmen who had secured his release in February. After being told he could not appear before the court until Monday, 4 March 1996, defendant went to stay with his former employer, Donnie Jacobs, in Godwin, North Carolina. On Saturday, 2 March 1996, after drinking beer and smoking marijuana over a period of approximately six hours, defendant decided to go see James. Defendant fabricated a story about why he was leaving and walked from Jacobs' house to James' house, arriving at James' house sometime between 2:00 a.m. and 3:00 a.m. on 3 March 1996. Upon his arrival at James' house, defendant noticed that a pickup truck was parked *410 in the yard beside James' car. Defendant entered the house through a side door he knew James always left unlocked and went into James' bedroom. Defendant found James and Holder lying beside each other across the bed. James and Holder were both fully clothed and the smell of alcohol permeated the room. Angry at seeing James and Holder in bed together again, defendant slipped James' bathrobe belt around James' throat and strangled her. Defendant then went into the kitchen where he poured himself a glass of water, sat down at the kitchen table, drank the water and smoked a cigarette. Defendant remained in the house for approximately 45 minutes to an hour, however, Holder was never alerted to defendant's presence. Defendant left through the same door he entered, taking the glass and bathrobe belt with him, being careful not to touch anything else in the house. Defendant then walked back to Jacobs' house along the same route he had traveled on earlier, disposing of the glass and belt in a ditch along the side of the road. Defendant arrived back at Jacobs' house at approximately 6:30 a.m. on Sunday, 3 March 1996. Holder awoke later, found James dead in the bed, and immediately called police. Lieutenant Henry Hairr ("Hairr"), of the Erwin, North Carolina Police Department, investigated James' death. Hairr initially noted that there were no signs of forced entry into the home. Hairr testified that he found James' body lying face-down, "crossways" on the bed in the first bedroom on the right as he walked down the hallway of the house. James was wearing a blue turtle neck sweater and a necklace. Hairr noted that the necklace had left an impression on James' neck, just above the top of the neck of the sweater. Also present, were hemorrhages in the whites of James' eyes, which Hairr testified he thought were consistent with strangulation. Hairr noticed that there were two opened packs of cigarettes, one Marlboro and one Winston, lying on the kitchen table. Holder told Hairr the Marlboro cigarettes belonged to him and the Winston cigarettes were James'. Holder further stated that he and James had gone to the C and G Club in Lillington the night before and that he had been drinking heavily that night. Holder said he had no recollection of anything that occurred from the time he and James left the club until he woke up Sunday morning. From March 1996 until July 1999, defendant told no one about his role in James' death. The initial autopsy report indicated the cause of James' death was "undetermined, [but] associated with a pulmonary congestion and edema and pneumococcus pneumonia," with "underlying factors of alcohol and ... narcotics." No charges were filed at the time in connection with James' death. On 14 July 1999, while incarcerated in the Hampton Roads Regional Jail in Portsmouth, Virginia, defendant motioned for the jail officer in charge of his cell-block to let him out of his cell. The POD Manager, Officer Mark A.C. Glover ("Glover"), electronically opened the door to defendant's cell and allowed defendant to walk downstairs to the control pod where Glover was working. Defendant asked to speak to Glover in private, so Glover opened the pod door, allowing defendant to "come around and talk ... in private." Defendant told Glover that "[he] would like to confess a crime [he] committed because it [wa]s tearing [him] up inside." Defendant waited while Glover contacted his watch commander, Lieutenant Riggans, and relayed what defendant said. Riggans instructed Glover to ascertain whether the confession related to a current or past offense, as well as some basic factual information about the offense and call her back. When Glover asked defendant whether he was confessing to "his current crime or a prior crime," defendant responded by telling Glover that he "murdered a woman on March 3, 1996 in Erwin, North Carolina." Defendant said that once he "realized [he] was getting away with murder it started eating [him] up inside," so he felt he had to tell someone in order to "get this behind [him]." Glover was unable to reach Riggans when he called her back, so Glover relayed the information to Sergeant Edwards. Edwards told Glover that Sergeant Wilkins from internal affairs would take defendant's statement, but would not be available until the following day. Glover *411 relayed this information to defendant, who remarked: "I hope they will come soon, I don't know how long I can take this." Defendant thanked Glover for listening to him and keeping the information confidential and returned to his cell. On 15 July 1995, at approximately 8:45 a.m., a jail officer escorted defendant to Sergeant Angela Wilkins' office in the Hampton Roads Regional Jail. Once there, the officer waited outside Wilkins' door so that only defendant and Wilkins were present during the interview. Defendant was neither handcuffed nor restrained at any point either before, during or after the interview. The following colloquy took place between defendant and Wilkins: Sgt: Mr. Fisher, I got word yesterday, which was July 14th, from Sgt. Edwards that you had some information about a murder. And the details that I got was that there was a murder took place, and that it took place in North Carolina. And you wanted to give information in reference to that. Is that what you want to do today? Fisher: I don't think, I don't want to, I ain't gonna do nothing. I ain't gonna say nothing. Sgt: Okay, you don't want to make a statement or anything? Fisher: No. Sgt: Okay, why'd you change your mind? Fisher: I don't know. Sgt: Okay, is it that you [sic] conscience is bothering you, the reason why you wanted to do this in the beginning? Or, is there, did anybody force you to say you wanted to make this statement? Or is this on your own free will? Fisher: Alright, I'll tell you what happened. Do you want me to start from the beginning? Sgt: Wherever you want to start it. Wherever you feel comfortable with it. Fisher: Okay, on March 2, 1996, I was in North Carolina. I was in Cumberland County staying at my boss's house, and uh, I had been drinking and I uh, went to sleep. And I woke up about 12:00 a.m. And I walked from Cumberland County to Irwin. And I went in the side door, which is the kitchen door, of Wanda Renee James' house. The door was unlocked. I went in there, went into the bedroom. Her and this guy named Jerry were laying across the bed, uh, sideways, not, not head to toe, but across the bed. And, uh, I could tell that they had been drinking because I could smell it and they were both passed out. I reached in the uh, closet and got a bathrobe tie. And wrapped it around Wanda Renee James' neck and strangled her until she stopped breathing. And then I left and took the tie with me and uh, went back to my boss's house in Cumberland County and uh, that's pretty much it. She had on a blue turtle neck sweater, blue jeans and some brown shoes. I didn't do nothing to the guy Jerry. He didn't wake up, he didn't move, I didn't make no noise. The interview ended at approximately 8:55 a.m. and defendant was returned to his housing unit. Later that same morning, at approximately 11:25 a.m., defendant again attracted the attention of a jail officer by beating on his cell door and pointing at his wrist. After being let out of his cell, defendant told the officer that he had just "confessed to a murder and... need[ed] some help before [he] kill[ed him]self." Defendant told the officer that he had cut his wrist before and was currently "trying to cut it again with [his] toothpaste container." Defendant also said he was "looking for other objects" with which to cut himself. Although defendant required no medical attention, he was subsequently placed on suicide watch pending further evaluation. On 16 July 1999, defendant was interviewed by Special Agent Michael B. East ("East") of the North Carolina State Bureau of Investigation ("SBI") in the presence of Detective Hairr of the Erwin Police Department, Sergeant Wilkins of the Hampton Roads Regional Jail and Detective Turner of the Portsmouth Police Department. Before beginning the interview, Agent East informed defendant of his constitutional rights by reading them directly from a standard *412 SBI waiver form. Defendant verbally indicated that he understood each individual right after it was read to him by East. After East read defendant his rights, he then read the waiver portion of the form to defendant. Defendant read along with East and at the end of the waiver, defendant indicated that he did not wish to sign the form. When East inquired as to the reason, defendant stated that "he wanted to talk to an attorney." East made a notation below the signature line of the form which said: "refused to sign, 3:15 p.m." East then asked defendant if he "kn[e]w the name of his attorney...." When defendant responded negatively, East told defendant that they "couldn't question him any more about it since he had requested to speak with an attorney." East then laid the waiver form and pen down on the table in front of him, reached into his pocket and removed a business card. East handed his card to defendant and told him that "after he talked to an attorney, if he still wanted to talk about this incident, either he or his attorney could contact [him] at the number on the business card." East then pointed in the direction of Detective Hairr and said "he and I are going back to Erwin...." When Detective Hairr stood up and began walking toward the door, defendant "grabbed" the waiver form and pen from the desk and said "[a]ll right, I'll sign it." Defendant signed the waiver and initialed the notation of refusal East had made earlier on the form. Thereafter defendant gave a complete account of his involvement in the death of Wanda Renee James, recounting the events exactly as he had to Sgt. Wilkins. In addition, defendant described how he had wrapped the belt around the turtle neck portion of James' sweater, which prevented the belt from touching her neck and twisted it until James stopped breathing. Defendant also provided a detailed description of the crime scene, including accurate accounts of: (1) the position of James' body on the bed; (2) the clothes that both James and Holder were wearing that morning; (3) the position of the cigarettes on the kitchen table and that there were both Marlboro and Winston cigarettes; and (4) which lights were and were not on in the house. On 30 August 1999, defendant was indicted for the first-degree murder of Wanda Renee James. Defendant moved pursuant to N.C. Gen.Stat. § 15A-974 to suppress all statements made by him to law enforcement officers on grounds that the statements were obtained in violation of the Fifth Amendment to the United States Constitution. On 8 August 2001, following an evidentiary hearing, the trial court denied defendant's motion to suppress per G.S. 15A-979(b). On 13 August 2001, defendant entered a plea of guilty, pursuant to a negotiated plea agreement expressly reserving his right to appeal the denial of his motion to suppress. The trial court entered judgment on defendant's plea of guilty and sentenced defendant to life in prison without possibility of parole. Defendant appeals. I. Defendant first contends the trial court erred by denying his motion to suppress without first making and entering findings of fact and conclusions of law in the record. Defendant argues that N.C. Gen.Stat. § 15A-977(d) requires that findings of fact be made before any determination on the issue of suppression. We disagree. G.S. 15A-977 provides that when a suppression hearing is held, "[t]he judge must set forth in the record his findings of facts and conclusions of law." N.C. Gen.Stat. § 15A-977(f) (1999). "Findings and conclusions are required in order that there may be a meaningful appellate review of the decision. [However, t]he statute does not require that the findings be made in writing at the time of the ruling." State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984). Effective appellate review is not precluded by an order being entered later when "the trial judge announce[s] his ruling in open court on a motion to suppress and later file[s] his written order with findings of fact and conclusions of law." Id. Here, following a suppression hearing, the trial judge announced his ruling in open court. The trial judge later filed a written order setting forth his findings of fact and *413 conclusions of law. Accordingly, we conclude this assignment of error is without merit. II. Defendant next contends the trial court erred by failing to suppress the statement he made to Agent East on 16 July 1999. Defendant argues that his statement was inadmissible because Agent East continued to interrogate him after he invoked his right to counsel in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We disagree. We begin by noting that "`the standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact `are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.''" State v. Johnston, 154 N.C.App. 500, 501, 572 S.E.2d 438, 440 (2002) (citations omitted). However, because "[t]he determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law," this question is fully reviewable on appeal. State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992). Once an accused invokes his right to counsel during a custodial interrogation, "the interrogation must cease and cannot be resumed without an attorney being present `unless the accused himself initiates further communication, exchanges, or conversations with the police.'" State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000)(quoting Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1881, 68 L.Ed.2d 378, 386 (1981)), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). However, not every statement obtained by police from a person in custody is considered the product of interrogation. Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297, 307 (1980). Interrogation is defined as either "express questioning by law enforcement officers," Golphin, 352 N.C. at 406, 533 S.E.2d at 199, or conduct on the part of law enforcement officers which constitutes the "functional equivalent" of express questioning. Innis, 446 U.S. at 301, 100 S.Ct. at 1689, 64 L.Ed.2d at 308. The latter is satisfied by "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. "However, because `the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.'" Golphin, 352 N.C. at 406, 533 S.E.2d at 199 (citation omitted)(emphasis in original). Factors that are relevant to the determination of whether police "should have known" their conduct was likely to illicit an incriminating response include: (1) "the intent of the police"; (2) whether the "practice is designed to elicit an incriminating response from the accused"; and (3) "[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion...." Innis, 446 U.S. at 302, 100 S.Ct. at 1690, 64 L.Ed.2d at 308 (fn.7, 8). Defendant argues that Agent East's conduct, from the time defendant invoked his right to counsel until he signed the waiver of rights, "constitutes words and actions reasonably likely to elicit an incriminating response." However, there is nothing in the record that suggests Agent East's words and conduct were intended to accomplish anything other than to scrupulously honor defendant's rights. Considering that East had traveled from North Carolina to Virginia to speak with defendant, it was not unreasonable for East to attempt to ascertain the name of defendant's Virginia attorney in the hope that the attorney's presence could be procured promptly in order that the interview might be conducted before East returned to North Carolina. Once this effort failed, however, East unequivocally told defendant he would be willing to listen to defendant only after defendant had an opportunity to speak with his attorney. It was at this point that defendant re-initiated communication with the officers. Moreover, nothing in the record tends to suggest any knowledge on the part of Agent East concerning any unusual susceptibility by defendant to any particular form of persuasion. Therefore, we *414 cannot say this practice was designed to illicit an incriminating response from defendant. Similarly, we cannot say that Agent East should have known his conduct was reasonably likely to illicit an incriminating response from defendant. Accordingly, we conclude that Agent East's conduct did not constitute interrogation under the Fifth Amendment. Relying on State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983), defendant next argues that the order denying suppression was fatally defective for want of a specific finding of fact as to who reinitiated the communication between defendant and the officers after defendant invoked his right to counsel. We disagree. "The general rule is that, at the close of a voir dire hearing to determine the admissibility of a defendant's confession, the presiding judge should make findings of fact to show the basis of his ruling." Id. at 520, 308 S.E.2d at 321. If there is a material conflict in the evidence on voir dire he must do so in order to resolve the conflict. If there is no conflict in the evidence on voir dire, it is not error to admit a confession without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. In that event the necessary findings are implied from the admission of the confession into evidence. State v. Riddick, 291 N.C. 399, 408-09, 230 S.E.2d 506, 512 (1976) (citations omitted). In Lang, our Supreme Court construed Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), to require, in cases like Lang: (1) "a finding of fact as to who initiated the communication between the defendant and the officers which resulted in his inculpatory statement while in custody and after he had invoked the right to have counsel present during interrogation," Lang, 309 N.C. at 521, 308 S.E.2d at 321-22; and (2) "findings and conclusions establishing whether the defendant validly waived the right to counsel and to silence under the totality of the circumstances...." Id. at 522, 308 S.E.2d at 322. However, Lang is inapposite here because in Lang, material conflicts existed in the evidence presented on voir dire, particularly with respect to who initiated the contact between defendant and the police after defendant first invoked his right to counsel. Id. at 520-21, 308 S.E.2d at 321. Here, unlike Lang, the factual evidence presented during voir dire was uncontroverted. The only conflict concerned the legal conclusions to be drawn from the evidence presented. Therefore, it was not necessary for the trial judge to make a specific finding of fact on this issue. Furthermore, the trial judge specifically found: 10. Agent East informed the defendant orally and in writing of his Miranda rights. Defendant stated that he would not sign the waiver of his rights and that he wanted to talk with an attorney. 11. Agent East gave the defendant his business card and told defendant to call him if defendant changed his mind. As Agent East and Det. Hairr were leaving the room, defendant snatched the Miranda rights form and signed the waiver, stating that he wanted to talk with the officers regarding the murder he committed in Erwin, North Carolina. .... 14. Defendant understood and waived his Miranda rights, and his statement to these officers was made freely and voluntarily. He was rational and coherent throughout his conversation with the officers. We conclude that the fact that defendant initiated further contact with the officers may fairly be implied from the facts found by the trial court. Accordingly, this assignment of error is rejected. III. Defendant next contends the trial court erred by failing to suppress the statement he made to Sergeant Wilkins on 15 July 1999. Defendant first argues that Sergeant Wilkins was required to advise him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree. *415 "It is well established that Miranda warnings are required only when a defendant is subjected to custodial interrogation." State v. Patterson, 146 N.C.App. 113, 121, 552 S.E.2d 246, 253 (2001), disc. review denied, 354 N.C. 578, 559 S.E.2d 548 (2001). Because the determination of whether a defendant was in custody is a question of law, it is fully reviewable here. State v. Briggs, 137 N.C.App. 125, 128, 526 S.E.2d 678, 680 (2000). "A person is in custody, for purposes of Miranda, when he is `taken into custody or otherwise deprived of his freedom of action in any significant way,'" and an inmate who is subject to a custodial interrogation is entitled to Miranda warnings[.] An inmate, however, is not, because of his incarceration, automatically in custody for the purposes of Miranda; rather, whether an inmate is in custody must be determined by considering his freedom to depart from the place of his interrogation. Id. at 129, 526 S.E.2d at 680-81 (citations omitted)(emphasis added). Factors which bear on the determination of whether an inmate is in custody for purposes of Miranda include: (1) whether "the inmate was free to refuse to go to the place of the interrogation"; (2) whether "the inmate was told that participation in the interrogation was voluntary and that he was free to leave at any time"; (3) whether "the inmate was physically restrained from leaving the place of interrogation"; and (4) whether "the inmate was free to refuse to answer questions." Id. In Briggs, the defendant inmate was under investigation for communicating threats to someone outside the institution. Defendant was placed in segregated lockup, pending the outcome of the investigation. Prior to being questioned by jail officials, defendant was escorted to an office "in waist restraints and handcuffs." Id. The investigating officer, Stancil, testified that defendant was "required" to come to his office and defendant remained physically restrained throughout the interrogation. However, defendant was at all times "`free not to talk' and return to his cell." Id. at 129, 526 S.E.2d at 681. This Court concluded that because defendant "was free to leave Stancil's office and return to his cell at any time, [he] was not in custody for the purposes of Miranda." Id. Here, Wilkins testified that at the time defendant was brought to her office, she "didn't have a reason to talk to him." Wilkins arranged to have defendant brought to her office only after she was informed that defendant "wanted to provide [her] with information about a murder." Defendant was escorted to Wilkins' office by one jail officer, who waited outside Wilkins' office during the interview. Defendant was neither handcuffed nor restrained and was at all times "free to quit talking and get up and walk out of [the] office." Indeed, defendant left Wilkins' office and was returned to his housing unit after the conversation. Like Briggs, defendant was at all times free not to talk and return to his cell. Indeed, defendant exercised both of these rights at different points during the interview. However, unlike Briggs, it was defendant who initiated the meeting with Wilkins. Defendant's presence was not required. Moreover, at no time was defendant physically restrained from leaving Wilkins' office. We conclude defendant was not "in custody" for purposes of Miranda on 15 July 1999. Because defendant was not subjected to "custodial interrogation," Sergeant Wilkins was not required to give defendant his Miranda warnings prior to the interview. Defendant next argues that Sergeant Wilkins was required to terminate the interrogation once defendant invoked his right to remain silent. We disagree. "Once [Miranda] warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. However, the protections of Miranda and the Fifth Amendment are only implicated when a criminal defendant is subjected to custodial interrogation. Patterson, 146 N.C.App. at 121, 552 S.E.2d at 253. Because we have already concluded that defendant was not in custody for purposes of *416 Miranda, Sergeant Wilkins was not prohibited from inquiring into the motivation behind defendant's sudden change of heart. Accordingly, this assignment of error is rejected. IV. Defendant next contends the trial court erred by failing to suppress the statement he made to Officer Glover on 14 July 1999. Defendant argues that Officer Glover was required to give him Miranda warnings prior to interviewing him. We disagree. We reiterate that Miranda warnings are only required when a criminal defendant is subjected to custodial interrogation, Patterson, 146 N.C.App. at 121, 552 S.E.2d at 253, and the determination of whether an inmate is "in custody" for purposes of Miranda depends upon "his freedom to depart from the place of his interrogation." Briggs, 137 N.C.App. at 129, 526 S.E.2d at 681. Here, defendant asked Officer Glover to let him out of his individual cell so he could talk with Officer Glover in private. Defendant was allowed to walk, unescorted and unrestrained, from his cell to the control pod where Officer Glover was working. Defendant remained, at all times, free to terminate the conversation with Officer Glover and return to his cell and indeed did so once he was told that another officer would take his statement the following day. Because defendant was not "in custody," Officer Glover was not required to give him his Miranda warnings. Accordingly, this assignment of error is rejected. V. Defendant next contends the trial court erred by failing to suppress his statements to Officer Glover and Sergeant Wilkins without first making specific findings and conclusions concerning his mental capacity. Defendant first argues that the trial court was required to make specific findings concerning his mental capacity to validly waive his rights under Miranda. We disagree. We have already noted that the trial court is required to enter specific findings only if there is a "material conflict in the evidence on voir dire ...." State v. Riddick, 291 N.C. 399, 408-09, 230 S.E.2d 506, 512 (1976). However, if the only conflict in the evidence is immaterial, meaning it has no effect on the admissibility of the confession, it is not error to admit the confession without specific findings. Id. at 409, 230 S.E.2d at 512-13. Here, we have concluded that neither Officer Glover nor Sergeant Wilkins were required to give defendant his Miranda warnings. We hold it was not error for the trial court to admit defendant's confession without a specific finding on defendant's capacity to waive his rights under Miranda since admissibility of defendant's statements to these officers was not dependent upon the validity of any waiver of his Miranda rights. Defendant next argues that because his evidence "rais[ed] a serious question" as to his mental capacity on 14 and 15 July 1999, specific findings were required before the trial court could properly admit any extra-judicial confessions made during that time. We agree. However, after careful review of the record and transcript, we conclude defendant suffered no prejudice. Because a confession that is given while a defendant is insane is not given freely, voluntarily and understandingly, both the Fifth and Fourteenth Amendments prohibit subsequent admission of that confession against the defendant at trial. See Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); State v. Ross, 297 N.C. 137, 254 S.E.2d 10 (1979). Moreover, "[w]hen there is a material conflict in the evidence on voir dire, the judge must make findings of fact resolving any such material conflict." State v. Lang, 309 N.C. 512, 520, 308 S.E.2d 317, 321 (1983)(emphasis omitted). Here, defendant moved to suppress his confessions on grounds that inter alia, he was psychotic when he confessed. During voir dire, defendant offered the testimony of Dr. Nicole Wolfe, an expert in the field of forensic psychiatry. Dr. Wolfe testified that she had evaluated defendant in February 2001 and determined that he was competent to stand trial. Although Dr. Wolfe stated that she was unable to form an opinion concerning defendant's competence on 15 July 1999, she testified that after reviewing the *417 record she had noted a number of contemporaneously occurring "behavioral manifestations" that made her "question his mental state." The manifestations to which Dr. Wolfe testified consisted primarily of: (1) defendant's diagnosis as suffering from Bipolar I disorder, which is characterized by "rapidly shifting mood disturbances"; (2) defendant's demonstration of the symptoms of "acute depression"; (3) defendant's confession and suicide attempt which occurred approximately one week after the discontinuance of one of his medications, Haldol, which had been prescribed "because of acute psychotic episodes"; (4) defendant's statement that he heard voices telling him to eat feces and drink urine until he died; and (5) Liberty Forensic Unit's 22 July 1999 assessment that defendant had "decompensated psychiatrically" on 15 July 1999. While the State presented no expert testimony in rebuttal, the State's witnesses, i.e., the officers who questioned defendant, testified that defendant appeared rational, coherent and in full possession of his faculties throughout their conversations with him. We conclude specific findings on the issue of defendant's competency at the time he confessed were a prerequisite to the admission of defendant's statements. However, we conclude that the absence of findings here was harmless beyond a reasonable doubt. N.C. Gen.Stat. § 15A-1443(b) (1999). First, the trial court properly admitted defendant's 16 July 1999 confession to Agent East. In its order, the trial court specifically concluded that defendant had the mental capacity to "freely, knowingly, and understandingly waive his Miranda rights on July 16, 1999." As this conclusion is adequately supported by the trial court's findings of fact which are supported by competent evidence in the record, it is binding on appeal. State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 121 S.Ct. 1126, 148 L.Ed.2d 992 (2001). Moreover, since defendant's 16 July confession comprehensively outlined all of the events and details that had theretofore been provided, even in the absence of the two previous confessions, there is no reasonable possibility that there would have been a different result at trial. Next, a confession must be excluded only when, after considering all of the circumstances and the entire record, "`the evidence indisputably establishes the strongest probability that the defendant was insane and incompetent at the time he allegedly confessed.'" Ross, 297 N.C. at 141, 254 S.E.2d at 12 (emphasis omitted)(quoting Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 248 (1960)). In Ross, there was evidence tending to establish the following: (1) the defendant's history indicated that he had been mentally ill for the past twelve to thirteen years, which had caused defendant to be hospitalized several times; (2) the defendant had not worked for any appreciable period of time in five years; (3) the defendant had been involuntarily committed for an unrelated incident just one week prior to the confession; (4) three days before the confession, the defendant had been taken to a mental health clinic, where he received medication and made an appointment to see a psychiatrist; (5) the therapist who spoke with the defendant that day testified that "the defendant's mood and affect were `inappropriate,' he had `poor judgment,' and `there was a very high likelihood that he was suffering from psychotic conditions,' specifically schizophrenia"; (6) the defendant's brother testified that during the days immediately preceding the crime and confession, defendant was scheduled to work for him, however, defendant's condition and bizarre behavior prevented him from working; (7) the defendant's condition had deteriorated to the point that his brother had to arrange for someone to stay with the defendant during the day because he was incapable of taking care of himself; (8) the defendant's brother testified that on the day of the crime, the day before the confession, the defendant "looked like he was just off"; (9) the victim testified that at the time of the crime the defendant "looked strange"; (10) the psychiatrist who interviewed defendant three days after he made the confession testified that the "defendant was suffering from `chronic, undifferentiated schizophrenia,' which includes delusions and a `misinterpretation *418 of reality' ... and [that] the defendant is much more likely to be sane when he takes his medication"; and, (11) the evidence in the record tended to suggest that defendant had not taken his medicine for some time prior to his confession. Id. at 141-42, 254 S.E.2d at 12-13. The Ross court concluded that these facts compelled the conclusion that the confession was "made when the accused was in all probability mentally incompetent." Id. at 144, 254 S.E.2d at 14. Here, the record indicates that defendant's history of mental illness began in 1990 when he was evaluated to determine whether he was "too depressed to go to court on charges of arson." Defendant was diagnosed as having an "adjustment disorder and discharged back to [the] court." Defendant next saw mental health authorities in May 1999, when he was evaluated following an arrest that stemmed from the loss of his job for bizarre behavior and an assault on his uncle. Defendant was diagnosed as having Bipolar disorder and was released with a prescription for Depakote. Defendant was evaluated again in July 1999, following his confession to Sergeant Wilkins and subsequent suicide attempt. While defendant was found to have "decompensated psychiatrically" on 15 July, unlike Ross, defendant was not diagnosed as psychotic at this time. On the contrary, "[h]is emotional state was thought to be affected by the possibility of additional charges." Furthermore, defendant's Haldol treatment was discontinued at his own request on 7 July after the psychiatrist noted that defendant "had been stable on [Depakote] before." Following this discontinuance, no aberrant behavior on the part of defendant was noted by anyone associated with the jail until he told a jail officer he was contemplating suicide, approximately six and one-half hours after he confessed to Sergeant Wilkins. The record further indicates that apart from the May 1999 incident involving his uncle, defendant had no trouble securing or maintaining a job, despite his dependence on alcohol and chronic abuse of a wide variety of illegal drugs. Likewise, there is no indication that defendant had ever been involuntarily committed or evaluated psychiatrically at any time other than during periods of incarceration for various criminal charges. Finally, while Dr. Wolfe testified that certain circumstances caused her to question defendant's mental capacity on 15 July 1999, neither she nor any of the other physicians she consulted were able to formulate an opinion concerning defendant's competency during this time. In fact, Dr. Wolfe admitted on cross-examination that defendant's suicide attempt could just as easily have been attributable to depression, which is a characteristic of Bipolar I disorder. Accordingly, we conclude that the evidence fails to "`indisputably establish[] the strongest probability that the defendant was insane and incompetent at the time'" of his confession. Ross, 297 N.C. at 141, 254 S.E.2d at 12 (emphasis and citation omitted). We hold defendant suffered no prejudice by the trial court's failure to make findings concerning his competency on 14 and 15 July 1999. The dissent maintains that defendant is entitled to a new suppression hearing, in part because "the trial court improperly shifted the burden of proof to defendant regarding the voluntariness of his confessions and his competency to waive his Miranda rights...." We note that the scope of appellate review is "confined to a consideration of those assignments of error set out in the record on appeal," N.C.R.App. P. 10(a), and "presented in the several briefs." N.C.R.App. P. 28(a). This question was not the subject of an assignment of error and therefore is not subject to review by this Court. Indeed, because this contention is not discussed in defendant's brief, it is beyond the scope of our review. Even if the issue were before us, based on the same reasoning applied in State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983), we hold that any error was harmless beyond a reasonable doubt. First, the trial court here made no remarks during voir dire that indicated the burden had been shifted to defendant. Indeed, careful review of the record and transcript reveals that the burden of persuasion remained on the State at all times during the suppression hearing. Moreover, *419 although the trial judge concluded that defendant "failed to establish that [he] lacked mental capacity," the trial judge did not "couch his findings" in this language, id. at 558, 299 S.E.2d at 637; rather, the trial court's findings of fact and conclusions of law affirmatively stated that defendant "was rational and coherent throughout his conversation with the officers" and "freely, knowingly and voluntarily waived his Miranda rights." Finally, these findings and conclusions are amply supported by the evidence, notwithstanding the existence of evidence to the contrary. VI. Defendant next contends the trial court erred by entering a written judgment which fails to reflect that the life sentence was to run concurrently with the sentence defendant was already serving. Defendant argues that because this was an essential term of his plea agreement, the failure of the trial court to indicate it on the face of the judgment deprived him of due process of law. We disagree. G.S. 15A-1354 gives the trial court express authority to determine whether sentences shall run concurrently or consecutively. The statute provides in part: When multiple sentences of imprisonment are imposed on a person at the same time or when a term of imprisonment is imposed on a person who is already subject to an undischarged term of imprisonment, including a term of imprisonment in another jurisdiction, the sentences may run either concurrently or consecutively, as determined by the court. If not specified or not required by statute to run consecutively, sentences shall run concurrently. N.C. Gen.Stat. § 15A-1354(a) (1999). Unless a statute requires the sentences to run consecutively or the trial court's judgment specifies that the sentences shall run consecutively in the judgment, the sentences must, as a matter of law, run concurrently. Id.; State v. Wall, 348 N.C. 671, 675, 502 S.E.2d 585, 587 (1998). Here, defendant was convicted and sentenced for violating G.S. 14-17. There is no provision in G.S. 14-17 requiring that sentences imposed under that statute run consecutively with any other undischarged sentences. The judgment does not specify whether defendant's sentence is to run concurrently or consecutively. By statute, defendant's life sentence must run concurrently with his remaining undischarged sentences. Accordingly, we conclude defendant suffered no prejudice as a result of the trial court's failure to have the judgment reflect this particular term of defendant's plea agreement. VII. Defendant's final contention is that the indictment upon which his conviction is based will not support a conviction of first-degree murder because it fails to specifically allege any of the circumstances enumerated in G.S. § 14-17 that elevate second-degree murder to first-degree murder. We disagree. Our Supreme Court has consistently held that "[a]n indictment that complies with the requirements of N.C.G.S. § 15-144 will support a conviction of both first-degree and second-degree murder." State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001). Moreover, because G.S. 14-17 is specifically referenced on the shortform murder indictment, it will support a conviction of first-degree murder under any theory set forth in G.S. 14-17, without the need for a separate allegation of the particular theory upon which first-degree murder is based. Id. Here, the indictment upon which defendant was convicted complied in all respects with the requirements of G.S. 15-144. Accordingly, we conclude this assignment of error is without merit. We hold that defendant received a fair trial, free from prejudicial error. No prejudicial error. Judge MARTIN concurs. Judge GEER dissents in a separate opinion. *420 GEER, Judge, dissenting. Because I believe that the trial court improperly shifted the burden of proof to defendant regarding the voluntariness of his confessions and his competency to waive his Miranda rights, I respectfully dissent. I would reverse and remand for a new hearing on defendant's motion to suppress. As the majority notes, a trial court's findings of fact are conclusive on appeal as long as they are supported by competent evidence, even if the record contains conflicting evidence. State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995). When, however, those findings have been made under a misapprehension of the law, they must be set aside and the case remanded so that the evidence may be considered in its true legal light. Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973). I believe that is the situation here. The majority states that the burden of proof issue is not the subject of an assignment of error and, therefore, should not be addressed by this Court. I believe that this issue is encompassed within assignments of error 4, 5, and 6. Although those assignments of error are broad, they are no broader than assignments of error routinely assumed to pass muster by this Court in other cases. I see no reason to elect to impose a more rigorous standard for assignments of error in this case than in cases where less is at stake. While the majority is correct that the burden of proof issue was not specifically briefed, I believe that this case presents a classic example of when this Court should suspend its rules "[t]o prevent manifest injustice to a party." N.C.R.App. P. 2. I can conceive of no more fundamental an error than placing the burden of proof on the wrong party in a criminal case. Given the fundamental nature of the error, the sparseness of the evidence presented by the State on competence when contrasted to the expert evidence of defendant, and the consequences of this error (life imprisonment without parole), I believe that the Court should address this issue. I In denying defendant's motion to suppress, the trial court concluded: "Defendant has failed to establish that defendant lacked the mental capacity to freely, knowingly, and understandingly waive his Miranda rights on July 16, 1999." The trial court thus placed the burden of proof on defendant. The law is, however, unquestionably otherwise. Both this Court and the Supreme Court have repeatedly confirmed that the State bears the burden of proof as to the voluntariness of a confession and as to the validity of a waiver of Miranda rights. See, e.g., State v. Knight, 340 N.C. 531, 550, 459 S.E.2d 481, 493 (1995) ("The State bears the burden of proving that a defendant made a knowing and intelligent waiver of his rights and that his statement was voluntary."); State v. Brown, 112 N.C.App. 390, 396, 436 S.E.2d 163, 167 (1993) ("A defendant may waive his Miranda rights, but the State bears the burden of proving that the defendant made a knowing and intelligent waiver."), disc. review denied, 335 N.C. 561, 441 S.E.2d 124 (1994), and aff'd per curiam, 339 N.C. 606, 453 S.E.2d 165 (1995); State v. Williams, 59 N.C.App. 15, 24, 295 S.E.2d 493, 498 (1982) ("Upon reviewing the evidence before the court on the motion to suppress [based on incompetency], we hold that the State failed to meet its heavy burden to affirmatively demonstrate a knowing and intelligent waiver by defendant."). The trial court's requirement that defendant "establish" his lack of mental capacity cannot be reconciled with this well-established principle. State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983) confirms this conclusion. In Cheek, the defendant argued that "the trial judge impermissibly placed the burden of proving that the statement was not voluntarily made on defendant" by stating at the beginning of the voir dire hearing on the defendant's motion to suppress, "`The burden is on the defendant on a motion to suppress.'" Id. at 556, 299 S.E.2d at 636. In addressing this argument, the Supreme Court first noted that when a trial judge conducts a hearing on the voluntariness of a statement, "the burden is upon the state to demonstrate the admissibility of the challenged *421 evidence; and, in the case of a confession, the state must affirmatively show (1) the confession was voluntarily made, (2) the defendant was fully informed of his rights and (3) the defendant voluntarily waived his rights." Id. at 557, 299 S.E.2d at 636. To meet this burden, "the state must persuade the trial judge, sitting as the trier of fact, by a preponderance of the evidence that the facts upon which it relies to sustain admissibility and which are at issue are true." Id., 299 S.E.2d at 636-37. In determining in Cheek that the trial court did not shift the burden of proof, but rather only placed on defendant the burden of going forward, the Supreme Court stressed that the trial court had not made any statement such as "defendant has failed to show that the statement was not voluntarily given." Id. at 558, 299 S.E.2d at 637. Such a statement "would have indicated that he impermissibly placed the burden of persuasion on defendant." Id. In this case, by contrast, the trial court's order includes precisely such a statement. Conclusion of law number five establishes that the court erroneously shifted the burden of proof to defendant when our case law is clear that the State has the "heavy burden to affirmatively demonstrate a knowing and intelligent waiver by defendant." Williams, 59 N.C.App. at 24, 295 S.E.2d at 498. The majority claims that Cheek supports the conclusion that any error was harmless beyond a reasonable doubt. I see no meaningful distinction between the conclusion of law in this case-"[d]efendant has failed to establish that defendant lacked the mental capacity" to waive his rights—and the statement used in Cheek—"defendant has failed to show that the statement was not voluntarily given"—as an example of a statement demonstrating that the court "impermissibly placed the burden of persuasion on defendant." Cheek, 307 N.C. at 558, 299 S.E.2d at 637. The lack of any reference to the burden of proof in the findings of fact is not a surprise since the burden of proof is a question of law properly included in the conclusions of law. I am not willing to assume that the trial court applied the correct burden of proof when the written conclusion of law in his order so plainly indicates otherwise. I also cannot conclude that this fundamental error is harmless beyond a reasonable doubt. Ample evidence exists from which a trial court could have concluded that the State did not meet its burden of demonstrating that defendant properly waived his Miranda rights and voluntarily confessed. The relevant evidence—left unchallenged by the State and unaddressed by the trial court—includes much of Dr. Wolfe's testimony regarding defendant and the Dorothea Dix report submitted by defendant. The Dix report was based on interviews with Fisher, review of prior hospital records, and information obtained from Fisher's attorney, the county jail, the clerk of court, and the district attorney. The Dix report indicates that Fisher reported his first hospitalization as occurring at age 18 (approximately in 1982) for a suicide attempt. Due to suicide attempts, threats, and "women problems," he was admitted to psychiatric hospitals in Virginia on three other occasions. In addition, he was assessed at Central State Hospital in Virginia in 1990 because of a concern that he was too depressed to stand trial. In addition to these hospital admissions, evidence in the record shows that immediately before Fisher was jailed in Virginia in May 1999, he had "a number of manic/psychotic episodes." He was admitted to the Peninsula Behavioral Center on 14 May 1999 because of bizarre behavior towards his boss, including placing three Christian crosses on his boss' desk after concluding that his boss was evil, and his becoming belligerent and assaultive in an emergency room. Around this same time, Fisher assaulted his uncle and broke his nose because a voice told Fisher that his uncle was a demon. The Dix report concludes that Fisher had engaged in bizarre behavior and was hyper-religious. Fisher reported to the Dix team that while he was in jail in 1999 "voices were driving him crazy so he talked to a guard about what happened in North Carolina." The report also states that the voice of God always talked to Fisher while he was in Virginia. *422 Dr. Wolfe testified that two months before the confession, defendant was "very psychotic" and required commitment to two different psychiatric hospitals. According to Dr. Wolfe, on 7 July 1999 defendant's Haldol—an antipsychotic agent-was discontinued. Dr. Wolfe further testified that by 19 July 1999-three days after the East confession—defendant again "had become quite psychotic, talking about needing to ... drink urine and eat feces until he died." He was put back on Haldol. No medical records exist from 15 or 16 July 1999, but Dr. Wolfe reviewed the records from Liberty Forensic Unit, which indicated that defendant was admitted there on 22 July 1999. She noted that Liberty reported that Fisher "had decompensated psychiatrically on 7/15/99." She explained: "It means that somebody has been doing well and then pretty acutely, pretty suddenly, they're not doing well at all." Although Dr. Wolfe desired additional information—apparently medical records from other states—in order to further assess whether or not defendant was competent when he confessed, Dr. Wolfe testified that when Fisher made his confessions, "he was not mentally stable." She explained: "That to me means within a week of getting off of the antipsychotic medication, he became psychotic. That date coincides with the date he gave his confession on the 15th. And several days later, he got admitted to the state psychiatric facility where he stayed for almost two months." The Dix report also flatly concludes: "He became psychotic again on the day of his confession." Dr. Wolfe explained that "[p]sychosis is a term that we refer to being out of touch with reality. Mr. Fisher has a lot of religious preoccupations. He has been very psychotic on several occasions to the point where he clearly did not know reality from what was in his mind." At the hearing below, despite this extensive evidence, the State barely acknowledged the need to determine defendant's competency to confess or waive his rights. The State did not even bother to address that issue in its argument to the trial court on the motion to suppress. And, when the State's evidence is placed on the other side of the scale from defendant's evidence, the scale hardly moves. In opposition to the expert evidence from employees of the State, the prosecution offered only the lay opinion testimony of three law enforcement officers that Fisher appeared depressed, but coherent; that he was able to carry on logical conversations; and that he appeared rational. During the conversation with Agent East, however, Fisher was in paper clothing because of a suicide attempt. State v. Ross, 297 N.C. 137, 254 S.E.2d 10 (1979), discussed by the majority, demonstrates that the evidence before the trial court was sufficient to lead to the conclusion that the State failed to meet its burden of proof.[1] In Ross, the defendant had a history of mental illness with several prior hospitalizations; he had not worked for five years; a week before his confession, he was involved in an incident that led to involuntary commitment; three days before the confession there was a very high likelihood that he was suffering from psychotic conditions; he engaged in bizarre behavior before the confession; he was placed on medication; while in jail, he did not have access to his medication; and three days after the confession, he was diagnosed as suffering from schizophrenia, including delusions and a misinterpretation of reality. Id. at 141-42, 254 S.E.2d at 12-13. The State relied only upon the testimony of a deputy sheriff, present during defendant's statement, that the defendant was logical and made sense. The Ross Court found the totality of evidence to be "compelling facts" justifying a conclusion of incompetency. Id. at 144, 254 S.E.2d at 14. The evidence before this Court substantially parallels that of Ross. It suggests that Fisher had a history of mental illness and hospitalizations; that shortly before his confession he engaged in bizarre behavior causing him to be fired, arrested, hospitalized twice, deemed psychotic, and placed on the anti-psychotic medication Haldol; that he *423 confessed while no longer taking his antipsychotic medication;[2] that he was psychotic and mentally unstable when making his confessions; and that, immediately following his confession, he again engaged in bizarre behavior and was deemed psychotic to the point of being out of touch with reality. Also, just as in Ross, the only evidence from the State was lay opinion testimony from law enforcement officers regarding Fisher's behavior during their meetings with him. If such evidence was sufficient in Ross to establish incompetency as a matter of law, it certainly defeats any argument that the trial court's improper burden shifting was harmless beyond a reasonable doubt. I agree with the majority that the trial court erred in failing to make factual findings regarding defendant's competency during his statements to Glover and Wilkins. The majority, however, also holds that the error is harmless because of the admissibility of the 16 July 1999 confession to Agent East. Because I would hold that the trial court erred with respect to the East confession, I would further find that the trial court's error as to the statements to Glover and Wilkins was not harmless, I would, therefore, remand for a hearing on defendant's competency to make all three confessions. II In addition, I do not believe that the trial court's findings of fact are adequate under Ross and Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) to support its conclusion of law that defendant was competent when he confessed. For this alternative reason, I would also vacate the trial court's ruling on the motion to suppress and remand for a new hearing. The only finding of fact purporting to support the conclusion that defendant's confession to Agent East was made voluntarily and that he properly waived his Miranda rights is finding of fact number fourteen: "He was rational and coherent throughout his conversation with the officers."[3] In Ross, the only evidence was likewise the testimony of a deputy sheriff that the defendant appeared logical and made sense. This evidence was deemed insufficient to establish competency because our Supreme Court was unwilling to "uphold the admission of defendant's confession on the mere chance that it was made during a lucid interval of the defendant." Ross, 297 N.C. at 143, 254 S.E.2d at 14. In reaching this conclusion, the Court relied on Blackburn, in which the United States Supreme Court likewise found that testimony of a deputy that defendant talked sensibly, was clear-eyed, and did not appear nervous was insufficient to establish competency. The Court held: "But without any evidence in the record indicating that these observed facts bore any relation to Blackburn's disease or were symptoms of a remission of his illness, we are quite unable to conclude that such an inference can be drawn." Blackburn, 361 U.S. at 209, 80 S.Ct. at 281, 4 L.Ed.2d at 249-50. I cannot agree to affirm the trial court's ruling when its findings do no more than parrot the same evidence found inadequate in Ross and Blackburn. The majority opinion does not address this issue, which was properly presented by defendant. For all the foregoing reasons, I would reverse the trial court and remand for a new hearing on the motion to suppress at which the State would bear the burden of proving the admissibility of defendant's statements. NOTES [1] Ross can even be read as requiring a conclusion of incompetency on appeal, but I believe that the trial court should be given an opportunity to address the question in the first instance employing the proper burden of proof. [2] Although the majority opinion suggests that a psychiatrist stated that defendant had been stable on Depakote even without Haldol, Dr. Wolfe's testimony indicates that it was only defendant— hardly a reliable witness as to his own stability— who claimed he had been stable on Depakote. The record contains no expert evidence that he was in fact stable when receiving only Depakote. [3] While the trial court's finding of fact number sixteen recites some of Dr. Wolfe's testimony, it excludes her opinion that Fisher was psychotic and mentally unstable at and around the time of his confession. Her conclusion that defendant was competent to stand trial, rendered in February 2001 (and included in the finding of fact), is irrelevant to whether he was competent when he confessed in July 1999. State v. Reid, 38 N.C.App. 547, 248 S.E.2d 390 (1978) (expert testimony that a defendant was mentally capable to proceed to trial did not establish competency two to three months later), disc. review denied, 296 N.C. 588, 254 S.E.2d 31 (1979).

23 So.3d 817 (2009) Marvin Ray HOWARD and Jannie L. Driskell, Appellants, v. BOULANGER DRYWALL CORP., a Florida corporation, Appellee. No. 4D09-125. District Court of Appeal of Florida, Fourth District. December 2, 2009. *818 Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for appellants. David L. Matthews and Caroline M. Iovino of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC., Miami, for appellee. MAY, J. The plaintiffs appeal an adverse summary judgment in a negligence action against the defendant subcontractor for personal injuries resulting from a work-related fall. They argue the trial court erred in granting the defendant's motion for summary judgment. We disagree and affirm. The plaintiffs, an employee of a window subcontractor and his wife filed a two count amended complaint against another subcontractor, who installed safety railings at the construction site. Count I alleged that the defendant negligently installed a safety railing on the third floor of a building under construction. Count II sought loss of consortium. The employee fell from a third story balcony while working on a unit's sliding glass door track. Among other things, the amended complaint alleged that the defendant was "negligent for not installing and/or constructing the Safety Boot Rail System in accordance with specific and detailed instructions provided with this Safety Boot Rail System to assure that it functions as designed." The court held a hearing on the defendant's motion for summary judgment. The uncontested facts established that the defendant was responsible for installing the guardrails, but not responsible for selecting or paying for the type of material used or for maintaining the guardrail system. Multiple witnesses gave deposition testimony, which was admitted into evidence. The defendant also submitted an affidavit from an independent safety consultant, who, having viewed the guardrails, attested to their proper construction. At the conclusion of the hearing, the trial court indicated that it would grant the motion on the negligence issue. It subsequently entered an order. The court then granted rehearing and considered an affidavit from the plaintiffs' human factors and industrial safety expert. Following the rehearing, the court entered *819 a second order granting summary judgment. In it, the court stated: The record establishes that the design, maintenance and component parts of the safety rails were provided and directed by the general contractor, Alliance Construction. The record establishes no inferences that Boulanger had any responsibility other than the erection of the safety rails from the materials provided by the general contractor. The general contractor specifically provided chains to be used. There is no evidence or inference that Defendant Boulanger Drywall undertook any duty to do anything other than assembly. There is no evidence or inference of negligence in the assembly of the safety rail component parts as supplied by the general contractor. From this order, the plaintiffs now appeal. We review final summary judgments de novo. Laremont v. Absolute Health Care for Women of All Ages, P.A., 988 So.2d 735, 737 (Fla. 4th DCA 2008). Here, the defendant provided testimony from multiple sources establishing that the safety rail system was installed properly and in conformance with OSHA standards. The defendant did not choose the material used as a guardrail; rather, the general contractor provided the material for the guardrail. Still other testimony established that the general contractor and an independent safety company were responsible for the guardrail's maintenance, not the defendant. Therefore, the defendant "tender[ed] competent evidence in support of his motion." Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006). On rehearing, the plaintiffs submitted an affidavit from their human factors and industrial safety expert. The affidavit attested that "[t]he Safety Boot guardrail system was not properly installed" based upon his reference to the manufacturer's installation instructions depicting the required railings. Significantly, the affidavit was not based upon his personal knowledge. The expert had simply reviewed the installation booklet, viewed photographs of the chain-link guardrails, and provided his opinion. There was no proof that he ever examined the safety rail system or had any other personal knowledge regarding the system.[1]See Castro v. Brazeau, 873 So.2d 516, 517 (Fla. 4th DCA 2004). This is a classic example of why motions for summary judgment exist within the Florida Rules of Civil Procedure. The defendant established that it did not negligently install the guardrail system. The plaintiffs were unable to establish the existence of a genuine issue of material fact. The trial court correctly entered a summary judgment and we affirm. Affirmed. DAMOORGIAN and CIKLIN, JJ., concur. NOTES [1] And, there was more. Evidence revealed that another worker on the job may have taken the chains down, allowing the employee to fall while the chains were unattached. Alternatively, the fact that the employee traveled eighteen to twenty feet away from the balcony it suggested that he tripped over a hose or door frame, or perhaps became dizzy due to a health condition.

265 P.3d 493 (2011) 126 Haw. 24 BATTEY v. STATE. No. CAAP-11-0000156. Intermediate Court of Appeals of Hawai`i. November 30, 2011. Summary Dispositional Order Affirmed.

16-2711 Qiu v. Sessions BIA Loprest, IJ A205 890 367 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 9th day of April, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD C. WESLEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LI QING QIU, 14 Petitioner, 15 16 v. 16-2711 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jay Ho Lee, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Cindy S. Ferrier, 27 Assistant Director; Brendan P. 28 Hogan, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DENIED. 5 Petitioner Li Qing Qiu, a native and citizen of the People’s 6 Republic of China, seeks review of a July 21, 2016, decision 7 of the BIA affirming a May 21, 2015, decision of an Immigration 8 Judge (“IJ”) denying her application for asylum, withholding 9 of removal, and relief under the Convention Against Torture 10 (“CAT”). In re Li Qing Qiu, No. A205 890 367 (B.I.A. July 21, 11 2016), aff’g No. A205 890 367 (Immig. Ct. N.Y. City May 21, 12 2015). We assume the parties’ familiarity with the underlying 13 facts and procedural history in this case. 14 We have reviewed both the IJ’s and the BIA’s opinions “for 15 the sake of completeness.” Wangchuck v. Dep’t of Homeland 16 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 17 standards of review are well established. 8 U.S.C. 18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 19 Cir. 2009). 20 Absent past persecution, an applicant may establish 21 eligibility for asylum by demonstrating a well-founded fear of 22 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be 23 both subjectively credible and objectively reasonable, 2 1 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 2 To establish a well-founded fear, an applicant must show either 3 a reasonable possibility that she would be singled out for 4 persecution or that the country of removal has a pattern or 5 practice of persecuting individuals similarly situated to her. 6 8 C.F.R. § 1208.13(b)(2)(i), (iii). “Put simply, to establish 7 a well-founded fear of persecution in the absence of any 8 evidence of past persecution, an alien must make some showing 9 that authorities in [her] country of nationality are either 10 aware of [her] activities or likely to become aware of [her] 11 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d 12 Cir. 2008). Qiu failed to establish a well-founded fear of 13 persecution in China on account of her intentions to practice 14 her Catholic faith in an unregistered church and proselytize. 15 The country conditions evidence provides that tens of 16 millions of individuals practice in unregistered churches in 17 China, and that in some areas unsanctioned religious practices 18 are tolerated without interference. The evidence does not 19 discuss any incidents of persecution against Catholics for 20 proselytizing. Therefore, despite evidence of sporadic 21 arrests of religious practitioners and public proselytizers, 22 Qiu did not establish that Chinese officials are likely to 23 become aware of her religious practice (whether worshiping on 3 1 proselytizing) or a reasonable possibility that she would be 2 persecuted as a result. See 8 C.F.R. § 1208.13(b)(2)(i), 3 (iii); see also Hongsheng Leng, 528 F.3d at 142-43; In re A-M-, 4 23 I. & N. Dec. 737, 741 (B.I.A. 2005) (defining pattern or 5 practice as “systemic or pervasive” persecution of a group). 6 Accordingly, the agency did not err in concluding that Qiu 7 failed to establish a well-founded fear of persecution on 8 account of her religion. See 8 C.F.R. § 1208.13(b)(2)(i), 9 (iii); Hongsheng Leng, 528 F.3d at 142-43. That finding was 10 dispositive of asylum, withholding of removal, and CAT relief 11 given that all three claims were based on the same factual 12 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 13 2006). 14 For the foregoing reasons, the petition for review is 15 DENIED. As we have completed our review, any stay of removal 16 that the Court previously granted in this petition is VACATED, 17 and any pending motion for a stay of removal in this petition 18 is DISMISSED as moot. Any pending request for oral argument 19 in this petition is DENIED in accordance with Federal Rule of 20 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 21 34.1(b). 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 4 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 26 2000 TENTH CIRCUIT PATRICK FISHER Clerk BRENT B. GOLDEN, Plaintiff - Appellant, vs. No. 99-7124 (D.C. No. 98-CV-298-S) DON WATERS, Sheriff of Carter (E.D. Okla.) County Detention a/k/a Don Water, Defendant - Appellee. ORDER AND JUDGMENT * Before BRORBY, KELLY, and MURPHY, Circuit Judges. ** Plaintiff-Appellant Brent Golden, an inmate appearing pro se, appeals from the dismissal of his prisoner civil rights claim, 42 U.S.C. § 1983. Mr. Golden was stabbed in the neck with a pencil by another inmate, James Thompson, during a prison fight. He brought the instant case against the prison warden claiming a violation of the Eighth Amendment. The district court dismissed the claim as * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument. without merit under 28 U.S.C. § 1915(e)(2), although the judge considered summary judgment affidavit evidence. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm, treating the case as an appeal from the grant of summary judgment. In order to prevail on an Eighth Amendment claim against the warden for injuries caused by another inmate, Mr. Golden must show that prison officials acted with “deliberate indifference” for his health and safety. See Lopez v. LeMaster, 172 F.3d 756, 760 (10th Cir. 1999); see also Barrie v. Grand County, Utah, 119 F.3d 862, 868-69 (10th Cir. 1997) (applying this standard to pre-trial detainees). This test requires proof that the prison official subjectively knew of and disregarded “an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Berry v. Muskogee, 900 F.2d 1489, 1496 (10th Cir. 1990) (official must disregard a known or obvious risk). As stated in an affidavit by Defendant Waters, it was the practice of the prison to segregate inmates who posed a threat to other prisoners. Prior to plaintiff’s injury, Mr. Thompson had not threatened or assaulted any of the other prisoners. Therefore, Defendant Waters, who was not present at the time of the fight, did not consider him to be a threat to other prisoners. After the fight, both Mr. Golden and Mr. Thompson were placed in lockdown. Because Mr. Golden failed to demonstrate any deliberate indifference on the part of Defendant Waters, -2- the district court correctly dismissed his claim. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -3- 

499 S.E.2d 56 (1998) 269 Ga. 370 The STATE v. JOHNSON. No. S97G1681. Supreme Court of Georgia. April 13, 1998. *58 Stacey K. Hydrick, Asst. Atty. Gen., Department of Law, Atlanta, for the State. J. Converse Bright, Valdosta, for Carolene Johnson. *57 HUNSTEIN, Justice. We granted certiorari in this case to consider the construction the Court of Appeals gave to OCGA § 16-10-20 in State v. Johnson, 226 Ga.App. 836, 487 S.E.2d 677 (1997). For the following reasons we reverse that court. Carolene Johnson was indicted in Fulton County and charged, in 44 counts, with the offense of false statement in a matter within the jurisdiction of a department of the State. OCGA § 16-10-20. That statute sets forth three ways to commit the crime of false statement: (1) when a person knowingly and willfully falsifies a material fact; (2) when a person makes a false, fictitious, or fraudulent statement or representation; or (3) when a person "makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry." Id. This appeal involves the third way of violating OCGA § 16-10-20. It was alleged that Johnson, while operating a school in Lanier County that provided education and intervention programs for people convicted of driving under the influence, falsified the certificates of completion and the class rosters for 22 persons so as to indicate they attended and completed required programs when they had not done so. However, Johnson was not indicted for making the false documents; rather, the 44 counts of the indictment specifically charged Johnson with "knowingly and willfully us[ing ] a false document, knowing the same to contain a false statement, by causing the document to be submitted" either to the Department of Public Safety (as to the 22 counts regarding the certificates of completion[1]) or to the Department of Human Resources (as to the 22 counts regarding the class rosters[2]). 1. We agree with the State that the Court of Appeals erred when it held that a charge of "using" a false document under OCGA § 16-10-20 applies only to a person who uses a false document that was prepared by another. State v. Johnson, supra at 837, 487 S.E.2d 677. While the Court of Appeals correctly noted that the person who makes a false document containing the false statement has already violated the statute, id., nothing in the plain language of OCGA § 16-10-20 restricts the State to prosecuting the maker solely for the falsification itself, when the maker also violates the statute by using the falsified document.[3] [S]tatutes should be read according to the natural and most obvious import of the *59 language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation, [cit.], and this principle is particularly compelling when interpreting criminal statutes. [Cit.] State v. Luster, 204 Ga.App. 156, 158(1)(a)(ii), 419 S.E.2d 32 (1992). Even construing OCGA § 16-10-20 strictly against the State, see generally Jowers v. State, 225 Ga.App. 809(2), 484 S.E.2d 803 (1997), the language therein unambiguously prohibits an individual from making or using any false writing or document, without regard to the identity of the individual who initially made or subsequently used the false document. Because there is no limitation placed on the prohibited conduct of "making or using" false documents in OCGA § 16-10-20, the statutory language does not support the Court of Appeals' holding that prosecution for use of a false document is limited to those situations in which an accused uses false documents prepared by another. State v. Johnson, supra at 837, 487 S.E.2d 677. Where statutory language is plain and unequivocal and leads to no absurd or impracticable consequence, the court has no authority to place a different construction upon it. See generally Holden v. State, 187 Ga.App. 597(2), 370 S.E.2d 847 (1988). It thus follows that under OCGA § 16-10-20, all individuals who use a false writing or document, knowing it to contain any false, fictitious or fraudulent statement or entry, in any matter within the jurisdiction of the State or its political subdivisions, may be charged with violating the statute. 2. We hold that venue for the prosecution of OCGA § 16-10-20 for the use of a false document is proper in the county in which the document was submitted for use, even if the person charged with using the false document made the document in another county. As was noted in State v. Barber, 193 Ga.App. 397, 398, 388 S.E.2d 350 (1989), "(studying) the key verbs which define the criminal offense in the statute is helpful in determining venue in doubtful cases." (Punctuation and citations omitted.) In OCGA § 16-10-20, the key distinction is whether an indictee has been charged with "making" or with "using" the document. Where the criminal act involves the making of a false document, the essence of the crime is the act of falsification itself, which is an act separate and distinct from submitting, sending or using the falsified document. Hence, in State v. Barber, supra, venue for the falsification of medical assistance documents under OCGA § 49-4-146.1(b)(2) was properly found to be in the county where the falsification occurred. See also Spray v. State, 223 Ga.App. 154(2), 476 S.E.2d 878 (1996) (venue for charge of making a false writing properly in county where false document was made; "[s]ending the [falsified] form to [another county] did not make appellant's false attestations any more false or add in any way to the offense as described in the statute." Id. at 157(2).), 476 S.E.2d 878. Where the criminal act involves the use of a false document, the essence of the crime is the act of submitting, presenting or otherwise employing the false document in any matter within the jurisdiction of the State or political subdivision, an act which is separate and distinct from the act of falsification. Accord State v. Barber, 260 Ga. 269, 394 S.E.2d 353 (1990), where, in contrast to venue for the falsification of medical assistance benefits under OCGA § 49-4-146.1(b)(2), it was recognized that venue for the obtaining of medical assistance benefits under (b)(1) of that statute would be "the county where a false report was submitted and processed in an attempt to obtain medical assistance." Id., Weltner, J., concurring. 3. Contrary to the Court of Appeals' holding, the State here could not be deemed to be "manufacturing" venue in an improper county when it indicted Johnson on a charge of false statement by means of the use of a false writing or document since the State charged Johnson in the very county where the certificates and class rosters were required by statute to be used. Finally, in light of the provisions of OCGA §§ 16-2-20 (party to a crime) and 16-2-21 (prosecution of party who did not directly commit the crime), we find no merit in Johnson's argument that dismissal of the indictment as to the 22 counts involving her alleged use of the false certificates should be upheld on the basis that she herself did not submit the certificates but only provided them to the truant individuals who then physically submitted *60 them to the DPS. "Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto." Id. It is not necessary that the State allege §§ 16-2-20 and 16-2-21 in the indictment. State v. Military Circle Pet Center, 257 Ga. 388, 360 S.E.2d 248 (1987); see also Jenkins v. State, 172 Ga.App. 715(4), 324 S.E.2d 491 (1984). Accordingly, we reverse the Court of Appeals' affirmance of the trial court's grant of Johnson's plea to the jurisdiction and dismissal of the indictment. Judgment reversed. All the Justices concur. NOTES [1] The certificates of completion must be submitted to DPS in order for individuals convicted of DUI to obtain reinstatement of their driver's licenses. OCGA § 40-5-63(a)(1). [2] Class rosters are among the documents which schools providing DUI education/intervention programs are required to submit to DHR. See OCGA § 40-5-83(e); Rules and Regulations of the State of Georgia, Vol. V, Rules of Department of Human Resources, Rule 290-4-10-.14(4)(a). [3] We are not here faced with, and intimate no opinion on, whether an individual can be convicted under OCGA § 16-10-20 for both making and using the same false document. In this case, Johnson is charged only with using the false documents she made.

57 Ill. App.2d 452 (1965) 206 N.E.2d 727 People of the State of Illinois, Defendant in Error, v. Larry Wheeler, Plaintiff in Error. Gen. No. 49,493. Illinois Appellate Court — First District, First Division. April 12, 1965. Rehearing denied May 10, 1965. *453 Jay M. Smyser, of Chicago, for plaintiff in error. Daniel P. Ward, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph v. Roddy, Assistant State's Attorneys, of counsel), for defendant in error. MR. PRESIDING JUSTICE BURMAN delivered the opinion of the court. *454 This is an appeal from the conviction of Larry Wheeler for the murder of James Boleyn. The defendant was tried before a jury which found him guilty as charged in the indictment and fixed his sentence at imprisonment in the Illinois State Penitentiary for a term of twenty-five years. The trial court denied the defendant's post-trial motions and pronounced sentence. The Illinois Supreme Court issued its writ of error, appointed counsel to represent the indigent defendant in connection with the writ and subsequently transferred the appeal to this court. The defendant presents the following charges of error: (1) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (2) that the court improperly excluded certain testimony concerning the decedent's reputation for violence; (3) that the court improperly gave certain of the State's instructions and improperly refused to give the defendant's instruction on involuntary manslaughter. The defendant asks this court, on the basis of these errors, to reverse the conviction and discharge the defendant or to find the defendant guilty of manslaughter and order him to be discharged because he has already served a sufficient penalty for that crime, or to grant a new trial to determine the question of the defendant's guilt or innocence of manslaughter. Because the evidence is largely conflicting, we summarize the pertinent testimony of each of the principal witnesses. The State's chief witness, John Whitsett, testified that on the evening of November 1, 1959, when the events in question took place, he and the decedent were tending bar at Bill McGee's Tavern, located at 1764 North Larabee in Chicago. The defendant and his girl friend came into the tavern at about 8:30 or 9:00 p.m. and the decedent and Whitsett served them drinks until shortly before midnight, when the defendant's girl friend knocked an empty bottle *455 off the bar. As he picked up the bottle, Whitsett observed the decedent slapping the defendant with his hands. After several customers separated the decedent and defendant, the defendant and his girl friend left the tavern on the decedent's orders. In Whitsett's opinion, the defendant was not intoxicated at that time. About two hours later, the defendant and his girl friend returned to the tavern. As the defendant walked toward the back of the bar, the decedent came out from behind the bar toward the defendant carrying an eighteen-inch piece of insulated electrical cable which was ordinarily kept behind the bar. As the decedent approached him, the defendant said, "Don't hit me. I didn't come back to cause any trouble. I just came back to talk to you." Though Whitsett did not hear what else was said, he saw the decedent and defendant talk for a while and then shake hands. Then the defendant and his girl friend sat at the bar and the decedent ordered Whitsett to serve them, which he did. After a few minutes, however, Whitsett saw the decedent hitting the defendant on the side of the head with his fist. There was a scuffle and the decedent took the defendant by the neck and the seat of his pants, pushed him to the door and threw him out. Then the decedent ordered the defendant's girl friend to leave. Whitsett said that at the time of the scuffle, the decedent had nothing in his hands. He testified further that as the decedent was returning to the bar he (Whitsett) heard a voice outside the tavern; he could not hear what was said. The decedent then ran out the door and Whitsett heard four or five shots immediately thereafter. When Whitsett went outside he found the decedent lying on the sidewalk just outside the door and he saw a man, who he believed to be the defendant, running away carrying a gun. Whitsett said that he accompanied a police officer, Roland Harvey, *456 in search of the defendant whom he had known for seventeen months. They went to Tennessee Buck's Tavern, where only the officer went inside; after the officer came out again, the bartender came out and gave the officer a gun. Some time later, Whitsett saw the defendant and observed that there was blood running down his head and that there were blood stains on his shirt. Martin Curran, who was called by the State, testified that he went to Bill McGee's tavern at about 11:00 or 11:30 on the night in question. He said that the decedent "booted" the defendant out of the tavern with his foot and told him to stay out and not come back. Curran said he was standing at the bar at the time and after this incident he turned back to the bar to order a drink when he heard shots. He looked out the tavern window and saw a man with a gun. He went out the tavern door, saw the decedent lying on the ground two or three feet from the door; Curran saw nothing in the decedent's hand. Curran said that he saw a man running away and that he unsuccessfully chased him. On recross-examination, Curran further testified that his visit to the tavern on the night in question was the third occasion on which he had been in the tavern. When he was asked if he had ever seen the decedent put a man out of the tavern like he did on the night in question, the State objected on the ground that the defendant could only ask about the decedent's reputation; the court sustained the objection and the defendant withdrew the question. Curran was then asked if the decedent was in the habit of putting people out of the tavern; the State objected and the court sustained the objection. The questioning proceeded as follows: *457 Q. Do you know people in the community generally where this tavern is located? ... A. Not offhand, sir. Q. Are you acquainted at all with other people who frequent this tavern you went into? A. Just maybe a couple of my friends that I have went in with a couple of times or just by myself. Q. Based on this acquaintanceship, do you know the deceased's reputation as to his peacefulness — At this point the State objected on the ground that the foundation for the witness' testimony as to the decedent's reputation was insufficient. The court sustained the objection and the defendant withdrew the question. Police Officer Harvey, who was also called by the State, said that he arrived at the tavern about 2:30 in the morning. He found the decedent lying on the sidewalk. After speaking to the other bartender, Whitsett, they left the scene to search for the defendant. They first went to an apartment building where Whitsett said the defendant was living, but since the building was large and they did not know which apartment was the defendant's, they next proceeded to Tennessee Buck's Tavern where they had a conversation with the bartender, Gordon Williams. In the company of Whitsett and Williams, the officer went back to the defendant's apartment building where he saw a man walking out of the building. The officer called out "Larry" and when the man, whom he identified as the defendant, answered "yes," he put him under arrest. The officer further testified that he had obtained a gun at Tennessee Buck's Tavern and when he asked the defendant "if this was the gun he had left at Tennessee Buck's" *458 the defendant admitted that it was. The officer testified: "I then asked him why did he shoot James Boleyn. He says `I don't know why I did.'" Officer Harvey said that the gun smelled of smoke and that it contained six empty cartridges which he removed from the gun. Although, on cross-examination, he said that he ascertained that the defendant had been drinking, in his opinion, the defendant was not intoxicated. Another police officer, Charles Knapp, was called by the State. He testified that when the defendant was brought into the police station, he noticed a slight laceration on his head and several drops of blood on his shirt. Upon searching the person of the defendant, the officer found a sales slip showing that the defendant had purchased a gun on August 25, 1959, for $25.88. A comparison of the serial numbers on the slip and on the gun revealed that they were identical. Joseph Edward Campbell, the physician who performed the autopsy on the body of the decedent, testified that the decedent's body had four bullet wounds and that in his opinion internal bleeding resulting from the bullet wounds caused the decedent's death. The doctor also testified that an analysis of the decedent's blood revealed that at the time of death the decedent was intoxicated. The defendant took the stand as the only witness for his defense. He stated that he and his girl friend went to McGee's Tavern about six o'clock on the evening in question. He said that he was drinking beer and that he had no more than a couple of shots of whiskey. About midnight he heard something fall, but did not know what it was at the time. He testified that the decedent Boleyn, whom he had seen before in the neighborhood, came around the bar with what the defendant called a "blackjack" and beat him with it. Then the defendant and his girl friend left the tavern *459 and went to another bar where they had only one drink because the defendant was short of money. The defendant testified further that he returned to McGee's Tavern about two o'clock in the morning. He brought from home a gun on which he intended to borrow money from the owner of the tavern whom he had known for two years. He also intended to apologize to the decedent because he did not want any trouble. He said that he wanted to apologize because the decedent "was noted in the neighborhood, all the time beating up on people, and I was scared of him." The defendant testified that when he returned to McGee's Tavern, the decedent "came around the bar with this blackjack and I told him, I says, I put my hands up like that, I did not want him beating me there, and I told him I just wanted to make friends with him and didn't want no trouble. And he shook hands with me there and he said it was his fault and he thought I had throwed the bottle." The defendant said that he then ordered a drink and that when he asked the decedent whether the owner, McGee, was still there, the decedent jumped up, started swearing at the defendant and beat him over the head with the "blackjack," which the defendant described as a cable wrapped in tape. He said that when the decedent beat him out of the tavern door, "I was just lightheaded from the beating, and I was nervous and, well, I just turned around and started shooting. I couldn't see what I was shooting at, I was nervous." He said that he was scared then and ran. On cross-examination, the defendant testified that he had borrowed money from McGee on several previous occasions and that he had put the bill of sale for the gun in his pocket because he was going to sell it to McGee. The defendant admitted that the gun, which was received in evidence, was his and that when he *460 picked up the gun at home he knew that it was loaded with six bullets. In seeking reversal of his conviction, the defendant argues that the State did not produce sufficient evidence to establish beyond a reasonable doubt that the defendant was guilty of murder as charged in the indictment. Specifically the defendant argues that proof is lacking on the essential element of malice aforethought and that, in fact, the evidence proves that the defendant acted in self-defense. Furthermore, the defendant argues that there are also serious questions about the sufficiency of the evidence identifying the defendant as the person who shot the decedent and identifying the defendant's gun as the murder weapon. When all the evidence in the case is considered we are satisfied, as were the jury and judge who saw and heard the witnesses, that the evidence did prove that the defendant was guilty as charged beyond a reasonable doubt. The evidence shows that the defendant left McGee's Tavern after an altercation with the decedent; that the defendant went home and there obtained a gun which he knew was loaded; that some two hours after the first altercation, the defendant returned to the tavern carrying the loaded gun; that upon his return the defendant was beaten by the decedent who forced the defendant out of the tavern; that the decedent returned to the tavern to order the defendant's girl friend to leave; that the decedent, upon hearing a voice outside the tavern, ran out the front door and was immediately shot four times just outside the tavern door. The defendant admitted firing a gun outside the tavern and then fleeing. Whitsett identified the defendant as the man who was fleeing the scene. The uncontradicted evidence further shows that shortly after the shooting the police received a gun which the defendant admitted was his and that six bullets had been fired recently from the *461 gun. The jury could reasonably have disbelieved the defendant's story that the decedent continued to beat him with a "blackjack" outside the tavern. Indeed the evidence showed that immediately before the shooting, the decedent had returned to the tavern to order the defendant's girl friend to leave. The evidence of two witnesses indicates that during the time just before the shooting, the decedent was not carrying the so-called "blackjack." No "blackjack" was found in the vicinity of the decedent's body and Whitsett testified that on the morning following the shooting, he found the tape-wrapped cable in its usual place inside the bar. Furthermore, the jury could reasonably have disbelieved the defendant's story that he brought the gun back to the tavern in order to obtain a loan on it from McGee. The defendant admitted that McGee had loaned him money before and there was nothing to indicate that some collateral, such as a gun, was required to obtain the money on those previous occasions. [1] Hence the jury might reasonably conclude beyond a reasonable doubt that the defendant waited for the decedent to come outside the tavern and then shot him out of malice and not in self-defense. The cases cited by the defendant do not require a different result. The case which is primarily relied on by the defendant, People v. Motuzas, 352 Ill. 340, 185 NE 614, is not controlling. There the court concluded that the decedent and another person, acting according to a previously determined program between them, assaulted the defendant; that the decedent was carrying a weapon at the time; and that these circumstances induced in the defendant a reasonable and well founded belief that he was actually in danger of losing his life or of receiving great bodily harm. As we have already indicated the jury in the present case was justified in making findings directly opposite to those *462 which the court in Motuzas found to be reasonable. The other cases cited by the defendant are also inapplicable here. [2] The defendant next contends that the court erred in excluding evidence of the decedent's reputation for violence, which evidence would tend to prove the defendant's fear of the decedent thereby supporting his justification of self-defense. As indicated above, the defendant's counsel sought to elicit from Martin Curran, a customer who was in McGee's Tavern on the night in question, evidence concerning the decedent's reputation for peacefulness. Since Curran testified that he was not acquainted with the people in the community generally and had been in the tavern only "a couple of times," the court, on the proper objection by the State, excluded the testimony because of the lack of a sufficient foundation. We believe that the court committed no error in so ruling. [3] Evidence of the decedent's violent disposition and of his prior threats or misconduct is admissible in a murder case where the defendant relies on self-defense and the preliminary testimony establishes an act of aggression by the decedent. People v. Adams, 25 Ill.2d 568, 185 NE2d 676. However such testimony should not be heard unless the witness had an adequate knowledge of the decedent and those in the community who are acquainted with him. As the Supreme Court said in People v. Moretti, 6 Ill.2d 494, 129 NE2d 709: This court, on numerous occasions, has held that reputation witnesses must be shown to have adequate knowledge of the person queried about and that evidence of reputation, to be admissible, must be based upon contact with the subject's neighbors and associates rather than upon the personal opinion of the witness. (Citing cases.) (6 Ill2d at 523, 524) *463 We believe that the court properly excluded Curran's testimony concerning the decedent's reputation for peacefulness because Curran's own testimony showed that he did not have sufficient knowledge of the decedent and his neighbors and associates on which to base his testimony concerning the decedent's reputation for peacefulness. [4, 5] The defendant next contends that the court erred in giving an instruction on intoxication which stated "that drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness, be occasioned by the fraud, connivance, or force of some other person...." The defendant argues that this instruction is inapplicable since there was no contention that anyone had contributed to the defendant's intoxication. We find no error, however, in giving this instruction which pertains to the State's theory of the case. The defendant principally contends that by giving only this instruction, the jury was improperly led to believe that this instruction covered the entire subject of the effect of the defendant's intoxication. The defendant argues that the court erred in not giving an additional instruction that the defendant's drunkenness rendered him incapable of forming the intent necessary to prove murder. We cannot agree. The record does not show that the defendant offered such an instruction and he does not contend here that he did so. Under these circumstances, the trial court was under no duty to give the instruction on its own motion and the defendant's objection was thereby waived. People v. Carvin, 20 Ill.2d 32, 169 NE2d 260. [6, 7] The defendant also contends that the court erred in giving an instruction which informed the jury in essence that, even though they believed that the decedent made the first attack on the defendant, he was not acting in self-defense, if at the time of the *464 killing he was not in fear for his life or bodily safety. However, since this objection was not raised in the defendant's post trial motion, it is deemed to be waived. A party is limited to the errors alleged in the written motion and all other errors are waived. People v. Hunter, 23 Ill.2d 177, 177 NE2d 138. [8] Finally the defendant contends that it was error to refuse his tendered instruction on voluntary manslaughter. Voluntary manslaughter was defined by the statute, which was applicable at the time of this occurrence, as follows: In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given, and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder. (Ill Rev Stats 1959, c 38, § 362.) It is well established that where evidence in a murder prosecution would permit the jury to find the defendant guilty of manslaughter rather than murder, it is reversible error to refuse to give an instruction on manslaughter. People v. Canada, 26 Ill.2d 491, 187 NE2d 243. On the other hand, if there is no evidence upon which a verdict of manslaughter reasonably can be based, such an instruction should not be given. People v. Burnett, 27 Ill.2d 510, 190 NE2d 338; People v. Dukes, 19 Ill.2d 532, 169 NE2d 84. *465 [9] The defendant argues that the Canada case is on all fours with the case at bar. We believe, however, that in that case, unlike the present case, there was evidence which would permit the jury reasonably to find the defendant guilty of voluntary manslaughter. Here the evidence is clear that the decedent was not beating the defendant nor carrying a weapon at the time he was shot, but rather that he threw the defendant out of the tavern, returned to the tavern to order the defendant's girl friend to leave and only then was shot as he was going out of the tavern again. On such evidence, the jury could not reasonably have found the necessary elements of voluntary manslaughter as provided by statute. Moreover, it is apparent from the sentence they meted out that the jury took into consideration the previous encounter between the decedent and the defendant. Since the evidence establishes the defendant's guilt beyond all reasonable doubt and since we believe there were no errors in the trial, the judgment should be affirmed. Judgment affirmed. MURPHY and KLUCZYNSKI, JJ., concur.

249 P.3d 644 (2011) Christopher J.B. GRAY and Julie Lassonde-Gray, Appellants, v. BOURGETTE CONSTRUCTION, LLC, a Washington Limited Liability Company, Respondent. No. 64432-7-I. Court of Appeals of Washington, Division 1. February 28, 2011. *645 Dean Robert Sargent, Tarl Raud Oliason, Dainen N. Penta, McKisson Sargent & Olison PS, Seattle, WA, for Appellants. Bridget Bourgette Shaw, Shaw Law Group PLLC, Seattle, WA, for Respondent. LAU, J. ¶ 1 Prior to filing a construction lien, a lien claimant is required by RCW 60.04.031 to provide written notice of right to claim a lien to the property owner. But an exception applies to a lien claimant who contracts directly with the "owner or the owner's common law agent." RCW 60.04.031(2)(a). RCW 60.04.081's summary hearing procedure authorizes an owner who believes the lien is "frivolous and made without reasonable cause" to seek a court order releasing the lien. Homeowners Julie Lassonde-Gray and Christopher Gray (the Grays), allege that Bourgette Construction, LLC's (Bourgette) lien claim was frivolous based on Bourgette's failure to provide them notice of right *646 to claim the lien. Bourgette contends no notice is required based on the "common law agent" notice exception since he contracted directly with the Grays' common law agent to perform the remodeling work on the Grays' home. Because this lien dispute presents debatable issues of law and fact, it does not satisfy the requirements of frivolous and without reasonable cause justifying its release in the summary procedure. We affirm the trial court's order denying the Grays' lien release motion and awarding fees to Bourgette. FACTS ¶ 2 In the spring of 2008, the Grays hired Geoffrey James dba Wescott Development, LLC (James) to develop and manage the major remodel of their Mercer Island home (the project). Neither James nor Wescott Development is a Washington licensed contractor. James contracted with Bourgette to furnish labor, services, materials, and equipment for the project.[1] Bourgette furnished services and materials for the project from April 1, 2008, until March 15, 2009.[2] ¶ 3 On April 14 and 15, Bourgette obtained two permits from the city of Mercer Island for extensive rot repair and sheetrock replacement on the project. Five other subcontractors also obtained permits from the city to perform work on the project such as plumbing and electrical. When work began inside the house in May 2008, the Grays moved out. ¶ 4 In total, Bourgette invoiced James $294,631.35 for its work on the project. James, however, paid Bourgette only $178,146.86. This deficiency left Bourgette unable to pay subcontractors that it hired for the project. The following subcontractors claim moneys owed for their work: State Roofing $14,006.50[3] Todd Gardiner Landscaping Services $ 4,126.66 Joel Wood Hardwood Flooring $ 5,750.00 B & J Plumbing $11,072.45 Land Surveyors $ 1,750.00 ¶ 5 According to James and Bourgette, the Grays knew that Bourgette and other contractors were working on the project. On June 2, 2009, Bourgette filed and recorded a lien for $114,263 and notified the Grays of the lien by certified mail. The claim of lien identified the lien claimant as "Bourgette Construction, LLC" and the "person indebted to the claimant" as "Geoffrey W. James dba Wescott Development." Bourgette did not provide the Grays a notice of right to claim a lien. ¶ 6 The Grays claimed the lien was frivolous because Bourgette never gave them notice of right to claim a lien as required by RCW 60.04.031(1). The Grays demanded that Bourgette release the lien. Bourgette refused, asserting that under RCW 60.04.031(3)(a)'s common law agent exception, no notice was required because he contracted directly with the Grays' common law agent— Geoffrey James dba Wescott Development. ¶ 7 The Grays then filed a motion and supporting declarations to show cause why the lien should not be released as frivolous and without reasonable cause under RCW 60.04.081. The Grays argued (1) James contracted with Bourgette without their knowledge or consent, (2) James had no authority to act as their "attorney in fact or as a general agent for any purpose," (3) Bourgette failed to provide the written notice of its right to claim a lien, and (4) James is neither a "common law agent" nor "construction agent." Br. of Appellant, at 2, 8. ¶ 8 Bourgette and James submitted response declarations. Bourgette's declaration explained that he contracted with James to perform work on the project in the spring of 2008[4] He performed work on the project from April 1, 2008 until March 15, 2009. He further explained, At all times, based on my dealings and communications with James and directly with the Grays, it was my belief and understanding that James had actual authority *647 to act as the Grays' agent in managing the project.... . . . . ... [T]he Grays were aware of Bourgette Construction's extensive work at the project. Throughout the project I met with the Grays numerous times. We discussed the status of the project and specifics about the project. ¶ 9 Attached to Bourgette's declaration is e-mail correspondence between James and Christopher Gray, "confirming the Grays' knowledge of Bourgette Construction's work at the Property" and the invoices and permits related to the project. Bourgette's declaration also described the payments he received from James, the balance owed, and the subcontractors he hired for the project that remained unpaid. ¶ 10 James' declaration stated (1) he contracted with the Grays to develop and manage the major remodel of the Grays' home,[5] (2) he had actual authority as the Grays' agent to manage the project and contract directly with contractors to complete the project, (3) with the Grays' knowledge and authorization, he contracted with Bourgette to perform extensive work on the project, and (4) neither he nor his company, Wescott Development was a licensed contractor. ¶ 11 At a show cause hearing, the court entered a written order denying the Grays' motion and awarding fees to Bourgette. The court reasoned, The case of [S.D.] Deacon [Corp.] v. Gaston Brothers [Excavating, Inc., 150 Wash. App. 87, 89, 206 P.3d 689 (2009)] does caution trial courts that RCW 60.04.081 is only to be invoked when the lien is so devoid of merit that the lien has no possibility of succeeding.... ... And it's pretty easy for me to determine once I got through these materials that it's inappropriate to apply [RCW] 60.04.081 with respect to your argument that they failed to give a notice of claim of right to a lien in a case in which there was this middleman agent and in a case which there was so much contact between the contractor and the—and the project or the landowner. Report of Proceedings (Oct. 13, 2009) at 2526. ¶ 12 The Grays appeal.[6] DISCUSSION ¶ 13 The Grays argue that Bourgette was not hired by a property owner, a licensed contractor, or a common law agent. Therefore, he was required to provide the Grays with a written notice of right to claim a lien as a statutory prerequisite to recording the lien. RCW 60.04.011(1), .031(3). The Grays further argue that because the failure to give such notice makes the lien "frivolous and made without reasonable cause" within the meaning of RCW 60.04.081, the trial court erred by not releasing the lien. In essence, the Grays assert Bourgette failed to show he complied with statutory notice requirements or an exception to the notice requirement applied.[7] ¶ 14 Bourgette responds that the frivolous lien proceeding is limited in scope. He argues that the factual dispute over whether James was the Grays' common law agent— an exception to the notice requirement under RCW 60.04.031(3)(a)—precluded the lien's disposition in the summary proceeding. ¶ 15 Because the trial court did not resolve factual disputes, our review is de novo. W.R.P. Lake Union Ltd. P'ship v. Exterior Servs., Inc., 85 Wash.App. 744, 750, 934 P.2d 722 (1997). A court may make factual determinations in the summary proceeding. W.R.P., 85 Wash.App. at 750, 934 P.2d 722. But as we cautioned recently, "[t]rial courts should take care not to let the frivolous lien statute be misused to deprive *648 contractors of their right to a trial on a lien claim." S.D. Deacon, 150 Wash.App. at 89, 206 P.3d 689. Even if a lien is ultimately found to be invalid, it is frivolous "only if it presents no debatable issues and is so devoid of merit that it has no possibility of succeeding." Intermountain Elec., Inc. v. G-A-T Bros. Const., Inc., 115 Wash.App. 384, 394, 62 P.3d 548 (2003). Every frivolous lien is invalid, but not every invalid lien is frivolous. Intermountain, 115 Wash.App. at 394, 62 P.3d 548. A lien might be clearly meritless when it is not recorded by a proper party, not properly served, or not in compliance with the statutory content requirements. S.D. Deacon, 150 Wash.App. at 95, 206 P.3d 689. ¶ 16 The party seeking release of the lien in the summary proceeding bears the burden of proving that the lien was frivolous and made without reasonable cause. W.R.P., 85 Wash.App. at 751, 934 P.2d 722. The statute does not define "frivolous and made without reasonable cause." RCW 60.04.011. To be frivolous, a lien must be improperly filed beyond legitimate dispute. W.R.P., 85 Wash.App. at 752, 934 P.2d 722. As the party seeking release of the lien in this summary proceeding, the Grays bear the initial burden to provide a reason why the lien is frivolous and without reasonable cause. W.R.P., 85 Wash.App. at 751, 934 P.2d 722. Once the Grays provide a reason, the burden then shifts to Bourgette to make a prima facie showing that the lien is not frivolous. W.R.P., 85 Wash.App. at 752, 934 P.2d 722. Once Bourgette makes that prima facie showing, the burden shifts back to the Grays to prove the lien was frivolous. The ultimate burden to prove that the lien is frivolous at a show cause hearing to release the lien remains with the Grays—the party challenging the lien. W.R.P., 85 Wash.App. at 752, 934 P.2d 722. ¶ 17 Here, the parties' dispute centers on whether James was the Grays' "common law agent." "Notices of a right to claim a lien shall not be required of: (a) Persons who contract directly with the owner or the owner's common law agent." RCW 60.04.031(2)(a) (emphasis added). The Grays asserted that the lien was frivolous because Bourgette did not comply with the statutory notice requirement under RCW 60.04.031(1), and they submitted declarations claiming James lacked any authority to act as their agent. Bourgette then submitted opposing declarations supporting his argument that no notice was required because he contracted directly with the Grays' common law agent— Geoffrey James dba Wescott Development. ¶ 18 Bourgette's declaration explained that he contracted directly with James to perform extensive remodeling work on the Grays' property. From April 2008 until March 2009, he furnished labor, professional services, materials, and equipment for the project. He also explained that he met with the Grays numerous times to discuss and update them about the project. And based on dealings and communications with both James and the Grays, he understood that James had actual authority (as the Grays agent) to manage their project. Bourgette attached to the declaration (1) billing invoices dated April 6, 2008 to March 17, 2009, (2) bank statements showing monies paid by James for Bourgette's project work, (3) permits obtained for the project, and (4) e-mail correspondence between James and Christopher Gray showing Gray's knowledge of Bourgette's work on the project. Bourgette also testified that he provided significant labor and services for the project for which he has received only partial payment. ¶ 19 Like Bourgette's declaration, James's declaration explained that he contracted with the Grays to develop and manage their project. He also described his actual authority as the Grays' agent to contract with and pay others to accomplish the project. He described contracting with the project architect who designed the remodel, the window company that replaced the windows, and Bourgette. ¶ 20 Because Bourgette made a prima facie showing that the lien is not frivolous—the common law agent[8] exception applies—the *649 burden shifts back to the Grays to prove the lien is frivolous.[9] The Grays fail to demonstrate the lien is frivolous. "[A] determination that any given statutory requirement has not been satisfied [does not] necessarily mean[ ] the lien filing was frivolous." W.R.P., 85 Wash.App. at 752, 934 P.2d 722. "A case is not necessarily frivolous because a party ultimately loses on a factual or legal ground. Likewise, for a lien to be frivolous, the decision that the lien was improperly filed must be clear and beyond legitimate dispute." W.R.P., 85 Wash.App. at 752, 934 P.2d 722. Under the circumstances here, the parties' dispute over whether James is the Grays' common law agent is not the type of dispute that can be resolved in a summary proceeding. The record shows each side had evidence supporting its position. And "the more complex the underlying contractual relationship, the less appropriate will it be to conclude that a particular lien filing is frivolous." S.D. Deacon, 150 Wash.App. at 95, 206 P.3d 689. Because this lien dispute presents debatable issues of law and fact, it does not satisfy the requirements of "frivolous and without reasonable cause" justifying its release in this summary proceeding.[10] Attorney Fees ¶ 21 The Grays also assign error to the trial court's decision to award fees to Bourgette in the summary procedure. RCW 60.04.081(4) provides in relevant part, "If the court determines that the lien is not frivolous and was made with reasonable cause, and is not clearly excessive, the court shall issue an order so stating and awarding costs and reasonable attorneys' fees to the lien claimant to be paid by the applicant." Because the trial court did not err in denying the motion to release the lien, it properly awarded fees to Bourgette. ¶ 22 Bourgette requests attorney fees on appeal. "[I]n general, where a prevailing party is entitled to attorney fees below, they are entitled to attorney fees if they prevail on appeal." Sharbono v. Universal Underwriters Ins. Co., 139 Wash.App. 383, 423, 161 P.3d 406 (2007). The request is granted subject to compliance with RAP 18.1(d). CONCLUSION ¶ 23 At the show cause hearing, the Grays had the ultimate burden of proof to show that the lien was frivolous and made without reasonable cause. On this record, the Grays did not show beyond legitimate dispute that they were entitled to notice of right to claim a lien and that James was not their common law agent. Accordingly, we affirm the trial court's order denying motion to release lien and the fee award to Bourgette. WE CONCUR: SCHINDLER and BECKER, JJ. NOTES [1] The contract is not in the record. [2] The Grays concede this point for appeal purposes only. Br. of Appellant, at 3. [3] State Roofing, the roofer on the project, sued Bourgette for $14,006.50 in King County Superior Court, No. 09-2-16617-0. [4] Bradley Bourgette is a member and manager of Bourgette Construction, LLC. [5] This contract is not in the record. [6] Pursuant to RCW 60.04.161, the Grays posted a bond and have since sold the home. [7] On appeal, "[t]he Grays do not dispute that Bourgette provided labor and services in some amount, that Bourgette was the appropriate party to the action, or that Bourgette's lien complied with the statutory form and was served on the Grays. However, Bourgette failed to allege or demonstrate that it complied with the statutory notice requirements or that it was exempt." Reply Br. of Appellant, at 3. [8] While the statute provides no definition for "common law agent," the plain meaning is "the body of [agency] law derived from judicial decisions, rather than from statutes or constitutions." BLACK'S LAW DICTIONARY 293 (8th ed. 2004). "[A]n agency relationship results from the manifestation of consent by one person that another shall act on his behalf and subject to his control, with a correlative manifestation of consent by the other party to act on his behalf and subject to his control." Moss v. Vadman, 77 Wash.2d 396, 402-03, 463 P.2d 159 (1969). Both the principal and agent must consent to the relationship. Hewson Const., Inc. v. Reintree Corp., 101 Wash.2d 819, 823, 685 P.2d 1062 (1984). The crucial factor is the right to control the manner of performance that must exist to prove agency. Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wash.App. 669, 674, 626 P.2d 30 (1981) (citations omitted). [9] Bourgette was sanctioned because he responded to the Grays' motion on the day of the show cause hearing, giving the Grays no time to reply. But the Grays did not ask for a continuance to provide more proof at the hearing on their motion, nor have they argued that they were denied the opportunity to prove their case or assigned error on this issue. [10] We do not address the circumstances under which a trial court may properly release a lien in a summary proceeding for failure to give notice of right to claim a lien.

982 F.2d 529 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Jimmy PHILLIPS, aka Isa Abd'allah Ramadan Shabazz,Petitioner-Appellant,v.Stephen KAISER, Respondent-Appellee. No. 92-6172. United States Court of Appeals, Tenth Circuit. Dec. 8, 1992. Before LOGAN and EBEL, Circuit Judges, and BARRETT, Senior Circuit Judge. ORDER AND JUDGMENT* LOGAN, Circuit Judge. 1 This matter is before us on appellant Jimmy Phillips' (aka Isa Abd'allah Ramadan Shabazz) motion for leave to proceed on appeal without prepayment of costs or fees and application for a certificate of probable cause. Appellant seeks review of the district court's denial of relief from that court's earlier judgment which rejected appellant's claims. The earlier judgment has previously been before this court on appellant's similar application. We denied relief by order entered June 1, 1989. Phillips v. Kaiser, No. 89-6082 (10th Cir.). 2 We have examined the district court's order of April 30, 1992, and are satisfied that it analyzed the matter correctly and properly denied relief. Appellant can make no rational argument on law or facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438 (1962). He can make no sufficient showing of a federal right necessary for the issuance of a certificate of probable cause under 28 U.S.C. § 2255. We therefore deny the motion for leave to proceed on appeal without prepayment of costs and fees and the application for a certificate of probable cause. The appeal is dismissed. 3 The mandate shall issue forthwith. * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

105 F.2d 157 (1939) In re POVILL. Appeal of PEOPLE'S NAT. BANK OF BROOKLYN, N. Y. No. 373. Circuit Court of Appeals, Second Circuit. June 26, 1939. *158 McLean, Ferris, Ely & Fain, of New York City (Marshall McLean and Sarah H. McLean, both of New York City, of counsel), for appellant. Max D. Frant, of Brooklyn, N. Y. (Joseph W. Gottlieb and I. Louis Kottler, both of Brooklyn, N. Y., of counsel), for appellee. Before SWAN, CHASE, and PATTERSON, Circuit Judges. PATTERSON, Circuit Judge. The chief question is whether the listing of an outlawed claim in the bankrupt's schedules was an acknowledgment sufficient to revive the claim. The bankrupt filed voluntary petition in bankruptcy in December, 1937, listing People's National Bank as a creditor for $5,445. In due course the bank filed proof of claim for that amount, based on two demand notes made in 1928. Unless the transactions referred to below are to be deemed payments made by the bankrupt, the last payments on account of the notes occurred more than six years before bankruptcy. No other claims were filed. The bankrupt having applied for discharge, the bank entered specifications in opposition. The bankrupt countered by a motion to have the bank's claim expunged as barred by the statute of limitations. In resisting the motion the bank relied on the inclusion of the claim in the schedule of debts filed by the bankrupt. The bank also gave proof that within six years prior to bankruptcy it had applied balances in a checking account maintained with it by the bankrupt against overdue interest on the notes, and that the bankrupt had made no protest when informed of such action. It urged that these transactions *159 amounted to payments by the bankrupt within six years. The referee who heard the matter expunged the claim, and the district court affirmed. The preliminary point is raised that the bankrupt had no standing to object to the claim. By section 57d of the Bankruptcy Act, 11 U.S.C.A. § 93(d), the right to object to claims is accorded to "parties in interest". It was held in Gregg Grain Co. v. Walker Grain Co., 5 Cir., 285 F. 156; certiorari denied, 262 U.S. 746, 43 S.Ct. 522, 67 L.Ed. 1212, that in cases where the estate was insolvent the bankrupt would not be permitted to contest claims. The holding had some support in General Order XXI(6), 11 U.S.C.A. following section 53, which at that time provided that "the trustee or any creditor" might have reexamination of a claim. But General Order XXI(6), as amended in 1933, 11 U.S.C.A. following section 53, now provides that claims will be reexamined at the instance of "the trustee or any creditor or the bankrupt or debtor". This order is expository of section 57(d) of the Act, and it would seem that a bankrupt may now move to expunge a claim filed against the estate, whether the estate be solvent or insolvent. Whether that is the rule in all cases, however, need not be decided. In the present case no other claims were filed. Any assets that might be discovered would go, subject to expenses, to the bankrupt himself if the bank's claim were invalid. The bankrupt thus had a direct interest in having the bank's claim disallowed. It is worth noting that the controversy between the parties arose when the bank opposed the bankrupt's discharge, and while a creditor who has no claim on file in the bankruptcy proceeding may oppose discharge, In re Ruhlman, 2 Cir., 279 F. 250; In re Ulrich, D.C., 18 F.Supp. 919, a decision of the motion to expunge the claim on the ground urged here, that it was outlawed, would in effect be decisive of the bank's right to be heard in opposition to discharge. We are of opinion that the bankrupt was a party in interest and might properly demand that the bank's claim be reexamined. A claim already outlawed by limitation when a bankruptcy proceeding is commenced may not be allowed as a claim against the bankrupt estate where appropriate objection is made. The pertinent statute of limitations is that of the state where the district court in which the bankruptcy proceedings are pending sits. Hargadine-McKittrick Dry Goods Co. v. Hudson, 8 Cir., 122 F. 232; In re Weidenfeld, 2 Cir., 277 F. 59; In re German-American Improvement Co., 2 Cir., 3 F. 2d 572. In New York the statutory period for claims on promissory notes is six years. More than six years having elapsed between the last payments made by the bankrupt on the notes and the commencement of the bankruptcy proceeding, the claim was properly disallowed unless there be merit in the one or the other of the claimant's points in rebuttal. The claimant's main position is that the bankrupt's scheduling of the claim was an acknowledgment of it and sufficed to take it out of the statute of limitations. At common law an acknowledgment by the debtor of a barred debt operated as a revival of the debt, but only if the acknowledgment were such that a promise to pay might fairly be implied. Bloodgood v. Bruen, 8 N.Y. 362; Wakeman v. Sherman, 9 N.Y. 85; Bell v. Morrison, 1 Pet. 351, 7 L.Ed. 174. An oral acknowledgment was enough. Shapley v. Abbott, 42 N.Y. 443, 1 Am.Rep. 548. A New York statute, originally section 110 of the Code of Procedure and now section 59 of the Civil Practice Act, provides that "an acknowledgment or promise contained in a writing signed by the party to be charged" is the only competent evidence (other than a payment on account of principal or interest) of a new or continuing contract whereby to take a case out of the operation of the statutes of limitations. The act, like similar acts in other states, was taken from Lord Tenterden's Act, 9 Geo. IV, c. 14. While it speaks broadly of an acknowledgment taking a case out of limitations, the common law as to the character of the acknowledgment was carried over, save that an unwritten acknowledgment would no longer serve. The act changed nothing but the mode of proof. Haydon v. Williams, 7 Bing. 163; Shapley v. Abbott, supra; Kincaid v. Archibald, 73 N.Y. 189. Under the act, as at common law, an acknowledgment is effective only if it imports an intention to pay or at least contains nothing inconsistent with an intention to pay. Manchester v. Braedner, 107 N.Y. 346, 14 N.E. 405, 1 Am.St.Rep. 829; Connecticut Trust & Safe Deposit Co. v. Wead, 172 N.Y. 497, 65 N.E. 261, 92 Am.St.Rep. 756. *160 The listing of a claim in a bankrupt's schedules, without notation that it is disputed or barred, is an acknowledgment of the debt in a literal sense. Section 7 of the Bankruptcy Act, 11 U.S.C.A. § 25 as it then read, made it the duty of a bankrupt to prepare, swear to and file a list of "his creditors", showing the amounts due each of them. The listing is not, however, an acknowledgment that implies an intention by the bankrupt to pay the debt. On the contrary, it signifies an intention by the bankrupt not to pay. We take the New York statute as construed by the court of last resort of that state and are brought to the conclusion that the scheduling of a debt by a bankrupt in his schedule of debts is not an acknowledgment that revives an outlawed debt. There are early cases in New York to the effect that the listing of a barred claim by an insolvent debtor is an acknowledgment that revives the claim. Bryar v. Willcocks, 3 Cow. 159; Stuart v. Foster, 18 Abb.Prac. 305, 28 How.Prac. 273. Later statements, while only dicta, are the other way. See Pickett v. Leonard, 34 N.Y. 175, 179; Hyde Park Flint Bottle Co. v. Miller, 179 App.Div. 73, 74, 166 N.Y.S. 110. The soundness of these later statements cannot be doubted in view of the general principle recognized in Manchester v. Braedner, supra, and Connecticut Trust & Safe Deposit Co. v. Wead, supra. Our conclusion is in line with numerous decisions in other courts that the listing of a claim by a bankrupt or insolvent debtor is not an acknowledgment that takes the claim out of the statute of limitations. Georgia Insurance & Trust Co. v. Ellicott, Fed. Cas. No. 5,354, Taney 130; In re Kingsley, Fed.Cas. No. 7,819, 1 Lowell 216; In re Ray, Fed.Cas. No. 11,589, 2 Ben. 53; In re Lipman, D.C., 94 F. 353; In re Resler, D.C., 95 F. 804; In re Wooten, D. C., 118 F. 670; In re Sanders, D.C., 20 F.Supp. 98; Roscoe v. Hale, 7 Gray 274; Stoddard v. Doane, 7 Gray 387; Richardson v. Thomas, 13 Gray 381, 74 Am.Dec. 636; Christy v. Flemington, 10 Pa. 129, 49 Am.Dec. 590; Hidden v. Cozzens, 2 R. I. 401, 60 Am.Dec. 93. See, also, Wood on Limitations, § 71; Remington on Bankruptcy, 962. The distinction attempted in In re Currier, D.C., 192 F. 695, that the bankrupt's scheduling of a barred claim takes the claim out of the statute as to the bankrupt but not as to other creditors, cannot be supported. The claimant also submits that its application of the bankrupt's balance in his checking account against the amount owing on the notes was equivalent to a payment made by the bankrupt and started the statute anew. It is law in New York that the creditor's use of moneys received by him from collateral security toward payment of the debt does not interrupt the running of limitations. Brooklyn Bank v. Barnaby, 197 N.Y. 210, 90 N.E. 834, 27 L.R.A.,N.S., 843; Security Bank v. Finkelstein, 160 App.Div. 315, affirmed 217 N.Y. 707, 112 N.E. 1076. There is no substantial difference between those cases and the present one. The bank's use of the bankrupt's checking balance to reduce his indebtedness on the notes did not interrupt the running of limitations. The order of the district court was right and will be affirmed.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 8, 2012 Session STATE OF TENNESSEE v. TERRY SANDERS Direct Appeal from the Circuit Court for Houston County No. CR-5130 George C. Sexton, Judge No. M2011-00426-CCA-R3-CD - Filed November 15, 2012 The defendant, Terry Sanders, was convicted after a jury trial of two counts of the sale of less than 0.5 grams of cocaine, a Class C felony, in violation of Tennessee Code Annotated section 39-17-417. He was sentenced, as a Range III persistent offender, to fifteen years for each count, to be run consecutively, for an effective sentence of thirty years. The defendant appeals his convictions, asserting that the trial court should have granted his motions for a mistrial based on testimony introduced at trial that the defendant was on community corrections and based on juror bias. After a careful review of the record, we conclude that the defendant is not entitled to a new trial and affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT, J R., AND J EFFERY S. B IVINGS, JJ., joined. Michael J. Flanagan, Nashville, Tennessee, for the appellant, Terry Sanders. Robert E. Cooper, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Craig Monsue, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was the subject of a drug investigation in which police sent a confidential informant to buy crack cocaine from the defendant at his home. The defendant was on house arrest at the time as part of his participation in a community corrections program. The confidential informant was wired for sound and video at a location close to the defendant’s residence and then drove to the defendant’s residence to buy the drugs. The confidential informant was furnished with $60 on one occasion and $40 on another occasion to use in the purchase of the drugs, and he received $100 on each occasion as payment for his participation. The confidential informant received payment only if he was successful in purchasing drugs from the defendant. On the occasion of the first drug purchase, a police officer followed the informant to a location close to the defendant’s house, but did not follow him down the defendant’s street because it was a dead end and the officer did not want to raise suspicions regarding the informant. The informant testified that, on the way, he made a telephone call to the defendant to let him know he was coming to purchase drugs. The informant and his vehicle were searched before and after both purchases. At trial, the police officer who had conducted the search acknowledged that an object the size of the rocks of cocaine which the confidential informant turned over to police would not necessarily be found in the type of search conducted on the informant. Although the informant was wired for video and sound, the video equipment malfunctioned during the second purchase. The remaining video did not capture any image of the defendant during the purchase, and neither audio recording captured the defendant saying anything. The confidential informant testified that, on the occasion of the first purchase, he arrived and told the defendant he had the money. “At that point in time he told me – put his finger up to his mouth telling me that I needed to be quiet and pointed down towards his ankle.” At the commencement of the trial, the trial court noted outside the jury’s presence that this testimony had previously been ruled admissible,1 but the court would not allow the informant to mention that the defendant was on community corrections at the time. The defense objected to the admission of the testimony that the defendant pointed to his ankle but did not challenge it in the motion for a new trial. The informant testified he did not say anything further after the defendant pointed to his ankle and did not speak during the subsequent buy because the defendant had shushed him on the first occasion. The informant acknowledged that in the second audio recording, his knocking on the defendant’s door was also not audible. The informant was cross-examined regarding the fact that in the recording, the informant did not mention to police that the defendant had pointed to his ankle, but instead stated that the defendant had indicated he should be quiet and speculated that the defendant had company. During the vigorous cross-examination, the confidential informant referred to the defendant’s participation in the community corrections program: Q. Okay. Now if you didn’t call Terry Sanders until you were on your way and there was no discussion of the amount of drugs to be bought or the amount of money you were going to take, 1 Apparently, the defendant had previously been tried in connection with these charges, and a mistrial was declared. -2-  how much money did you know to take or to ask the agents for? A. That was just a decision that was made – once I met up with [the police officer], he made a decision as to how much to carry and that’s what we carried. Q. So [the defendant] would have no idea of knowing how much money you’re coming with or how much crack cocaine he needed to have ready for you. A. Correct. Q. You just showed up and that’s the way it went down. A. Yes, sir. Q. That’s the way a professional drug buyer does it, he just shows up, doesn’t set up anything ahead of time. A. Because you don’t call and set things like that up ahead of time. Q. You don’t? A. You might call them and let them know that you’re on your way and that’s it. Q. With no phone call ahead of time to even know that he was home. A. [The defendant] had to be home. Q. He had to be home? A. He was on community corrections. The defendant moved for a mistrial, and the court denied the motion, finding that “[y]ou didn’t sling the door wide open but you sort of cracked it.” After a recess, the court gave a curative instruction, admonishing the jury that although the witness had mentioned community corrections, the jury was “to disregard that and . . . not consider that at all for any -3- reason in . . . deliberations.” The jury found the defendant guilty on both counts. During voir dire, the jurors were asked if they knew, had been represented by, or had friends or family represented by the defendant’s attorney. No juror answered in the affirmative. After the verdict, defense counsel submitted an affidavit that one of the jurors was in fact a current client of his who had failed to disclose the fact that she knew him. Defense counsel asserted he did not recognize the juror.2 Furthermore, defense counsel asserted that this same juror was the sister of the district director of the community corrections program. The juror was not called to testify at any subsequent hearing. The defendant filed a renewed motion for mistrial on January 25, 2010, based on the testimony regarding community corrections and the juror issues. The trial court denied the renewed motion for a mistrial. The defendant also filed a motion for a new trial on March 4, 2010, asserting, among other issues, that the trial court erred in denying the motion for a mistrial based on the testimony regarding community corrections and that the trial court erred in denying the renewed motion for a mistrial based on the juror’s familial relationship to the director of community corrections. At the hearing on the motion for a new trial, the defendant moved the court to orally amend the motion to additionally assert that the defendant was also entitled to a new trial because of the juror’s failure to reveal her relationship with defense counsel. Although defense counsel stated his intention to make a written amendment, the record is devoid of any amendment in writing. The court denied the motion for a new trial. The defendant appeals the trial court’s decision, contending that the court should have granted him a mistrial based on (1) the testimony regarding community corrections; (2) the juror’s relationship to the district director of the community corrections program; and (3) the juror’s failure to reveal that defense counsel represented her in a civil matter. Analysis A. Testimony Regarding Community Corrections The defendant asserts that the trial court erred in not granting a mistrial after the confidential informant testified that the defendant was participating in community corrections at the time of the purchase. A mistrial is a procedural device through which the court stops the trial, discharges the jury, and holds a new trial with a new jury to determine the defendant’s guilt. See State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). 2 At the defendant’s sentencing hearing, defense counsel explained that he had spoken to the juror by phone and written a letter on her behalf but had never met her. He became aware that he represented her when, after trial, the juror asked the clerk to summon him to discuss her case. -4- A mistrial is declared in order to “to correct damage done to the judicial process when some event has occurred which precludes an impartial verdict.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007). Only manifest necessity justifies the declaration of a mistrial, and the defendant bears the burden of showing manifest necessity. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). A mistrial is appropriate where a trial cannot continue, or the trial’s continuation would be a miscarriage of justice. State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). The decision to grant a mistrial rests in the sound discretion of the trial court, and the trial court’s decision will not be overturned on appeal absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). In determining whether the trial court has abused its discretion, an appellate court considers: (1) whether the State elicited the testimony; (2) whether the trial court gave a curative instruction; and (3) the relative strength or weakness of the State’s proof. Welcome, 280 S.W.3d at 222. In the present case, the damaging testimony was neither elicited by the State nor volunteered by the witness. Instead, it was given in response to defense counsel’s probing into the witness’s statement that the defendant “had to be home.” The trial court gave prompt and appropriate curative instructions. Both these factors weigh in favor of not granting a mistrial. Much of the strength of the prosecution’s case turned on the testimony of the confidential informant. The defense vigorously cross-examined the informant regarding the financial incentive he had for returning with drugs; discrepancies in his memory of the events; the fact that the defendant is never visible on the video or audible on the audio recordings; and the fact that the informant did not mention the defendant’s pointing to his ankle to the police immediately following the purchase. While the evidence of the defendant’s guilt was not overwhelming, we conclude that, considering all three factors in conjunction, the trial court did not abuse its discretion in denying the motion for a mistrial. Moreover, the defendant does not appeal the informant’s prior testimony that the defendant shushed the informant while pointing to his ankle, and the testimony regarding the defendant’s participation in the community corrections program therefore “provided little new information to the jury.” Reid, 91 S.W.3d at 279 (holding that the defendant was not entitled to a mistrial when evidence regarding the defendant’s prior crimes was already before the jury and the trial court gave curative instructions). Accordingly, we affirm the trial court’s denial of a mistrial on this basis. B. Juror’s Familial Relationship to the District Director of Community Corrections The defendant next asserts that the trial court improperly denied his motion for a mistrial based on the fact that one juror was the sister of the district director of the community corrections program. This issue was first raised in the defendant’s renewed motion for a mistrial, filed after the verdict was returned. “A mistrial is granted in a case in -5- which the jury is discharged without a verdict; a motion for new trial is made after a judgment has been rendered.” Howell v. Davis, 299 S.E.2d 336, 337 (S.C. 1983); see McPherson, 882 S.W.2d at 370 (“A motion for the entry of a mistrial is a procedural device which requests the trial court to stop the trial, discharge the jury, and impanel another jury to determine the guilt of the accused.” (emphasis added). The trial court’s denial of the motion was raised in the defendant’s motion for a new trial. We will review the juror bias issues as the basis for a motion for a new trial. The right to an impartial jury is guaranteed by the Sixth Amendment to the United States Constitution and Article I, section 9 of the Tennessee Constitution. Challenges to juror qualifications generally fall into one of two categories: propter affectum challenges based on bias, prejudice or partiality, which may be brought after the return of the verdict, and propter defectum challenges based on a disqualification due to circumstances such as alienage, family relationship, or statutory mandate, which must be brought prior to the verdict. Carruthers v. State, 145 S.W.3d 85, 94 (Tenn. Crim. App. 2003). Insofar as the defendant brings a propter defectum challenge based on the juror’s familial relationship with the district director of community corrections, the challenge should have been brought prior to the return of the verdict. However, insofar as the defendant alleges that the juror was actually biased due to her sister’s position, he may be entitled to relief. The defendant bears the burden to establish a prima facie case of juror bias. Robinson, 146 S.W.3d at 523 (appendix). A propter affectum challenge is sustained where the defendant either demonstrates actual bias or bias is presumed. State v. Hugueley, 185 S.W.3d 356, 378 (Tenn. 2006). Bias is presumed where in cases where “a juror willfully conceals (or fails to disclose) information on voir dire which reflects on the juror’s lack of impartiality.” Smith v. State, 357 S.W.3d 322, 348 (Tenn. 2011). Here, the juror was never asked a question that would have obligated her to reveal her relationship to the community corrections director. As neither the defendant nor the State chose to ask about a possible family relationship with community corrections personnel, the juror was not required to volunteer the information. “Juror bias must be shown, not just suspected.” Hugueley, 185 S.W.3d at 380 (Tenn. 2006) (quoting State v. Lawson, 794 S.W.2d 363, 367 (Tenn. Crim. App. 1990)). No presumption of bias arises, and at the hearing on the motion for a new trial, the defendant introduced no proof showing actual bias on the part of the juror. Accordingly, the defendant is not entitled to a new trial based on the juror’s familial relationship to community corrections personnel. C. Juror’s Relationship with Defense Counsel Although the juror was not asked any questions that would have obligated her to reveal her relationship with the district director of community corrections, the same was not -6- true regarding her relationship with defense counsel. During voir dire, the State asked if any potential jurors knew defense counsel, and the juror did not respond. “[W]hen a juror’s response to relevant, direct voir dire questioning . . . does not fully and fairly inform counsel of the matters which reflect on a potential juror’s possible bias, a presumption of bias arises.” State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). Silence in the face of a material question reasonably calculated to elicit the responses is equivalent to a negative answer. Smith, 357 S.W.3d at 348. However, the State correctly notes that this issue was not raised in the defendant’s motion for a new trial. At the hearing on the motion for a new trial, defense counsel informed the court that he wished to orally amend his motion to add juror bias based on defense counsel’s representation of the juror. While defense counsel stated his intention to reduce this amendment to writing, there is no indication in the record that he ever did. Tennessee Rule of Appellate Procedure 3 provides: [I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived. Tenn. R. App. P. 3(e). The Advisory Commission Comment to subsection (e) further clarifies that “matters that can only be made a part of the record by a new trial motion must be so included in order to gain appellate review. Jury misconduct provides one example.” Tenn. R. App. P. 3(e) Advisory Comm’n cmt. Tennessee Rule of Criminal Procedure 33 allows a motion for a new trial to be raised orally, but requires that it be “be reduced to writing, within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). The trial court must “liberally grant” motions to amend “until the day of the hearing on the motion for a new trial.” Id. While the structure of the rule makes it unclear if the requirement that the motion be in writing applies with equal force to amendments, this Court has previously held that an issue raised orally in a motion for a new trial and not subsequently reduced to writing is waived. State v. Stewart, No. M2008-00337-CCA-R3-CD, 2010 WL 2025407, at *4 (Tenn. Crim. App. May 21, 2010); State v. Noles, No. M2006-01534-CCA-R3-CD, 2007 WL 3274422, at *11 (Tenn. Crim. App. Nov. 6, 2007); State v. Watson, No. W2001-03084-CCA-R3-CD, 2002 WL 31258011, at *2 (Tenn. Crim. App. Sept. 16, 2002); State v. Lanier, No. W2001-00379-CCA-R3-CD, 2002 WL 1482712, -7- at *4 (Tenn. Crim. App. Feb. 1, 2002) (concluding issue was waived and then analyzing issue to determine whether the interest of justice justifies appellate review under Tennessee Rule of Appellate Procedure 4(a)). We conclude that the defendant waived review of the issue by failing to reduce it to writing. Although an issue is waived, an appellate court may consider it if it rises to the level of plain error. State v. Cooper, No. E2011-00590-CCA-R3-CD, 2012 WL 950103, at *4 (Tenn. Crim. App. Mar. 20, 2012) (concluding that an oral amendment to a motion for a new trial which was not reduced to writing was waived and then conducting plain error analysis). However, in the instant case, there has been no allegation of plain error, and the issue has not been briefed. See Waters v. Coker, 229 S.W.3d 682, 690 (Tenn. 2007) (holding that an issue not raised in a motion for a new trial was waived and declining plain error analysis when plain error was not alleged or argued); see also Tenn. Ct. Crim. App. R. 10(b). In any case, the facts here do not establish plain error. The Tennessee Supreme Court has noted that the authority to grant plain error relief should “be sparingly exercised.” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007) (quoting Tenn. R.App. P. 13(b), Advisory Comm’n cmt.). Relief should be granted only where it appears that the error was of such magnitude that it probably changed the outcome of the trial. Id.; see also Tenn. R. App. P. 36(b) (stating that a judgment shall not be set aside unless “error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process”); Tenn. R. App. P. 36(b) Advisory Comm’n cmt. (noting that a judgment would be prejudicial to the judicial process if the decisionmaker were “obviously biased”). In analyzing plain error, the court looks to five factors: (1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of the defendant must have been adversely affected; (4) the accused must not have waived the issue for tactical reasons; and (5) consideration of the error must be necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000); State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Here, defense counsel’s relationship with the juror was so superficial that he did not recognize her at trial. The juror knew nothing about the defendant in particular, and it is unclear what effect, if any, her relationship with defense counsel was likely to have on the outcome. The defendant has not established that any substantial right was affected or that the error probably changed the outcome of the trial. Bledsoe, 226 S.W.3d at 354. We conclude that the defendant’s claim that the juror was biased due to her relationship with defense counsel is waived, and the defendant has not demonstrated plain error. CONCLUSION -8- For the foregoing reasons, the judgment of the trial court is affirmed. _________________________________ JOHN EVERETT WILLIAMS, JUDGE -9- 

215 Mich. App. 389 (1996) 547 N.W.2d 40 VARGO v. SAUER Docket No. 165179. Michigan Court of Appeals. Submitted April 6, 1995, at Lansing. Decided February 9, 1996, at 9:00 A.M. Thurswell, Chayet & Weiner (by Kevin J. Cox and Tammy J. Reiss), for the plaintiff. Fraser Trebilcock Davis & Foster, P.C. (by Brett J. Bean and Kathleen E. Kane), for Harold Sauer. Before: CORRIGAN, P.J., and MARKEY and J.R. ERNST,[*] JJ. MARKEY, J. Plaintiff appeals as of right from the trial court's order summarily dismissing defendant Harold Sauer, M.D., from this medical malpractice action on the basis of the governmental immunity privilege set forth in MCL 691.1407(2); MSA 3.996(107)(2). We affirm. Sauer is an obstetrician, gynecologist, and teacher employed by the Michigan State University College of Human Medicine as an associate professor in the Department of Obstetrics, Gynecology, and Reproductive Biology. In this capacity, Sauer is compensated entirely by MSU, he teaches medical students and residents, he provides clinical *392 care at the MSU Clinical Center, and he provides inpatient medical care at St. Lawrence Hospital in conjunction with the MSU/St. Lawrence Hospital Family Practice Residency Program. In July 1990, plaintiff's decedent, Janet Vargo, then pregnant, went to St. Lawrence Hospital complaining of shortness of breath and a pain in her chest. That evening, after physicians and residents examined Vargo, defendant Dr. James Rawlinson consulted with defendant Sauer, who determined that the fetus was in distress and recommended an emergency Caesarean section delivery. The delivery was successful and Vargo gave birth to a healthy boy; soon thereafter, however, Janet Vargo suffered heart failure, lapsed into a coma, and died. Sauer filed his motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). According to Sauer, he participated in Janet Vargo's care as part of his employment with MSU and his responsibility to teach MSU residents, so he is immune from tort liability except with respect to gross negligence. MCL 691.1407; MSA 3.996(107). Also, Sauer asserted that plaintiff's allegations of gross negligence failed to establish conduct so reckless as to show a substantial lack of concern for whether an injury resulted, MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), and, therefore, plaintiff failed to state a claim upon which relief could be granted. The trial court reluctantly granted Sauer's motion for summary disposition upon finding that Sauer was a governmental employee. That finding was based on the fact that he worked for MSU and was acting within the scope of his employment when he examined and operated on Janet Vargo because residents under Sauer's tutelage were involved in this case and, as part of his employment, Sauer must maintain his medical *393 skills as well as teach residents. The court also found that because plaintiff failed to allege facts amounting to gross negligence and no proprietary function was involved, Sauer was entitled to summary disposition pursuant to MCR 2.116(C)(10).[1] Plaintiff appeals, and we affirm. I For the first time, plaintiff challenges the constitutionality of § 7 of the governmental tort liability act, MCL 691.1407; MSA 3.996(107), claiming that it violates equal protection guarantees because it fails to treat all university-employed physicians in Michigan in a like manner with respect to governmental immunity. Issues raised for the first time on appeal, including constitutional challenges, are not ordinarily subject to appellate review. Michigan Up & Out Of Poverty Now Coalition v Michigan, 210 Mich App 162, 167; 533 NW2d 339 (1995). However, because plaintiff raises an issue of first impression in Michigan, we will address this issue. Sections 7(2) and 7(4) of the governmental tort liability act delineate who is entitled to receive governmental immunity from tort liability and what hospitals are excepted from this grant of immunity, respectively: *394 (2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met: (a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. * * * (4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. [MCL 691.1407(2), (4); MSA 3.996(107)(2), (4).] Statutes are presumably constitutional and should be so construed unless their unconstitutionality is clearly apparent. Caterpillar, Inc v Dep't of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992); Michigan Soft Drink Ass'n v Dep't of Treasury, 206 Mich App 392, 401; 522 NW2d 643 (1994). Every reasonable presumption must be viewed in favor of constitutionality. Petrus v Dickinson *395 Co Bd of Comm'rs, 184 Mich App 282, 293; 457 NW2d 359 (1990). Under the state and federal constitutions, the Equal Protection Clause requires that persons in similar circumstances be treated alike. US Const, Am XIV; Const 1963, art 1, § 2; Frame v Nehls, 208 Mich App 412, 415; 528 NW2d 773 (1995). The type of classification and the nature of the interest affected will determine, however, the level of scrutiny that this Court must apply in evaluating plaintiff's equal protection challenge. Id. Because the statute does not create suspect classifications or impinge upon the exercise of fundamental rights, which would subject the statute to strict or intermediate scrutiny under the Equal Protection Clause of the Michigan or the United States Constitution, we must apply a rational basis test to the immunity statute. Doe v Dep't of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). We will uphold the statute as constitutional as long as the classification is rationally related to a legitimate governmental purpose. Id.; Feaster v Portage Public Schools, 210 Mich App 643, 651; 534 NW2d 242 (1995). The constitution "`is offended only if the classification rests on grounds wholly irrelevant to the achievement of the [legislative] objective.'" Bissell v Kommareddi, 202 Mich App 578, 580; 509 NW2d 542 (1993), quoting McGowan v Maryland, 366 US 420, 425-426; 81 S Ct 1101; 6 L Ed 2d 393 (1961). At the outset, we recognize that judicial construction of a statute is neither necessary nor permitted where the statutory language is clear and unambiguous. Skybolt Partnership v City of Flint, 205 Mich App 597, 602; 517 NW2d 838 (1994). The Legislature is also presumed to intend the meaning plainly expressed in a statute. Id. Further, while the grant of governmental immunity is broad, any exceptions to that grant of *396 immunity are narrowly construed. Wade v Dep't of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992). With regard to the public hospital exception to governmental immunity contained in § 7(4), we believe that the statutory language is clear: those employees of a hospital owned or operated by a governmental agency are excepted from the broad grant of immunity bestowed on other governmental employees in § 7(2). St. Lawrence Hospital is not owned or operated by MSU; consequently, the equally unambiguous grant of immunity in § 7(2) applies to Sauer, as long as Sauer satisfies the three requirements set forth in subsections 7(2)(a), (b), and (c). Plaintiff argues that the statute creates two classes of state university-employed physicians and treats them in a disparate fashion. According to plaintiff, under § 7(4), University of Michigan (U of M) physicians teaching and working at the University of Michigan Hospital are not entitled to immunity for medical malpractice, while Michigan State University (MSU) physicians teaching and working at private hospitals (in the absence of a university-run hospital offering inpatient, overnight care) are immune from tort liability. We agree that teaching physicians employed by U of M and MSU are both serving the same governmental function: teaching the human sciences to medical students, as authorized by their respective enabling statutes.[2] Nothing in the legislative analysis of 1986 PA 175, which enacted the hospital exception to governmental immunity in § 7(4), explains the rationale behind this exception. This Court has stated that § 7(4) was adopted to rectify the inequity noted in Hyde v Univ of Michigan Bd of *397 Regents, 426 Mich 223, 244-246; 393 NW2d 847 (1986), i.e., that persons injured by identical conduct in public and private facilities had different rights of recovery. Jamieson v Luce-Mackinac-Alger-Schoolcraft Dist Health Dep't, 198 Mich App 103, 111-112; 497 NW2d 551 (1993). Plaintiff's challenge to § 7, however, focuses on the other half of this equation: the party against whom recovery can be pursued. Under a rational basis test, we believe that the distinction created by §§ 7(2) and 7(4) between governmental employees who are university professors working at government-owned hospitals and university professors working at private hospitals passes constitutional muster. It is not our function to determine the wisdom, need, or appropriateness of the hospital exception in § 7(4) in conducting this inquiry. Thus, although we recognize the arguably inequitable distinction pointed out by plaintiff, the statutory scheme is nonetheless rationally related to a legitimate governmental purpose: i.e., the state will permit governmental employees to be sued in tort where they presumably have input regarding or control over operations at the government-run hospital where the alleged malpractice occurs. See Doe, supra; Feaster, supra. Thus, governmental employees working at private hospitals as part of their governmental function who have no input or control regarding hospital operations cannot be sued for malpractice occurring at the private hospital. Also, extending immunity to physicians under these circumstances encourages medical schools to become involved in providing medical care in their communities when the school does not own or operate its own hospital or medical facility. Because legislation is rational if any state of facts either known or reasonably assumed can support *398 it, and the existence of inequity in its application does not make it irrational, we believe that MCL 691.1407; MSA 3.996(107) survives the rational basis test and does not violate equal protection guarantees. Doe, supra; Bissell, supra. II Plaintiff also argues that the trial court erred in granting Sauer statutory immunity under § 7(2) because, first, the administration of medical care is not a governmental function, second, Sauer was not acting within the scope of his employment and engaging in the discharge of a governmental function when the malpractice occurred, and, third, further discovery may have established that MSU was operating a hospital, thereby removing Sauer's cloak of governmental immunity. We disagree. This Court reviews questions of law de novo. Westchester Fire Ins Co v Safeco Ins Co, 203 Mich App 663, 667; 513 NW2d 212 (1994). In deciding motions for summary disposition under MCR 2.116(C)(7) based upon governmental immunity, we must consider all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and view those allegations most favorably to the nonmoving party to determine whether the defendant is entitled to judgment as a matter of law. To defeat the motion, the plaintiff must allege facts that call into play an exception to governmental immunity. Wade, supra at 163. Under the governmental tort liability act, MSU, Sauer's employer, is a governmental agency. MCL 691.1401(c), (d); MSA 3.996(101)(c), (d); see also Const 1963, art 8, § 4. MCL 390.101; MSA 15.1121 states that MSU "shall provide the inhabitants of this state with the means of acquiring a thorough *399 knowledge of [various arts and sciences] and to this end it shall afford such instruction in science, art and literature as, in the judgment of its governing body, will promote the object of the institution." Further, MCL 691.1401(f); MSA 3.996(101)(f) defines "governmental function" as "an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 620; 363 NW2d 641 (1984); Codd v Wayne Co, 210 Mich App 133, 135; 537 NW2d 453 (1995). Indeed, instructing medical students in the human sciences is an activity impliedly mandated by statute. We agree that a specific statutory provision mandating or authorizing MSU to educate its medical students through clinical residencies at private community hospitals need not exist to satisfy the governmental function test. See, e.g., Hyde, supra at 253. Thus, the trial court did not clearly err in finding that training medical residents at St. Lawrence Hospital was part of the governmental function of the MSU College of Human Medicine under subsection 7(2)(a). See also Richerson v United States of America, unpublished order of the United States District Court, Eastern District of Michigan, Southern Division, entered November 13, 1995 (Docket No. 95-CV-70228-DT). We also agree that Sauer was acting within the scope of his employment and furthering this governmental function, as required by subsection 7(2) (b), when the alleged malpractice occurred. As a professor at the MSU College of Human Medicine and as a physician who has staff privileges at St. Lawrence Hospital based solely upon his involvement with the MSU/St. Lawrence Hospital Family Practice Residency Program, Sauer was performing his duties as a professor of medicine by assisting *400 and instructing the residents and doctors attending to Janet Vargo. Nothing in the record contradicts the conclusion that Sauer was acting within his professorial capacity when called upon to examine Janet Vargo and recommend a course of treatment for her because MSU residents were involved in her treatment.[3] Moreover, the record establishes that Sauer was not paid by St. Lawrence Hospital, that patients treated by residents and teaching physicians paid MSU for the services rendered at the private hospital, that Sauer did not have a private obstetrical or gynecological practice outside the MSU College of Human Medicine, and that he was on call for the MSU family practice residents. Given that Sauer's examination of Janet Vargo occurred as a result of his involvement in the MSU/St. Lawrence Hospital Family Practice Residency Program, we believe that the trial court did not err in finding that Sauer, a governmental employee, was engaged in the exercise of a governmental function and his conduct did not amount to gross negligence that was the proximate cause of Janet Vargo's death.[4] Thus, the trial court properly granted Sauer's motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis of governmental immunity under § 7(2). III Finally, plaintiff asserts that the trial court erred in granting summary disposition because *401 further discovery could have shown that MSU was operating a "hospital," as that term is defined in § 7(4). We disagree. Summary disposition is premature if discovery of a disputed issue is incomplete. Summary disposition is appropriate, however, if there is no fair chance that further discovery will result in factual support for the nonmoving party. Mackey v Dep't of Corrections, 205 Mich App 330, 333; 517 NW2d 303 (1994). In this case, discovery ended three months before the summary disposition hearing, so summary disposition was not premature. Moreover, even if it were established that a contract existed between MSU and St. Lawrence Hospital creating the residency program or providing that MSU would operate the family practice department at the hospital, Sauer would still be entitled to immunity based on (1) his status as an MSU employee, and (2) our conclusion that a department within a hospital does not constitute a "hospital" or "facility" as defined in subsection 7(4)(b). See Rambus v Wayne Co General Hosp, 193 Mich App 268, 273; 483 NW2d 455 (1992), reaffirmed (On Rehearing), 197 Mich App 480; 495 NW2d 835 (1992). Affirmed. CORRIGAN, P.J., concurred. J.R. ERNST, J. (dissenting). I concur in the opinion of the majority that Harold Sauer is immune from tort liability for alleged medical malpractice arising out of his employment as a member of the faculty of the Michigan State University College of Human Medicine. However, I respectfully suggest that this holding should not be entirely dispositive of the case. In his brief on appeal, Sauer admits that "he provides inpatient medical care as an employee of *402 MSU and in conjunction with the Michigan State University/St. Lawrence Hospital Family Practice Residency Program" to OB-GYN patients at St. Lawrence Hospital. Sauer further contends that "while providing treatment" to plaintiff's decedent, he "was actively engaged in providing instruction to residents who attended" the decedent. Dr. Sauer's claim of immunity is wholly predicated upon his employment with the Michigan State University School of Medicine. However, statutory immunity is granted only to the individual who is an "employee of a governmental agency" and who causes injury "while in the course of employment." MCL 691.1407(2); MSA 3.996(107)(2). "Governmental agency" is defined to mean "the state, political subdivisions, and municipal corporations." MCL 691.1401(d); MSA 3.996(101)(d). Joint ventures, partnerships, and other cooperative activities between a governmental agency and one or more nongovernmental entities are not within the definition of "governmental agency," and have not been afforded a legislative grant of immunity. Consequently, the officers, employees, and other agents of such combined state-private endeavors, when acting on behalf of or in the course of employment therewith, also lack immunity from liability for tortious acts. It is well established in the law of agency that an agent may concurrently act for two principals. Adams Mining Co v Senter, 26 Mich 73 (1872). A physician may be simultaneously an employee of a governmental agency and also an employee or agent of a private entity under contract with the governmental agency. Or, indeed, he may be also the employee or agent of a joint governmental/private enterprise. Although "the physician may *403 be an agent of a public hospital, if he also is the employee or agent of a private entity under contract with the public agency, the physician may nonetheless be subject to liability in his capacity as an agent or employee of the private entity...." Rambus v Wayne Co General Hosp, 193 Mich App 268, 273; 483 NW2d 455 (1992), reaffirmed (On Rehearing), 197 Mich App 480; 495 NW2d 835 (1992). I am persuaded that we must recognize plaintiff's contention that, at the time Sauer provided medical services to plaintiff's decedent, Sauer was acting not merely in the course of his employment with Michigan State University, but also as an agent of St. Lawrence Hospital or the Michigan State University/St. Lawrence Hospital Family Practice Residency Program. Plaintiff did attempt to raise this issue by her motion for further discovery before the trial court entered its final order granting summary disposition for defendant Sauer. A grant of summary disposition "is premature if granted before discovery on a disputed issue is complete." Dep't of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 446; 443 NW2d 420 (1989). Sauer's admissions appear to establish that he provided medical services to plaintiff's decedent at St. Lawrence Hospital, a private institution, in his capacity as an agent of the Michigan State University/St. Lawrence Hospital Family Practice Residency Program and while instructing St. Lawrence Hospital resident physicians. I would reverse and remand for further proceedings limited to plaintiff's claims of medical malpractice arising from Sauer's activities as an agent of St. Lawrence Hospital or the Michigan State *404 University/St. Lawrence Hospital Family Practice Residency Program. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] Notably, the trial court also stated in dicta that it was concerned about unfair legislatively created distinctions with respect to governmental immunity. For example, the court stated that under MCL 691.1407(4); MSA 3.996(107)(4), which excludes from immunity a government-owned hospital or medical care facility and its employees, a person injured at the University of Michigan Hospital could have knowingly submitted to having residents examine him, and he would be permitted to sue in tort for any damages sustained during the course of treatment. The same person admitted into a private hospital such as St. Lawrence, however, may not expect to be examined by MSU residents and teachers and could not sue for the same damages. The trial court stated: "I think this is an area that the Legislature has, frankly, created the opportunity for unfair treatment.... [I]f there's going to be governmental immunity, it should be for persons who are similarly situated." [2] See MCL 390.2; MSA 15.902, MCL 390.8; MSA 15.908, MCL 390.101; MSA 15.1121, MCL 390.661; MSA 15.1104(1). [3] It is irrelevant that defendant Dr. James Rawlinson, one of the physicians treating Vargo, contacted Sauer and requested a consultation. According to Sauer's uncontroverted testimony in his affidavit, he was on call to St. Lawrence to assist MSU residents who were participating in the family practice residency program and who were assisting in Janet Vargo's care. [4] The issue whether Sauer was grossly negligent as defined in subsection 7(2)(c) is not disputed here.

513 F.2d 630 Championv.Weinberger 74-2011 UNITED STATES COURT OF APPEALS Sixth Circuit 3/25/75 S.D.Ohio AFFIRMED

281 F.Supp. 191 (1968) Harold EIDINOFF, M. D., Petitioner, v. Archie M. CONNOLLY, M. D., Superintendent of Rusk State Hospital, Respondent. Civ. A. No. 5-383. United States District Court N. D. Texas, Lubbock Division. January 25, 1968. *192 Willis Jarrel, Tyler, Tex., for petitioner. R. L. (Bob) Lattimore, Asst. Atty. Gen., Austin, Tex., Wallace B. Boling, Dist. Atty., El Paso, Tex., for respondent. OPINION WILLIAM M. TAYLOR, Jr., District Judge. On June 11, 1959, Harold Eidinoff was indicted by a grand jury in El Paso County, Texas, for the offense of murder with malice in the shooting death of one Theodore Andress. On Eidinoff's motion for a change of venue the district court in El Paso transferred the case to Lubbock, Texas. Eidinoff filed a motion requesting a pre-trial hearing on the issue of his sanity at the time he committed the shooting.[1] A district court in Lubbock, Texas, impaneled a jury which, after hearing the evidence, returned a verdict of insanity at the time of the act and insanity at the time of the hearing.[2] The jury's verdict of insanity at the time of the act operated as an acquittal of the charge of murder; the verdict of insanity at the time of the hearing required that Eidinoff be committed to a state mental hospital until he became sane.[3] The district court in Lubbock committed Eidinoff to the Rusk State Hospital on November 19, 1959. At all times since that date Eidinoff has been confined in the maximum security unit of Rusk Hospital. On August 28, 1961, Eidinoff filed in the county court of Cherokee County, Texas, a petition for reexamination and for a hearing to determine whether he required continued hospitalization as a mentally ill person. A six-man jury in the county court was unable to reach a verdict and a mistrial was declared.[4] In August 1962, another hearing was held on the 1961 petition. After hearing more than 4 days of testimony, which produced a record of some 560 pages, the jury found that Eidinoff was mentally ill and that he required further hospitalization for his own protection and for the protection of others. Judgment was entered on the jury's verdict on October 18, 1962, and no appeal was taken therefrom. On October 29, 1962, Eidinoff filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Texas, alleging that he was sane and not mentally ill and was being illegally confined in the Rusk Hospital. The district court dismissed the application because state remedies had not been exhausted. On April 24, 1963, Eidinoff filed another writ application in the Eastern District of Texas, restating the allegations of his former petition and further alleging that the state remedies available to him were inadequate to protect his constitutional rights. On June 20, 1963, the district court dismissed the application, finding from the transcript of the Cherokee County proceedings that ample *193 evidence existed to support the jury's verdict. The district court also concluded that the Texas procedures available to Eidinoff were an effective means for resolving his mental status. Upon receiving the order of the district court dismissing his application, Eidinoff sought to file another petition for reexamination and hearing in the county court of Cherokee County. The county judge exercised the discretion accorded him by the Texas Mental Health Code to deny such a petition if filed within two years of judgment entered on a previous petition,[5] and refused to accept the petition for filing. This action of the county judge was made the basis of another federal writ application filed by Eidinoff in the Eastern District on September 24, 1963. The district court dismissed the application on October 16, 1964, stating that Eidinoff had available in the state courts the writ of mandamus to correct any wrongful action by the county judge. On July 10, 1964, prior to the entry of the district court's order, Eidinoff filed another petition for reexamination and for a hearing in the county court of Cherokee County. On Eidinoff's application for change of venue, the proceeding was transferred to the county court of Smith County, Texas. In the petition filed in this cause Eidinoff alleged that he was "sane" under the M'Naghten test and therefore entitled to his release. The state's attorney excepted to the allegation of sanity on the ground that "mental illness" was the relevant standard in a reexamination hearing.[6] The county court sustained the objection, whereupon Eidinoff voluntarily dismissed the cause and took a non-suit.[7] On that same day, and while in custody of the sheriff of Smith County, Eidinoff filed an application for a writ of habeas corpus in the district court of Smith County. For some reason the writ was made returnable by the district court for November 8, 1965, more than a year later. The application was not heard on that day. On December 23, 1965, the state filed a motion to dismiss the application. After a hearing on the motion to dismiss, the district court, on December 30, 1965, entered an order dismissing the writ application. The dismissal was appealed by Eidinoff to the Texas Court of Civil Appeals, Tyler Division, wherein he prayed that the order of dismissal be reversed and the cause remanded to the district court "to hear the case on the merits and determine whether he is now sane and entitled to release." While awaiting the appeals court to render its decision, Eidinoff filed, on September 17, 1966, another writ of habeas corpus in the Eastern District of Texas. On September 26, the district court dismissed the application because Eidinoff was in the process of pursuing an appeal in the state courts, the determination of which was necessary to satisfy the doctrine of exhaustion of state remedies. On October 20, 1966, the Court of Civil Appeals dismissed the appeal for want of jurisdiction, stating that the dismissal order was not a final order and was not *194 appealable. Ex parte Eidinoff, Tex.Civ. App.1966, 408 S.W.2d 540, 542. Eidinoff then applied for a writ of error to the the Texas Supreme Court. The high court denied the application "No Reversible Error."[8] Certiorari was denied by the Supreme Court of the United States, Eidinoff v. Kreimeyer, 1967, 386 U.S. 905, 87 S.Ct. 898, 17 L.Ed.2d 801. The proceeding which led to an application for writ of habeas corpus being filed in the Northern District of Texas was commenced by Eidinoff on August 8, 1966, in the state district court in Lubbock, Texas, from which he had been originally committed. Apparently pursuant to a 1966 revision of the Texas Code of Criminal Procedure, Eidinoff filed in the Lubbock court an application for a sanity hearing. This procedural revision, Article 46.02, provided that persons committed to a state hospital on a finding of insanity in a criminal proceeding could be released from the hospital on a jury finding of sanity in the committing court, but only after the superintendent of the hospital certified to the trial court that the patient was sane. Eidinoff's application for a hearing was not accompanied by a certification of sanity by the superintendent of Rusk Hospital and, on August 15, 1966, the district court in Lubbock denied his application for that reason. It was following this action by the district court in Lubbock that Eidinoff filed the writ application in the Eastern District of Texas on September 17, 1966, which was dismissed while the Smith County habeas corpus case was on appeal, discussed, supra. Following the denial of certiorari in the Smith County case by the Supreme Court of the United States on February 13, 1967, Eidinoff filed the present habeas corpus application in the United States District Court for the Northern District of Texas. The essence of petitioner's claimed constitutional encroachments relates ultimately to the proposition that he is presently sane and his confinement in the state hospital is violative of the Fourteenth Amendment. The many issues which necessarily precede the substantive determination of Eidinoff's sanity are relative to the procedures to which persons adjudged criminally insane have been given recourse by the State of Texas to secure their release from state mental hospitals. Of these procedures some are challenged as infringing on liberties guaranteed by the Fourteenth Amendment to the Constitution of the United States. Eidinoff contends that Article 46.02 of the 1966 Code of Criminal Procedure is the exclusive procedure by which he may obtain a jury trial to assess the validity of his continued confinement. He claims that this statute is unconstitutional for the reasons that (1) there is no standard set by which the head of the hospital is to make his determination that a patient is presently sane; (2) there is no procedure provided for hearings to be held by the head of the mental hospital to which he is committed to determine his present sanity; (3) there is no assurance accorded the petitioner that the opinion of the head of the hospital is correct in its conclusion; (4) there is no provision for an inmate to furnish witnesses at a hearing before the head of the hospital; (5) there is no provision for a jury trial to determine the present sanity of petitioner; and (6) there is no provision for an appeal from the decision of the head of the hospital. Petitioner asserts that the superintendents of Rusk Hospital have acted arbitrarily and capriciously in refusing to certify his sanity to the committing court and that due process of law has been denied him by the State of Texas in requiring him to establish that he is not mentally ill and is not a danger to himself and others in order for him to *195 secure his release when he was committed to the hospital under the "right-wrong" sanity test; he asserts that he must bear a much greater burden under the mental illness standard than he formerly did under the right-wrong standard. The respondent moved to dismiss Eidinoff's application on the grounds that he has failed to exhaust his state remedies and that this court is without jurisdiction to entertain the matters complained of in the application. The motion to dismiss was overruled and an evidentiary hearing was held. The course of this lawsuit is determined by the resolution of the issue of whether Article 932b of the 1925 Code or Article 46.02 of the 1966 Code controls the procedure by which petitioner is required to seek his release in the state courts. Eidinoff was committed to Rusk Hospital in 1959 under the provisions of Article 932b. In 1966, this law was superseded by the enactment of Article 46.02. The two statutes differ in prescribing the manner by which a patient adjudged criminally insane is to be released. Article 932b, Section 2, recited that, "A person committed to a State mental hospital under this Act upon a jury finding of insanity at the time of trial who has been acquitted of the alleged offense is not by reason of that offense a person charged with a criminal offense, and therefore the head of the mental hospital to which he is committed may transfer, furlough and discharge him and shall treat him as any other patient committed for an indefinite period." Article 46.02, Section 3, sets forth that, "A person committed to a State mental hospital under this Article upon a jury finding of insanity at the time of trial who has been acquitted of the alleged offense is not by reason of that offense a person charged with a criminal offense. In the event the head of the mental hospital to which he is committed is of the opinion that the person is sane, he shall so notify the court which committed the person to the State mental hospital. Upon receiving such notice, the judge of the committing court shall impanel a jury to determine whether the person is sane or insane. If the jury finds the person is sane, he shall be released. If the jury finds the person is insane, the court shall order his return to the State mental hospital until he is so adjudged to be sane at a subsequent jury trial in such committing county." The essence of the difference between the 2 statutes is that under 932b the hospital superintendent was vested with the authority to release the criminally insane patient, while under 46.02 the committing court alone is delegated the power to release. Pursuant to Article 932b a criminally insane patient could, apparently, obtain a jury trial in a county court to ascertain whether he required continued hospitalization by initiating a proceeding under Article 5547-82 of the Texas Mental Health Code.[9] The issue *196 is whether Eidinoff, committed under the provisions of Article 932b, has a continuing right, pursuant to that statute, to seek his release through civil proceedings in lieu of the amendment of that statute by 46.02. Eidinoff contends that since January 1, 1966, the date of enactment of Article 46.02, that statute is the only means by which he can obtain a jury trial to restore his sanity.[10] He takes the position that 46.02 is an unconstitutional infringement on the right to trial by jury for the reason that a jury trial is conditioned solely on the superintendent's certification that he is sane. Respondent takes the position that 46.02 is directed only at prescribing the conduct required of the hospital superintendent and does not attempt to delineate the procedure to be initiated by the patient to obtain his release. Respondent contends that 46.02 left undisturbed the right of the criminally insane patient to institute a proceeding pursuant to Article 5547-82 of the Mental Health Code. Alternatively, he expresses that habeas corpus is an adequate remedy for such patient to test the legality of his continued confinement. While this court is necessarily hesitant to undertake an interpretation of Texas statutes in an area of state law in which little has been written, the question of what remedy, if any, is open to recourse by petitioner is the paramount issue herein upon which constitutional questions of serious concern are contingent. Article 46.02, insofar as it deleted from or contradicted Article 932b, repealed the latter. Article 54.02, Sec. 1, Code of Criminal Procedure (1965). However, 46.02 carried forward that provision of 932b, section 2, which stated that "a person committed to a State mental hospital under this Act upon a jury finding of insanity at the time of the trial who has been acquitted of the alleged offense is not by reason of that offense a person charged with a criminal offense * * *." No repeal of 932b was affected by 46.02 with regard to this provision. Concomitantly, respondent argues that the only change 46.02 made in section 2 of 932b was the obligation on the superintendent when he was of the opinion that the patient adjudged criminally insane had regained his sanity. Respondent concedes that under 932b a patient adjudged criminally insane had recourse to Article 5547-82 of the Mental Health Code to petition for his discharge and to obtain a hearing on such petition. Although no reported cases address themselves to the propriety of this implied statutory authority in 932b, Eidinoff did pursue this course in the county court of *197 Cherokee County to a judgment on the merits of his petition. The county court entertained the lawsuit and no effort was made by the state to oppose the petition on jurisdictional grounds. This court accordingly accepts the proposition that under 932b a patient adjudged criminally insane had recourse to the Mental Health Code to obtain a restoration of sanity hearing.[11] The derivation of statutory authority which granted to the criminally insane patient the recourse of Article 5547-82 necessarily ensued from that portion of 932b, Section 2, which provided that such patients were not persons charged with a criminal offense.[12] The remainder of section 2, permitting the superintendent to furlough or discharge the patient, defines the duties of the superintendent and is not susceptible to an interpretation that it implies the existence of a remedy available to patients. Article 5547-82 is designed to protect state hospital patients from unjustifiable detention. Cf. Swinford v. Logue, Tex.Civ.App.1958, 313 S.W.2d 547. By not classifying the criminally insane patient as a person charged with a criminal offense the Texas legislature has accorded to such an individual this protective remedy.[13] As section 3 of Article 46.02 changed only the duty of the hospital superintendent with regard to his actions when he determined the criminally insane patient had regained his sanity and specifically carried forward from 932b that portion of section 2 characterizing the criminally insane as persons not charged with a criminal offense, recourse to Article 5547-82, which exists by virtue of this latter provision, has not been denied the criminally insane patient by the enactment of Article 46.02. Hence, Eidinoff has available at this time an adequate remedy whereby he may seek the restoration of his sanity and his release. Because of this holding it will be unnecessary to decide Eidinoff's contention that Article 46.02 is an unconstitutional deprivation of his right to trial by *198 jury[14] on the ground that this right is not absolute under that statute but is wholly contingent upon the opinion of the superintendent that he is sane. Petitioner contends that because he was committed to the state hospital upon a finding of insanity he is constitutionally entitled to his release when he regains his sanity and cannot be further detained because he is mentally ill and dangerous to himself and others. Without reaching the question of whether petitioner is sane it is expressed by this court that such a contention lacks merit. In Ragsdale v. Overholser, 1960, 108 U.S. App.D.C. 308, 281 F.2d 943, the court set forth the rationale underlying mandatory commitments upon a finding of criminal insanity: [The mandatory commitment statute] has two purposes: (1) to protect the public and the subject; (2) to afford a place and a procedure to rehabilitate and restore the subject as to whom the standards of our society and the rules of law do not permit punishment or accountability. To these ends the State of Texas may lawfully condition the release of its criminally insane patient upon a showing of mental fitness which does not pose a danger to either the patient himself or to the members of the public. The last of petitioner's contentions which it is necessary to consider is whether he has been receiving treatment which is adequate in the light of present medical knowledge. Rouse v. Cameron, 1967, 125 U.S.App.D.C. 366, 373 F.2d 451. At Eidinoff's sanity hearing in 1959 in the Lubbock district court, which lasted some 8 days, the jury returned a verdict of insanity at the time of the commission of the act and insanity at the time of the hearing. The psychiatric evidence upon which the jury rendered its verdict was almost unanimous in its diagnosis that Eidinoff suffered from true paranoia. True paranoia is a relatively, but not extremely, rare mental disorder.[15] It is a psychotic condition[16] in which the patient wrongfully or erroneously interprets an act or occurrence thereby creating a delusion as to such event. This delusion is most commonly manifested in feelings of persecution. The delusion is systemitized so that a logical but erroneous conclusion is arrived at, based on the original false premise. The true paranoia suffers from feelings of inadequacy and in an effort to overcome such inadequacy he develops grandiose ideas or feelings of superiority to others. The paranoia has a need for others to assume his responsibilities. He may be litigious, or prone to engage in lawsuits to assert the validity of the conclusion reached within his structural delusional thinking. The delusion does not impart itself to areas of the patient's thinking other than that encompassed by the original false premise. The patient is therefore perfectly normal in the other areas of his thinking. However, the structured nature of the delusion is such that anything which is identified with the delusion itself is dealt with by the patient as a part of the delusion. In relation to the M'Naghten insanity test the patient knows right from wrong and the nature and consequences of his acts in all areas of his thinking with the exception of his structural delusion. As to acts which fall within or relate to the delusion he is unable to distinguish right from wrong and is unable to comprehend the nature and consequences of such acts. Eidinoff is presently diagnosed by Dr. Connolly and members of his staff *199 as suffering from true paranoia.[17] In arriving at this conclusion Dr. Connolly opinionates that petitioner has the paranoia symptoms of grandiose ideas, litigiousness, the need to have others accept his responsibilities, and he has a structured delusional thinking system. In Dr. Connolly's medical evaluation, petitioner now suffers from the delusions that he is not mentally ill or insane and that a conspiracy exists, fostered by various state officials and influential people, to keep him confined in the state hospital for the remainder of his life as punishment for the crime of which he was acquitted. Eidinoff believes, according to Dr. Connolly, that this conspiracy has exerted such pressure on the hospital superintendent and his predecessors that he will not give his true opinion of Eidinoff's present mental condition, namely, that he is sane, not mentally ill, and entitled to be discharged. In the light of medical knowledge, as revealed by the psychiatric testimony adduced at the evidentiary hearing, the prognosis for the true paranoia is "poor". As there is no adequate treatment for this disorder, recovery, if achieved in any meaningful degree, is dependent upon the patient's ability, as limited by the severity of the paranoia disorder, to respond to the treatment which is available. One doctor testified that psychoanalysis was the most effective known treatment for paranoia, but that the cost to state institutions of engaging psychoanalysts was prohibitive.[18] The consensus of the staff at Rusk Hospital is that psychotherapy is the most appropriate treatment for paranoia which is available. Elemental in the rehabilitative concept of psychotherapy relative to true paranoia is that the success of this therapeutic method is dependent upon the degree to which the patient will accept and understand the fact that he suffers from a mental disorder and upon his desire to overcome it. Psychotherapy attempts to impart this understanding to the patient and instill in him the desire to overcome the disorder through psychological rather than medical means. Two doctors at Rusk Hospital have at different times attempted to engage Eidinoff in psychotherapy. Both were forced to discontinue the program because Eidinoff was unable to accept the fact that he was suffering from a mental disorder. For a short period of time following discontinuation of the psychotherapy treatments Eidinoff was given group psychotherapy. For 1½ hours a week petitioner was placed in a group of 8 or 9 other patients during which times the patients conversed with one another. Similar to psychotherapy, group-therapy has as its purpose the patient's self-realization of his problems through psychological means and is predicated on the theory that the group members in conversing with one another will act as catalysts or stimuli to the individual member's insight into his respective problem. While Eidinoff's participation in group-therapy endured for a longer period of time than did his psychotherapy treatments, these were also discontinued because of Eidinoff's inability to accept the fact that he suffered from a mental disorder and also, apparently, because of his feelings of superiority over the other patients. *200 Group therapy treatments were terminated in the fall of 1965 and Eidinoff went without treatment until June, 1966, when Dr. Connolly, with the assistance of funds from the federal government, established a program of occupational and physical therapy for all patients. Since the inception of this program Eidinoff has been an active participant therein. He authored the physical fitness program adopted by the hospital, participates in the occupational therapy program by engaging in handcrafts, and organized and taught in the hospital's elementary education program for retarded children. He has been commended by the hospital officials for his participation in all phases of this rehabilitative program. The occupational and physical therapy programs are calculated to instill within the patient self-pride and responsibility. However ill-adapted such programs may be to cope with the problems of a paranoia disorder, and in particular, Eidinoff's dilemna as diagnosed by Dr. Connolly and his staff, the proposition that petitioner is not receiving adequate treatment cannot be sustained. Eidinoff's inability to meaningfully engage in psycho- and group-therapy cannot be held against him if his refusal to accept the fact of his mental disorder is in fact a product of that disorder. In view of the nature of petitioner's inability to respond to psycho- and group-therapy treatments, present medical knowledge affords little more in the method of treatment of true paranoia that Eidinoff is presently receiving. While great medical advances are being made in the field of treatment of the mentally ill, present day efforts cannot be adjudged inadequate by techniques of which only our future generations will be fortunate enough to take advantage. One other consideration merits discussion. As observed supra, Eidinoff believes that a conspiracy exists against him which has been successful in influencing the present and past superintendents of Rusk Hospital to the prejudice of his rights. At least part of this belief has some basis in fact. It appears that some individuals in El Paso and Lubbock, Texas, have undertaken to influence the successive superintendents of Rusk Hospital to the end that Eidinoff shall remain confined for the rest of his life, but this court is satisfied, on the basis of all the evidence presented on this hearing, that such beseechings have fallen deaf on the ears of physicians dedicated to the integrity of their profession. Having found that petitioner has available to him an adequate state remedy to test the validity of his continued confinement and further that no rights guaranteed by the Constitution of the United States have been or are being denied petitioner, the application for writ of habeas corpus is in all things Denied. NOTES [1] Article 932b, Texas Code of Criminal Procedure (1925), pertinent portions of which are hereafter set forth. [2] The jury assessed Eidinoff's sanity in terms of the M'Naghten, "right-wrong" test as required by Texas statute, Article 34, Vernon's Ann.Texas Penal Code (1925). [3] Article 932b, Texas Code of Criminal Procedure (1925). [4] As enacted in 1957, Article 5547-82(e) provided that the re-examination hearing was to be tried to the county court without a jury. In 1958, the Waco Division of the Texas Court of Civil Appeals held Section (e) unconstitutional in violation of the right to trial by jury. Swinford v. Logue, 313 S.W.2d 547. [5] Article 5547-82(g), Vernon's Annotated Civ.Stat., also hereinafter set forth. [6] Article 5547-82 is explicit in its expression that "mental illness" is the standard applicable to proceedings by a mental patient to secure his release. [7] Eidinoff's dismissal of this cause was predicated on a ground which he asserts in this court is of constitutional dimension, namely, that having been committed to a mental hospital as a result of his not knowing the difference between right and wrong, a purely legal test, his release should be conditioned on the same test, and not upon the mental illness test which is wholly a medical standard and which casts upon him a greater burden of proof than the former test. This question will be fully discussed, infra. However, to avoid a confusion of terms in this respect, this court will use "sane", "insane", "sanity" and "insanity" with respect to the M'Naghten or right-wrong legal test and will use "mental illness" with respect to a medically diagnosed thinking disorder. [8] In Texas practice the denial of a writ of error "No Reversible Error" or "n.r.e." indicates the Texas Supreme Court agrees with the result reached by the lower appeals court, but does not necessarily agree with the reasoning behind the result. [9] "Art. 5547-82. Re-examination — hearing — discharge (a) Any patient, or his next friend on his behalf and with his consent, may petition the county judge of the county in which the patient is hospitalized for re-examination and hearing to determine whether the patient requires continued hospitalization as a mentally ill person. (b) Upon the filing of the Petition the county judge shall immediately notify the head of the mental hospital in which the patient is hospitalized. (c) Upon receipt of notice, the head of the hospital shall cause the patient to be examined. If he determines that the patient no longer requires hospitalization as a mentally ill person, the head of the hospital shall immediately discharge the patient. If he determines that the patient requires hospitalization as a mentally ill person, he shall file a Certificate of Medical Examination for Mental Illness with the county court within ten (10) days after the filing of the Petition for Re-examination and Hearing. (d) At the expiration of the ten-day period, if the head of the hospital has filed a Certificate of Medical Examination for Mental Illness stating that the patient requires hospitalization as a mentally ill person, or if the head of the hospital has failed to file a Certificate of Medical Examination for Mental Illness and has not discharged the patient, the county judge shall set a date and place for hearing on the petition and give notice thereof to the patient and the head of the hospital, and shall appoint a physician not on the staff of a mental hospital to examine the patient and file a Certificate of Medical Examination for Mental Illness with the court. The court shall enter the necessary orders to insure that the patient may, if he desires, be examined by a physician of his own choosing at his own expense. (e) The hearing shall be before the court without a jury. [See Footnote 4, supra.] (f) If the court finds that the patient does not require continued hospitalization as a mentally ill person, the court shall order the head of the hospital to discharge the patient. Otherwise, he shall dismiss the Petition. (g) When the Petition for Re-examination and Hearing is filed before the expiration of one (1) year after the Order of Indefinite Commitment or before the expiration of two (2) years after the filing of a similar Petition, the county judge is not required to order such re-examination and hearing. Acts 1957, 55th Leg., p. 505, ch. 243, § 82." [10] Although Eidinoff may review the legality of his confinement in the state courts by writ of habeas corpus, Ex parte Boehme, 1952, 158 Tex.Cr.R. 278, 255 S.W.2d 206, he is not accorded a jury trial in such a proceeding. Article 11.01 et seq., Texas Code of Criminal Procedure (1965). [11] In so concluding this court has given consideration to the opinion in Ex parte Frailey, 1944, 146 Tex.Cr.R. 557, 177 S.W.2d 72. Frailey was indicted for 2 murders. She was found insane at the time of the acts and insane at the time of the trial. Under the provisions of Article 932a, C.C.P., then in effect, she was committed to the Terrell State Hospital in Kaufman County. Under the provision of Article 5561a of the civil statutes, the predecessor of 5547-82 of the present Mental Health Code, she instituted sanity restoration proceedings in the county court of Kaufman County. A jury returned a verdict of "sane" and she was discharged. Immediately upon her discharge she was arrested and held under the original murder indictments. She filed a writ of habeas corpus in the state district court. That court denied her relief and she appealed. On review, the Court of Criminal Appeals observed that under the statute then in effect, 932a a finding of insanity at the time of the act was not an acquittal of the offense charged and that Article 5561a specifically applied to only those patients who were not charged with a criminal offense. The court held that only the district court which committed the patient had jurisdiction to order her discharge, she being a person charged with a criminal offense, and that the county court proceedings were void. With the enactment in 1958 of 932b and 5547-82, the Texas legislature significantly changed 932a and 5561a. In 932b it provided that a finding of insanity at the time of commission of the act was an acquittal of the offense charged and that a person so acquitted was not charged with a criminal offense. In 5547-82 it deleted the requirement that the patient be a person not charged with a criminal offense and in 5547-69, the provision governing the application of 5547-82, prescribed that the latter was not applicable to persons adjudged criminally insane and committed under 932a, which persons were, as pointed out in Ex parte Frailey, persons charged with a criminal offense. [12] See footnote 11, supra. [13] See discussion of Ex parte Frailey, 1944, 146 Tex.Cr.R. 557, 177 S.W.2d 72, footnote 11, supra. [14] See, Swinford v. Logue, Tex.Civ.App. 1958, 313 S.W.2d 547, footnote 5, supra. [15] Six psychiatrists testified at the evidentiary hearing before this court. Each of them defined the term "true paranoia". Although some of the doctors differed in their evaluation of the most predominant of the symptoms of true paranoia, they were basically in accord as to the identifiable symptoms of the disorder. [16] A psychotic condition is a mental disorder wherein one's thinking process is out of touch with reality. [17] This court does not undertake to decide the question of whether Eidinoff is presently mentally ill and in need of further hospitalization. As petitioner has an adequate state remedy to resolve that issue, such is the province of the state courts. For purposes of determining whether Eidinoff is receiving adequate treatment in the light of present medical knowledge, this court will confine its consideration to the type of treatment he is and has been receiving as it relates to the diagnosis of his mental disorder made by the staff of Rusk State Hospital. [18] Psychoanalysis, in its most general definition, is a therapy whereby a patient suffering from abnormal mental reactions comes to recognize his subconscious repression of desires which are the causes of his abnormal reactions.

861 F.2d 725 Hansellv.McDonald** NO. 88-3290 United States Court of Appeals,Eleventh Circuit. OCT 14, 1988 1 Appeal From: M.D.Fla. 2 AFFIRMED. ** Local Rule: 36 case

934 F.2d 321Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In re Curtis L. WRENN, individually and on behalf of allothers similarly situated, Petitioner. No. 91-8106. United States Court of Appeals, Fourth Circuit. Submitted May 6, 1991.Decided May 29, 1991. On Petition for Writ of Mandamus. Curtis L. Wrenn, petitioner pro se. PETITION DENIED. Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges. PER CURIAM: 1 Curtis Wrenn brought this petition for a writ of mandamus seeking an order directing the district court to reopen a case which it dismissed in January 1991. He claimed that he did not receive notice of the dismissal in time to file a notice of appeal in compliance with Fed.R.App.P. 4(a).1 2 A mandamus petition may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Further, mandamus relief is not appropriate when there is another remedy available to the petitioner. In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Because Wrenn may file a motion for reconsideration in the district court pursuant to Fed.R.Civ.P. 60(b), and because he may not use this petition to avoid the time requirements of Fed.R.App.P. 4(a), we deny the petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not significantly aid the decisional process. 3 PETITION DENIED. 1 We note that failure to receive notice of an order entered by the clerk does not serve to extend the time in which a notice of appeal may be filed. Fed.R.Civ.P. 77(d)

712 S.W.2d 94 (1986) Rheda B. VAN CLEAVE, Appellant, v. McKEE BAKING COMPANY, Appellee. Supreme Court of Tennessee, at Knoxville. June 2, 1986. Douglas M. Campbell, Campbell & Campbell, Chattanooga, for appellant. Gary S. Napolitan, Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, William H. Pickering, Chambliss, Bahner, Crutchfield, Gaston & Irvine, Chattanooga, for appellee. OPINION PER CURIAM. In this worker's compensation action, the chancellor found that Rheda B. Van Cleave *95 sustained an injury to his back in an on-the-job accident on November 10, 1981. The chancellor further found that the plaintiff sustained no permanent disability from the injury, and that all benefits due the plaintiff for his temporary disability had been paid, except for certain enumerated medical expenses. A judgment then was entered ordering the employer to pay the medical expenses and dismissing plaintiff's claim for permanent disability benefits. Plaintiff insists that the chancellor erred in failing to award permanent disability benefits, and in failing to require the defendant to pay the medical bill submitted by Dr. George Shelton. On reviewing the record, we find material evidence to sustain the chancellor's findings on both issues. Accordingly, we affirm the judgment. Neither party now questions the fact that plaintiff injured his back in a fall, or near fall, which occurred on November 10, 1981, when plaintiff stepped from a platform into a truck while carrying one end of a frame he had painted in the course of his employment by McKee Baking Company. We see no need to detail the treatment plaintiff underwent for his injury. Suffice it to say that plaintiff was given medical treatment over a period of several weeks, and was hospitalized for examination and a series of tests. Two of the three doctors who testified expressed the opinion that plaintiff did not sustain any permanent disability as the result of the November 10, 1981, accident. They also testified that the symptoms complained of by Mr. Van Cleave were due to diabetic neuropathy, a disease of the central nervous system, and that it was not caused or aggravated by Mr. Van Cleave's industrial accident. They further testified that plaintiff had recovered from his traumatic injury prior to his examination by Dr. Shelton in November, 1983. In reviewing a decision in a worker's compensation action predicated upon an injury that occurred prior to July 1, 1985, this court does not weigh evidence, nor decide the credibility of witnesses. Those are issues for the trial judge. Liberty Mutual Insurance Co. v. Taylor, 590 S.W.2d 920 (Tenn. 1979). The review by this court is limited to the determination of whether there is any material evidence in the record to support the findings of the trial judge. If so, we are bound to accept them. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572 (Tenn. 1977); Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn. 1977). Under the review allowed this court, the medical testimony referred to is sufficient to support the chancellor's findings on both the issue of disability and the denial of medical expenses incurred by plaintiff after he had recovered from his on-the-job injury. Appellee has asked that we impose a frivolous appeal penalty upon appellant. On consideration of the motion and the record, we decline to do so. The record also shows that plaintiff amended his worker's compensation action to include a claim for damages for retaliatory discharge. The claim was dismissed by the chancellor on his finding that it was barred by the one year limitation on tort actions. T.C.A. § 28-3-104. Plaintiff has assigned this action as error. A claim for damages for retaliatory discharge is not a part of a worker's compensation claim, but is a separate tort action. Jurisdiction of an appeal in a tort action lies in the Court of Appeals, not this court. See T.C.A. § 16-4-108. Accordingly, the appeal of the dismissal of the claim for damages for retaliatory discharge must be transferred to the Court of Appeals for its consideration and decision. The judgment of the trial court in the worker's compensation action is affirmed, and the cause is remanded for enforcement of the judgment. The appeal of the claim for damages for retaliatory discharge is transferred to the Court of Appeals. Costs incurred in appealing the action to this court are adjudged against the plaintiff and his surety. BROCK, C.J., not participating.

FILED United States Court of Appeals Tenth Circuit February 9, 2012 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT RONALD V. MAPP; JOHN STURDIVANT, Plaintiffs–Appellants, No. 10-3322 (D.C. No. 6:09-CV-01304-EFM) v. (D. Kan.) DUCKWALL-ALCO STORES, INC., Defendant–Appellee. ORDER AND JUDGMENT * Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges. Appellants Ronald Mapp and John Sturdivant, former employees of Appellee Duckwall-Alco Stores, Inc. (“Duckwall”), appeal the district court’s grant of summary judgment dismissing their Age Discrimination in Employment Act (“ADEA”) and breach of contract claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm. * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  I Duckwall is a Kansas corporation that operates regional retail stores in numerous states. In March 2005, Duckwall hired Bruce Dale, who was employed at the time by Michael’s Stores, as its new President and Chief Executive Officer (“CEO”). In the beginning of 2006, Duckwall hired Sturdivant as its Senior Vice President of Operations. Sturdivant was sixty-one years old at the time. In July of 2007, Duckwall hired Mapp to be its Senior Vice President of Merchandising. Mapp was fifty-nine years old at the time. Both Sturdivant and Mapp had previously worked with Dale at Michael’s Stores and were recruited by Dale to come to Duckwall. Dale resigned from his position at Duckwall on February 22, 2008, and Donny Johnson, who was a Senior Vice President and the Chief Financial Officer of Duckwall, was promoted to interim President and CEO. On March 1, 2008, Johnson had a conference call with Duckwall’s Board of Directors during which the Board stressed that the company needed to be reorganized to streamline costs and minimize overhead. That same day, Johnson sent an e-mail to the Senior Vice Presidents with the subject line “Overhead Efficiencies,” informing them of the conference call and notifying them that the Board had stressed the need to move quickly on “implementing accountability.” The Board suggested a thirty-day comment period in which to restructure the company. Johnson therefore requested in his e-mail that, “after we get through Tuesday,” he wanted each of the Senior Vice Presidents to develop a plan to -2- implement savings. He informed them that he would schedule meetings with each of them over the next few weeks so that he could have an overall cost-reduction strategy outlined prior to the April Board meeting. The “Tuesday” that Johnson’s e-mail referred to was March 4, 2008. On that day, a budget and planning meeting was held with the Board at which Johnson was present along with several corporate officers, including Mapp and Sturdivant. Mapp, Sturdivant, and others made presentations to the Board regarding what they thought should “be done to move the company forward.” On March 5, Royce Winsten, a member of the Board, e-mailed Johnson. Winsten expressed his opinion that serious cuts needed to be made to overhead expenses and directed Johnson to: Pull together your competent SVP/VPs and build from there. From the look of things yesterday it will be a small group. It’s clear Mapp, St[u]rdivant and [Virginia Meyer] are very weak players in very important slots. Their direct reports are likely as weak as they are. As I thought about Hixon, he seemed relatively strong in the group but the bar was set very low. In any event, it would seem there will be no need for a real estate guy. Three days later, Johnson informed Winsten by e-mail that he was “making good progress [on his] proposed re-organized corporate support staff.” He attached the current organization chart, showing eighteen officer positions, and a proposed reorganized chart with twelve officer positions. 1 In a later e-mail to Winsten on 1 These were not the only proposed cuts. For example, Johnson suggested in (continued...) -3- March 10, Johnson identified eight officer positions that he thought could be reduced to three. Finally, in an e-mail dated March 21, 2008, Johnson proposed replacing the current eighteen officer positions with eleven officer positions. These proposals all anticipated the termination of the employment of Sturdivant, Mapp, and Meyer. On March 31 and April 1, 2008, the company Vice Presidents and Senior Vice Presidents were scheduled to meet with Jim Hyde, a member of the Board of Directors, as part of the process of evaluating their qualifications. Some were scheduled to meet for thirty minutes and some for forty-five. Sturdivant, Mapp, and Meyer were to meet on April 1, 2008. On that day, they were told that their meeting times were to be rescheduled and that they were going to be meeting later in the day and for only fifteen minutes. On April 11, 2008, Duckwall terminated the employment of Sturdivant and Mapp, who were the two oldest Senior Vice Presidents at sixty-three and sixty years old respectively. Vice Presidents Meyer and Mike Gawin, who were sixty-four and fifty-six years old respectively, also had their employment terminated. Johnson informed Sturdivant and Mapp on that day that their employment was being terminated as a cost-cutting measure and had nothing to do with their performance. Sturdivant and Mapp were two of the top four highest 1 (...continued) the e-mail that 42 of the 216 total corporate positions be eliminated, and that approximately 72 of the 261 existing stores be closed. -4- paid employees at Duckwall. In May 2008, Duckwall eliminated another twenty corporate positions. In January 2009, Sturdivant and Mapp each filed discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). In Duckwall’s responses to the agency, it asserted that appellants’ employment was terminated as a result of “a substantial corporate reorganization of numerous departments” following Dale’s resignation. Appellants’ “close personal and professional ties and/or loyalty” to Dale were also cited. Before the district court, the parties agreed that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), is applicable and that, under that analysis: the plaintiff must initially establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011) (citations omitted). Applying this standard, the district court held that appellants had met their burden of establishing a prima facie case of discrimination and that Duckwall had met its burden of presenting legitimate, non-discriminatory reasons for the terminations. The court, however, found that appellants failed to present -5- sufficient evidence to demonstrate that Duckwall’s proffered reasons for the terminations were a pretext for age-related discrimination. Addressing appellants’ breach of contract claim, the court held that appellants were not entitled to reimbursement under the terms of the contract at issue. II “We review the grant of summary judgment de novo, applying the same standards as the district court. We view the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party . . . .” Simmons, 647 F.3d at 947 (citation omitted). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A Appellants argue that the district court erred in granting summary judgment in favor of Duckwall on their age discrimination claims because they presented sufficient evidence to demonstrate pretext or an inference of discrimination on the basis of their age. A plaintiff generally demonstrates pretext by “producing evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable -6- factfinder could rationally find them unworthy of credence.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1106 (10th Cir. 2008) (quotation omitted). “A plaintiff who demonstrates pretext gets over the hurdle of summary judgment.” Id. at 1105 (quotation omitted). 1 Appellants contend that pretext is shown by Duckwall’s failure to follow its own reduction in force procedures. Specifically, they argue that Duckwall implemented, but failed to follow, a “2-step strategy for evaluating and reorganizing its structure.” We agree that if Duckwall had set forth specific criteria or standards for determining which employees to lay off, and then violated those criteria or applied them inconsistently in terminating appellants’ employment, such action might be considered evidence of pretext. Id. at 1106-07. But the record simply does not show that Duckwall established an official corporate reorganization procedure from which it deviated. According to the appellants, the first “step” in this alleged reorganization procedure was Johnson’s March 1, 2008, direction to the Senior Vice Presidents to develop reorganization plans within thirty days. Appellants claim that their presentations to the Board on March 4, 2008, were the reorganization plans Johnson had requested three days before. But the presentations that Mapp and Sturdivant made to the Board were not the same presentations to which Johnson’s e-mail referred (which were to be made to Johnson directly), nor were Mapp and -7- Sturdivant the only people to make presentations to the Board. As noted above, Johnson requested in his March 1 e-mail that he wanted each of the Senior Vice Presidents to develop a plan to implement savings, “after we get through Tuesday.” Thus, Johnson’s e-mail did not anticipate the reorganization plans being prepared until after the March 4 meeting. The alleged second “step” in the reorganization procedure was a series of one-on-one meetings on April 1, 2008, between Jim Hyde and each Senior Vice President and several Vice Presidents for the purpose of evaluating the qualifications of the management staff. Appellants assert that they were only allowed to meet with Hyde for fifteen minutes, instead of being given forty-five minutes like everyone else, and that this deviation shows that Duckwall had planned on firing them prior to announcing the restructuring. But even if we assume that Duckwall intended to terminate appellants’ employment prior to the April 1 meeting, there had been no formal announcement of a two-step reorganization procedure. Nor did Duckwall assure employees that no reorganization decisions would be made until after that meeting. 2 2 We note that appellants make a brief argument that Johnson had not been in his position as interim CEO long enough to properly evaluate the executives serving under him and make a informed decision based on merit. Even assuming this is true, it is not evidence of discrimination. -8-  2 Appellants also contend that Duckwall’s assertion that their relationship with the former CEO, Dale, was a factor in its decision to terminate their employment shows pretext because it was a post hoc fabrication. They claim that this reason was not asserted until the company’s response to the EEOC charges, that they were never questioned about their loyalty to Dale, and that one of the executives that moved from a Vice President to a Senior Vice President, Phillip Hixon, actually had closer ties to Dale than either of them. After-the-fact justifications for termination can certainly show pretext. See, e.g., Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1093 (10th Cir. 2007); Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005). But here, appellants’ evidence does not contradict the legitimate justifications offered by Duckwall. When appellants were terminated, they were not provided any specific reasons other than the company’s cost-cutting reorganization and reduction in workforce. The fact that appellants’ relationship to Dale may have also been a factor in no way undermines the company’s proffered explanation at the time of termination. Duckwall’s additional explanation thus does not help the company’s case, but without more, it also does very little for the appellants. 3 Appellants argue that several age-related comments suggested discrimination. However, these comments were either made by people who had -9- no role in the termination decisions or were not indicative of any discriminatory intent. The first comment was made by Tom Canfield, another Senior Vice President. After Duckwall hired a sixty-eight-year-old woman as a district manager in 2007, Canfield commented to Sturdivant that he could not believe Duckwall had hired someone that age. While this comment appears to be evidence that Canfield might have personally considered advanced age a disqualifying factor in an employment candidate, there is nothing that shows that Canfield had any role in appellants’ terminations. “[A]ge-related comments by non-decisionmakers are not material in showing the . . . action was based on age discrimination . . . .” Minshall v. McGraw Hill Broad. Co., Inc., 323 F.3d 1273, 1287 (10th Cir. 2003) (quotation omitted). Thus, this comment cannot be evidence of pretext. Appellants assert that the reference to them as “weak” in Winsten’s e-mail, when viewed in conjunction with the comments in a memorandum about new energy and excitement needing to be infused into the company, shows pretext. This point is meritless because the author of the memorandum, Hixon, had no role in the decision to terminate the appellants. Minshall, 323 F.3d at 1287. Finally, appellants allege that a comment made by Board member James Hyde to Mapp shows pretext. On April 1, 2008, Mapp met with Hyde for an evaluation or review. During the meetings, Hyde said “Jeeze, you’ve been around -10- a long time[,]” and asked him “why aren’t you the operator[?]” Mapp testified that he thought the comment meant that he had been employed in “retail” for many years and that it implied that he “might seriously be considered for the operator position in the company.” This is not evidence of pretext. This is a comment about Mapp’s extensive retail experience and an expression of surprise that, considering his extensive experience, Mapp was not “the operator.” There is no suggestion that Hyde viewed advanced age as a disqualifying factor to continued employment. In sum, appellants presented no evidence from which a jury could properly find that such reasons were pretextual and that their age was the actual cause of the terminations. B Appellants also argue that the district court erred in holding that Duckwall was entitled to summary judgment on their breach of contract claims. Appellants claimed that Duckwall breached their employment agreements by failing to pay the expenses they incurred relating to real estate commissions and closing costs on the sales of their residences. The question at issue is whether these expenses qualified as “Earned Obligations” under the terms of appellants’ employment agreements. We review questions of contract interpretation, which are questions of law, de novo. Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154 -11- (10th Cir. 2008). “De novo review is particularly appropriate when, as here, the district court’s interpretation of the contract turned on an analysis of the language and an application of the principles of contract interpretation, rather than upon the credibility of extrinsic evidence.” Id. (quotation and ellipsis omitted). Section 5(c)(2) of each of the appellants’ employment agreements provides that in the event of termination without cause, for good reason, or because of the company’s failure to extend, the appellants were to be paid “all Earned Obligations in a lump sum within thirty (30) days after the date of Termination of Employment[.]” The term “Earned Obligations” is defined at section 1 of the agreement: [A]s of the date of Termination of Employment, the sum of (A) the Employee’s aggregate Base Salary through such date to the extent not theretofore paid, plus (B) all vacation pay, expense reimbursements and other cash entitlements earned by the Employee hereunder as of such date to the extent not theretofore paid, plus (C) the Deferred Compensation and Severance payments required pursuant to Section 3(b) and 3(c) hereof. One of the expense reimbursements provided for in appellants’ employment agreements was moving expense reimbursement. The pertinent part of Section 3(c)(4) in Sturdivant’s agreement read: Moving Expense Reimbursement. The Company will reimburse the Employee for his actual expenses not to exceed Seventy-Five Thousand Dollars ($75,000.00) incurred by Employee for (i) any real estate commission paid by the Employee in the sale of his residence in Atlanta, Georgia[.] -12- Similarly, the pertinent part of Section 3(c)(4) in Mapp’s agreement read: Expense Reimbursement. The Company will reimburse the Employee for his actual expenses not to exceed Fifty Thousand Dollars ($50,000.00) incurred by Employee for any real estate commission and closing costs paid by the Employee in the sale of his residence in Phoenix, Arizona. Appellants argue on appeal that the contract required Duckwall to pay the commissions and closing costs on the sale of their homes even though the homes were not sold at the time of their termination. 3 They argue that subsection (C) of the “Earned Obligations” definition—and not subsection (B)—is the subsection that is relevant to reimbursement for moving expenses, and that subsection does not contain language limiting payments to those earned as of the date of termination. Thus, as noted by the district court, appellants’ argument is that the contract requires Duckwall to reimburse them for the closing costs and commissions at issue no matter how long after the date of termination they actually sell their homes. The district court held that the contract was not ambiguous. The court further held that, under its plain language, appellants must be paid only “expense reimbursements” that they had earned as of the date of termination. Thus, because the houses had not sold at the time of termination, the company was not required to reimburse appellants. The court pointed out that reading the contract 3 In fact, the district court noted that Sturdivant’s home had not been sold as of February 2010, approximately two years after his termination. -13- as requiring Duckwall to reimburse such expenses would violate the explicit requirement that the employee be paid “all Earned Obligations in a lump sum within thirty (30) days after the Termination of Employment.” We agree with the reasoning of the district court and affirm on those grounds. The contract requires that all Earned Obligations be paid within thirty days of termination. This is only possible if such obligations can be determined within that time. Thus, reading the contracts to require these specific Earned Obligations to be paid no matter when they are incurred is unworkable. III The judgment of the district court is AFFIRMED. Entered for the Court Carlos F. Lucero Circuit Judge -14- 

133 F.3d 932 98 CJ C.A.R. 127 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Mahbubur RAHMAN and Sonia P. Rahman, Petitioners-Appellants,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee. No. 97-9527.Board of Immigration Appeals (Nos. Adf-jsm-xwj, Abx-cgm-esd). United States Court of Appeals, Tenth Circuit. Jan. 7, 1998. Before TACHA, BRISCOE, LUCERO, Circuit Judges. 1 ORDER AND JUDGMENT* 2 Mahbubur Rahman (Mahbubur) and Sonia Rahman (Sonia) appeal the decision of the Board of Immigration Appeals (BIA) denying their applications for asylum and withholding of deportation. We affirm. I. 3 The Rahmans are husband and wife and both are natives and citizens of Bangladesh. Mahbubur became involved in the student wing of the Jatiyo Party while he was a student at Titumir College in Dhaka, Bangladesh, and served as assistant general secretary and later as general secretary. The Jatiyo Party was the ruling party until 1991 when it lost control to the Bangladesh National Party (National Party). Mahbubur graduated from college in 1986, but continued to be active as a student leader of the Jatiyo Party until 1992. 4 Mahbubur testified that, as he returned from work in August 1991, he was attacked by five or six members of the National Party. The attackers used sticks and knives and told him he would be killed if he did not cease political activities. He escaped without serious injury when passers-by heard his screams. He was again attacked in September 1992 with sticks and knives, and he recognized Kamruzzaman Ratan, a famous leader of the National Party. The attackers ran away after a crowd gathered. He was hospitalized for ten days following the second attack, suffering epistaxis (nosebleed) and multiple bruising due to blunt injury, and was prescribed fifteen days' of complete bed rest upon his release. He went into hiding upon his release from the hospital. 5 Mahbubur entered the United States on January 1, 1993, and his visa expired May 5, 1993. He filed a request for asylum on April 19, 1993, and his request was denied on March 10, 1994, by the Houston INS office. In response to an order to show cause why he should not be deported, he conceded deportability on December 15, 1994, and requested withholding of deportation and asylum. He testified that if he returns to Bangladesh, he will be killed or put in jail. His family attorney has warned him the government has issued a warrant for his arrest on a weapons charge, of which he claims he is innocent. 6 Sonia's mother, Syeda Jahan, was vice president of the Jatiyo women's organization. She testified the National Party threw her out of her house, threatened her and her children, and put her in jail in mid-May 1991, and that she believed the National Party had beaten her son because of her political involvement. She entered the United States in August 1991 and, on March 24, 1994, INS determined she had a well-founded fear of persecution and granted asylum. 7 Sonia testified the National Party wanted to kill her because of her husband's and mother's ties to the Jatiyo Party. She went into hiding in 1991 after her mother left Bangladesh. She entered the United States on June 14, 1994, and her visa expired on December 13, 1994. In response to an order to show cause why she should not be deported, she filed an application for asylum and for withholding of deportation on March 16, 1995. 8 A deportation hearing was conducted on April 17, 1995, for Mahbubur, but the immigration judge (IJ) continued the case for consolidation with Sonia's case. Both cases were heard on January 4, 1996, and the Rahmans' applications for withholding of deportation and asylum were denied. The denial was affirmed by the BIA on May 14, 1997. II. 9 The Immigration and Nationality Act established a two-part test for determining whether a deportable alien is statutorily eligible for asylum. Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir.1994). The alien must show he or she is a refugee by proving either past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. Persecution is defined as "the offensive 'infliction of suffering or harm.' " Hadjimehdigholi v. INS, 49 F.3d 642, 646 (10th Cir.1995) (quoting Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990)). 10 If the alien establishes eligibility as a refugee, the Attorney General may, in her discretion, grant asylum. See Castaneda, 23 F.3d at 1578. The Attorney General may exercise her discretion to deny asylum if there is little likelihood of present persecution. Kapcia v. INS, 944 F.2d 702, 709 (10th Cir.1991). There is a rebuttable presumption, however, that an alien who has experienced past persecution has reason to fear similar persecution in the future. Id. 11 To establish eligibility for the withholding of deportation, an alien must prove a "clear probability of persecution" upon deportation. Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir.1995). This "clear probability" test is more stringent than the well-founded fear test used in the asylum context. Id. at 1289. Unlike asylum determinations, however, the Attorney General has no discretion to deny withholding of deportation to aliens who demonstrate eligibility. Id. 12 We review factual findings by the BIA under the substantial evidence standard and do not weigh evidence or evaluate witnesses' credibility. Kapcia, 944 F.2d at 707. Even if we disagree with the BIA's conclusions, we will not reverse if its findings are supported by substantial evidence and are substantially reasonable. Id. III. Application of Correct Standard by IJ 13 In denying the Rahmans' applications, the IJ found they had not "submitted a credible record." Certified Admin. R. at 38. The IJ stated: "My finding is that even if I can believe this story, which is hard to believe, neither respondent has shown a well-founded fear of persecution." Id. at 39. The Rahmans infer from this statement that they were required to demonstrate both past persecution and a well-founded fear of future persecution. However, to be considered a refugee, an alien need only show past persecution or a well-founded fear of future persecution. The Rahmans argue the ruling was therefore erroneous and the BIA erred as a matter of law in affirming the IJ's ruling. 14 The IJ specifically found a lack of credibility concerning Mahbubur's past persecution and that he also failed to show a well-founded fear of persecution. In regard to Sonia, whose asylum claim was based solely on fear of persecution, the IJ found she did not have a well-founded fear. Therefore, the necessary findings were made. Further, the BIA clearly applied the correct law in affirming the ruling. It found Mahbubur's testimony, without corroborating testimony, was not sufficiently plausible, detailed, or internally consistent to support his claim of past persecution. The BIA also concluded neither Mahbubur nor Sonia had a well-founded fear of persecution. The Rahmans' argument that the BIA affirmed an erroneous conclusion by the IJ is therefore without merit. Findings Regarding Mahbubur by BIA 15 The testimony of an applicant for asylum may be sufficient to sustain the burden of proof, without corroboration, if the testimony is credible. 8 C.F.R. § 208.13(a). The applicant must present specific, credible evidence to support a claim that he has been persecuted or will be persecuted if deported. Rezai, 62 F.3d at 1289. Inconsistencies in an applicant's testimony support a conclusion that testimony is not credible. Id. (statement in asylum application that applicant had been beaten on "one occasion" and testimony that applicant had been "beaten up many times" supported conclusion testimony was not credible). 16 Mahbubur's testimony regarding the number of people who attacked him in 1992 was inconsistent. In his January 12, 1995, affidavit, he stated he recognized members of the National Party and that Ratan "had with him a group of 4 to 5 younger individuals who [were] also [known] to be student[ ] leaders for the [National Party]." Certified Admin. R. at 145. At his April 17, 1995, hearing, however, he testified he saw nine or ten student leaders and that eight or nine people attacked him. With regard to his 1991 attack, he stated in his March 31, 1993, affidavit that Monu, his best friend at one time, participated in the attack. However, at his hearing he admitted he did not know Monu's last name. Most significant is the discrepancy regarding Ratan's participation in the two attacks. Mahbubur stated in his January 12, 1995, affidavit that he "saw no specific leader" in the 1991 attack, but that Ratan was present at the 1992 attack. At his hearing, he testified that Ratan, "the most famous leader" in the National Party, was involved in both attacks. 17 Mahbubur attributes some of the inconsistencies to his lack of fluency in English. An interpreter was used at the January 4, 1996, hearing, but none was used at the April 17, 1995, hearing. An interpreter is essential to the fundamental fairness of a deportation hearing when the alien cannot speak English fluently. Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980). The record reveals the IJ offered an interpreter at the April 17, 1995, hearing, but Mahbubur declined the offer. Further, he did not raise the language problem before the BIA. Such failure constitutes a failure to exhaust administrative remedies with respect to the question and this court lacks jurisdiction to address the matter. Rivera-Zurita v. INS, 946 F.2d 118, 120 n. 2 (10th Cir.1991). 18 Mahbubur also submits the inconsistencies are not material to his claim for asylum. There is no dispute with regard to the most convincing evidence of past persecution, i.e., that he was hospitalized for ten days and then prescribed fifteen days' bed rest when he was discharged. The BIA rejected the claim of past persecution on the basis that, without corroborating evidence, the testimony was not sufficiently plausible, detailed, or internally consistent. However, the testimony of hospitalization was corroborated by a medical report. On the other hand, the record does not contain evidence to corroborate Mahbubur's testimony as to the reason for the attacks. An alien must show persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). While the medical report corroborates Mahbubur's injuries, it does not corroborate his testimony that he was attacked because of his membership in the Jatiyo Party or his political opinions. 19 The IJ found Mahbubur was lacking in credibility. "Because the immigration judge is in the best position to evaluate an alien's testimony, his or her credibility determinations are to be given 'much weight.' " Dulane v. INS, 46 F.3d 988, 998 (10th Cir.1995) (quoting Estrada v. INS, 775 F.2d 1018, 1021 (9th Cir.1985)). The BIA agreed that Mahbubur had failed to provide sufficiently credible testimony to support his claim of past persecution. To reverse the BIA, this court must find the evidence compels a contrary conclusion. INS v. EliasZacarias, 502 U.S. 478, 481 n. 1 (1992). In light of Mahbubur's inconsistent and for the most part uncorroborated testimony regarding past persecution, we affirm the BIA's conclusion that Mahbubur did not prove he is entitled to refugee status on the basis of past persecution.1 Findings Regarding Sonia by BIA 20 Sonia contends the BIA erred in concluding she did not have a well-founded fear of persecution without making a finding of adverse credibility. The BIA affirmed the IJ's adverse credibility finding as to Mahbubur but it did not make the same finding as to Sonia. The BIA did note Sonia's testimony regarding her husband's hospitalization was inconsistent with the medical report. In any event, the BIA denied Sonia refugee status not because it did not believe her but because the record did not demonstrate the Bangladesh government was inclined to punish her because of her ties to the Jatiyo Party. 21 To be entitled to refugee status on the basis of a well-founded fear of persecution, an alien must prove the feared persecution is "on account of race, religion, nationality, membership in a particular social group, or political opinion." Castaneda, 23 F.3d at 1578. Persecution on account of membership in a particular social group encompasses persecution of an individual who is a member of a group of persons, all of whom share a common, immutable characteristic. Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.1993). The shared characteristic might be an innate one, such as sex, color, or kinship ties. Id. 22 Sonia argues the IJ and the BIA failed to address her membership in a particular social group, i.e., her family. See, e.g., Hernandez-Ortiz v. INS, 777 F.2d 509, 515 (9th Cir.1985); Ananeh-Firempong v. INS, 766 F.2d 621, 627 (1st Cir.1985) (noting relevance of treatment of petitioner's family members). She contends the BIA never inquired as to how her relationship with her mother affected her asylum claim. 23 Both the IJ and the BIA addressed the issue of Sonia's mother. Sonia testified at the January 4, 1996, hearing that her mother was granted asylum. Sonia's application for asylum, with an affidavit explaining the circumstances of her mother's asylum attached, was admitted into evidence. The IJ stated that he "very carefully" considered the fact that INS had granted Sonia's mother asylum. Certified Admin. R. at 40. The IJ discussed Sonia's claims that her mother had been politically active and had been politically harassed because of her involvement. The IJ examined the affidavit of Sonia's mother in which she stated the National Party threatened to kill her and kidnap her children, and that she believed her son had been beaten by National Party members. Sonia's affidavit contained no assertions of threats made directly to her, however, and she later testified that she had not been personally threatened because of her mother's activities. 24 The BIA addressed de novo the evidence of Sonia's fear of persecution because of her mother's activities.2 The BIA reviewed evidence that Sonia's mother was vice president of the Jatiyo Women's League, that her family had been threatened with death because of her activities, and that she had been granted asylum. There was also evidence that Sonia went into hiding after Mahbubur left Bangladesh and that the National Party was searching for Sonia with hopes of thereby getting Mahbubur and Sonia's mother back in Bangladesh. The BIA concluded Sonia did not have a well-founded fear of persecution as she was not herself politically active in Bangladesh. 25 The BIA reviewed the State Department's report on human rights practices in Bangladesh. U.S. Dep't of State, Country Reports on Human Rights Practices for 1994, S. Prt. 104-12 (1995) (Country Reports ). While the National Party won a plurality of seats in the 1991 election, the Jatiyo Party is a significant opposition party with members comprising twenty to thirty percent of the country's legislature. Country Reports did acknowledge that "[v]iolence, often resulting in killings, is a feature of the political process. Demonstrators from all parties, and even within parties, often clash." Certified Admin. R. at 135 (emphasis added). To be eligible for asylum, however, an alien's fear of persecution must be based on more than general conditions of upheaval and unrest in his native country. Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir.1992). The BIA concluded the record did not demonstrate the government was inclined to punish Sonia because of her ties to the Jatiyo Party. 26 Family affiliation with an unpopular political movement, standing alone, is insufficient to warrant asylum. Refahiyat v. United States Dep't of Justice, 29 F.3d 553, 557 (10th Cir.1994). Further, a grant of asylum to an applicant's parent is relevant only to the Attorney General's discretionary decision to grant asylum to the applicant, not to the preliminary determination of the applicant's refugee status. Bereza v. INS, 115 F.3d 468, 476 (7th Cir.1997). 27 More significant than the grant of asylum to Sonia's mother is the fact that Sonia did not leave Bangladesh until almost three years after her mother left. Neither Sonia's testimony nor her mother's affidavit describes any threats or harassment directed to Sonia subsequent to her mother's departure. The fact that so much time passed without incident supports the BIA's conclusion that the government was not inclined to punish Sonia because of her ties to the Jatiyo Party. See Nazaraghaie v. INS, 102 F.3d 460, 463 (10th Cir.1996) (passage of eleven months without incident following alien's release from jail indicated alien's fear of persecution was not well founded); see also Chavarria v. United States Dep't of Justice, 722 F.2d 666, 670-71 (11th Cir.1984) (withholding of deportation denied where applicant remained in Nicaragua for two years after events which triggered persecution of fellow employees, and petitioner was not persecuted during that two-year period). 28 Finally, the Rahmans argue the BIA misapplied the criteria relevant to a determination of well-founded fear as enunciated by the BIA in In re Mogharrabi, 19 I. & N. Dec. 436, 446, 1987 WL 108943 (B.I.A.1987). Under Mogharrabi, the evidence must establish: 29 (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien. 30 Id. at * 15. The BIA assumed Sonia satisfied the second and third factors, but found she did not possess a belief or characteristic which the government sought to overcome by punishment. Sonia contends the government sought to overcome in her the characteristic of membership in her mother's family. She also maintains the government imputed her mother's political beliefs to her and sought to overcome those beliefs. See Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987) (recognizing persecutor's imputation of belief to alien can place alien at risk). Assuming, arguendo, Sonia satisfies the first factor, she does not show how she satisfies the fourth factor, i.e., that the National Party is inclined to punish her. As noted, the passage of three years without incident following Sonia's mother's departure supports the BIA's conclusion that the government is not inclined to punish Sonia because of her ties to the Jatiyo Party. 31 Because Mahbubur's testimony regarding his past persecution was insufficient to establish eligibility for asylum, Sonia's claim for asylum fails to the extent it relies on her association with him. Nor, as discussed above, has Sonia demonstrated eligibility for asylum based on her mother's political activities. There is substantial evidence to support the BIA's finding that Sonia did not have a well-founded fear of persecution upon her return to Bangladesh. 32 Since the Rahmans have failed to establish statutory eligibility for a grant of asylum, i.e., that they are refugees, they cannot meet the tougher standard required for withholding of deportation. Rezai, 62 F.3d at 1289. There is substantial evidence to support the BIA's denial of the withholding of deportation. IV. 33 The decision of the Board of Immigration Appeals is AFFIRMED. Petitioners' motion to respond to respondent's supplemental citation is GRANTED. Petitioners' request to preclude our consideration of Elboukili v. INS, 125 F.3d 861 (Table), 1997 WL 616222 (10th Cir. Oct. 7, 1997) is DENIED. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 The BIA also concluded Mahbubur did not have a well-founded fear of future persecution. Mahbubur did not appeal this finding, however, and we do not address it 2 The Rahmans are troubled by the fact the BIA did not specifically refer to Jahan's affidavit. As the INS points out, however, this is likely because the Rahmans did not reference the affidavit in their brief to the BIA

787 F.2d 598 Tracon Intern., Inc.v.U.S. 85-1643 United States Court of Appeals,Ninth Circuit. 3/27/86 1 D.Ariz. AFFIRMED

848 F.2d 191 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Mason HARRIS, Plaintiff-Appellant,v.Robert JENNINGS, Clerk, Defendant-Appellee. No. 87-4002. United States Court of Appeals, Sixth Circuit. May 10, 1988. 1 Before KEITH and RYAN, Circuit Judges, and BENJAMIN F. GIBSON, District Judge.* ORDER 2 This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 Plaintiff filed this civil rights action under 42 U.S.C. Sec. 1983 seeking monetary damages and other relief from defendant Robert Jennings. The district court dismissed the case as frivolous pursuant to 28 U.S.C. Sec. 1915(d) and this appeal followed. On appeal the parties have briefed the issues, defendant also having filed a motion to dismiss the appeal. 4 Upon consideration, we agree with the district court's disposition of this case for the reasons set forth in the order of October 22, 1987. 5 It is therefore ORDERED the motion to dismiss be denied and the judgment of the district court be affirmed. Rule 9(b)(5), Rules of the Sixth Circuit. * The Honorable Benjamin F. Gibson, U.S. District Judge for the Western District of Michigan, sitting by designation

353 F.2d 614 UNITED STATES of America, Appellee,v.Joe DAVIS, Defendant-Appellant. No. 455, Docket 29518. United States Court of Appeals Second Circuit. Argued April 28, 1965.Decided Dec. 6, 1965. James M. Brachman, Asst. U.S. Atty., New York City (Robert M. Morgenthau, U.S. Atty., for the Southern District of New York, and Michael W. Mitchell, Asst. U.S. Atty., New York City, on the brief), for appellee. Herbert A. Lyon, Kew Gardens, N.Y., on the brief for defendant-appellant. Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit judges. LUMBARD, Chief Judge. 1 This is an appeal from a conviction and sentence after a trial by a jury, in the Southern District of New York, for violation of 18 U.S.C. 1461, 1463, sending obscene matter through the mails and mailing matter in indecent wrappers. 2 Counts one through five of the indictment charged that on various occasions Davis mailed packages whose wrappings bore an obscene label advertising defendant's 'party records,' in violation of 1463. Counts twenty-two and twenty-three charged the mailing of two obscene phonograph records, in violation of 1461, and counts six through twenty-one charged the mailing of advertising which described the means for procuring the obscene records of counts twenty-two and twenty-three, in violation of 1461.1 As it is not alleged that these advertisements are themselves obscene, there must be a finding that the phonograph records are obscene in order to find the advertisements violative of 1461. 3 At trial, the parties stipulated the existence of each and every element of the crime charged, except that the phonograph records and labels were obscene. In oral argument before this court both sides declared they had agreed to submit the remaining issue to the jury without any testimony of any kind. The opportunity to require and present evidence about community standards of obscenity existed but was declined by that agreement. Compare United States v. Klaw, 350 F.2d 155 (2 Cir. 1965). The jury had before it only the labels, the advertisements, the phonograph records and record jackets. 4 The jury returned a verdict of guilty on all counts. Judge Kaufman, who presided at the trial, then made an independent examination of the evidence and determined that the finding of guilty by the jury did not invade Davis' First Amendment rights to freedom of the press and speech as the materials at issue were obscene and therefore not entitled to First Amendment protection. He imposed a fine of $1,000 on count one, and concurrent six-month suspended sentences on the remaining counts. 5 Davis does not allege as error any portion of Judge Kaufman's charge or the procedure employed by the district court. The sole issue before us is the same as was before Judge Kaufman, whether Davis is entitled to First Amendment protection because the labels and records are not obscene. We find that they are obscene under the tests established by the Supreme Court, and we affirm the judgment below. 6 To determine whether the matter before us is obscene, we must apply the now familiar test: 7 'Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.' Jacobellis v. State of Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964); Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 8 Further, we are instructed to determine whether the material is patently offensive. Mutual Enterprises, Inc. v. Day, 370 U.S. 478, 486, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). 9 Applying these tests, we find that both the labels and the records are obscene. The records are without 'literary or scientific or artistic or any other form of social importance.' Jacobellis v. State of Ohio, supra, 378 U.S. at 191, 84 S.Ct. at 1680. Each record jacket and record 'taken as a whole' makes abundantly clear the meaning and content of the recording. We also find that, despite the feeble attempt at double-entendre humor on the mailing label, the sole intended meaning of the label is obvious and far exceeds the permissible level of candor. 10 The appellant's other contentions do not merit discussion. 11 The judgment is affirmed. WATERMAN, Circuit Judge (dissenting): 12 I dissent. I would reverse. 13 At trial, on November 18, 1964, the parties orally agreed that certain acts took place; the defendant conceded that the Government could call witnesses who would testify to these acts and thereby the commission of the offenses would be proven if the material mailed, exhibits in the case, were non-mailable. The exhibits were appellant's yellow gummed labels affixed to the outside of his packages, informing that he had 'sexsational' party records available, his advertising circular, two phonograph records, and the respective jackets containing those records. 14 As stated in the majority opinion, the only contested issue was whether the phonograph records and labels were obscene so that the acts of the defendant in causing them to be sent through the mails violated 18 U.S.C. 1461, 1463. And so, as stated in the opinion of the majority, the issue of defendant's guilt was submitted to the jury without the introduction into evidence of any oral testimony whatsoever. The phonograph records were played to the jury. After the exhibits were introduced into evidence and the records played to the jury, the Government rested, the defense put in no case whatever and moved to dismiss. The motion was denied, and the trial judge in his charge to the jury so adequately explained the nature of the case that no exception to the charge was taken by either party and no request for an additional or explanatory charge was made. The jury was out but thirty-five minutes and returned a guilty verdict. A motion by the defense to set the verdict aside and for an acquittal was denied, and the judge, believing that he, as well as the jury, was required to ascertain whether the exhibits were obscene, found that they were by any test that he had been able to observe. 15 The trial judge had in mind that this case involves 'rights derived from the First Amendment guarantees of free expression' and believed that a judge at the trial level 'cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.' Jacobellis v. State of Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679 (Brennan, J., opinion upon announcing the Court's judgment, in which Goldberg, J. concurred). If it were necessary for me also to accept this responsibility I would hold that the yellow mailing labels had no 'literary or scientific or artistic or any other form of social importance' and that they exceeded the permissible level of candor which the First Amendment protects. On the other hand, they are so cheaply repulsive that it is incredible to me that the prurience of any person would be excited from reading them or from anticipation of receipt of the 'sexsational' records. As to the records, I must say that they bored me, and testing subjectively 'appealing to the prurient interest' neither of them did so appeal. Nevertheless, my personal reaction to these records, different from the reaction of the twelve jurors and the trial judge, is not the basis for my dissent. I would reverse on the ground that the verdict below was not supported by sufficient evidence. 16 The jury was charged that the issue for them to decide was whether the material would be deemed obscene by the average person, applying contemporary community standards, and the judge went on to charge that in 'determining community standards you must try to use your experience in life, the observations you have made in your every-day affairs * * * so that you can make an objective determination based upon community standards of the national of which you have been aware.' 17 No evidence was introduced tending to show what these contemporary community standards of the nation were. The judge in his comments confirming the result the jury reached stated that his view was based on an attempt 'to divine what I consider to be the mores of the country based on my years of experience and travel and observations and readings * * *' 18 The practice of allowing the fact finder to decide the issue of obscenity vel non by appraising the challenged material in light of a court-elaborated definition of obscenity has been established in this circuit and was adhered to in the present case. The announced rationale of this practice is that obscenity 'is a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premises, but really a small bit of legislation ad hoc, like the standard of care.' L. Hand, J., in United States v. Levine, 83 F.2d 156, 157 (2 Cir. 1936). Accepting the jury's conclusion to be a small bit of legislation it made little sense to require the prosecution to present testimony tending to prove that the material in question was in fact unacceptable to the community or that the material would arouse the prurient interest of the average man. This view of the jury's function has even led several courts to go further and to exclude all evidence of community standards offered by the defendant. E.g., Kahm v. United States, 300 F.2d 78 (5 Cir.), cert. denied, 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); People v. Finkelstein, 11 N.Y.2d 300, 229 N.Y.S.2d 367, 183 N.E.2d 661, cert. denied, 371 U.S. 863, 83 S.Ct. 116, 9 L.Ed.2d 100 (1962). But cf. Smith v. People of State of California, 361 U.S. 147, 160, 169, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring; Harlan, J., concurring in part, dissenting in part). See generally 76 Harv.L.Rev. 1498-1501 (1963). 19 The analogy of the jury's function in a criminal case in which obscenity is charged to the jury's function in a civil negligence case was fairly persuasive as long as the jury's decision that certain material was obscene could be viewed as the legal expression of revulsion against the material by the community from which the jury was drawn because of the way the material dealt with sexual matters. But we now know that the standard is national, not local. Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). I am not persuaded that, without some evidence other than the records and labels and each juror's own personal reaction thereto, a jury can appraise such material and can accurately express in the light of national community standards the level of national community tolerance. The view that a jury is not well suited to express the national sense of what is obscene has led some courts carefully to scrutinize the allegedly obscene material before submitting it to a jury. Flying Eagle Publications, Inc. v. United States, 273 F.2d 799 (1 Cir. 1960). This same belief is reflected in United States v. Klaw, 350 F.2d 155 (2 Cir. 1965), decided by us on July 25, 1965 after the appeal in the present case had been argued and before disposition of the appeal. In Klaw we reviewed all the recent cases in this field that had been brought to our attention or had been uncovered by our research, and there we reversed a conviction for mailing obscene matter which was obtained by allowing the jury to appraise certain photographs and drawings of the 'bondage genre,' see United States v. Klaw at 157, in light of an admittedly correct elaboration of obscenity law by the trial court. In holding that the Government was required to introduce evidence that the challenged material in fact appealed to the prurient interest of either the average man or typical deviate this court said: 20 Whatever the value of mere 'autoptical' evidence in other contexts, it should not readily be countenanced in this area. Otherwise, too easily the Government's test might allow a jury to equate patent offensiveness to prurient appeal, thus obliterating the conjunction that has been thought indispensable. The state of the record gave the jurors impermissibly broad freedom to convict just because, having no more informative evidence than the material itself, they might think that the average person would 'recognize' that the material has prurient appeal. But again, to whom? In this case, the jury had insufficient evidence even to 'recognize' that the material appealed to the prurient interest of the average person. 350 F.2d 155, 167. 21 Under the requirements we have placed upon the Government by United States v. Klaw, the Government was deficient in its proof. As the trial judge allowed the Government to get to the jury without introducing any evidence tending to prove that defendant's records or labels appealed to the prurient interest of either the average man or the typical deviate recipient it is my belief that the conviction should be reversed.1 My brothers contend that the proof we hold was necessary to effect a conviction under 18 U.S.C. 1461 in United States v. Klaw is not applicable here. Inasmuch as the defendant expedited the trial by agreeing that he performed the acts necessary to convict if the material mailed were non-mailable and agreed to present the issue of mailability to the jury 'without testimony of any kind' they hold that the defendant 'stipulated the existence of each and every element of the crimes charged.' In so doing, they overlook the fact that the defendant moved to dismiss after the parties had tried the case pursuant to the agreement. Even if one places no weight whatever on defendant's obvious strategy, my brothers at best would seem to hold that defendant agreed to be bound by the practice that the parties supposed existed at the time of the trial, and therefore his conviction must be affirmed. With this approach I cannot agree, either. Defendant's motion to dismiss, overruled, and to which overruling defendant preserved his position, is now being reviewed by us, and the law of this circuit at this time requires us to order that that motion be granted for failure of the Government's proof. Of course, the agreement below was merely an affirmative agreement that certain facts were in existence, and if the Government were put to proof the Government could prove them; but it never was a stipulation concerning the limits of proof required to effect a conviction. The defendant never conceded that he was guilty as charged in the indictment. 1 Count twenty-four, charging Davis with conspiring to violate 1461, was dismissed during trial on the government's motion 1 The attempt of the trial judge to 'divine * * * the mores of the country' cannot cure this defect. This attempted divination certainly cannot be justified as the taking of judicial notice of facts commonly known or capable of certain verification. Perhaps a court may judicially notice contemporary community standards insofar as they constitute 'legislative facts' relating to the issue of obscenity, but even judicial notice of this type ought not to be allowable unless the parties are given an opportunity to furnish data bearing on the issue. See McCormick, Evidence 329 (1954)

396 F.3d 906 UNITED STATES of America, Plaintiff-Appellee,v.A.J. GANT, Defendant-Appellant. No. 04-1970. United States Court of Appeals, Seventh Circuit. Argued December 8, 2004. Decided February 1, 2005. Rehearing Denied March 10, 2005. Timothy A. Bass (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee. Carol A. Dison (argued), Beckett & Webber, Urbana, IL, for Defendant-Appellant. Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges. FLAUM, Chief Judge. 1 Following a two-day trial, a jury convicted defendant-appellant Alfred James Gant of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Gant was sentenced to 188 months' imprisonment and four years of supervised release, and now appeals his conviction. For the reasons stated herein, we affirm. I. Background 2 On May 19, 2001, Gant was involved in a confrontation with his daughter Angelia Gant and a neighbor named Daniel Clark. Gant had allowed Angelia to live in an apartment he owned on Church Street in Champaign, Illinois, free of rent, provided that she abstain from using drugs and not permit others to loiter on the property. Gant went to Church Street on May 19 to tell Angelia that he was evicting her for failing to comply with these conditions. At trial, the government presented testimony of several eyewitnesses who testified that during the confrontation that ensued, Gant struck both Angelia and Clark with a gun. Angelia testified that Gant struck her on the face with an object approximately three inches long. Clark testified that Gant struck him with a hard metal object, and that he then looked up and saw Gant holding a revolver. Another neighbor, Glenn Seay, testified that he was sitting on his front porch directly across the street and saw Gant strike Angelia with a gun. Police officer Jay Warran also testified that when he responded to the scene, he saw Gant walking down the street carrying a pistol and then observed him drop it in the grass nearby. 3 Gant testified at trial that he used a lead pipe, not a firearm, in these confrontations. He also called his girl-friend, Ruby Rodriquez, who testified that on the day of the incident, after receiving a call from Gant, she went to Church Street to search the area and found a lead pipe in the grass. II. Discussion A. Evidence of Neighborhood Drug Activity 4 Gant's primary argument on appeal is that the district court abused its discretion in excluding evidence of drug activity in the neighborhood and his efforts to combat it. He contends that Angelia and Clark had a motive to lie in their testimony at trial because they resented Gant's anti-drug activity and wanted to get rid of him. Gant asserts that the jury should have been permitted to hear any evidence that could affect the witnesses' credibility and that the exclusion of this evidence of bias against him was particularly damaging because the government's case rested almost entirely on eyewitness testimony. Moreover, Gant argues, this evidence would have provided background to explain what he was doing in the neighborhood and why he engaged in altercations with Angelia and Clark. 5 The district court initially granted the government's motion in limine to exclude evidence of Gant's anti-drug activity in the neighborhood, finding it irrelevant to the question of whether he possessed a firearm on the date in question. The court later modified its order in response to a written offer of proof by Gant and specifically allowed evidence of Gant's eviction of Angelia and his altercation with Angelia and Clark on May 19, 2001. The court, however, declined to allow other general evidence of drug activity in the area or evidence of Clark's prior arrests for possession of narcotics. 6 We review the district court's decision to exclude evidence for abuse of discretion and will reverse the court's ruling only if no reasonable person could agree with it. United States v. Richeson, 338 F.3d 653, 661 (7th Cir.2003). Recognizing that the balancing of probative value and prejudicial effect is a highly discretionary exercise, we give the district court's evidentiary decisions great deference. Id. 7 Gant argues that his proffered testimony was relevant to the ultimate question of whether he possessed a gun, but he provides no support for this contention. As the district court correctly noted, in order to prove the offense charged, the government had to show that Gant: (1) had been convicted of a crime punishable by a prison term exceeding one year; and (2) knowingly possessed a firearm (3) that traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Lane, 267 F.3d 715, 717 (7th Cir.2001). The evidence Gant sought to introduce was irrelevant to whether he possessed a firearm. See id. at 720 (finding inadmissible defendant's proffered evidence that he did not intend to exercise control over the gun because that was not relevant to the question of whether he held the gun). 8 Moreover, contrary to Gant's argument, the district court did not exclude evidence of Angelia's and Clark's bias. Gant was permitted to elicit testimony regarding Angelia's eviction from Gant's apartment and the reasons for it. In addition, he was able to impeach her with her two prior drug convictions and her prior inconsistent statements concerning whether Gant struck her with a firearm. Gant was also permitted to elicit testimony from Clark about their ongoing dispute regarding Clark's loitering around Angelia's apartment. He also impeached Clark with his prior inconsistent statements concerning Gant's possession of a firearm. The district court did not abuse its discretion in excluding other evidence proffered by Gant about general conditions in the neighborhood. B. Prior Conviction 9 Gant also contends that the district court abused its discretion in admitting his prior conviction for impeachment purposes. Of Gant's three prior convictions, only the third was admitted into evidence — a 1986 conviction for possession of a controlled substance with intent to distribute. Gant was sentenced to twenty years' imprisonment for this conviction and was discharged from parole on October 14, 1995, eight years prior to trial. 10 Again, we review for abuse of discretion. United States v. Redditt, 381 F.3d 597, 600-01 (7th Cir.2004). Federal Rule of Evidence 609 provides that evidence that an accused has been convicted of a crime punishable by death or imprisonment in excess of one year "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed.R.Evid. 609(a)(1). The Rule further provides: 11 (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. 12 Fed.R.Evid. 609(b). 13 In determining whether the probative value of admitting a prior conviction outweighs its prejudicial effect, the court should consider: "(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue." Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir.2002) (quoting United States v. Smith, 131 F.3d 685, 687 (7th Cir.1997)). 14 Gant argues that the prejudicial effect of this conviction outweighs its probative value because the conviction was remote in time and did not involve a crime of dishonesty. He also claims that the district court failed to consider adequately his history as a productive member of society following his release from prison in 1995. 15 Considering all the evidence presented at trial, the district court did not abuse its discretion in allowing the government to impeach Gant with evidence of his prior conviction. This conviction was within the ten-year limit set forth in Rule 609(b). Moreover, given Gant's theory of the case, his credibility was a crucial part of the trial. Gant's testimony that he possessed a pipe, not a firearm, directly contradicted the testimony of government witnesses Daniel Clark, Glenn Seay, and Officer Warran. The district court did not abuse its discretion in admitting Gant's prior conviction for impeachment purposes. See Smith, 131 F.3d at 687 (holding that district court did not abuse its discretion in admitting defendant's prior convictions where defendant's testimony directly contradicted that of other witnesses, making the credibility issue central). C. Missing Witness Instruction 16 Finally, Gant argues that the district court erred in declining to give a "missing witness instruction." At the jury instruction conference, Gant's counsel requested an instruction regarding the government's failure to call Lintez Motley, an individual who was purportedly with Daniel Clark during the events in question. Gant's requested instruction read as follows: 17 It was particularly within the power of the government to produce Lintez Motley who could have given material testimony on an issue in the case. The government's failure to call Lintez Motley may give rise to an inference that his testimony would be unfavorable to it. You should bear in mind that the law does not impose on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. 18 The district court declined to give this instruction, noting that it is disfavored within the Circuit.1 The court also observed that Motley was a private individual who appeared on both the government's and Gant's witness lists, and therefore was not exclusively within the power of the government to produce. Gant argues that the district court erred in declining to give this instruction because "defendants are generally without the significant resources available to the government with respect to criminal prosecutions and trials." 19 "To establish entitlement to a missing witness instruction, a defendant must prove two things: first, that the absent witness was peculiarly within the government's power to produce; and second, that the testimony would have elucidated issues in the case and would not merely have been cumulative." United States v. Valles, 41 F.3d 355, 360 (7th Cir.1994) (citations omitted). The district court has broad discretion in determining whether to give this instruction. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 716 (7th Cir.2004); Valles, 41 F.3d at 360. 20 Gant asserts that an individual is more likely to respond to a summons from the government than from a criminal defendant. He has not contended, however, that he attempted to subpoena Motley as a witness nor has he offered a satisfactory explanation for failing to do so. Gant has not established that Motley was "peculiarly within the government's power to produce," and the district court did not err in declining to give the missing witness instruction. See United States v. Huels, 31 F.3d 476, 480 (7th Cir.1994) (holding that district court did not err in refusing to give a missing witness instruction where the defendant "was free to subpoena [witness] if he wished to elicit his testimony"). III. Conclusion 21 For the foregoing reasons, the conviction is AFFIRMED. Notes: 1 The Committee on Federal Criminal Jury Instructions provided the following Comment with this instruction: "It is the view of the Committee that a missing witness instruction should not be given." Seventh Circuit Pattern Jury Instr. 3.24 (1999). "For the unusual circumstances where the court might find it appropriate," the Committee recommended that the court use the language requested by GantId.

804 F.2d 678Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.William G. ROLLINS, Appellant,v.Manfred G. HOLLAND, Superintendent, West VirginiaPenitentiary, Appellee. No. 86-7039. United States Court of Appeals, Fourth Circuit. Submitted Sept. 26, 1986.Decided Nov. 4, 1986. William G. Rollins, appellant pro se. Chauncey H. Browning, Attorney General, for appellee. N.D.W.Va. DISMISSED. Before PHILLIPS, ERVIN and CHAPMAN, Circuit Judges. PER CURIAM: 1 A review of the record and the district court's opinion accepting the magistrate's recommendation, discloses that an appeal from its order granting the writ with limited effect but otherwise denying relief pursuant to 28 U.S.C. Sec. 2254 would be without merit. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court.1 Rollins v. Holland, C/A No. 84-012-E(K) (N.D.W.Va., January 22, 1986). 2 DISMISSED. 1 We note that the district court found Rollins' claim, that he was prejudiced by the trial judge's rereading of the jury instructions relating to possible verdicts, procedurally barred under Wainwright v. Sykes, 433 U.S. 72 (1977) because Rollins' counsel did not object at trial. Insofar as this claim is one of constitutional magnitude, we decline to hold that Rollins is barred from presenting it here, particularly in light of the fact that the record does not reveal application of procedural bar by the West Virginia courts. Smith v. Bordenkircher, 718 F.2d 1273 (4th Cir.1983), cert. denied, 466 U.S. 976 (1984). Our review of the record, however, reveals that Rollins has not been prejudiced by the district court's application of the procedural bar since the court granted Rollins relief on the only prejudicial error resulting from the rereading of the jury instructions