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745 F.Supp. 599 (1990) UNITED STATES of America, Plaintiff, v. Rafael CARO-QUINTERO, et al., Defendants. No. CR 87-422(F)-ER. United States District Court, C.D. California. August 10, 1990. As Corrected August 14, 1990. *600 U.S. Atty., Manuel A. Medrano, John L. Carlton, Asst. U.S. Attys., Los Angeles, Cal., for U.S. Martin R. Stolar, New York City, for Juan Ramon Matta-Ballesteros. Edward Medvine, James E. Blancarte, Ronald A. DiNicola, Brian M. Colligan, *601 Mary E. Fulginiti, Mitchell, Silberberg & Knupp, Los Angeles, Cal., for Ruben Zuno-Arce. Gregory Nicolaysen, Federal Litigators Group, Inc., Beverly Hills, Cal., for Javier Vasquez-Velasco. Mary E. Kelly, Los Angeles, Cal., Michael S. Meza, Fountain Valley, Cal., for Juan Jose Bernabe-Ramirez. Robert Steinberg, Beverly Hills, Cal., for Humberto Alvarez-Machain. ORDER AND OPINION RAFEEDIE, District Judge. Before the Court is a motion filed by defendant Humberto Alvarez-Machain to dismiss for outrageous government conduct and for lack of personal jurisdiction. Defendant argues that he is entitled to such relief because the means by which the United States secured his presence before this Court runs afoul of due process clause of the fifth amendment and international law, and undermines the integrity of the judicial system. For the reasons stated below defendant's motion to dismiss for outrageous government conduct is denied. However, the Court finds that the United States violated the extradition treaty between the United States and Mexico when it unilaterally abducted defendant from his homeland. Under these circumstances, the Court lacks jurisdiction to try this defendant. Accordingly, the defendant is ordered discharged and the government is ordered to repatriate the defendant to Mexico forthwith. INTRODUCTION Doctor Humberto Alvarez-Machain is a Mexican national charged in connection with the torture/murder of Drug Enforcement Administration Special Agent Enrique Camarena-Salazar.[1] On May 10, 1990, Dr. Machain filed a motion to dismiss for outrageous government conduct and for lack of personal jurisdiction. Dr. Machain argues that the manner in which his physical presence within the jurisdiction of this Court was secured warrants dismissal. The Court has distilled four theories asserted as a basis for relief from the briefs filed by counsel for defendant.[2] First, Dr. Machain asserts that he has been deprived of due process of law guaranteed by the fifth amendment to the United States Constitution. A second ground is that dismissal is warranted because his presence in this country was obtained by means which violate the extradition treaty between the United States and Mexico. Third, Dr. Machain asserts that dismissal is warranted because his presence in this country was obtained by means which violate the terms of the Charters of the United Nations and the Organization of American States. Finally, the Court is urged to dismiss the indictment in an exercise of the Court's supervisory power.[3] BACKGROUND On May 25, 1990, the Court conducted an evidentiary hearing on this matter. A number of witnesses testified including Dr. Machain, DEA Special Agent Hector Berrellez, chief of "Operation Leyenda" (the DEA investigation of the Camarena murder), and DEA informant Antonio Garate-Bustamante, an admitted former advisor to Mexican drug lord Ernesto Fonseca-Carrillo. From this testimony the Court finds the following facts. On February 7, 1985, DEA agent Enrique Camarena was kidnapped outside the *602 American consulate in Guadalajara, Jalisco, Mexico. One month later, agent Camarena's mutilated body was found about sixty miles outside of Guadalajara along with the body of Alfredo Zavala-Avelar, a Mexican pilot who had assisted Camarena in locating marijuana plantations. On January 30, 1985, a sixth superseding indictment was returned in this case. This indictment charges twenty-two persons, including Dr. Machain, with crimes in connection with the Camarena and Zavala torture/murders.[4] To date, seven of the twenty-two indicted persons have been brought before this Court to stand trial on these offenses. Of the seven, three have been brought before this Court by means of covert forcible abduction from their homelands. Dr. Machain, a doctor of medicine with a specialty in obstetrics and gynecology who practices in Guadalajara, is the third such defendant.[5] Prior to the successful abduction of Dr. Machain, the DEA attempted to secure his presence in this jurisdiction through informal negotiations with representatives of the Mexican government. A. Negotiations with MFJP Commandante Carrillo del Rey In December, 1989, DEA informant Garate was contacted by Mexican Federal Judicial Police (MFJP) commandante Jorge Castillo del Rey. Castillo sought a meeting with the DEA to discuss the possible exchange of a Mexican national suspected of involvement in the Camarena killing for Isaac Naredo Moreno, who was residing in the United States and wanted by the Attorney General of Mexico in connection with the theft of large sums of money from politicians in Mexico. On December 13, 1989, DEA agent Berrellez and DEA Special Agent Bill Waters met with Castillo and an unidentified MFJP commandante in Los Angeles. Castillo advised the agents that he was working under Javier Orosco-Orosco, the chief of the MFJP fugitive detail in Mexico City. Castillo further advised the agents that he was present at the meeting with the full knowledge and authority of the Attorney General of Mexico. At the meeting, an agreement was struck whereby Dr. Machain would be delivered to the United States, and, upon receipt of Dr. Machain, the United States would determine the immigration status of Moreno and would begin deportation proceedings against Moreno if it were initially determined that he was deportable. The Mexican officials suggested that this arrangement be carried out "under the table" because its revelation would "upset" Mexican citizens. They emphasized that their identities should not be revealed. Castillo indicated that the delivery would be made after the Christmas holiday. On January 7, 1990, Garate advised Berrellez that the Mexican officials required $50,000 in advance to cover the expense of transporting Dr. Machain to the United States. The agents indicated that the DEA would not front any money for the operation. This was the apparent undoing of the agreement. For several days in January, DEA agents in El Paso waited in vain for the arrival of Dr. Machain. Dr. Machain was not delivered, and the agents returned to Los Angeles. B. Castillo del Rey's Request for a Second Meeting On January 25, 1990, Castillo again contacted Garate and requested a second meeting with DEA officials regarding the possible exchange of Dr. Machain for Moreno. He indicated that he would be joined by Pablo Aleman-Diaz, the second highest ranking commandante in the MFJP. Though agent Berrellez initially agreed to the meeting, he later declined in light of the tension between the Mexican government *603 and the United States which resulted from the airing of an NBC mini-series based upon the Camarena murder and ensuing investigation.[6] Berrellez testified that he cancelled the meeting because he feared that the meeting was a "set-up" by the Mexicans. No further meetings occurred between the DEA and representatives of the Mexican government. C. The Abduction Prior to, during, and after these communications with representatives of the Mexican government, agent Berrellez instructed Garate to convey to Garate's contacts in Mexico that the DEA would pay for information leading to the arrest and capture of individuals responsible for the death of Special Agent Camarena. In March of 1990, Garate told Berrellez that his "associates" in Mexico believed that they could successfully apprehend Dr. Machain and deliver him to custody in the United States. According to Garate, his "associates" include former military police officers, various civilians, and at least two current police officers. Special Agent Berrellez instructed Garate to tell his associates that the DEA would pay them a $50,000 reward plus expenses if Dr. Machain were delivered to the DEA in the United States. Berrellez testified that he received authorization to make this offer not only from his superiors in the Los Angeles division of the DEA, but also from officials in Washington, D.C., including Pete Gruden, Deputy Director of the DEA. Garate declared that he communicated this offer to his associates. During March, Berrellez had several discussions with Garate regarding the progress of Garate's associates in Mexico.[7] Berrellez testified that the abduction and the final terms of the abduction had been approved by the DEA in Washington, D.C., and agent Berrellez believed that the United States Attorney General's Office had also been consulted. On April 2, 1990, at about 7:45 p.m., Dr. Machain was in his office in Guadalajara, having just finished treating a patient. Five or six armed men burst into his office. One showed Dr. Machain a badge which appeared to be the badge of the federal police. Another man placed a gun to Dr. Machain's head and told him to cooperate or he would be shot. Dr. Machain was taken to a house in Guadalajara. One of the men hit him in the stomach as he exited the car at their request. In the house, he was forced to lay on the floor face down for two to three hours. Dr. Machain testified that he was shocked six or seven times through the soles of his shoes with a "an electric shock apparatus." He says that he was injected twice with a substance that made him feel "light-headed and dizzy." Dr. Machain was then transported by car to Leon where they were joined by a "fair-skinned" man. They all boarded a twin engine airplane. Dr. Machain asked the fair-skinned man to identify himself and to indicate where they were going. The man said that he was "with the DEA" and they were going to El Paso. Agent Berrellez testified that no DEA agents participated in the actual kidnapping. When they arrived in El Paso on April 3, agent Berrellez, Mr. Garate, and others were waiting for them on the runway. Only Dr. Machain exited the plane. As he exited, one of the men in the plane reportedly said, "We are Mexican police, here is your fugitive."[8] As of May 25, the DEA had made a partial reward payment of $20,000 to the Mexican abductors. In addition, the DEA evacuated seven of the abductors and their families from Mexico to the United States. *604 Finally, the DEA continues to pay expenses for these persons in an amount of approximately $6,000 per week. Garate testified that those abductors who were not evacuated to the United States were arrested, and in some cases beaten, by the MFJP. Upon his arrival in El Paso on April 3, Dr. Machain was asked whether he had been tortured, mistreated or abused. Dr. Machain answered that he had not, though he complained that he had injured his finger on the door of the aircraft. Shortly after his arrival, Dr. Machain complain of a pain radiating from his chest and pressure in his chest. He received prompt medical treatment from Dr. Mesa, a Spanish-speaking physician at Thomason General Hospital in El Paso. Dr. Mesa testified that he examined Dr. Machain from head to foot and found no sign of mistreatment or abuse. Dr. Machain did not mention any mistreatment or abuse. Dr. Meza prescribed a pain killer. Dr. Machain was subsequently treated by various other medical personnel during his incarceration. At no time did he indicate to the treating personnel that he had been mistreated by his kidnappers. Dr. Machain testified that he was trained in treating trauma victims. He testified his current medical practice includes the treatment of injured and traumatized patients. He testified that when he treats a patient suffering from a traumatic injury, he seeks all the relevant information that is available to the patient. On April 18, 1990, the Embassy of Mexico presented a diplomatic note to the United States Department of State in Washington, D.C., requesting a detailed report on possible U.S. participation in the abduction of Dr. Machain.[9] The Mexican government indicated that it was making "a scrupulous investigation [of] this case." The Mexican government advised the Department of State that "if it is proven that these actions were performed with the illegal participation of the U.S. authorities, the binational cooperation in the fight against drug trafficking will be endangered...." On May 16, 1990, the Embassy of Mexico presented a second diplomatic note to the Department of State. The note stated that "[t]he Government of Mexico considers that the kidnapping of Dr. Alvarez Machain and his transfer from Mexican territory to the United States of America were carried out with the knowledge of persons working for the U.S. government, in violation of the procedure established in the extradition treaty in force between the two countries." In the note, the government of Mexico demanded Machain's return to Mexico. On July 19, 1990, the Embassy of Mexico presented a third diplomatic note to the Department of State requesting the provisional arrest and extradition of Garate and Special Agent Berrellez for prosecution in Mexico for crimes relating to the abduction of Dr. Machain. DISCUSSION I. Dr. Machain's Due Process Claim Dr. Machain argues that this Court lacks jurisdiction over him because his abduction denies him due process of law as guaranteed by the fifth amendment. In Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), the Supreme Court established the long standing rule of law that a forcible abduction does not offend due process and does not require that a court dismiss an indictment for the loss of jurisdiction on those grounds. The Supreme Court reaffirmed this rule in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). These cases form the basis of the Ker-Frisbie doctrine. In Ker, the defendant challenged his conviction alleging that he had been kidnapped in Peru and brought into Illinois to stand trial against his will. The Court held that forcible abduction is not a ground to challenge jurisdiction over the person. Id. at *605 444, 7 S.Ct. at 229. In Frisbie, defendant sought a writ of habeas corpus challenging his detention in Illinois. He alleged that while he was living in Michigan, he was forcibly seized by Michigan officers, handcuffed and blackjacked (flogged) and taken to Michigan. The Court rejected the defendant's contention that he should be released due to the manner in which Illinois secured his presence in that jurisdiction. The Court has never departed from the rule announced in Ker, that the power of a court to try a person for a crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of forcible abduction.... There is nothing in the Constitution that requires a court to permit a guilty person to escape justice because he was brought to trial against his will. Frisbie, 342 U.S. at 522, 72 S.Ct. at 511-12. Subsequent opinions of the Court hold fast to this doctrine. See e.g., Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975) (illegal arrest or detention does not void a subsequent conviction); United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980) ("Respondent is not himself a suppressible `fruit,' and the illegality of his detention cannot deprive the government of the opportunity to prove his guilt through introduction of evidence wholly untainted by the police misconduct."); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) ("the `body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest"). Despite these clear, and, in some cases, recent pronouncements from the Supreme Court, the Second and Ninth Circuits have recognized an exception to the Ker-Frisbie Doctrine. The Second Circuit requires a court to divest itself of jurisdiction over the defendant where the defendant establishes governmental conduct "of the most shocking and outrageous kind." United States ex rel. Lugan v. Gengler, 510 F.2d 62, 65-66 (2d Cir.) cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). As framed by the Ninth Circuit, a defendant must make "a strong showing of grossly cruel and unusual barbarities inflicted upon him by persons who can be characterized as paid agents of the United States" to fit within the exception to the Ker-Frisbie doctrine. United States v. Lovato, 520 F.2d 1270, 1271 (9th Cir.) (per curiam), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975); see also, United States v. Valot, 625 F.2d 308 (9th Cir.1980) (dismissal of an indictment is warranted only where a defendant demonstrates governmental misconduct "of the most shocking and outrageous kind" (quoting Gengler, 510 F.2d at 65-66)).[10] While the Court finds that Dr. Machain's abductors were paid agents of the United States, Dr. Machain's allegations of mistreatment, even if taken as true, do not constitute acts of such barbarism as to warrant dismissal of the indictment under the case law. Moreover, Dr. Machain's allegations of mistreatment are not worthy of belief. Dr. Machain, a medical doctor trained in trauma care, testified that shortly after his arrival in the United States he developed chest pains. Yet when he sought relief from various examining medical personnel, he failed to relate to them that he had been repeatedly shocked with an electrical apparatus the day before these pains developed. Surely Dr. Machain *606 would have relayed this information to his treating physicians had he actually been repeatedly shocked. Under these circumstances, Dr. Machain's recent allegations of abuse are simply not credible. Defendant has failed to demonstrate that his case fits within the narrow exception to the Ker-Frisbie doctrine. Accordingly, defendant's motion to dismiss on due process grounds is denied. II. The Extradition Treaty Dr. Machain contends that this Court lacks jurisdiction because his abduction violates the Extradition Treaty Between the United States and the United Mexican States which took force on January 25, 1980. 31 U.S.T. 5059, T.I.A.S. No. 9656. A. Ker Doctrine Inapplicable As discussed earlier, the Ker-Frisbie doctrine is a constitutional doctrine which limits application of the due process clause of the fifth amendment for the purpose of dismissing an indictment. The doctrine has no application to violations of federal treaty law. This is illustrated by the Court's holding in United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), decided the same day as Ker. In Rauscher the Court held that an extradited person physically present within a court's jurisdiction can only be tried for one of the offenses described in that treaty, and [only] for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. Id. at 430, 7 S.Ct. at 246 (defining the "doctrine of specialty"). Similarly, in Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927), involving a challenge to the lower court's jurisdiction based upon a treaty between the United States and Britain, the Court found that the Ker doctrine had no application, holding that where "a treaty of the United States is directly involved ... the question is quite different." Id. at 606, 47 S.Ct. at 535. See also, Cook v. United States, 288 U.S. 102, 121, 53 S.Ct. 305, 312, 77 L.Ed. 641 (1933) (Ker doctrine inapplicable where basis for relief is treaty violation); United States v. Toscanino, 500 F.2d 267, 278 (2d Cir.1974) ("Ker does not apply where a defendant has been brought into the district court's jurisdiction by forcible abduction in violation of a treaty"); United States v. Ferris, 19 F.2d 925, 926 (N.D.Cal.1927) ("The prosecution contends ... that courts will try those before it, regardless of the methods employed to bring them here. There are many cases generally so holding, but none of authority wherein a treaty or other federal law was violated, as in the case at bar. That presents a very different aspect and case. `A decent respect for the opinions of mankind,' national honor, harmonious relations between nations, and avoidance of war, require that the contracts and law represented by treaties shall be scrupulously observed, held inviolate, and in good faith precisely performed [and] require that treaties shall not be reduced to mere `scraps of paper.'"). B. Invoking an Extradition Treaty in U.S. Courts 1. self-executing vs. executory treaties Treaties are the "Supreme Law of the Land." U.S. Const. art. VI, cl. 2. However, the American legal system recognizes a distinction between "self-executing" treaties and "executory" treaties. A self-executing treaty is federal law which must be enforced in federal court unless superseded by other federal law. A self-executing treaty is enforceable without resort to implementing legislation by Congress. On the other hand, an executory treaty is not enforceable until Congress has enacted implementing legislation. Absent such legislation, an infraction of an executory treaty "becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress...." Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884). An executory treaty is not enforceable in American courts. See generally, Restatement (Third) of the Foreign Relations Law *607 of the United States § 111 (1987) ("Restatement"). Extradition treaties by their nature are deemed self-executing and thus are enforceable without the aid of implementing legislation. 1 M. Bassiouni, International Extradition: United States Law & Practice, Ch. 2, § 4.1, pp. 71-72, § 4.2, p. 74 (2d ed. 1987) ("Bassiouni").[11] 2. Standing Whether a treaty is self-executing is a question distinct from whether a party has standing to enforce its terms. Restatement § 111, comments g, h. Thus a second question arises. Who may raise a violation of the treaty — the extradited person, the offended sovereign, or both? a. standing to raise forcible abduction as a violation of an extradition treaty "Ordinarily, claims for violation of an international obligation may be made only by the state to whom the obligation is owed." Restatement § 902, comment a; see also, Restatement § 906, comment a. Many courts have held that only the sovereign may object to the method of securing a person's presence as violative of the procedures of an extradition treaty. For example, in United States v. Reed, 639 F.2d 896 (2d Cir.1981), the defendant complained that he was unilaterally abducted by the CIA from the island of Bimini in the Bahamas and forcibly brought to Fort Lauderdale, Florida. Id. at 901. The defendant claimed that his abduction violated the extradition treaty in effect between the United States and the Bahamas. The Second Circuit found that Reed had no standing to raise this argument. "[A]bsent protest or objection by the offended sovereign, Reed has no standing to raise violation of international law as an issue." Id. at 902. See also, United States v. Valot, 625 F.2d 308, 310 (9th Cir.1980) (in response to allegation that abduction violated extradition treaty the court held that "[e]ven where a treaty provides certain benefits for nationals of a particular state ... individual rights are only derivative through the states." (quoting, United States v. ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975)); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.1990) (in response to allegation that abduction violated extradition treaty the court held that "[i]t is well established that individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereign involved."); United States v. Cordero, 668 F.2d 32, 38 (1st Cir.1981) (in response to allegation that abduction violated extradition treaty the court held that "it is the contracting foreign government, not the defendant that would have the right to complain about a violation"); Restatement § 432 R.N. 3 ("Under prevailing practice, ... states ordinarily refrain from trying persons illegally brought from another state only if that state demands the person's return."). According to this line of authority, only the sovereign may raise a claim that the method of securing a person's presence violates the procedures of an extradition treaty. b. distinguished from standing to raise the "doctrine of specialty" The precise standing issue in the present case must be distinguished from the issue of who has standing to invoke the "doctrine of specialty" because some courts have held that either the state or the individual may raise the "doctrine of specialty." The doctrine of specialty prohibits the requesting nation from prosecuting an extradited individual for any offense other than that for which the extraditing state agreed to extradite. United States v. Rauscher, 119 U.S. 407, 430, 7 S.Ct. 234, 246, 30 L.Ed. 425 (1886); Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986). The doctrine addresses only the permissible scope of prosecution of a person brought to this country through extradition proceedings, rather than the permissibility under the treaty of *608 the means by which a person's presence is secured. There is a split in the circuits as to whether an individual has standing to raise the doctrine of specialty with regard to an extradition. Leighnor v. Turner, 884 F.2d 385 (8th Cir.1989) (collecting cases). While the Ninth Circuit has held that an extradited individual may raise this doctrine, United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 652, 93 L.Ed.2d 707 (1986), it is difficult to discern the basis for this holding.[12] It may be argued that by affirmatively undertaking extradition proceedings and limiting the scope of prosecution by the receiving state, the sending state implicitly protests prosecution on any bases not specified by the bill of extradition. This implicit protest thereby vests the individual with the sending state's rights and standing in that regard. Dr. Machain's claim would not appear to fall within the confines of the doctrine of specialty nor the rationale for individual standing. Dr. Machain is not asserting that he is being prosecuted for a crime other than that to which Mexico agreed during the extradition proceedings. Indeed, no extradition proceedings have occurred which might be construed as an implicit protest to Dr. Machain's prosecution for the crimes charged. Rather, Dr. Machain claims that the method of his abduction violated the extradition treaty between the United States and Mexico by unilaterally bypassing the extradition procedures altogether. Under these circumstances, there is no act by the sending state which can be construed as an implicit protest. This Court holds that its is for the state, and not the individual, to initially protest and thereby raise a claim that the method of securing a person's presence violates an extradition treaty. The individual's standing to raise this claim is purely derivative of that of the state. c. Mexico has expressly and adequately protested and thereby vested Dr. Machain with its rights under the extradition treaty Little authority exists as to what constitutes a protest by a sovereign for the purpose of raising a treaty violation in federal court.[13] In Gengler, the Second Circuit stated that to support such a claim, a defendant would have to prove the sovereign "registered an official protest with the United States Department of State." 510 F.2d at 67 n. 8; see also, Matta-Ballesteros ex rel. Stolar v. Henman, 896 F.2d 255, 260 (7th Cir.1990) (requiring "an official protest"). The Embassy of Mexico has presented a diplomatic note to the United States Department of State in Washington, D.C. concluding that U.S. agents violated the terms of the extradition treaty by unilaterally abducting Dr. Machain, and demanding Dr. Machain's return to Mexico. Mexico has adequately protested and raised any rights it has under the extradition treaty in force between the United States and Mexico. Accordingly, Dr. Machain has derivative standing to invoke those rights. The legality of Dr. Machain's abduction *609 under the extradition treaty is therefore squarely before the Court. C. The United States' Participation in the Abduction of Dr. Machain Violated the Extradition Treaty In opposition to this motion, the government makes two arguments why the United States has not violated the terms of the extradition treaty. First, the government argues that it did not violate the treaty because United States personnel did not personally participate in the abduction in Mexico. Second, the government argues that, even if the United States is chargeable with the conduct of the Mexican abductors, there has been no violation of the extradition treaty because there has been no formal extradition. Neither of these arguments is tenable. The United States is responsible for the actions of its paid agents, and a unilateral abduction by the United States when combined with an official protest from the government of Mexico constitutes a violation of the extradition treaty between these two sovereigns. 1. State responsibility The record reveals that the DEA and its informants were integrally involved in Dr. Machain's abduction. Prior to the kidnapping, the DEA induced the abductors with the offer to pay a $50,000 reward for the successful abduction of Dr. Machain and promised to reimburse these individuals for their expenses. These promises were communicated to the abductors prior to the abduction. The DEA gave the go ahead for the abduction. This command was approved at the highest levels of the DEA. The United States Attorney General's office appears to have been consulted. Upon completion of the abduction, the DEA paid a $20,000 reward to the abductors and their families. In addition, many of the abductors and their families have been relocated to the United States. The United States pays approximately $6,000 per week in living expenses for the relocated abductors. [I]t is clear that state responsibility attaches to acts committed by agents of a state or by private individuals acting on behalf of the state. In the latter instance, the type of connection which must be established between the individual (acting privately) and the state (in order to impute that individual's act to the state) is not very clear.... There is, however, no ambiguity in cases where the state, through its agents, incited, encouraged or induced private individuals to undertake such actions with a view to benefit from its outcome. 1 Bassiouni, Ch. 5, § 5.2, p. 216; compare, United States v. Lovato, 520 F.2d 1270, 1271 (9th Cir.) (per curiam), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975) (state responsible under exception to Ker-Frisbie doctrine for "barbarities inflicted ... by persons who can be characterized as paid agents of the United States."). Therefore, the United States may be charged with the acts of Dr. Machain's abductors. 2. Violation of the Extradition Treaty The government argues that there has been no violation of the extradition treaty where the United States unilaterally abducted a Mexican national from Mexican territory, because there have been no formal extradition proceedings in this case. As a basis for this contention, the government relies on the settled principle that an extradition treaty does not "purport to describe the procedural requirements for extradition incumbent upon the rendering state." Najohn, 785 F.2d at 1422. See also, Cordero, 668 F.2d at 38 ("To hold that extradition treaties forbid foreign nationals to return criminal defendants except in accordance with the formal procedures they contain, would ... represent a novel interpretation of those treaties."). This principle, however, and the cases cited by the government (discussed below), do not hold, nor suggest, that an extradition treaty does not limit the permissible procedures that may be employed by the receiving state. Like all treaties, extradition treaties "[are] designed to protect the sovereignty and territorial integrity of states, and to restrict impermissible state conduct." Bassiouni, Ch. 5, § 2, p. 194. As early as Rauscher (1886), the Supreme *610 Court recognized that extradition treaties exist to protect the sovereignty of the contracting states.[14] While in Rauscher the Court was primarily concerned with the development of the doctrine of specialty as "an appropriate adjunct" to the principles of territorial sovereignty embodied in a treaty of extradition, the Court also concluded that these principles, and the treaty, limit the means by which a state may obtain jurisdiction over an individual located in the territory of the other contracting state. Thus, the Rauscher Court concluded that where an extradition treaty is in place, an individual "can only be taken under a very limited form of procedure...." Rauscher, 119 U.S. at 421, 7 S.Ct. at 241.[15] The government's contention in the present case that a state violates an extradition treaty when it prosecutes for a crime other than that for which the individual was extradited (the doctrine of specialty), but not when a state unilaterally flouts the procedures of the extradition treaty altogether and abducts an individual for prosecution on whatever crimes it chooses, is absurd. It is axiomatic that the United States or Mexico violates its contracting partner's sovereignty, and the extradition treaty, when it unilaterally abducts a person from the territory of its contracting partner without the participation of or authorization from the contracting partner where the offended state registers an official protest.[16] The cases cited by the government do not instruct otherwise. a. Ker v. State of Illinois The government attempts to rely upon Ker v. State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) (decided the same day as Rauscher) as a basis for asserting that there has been no violation of the extradition treaty in the present case. Ker provides no support for this proposition. In Ker, an American private detective named Henry Julian, while in Peru, received duly executed extradition papers from the United States government which conformed to the requirements of the extradition treaty between the United States and Peru. Julian was instructed to serve these papers upon the Peruvian government to begin the extradition process. Julian failed to use these papers because the proper government of Peru was inaccessible as a result of military occupation of the capital by Chilean forces. Rather than use these papers, the detective, with the assistance of the occupying Chilean forces, forced Ker to board a vessel bound for the United States. At no time did the Peruvian government object to this procedure. *611 Ker challenged the state court's jurisdiction on two grounds. First, Ker objected to his forcible abduction on due process grounds. The Court rejected his due process objection and this holding formed the basis of the Ker-Frisbie doctrine. Second, Ker claimed that his abduction violated the existing extradition treaty between the United States and Peru. The Court denied Ker's second claim finding that there was no violation of the treaty because there was no state action by the United States. The Court stated: In this case before us, the plea shows that, although Julian went to Peru with the necessary papers to procure the extradition of Ker under the treaty, those papers remained in his pocket, and were never brought to light in Peru; that no steps were taken under them; and that Julian, in seizing upon the person of Ker, and carrying him out of the territory of Peru into the United States, did not act, nor profess to act, under the treaty. In fact, the treaty was not called into operation, was not relied upon, was not made the pretext of the arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretense of authority under the treaty or from the government of the United States. Id. at 442-43 (emphasis added). In this context, the United States owed Peru no duty under the extradition treaty with regard to the kidnapping because the kidnapping could not be construed as the act of the United States, and therefore there had been no extradition.[17] The extradition treaty simply had no bearing on the acts of Julian as an individual, and therefore had no application to the facts of the abduction. Therefore, Ker has no bearing on the present case.[18] b. cases involving consent or acquiescence of the rendering state The government also attempts to rely upon cases involving either a joint effort by the contracting states or some other form of consent to the abduction by the rendering state. In these situations, there is no violation of the treaty because there is no affront to the rendering state's sovereignty. These cases do not apply to the instant case where there has been neither a joint effort nor consent from the Mexican government, and indeed the Mexican government has registered an official protest against the United States' acts. In Cordero, 668 F.2d 32 (1st Cir.1981) for example, the defendants were arrested in Panama by Panamanian officials, sent by air to Venezuela, and then to Puerto Rico where they were convicted of various drug-related charges. In rejecting the defendants' claim that this procedure violated the extradition treaties between the United States and Panama and Venezuela, the First Circuit held that "[n]othing in the treaty prevents a sovereign nation [Panama or Venezuela] from deporting foreign nationals for other reasons and in other ways should it wish to do so." Id. at 37. The Court found "no basis for any inference that either Panama or Venezuela objected to the appellants' departure from their territories. To the contrary, it was Panamanian and Venezuelan authorities who deported them." Id. at 38. *612 Similarly, in United States v. Valot, 625 F.2d 308 (9th Cir.1980) a U.S. warrant was issued for the arrest of the defendant who had violated the terms of parole by traveling to Asia. Valot was arrested in Thailand by Thai authorities, and eventually escorted to the Bangkok airport by Thai immigration officials where he was received by DEA agents and flown to the United States. Id. at 309. Since Thai officials aided in Valot's removal to the United States, the court held that the extradition treaty was not violated. Id. at 310. "[W]here no demand for extradition is made by the United States and the defendant is deported by the authorities of the other country which is party to the treaty, no `extradition' has occurred and failure to comply with the extradition treaty does not bar prosecution." Id. See also, Lovato, 520 F.2d at 1272 (no violation of extradition treaty as a result of "routine expulsion by Mexican officials of an undesirable alien"); Stevenson v. United States, 381 F.2d 142, 144 (9th Cir.1967) (no violation of extradition treaty where defendants were deported by Mexican immigration officials); United States v. Herrera, 504 F.2d 859 (5th Cir.1974) (no violation of extradition treaty where defendant was deported from Peru to the United States by Peruvian officials and United States officials); Matta-Ballesteros, 896 F.2d at 261 (no violation of extradition treaty as a result of joint abduction by U.S. agents and Honduran agents where Honduran government did not protest abduction); United States v. Sobell, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957).[19] In the present case, there has been no joint effort by the United States and Mexico. The record reveals no participation in the abduction by the Mexican government. Rather, the record reveals that earlier negotiations between the United States and known representatives of Mexico for an exchange of fugitives had broken down. When Mexico attempted to revive those negotiations, the United States refused. The United States then unilaterally proceeded with the abduction without the knowledge or participation of the Mexican government. The fact that two of the abductors appear to have been active Mexican police officers is of no consequence. They were clearly acting outside the scope of their authority. The government of Mexico has indicated that they violated the Mexican constitution and the extradition treaty. Compare, Ker, 119 U.S. at 443, 7 S.Ct. at 229 (the acts of Julian were "without any pretense of authority under the treaty or from the government of the United States."). The Mexican government has arrested its citizens who participated in those acts, and has requested extradition of Berrellez and Garate for prosecution in Mexico for kidnapping. Finally, the government of Mexico has formally protested these acts to the United States Department of State and has indicated that *613 they endanger the binational efforts of the United States and Mexico in the fight against drug trafficking. Nor can the United States complain that it was mislead into believing that Garate's associates acted under the authority of the Mexican government. Unlike his testimony with regard to Castillo, agent Berrellez testified that he did not know whether Garate's associates were acting under the authority of the Mexican government. Apparently this was not a crucial consideration. The remaining cases cited by the government are inapposite because, although they did not involve joint abductions, the rendering state did not register a protest to the abduction. Courts have held that where the offended state fails to register a protest to an abduction, that state acquiesces to the unilateral act of the receiving state, and there is no violation of international law. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975) for example, DEA agents hired an individual to lure Lugan from Argentina by posing as a business man who needed Lugan (a pilot) to fly him to Bolivia. In Bolivia, Lugan was "promptly taken into custody by Bolivian police who were not acting at the direction of their own superiors or government, but as paid agents of the United States." Id. at 63. The Bolivians, acting together with American agents, then placed Lugan on a plane heading for New York. Id. The court held that "the failure of Bolivia or Argentina to object to Lugan's abduction would seem to preclude any violation of international law which might otherwise have occurred." Id. at 67. See also, United States v. Toro, 840 F.2d 1221, 1235 (5th Cir.1988) (no violation of extradition treaty when DEA agents removed individual from Panama without complying with extradition procedures where "neither party to the treaty has objected to de la Pava's extradition"); United States v. Reed, 639 F.2d 896 (2d Cir.1981) (no violation of extradition treaty where Bahamian government did not seek the return of defendant and did not protest abduction). The present case is distinguished from those cited by the government because there is no indication that Mexico has participated in or consented to this abduction, and Mexico has registered a protest to this abduction. The Court notes that the Ninth Circuit has consistently chosen language which preserves this distinction. In Najohn, the Ninth Circuit noted that "the surrender of the defendant [under an extradition treaty] requires the cooperation of the surrendering state" and that an extradition treaty does not "purport to describe the procedural requirements for extradition incumbent upon the rendering state." 785 F.2d at 1422 (emphasis added). In Stevenson the Ninth Circuit held that "[w]hile the formalities of extradition may be waived by the parties to the treaty, a demand in some form by one country upon the other is required, in order to distinguish extradition from the unilateral act of one country, for its own purposes, deporting or otherwise unilaterally removing unwelcome aliens." 381 F.2d at 144 (emphasis added). In Valot, the Ninth Circuit held that "where no demand for extradition is made by the United States and the defendant is deported by the authorities of the other country which is a party to the treaty, no `extradition' has occurred and failure to comply with the treaty does not bar prosecution." 625 F.2d at 310 (emphasis added).[20] *614 In the present case, the United States acted unilaterally, without the participation or consent of the Mexican Government, and the Mexican government has registered an official protest to these actions. Given these facts, the United States has violated the extradition treaty between the United States and Mexico. C. Remedy Under international law, a state that has violated an international obligation to another state is required to terminate the violation and make reparation to the offended state. Restatement § 901. "[T]he reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed." Restatement § 901 R.N. 3. In Toscanino, the second Circuit applied this principle to an abduction similar to that in the present case. There, the Second Circuit recognized "a long standing principle of international law that abductions by one state of persons located within the territory of another violate the territorial sovereignty of the second state and are redressable usually by the return of the person kidnapped." Toscanino, 500 F.2d at 278; see also, 1 Bassiouni, Ch. 5, § 5.4, p. 235. Similarly, in Rauscher, the Court held that where a receiving state seeks to prosecute an individual for crimes other than those for which she or he was extradited, the receiving state must first afford the individual an opportunity to return to the country from which he or she was received, or be in violation of the treaty. 119 U.S. at 430, 7 S.Ct. at 246. The remedy in the present case is the immediate return of Dr. Machain to the territory of Mexico. Accordingly, the United States is hereby ordered to return him to the territory of Mexico. III. The Charter of the United Nations and Charter of the Organization of American States Dr. Machain attempts to invoke provisions of the Charter of the United Nations[21] and Charter of the Organization of American States.[22] He argues that his abduction by paid agents of the United States violates these international instruments and warrants dismissal of the indictment. The Court need not reach these issues in light of its holding with regard to the extradition treaty. The Court notes however, that while the United States' participation in the abduction of Dr. Machain would appear to violate these international instruments,[23] the weight of authority indicates that these international instruments are not self-executing and therefore are not enforceable in federal courts absent implementing legislation.[24] Dr. Machain has *615 failed to cite authority to the contrary.[25] IV. Supervisory Power Finally, Dr. Machain seeks dismissal of the indictment under the Court's supervisory power. A court must not allow itself to be made an "accomplice[] in willful disobedience of law." McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 615, 87 L.Ed. 819 (1943). Guided by considerations of justice, a court may exercise it's supervisory power as necessary to preserve judicial integrity and deter illegal conduct. United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). This Court takes note that Dr. Machain is but one of three defendants named in this indictment, or in preceding indictments in this case, to be brought before this Court by forcible abduction from his homeland. Today, this Court need not rest its decision upon its supervisory power, and does not do so. However, the Court admonishes the DEA to heed Judge Oakes' warning made fifteen years ago, which this Court now adopts: "[W]e can reach a time when in the interest of establishing and maintaining civilized standards of procedure and evidence, we may wish to bar jurisdiction in an abduction case as a matter not of constitutional law but in the exercise of our supervisory power.... To my mind the Government in its laudable interest of stopping the international drug traffic is by these repeated abductions inviting exercise of that supervisory power in the interest of the greater good of preserving respect for the law." United States v. Lira, 515 F.2d 68, 73 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975) (Oakes, J., concurring). IT IS SO ORDERED. *616 It is further Ordered that the Clerk of the Court shall serve, by United States mail, copies of this Order on counsel for the parties in this matter. NOTES [1] The sixth superceding indictment, returned on January 31, 1990, charges Machain with conspiracy to commit violent acts and violent acts in furtherance of an enterprise engaged in racketeering activity (18 U.S.C. § 1959), conspiracy to kidnap a federal agent (18 U.S.C. § 1201(c)), kidnap of a federal agent (18 U.S.C. § 1201(a)(5)), felony-murder (18 U.S.C. § 1111(a), 1114), and accessory after the fact (18 U.S.C. § 3). [2] These briefs have provided the Court with little assistance toward resolving the issues raised by defendant's motion. [3] In his moving papers, defendant also argued that the indictment should be dismissed because the statutes charged do not have extraterritorial application. The Court denied this aspect of defendant's motion at the May 25, 1990, hearing of this motion. [4] Some of the persons named in the sixth superseding indictment are charged with the murders of tourists John Walker and Alberto Radelat. [5] See also, Matta-Ballesteros ex rel. Stolar v. Henman, 697 F.Supp. 1040 (S.D.Ill.1988), aff'd, 896 F.2d 255 (7th Cir.1990) (discussing abduction of defendant Matta-Ballesteros); United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir.1988), rev'd, ___ U.S. ___, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (discussing abduction of defendant Verdugo-Urquidez). [6] "Drug Wars: The Camarena Story" aired on NBC on January 7, 8 and 9, 1990. [7] Garate testified that he did not make a move without first consulting with and obtaining authorization from agent Berrellez. He testified that "I could not take any step or make any promise without checking with Mr. Berrellez on the conditions of them and under which Mr. Berrellez wanted this operation to be carried out, if he wanted it to be carried out." [8] Agent Berrellez testified that he did not know whether the abductors were acting under the authority of their government. [9] On May 30, 1990, the Court ordered the government to submit to the Court "any documents indicating that the government of Mexico has filed an official protest regarding the abduction of defendant Machain with the United States government" as well as translated transcriptions of any such documents. The diplomatic notes referred to in this opinion were submitted to the Court by the government pursuant to this Order. [10] This Court is not aware of any case in which an indictment has been dismissed under an exception to the Ker-Frisbie doctrine. See also, Matta-Ballesteros v. Henman, 896 F.2d 255, 261 (7th Cir.1990) (unaware of any such case). Obviously the conduct must be more barbaric than that alleged in Frisbie (blackjacking). The Ninth Circuit has indicated that the conduct alleged in the Second Circuit case of United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), is "shocking to the conscience." United States v. Fielding, 645 F.2d 719, 723 (9th Cir.1981). In Toscanino, the defendant alleged that he had been kidnapped in Peru, and brutally tortured and interrogated for 17 days and held incommunicado for a period and interrogated for 17 days and held inco of time and denied food and water, all with the knowledge of the Assistant United States Attorney. 500 F.2d at 275. The Second Circuit has suggested that the Toscanino showing is the minimum required showing to invoke the doctrine. See, United States v. Reed, 639 F.2d 896, 902 (2d Cir.1981). [11] Moreover, Congress has enacted legislation providing that extradition is to be undertaken by virtue of a treaty and subject to judicial proceedings in federal district court in accordance with the provisions of the statute. 18 U.S.C. § 3181 et seq. (1948). [12] The Najohn court cited Rauscher for this proposition. While the Rauscher Court spoke of "the right conferred upon persons brought from a foreign country into this under [extradition] proceedings," 119 U.S. at 424, 7 S.Ct. at 243, in Rauscher there had already been a protest by the government of Britain to Rauscher's prosecution. See, Ford v. United States, 273 U.S. at 615, 47 S.Ct. at 538 (Rauscher "was decided at the end of a prolonged controversy between Great Britain and the United States, through their State Departments"); see also, United States v. Kaufman, 858 F.2d 994, 1009 (5th Cir. 1988) (noting same and concluding that in Rauscher the sovereign had invoked its rights). Thus in Rauscher, the individual defendant had derivative standing because the sovereign protested under the treaty and thereby vested the individual with standing to invoke its rights. [13] Counsel for Dr. Machain has submitted a stipulation signed by the parties which reads: "It is hereby stipulated, by and between the United States Attorney, and defendant Humberto Alvarez Machain [sic], by and through his counsel, Robert K. Steinberg, that the Mexican Government has objected to the circumstances of the apprehension of defendant Alvarez-Machain in Mexico." The fact that the parties have stipulated that the Government of Mexico has "objected" does not make it so, nor confer derivative standing upon defendant. [14] to the doctrine of publicists and writers on international law, the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up. This is a principle which commends itself, as an appropriate adjunct, to the discretionary exercise of the power of rendition, because it can hardly be supposed that a government which was under no treaty obligation, nor any absolute obligation of public duty, to seize a person who had found asylum within its bosom, and turn him over to another country for trial, would be willing to do this, unless a case was made of some specific offense, of a character which justified the government in depriving the party of his asylum.... It is very clear that this treaty did not intend to depart in this respect from the recognized public law which had prevailed in the absence of treaties.... This is not only apparent from the general principle that the specific enumeration of things implies the exclusion of all others, but the entire face of the treaty, including the processes by which it is to be carried into effect, confirms this view of the subject. Rauscher, 119 U.S. at 419-420, 7 S.Ct. at 240-41. [15] Further, in concluding that extradition treaties should be construed as protecting the territorial integrity and sovereignty of the contracting states, the court reasoned that "This is not only apparent from the general principle that the specific enumeration of things implies the exclusion of all others, but the entire face of the treaty, including the processes by which it is to be carried into effect, confirms this view of the subject." Rauscher, 119 U.S. at 419-420, 7 S.Ct. at 241 (emphasis added). [16] Cf. Toscanino, 500 F.2d at 277 (finding that state-sponsored kidnapping as alleged violated the territorial integrity of the sovereign and thereby violated provisions of the Charter of the United Nations and the Charter of the Organization of American States). [17] Peru could however seek extradition of Julian to Peru to stand trial for the kidnapping. 119 U.S. at 444, 7 S.Ct. at 229. [18] The government also cites Ex Parte Lopez, 6 F.Supp. 342 (S.D.Tex.1934), a case which relies on Ker. Lopez involved facts similar to those in the present case. In Lopez, defendant, a Mexican national, was seized in Nuevo Laredo in Mexico by four men, and forcibly brought into the United States where he was arrested by a U.S. Marshall. The abductors appear to have been Mexican nationals. The court indicated that Mexico had protested the abduction. The court did not indicate whether the defendant based his claim for relief on the due process clause, an extradition treaty, or both. The court's entire analysis of defendant's claim, whatever it may have been, consisted of the following statement: "The cases are practically all one way that petitioner may not, under such circumstances, be discharged in a habeas corpus proceeding." Id. at 344. The court cited Ker. To the extent that the Ex Parte Lopez court relied upon Ker as holding that unilateral forcible abduction may not violate an extradition treaty, Ex Parte Lopez was wrongly decided for the reasons discussed in the body of this opinion. [19] In Sobell, the appellant (Sobell) alleged that he was abducted from Mexico by Mexican Security Police acting as agent of the United States F.B.I., and delivered to U.S. agents at the United States border. The Second Circuit concluded that "Appellant was deported from Mexico." Id. at 523. There was no protest filed by Mexico. In reaching its conclusion that the extradition treaty had not been violated, the Second Circuit did not rely upon the joint participation of the Mexican officials, nor the failure of Mexico to protest to the abduction. Inexplicably, the Second Circuit based its ruling upon a finding that there was no state responsibility on the part of the United States for the acts of the Mexican Secret Police who were presumed for the purposes of the motion to be "agents" of the F.B.I. The Second Circuit court rejected Sobell's contention that, "The acts of the United States agents in initiating, planning and participating in the seizure" would impose state responsibility on the United States. Id. at 525. The court held that "it can hardly be maintained, still assuming the truth of appellant's charges, that the unlawful and unauthorized acts of the Mexican police acting in behalf of subordinate agents of the executive branch of the United States Government were any more the acts of the United States than the unlawful and unauthorized acts of the emissary of the Chief Executive [in Ker]. We think that the question presented in indistinguishable from that before the Supreme Court in Ker, and that our decision here is controlled by that case." Id. The Court questions what formulation of state responsibility the Sobell court was applying. In any event, as discussed earlier in this opinion, in the present case the Court finds that the United States is chargeable with the acts of its paid agents, Garate's associates. [20] Similarly, the Court in Ker, 119 U.S. 436, 7 S.Ct. 225, wrote: [It cannot] be doubted that the government of Peru could, of its own accord, without any demand from the United States, have surrendered Ker to an agent of the state of Illinois, and that such surrender would have been valid within the dominions of Peru.... The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him [Ker] to demand and insist upon security in such an asylum. The treaty, so far as it regulates [Ker's] right of asylum at all, is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice; so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal therefrom. Id. at 442, 7 S.Ct. at 228 (emphasis added). The Court simply then went on to hold that the United States had not participated in Ker's abduction and therefore there had been no violation of the treaty. Under these circumstances, the United States owed Peru no duty with regard to the abduction of Ker by Julian, though Peru could seek extradition of Julian from the United States. Id. at 444, 7 S.Ct. at 229. [21] The U.N. Charter obligates "All members" to "refrain ... from the threat or use of force against the territorial integrity of political independence of any state." U.N. Charter, June 26, 1945, 59 Stat. 1031, T.S. 993, art. 2 para. 4. [22] The O.A.S. Charter provides that the "territory of a state is inviolable; it may not be the object, even temporarily ... of ... measures of force taken by another state, directly or indirectly, on any grounds whatever...." O.A.S. Charter, April 30, 1948, 2 U.S.T. 2394, TIAS No. 2361, as amended by the Protocol of Buenos Aires, February 27, 1967, 21 U.S.T. 607, TIAS No. 6847, art. 20[17]. [23] See Toscanino, 500 F.2d at 277. [24] See, Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 374 n. 5 (7th Cir.1985) (U.N. Charter provisions not self-executing); Spiess v. C. Itoh & Co. (America) Inc., 643 F.2d 353, 363 (5th Cir.1981), vacated on other grounds, 457 U.S. 1128, 102 S.Ct. 2951, 73 L.Ed.2d 1344 (1982) (U.N. Charter not self-executing); People of Saipan, By and Through Guerrero v. U.S. Dept. of Interior, 502 F.2d 90, 102 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975) (Trask, J., concurring) (U.N. Charter not self-executing); Hitai v. Immigration and Naturalization Service, 343 F.2d 466, 468 (2d Cir.) cert. denied, 382 U.S. 816, 86 S.Ct. 36, 15 L.Ed.2d 63 (1965) (provision of U.N. Charter not self-executing and does not invalidate provision of immigration law); Vlissidis v. Anadell, 262 F.2d 398, 400 (7th Cir.1959) (U.N. Charter does not supercede quota system of United States immigration law); Manybeads v. United States, 730 F.Supp. 1515, 1521 (D.Ariz. 1989) (U.N. Charter not self-executing); Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C.1958), aff'd, 278 F.2d 252 (D.C.Cir.) (per curiam), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960) (U.N. Charter not self-executing)); Camacho v. Rogers, 199 F.Supp. 155, 158 (S.D.N.Y. 1961) (provisions of U.N. Charter not self-executing); Sei Fujii v. California, 38 Cal.2d 718, 722-25, 242 P.2d 617 (1952) (U.N. Charter not self-executing); In re Alien Children Ed. Litigation, 501 F.Supp. 544, 590 (S.D.Tex.1980) (Article 47 of O.A.S. Charter not self-executing); Filartiga v. Pena-Irala, 630 F.2d 876, 882 n. 9 (2d Cir.1980) (O.A.S. Charter not self-executing) (dicta); Doe v. Plyler, 628 F.2d 448, 453 (5th Cir.1980) (Protocol of Buenos Aires not self-executing) (dicta). Other courts have held that these instruments are not "self-executing" in the sense that they do not confer judicially enforceable rights upon individuals. See e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C.Cir.), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1984) (Bork, J., concurring) (U.N. Charter not "self-executing"). [25] While defendant may attempt to rely upon Toscanino, 500 F.2d 267 (2d Cir.1974), a close reading of that decision reveals that it is inapposite. While the Toscanino court found that the defendant had alleged acts by the U.S. government that would constitute violations of the U.N. and O.A.S. Charters if shown to be true, that court did not hold that these international agreements were controlling law enforceable in federal court. Rather, the Second Circuit examined these international instruments as evidence of principles of international law (as opposed to international agreements). In this capacity, the Charters were relevant to assist the court in determining whether the government's conduct might violate a defendant's rights protected by principles of customary international law and might warrant an exercise of that court's supervisory powers. Id. at 276-79. In Filartiga, the Second Circuit explained its earlier holding in Toscanino: We observe that this Court has previously utilized the U.N. Charter and the Charter of the Organization of American States, another non-self-executing agreement, as evidence of binding principles of international law. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). In that case, our government's duty under international law to refrain from kidnapping a criminal defendant from within the borders of another nation, where formal extradition procedures existed, infringed the personal rights of the defendant, whose international law claims were thereupon remanded for a hearing in the district court. Filartiga, 630 F.2d at 882 n. 9 (emphasis added). To the extent that these Second Circuit cases suggest that principles of international law may provide a defendant substantive rights in federal court, this proposition has been rejected by the Ninth Circuit. United States v. Davis, 905 F.2d 245, 248 n. 1 (9th Cir.1990) ("International law principles, standing on their own, do not create substantive rights or affirmative defenses for litigants in United States courts.").

137 Ariz. 367 (1983) 670 P.2d 1192 STATE of Arizona, Appellee, v. Roberto SUAREZ, Appellant. No. 1 CA-CR 5920. Court of Appeals of Arizona, Division 1, Department A. July 19, 1983. Rehearing Denied August 22, 1983. Review Denied October 12, 1983. *369 Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., *370 and Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee. Harvey R. Jackson, Lake Havasu City, for appellant. OPINION CONTRERAS, Judge. Following a trial by jury, appellant was convicted of one count of fraudulent scheme and artifice in violation of A.R.S. § 13-2310. The trial court suspended imposition of sentence and placed appellant on probation for a term of five years, and as conditions of probation, ordered that appellant serve a year in the county jail and pay restitution in the amount of $6,000. He timely filed a notice of appeal and raises nine issues for our consideration: 1. Whether the indictment is void for duplicity; 2. Whether the trial court erred in denying his motion for a directed verdict of acquittal as to a portion of the indictment; 3. Whether the trial court properly instructed the jury; 4. Whether the State of Arizona had jurisdiction over the offense charged; 5. Whether the prosecutor commented on the appellant's right to remain silent at trial; 6. Whether the evidence is sufficient to support the conviction; 7. Whether appellant's right to a speedy trial was violated; 8. Whether the citing of an erroneous statute in the indictment renders the indictment void; and 9. Whether appellant received effective representation by trial counsel. The evidence introduced at trial revealed that appellant was the finance director of Lake Havasu City until his resignation in December, 1980. His successor in office discovered irregularities in certain checks drawn on the Lake Havasu City account, and signed by appellant. She reported the irregularities to her supervisor, and an investigation ensued. The investigation revealed that a Mr. O'Leary, an employee of the Burroughs Corporation in Las Vegas, Nevada, had dealt with appellant in his capacity as finance director concerning the purchase of a computer system for Lake Havasu City. Following the installation of the computer, O'Leary told appellant he would provide the city with five free computer discs which had a value of approximately $100 each. In March or April, 1980, O'Leary brought two or three discs to Lake Havasu City with the understanding that he would bring the balance of the free discs on his next visit. When O'Leary delivered the discs to appellant, appellant proposed that he write out a city check to O'Leary for $400, and that O'Leary return half of the amount of the check, $200, to appellant personally. The city check was written to a fictitious corporation, Nevada Computer Supply or Mark O'Leary. O'Leary deposited the check in his personal checking account and gave appellant a check for half the amount. O'Leary testified that from March through September or October of 1980, he conducted anywhere from seven to ten such transactions with appellant. O'Leary estimated that he gave appellant 30 to 40 discs which resulted in a "kickback" to appellant during this time. He also testified that all but one of the exchanges occurred in Arizona. The state introduced into evidence checks representing five of the transactions between O'Leary and appellant. The evidence produced at trial also revealed that appellant was engaged in somewhat similar conduct with another employee of Burroughs Corporation, Lawrence Tapper. Tapper was a programmer for Burroughs, and was engaged in "moonlighting" activities from time to time. If a party needed a computer program changed, Tapper would, upon occasion, change the program during his spare time and charge the party personally for his work. Tapper testified that moonlighting activities were *371 against company rules at Burroughs. He stated that at the end of 1979, Lake Havasu City purchased a new system from Burroughs, and at that point, Tapper did his work and his dealings with appellant primarily in Las Vegas. Appellant told Tapper that the city would not authorize his (appellant's) expenses to come to Las Vegas, and proposed a plan with Tapper to cover his expenses. Pursuant to this plan, appellant would pay Tapper for his moonlighting by check issued on the city account, and Tapper would reimburse appellant for half the amount of the check. Tapper testified that appellant's proposal occurred either at the end of 1979 or the beginning of 1980. The evidence also disclosed that in approximately September, 1980, Tapper started selling discs to appellant. He testified that the majority of the discs were ones which he had picked up from other customers who had Burroughs equipment and no longer needed the discs. Tapper would service the discs and resell them. In September, appellant called Tapper and indicated that he needed some discs, and that he needed to purchase them for $82.50. Appellant had been buying discs from O'Leary for $80 per disc. He indicated to Tapper that he wanted to buy the discs at the same price and he added $2.50 to indicate an appearance of sales tax. Tapper estimated that he sold appellant 50 discs. Appellant paid for the discs with checks drawn on the Lake Havasu City account. The checks, for the most part, were made payable to Nevada Computer Supply or Larry Tapper, although Tapper did have appellant make out three checks to another party. Tapper would cash the checks and give half of the face value of the check back to appellant. Tapper also testified that he gave to appellant half of the value of the moonlighting checks. Both O'Leary and appellant's replacement as finance director in Lake Havasu City testified that the city had procured many more discs than were needed by the city. Based on the evidence presented, the jury found appellant guilty of fraudulent scheme and artifice. DUPLICITOUS INDICTMENT For his first issue on appeal, appellant asserts that the indictment is void for duplicity. He contends that the state charged 24 separate offenses in one count. Appellant was charged by indictment as follows: On or about January 1, 1980 through January 1, 1981, at 1795 Civic Center Blvd., Lake Havasu City, Mohave County, Arizona, the defendant, ROBERTO SUAREZ, pursuant to a scheme or artifice to defraud, knowingly obtained a benefit to wit: approximately $6000 by means of false pretenses, representations, promises or material omission, all in violation of A.R.S. §§ 13-701, 13-801, 13-2301 and 13-2310. At no time prior to trial did appellant file a motion to dismiss the indictment on grounds of duplicity or for any other reason. Appellant asserts that pretrial discovery revealed 24 transactions between appellant and O'Leary or Tapper. He argues, therefore, that the indictment included in one count 24 distinct and separate offenses. He also argues that he was prejudiced because the state introduced evidence on only five of the transactions to prove a scheme consisting of 24 incidents. A.R.S. § 13-2310(A) provides: Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony. Appellant cites State v. Kuhnley, 74 Ariz. 10, 242 P.2d 813 (1952) in support of his proposition that an information or indictment which charges two or more distinct and separate offenses in one count is void *372 for duplicity. As a general proposition of law, appellant's assertion is correct. However, State v. Kuhnley and the other cases relied upon by appellant are distinguishable from the instant case by virtue of the nature of the offense charged. In State v. Kuhnley, the defendant was charged with one count of receiving stolen property. The indictment alleged six specific items of stolen personal property received. The supreme court pointed out that there was no evidence that two of the articles were received by the defendant at the same time, but that the thefts occurred at various times, and that the stolen item was delivered to the defendant at his home immediately after the theft. The supreme court held that there was a fatal variance between the information and the proof in that case because the trial court treated the separate offenses as one offense and instructed the jury that the elements of the crime were established if the jury found the defendant guilty of receiving any or all of the articles enumerated in the information. In the present case, however, appellant was charged with fraudulent schemes and artifices. "A `scheme or artifice to defraud' consists of forming a plan or devising some trick to perpetrate a fraud upon another." State v. Smith, 121 Ariz. 106, 588 P.2d 848 (App. 1978). A scheme to defraud thus implies a plan, and numerous acts may be committed in furtherance of that plan. In this case, it is apparent that appellant had a plan to defraud Lake Havasu City. His plan was manifested in a course of conduct involving numerous transactions between appellant and O'Leary or Tapper. It is also apparent that appellant did not formulate 24 separate schemes to defraud, but rather, formulated one scheme to defraud and implemented the scheme through the subsequent series of transactions. A charge of fraudulent schemes and artifices is, therefore, distinguishable from a charge of receiving stolen property precisely because "scheme" implies a plan in furtherance of which numerous acts may be committed. "The words of [a] statute should be given their plain and ordinary meaning, unless it appears from the context that a different meaning should control." State v. Fendler, 127 Ariz. 464, 473, 622 P.2d 23, 32 (App. 1980). We conclude that the indictment charging fraudulent schemes and artifices is not void for duplicity. DIRECTED VERDICT For his next issue on appeal, appellant argues that the trial court erred in failing to grant his motion for a directed verdict of acquittal at the close of the state's case. He contends that since the state proved only 5/24ths of the indictment, he was convicted of only 5/24ths of a count. He argues that the state did not prove each element of the offense beyond a reasonable doubt. This argument has no merit. Appellant appears to be arguing that because the state disclosed 24 separate incidents in its pretrial disclosure, it was required to present proof of each of the 24 incidents in order to prove appellant guilty of fraudulent schemes and artifices beyond a reasonable doubt. However, there is no existing authority for the proposition that the state must present proof of every item indicated in its pretrial disclosure. In this case the state was required to prove that appellant, pursuant to a scheme or artifice to defraud, knowingly obtained a benefit by means of a false or fraudulent pretense, representation, promise or material omission. To that end, the state presented proof through the testimony of O'Leary and Tapper that appellant, during 1980, obtained the money from the city by purchasing discs and services with checks written on the Lake Havasu City account made out to a fictitious corporation and then received a "kickback" from O'Leary and Tapper. In order to prove fraudulent schemes and artifices, the state presented the testimony of O'Leary and Tapper as to the general course of fraudulent conduct between themselves and appellant during the year 1980. The state also introduced documentary *373 evidence of five specific transactions. The state also introduced testimony that city checks in the amount of $12,069 had been written by appellant on the Lake Havasu City account pursuant to the scheme. Appellant seems to assert that only the documentary evidence was sufficient to establish proof beyond a reasonable doubt; however, the testimonial evidence was certainly as probative as the documentary evidence. As a matter of strategy, the state chose not to present proof of every single transaction committed between appellant and Tapper or O'Leary. A.R.S. § 13-2310 defining fraudulent schemes and artifices does not require that the state prove every transaction which is part of the scheme or artifice. We find, therefore, that the trial court did not err in denying appellant's motion for a directed verdict of acquittal. JURY INSTRUCTIONS Appellant next argues that the trial court erred in failing to instruct the jury that the state was required to prove either the entire indictment alleging a fraud in the amount of $6,000 or 24 separate transactions. Appellant did not request such an instruction, and has therefore waived error for purposes of appeal in the absence of fundamental error. State v. Evans, 125 Ariz. 140, 608 P.2d 77 (App. 1980). The trial court instructed the jury with regard to fraudulent schemes and artifices as follows: The crime of fraudulent schemes and artifices has four elements. In order to find that the defendant committed the crime of fraudulent schemes and artifices, you must find that: (1) the defendant obtained some benefit; and (2) the defendant must do so knowingly; and (3) the defendant must do so by means of false or fraudulent pretenses, representations, promises or material omissions; (4) the defendant must do so pursuant to a scheme or artifice to defraud. Appellant's apparent contention is two-fold: (1) that because the state presented proof of only 5 of 24 possible fraudulent transactions between appellant, Tapper, and O'Leary, and because the state presented proof of some transactions that were not fraudulent, the state did not prove the indictment. The second portion of his contention is apparently because the state alleged a $6,000 benefit to the appellant in the indictment, the state was required to prove separate transactions amounting to a $6,000 benefit. Therefore, he contends he was entitled to have the jury instructed that the state had to prove each element of fraudulent scheme and artifice as to each incident. Our discussions of the previous two issues indicate our conclusion that a scheme inherently involves a plan pursuant to which there may be many transactions. The elements of fraudulent schemes and artifices have been discussed above. The trial court properly instructed the jury as to those elements. The language in the indictment alleging a $6,000 benefit flowing to defendant-appellant pursuant to the scheme and artifice was surplusage inasmuch as the dollar value of the benefit obtained pursuant to a fraudulent scheme or artifice is irrelevant for purposes of determining whether a fraudulent scheme or artifice has occurred. A.R.S. § 13-2310(A). All that is required is that the defendant obtain "any benefit". The trial court instructed the jury that "`benefit' means anything of value or advantage." The trial court also correctly instructed the jury "proof of the offense of fraudulent schemes and artifices does not require a showing that the benefit obtained by the defendant was of a certain value or was greater than a certain value." Although the state did not present documentary evidence to prove that appellant had received a benefit of $6,000, it presented testimonial evidence to the effect that appellant had written checks in the amount of $12,069, and testimonial evidence that appellant received half of the value of the checks he wrote as a "kick-back". Thus, there was testimonial evidence tending to establish that appellant had received *374 a benefit of $6,000 as alleged in the indictment. Moreover, the charging document is automatically amended to conform to the evidence produced at trial. Rule 13.5(b), Rules of Criminal Procedure, 17 A.R.S. In this case, the jury was properly instructed concerning the elements of fraudulent scheme and artifice, and the state presented evidence establishing those elements. The state was not required to prove by the introduction of documentary evidence every single transaction committed by appellant in furtherance of the fraudulent scheme and artifice; nor was appellant entitled to an instruction to the effect that the state's failure to prove by documentary evidence each specific transaction resulted in a failure of proof of the offense charged. We find no error in the instructions given. JURISDICTION For his next issue on appeal, appellant contends that Arizona lacked jurisdiction to prosecute him as to the incidents involving Tapper because, he alleges, most of the Tapper transactions occurred entirely in Nevada. He concludes that the trial court should have directed a verdict on the portion of the count relating to the Tapper incidents, and that "since it is impossible to convict on less than 100% of a charge, [appellant] should have received a directed verdict." If conduct constituting any element of the offense or a result of that conduct occurs within the state, Arizona has jurisdiction over the offense. A.R.S. § 13-108(A)(1). The question is whether "any element of the offense" occurred in Arizona. State v. Bussdieker, 127 Ariz. 339, 621 P.2d 26 (1980). It is apparent that one or more elements of the instant offense were committed in Arizona. All but one of the O'Leary transactions occurred in Arizona. As to the Tapper incidents, the evidence reveals that while the actual exchange of money occurred in Nevada in all but one of the incidents, the evidence also reveals that appellant phoned Tapper numerous times, ostensibly from appellant's office telephone in Lake Havasu City. The evidence also reveals that appellant paid Tapper with checks drawn on the Lake Havasu bank account located in Arizona. It is apparent that the scheme was planned by appellant in Arizona, and that appellant knowingly formulated the scheme in Arizona. The state also established that appellant deposited checks from O'Leary to him in his account in Arizona. Therefore, while several of the transactions with Tapper may have been executed in Las Vegas, numerous elements of the offense were committed in Arizona, and Arizona had jurisdiction to try the offense. State v. Bussdieker. PROSECUTORIAL MISCONDUCT For his next issue, appellant asserts that the prosecutor, in closing argument, improperly commented on his right not to present a case on behalf of the defense and his right not to testify. Appellant contends that error occurred in the following statements: Ladies and gentlemen, it is insurmountable. You look at the data up there, look at the transactions. Ask yourselves how would he disprove it if, in fact, he did it, and the figures make it very clear; the fact is it's an impossible thing to do. He cannot disprove it because in fact the defendant did what he's charged with having done. Appellant's counsel argued in several places during his closing argument that the crime with which he was accused was incapable of being disproved. He argued that the defendant did not take kick-backs, that he told the arresting officer that he did not take kick-backs, but that he could not prove "something that didn't exist". In other words, he could not prove "negative evidence." The above referenced comment was a proper response to appellant's argument that he could not disprove the crime charged. The prosecutor was referring to *375 an evidentiary chart detailing the transactions between appellant, O'Leary, and Tapper, and pointing to the evidence stating simply in response to appellant's argument that the evidence showed that appellant did what he was charged with having done. This comment thus did not constitute a comment on appellant's right to remain silent or to present no evidence, but a clear comment in response to appellant's closing argument. Similarly, one of the arguments made by appellant's counsel was that appellant was not so stupid as to commit the offense with which he was charged. In response to this argument, the prosecutor stated: After a prosecutor has tried a few cases — and I'm not suggesting that I'm the most experienced prosecutor in the world — but after you've tried a few cases, you tend to almost cringe when you hear defense attorneys making the same argument over and over again. I'm sure that every time they make it they think it's an original argument. I'm almost getting sick of hearing defense attorneys stand up and say how could my client be so stupid as to do what he's charged with doing. This comment by the prosecutor does not constitute a comment either directly or inferentially on appellant's right to remain silent. We also note that the comment was invited by defense counsel's closing argument. We find no error. See State v. Bowie, 119 Ariz. 336, 580 P.2d 1190 (1978). Appellant also argued that the state failed to subpoena numerous witnesses that it could have subpoenaed and that the state had awesome subpoena power as compared to the defendant. Specifically, appellant's counsel argued that the state should have subpoenaed two city officials, Mr. Klotzbach and Mr. Smith. Appellant argued that the state failed to subpoena the testimony of the persons from whom Tapper, specifically, acquired the discs. Appellant also argued that the state failed to subpoena Dave Larson, the Burroughs supervisor of both O'Leary and Tapper. In the context of all of these arguments, appellant argued that the state failed to prove its case. In response to this argument, the prosecutor stated: If there are people here that I did not subpoena, you can assume that, for whatever reasons, I felt that I did not need their testimony. If Mr. Jackson failed to subpoena those same people — and he's a competent attorney — you can certainly be sure that he did not subpoena those people for the same reason: because they have absolutely no light to shed upon this case. * * * * * * Any evidence which existed in this case was certainly subject to a subpoena and, in fact, I think its been very obvious to you during the proceedings that Mr. Jackson has had complete access to anything that was in our files. If he had wanted to have it marked, wanted to have it introduced in evidence, he could have done so. He chose not to do so, and being a competent attorney, you can assume that he didn't do that either because it would have damaged his client or at least that it would not have helped his case to any extent. The prosecutor did not mention appellant's failure to subpoena the witnesses in his initial closing argument, but only in rebuttal argument in response to the defense attorney's remarks. In State v. Filipov, 118 Ariz. 319, 324, 576 P.2d 507, 512 (App. 1977), we wrote: We believe that the state or the defense may properly comment upon the failure of the other party to produce a witness in appropriate circumstances. Such circumstances exist when the witness not produced allegedly would give testimony favorable to the party who fails to call the witness. On the basis of the record before us, it is apparent that appellant's counsel *376 properly commented upon the failure of the state to produce witnesses and evidence which would be favorable to the state. Presumably, Klotzbach, Smith, Larson, and Lowell would have corroborated the testimony of the state's witnesses. Therefore, appellant's argument commenting on the state's failure to produce those witnesses was a proper argument on the state's failure to prove its case. Consequently, the prosecutor's rebuttal argument was not invited by error of appellant's counsel; nor did it constitute a proper comment on appellant's failure to call a witness within his control because the testimony of those witnesses would not apparently assist the defense. Thus, the state's argument was error. Nevertheless, we must determine whether the error was prejudicial. In Sullivan v. State, 47 Ariz. 224, 55 P.2d 312 (1936), the supreme court set forth the criteria for determining if improper argument is unduly prejudicial: The best rule for determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case is, Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by those remarks. 47 Ariz. at 238, 55 P.2d at 317. See also State v. Filipov. We believe that under the circumstances of this case, the jurors were probably not influenced by the remarks of the prosecutor in his rebuttal argument. Although appellant argues to the contrary, the proof in this case was overwhelming. The state presented the testimony both of Tapper and O'Leary that appellant wrote each of them checks on the Lake Havasu City account, and they each paid him personally half the face value of the checks. The state introduced the testimony of appellant's successor in office to the effect that she had discovered the checks and believed them to be irregular. The parties stipulated that appellant deposited checks written from O'Leary to him in his personal bank account. Given the overwhelming proof against appellant, we find that the jury was probably not influenced by the improper remarks of the prosecutor. Appellant also contends that the prosecutor improperly commented on the state's burden of proof by asserting that he was not required to prove the indictment, but was required to prove the crime of fraudulent schemes and artifices. In context, those comments by the prosecutor were not error. We have already held that the $6,000 figure in the indictment was surplusage, that the state was not required to prove every single transaction which formed the basis of the fraudulent schemes and artifices count, and that appellant was not entitled to an instruction to the effect that the state must prove every transaction which formed the basis of the count. The prosecutor's argument was not error. Appellant also contends the prosecutor erred in making the following argument: Why do you suppose Mr. Jackson feels that the only way he can defend this client is to strike out at everybody involved in this case? To talk about the, I believe it was the crude O'Leary and Tapper? To engage in this smear campaign with Dixie Williams? I won't even mention the smear campaign with the people who weren't ever here. This argument was clearly in response to appellant's closing argument. Appellant's counsel had characterized O'Leary and Tapper as crude, and implied that Dixie Williams, appellant's successor in office, was motivated by her desire to take over appellant's job. The prosecutor's argument in this regard was therefore invited by appellant's argument. Appellant also contends that the prosecutor commented on his right to remain silent when the prosecutor stated: *377 You have an unsworn statement by the defendant out in California somewhere to the investigating officer in this case that he didn't do anything. This comment did not constitute a comment on appellant's right to remain silent. When appellant was arrested, he spoke to the arresting officers and did deny the charge. Therefore, the comment constituted a proper comment on something appellant had stated, and not on appellant's right to remain silent. Therefore, taken as a whole, we find that the prosecutor's argument did not improperly influence the jury. SUFFICIENCY OF THE EVIDENCE Appellant also contends that the evidence was insufficient to support the jury verdict. He asserts that O'Leary and Tapper both testified that they were not acting in concert with each other, but that their dealings with Suarez were separate and apart from each other. He also argues that Lake Havasu City was not defrauded because the city paid less for the discs than it would have paid had they been sold at their fair market value of $110 per disc. While it is clear that Tapper and O'Leary did not act in concert with each other, and each acted separately with appellant, it is not necessary, in order to show fraudulent schemes and artifices that all parties to the scheme must act in concert. A.R.S. § 13-2310(A), defining fraudulent schemes and artifices refers only to the intent and actions of the person who obtains a benefit by means of the fraudulent scheme or artifice. Presumably a person could formulate a fraudulent scheme and artifice, and pursuant thereto involve numerous innocent people in furtherance of the scheme, none of whom knew about the involvement of any other innocent party. It is the formulation of the scheme by the person alleged to have committed the offense which is required by the statute. In this case, it is evident that appellant formulated the scheme to obtain money from Lake Havasu City, and independently approached Tapper and O'Leary on separate occasions suggesting the scheme. While it is clear that Tapper and O'Leary may have had an idea that the other party was participating in a scheme with appellant, nothing in the statute requires that they act in concert. Appellant's argument that the evidence is insufficient to support the verdict because the city paid less for the discs than their fair market value is ludicrous. If this logic was followed, it would constitute an open invitation for public officials to defraud the people whom they serve under the guise of saving them money. This is not the law. A.R.S. § 13-2310(A) requires simply that the party allegedly committing the fraudulent scheme and artifice obtain a benefit by means of a false or fraudulent pretense, representation, promise or material omission. In this case, appellant obtained money from the city to which he was not entitled by writing checks on the city's bank account for purchases of discs the city did not need. The representation on the face of the checks was clearly that the sales price of the discs was $80 per disc when, in fact, both Tapper and O'Leary were selling the discs for $40, and giving appellant $40. Moreover, O'Leary had intended to give the city the first five discs at no cost to the city. Nevertheless, the city paid $400 for the discs, $200 to O'Leary and $200 to appellant. It is utterly irrelevant that the city paid less for the discs than the market price. SPEEDY TRIAL For his seventh issue, appellant contends that his right to a speedy trial was violated because the last continuance violated his right to a speedy trial. Appellant was arraigned May 15, 1981. Trial date was set for July 28, 1981, and the trial setting was continued by the court to August 19, 1981 due to a conflict in the trial court's calendar. The state moved for a *378 continuance due to a conflict in its calendar, and trial was set for September 9, 1981. The trial setting of September 9, 1981 was continued to October 7, 1981 by stipulation of the parties. The state then moved for a continuance on the grounds that the investigating officer would be out of the state and was unavailable to be served with a subpoena until October 19, 1981. Counsel argued the motion October 6, 1981, but the transcription of that argument was not made part of the record for purposes of this appeal. The minute entry following the argument indicates that the trial court granted the motion and continued the trial to November 3, 1981 at 9:30 a.m. The minute entry also indicates as follows: "if any party feels the state violates any trial limits, the Court will entertain a motion to accelerate the trial on the calendar." Appellant did not file or argue a motion to accelerate the trial on the calendar. Appellant opposed the state's motion to continue on the grounds that the unavailability of the investigating officer was not an extraordinary circumstance requiring delay. Since we do not have a copy of the transcript of the argument concerning the state's last motion for a continuance, we must presume that the record would support the action of the trial court. We must thus conclude that the state made a showing that extraordinary circumstances existed and that delay was indispensable to the interests of justice in accordance with the provisions of Rule 8.5(b), Rules of Criminal Procedure, 17 A.R.S. Appellant was required to be tried within 90 days from the date of his arraignment pursuant to Rule 8.2(c). He was arraigned on May 15, 1981, and was thus required to be tried August 13, 1981, in the absence of Rule 8.4 excluded time periods. Rule 8.4(c) excludes from the computation of time limits delays necessitated by congestion of the trial calendar, "when the congestion is attributable to extraordinary circumstances, in which case the presiding judge shall promptly apply to the Chief Justice of the Arizona Supreme Court for suspension of any of the Rules of Criminal Procedure." In the instant case, the first trial setting was continued by the court due to the conflict in the court's calendar. Because the record is silent concerning whether the trial court complied with the provisions of Rule 8.4(c), we must conclude that the trial court's action was proper. Therefore, the first continuance of 22 days was properly excluded pursuant to Rule 8.4. Appellant concedes that the stipulated 30 day continuance was properly excluded pursuant to Rule 8.4. The state's first motion to continue, to which appellant did not object, was granted upon a finding of good cause pursuant to Rule 8.5(b) for 21 days. This time was properly excluded pursuant to Rule 8.4(d). We have already found that in the absence of a record indicating that the trial court abused its discretion in granting the state's last motion to continue, that the motion was properly granted pursuant to Rule 8.5(b), and that 27 days were excluded pursuant to Rule 8.4(d). Therefore, the date for trial was extended pursuant to Rule 8.4 by 100 days of excluded time. Appellant's trial commenced November 3, 1981, which was 80 days from August 13, 1981. We find that appellant's right to a speedy trial pursuant to Rule 8 was not violated. STATUTE CITED IN INDICTMENT The indictment in this case alleged violations of A.R.S. §§ 13-701, 13-801, 13-2301 and 13-2310. A.R.S. § 13-2301 is a definitional section, but no part of A.R.S. § 13-2301 applies to A.R.S. § 13-2310. Therefore, A.R.S. § 13-2301 was not properly alleged in the indictment. Appellant argues that the indictment was therefore void. He contends further that any definitions pertaining to A.R.S. § 13-2310 would necessarily come from prior cases or other rules of statutory construction. He argues that the predecessors to A.R.S. § 13-2301, which were A.R.S. §§ 320.01, 312, and 661 require that there must be a victim who is defrauded *379 in order to prove fraudulent scheme or artifice. We have already concluded that the city was defrauded in this case, because it paid $400 for five discs, which would otherwise have been free, and paid $80 each for discs for which half the sales price was returned to appellant. Although, given the issues raised on appeal, it is apparent that the indictment was drawn inartfully in this case, we find that appellant has neither alleged nor shown how he was prejudiced by the inclusion of the reference to A.R.S. § 13-2301 in the indictment. The reference to the statute was mere surplusage in the indictment, was not objected to by appellant at trial, and the indictment was thus deemed to be amended to conform to the proof. Rule 13.5(b), Rules of Criminal Procedure, 17 A.R.S. It is clear that the reference to A.R.S. § 13-2301 was merely a technical defect in the indictment because it did not change either the nature of the offense charged nor did it prejudice appellant in any way. State v. Bruce, 125 Ariz. 421, 610 P.2d 55 (1980). Any issue concerning a defect in the charging document must be raised by motion filed in accordance with Rule 16.1, no later than 20 days prior to trial. Rule 13.5(c); State v. Sustaita, 119 Ariz. 583, 583 P.2d 239 (1978). Appellant did not timely raise the issue prior to trial. We find that he is precluded from raising the issue on appeal and even if by stretch of the judicial imagination he is not precluded, there is no merit to his argument on the issue. EFFECTIVE ASSISTANCE OF COUNSEL Counsel on appeal asserts that if he was in error at trial on the issue concerning duplicity of the indictment, then he was ineffective as counsel. For the following reasons, we decline to consider the ineffective assistance of counsel argument presented in this appeal. Since State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982), the standard for effective assistance of counsel in Arizona has been whether counsel showed at least minimal competence in representing the criminal defendant. In making this determination, the reviewing court should focus on "the quality of counsel's performance, rather than on the effect of that performance on the outcome of the proceeding." Id. at 4, 653 P.2d at 354. Furthermore, as noted in both State v. Watson and State v. Thomas, 133 Ariz. 533, 652 P.2d 1380 (1982), disagreements as to trial strategy or errors in trial tactics will not support an ineffectiveness claim, as long as the challenged conduct could have had some reasoned basis. State v. Watson. As noted in State v. McDaniel, 136 Ariz. 188, 665 P.2d 70, 80 (1983), "proof of ineffectiveness must be a demonstrable reality rather than a matter of speculation." The burden of establishing ineffectiveness of trial counsel is on the defendant. State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981). Procedurally, such issue can be presented either on direct appeal or in a collateral proceeding pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. However, if this issue is presented on appeal, it is improper for appellate counsel to argue his own ineffectiveness at trial because, as a matter of policy, it is difficult for counsel to objectively review his own performance and zealously argue any inadequacies in that performance on behalf of his client. In addition, one can easily perceive the potential for abuse if appellate counsel is permitted to raise, evaluate and advocate his ineffectiveness as trial counsel. If counsel honestly believes he was ineffective at trial or that such issue exists, he should so advise his client, seek leave to withdraw and have new counsel appointed to raise the issue on appeal, or pursue the matter under Rule 32, Arizona Rules of Criminal Procedure. In this appeal and for the reasons stated, we decline to consider the issue of ineffective assistance of counsel on appeal. This determination is without prejudice to appellant *380 presenting the issue to the trial court through the medium of a Rule 32 proceeding by counsel other than his present counsel. The conviction and judgment are affirmed. CORCORAN and KLEINSCHMIDT, JJ., concur.

410 F.Supp. 1052 (1976) BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, et al., Plaintiffs, v. John L. McLUCAS et al., Defendants. Civ. A. No. 76-0139. United States District Court, District of Columbia. March 12, 1976. *1053 Frederic Lee Ruck, Fairfax County Atty., J. Richard Tremaine, Fairfax, Va., Robert F. Flinn, Asst. County Attys., Donald W. Devine, Commonwealth's Atty., Loudoun County, Stephen P. Robin, Asst. Commonwealth's Atty., Leesburg, Va., James M. Catterson, Jr., Nassau County Atty., Robert S. Hoshino, Jr., Deputy County Atty., Nassau County, Seaford, N. Y., for plaintiffs. Peter R. Taft, Alfred T. Ghiorzi, Raymond W. Mushal, U. S. Dept. of Justice, Washington, D. C., John Hart Ely, Gen. Counsel, Donald T. Bliss, Deputy Gen. Counsel, Robert B. Donin, U. S. Dept. of Transp., Washington, D. C., Bert Z. Goodwin, Chief Counsel, Leonard A. Ceruzzi, Federal Aviation Administration, Washington, D. C., for defendants. *1054 Roger A. Clark, Rogers & Wells, Washington, D. C., for intervenor Compagnie Nationale Air France. William H. Allen, Covington & Burling, Washington, D. C., for intervenor British Airways Board. MEMORANDUM ORDER PARKER, District Judge. This Court is called upon to issue a preliminary injunction prohibiting the defendants from taking any action that would allow the Concorde, a supersonic jet aircraft, to land at Dulles International Airport (Dulles) or John F. Kennedy International Airport (JFK) without the federal government having first promulgated supersonic aircraft noise regulations under Section 611 of the Federal Aviation Act of 1958 (49 U.S.C § 1431) as amended by the Noise Control Act of 1972. The Court has reviewed and considered the memoranda of points and authorities, with affidavits and exhibits, filed in support of and in opposition to the motions for preliminary injunction, and the motion of the federal defendants to dismiss for lack of subject matter jurisdiction. In addition, the Court has had the full benefit of the oral argument of counsel at a hearing held on March 8, 1976, and concludes that the plaintiffs' motions for preliminary injunction should be denied and the defendants' motion to dismiss should be granted for the reasons set forth in the following Memorandum Order. Plaintiffs[1] claim that government action permitting Concorde flights at Dulles and JFK Airports would be legally invalid in the absence of supersonic noise standards which, though long mandated by the United States Congress,[2] have been delayed for an inordinate period of time by the federal agencies charged with their promulgation.[3] The triggering factor in plaintiffs' lawsuit was Secretary of Transportation Coleman's decision of February 4, 1976, which approved the requests of British Airways Board (British Airways) and Compagnie Nationale Air France (Air France)[4] for amendments of their operations specifications[5] to allow them to commercially operate Concorde supersonic aircraft in the United States. The Secretary's decision was based on an environmental impact statement prepared by the FAA Administrator, a public hearing held in Washington, D. C. on January 5, 1976, and written submissions of interested persons, which were made a part of the public record. The decision ordered defendant McLucas, the FAA Administrator, to undertake the actual amendment of the operations specifications necessary for the commencement of Concorde flights.[6] This case was filed January 23, 1976, at a time when the Secretary's decision was expected in the near future.[7]*1055 On February 4, 1976, the same day that the decision was issued, the Environmental Defense Fund (EDF)[8] filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit (C.A.D.C. 76-1105). A similar petition was filed by the State of New York on March 5, 1976 (C.A.D.C. 76-1213). Those petitions for direct review in the Court of Appeals are based on the provision of the Federal Aviation Act which establishes "exclusive jurisdiction" in the Court of Appeals to "affirm, modify, or set aside," "any order, affirmative or negative," issued by the Secretary of Transportation. 49 U.S.C. § 1486(a) and (d).[9] Despite plaintiffs' arguments to the contrary, this Court is convinced that the Secretary's decision is an order within the meaning of 49 U.S.C. § 1486 and thus is reviewable exclusively in the Court of Appeals. Accordingly, this action for injunctive relief must be dismissed for lack of subject matter jurisdiction.[10] The term "order" is defined very broadly both in the Federal Aviation Act[11] and in the Administrative Procedure Act.[12] Our Court of Appeals has, accordingly, been most receptive to petitions for review of agency actions. The only requirements are that the agency decision be final, and that there be an adequate record for review of agency proceedings at which the petitioners had an opportunity to present their claims. Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App. D.C. 191, 479 F.2d 912 (1973). These prerequisites are met in this case—Coleman's decision is final; the environmental impact statement, hearing transcript and written decision of the Secretary provide a record for review; and representatives from Fairfax, Loudoun and Nassau Counties presented their views at the January 5 hearing before the Secretary. Plaintiffs' claim that they are not seeking a review of the Secretary's decision is unfounded. The relief requested, if granted, would have the effect of invalidating his order, notwithstanding the fact that an injunction would run against defendant McLucas, rather than the Secretary himself. Furthermore, all of the issues raised by the parties in this injunctive action can be fully and fairly litigated upon a petition for review. While the government's claim that the FAA can allow limited Concorde landings in the absence of supersonic noise regulations seems highly suspect to this Court, it nonetheless appears to be an issue clearly within the province of the Court of Appeals. Secretary Coleman specifically discussed the requirements of the Noise Control Act[13] so that the issue is a part of the record. If the Court of Appeals should decide that the Secretary's point of view on this matter was legally incorrect, it has the authority to reverse the Secretary's order on that basis. 49 U.S.C. § 1486. No useful purpose would be served by conducting duplicative proceedings on the district court level of a matter which is already pending before the Court of Appeals. The statutory intention to provide *1056 for swift resolution of challenges to agency orders[14] will be better served by dismissing plaintiffs' suit for injunction. Furthermore, simultaneous litigation of the same issues in the district court and the court of appeals is not favored[15] and, indeed, would be judicially uneconomical. In conclusion, this Court believes that plaintiffs have an entirely adequate forum to press their claims, namely, the U.S. Court of Appeals for the District of Columbia Circuit.[16] The Court therefore will not consider the merits of plaintiffs' suit for injunction, but will defer to the exclusive jurisdiction of the Court of Appeals. Accordingly, it is this 12th day of March, 1976 ORDERED that the motions of plaintiffs for preliminary injunction be, and they hereby are, denied; and it is further ORDERED that the motion of the federal defendants to dismiss is granted and this proceeding is dismissed insofar as it pertains to plaintiffs' request for injunctive relief. NOTES [1] Plaintiffs are the governing bodies of Fairfax and Loudoun Counties, Virginia and Nassau County, New York. These Counties would be directly affected by the proposed Concorde landings. Defendants are William T. Coleman, Secretary of Transportation, and John L. McLucas, Administrator of the Federal Aviation Administration (FAA). [2] The original legislation requiring the FAA to issue regulations for "the control and abatement of aircraft noise and sonic boom" was passed in 1968. Act of July 21, 1968, Pub. L.No. 90-411, § 1, 82 Stat. 395. [3] The FAA is currently considering regulations proposed by the Environmental Protection Agency, which would ban supersonic transports unable to meet the noise levels required for subsonics. [4] Both British Airways and Air France were granted leave of court to intervene in this case as defendants. [5] Operations specifications approved and issued by the FAA are a necessary prerequisite for a foreign air carrier to conduct commercial service to and from the United States. 14 C.F.R. Part 129. The operations specifications include a list of the type of aircraft to be flown, the airports to be served, and the routes and flight procedures to be allowed. Id. [6] Government counsel at an earlier status call had stipulated that McLucas would not carry out the Secretary's order before April 1st. [7] The Notice of Public Hearing for January 5, 1976, had stated that the Secretary would issue a decision within 30 days of the hearing. 40 Fed.Reg. 53612 (November 19, 1975). [8] EDF is a private environmental group which had previously filed a suit in this Court seeking to compel the FAA to issue supersonic noise regulations. EDF v. Butterfield (DDC, C.A. 74-217). [9] Although § 1486 refers to orders of the Board or the Administrator, 49 U.S.C. §§ 1655(c)(1) and 1653(c) make it clear that the Secretary of Transportation may issue orders in areas formerly under the FAA Administrator, subject to the same judicial review as if the order had been issued by the Administrator. [10] Plaintiffs' mandamus action to compel the FAA to issue the supersonic noise regulations without further delay is not affected by this decision, and will remain pending. [11] 49 U.S.C. § 1354(a). [12] 5 U.S.C. § 551. [13] The Secretary's Decision on Concorde Supersonic Transport, February 4, 1976, at 15-17. [14] See: EDF v. EPA, 158 U.S.App.D.C. 1, 485 F.2d 780, 783 (1973). [15] See: Oljato Chapter of the Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 515 F.2d 654 (1975). [16] The statute gives a right to "any person disclosing a substantial interest in such order" within 60 days of the order, to file a petition for review. 49 U.S.C. § 1486(a). Plaintiffs will thus have sufficient time to file their own petition or join in the ongoing proceedings in the EDF case, C.A.D.C. 76-1105, in which the first briefs are not due until March 18, 1976.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-11210 OCT 6, 2011 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 6:10-cr-00083-GAP-DAB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICHARD A. MURDOCH, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (October 6, 2011) Before HULL, PRYOR and FAY, Circuit Judges PER CURIAM: H. Kyle Fletcher, appointed counsel for Richard Murdoch in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Murdoch’s convictions and sentences are AFFIRMED. 2 

Order entered July 28, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00258-CV SHIELDS LIMITED PARTNERSHIP, Appellant V. BOO NATHANIEL BRADBERRY AND 40/40 ENTERPRISES, Appellees On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-14-00541-E ORDER Appellant’s motion for extension of time to file motion for rehearing is GRANTED, and the time for appellant to file its motion for rehearing is EXTENDED to July 30, 2015. /s/ LANA MYERS JUSTICE 

02-09-315-CR       COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH   NO. 02-09-00315-CR     BILL GUNTER   APPELLANT                                                                                                                              V.   THE STATE OF TEXAS   STATE                                                                                                                                ------------   FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY   ------------   OPINION   ------------           In four points that challenge the sufficiency of the evidence to convict him and the trial court’s alleged failure to give a limiting instruction in the guilt-phase jury charge about an extraneous offense, appellant Bill Gunter appeals his conviction for driving while intoxicated (DWI).[1]  We affirm. Background Facts           In December 2008, Fort Worth Police Department Officer Joshua Caprio received a call about a motorcycle accident that had occurred near a gas station parking lot in Tarrant County.  When Officer Caprio arrived at the scene, he saw appellant, who was alone, smelled like alcohol, had bloodshot eyes, and was staggering while trying to pick up the motorcycle.  According to Officer Caprio, appellant said that he had been at a bar called The Red Barn, that he had drunk four beers, and that he was driving the motorcycle home before he hit a slick spot and crashed.  Officer Caprio gave appellant a horizontal-gaze-nystagmus test, which appellant failed by showing the maximum amount of clues for intoxication. Officer Caprio arrested appellant.           At the jail, appellant told Fort Worth Police Department Officer Renee Frias that he had been drinking and driving that day.  Appellant treated some of his bloody scrapes and breathed twice into an intoxilyzer machine, which registered his alcohol concentration at more than twice the legal limit.           A grand jury indicted appellant for DWI.  At trial, appellant pled not guilty, but the jury found him guilty and assessed his punishment at fifteen years’ confinement.  Appellant filed his notice of appeal. Evidentiary Sufficiency           In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).[2]  This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.           The trier of fact is the sole judge of the weight and credibility of the evidence.  See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).  Thus, when performing a sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).  We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Clayton, 235 S.W.3d at 778.           In his first two points, appellant contends that the evidence is insufficient to show that his DWI offense occurred in Texas.[3]  Texas has jurisdiction over an offense if the conduct comprising the offense occurs inside this state.  Tex. Penal Code Ann. § 1.04(a)(1) (Vernon 2003); Torres v. State, 141 S.W.3d 645, 654 (Tex. App.—El Paso 2004, pet. ref’d); St. Julian v. State, 132 S.W.3d 512, 515 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“The State may prosecute only those crimes that occur within or directly affect the state.”).  “[J]urisdiction, like any other requisite of an offense, can be proven circumstantially.”  Vaughn v. State, 607 S.W.2d 914, 920 (Tex. Crim. App. [Panel Op.] 1980); see Walker v. State, 195 S.W.3d 250, 257–58 (Tex. App.—San Antonio 2006, no pet.) (“Walker’s house, where the offense occurred, is . . . in Guadalupe County; . . . and Payne is the constable for Precinct 3 in Guadalupe County and as such is a certified peace officer for the State of Texas.  This evidence is sufficient to meet the State’s burden.”); James v. State, 89 S.W.3d 86, 89 (Tex. App.—Corpus Christi 2002, no pet.) (holding that evidence that the offense occurred in the city of Beaumont and Jefferson County was sufficient to circumstantially establish jurisdiction in Texas); Hewitt v. State, 734 S.W.2d 745, 747 (Tex. App.—Fort Worth 1987, pet. ref’d) (holding similarly).           Officer Caprio testified that he works for the Fort Worth Police Department, that he responded to an accident in Tarrant County, and that he took appellant to the Tarrant County jail.  Officer Frias affirmed that he is a certified peace officer in Texas and that he works for the Fort Worth Police Department.  The jury also heard testimony from a senior forensic chemist who works for the Tarrant County Medical Examiner’s Office.  One of the witnesses that appellant called said that he had lived in Tarrant County since 1993.  Another witness called by appellant said that he lived on “McCullum Street in Fort Worth.”  Finally, the record does not contain any evidence indicating that the offense occurred outside of Texas.           Viewing the evidence in the light most favorable to the verdict, we hold that these references and the other references in the record to Fort Worth and Tarrant County comprise sufficient circumstantial evidence for the jury to implicitly find that appellant’s DWI offense occurred in Texas.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.  Thus, we overrule appellant’s first two points.           In appellant’s third point, he contends that the evidence is insufficient to prove that he operated a motor vehicle.  A person commits DWI when the person “is intoxicated while operating a motor vehicle in a public place.”  Tex. Penal Code Ann. § 49.04(a).  The penal code does not define “operating.”  See id.; Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995).  “However, the court of criminal appeals has held that, to find operation of a motor vehicle, ‘the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.’”  Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.) (quoting Denton, 911 S.W.2d at 390).  Thus, “any action that is more than mere preparation toward operating the vehicle” qualifies as “operating” for DWI.  Id. at 436.           Appellant presented evidence that, if believed by the jury, would show that he did not operate the motorcycle.  Specifically, appellant called three witnesses who collectively testified that appellant did not drive the motorcycle away from The Red Barn on the day in question but instead got into Mitchell McClendon’s blue truck before McClendon drove away from the bar while someone else drove appellant’s motorcycle in front of the truck and eventually crashed it.  Appellant’s witnesses said that after the motorcycle crashed, appellant stayed with it while McClendon went to get a motorcycle ramp.  According to McClendon, while he was getting the ramp, the police arrived and saw appellant near the motorcycle.           The three witnesses’ testimony seems to be supported by the testimony of Melissa Melon, an employee of a convenience store located near where the police arrested appellant, and by Donna Ford, an employee of The Red Barn.  Melon said that while she was using the store’s register on the day in question, she noticed a motorcycle in a street and saw three men trying to take it to a parking lot.  She said that after helping some customers, she looked out of the store again and saw one of the men by himself.  Melon admitted that she did not know who had been driving the motorcycle.           Ford said that she saw appellant call someone named “Mitchell or something to that effect” to pick him up from the bar and that appellant was so drunk that he “wouldn’t have been able to get on that bike without falling over on it.”  She testified that there “would have been laughter” if appellant would have tried to get on the motorcycle.           However, in contrast to the testimony given by the witnesses that appellant called, the State provided testimony from two officers who said that appellant told them that he had been driving the motorcycle home from the bar before he crashed it.  Officer Frias also said that appellant’s arm was injured and looked like it had a “road rash,” which supports the State’s theory that he crashed the motorcycle.           In our sufficiency review, we must defer to the jury’s resolution of conflicting evidence.  Clayton, 235 S.W.3d at 778.  Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that appellant operated a vehicle; the evidence is therefore sufficient to support his conviction.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.  We overrule appellant’s third point. Extraneous Offense Instruction           In his fourth point, appellant argues that the trial court erred by not giving a limiting instruction in its guilt-phase jury charge about an extraneous offense.  He alleges that during a conversation that was recorded by a video taken from a camera in a patrol car, one officer told another officer that appellant had an illegal knife.  Appellant contends that “[e]ven absent an objection by Appellant’s counsel, the trial court should have included a section in the jury charge instructing the jury that they could consider the evidence of the extraneous offense only for a limited purpose, and then only if they found the evidence beyond a reasonable doubt.”           However, the court of criminal appeals has held, [I]f a defendant does not request a limiting instruction . . . at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge.  This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not.  Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes. . . .  Taking the cases together, then, a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted.             . . . .             . . .  Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt-phase jury charge, it naturally follows that he had no duty to instruct the jury on the burden of proof concerning an extraneous offense.   Delgado v. State, 235 S.W.3d 244, 251, 254 (Tex. Crim. App. 2007) (footnotes and citations omitted).  Based on Delgado, we have held that a defendant forfeited his complaint on appeal about a lack of a limiting instruction in a jury charge when the defendant did not request the instruction at the time that the evidence was admitted.  Smith v. State, 316 S.W.3d 688, 700 (Tex. App.—Fort Worth 2010, pet. ref’d); see Martin v. State, 176 S.W.3d 887, 899 (Tex. App.—Fort Worth 2005, no pet.).           Because the evidence that contains the “illegal knife” comment—State’s Exhibit 2—was admitted at trial without a request for a limiting instruction by appellant, we hold, under Delgado, that appellant has forfeited his complaint on appeal about the lack of such an instruction in the guilt-phase jury charge.  See Delgado, 235 S.W.3d at 251, 254.  We overrule appellant’s fourth point. Conclusion           Having overruled all of appellant’s points, we affirm the trial court’s judgment.                                                                                        TERRIE LIVINGSTON                                                                              CHIEF JUSTICE   PANEL:  LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.   PUBLISH   DELIVERED:  October 21, 2010 [1]See Tex. Penal Code Ann. § 49.04 (Vernon 2003).  To enhance appellant’s punishment range, appellant’s indictment alleged that he had three prior DWI convictions.  See id. § 49.09(b)(2) (Vernon Supp. 2010). [2]After the briefing and submission of this case, the court of criminal appeals held that there is “no meaningful distinction between the . . . legal-sufficiency standard and the . . . factual-sufficiency standard, and these two standards have become indistinguishable.”  Brooks v. State, PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010).  Thus, the Jackson standard is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.  All other cases to the contrary . . . are overruled.”  Id. at *14.  Accordingly, we apply the Jackson standard of review to appellant’s sufficiency complaints. [3]The trial court’s charge instructed the jury that to convict appellant, it had to find that he operated a motor vehicle while intoxicated in “Tarrant County, Texas.”

87 B.R. 25 (1988) In re Max J. TRIPLETT, Debtor. Bankruptcy No. 87-52640-A. United States Bankruptcy Court, W.D. Texas, San Antonio Division. June 17, 1988. William R. Davis, Jr. of Law Offices of Garvin Stryker, San Antonio, Tex., for debtor. J. Scott Sullivan of Kaufman, Becker, Clare & Padgett, Inc., San Antonio, Tex., for NBC Bank-Colonnade, N.A. MEMORANDUM OPINION R. GLEN AYERS, Jr., Chief Judge. I. INTRODUCTION Before the Court are the Debtor's Application to Use Cash Collateral and NBC-Bank Colonnade's Motion to Restrict Use of Cash Collateral and for Adequate Protection. However, this opinion is not about "adequate protection" as that term is used in § 363 of the Bankruptcy Code. Rather, it is about § 1112(b), a most sadly displaced statutory provision. To reach that problem, however, the "adequate protection" problem must be addressed. The Facts [Are Undisputed] The debtor, Max Triplett filed a Chapter 11 petition on October 8, 1987. Then (and now) he owed the National Bank of Commerce — Colonnade, N.A., about $250,000.00. That debt is secured by property appraised at $337,000.00, so the debt continues to accrue interest, charges, and so *26 forth. See § 506(c). The collateral for the debt is: COLLATERAL VALUE Real Property $200,000.00 1928 Pierce Arrow 60,000.00 1972 Rolls Royce 25,000.00 J.D. 310 Backhoe 8,000.00 J.D. 570A Grader 18,000.00 1981 Tampo Roller 8,000.00 J.D. Loader (Tractor) 18,000.00 ___________ TOTAL VALUE $327,000.00 The rents from the real property are also collateral for the NBC loan. The rents are presently $1,661.16 per month. Naturally, the debtor wants to use the rental income; the creditor wants to restrict use of this "cash collateral". The Law [Is Disputed] The parties agreed on only two points: The rents are "cash collateral" under § 363 and the creditor NBC has acted to "perfect" its interest in the rents using the appropriate mechanisms set forth in In re Village Properties, Inc., 723 F.2d 441 (5th Cir.1984) and In re Casbeers, 793 F.2d 1436 (5th Cir.1986). The disagreement is very simple. The debtor wishes to use the rental income ("cash collateral") to service expenses of the property and also to pay general expenses of the case — in other words, the debtor wishes to use the cash collateral without restriction. NBC disagrees and alleges that the debtor has not offered "adequate protection" for the cash collateral. The debtor's rejoinder is to simply point to the $80,000 equity cushion. A. Adequate Protection Secured creditors are entitled to "adequate protection" where the debtor retains use or possession of collateral during the pendency of a proceeding. The term is used in § 362, 363 and 364, and means the same thing in each section. The term is, of course, not defined but merely "illustrated" by § 361. See In re Timbers of Inwood Forest Assoc's Ltd., 793 F.2d 1380, 1388 (5th Cir.1986) (the original panel opinion). Most courts have ruled that any protection is "adequate" as long as the secured creditor's interests are preserved at "status quo" or can be protected from dissipation by cash payments, replacement liens or the like. Occasionally, cases arise in which the debtor's conduct — as opposed to actual peril to the creditor's interests — mandates a finding that there is no "adequate protection". See generally 2 Collier on Bankruptcy, § 361.01[5] (15th ed. 1988). Where cash collateral is involved, there has been some debate as to whether an "equity cushion" is ever sufficient to provide adequate protection. With ordinary collateral, an equity cushion is generally considered to be sufficient (although not necessary). See, e.g., In re Alyucan Interstate Corp., 12 B.R. 803, 4 C.B.C.2d 1166, 1072-74 (Bankr.D.Utah 1981) (equity cushion not required).[1] Where cash is involved, however, at least one court has held that the presence of an equity cushion does not alone justify unlimited use of cash collateral. In re Earth Lite, Inc., 9 B.R. 440, 444 (Bankr.M.D.Fla. 1981): "[T]his Court is satisfied that the Debtor should not be permitted to use cash collateral without making some payments to the secured party just because it has, at the commencement of the case, a meaningful equity cushion in the collateral. To accept this proposition would mean that a debtor may freely use cash collateral until the collateral is reduced *27 to the amount of indebtedness during which time the secured party is deprived of income, for which it bargained when the lien was granted." But Judge Paskay's holding is not correct. First, as Alyucan demonstrates, the presence of an equity cushion is not required under the concept of adequate protection — only the preservation of the value of the lien is required. See In re Alyucan Interstate Corp., 12 B.R. 803, 4 C.B.C.2d 1066, 1074 (Bankr.D.Utah 1981). Therefore, mere "consumption" of the cushion does not — alone — violate the concept of adequate protection. Further, the income stream is almost never "bargained for"; use of rent assignment clauses and other devices are merely collateralization techniques. The creditor may be interested in the stream but has in no sense bargained to receive the stream in a State like Texas where the creditor cannot be a mortgagee in possession. See In re Max Tripplet, 84 B.R. 84 (Bankr.W.D. Tex.1988). Also, to say that the creditor expected to receive the income stream is not appropriate where the creditor clearly has bargained for collateral of a value far in excess of the amount of the debt. Rather, restriction of the use of cash collateral should only occur where the facts show that failure to restrict use may "impair" the creditor and deny the creditor adequate protection. And, while the burden may be upon the debtor, the debtor has clearly met its burden in this case. See In re Martin, 761 F.2d 472, 477 (8th Cir.1985). Conclusion In cases where the debtor clearly demonstrates that the value of collateral adequately protects the interests of the secured creditor, income from the collateral — i.e., § 363 "cash collateral" — may be used by the debtor for the general benefit of the estate and need not be devoted exclusively to the protection of the creditor or the collateral. Comment[2] This case and opinion reflect the concerns set forth in In re Sentry Park Ltd., 87 B.R. 427, 431 n. 6 (Bankr.W.D. Tex.1988) and R. Haines, Good Faith: An Idea Whose Time Has Come & Gone, North Bankr.L.Adv. 1-8 (April 1988) (Callaghan & Co.). Both Judge Clark and Mr. Haines argue that motions for relief under § 362 should not be substituted for proceedings under § 1112(b). The same is true of proceedings under § 363 to restrict use of cash collateral. The real concerns of the creditor bank are set forth in its brief: While more than 120 days has elapsed since the filing of bankruptcy, Triplett has failed to sell a single piece of the personal property. Triplett has never alleged that a Rolls Royce, a 1928 Roadster, or four pieces of construction equipment would be necessary for his reorganization. . . . Triplett . . . is not willing to part with his classic cars. In situations like this, if the creditor believes the case is being delayed merely so that a rich man can protect his toys, the proper approach is § 1112(b): Except as provided in subsection (c) of this section, on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause, including — (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation; (2) inability to effectuate a plan; (3) unreasonable delay by the debtor that is prejudicial to creditors; (4) failure to propose a plan under section 1121 of this title within any time fixed by the court; . . . . *28 Here, the focus on collateral and its use interferes with proper analysis of the case. Instead of being concerned with one item of "cash", the creditor should draw the court's attention to all of the problems with the case so that the debtor can either be placed on a timetable[3], the case converted, or the case dismissed. NOTES [1] For some reason, commentators seem to believe that Alyucan rejects the utilization of an equity cushion to provide adequate protection. That's simply not the case. All Judge Mabey did — in dicta — was to discuss his objection to the mechanical application of an equity cushion analysis. Mabey rejected those cases which would require relief from stay "mechanically" (or "automatically") upon impairment of a cushion, or upon absence of a cushion, or in either case. The entire discussion of the "equity cushion" is confined to situations in which the stay should not be lifted even though there is no equity cushion. For articles which seem to miss the point of the opinion, See, e.g., Comment, § 364(d) Superpriority Financing: Has Secured Creditor Met His Match?, 5 Bankr. Dev. J. 109, 118-119 (1988); Flaschen, Adequate Protection for Oversecured Creditors, 61 Bankr. L.J. 341, 344-45 (1987). [2] The court apologizes to counsel for indulging in the insertion of this comment, for both lawyers had to put up with this sort of thing when they were my students. [3] Courts in this district frequently order the debtor to produce a plan or else within a specified period of time. The "or else" may be relief from stay, dismissed, conversion, or appointment of a trustee.

316 F.3d 1163 UNITED STATES of America, Plaintiff-Appellee,v.Oscar VARGAS, Sr., Defendant-Appellant. No. 01-7081. No. 01-7082. United States Court of Appeals, Tenth Circuit. January 22, 2003. Gloyd L. McCoy, of Coyle, McCoy & Burton, Oklahoma City, OK, for Defendant-Appellant. Jeffrey A. Gallant, Assistant United States Attorney, Muskogee, OK, (Sheldon J. Sperling, United States Attorney, with him on the brief), for Plaintiff-Appellee. Before SEYMOUR, EBEL, and HENRY, Circuit Judges. HENRY, Circuit Judge. 1 Oscar Vargas, Sr. entered a plea of guilty to one count of possession with intent to distribute marijuana. He was sentenced to 105 months of imprisonment, followed by four years of supervised release, and he received a special assessment of $100.00. In this appeal, Mr. Vargas asserts that the district court erred at the sentencing hearing when, after Mr. Vargas's lawyer informed the judge that Mr. Vargas was dissatisfied with the lawyer's services, the district court conducted insufficient inquiry before denying the attorney's motion to withdraw as counsel for Mr. Vargas. Mr. Vargas requests that we remand to the district court so that an appropriate record can be established regarding his reasons for dissatisfaction. Because we find the inquiry at the sentencing hearing to be adequate, we deny Mr. Vargas's appeal and affirm his sentence. I. Background 2 Mr. Vargas and a codefendant were charged with conspiracy to possess and distribute marijuana, in violation of 21 U.S.C. § 846, and with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Stephen J. Greubel represented Mr. Vargas as appointed counsel in this case. After the district court denied a motion to suppress, Mr. Vargas entered a plea of guilty on the latter charge. 3 At the sentencing hearing, Mr. Greubel rose and informed the court that Mr. Vargas appeared to be dissatisfied with Mr. Greubel's legal representation. This was the first indication on the record of any problem between Mr. Vargas and Mr. Greubel. Specifically, Mr. Greubel stated: "I am ready for sentencing, but I should advise the court that Mr. Vargas is extremely unhappy with my work in this case, and it's probably best that I move to withdraw as his counsel this morning." Rec. vol. III, at 3. The following exchange immediately ensued: 4 The Court: What's the problem, Mr. Vargas? 5 Mr. Vargas: I'm here for sentencing; ain't I? 6 The Court: Yes. 7 Mr. Vargas: Let's get on with it. 8 The Court: All right. Your motion is denied. Motion denied. 9 Id. at 4. 10 The district court then resumed the hearing and sentenced Mr. Vargas to 105 months of imprisonment followed by four years of supervised release. Prior to the end of the sentencing hearing, the district court asked Mr. Vargas if he had anything to add regarding the case. Mr. Vargas replied, "No, your honor." Id. at 15. Mr. Greubel also did not revisit the matter at any point during the sentencing hearing. II. Discussion 11 The sole issue on appeal is whether the district court should have conducted a more extensive inquiry into Mr. Vargas's purported dissatisfaction with his attorney. Mr. Vargas, now represented by appointed appellate counsel, appears to partially characterize this case as an ineffective assistance of counsel claim. See Aplt's Br. at 3. If that were an accurate description, such a claim would presumptively be dismissed in this circuit. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) ("Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.").1 12 In the alternative, Mr. Vargas also challenges the district court's denial of a motion to substitute counsel. "We review a district court's refusal to substitute counsel for an abuse of discretion." United States v. Beers, 189 F.3d 1297, 1302 (10th Cir.1999) (internal quotation marks omitted). "To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992) (internal quotation marks omitted). 13 Mr. Vargas argues that it was incumbent upon the district court to perform a more searching inquiry than it undertook in this case, and he suggests that the district court's failure to do so left Mr. Vargas effectively without counsel during the sentencing hearing. Mr. Vargas asks us to follow the Ninth Circuit, which has suggested that, when a defendant requests substitute counsel, "[n]o inquiry is inadequate inquiry." Schell v. Witek, 181 F.3d 1094, 1100 (9th Cir.1999), superseded on other grounds by 218 F.3d 1017 (9th Cir. 2000) (en banc). Mr. Vargas's case, however, clearly differs from Schell, where "the trial court failed to make any inquiry into the reasons behind Schell's request for substitute counsel." Schell, 181 F.3d at 1100 (emphasis added). By contrast, the district court here did make some inquiry, in that it stopped the proceeding and directly asked Mr. Vargas to describe the problem. The question before us is, therefore, how much inquiry is enough. 14 There can be no bright lines drawn as to what constitutes "adequate" inquiry. Generally, repeated inquiry is preferred, both in court and in serious areas of life outside of the law. For example, when counseling a potential convert to Judaism, "[s]ome [rabbis] adhere to an ancient tradition of turning away a candidate three times to test the candidate's sincerity." Conversion to Judaism Resource Center, The Conversion Process, at http://www.convert.org/process.htm (last visited Oct. 23, 2002).2 The district court in this case asked twice. However, we need not engage in a simple counting exercise, because the quality of the inquiry is at least as important as the quantity. 15 Here, the district court spoke directly to Mr. Vargas, who affirmatively declined the opportunity even to address the issue. Notably, there is no evidence that Mr. Vargas was too confused or intimidated by the legal trappings of the proceeding to speak up. Instead, Mr. Vargas stated clearly and affirmatively that he was in court to be sentenced. His request, "Let's get on with it," satisfied the district court that Mr. Vargas was ready to proceed. Rec. vol. III, at 4. Dispelling any doubt as to his ability to speak for himself, Mr. Vargas even interjected during the proceedings to challenge a government witness's expertise regarding marijuana, asking, "Has he ever smoked it before? I don't see him being an expert, Your Honor." Rec. vol. III, at 12. Even so, the district court extinguished any lingering uncertainty that Mr. Vargas might yet wish to explain his position when it gave Mr. Vargas a final opportunity to speak. Mr. Vargas again clearly and affirmatively declined. 16 A district court should engage in an inquiry sufficient to explore and understand the defendant's concerns about the inadequacy of counsel. Such an inquiry might involve repeating and, if necessary, rephrasing questions; but the fundamental requirement is that the district court's inquiry uncover the nature of the defendant's concerns. This requirement exists to satisfy the law's concern that when a defendant surrenders important rights and claims, such decisions must be knowing and intelligent. This concern is pervasive in our precedents. See, e.g., Hawkins v. Mullin, 291 F.3d 658, 679 (10th Cir.2002) (waiver of right to present mitigating evidence must be knowing and intelligent) (Lucero, J., concurring); United States v. Turner, 287 F.3d 980, 983 (10th Cir.2002) (noting that "defendant must knowingly and intelligently relinquish the benefits of representation by counsel") (internal quotation marks omitted); Toles v. Gibson, 269 F.3d 1167, 1180 (10th Cir.2001) (requiring knowing and intelligent waiver of Miranda rights); Mitchell v. Gibson, 262 F.3d 1036, 1058 (10th Cir.2001) (requiring knowing and intelligent waiver of right to counsel after a polygraph test); United States v. Cockerham, 237 F.3d 1179, 1189-90 (10th Cir.2001) (requiring knowing and intelligent waiver of right to appeal and collaterally attack sentence and conviction with plea of guilty). 17 As the record here indicates, however, it was Mr. Vargas himself who cut off the district court's inquiry. While we still would have preferred the district court to be a bit more persistent, we need only ask whether the district court abused its discretion in undertaking the inquiry that it did, and in not substituting counsel after this inquiry. See Beers, 189 F.3d at 1302. We conclude on these facts that it did not, as Mr. Vargas's refusal even to respond to direct questions about the issue clearly indicated his acquiescence to his counsel's representation; further, as noted above, neither Mr. Vargas nor his counsel chose to pursue this issue when specifically given a final opportunity to do so. The abbreviated inquiry by the district court — which generally would be cause for concern — was therefore attributable to Mr. Vargas himself. III. Conclusion 18 The district court in this case did not abuse its discretion in the extent of its inquiry into Mr. Vargas's motion to substitute counsel. Mr. Vargas's appeal is thus DENIED, and his sentence is AFFIRMED. The resolution of this case does not, of course, prejudice any ineffective assistance of counsel claims which Mr. Vargas might bring on collateral review.3 Notes: 1 We note, however, that Mr. Vargas's decision to raise the ineffective assistance claim on direct appeal might have been an attempt to preserve the issue forhabeas review. See id. at 1241 ("The threat of default and resulting procedural bar has doubtless resulted in many claims being asserted on direct appeal only to protect the record.") When a claim is defaulted, it is subject to a cause and prejudice test. See Bousley v. United States, 523 U.S. 614, 622-24, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Nevertheless, because such attempts to protect the record "unnecessarily burden[] both the parties and the court with a presentation and review leading only to dismissal for reassertion in a petition under 28 U.S.C. § 2255," Galloway, 56 F.3d at 1241, we have held that the procedural bar rule of United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), "does not apply to ineffective assistance of counsel claims." Id. This issue is, however, currently under review by the United States Supreme Court, Massaro v. United States, 27 Fed.Appx. 26 (2d Cir.2001) (unpublished opinion), cert. granted, ___ U.S. ___, 123 S.Ct. 31, 153 L.Ed.2d 893, 70 U.S.L.W. 3669 (2002). 2 We do not, of course, imply that the court looks to religion in assisting with our resolution of this or any other case. We note this ancient tradition simply as one example of a situation outside of the law where important decisions are made only after repeated inquiry 3 See our discussion in note 1, supra, discussing the preference for bringing ineffective assistance of counsel claims on collateral review.

493 F.3d 1042 (2007) UNITED STATES of America, Plaintiff-Appellee, v. Arthur JEREMIAH, Defendant-Appellant. No. 06-10397. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 18, 2007. Filed May 24, 2007. Amended July 2, 2007. *1043 Richard S. Kawana of Honolulu, HI, for defendant-appellant Arthur Jeremiah. Edward H. Kubo, Jr, United States Attorney, District of Hawaii; Lawrence L. Tong, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee United States of America. Before: ALFRED T. GOODWIN, D.W. NELSON, and CONSUELO M. CALLAHAN, Circuit Judges. *1044 ORDER The opinion filed on May 24, 2007, is hereby amended as follows. In the slip opinion at page 6204, paragraph [7], lines 6-7, the phrase "a significant deprivation of his liberty" is replaced with "an unjustified deprivation of his liberty." OPINION CALLAHAN, Circuit Judge: The district court revoked Arthur Jeremiah's supervised release after he failed to make restitution payments required as a condition of supervised release for a 2003 bank fraud conviction. The district court sentenced Jeremiah to three months' imprisonment and additional time on a new period of supervised release. On appeal, Jeremiah argues that the district court lacked jurisdiction to revoke supervised release because he was arrested without a valid warrant, that he was denied a preliminary hearing in violation of Criminal Rule 32.1, that there was insufficient evidence to support revocation of supervised release, and that some of the conditions of supervised release were improper. We have jurisdiction under 28 U.S.C. §§ 1291, 1294 and 18 U.S.C. § 3742. We affirm the district court in all respects. BACKGROUND In 2003, Jeremiah was convicted of bank fraud and use of a counterfeit device. He provided false information to the Bank of Hawaii and induced the bank to provide him with a credit card vendor machine, which he used to submit numerous unauthorized credit card transactions. He was sentenced to twenty-five months of incarceration, five years of supervised release and required to pay restitution of $64,000. In the summer of 2005, Jeremiah was released from prison and began making restitution payments. He soon failed to make payments, although for a number of months he made at least partial payments of the amounts due. Jeremiah's probation officer requested that the court issue a "no bail warrant" for Jeremiah's arrest. The request was sworn and a statement of facts explaining Jeremiah's conduct was attached to the request. Jeremiah was arrested by a deputy marshal. The district court conducted a hearing and determined that Jeremiah had violated supervised release. He was imprisoned for three months, and sentenced to fifty-seven months of supervised release. He also received new conditions of supervised release. These conditions include submitting to drug tests up to eight times per month, not incurring credit charges without approval, claiming no more than one exemption on his W-4 forms, and timely filing tax returns. DISCUSSION On appeal, Jeremiah raises five issues: (1) the district court lacked jurisdiction over him; (2) the district court erred in not affording him a probable cause hearing; (3) the evidence was insufficient to conclude that he had wilfully violated conditions of release; (4) some of the conditions of supervised release were improper; and (5) cumulative error entitles him to a reversal. A. Jeremiah argues that the warrant for his arrest was invalid because it was not based on sworn facts and therefore the district court lacked jurisdiction to revoke his supervised release. Jurisdictional questions are reviewed de novo. United States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir.2004). In Vargas-Amaya we held "that the district court lacked jurisdiction to consider the alleged violations of *1045 supervised release because the warrant issued during the term of Vargas' supervised release was not based on facts supported by oath or affirmation, as required by the Fourth Amendment." Id. at 902. In the petition for the no bail warrant to arrest Jeremiah, the probation officer laid out the basic allegations against Jeremiah and declared "under penalty of perjury that the foregoing is true and correct." A statement of facts then followed. We need not decide whether the oath covered the statement of facts because even if the arrest warrant was invalid "illegal arrest or detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Vargas-Amaya established a narrow exception to this general rule for a defendant whose term of supervised release has expired. When a term of supervision has expired, jurisdiction is based on 18 U.S.C. § 3583(i) which requires a valid warrant as a condition of jurisdiction. Because Jeremiah was arrested during his period of supervision the exception created by 18 U.S.C. § 3583(i), as interpreted by Vargas-Amaya, is not applicable. B. Jeremiah next argues that he should have been afforded a preliminary hearing before a magistrate judge pursuant to Criminal Rule 32.1 which requires that "a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred." FED. R. CRIM. P. 32.1(b)(1)(A). The Supreme Court has explained that "a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision." Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Jeremiah has waived this issue by failing to raise it in the district court. Federal Rule of Criminal Procedure 32.1(b)(1)(A) states that "[t]he person may waive the hearing." By not raising his demand for a preliminary hearing when initially brought before the district judge, when any error could have been corrected, Jeremiah waived his right to a preliminary hearing. See United States v. Pardue, 363 F.3d 695, 698 (8th Cir.2004) ("Pardue appeared with counsel before the district court or the magistrate judge three separate times, and Pardue never requested a Rule 32.1 hearing during any of these appearances. Accordingly, Pardue also waived his rights to a Rule 32.1 hearing."). C. Jeremiah next contends that there was insufficient evidence to support revocation of supervised release. Jeremiah does not deny that he missed making at least some full restitution payments, but he contends that these violations were not "wilful" and the district court lacked evidence that the violations were wilful. Ordinarily "[t]here is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements" of a violation. United States v. Weber, 320 F.3d 1047, 1050 (9th Cir.2003). Moreover, "for purposes of a supervised release revocation hearing, the district court need only conclude that a preponderance of the evidence supports" revocation. United States v. Lomayaoma, 86 F.3d 142, 147 (9th Cir. 1996). In this case a finding of wilfulness was supported by Jeremiah's repeated failure to make restitution payments on time. Although the evidence might have been *1046 open to other interpretations, a trier of fact could reasonably conclude that the failure was wilful, so there was no error. D. Jeremiah next challenges a number of special conditions of supervised release as arbitrary and unduly restrictive of his liberty. He specifically challenges the conditions requiring that he: (1) maintain a single bank account; (2) truthfully and timely file and pay taxes during the period of supervision; (3) claim no more than one allowance on his W-4s; (4) incur no credit charges without prior approval of the probation officer; and (5) submit to up to eight drug tests per month. We review conditions of supervised release for abuse of discretion. United States v. Weber, 451 F.3d 552, 557(9th Cir.2006). At sentencing "the government bears the burden of showing that a discretionary condition of supervised release is appropriate in a given case," United States v. Sales, 476 F.3d 732, 735 (9th Cir.2007), but on appeal "[t]he burden of affirmatively showing error rests on the appellant." 36 C.J.S. Federal Courts § 603 (2007). Furthermore, because Jeremiah did not object to any of the conditions at sentencing, our review of the conditions is limited to plain error. Sales, 476 F.3d at 735. Conditions of supervised release must satisfy the requirements of 18 U.S.C. § 3583(d).[1] Jeremiah challenges his conditions based on § 3583(d)(2) which requires that a proposed condition "must involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release — that is, to achieve deterrence, public protection, or offender rehabilitation." Sales, 476 F.3d at 735 (citing United States v. T.M., 330 F.3d 1235, 1240(9th Cir.2003)) (internal quotation marks omitted). Jeremiah's violation of supervised release involved failure to make restitution payments. Allowing the probation officer to monitor Jeremiah's finances is important to ensure that he makes proper payments. Accordingly, restrictions on bank accounts and incurring credit charges, as well as ensuring that he paid taxes, are reasonably related to supervising his ability to make restitution payments. It was not an abuse of discretion for the district court to impose these conditions. This conclusion is also supported by Jeremiah's failure to explain how these conditions are more than a de minimus deprivation of his liberty. We scrutinize more closely the condition that Jeremiah submit to as many as eight drug tests per month because testing for drugs implicates Fourth Amendment rights.[2] "[W]hen fundamental rights are curbed it must be done sensitively and with a keen appreciation that the infringement must serve the broad purposes of the Probation Act." United *1047 States v. Consuelo-Gonzalez, 521 F.2d 259, 264-65 (9th Cir.1975). The district court is required by statute to order that a person "submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court)," unless the court finds that testing is unnecessary for a particular defendant. 18 U.S.C. § 3583(d). In United States v. Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005), we held that because the statute declares that the number of tests shall be "determined by the court" it is a decision for the court, rather than the probation officer, to decide how many times a defendant may be tested for drugs. We further explained that the court must set the maximum number of tests to which a releasee may be subjected. Id. at 883. Here, the district court, in compliance with Stephens, did determine the maximum number of tests. On appeal, Jeremiah bears the burden of showing that the testing level set by the district court involves a greater deprivation of liberty than is reasonably required to achieve deterrence, public protection and offender rehabilitation. Although there is no evidence of drug use by Jeremiah, he has not established that the drug testing requirement is an unjustified deprivation of his liberty. For example, at oral argument for the first time Jeremiah noted that if he were required to pay for the testing it would be a significant expense. Yet there is nothing in the record suggesting that Jeremiah has been, or will be, required to pay for such tests. Jeremiah, having failed to object in the district court to the level of drug testing set by the court, has not met the burden on appeal of showing that the condition was an abuse of discretion.[3] E. Finally, because we hold that there was no error committed by the district court, Jeremiah's theory of cumulative error necessarily fails. CONCLUSION For the above reasons, the judgment of the district court is AFFIRMED. NOTES [1] 18 U.S.C. § 3583(d) permits the district court to order discretionary conditions of supervised release if the condition: (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a). . . . [2] The Supreme Court has repeatedly held that mandatory drug testing "constitutes a `search' subject to the demands of the Fourth Amendment." Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Special needs, such as supervised release, justify drug testing but such searches must be reasonable under the circumstances. See Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006). [3] Assuming, without concluding, that it was error to order up to eight drug tests per month, this would not rise to the level of plain error. Plain error is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Ameline, 409 F.3d 1073, 1078(9th Cir.2005). Even if one could conclude that eight tests per month is excessive, this would not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

732 F.2d 146 Martino, Appeal of 83-3329 United States Court of Appeals,Third Circuit. 3/14/84 1 M.D.Pa. REMANDED

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BERNARDO ALONZO CALVO- No. 15-71567 RODRIGUEZ, Agency No. A200-835-460 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 19, 2019** Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges. Bernardo Alonzo Calvo-Rodriguez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s conclusion that Calvo-Rodriguez failed to establish that the harm he experienced or fears in El Salvador was or will be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”); Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (petitioner’s general aversion to gangs did not constitute a political opinion), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Thus, Calvo-Rodriguez’s asylum and withholding of removal claims fail. Substantial evidence also supports the agency’s denial of CAT relief because Calvo-Rodriguez failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). In his opening brief, Calvo-Rodriguez does not challenge the agency’s determination that Calvo-Rodriguez failed to establish that he will be harmed 2 15-71567 based on his family membership. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). We lack jurisdiction to consider Calvo-Rodriguez’s contention regarding his proposed social group of people who are affluent or perceived as affluent because he failed to raise it to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Calvo-Rodriguez’s request for judicial notice as set forth in his opening brief is denied. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 15-71567 

193 S.W.3d 116 (2006) Stanley Mark PARSON, Appellant, v. The STATE of Texas, Appellee. No. 06-05-00063-CR. Court of Appeals of Texas, Texarkana. Submitted December 29, 2005. Decided March 10, 2006. Rehearing Overruled April 4, 2006. *119 Steven R. Miears, Bonham, John William Thomas Biard, IV, McLaughlin, Hutchison, Starnes & Biard, Paris, for appellant. Gary D. Young, County & Dist. Atty., Deborah Moore, Asst. County Atty., Paris, for state. Before MORRISS, C.J., ROSS and CARTER, JJ. OPINION Opinion by Justice ROSS. Stanley Mark Parson appeals from his conviction by a jury for aggravated assault with a deadly weapon.[1] The jury found that Parson had been previously convicted of two felony offenses and set his punishment at ninety-nine years' imprisonment. Parson appeals, contending the trial court erred: 1) by admitting into evidence the victims' prior inconsistent statements when the victims recanted those statements at trial; 2) by improperly admitting evidence of extraneous offenses at both the guilt/innocence and punishment phases of the trial; 3) by admitting opinion testimony from a licensed professional counselor that the alleged victims, Parson's wife and stepson, suffered from "battered woman's syndrome"; and 4) by several mistakes in the court's charge to the jury. Parson also contends the evidence is factually and legally insufficient to support his conviction on one count involving his wife because there was no evidence he caused her bodily injury or that he used a deadly weapon. We affirm. Background The evidence shows that, while Parson was drinking himself into a near stupor at his home, his wife, Waynell Parson, and his sixteen-year-old stepson, Richard Havner, went next door to the home of Waynell's[2] sister-in-law, Terry McCloud. Parson telephoned next door and told Waynell and her son to return home. They did, and an argument ensued between Parson and Waynell, which escalated when Waynell *120 and Havner tried to leave once more. There is evidence that Havner exited the house, but when Waynell attempted to leave, Parson got a gun and pushed Waynell back into the house, injuring her in the process. There are also statements in evidence made by Waynell and Havner that Parson pointed the gun at them and threatened them. The evidence further shows that Waynell and Havner managed to retreat to McCloud's house, where an emergency call was placed to the Lamar County sheriff's office. When officers arrived, they spent over two hours attempting to locate Parson. They finally found him behind his house, beside a small chicken coop and under a bush, unconscious, and with two rifles nearby. At trial, Waynell and Havner recanted their prior statements to the officers and recanted their grand jury testimony, and testified Parson never actually pointed a weapon at them. Parson was convicted of aggravated assault by pushing Waynell into a door while using a deadly weapon. He was also found guilty of aggravated assault by threatening Waynell while pointing a deadly weapon at her. In the other case, the jury found Parson guilty of aggravated assault by threatening Havner with imminent bodily injury while using a deadly weapon. Prior Inconsistent Statements Parson first contends the court erred by admitting Havner's statements into evidence. Parson objected to the admission of the exhibits based on hearsay and because the witness admitted in court he had made the prior statements. Rule 613 of the Rules of Evidence provides that a prior inconsistent statement of a witness is admissible for impeachment of the witness. TEX.R. EVID. 613. However, the rule also explicitly states that the extrinsic evidence of the statement itself is only admissible if the witness refuses to admit making the statement. This is not merely a refusal to admit making a statement, but refusing to admit making the contents of the statement. See McGary v. State, 750 S.W.2d 782, 786 n. 3 (Tex.Crim.App.1988); Staley v. State, 888 S.W.2d 45, 49 (Tex.App.-Tyler 1994, no pet.). The courts reason that, when a defendant admits making the statement, it is unnecessary to admit the document itself because the witness impeaches himself or herself. McGary, 750 S.W.2d at 786. In this case, Havner testified that Parson never threatened him with the gun, but admitted he had made a previous written statement that said otherwise. He was asked: Q. Did he ever threaten you with that gun? A. No, sir. Q. Have you ever testified or had a statement that says otherwise? A. Yes, sir. A written statement was given to Parson to read silently. After he read the statement, he admitted that he signed it voluntarily. He then testified: Q. You testified today that he didn't threaten you? A. Yes, sir. Q. Did you previously make a statement that he did threaten you? A. Yes, sir. Q. Is the statement true, or is what you're telling today true? A. What I'm telling today. The State then offered the statement as an exhibit. Over objection, the court admitted the exhibit. Havner was then questioned at trial about the testimony he had given before the grand jury. In that testimony he had said his statement was true and correct, *121 and then testified regarding what had happened on the occasion in question. Havner testified at trial that what he had told the grand jury was not true. Over objection, the State also introduced three exhibits, consisting of three pages of the proceedings before the grand jury. After the written statement was introduced into evidence, the State questioned Havner about the way the statement was taken and about the witnesses thereto (his mother, his aunt, and his sister), whose signatures were on the documents. The State's counsel asked Havner: Q. You told those three people that he put this gun up, pointed it at somebody and threatened to shoot. A. Yes, sir. Q. And that's true? A. No, sir. Q. So today you've got a different story? A. I didn't see him point the gun at anybody. Q. According to this: "He came at us with his gun, saying stop or I'll shoot you. Then he pushed my mom into the door." A. I didn't see it. Q. Did he say stop or I'll shoot you? A. No, sir. Q. Have you ever testified other— other than just the statement, have you ever testified differently to that? A. Yes, sir. The State then had Havner read approximately fifteen lines of his grand jury testimony in which (among other things) Havner identified the weapon and stated that Parson had pointed it at him and his mother, that Parson had threatened to shoot them if they continued to try to leave the house, and that he had the gun on his shoulder like he was going to fire it. The State then asked a series of questions designed to point out, with no possibility for evasion, that Havner had given a statement and testified in one way before a grand jury, and was now testifying to the contrary on two particular (but critical) points: whether Parson pointed the gun at them and whether he threatened them. The issue is whether, in light of the fact that Havner admitted making the statements, the trial court erred by initially admitting the documents into evidence. Under the plain language of the rule, the court erred. For example, as described in McGary, when the witness admits making the statement, but on questioning denies portions of the statement, the portion that contradicts the witness may be proven for impeachment. McGary, 750 S.W.2d at 787. However, when the witness unequivocally admits making the prior statements, "the instrument itself is not admissible, but the examining attorney may ask about specific sentences, remarks, or things in the prior statement." Id. In that case, the court ultimately held that the admission of the entire statement was error and that the reading of the statement to the jury was improper impeachment. The court recognized that the state also used the evidence as proof of the offense, and so argued to the jury. Under the former harmless error standard of review, the court reversed because it could not conclude the improper impeachment was harmless beyond a reasonable doubt. Id. at 788; Staley, 888 S.W.2d at 49. In this case, Havner unequivocally admitted making the statements and unequivocally admitted that his testimony at trial was diametrically opposite to that in his written statement and in his prior testimony before the grand jury. There was no suggestion that his admissions in court as to his inconsistent statements were in any way equivocal, and they do not appear *122 so. Under this state of the record, the impeachment was complete when Havner made those specific admissions, and the rule thus provides that the extrinsic evidence of the written statement and Havner's prior grand jury testimony were not admissible as evidence. The court erred by admitting the documents over objection. The remaining question is whether the error was harmful. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities or variances that do not affect the substantial rights of the accused. TEX.R.APP. P. 44.2(b). A "substantial right" is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997); see TEX.R.APP. P. 44.2(b). For claims of nonconstitutional error, the Texas Court of Criminal Appeals has held that "a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had `substantial influence' on the outcome of the proceeding." Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim.App.2002). In other words, if we have "a grave doubt" that the result was free from the substantial influence of the error, then we must reverse. Id. The Texas Court of Criminal Appeals has explained that "grave doubt" means that "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. (citing O'Neal v. McAninch, 513 U.S. 432, 433-36, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). Thus, "in cases of grave doubt as to harmlessness the petitioner must win." Burnett, 88 S.W.3d at 637. If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). A related issue we will address before determining harm is the question of whether the court erred by refusing to give an instruction in the jury charge that would have restricted the jury's consideration of the written statement and grand jury testimony to the purpose of impeachment. It is clear from the heading of Rule 613 that the rule governs admission of prior statements for purposes of impeaching the witness. However, in this case, Parson did not seek to have the jury instructed about the limitation at the time the evidence was introduced. There is direct authority stating that evidence admitted for all purposes becomes part of the general evidence in the case, and that a limiting instruction is therefore inappropriate. Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App.2001). Thus, the court did not err by failing to submit a limiting instruction to the jury. The evidence before the jury on these allegations consisted of Havner's testimony—that Parson had a gun, but had neither threatened nor pointed it toward anyone—countered by Havner's admission that he had stated otherwise both in his prior written statement and in his testimony before the grand jury. McCloud testified unwillingly that Waynell had come to her house—frightened, upset, and crying—and saying that Parson had a gun. She testified Waynell had told her Parson had pointed the gun at Havner and then pushed her back in the house with him. McCloud also testified that Waynell told her Parson had told Havner to "stop or I'll shoot," and that Havner had cut his foot while running across the open field between their houses. McCloud also testified Waynell had later called her, said her first story was incorrect, and told McCloud that those events had not happened. *123 Officer Anson Amis testified that, when he answered the call on the incident, he went to McCloud's house and found Waynell and Havner crying on McCloud's couch. Amis testified Waynell told him Parson had pointed a rifle at them. After that, Amis and Deputy Ken Carpenter went to Parson's house, looking for him. Parson did not answer the door, so they waited until additional officers arrived, and then searched the area. They found Parson behind his house. Officer Joe Tuttle, who arrived with the additional officers, testified that they obtained a key to the house from Waynell and that, after determining Parson was not in the house, they searched the grounds and located him on the west side of a small chicken coop behind his house—passed out under a bush. Nearby, they found a .22 single-shot rifle and a 6 mm. semiautomatic rifle. Neither was loaded, and no ammunition was nearby.[3] Carpenter, one of the original responders, testified that, when he talked to Havner, Havner was frightened because Parson had pointed a gun at him. Waynell's testimony is a remarkable mix. She did not deny telling the officers about the incident as described above. She did not deny testifying to that effect before the grand jury. At trial, however, after being taken through the material points of her statement and testimony, she then testified that none of these things ever happened. It is significant to note Waynell further testified that, after her initial contact with Carpenter concerning this incident, she later told Carpenter that Parson had attempted to get her to change her testimony before she went to the grand jury, had asked her to say she could not remember anything and to tell people she was drunk and high, and that Parson had "said that I was turning against him and that he would take me down . . . [that] [h]e would see to it that we were taken care of so just go ahead and testify against him." Waynell testified she told Carpenter she "felt that [Parson] meant that he would have me and my son killed." Waynell also testified she told Carpenter that Parson told her "he would take care of business" if she testified against him and that Parson said he could get her "even if [he] was behind bars." Waynell then testified at trial she had testified before the grand jury that, on the occasion in question, Parson had a rifle, that it appeared he was trying to put a bullet in it, and that he had the rifle to his shoulder and had pointed it at her son's head. After initially denying that Parson had read her grand jury testimony to her over the telephone, she finally admitted that he had read parts of it to her and that he had called her many times. She also testified Parson had asked her to contact the district attorney about her story. The flavor of her testimony is shown by the following excerpt: Q. He's never encouraged you to tell somebody you can't remember? A. No. Q. Never once? A. He did not encouraged [sic] me to say that, no. Q. That's different than what you told the grand jury. A. Yes. Q. You told the grand jury that's what he had done? A. Yes. Q. You told Corporal Carpenter that he threatened to kill you if you didn't do it? *124 A. Those weren't exactly my words. Q. Well, your exact words being: That if he still went to prison, he would have me and my son took out? A. Yes. Q. Did you take that to mean that he would kill you? A. If someone says that, yes. Q. And that's what you told Corporal Carpenter on December the 5th. A. Yes. Q. Two days before you showed up for the grand jury? A. Yes. . . . . Q. In your grand jury testimony ... you were asked, "Would you agree with me that he tried to influence your testimony falsely." What did you tell the grand jury? A. "He didn't want me to. He just wanted me to say that I couldn't remember." Q. He wanted you to lie, didn't he? And what did you say when— A. He wanted me to say that I didn't remember. Q. That's the same thing the defendant told you in a phone conversation. A. No, he said that— Sergeant Travis Rhodes, one of the backup officers, testified that he had spoken to Waynell when he arrived and that she told him Parson had pointed a rifle at both her and her son. He also testified that, in his opinion, Waynell was not high or intoxicated. He also testified Waynell had fresh bruises on her back and above her right eye. Claire Haslam, a licensed professional counselor, testified as an expert about battered woman's syndrome, and ultimately opined that both Waynell and Havner had anxious attachments consistent with the syndrome, including the "willingness to do whatever it takes to belong." We conclude the State had the right to place the material portions of Havner's written statement before the jury so that the State could show that Havner's story had changed. The State did so, and Havner had full opportunity to attempt to explain the differences. The State also properly placed Havner's specific prior statement before the jury in its effort to clearly show those differences and to obtain testimony from Havner either admitting or denying that the statements were his own. The error in this case was allowing the statement, in its entirety, to be placed into evidence as an exhibit, in light of Havner's explicit admission of the differences between his prior statement and his trial testimony. With the exception of the highlighted differences as discussed above, Havner's statement was entirely consistent with his trial testimony. Under these facts, and in light of the entirety of the proceeding, we do not believe this error exerted a "substantial influence on the outcome of the proceeding." Parson's argument concerning Havner's testimony before the grand jury is even less compelling. Although Havner was questioned extensively about that testimony, his entire testimony was not placed before the jury—only brief excerpts from three separate pages were actually tendered as exhibits. Again, because Havner admitted their contents and the differences between that testimony and his testimony at trial, the court erred by admitting the excerpts from the documents themselves as exhibits. However, in light of their brevity, and the way in which each was discussed in detail with Havner, providing him full opportunity to explain the differences, and in light of the proceedings as a whole, we also find this error did not exert a "substantial influence on the outcome of *125 the proceeding." The contentions of error are overruled. Parson next contends the trial court erred by admitting exhibits 32, 35, 39, and 48, containing Waynell's prior statements concerning the incident in question. Exhibit 32 is a typed, two and one-half page single-spaced statement she gave to police May 17, 2004. Exhibit 35 is a three-page handwritten statement made by her on May 16, 2004. Exhibit 39 is a transcription of twenty-eight pages of Waynell's grand jury testimony given December 7, 2004. Exhibit 48 is a one-page handwritten statement, dated December 5, 2004, in which she had informed Carpenter about the threats Parson had made against her and Havner in connection with her upcoming grand jury testimony. In each instance, the same situations were broached as discussed above—Waynell testified at trial that her statements and grand jury testimony were untrue concerning Parson's use of the rifle to threaten her and her son. These exhibits reflect many of the same problems as discussed concerning Havner's testimony. However, the objections raised were not consistent. Parson objected to the admission of exhibits 32 and 35 based solely on hearsay. That is not the issue raised on appeal, and the contention now raised has thus not been preserved for our review. See TEX.R.APP. P. 33.1. For a contention to be raised on appeal, it must have been raised at trial by objection. Error is not preserved for review if it varies from the objection. Ibarra v. State, 11 S.W.3d 189, 196 (Tex.Crim. App.1999). The objection made to the admission of exhibits 39 and 48 was that they were hearsay and that an improper predicate was laid for their admission. On appeal, so far as we can glean the intent of the point of error, Parson complains the State committed reversible error by pursuing its questioning of Waynell concerning her prior statements, after the court, in a discussion outside the presence of the jury, had advised her she could invoke her Fifth Amendment right not to testify further about her prior statements. However, after the jury returned, and questioning resumed, Waynell did not invoke that right. Parson suggests on appeal the State acted improperly by calling Waynell as a witness for the sole purpose of impeachment. That solitary motivation is not shown by the record. When the state has statements and prior sworn testimony of a sequence of events, even in light of its suspicion that the witness might testify differently, it may still assume that the witness will testify truthfully and that prior sworn testimony was also truthful. The state is then entitled to determine the final content of the witness' testimony, and if necessary, to impeach such a witness with previous testimony and statements made by that witness to police. Error has not been shown. Extraneous Offenses at Punishment Phase Parson next contends the court erred by admitting evidence at the punishment phase of the trial concerning unadjudicated offenses that occurred before September 1, 1993. He contends, based on Voisine v. State, 889 S.W.2d 371, 372 (Tex.App.-Houston [14th Dist.] 1994, no pet.), that only evidence of final convictions is admissible if the bad act occurred before the effective date of the authorizing statute. TEX.CODE CRIM. PROC. ANN. art. 37.07(3)(a) (Vernon Supp.2005). Voisine contains a discussion of the (then) newly enacted statute, pointing out that, before September 1, 1993, unadjudicated extraneous offenses were not admissible at the punishment trial of a noncapital case. However, the *126 issue addressed there was whether those unadjudicated offenses were admissible when the offense being tried was committed before the effective date of the statute, but trial for the offense took place after its effective date. Voisine does not support Parson's position that evidence of the unadjudicated offenses is inadmissible if such offenses occurred before the date the statute became effective, and we are aware of no authority on that point. The contention of error is overruled. Expert Testimony Parson next contends the court erred by admitting expert opinion testimony from Haslam that Waynell and Havner suffered from "battered woman's syndrome" and that this explained why their testimony at trial differed from their prior statements and testimony. In support of this position, he directs our attention to our opinion in Edwards v. State, 107 S.W.3d 107, 115 (Tex.App.-Texarkana 2003, pet. ref'd), where we noted that an expert may not testify a witness is truthful, but may testify the witness exhibits symptoms consistent with sexual abuse. As we noted there, to be admissible, expert testimony must "assist" the trier of fact. TEX.R. EVID. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex.Crim.App.1990). Expert testimony assists the trier of fact when the jury is not qualified to "the best possible degree" to determine intelligently the particular issue without the help of the testimony. Edwards, 107 S.W.3d at 115; Duckett, 797 S.W.2d at 914. The expert testimony must aid—not supplant—the jury's decision. Id. Expert testimony does not assist the jury if it constitutes "a direct opinion on the truthfulness" of the testimony. See Edwards, 107 S.W.3d at 115; Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim.App.1993). In this case, Haslam did not cross that line. She testified about the syndrome and opined about its effect on the truthfulness of its victims where their difficulties with their spouses are concerned. She did not, however, directly address whether these particular witnesses were testifying truthfully. Error has not been shown. The contention of error is overruled. Charge Error Parson next contends the court, sua sponte, inserted language in the jury charge on guilt or innocence that reversed the burden of proof and negated the presumption of innocence as it applied to the jury's consideration of lesser-included offenses in both cause numbers. Counsel timely objected to the language complained of on appeal. Now, if you find from the evidence beyond a reasonable doubt that on or about May 16, 2004, in Lamar County, Texas, the defendant, Stanley Mark Parson, did then and there intentionally or knowingly threaten Waynell Parson with imminent bodily injury and did then and there use or exhibit a deadly weapon, towit: a rifle, during the commission of said assault, as alleged in Count Two of the indictment, you will find the defendant guilty as charged. Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty. If you have a reasonable doubt thereof that the defendant is not guilty of aggravated assault as charged in Count Two of the indictment you will next consider whether the defendant is guilty of the offense of deadly conduct. . . . . . . . If you have a reasonable doubt thereof that the defendant is not guilty of deadly conduct you will next consider whether the defendant is guilty of the offense of simple assault. . . . *127 In each instance, the court hand wrote an inserted "not" in the locations emphasized in the quoted text. We recognize that jury charges are often unnecessarily convoluted, but it appears clear the charge was correct until the court inserted "not." As it was revised, it instructed the jury to consider the lesser offense if it had a reasonable doubt that Parson was not guilty of the crime instead of if it had a reasonable doubt he was guilty of the crime. However, under these facts, the error is not material. The jury found in both cases that Parson was guilty of the higher crime under a charge correctly requiring the State to prove guilt beyond a reasonable doubt and thus did not need to go on to the portion of the charge involving the lesser-included offenses. This is not a situation where the language changed the constitutionally required burden of proof; it is a situation where, had the jury failed to find Parson guilty of the primary charge, it may have been confused about what was necessary before it could reach the lesser offenses. In that instance, any harm analysis would be under Almanza. Under that standard, when a defendant raises a proper objection at trial, reversal is required if this error was calculated to injure the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g); Aguilar v. State, 914 S.W.2d 649, 651 (Tex.App.-Texarkana 1996, no pet.). The presence of any harm, regardless of degree, is sufficient to require reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). The defendant has the burden of proof to persuade this Court that he suffered some actual harm as a consequence of the charging error. Id. In this instance, even though error exists, for the reasons set out above, it is not apparent that any actual harm was suffered by Parson because of this error. The contention of error is overruled. Extraneous Offenses at Guilt/Innocence Phase Parson next contends the trial court erred by admitting testimony that Waynell and Havner had, on earlier occasions, spent the night away from Parson at McCloud's house in order to "get away" from him. Parson contends this is proof of an extraneous matter, not relevant to this offense, and was more prejudicial than probative. At trial, counsel objected that such constituted a "more prejudicial than probative, extraneous offense." The court overruled the objection, and Havner testified he and his mother had left Parson's house before, usually when Parson was drinking. Parson contends this was evidence of an extraneous offense. It is not. There is no detail about why they had left the house before—only that they did so when Parson was drinking. The remaining question is whether the evidence should have been kept out because it was more prejudicial than probative. Trial courts are required to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice. TEX.R. EVID. 403; Montgomery v. State, 810 S.W.2d 372, 392 (Tex.Crim.App. 1990) (op. on reh'g). In making this determination, the court should "consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it." Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App.1992). A trial court's decision in balancing these factors is reviewed under an *128 abuse of discretion standard and is disturbed on appeal only when the trial court's decision falls outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391-92. In this case, testimony that Havner and his mother had spent nights away from Parson before, even "to get away from him," is not of such magnitude as to improperly sway a jury with emotion rather than reason. It lies within the zone of reasonable disagreement. The contention of error is overruled. Legal and Factual Sufficiency Parson next contends there was legally and factually insufficient evidence to support the verdict of guilt—specifically, that Parson used a deadly weapon and that he caused bodily injury to Waynell by pushing her into a door. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In our review of the evidence for factual sufficiency, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)). We have previously set out the evidence in detail. The specific evidence on this point consists of testimony that Waynell had told McCloud that Parson pointed the rifle at Havner and was then pushing Waynell back in the house with him, and that Waynell told responding officers Parson had pointed a rifle at her and her son. Havner's written statement read that Parson had come at them with a gun, saying, "stop or I'll shoot you," and then pushed Waynell into the door. There are also photographs of Waynell taken on the day of and the day after the incident. Rhodes testified he saw swelling and redness about Waynell's eye and a bruise on her back. In her statement, Waynell had recounted a bruise on her left chin, a bruise below her left knee, bruises and scratches on her right forearm, two bruises on her back, scratches on her hands, and that she "[felt] like [she had] been run over by a Mack truck." Rhodes testified Waynell's injuries were fresh and were consistent with her story at that time. The evidence shows that Waynell sustained some bodily injuries, that the timing of those injuries was consistent with the time of the incident, and that she originally stated they were as a result of the incident. The evidence clearly shows that Parson had a gun in his hands and that he was attempting to push Waynell into the door of their house. The offense, as set out by the charge, required only that Parson cause bodily injury, while using or exhibiting a deadly weapon. The evidence is legally sufficient to support the finding. The contrary evidence consists of Waynell's and Havner's testimony—which was essentially that, although Parson had a gun in his hands, he did not directly threaten to use it, and he did not point it directly at them. That testimony, however, as recounted at length previously, was severely impeached by testimony about Parson's efforts to derail Waynell's and Havner's testimony and encourage them to conveniently "misremember" the incident. The jury was entitled to draw its conclusions from the evidence, and the evidence against its verdict is not so compelling as to justify a conclusion that the evidence *129 was factually insufficient. The contention of error is overruled. Cumulative Error Parson next contends the cumulative effect of all errors at trial was such as to violate his due process right to a "reasonably competent and effective" trial under the United States Constitution, Amendment XIV. Although the Texas Court of Criminal Appeals has stated that a number of errors may result in reversible error due to their cumulative effect, Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999), our resolution of the contentions raised above shows that such a situation does not exist in the present case. This contention of error is overruled. Conclusion We affirm the judgment. NOTES [1] Parson was convicted in this case on two counts of aggravated assault against his wife, and under another cause number, one count of aggravated assault against his stepson. The cases were tried together, and the issues raised in both appeals are identical, except for the additional contention in this case that the evidence supporting the verdict on one of the counts of aggravated assault against his wife is legally and factually insufficient. [2] We refer to Parson's wife by her first name to distinguish her from her husband. [3] Ammunition was found in the house.

398 So.2d 360 (1981) Ernest Lee JONES, alias v. STATE. 2 Div. 294. Court of Criminal Appeals of Alabama. February 24, 1981. Rehearing Denied March 31, 1981. *361 Cartledge W. Blackwell of Gayle & Blackwell, and William T. Faile of Morris & Faile, Selma, for appellant. Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee. LEIGH M. CLARK, Retired Circuit Judge. This is an appeal from a judgment of conviction and sentence for murder as defined by § 13A-6-2 of the Alabama Criminal Code, effective January 1, 1980, now codified as Title 13A of Code of Alabama 1975. The alleged homicide occurred after January 1, 1980. The punishment prescribed by § 13A-6-2(c) is "imprisonment in the penitentiary for not less than 10 years to life." The court fixed punishment at 25 years' imprisonment and sentenced defendant accordingly. By reason of his indigency, defendant was represented in the trial court by appointed counsel and for the same reason is represented by appointed counsel, the same counsel, on appeal. The indictment was returned on February 11, 1980, and the case is one of the first murder cases tried and appealed that is governed by the new Alabama Criminal Code, which contains major changes in the law of Alabama as to unlawful homicide, one of which being that instead of having two degrees of murder, as before, the statute omits degrees of murder and defines one method of committing the offense by stating in § 13A-6-2(a)(1): "A person commits the crime of murder if: "With intent to cause the death of another person, he causes the death of that person or of another person; ..." Section 13A-6-2(b) of the Code provides: "A person does not commit murder under sub-divisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This sub-section does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crimes." The record shows that the trial judge wisely and carefully noted the changes that had been made by the new Code in the law of Alabama and correctly charged the jury to the satisfaction of all concerned, it seems, as to such changes. The oral charge included instructions as to the two lesser included crimes of homicide, "Manslaughter" and *362 "Criminally negligent homicide," as defined by sections 13A-6-3 and 13A-6-4 respectively, and the charge permitted a verdict under the evidence finding defendant guilty of either of said lesser included offenses. The defendant pleaded not guilty and made no contention that he did not kill the alleged victim, Joseph Steadman, by shooting him with a shotgun, which the undisputed evidence shows that he did. He relied upon the defense of self-defense. There is considerable conflict and confusion in the evidence as to specific details of what occurred a short time before and at the time of the fatal encounter, but a narrative of such details is not necessary at this time. The following brief summary is sufficient to show the basis for the conclusions we reach as to the issues presented. The alleged victim was fatally wounded on the afternoon of January 7, 1980, while he was sitting in an automobile or was in the process of getting out of the automobile, while the automobile was stationary at the home of defendant's mother, where defendant was living or staying at the time, in Marion Junction, in Dallas County. There was a public road adjacent to a yard of the home. There is some question as to the exact position of the automobile with reference to the road and with reference to the yard, but the weight of the evidence seems to be that, at the moment the victim was shot, a substantial part of the automobile was in the yard, and probably the weight of the evidence was to the effect that the wheels of the automobile on one side were about the same distance from the edge of the road underneath the automobile as the wheels on the other side. The victim was not the driver but was sitting on the front seat of the automobile, on the side which at the time was the side closer to the house of defendant's mother. The victim had been riding in the automobile with Willie Sawyer, the driver. They had picked up James Pryor, who rode in the back seat. After being in Marion, they went to Marion Junction to the home of Mag Jones, the mother of defendant. When they first drove up to the house, the victim, Joseph Steadman, went to the door and knocked, looking for Laura Jones, a young sister of defendant. Not finding her at home, Steadman returned to the automobile and the three went to another place nearby looking for Laura and soon returned to their previous position at the home of Mag Jones. While they were there, Laura got in the automobile and was sitting in the victim's lap, from which she left after being told by her mother to get out of Steadman's lap. Both Sawyer and Pryor testified to the effect that defendant came out of the house with a shotgun, came close to the automobile, fired one shot at Steadman hitting him in the head while Steadman was still sitting in the automobile. The evidence is undisputed that defendant then ran away, leaving the gun and went to Bessemer, Alabama, to a sister's house and through the intervention of his brother-in-law turned himself over to the authorities at Bessemer. Immediately after the shooting, Sawyer drove the automobile with Steadman and Pryor in it to a nearby service station, obtained the aid of law enforcement authorities and at their direction Steadman was taken to the nearest hospital. A post-mortem examination disclosed beyond question that he was killed by shot from the shotgun that entered the forehead above the right eye. In its oral charge to the jury, the court explained the element of freedom from fault in bringing on the difficulty and the element of imminent danger, or the reasonable appearance of imminent danger, of serious bodily harm or death without objection or exception by either of the parties. The court then said: "The third element is the one dealing with retreat. The law says that a person must retreat if he can do so without increasing his peril. It is better that one man should flee rather than another man should die. "Now the law of retreat does not apply. The third element goes out the window if the person is in their own home. You do not have to retreat from your home or your place of work, but you do have to *363 retreat unless that qualification is met. If you were out on the highway and you can run without increasing your peril, then you have the right, the obligation to do so. "Now those are the three elements, first of all, free from fault in bringing on the difficulty; second, danger of immediate bodily harm, serious bodily harm or death; and third, no way to retreat unless you are in your own home. If you're in your own home, and that doesn't mean out on the road in front of your home, that means in your home, you don't have any duty to retreat. A man's home is his castle." At the conclusion of its oral charge, the court called for exceptions. After noting one exception by counsel for defendant unrelated to what the court had said as to "retreat" as stated above, the following occurred: "THE COURT: Do you want anything about duty to retreat? "MR. FAILE: Also, object to the Court commenting to the extent that the Court instructed the jury that the Defendant has a duty to retreat if he was out in the street. We feel— "THE COURT: (Interposing) If they find from the evidence. If they find from the evidence he was out in the street— "MR. BLACKWELL: (Interposing) I think our objection goes to two points. Number one was that you said that he had to be in the house and— "THE COURT: (Interposing) Yes, he does. "MR. BLACKWELL: And it's our position that it's not the law, that he could be actually outside the house and, secondly, the question being outside, and I don't know if it was clear to the jury about being actually in the street, but there is a— "THE COURT: (Interposing) No, sir. I'll stand on that. If I'm wrong they're going to change the law because it says, "In your house." It doesn't say out in the yard. If you're in your yard, you can run. If you're in your own home or your place of business, you are under no duty to run. But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat." The court committed reversible error in the quoted portion of its oral charge. It precluded benefit to the defendant of the principle that one is under no duty to retreat when he is within the curtilage of his home, as well as when he is within the house itself. Madry v. State, 201 Ala. 512, 78 So. 866 (1918). The right to defend oneself without retreating while within his home or curtilage extends to guests in the home, as well as to the owner or more permanent occupants thereof. Walker v. State, 205 Ala. 197, 87 So. 833 (1921). In Walker, the accused was within the curtilage of his father's dwelling while crossing the yard surrounding it to the fence, which separated it from his own premises. The principles stated in the cases just cited have since been followed consistently. Collier v. State, 49 Ala.App. 685, 275 So.2d 364 (1973). As previously indicated and as disclosed by pictures, the yard in which defendant was standing when he fired the gun and which was partly occupied by the automobile in which the deceased was sitting or leaving at the time, was small, and the house was only a few steps from the road and from the automobile. The situation was entirely different in Nunn v. State, 19 Ala.App. 619, 99 So. 738, 740 (1924), in which "the scene of the difficulty was out in the public road and some appreciable distance from the dwelling house of accused." We do not agree with the position of appellee to the effect that the failure of defendant to request a written charge covering the matter under consideration disentitles him to a reversal by reason of the instruction given. Perhaps the position of appellee would be correct if the instruction were merely incomplete, if it had not limited the area from which defendant was not required to retreat to one's home or to one's place of work. It did so limit it by the *364 charge on the subject covered, generally, and specifically by the sentence, "You do not have to retreat from your home or your place of work, but you do have to retreat unless that qualification is met." The charge of the court on the subject is on the whole incorrect. Defendant's counsel made it clear to the court his basis for the objection or exception. The transcript shows that there was no disagreement between the court and counsel for defense as to terminology only, but that there was a disagreement as to the substance of what the court charged as to where a person is not under a duty to retreat, as to which the law requires us to agree with appellant. The trial court reiterated its view and gave expression to the steadfastness of such view by saying: "But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat." Whether the particular error of the court constitutes reversible error, whether it caused substantial injury to defendant, would ordinarily depend to a great extent upon the evidence as to the existence vel non of both of the other two essential elements of a valid defense of self-defense. However, we see no need to go into detail as to such evidence, as the prosecution did not contend on the trial and does not contend here that there was not sufficient evidence to justify a submission to the jury of the issues as to both of such elements. We are convinced that the court was correct in submitting both issues to the jury. In addition to what we have said as to evidence on the point, we note that, according to evidence for the defendant, the victim had once previously threatened the defendant while they were at a pool room and that at the time the victim had a rifle "outside the place." As to another occasion, defendant testified that the victim threatened him while the victim had a gun. As to that incident, defendant testified: "Q. Where on the railroad tracks? "A. Down by my mother's house. "Q. Did he threaten you then? "A. Yes, sir; he did. "Q. Did he have a weapon then? "A. Yes, sir. "Q. What did he have? "A. A gun. "Q. Did he threaten you with it? "A. Yes, sir. "Q. Did anybody else have any guns there then? "A. Not that I can remember. "Q. Did you have one? "A. No, sir; I didn't. "Q. What did you do? "A. Ran." By accepting what the court said as to defendant's duty to retreat, the jury could properly have come to no conclusion other than that defendant's defense of self-defense collapsed by reason of failure of defendant to retreat. The instruction took away from defendant a principle of law as favorable to him under the circumstances as any other principle applicable in the case. We have no doubt that the error probably resulted in substantial injury to defendant. Appellant asserts that the court was in error in refusing defendant's written charge No. 19: "I charge you, members of the jury, that the indictment, information, affidavit, or warrant of arrest in this case is not any evidence in this case and the fact that the Defendant was arrested is not to be considered by you as a circumstance against the Defendant, but said indictment, information, affidavit or warrant of arrest is merely the method of placing the Defendant on trial, but the presumption of innocence attends the Defendant throughout this trial and remains with Defendant and authorizes an acquittal, if the entire evidence fails to overcome the presumption of the Defendant's innocence, by proof of the Defendant's guilt beyond a reasonable doubt and to a moral certainty." Appellant relies upon Salter v. State, 22 Ala.App. 86, 112 So. 538 (1927), in which the trial court was reversed for its refusal to give a charge containing a large amount of *365 the same language found in the above quoted requested charge. However, in Salter, supra, the charge was limited to a consideration of an indictment, as to which it has been repeatedly held that it is proper for the court to charge a jury to the effect that the indictment is not to be considered as evidence in the case. It does not follow, however, that a similar charge should be given as to an instrument that does not purport to be the actual charge upon which there has been an arraignment. Appellant's contention as to the refusal of the charge is without merit. We disagree with appellant's contention that the court "erred in allowing toxicologist Craig Bailey to give testimony without being sworn." There seems to be some factual basis for the claim that the witness testified in an in camera proceeding without having been sworn, but when he was called by the State to testify in the case before the jury, the transcript recites that the witness, naming him, "called on behalf of the State, having been previously sworn, testified as follows." The record, rather than the statement and briefs of counsel, controls. Bush v. State, Ala.Cr. App., 333 So.2d 186 (1976). Dr. Richard Roper, toxicologist of the Alabama Department of Forensic Sciences in the Montgomery Regional Laboratory, testified as to a post-mortem examination upon the victim of the homicide. Before his testimony was given, defendant's attorney asked to "take him on voir dire." The following then occurred: "THE COURT: For what point, Mr. Faile? "MR. FAILE: His identification of that body. "THE COURT: All right. "VOIR DIRE EXAMINATION. "By Mr. Faile: You said the body was identified to you? "A. Yes, sir. "Q. Who identified it to you? "A. Mr. Carl Murdox, a Medical Examiner and Field Agent in the Montgomery Laboratory. "Q. That's the gentleman who just testified? "A. That's correct. "Q. He based his identification on the arm band; is that correct? "A. Arm band and hospital information. "Q. Hospital information? You based your identification on what he told you? "A. What he told me and the arm band which I removed from the body. "MR. FAILE: We renew our objection. "THE COURT: Overruled." The mother of the victim had testified, without objection, that he had died en route to the Baptist Medical Center in Montgomery, to which she went soon after his body arrived at the hospital. Mr. Carl Murdox testified that he looked at the body, removed a hospital arm band with the victim's name written thereon, which arm band was admitted in evidence, then delivered the body to the "City Morgue in Montgomery" and turned it over to Dr. Richard Roper. A picture of the body showing a bullet hole in the forehead of a person who substantially answers the description of the victim as shown in the evidence, was introduced in evidence. There was no semblance of any dispute as to the identity of the body. Defendant's objection to the testimony of Dr. Roper as to the result of the examination was properly overruled. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), when Utah was still a territory, relied upon by appellant, does not call for a different conclusion, although it was held therein that the testimony of a physician as to his post-mortem examination of a corpse was not admissible. In that case, there was confusion brought about by the presence of two corpses at a railroad depot at the same time, one in a metal casket and the other in a wooden coffin, with "generally similar" injuries and some testimony that the body identified to the physician for post-mortem examination was in a metal casket, while the father of the victim had testified that his body had been placed in a wooden coffin. Another insistence on error to a reversal is based on an exception taken by defendant's *366 counsel directed to a portion of the court's oral charge in which it referred to the responsibility of one while he is intoxicated. The exception and the action of the court are shown by the following part of the transcript: "MR. FAILE: We would except to the Court's oral charge in regard to the Court charging the definition of intoxication to the extent of it applying to the Defendant as there is no evidence in this case that the Defendant was intoxicated or had any alcoholic beverage whatsoever. "THE COURT: If you will notice, I said Defendant, deceased, or any other witness. I put it in general terms. I did not single out the Defendant. "MR. FAILE: The definition that you gave as to justification or whatever would have no—Would not apply to the deceased anyway. There has been testimony as to the percent of blood alcohol and we don't see any objection to the Court defining that percentage to the jury in regard to the statutory interpretation and guidelines as to what is intoxicated and what is not, but our exception is to the general definition of intoxication as it applies to the Defendant or as applies to the deceased in this case as it doesn't apply. "We would also request that the Court instruct the jury on the crime of assault and battery being a lesser included offense of the crime charged in the indictment and except to the Court's definition of criminal negligence." There were references in the oral charge, which we think could well have been omitted, to the matter of intoxication, which seemingly were prompted by considerable evidence as to who had been drinking intoxicating liquor or beverage a short time before the fatal encounter. Perhaps the comments were influenced by the commendable desire of the court to instruct the jury with accuracy and fullness as to the principles of the law as to the effect of intoxication upon one's criminal responsibility for his conduct, as particularly set forth in Code of Alabama § 13A-3-2 and by the possibility that intoxication, if any, on the part of defendant at the time would have served to reduce the crime from which he might otherwise have been responsible to a homicide less than murder. Although we are not convinced that there was sufficient evidence in the case to support a conclusion that defendant was intoxicated at the time he shot the alleged victim, we can understand the court's willingness to give the defendant the benefit of any reasonable doubt on that point and to charge the jury accordingly. It appears from defendant's exception that he was then disclaiming intoxication and any and all reliance upon intoxication as a possible defense. It is to be noted from the quoted portion of the colloquy between the court and defendant's counsel, after his first recital of an exception to the court's charge as to intoxication, that the court made it clear that it spoke of intoxication "in general terms" and that it did not "single out the Defendant." Counsel then stated that he didn't "see any objection to the Court defining that percentage to the jury in regard to the statutory interpretation and guidelines as to what is intoxicated and what is not" but that he had a different view as to "the general definition of intoxication as it applies to the Defendant or as it applies to the deceased in this case as it doesn't apply." Immediately thereafter, defense counsel requested the Court to "instruct the jury" on an entirely different subject. We think that defendant's exception was not sufficiently clear or specific to enable the court to determine that it was valid. In addition, we think that the charge of the court as to the subject of intoxication did not cause any substantial injury to the defendant. We dispose of as unwarranted the final insistence of appellant, as to which he captions the issue: "Whether the trial judge made improper remarks prejudicial [sic] the Defendant." In this position appellant refers to disconnected incidents, one of which was as to the action of the court in reproving loud remarks or other noise made by witnesses while in the courtroom that could be heard by the jury. Another was *367 during the cross-examination of a witness for the State, shown by the transcript as follows: "Q. If Earl said you and `Till' were drinking out of the orange cup, then— "MR. BLAIR: (Interposing) We object to that. "MR. FAILE: It's cross-examination. "MR. BLAIR: He's asking him to testify as to whether or not a witness was telling the truth or not. "MR. FAILE: Cross-examination, Your Honor. "THE COURT: Is that some magic word, Mr. Faile? I'll overrule the objection. "Q. (Continuing) If Earl testified that you and `Till' were drinking out of an orange cup, some alcohol, then he was lying, is that right? "MR. BLAIR: Objection to the form of that question. "THE WITNESS: I don't know, I wasn't paying him no attention. "THE COURT: I think the word `lying' is a little harsh. I'll sustain the objection. "Q. (Continuing): He would have been mistaken then, wouldn't he? "A. I wasn't paying that much attention." We think there is much in the quoted portion of the transcript that is subject to just criticism, but little, if any, on the part of the court. An express target of appellant's contention is the statement by the court: "Is that some magic word, Mr. Faile? I'll overrule the objection." The court was doubtless referring to counsel's attempt to justify the question he was asking by saying twice that which the court well knew, that it was on cross-examination. Whether there was any sting in the question of the court, it is well that the attention of a trial attorney be called at times to the fact that any question, even on cross-examination, needs more to support its propriety than the mere fact that it is on cross-examination and that a trial judge is not aided in any way in determining whether the question is proper by a statement of the questioner that it is on cross-examination. A judge is not to be severely criticized for his pointedly bringing the bad habit to the attention of an attorney. Another incident made the basis of the contention was during a hearing out of the presence of the jury in which the court said: "I thought you would. Do you have anything else before we bring the jury in? Let's get it all out of the way. Now I'm getting tired of this foot dragging. We've been here an hour and thirty minutes now and we haven't accomplished a thing." On another occasion, defendant's counsel made the following objection out of the presence of the jury: "We are going to object, Judge, to the Court's facial expression showing a hostile attitude toward defense attorneys by their requesting to take the witness on for Voir Dire Examination. We make that in all due respect to the Court, we know the Court didn't mean to do it but it does create an unfair inference toward the jury and prejudices our client." The court responded to the objection as follows: "Let's change the word `hostile' to `annoyed.' "We walk in comfort in the footsteps of Justice Faulkner in Allen v. State, 290 Ala. 339, 342-343, 276 So.2d 583 (1973) as follows: "The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom. Testimony that is amusing may draw a smile or a laugh, shocking or distasteful evidence may cause a frown or a scowl, without reversible error being committed thereby. We have not, and hopefully never will reach the stage in Alabama at which a stone-cold computer is draped in a black robe, set up behind the bench and plugged in to begin service as a circuit judge. ". . . . "However, we do not think enough has been shown here to establish that the substantial rights of the defendant were injuriously affected by the alleged irregularities.... *368 For the error indicated in the court's oral charge as to the duty to retreat, the judgment of the trial court should be reversed and the cause remanded. The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. REVERSED AND REMANDED. All the Judges concur. ON REHEARING LEIGH M. CLARK, Retired Circuit Judge. In connection with appellee's application for a rehearing, it states: "Comes now the State of Alabama as appellee in this cause pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure and requests that this Honorable Court add to or correct its opinion of February 24, 1981, to include the following facts: "The following colloquy between the trial judge and counsel which appeared in this Court's opinion of February 24, 1981, on page 5, was not made in the presence of the jury: "`THE COURT: Do you want anything about duty to retreat? "`MR. FAILE: Also, object to the Court commenting to the extent that the Court instructed the jury that the Defendant has a duty to retreat if he was out in the street. We feel— "`THE COURT: (Interposing) If they find from the evidence. If they find from the evidence he was out in the street— "`MR. BLACKWELL: (Interposing) I think our objection goes to two points. Number one was that you said that he had to be in the house and— "`THE COURT: (Interposing) Yes, he does. "`MR. BLACKWELL: And it's our position that it's not the law, that he should be actually outside the house and, secondly, the question being outside, and I don't know if it was clear to the jury about being actually in the street, but there is a— "`THE COURT: (Interposing) No, sir, I'll stand on that. If I'm wrong they're going to change the law because it says, "In your house." It doesn't say out in the yard. If you're in your yard, you can run. If you're in your home or your place of business, you are under no duty to run. But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat.'" Although the requested inclusion does not contain any facts shown by the evidence in the case, we are pleased to comply fully with appellee's request and have set forth above the mentioned "colloquy" in the language set out in the appellee's request, as was done in the opinion on original submission, and hereby state, as appellee requests, that it "was not made in the presence of the jury." We add that the colloquy took place before the case was submitted by the court to the jury, before the jury retired to commence its deliberations and at a time when the court had an adequate opportunity to modify or supplement its oral charge to the jury, prior to the commencement of its deliberations. We make it clear also, if we did not do so in the opinion, that the statements of the court found in the colloquy were not considered by us, and were not intended by us to be considered by others, as instructions to the jury. The colloquy, including the statements of the court, was set forth in order to show that there was a meeting of the minds of the court and counsel for the defendant as to the portion of the court's oral charge to which the defendant's objections were addressed, and the basis or grounds for such objections. *369 OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED. All the Judges concur.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 25, 2006 Charles R. Fulbruge III Clerk No. 05-20732 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MOLINA-VASQUEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-161-1 -------------------- Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* The attorney appointed to represent Jose Molina-Vasquez has requested leave to withdraw and has filed a brief as required by Anders v. California, 386 U.S. 738 (1967). Molina-Vasquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. * 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. 

261 P.3d 617 (2011) 2011 OK CIV APP 58 Lawrence BREEN, Plaintiff/Appellee, v. Courtney C. GARDNER, Defendant/Appellant. No. 106,378. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. Court of Civil Appeals of Oklahoma, Division No. 2. May 6, 2011. *618 Alan R. Carlson, Kevin R. Carlson, Garrison, Brown, Carlson & Buchanan, PLLC, Bartlesville, Oklahoma, for Plaintiff/Appellee. Mark A. Warman, Wilkerson, Wassall & Warman, Tulsa, Oklahoma, for Defendant/Appellant. Thomas D. Hird, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Association of Defense Counsel. John L. Harlan, Harlan Law Firm, Sapulpa, Oklahoma and Rex Travis, Oklahoma City, Oklahoma, for Amicus Curiae the Oklahoma Association for Justice. JOHN F. FISCHER, Vice Chief Judge. ¶ 1 Defendant Courtney Gardner appeals the district court's denial of his motion for a mistrial and his motion for a new trial in Lawrence Breen's automobile negligence case. Gardner argues that the district court erred as a matter of law in denying a mistrial after the investigating highway patrol trooper testified that his investigation involved "taking down information, the driver's license and insurance on the accident." We affirm the decisions of the district court. *619 BACKGROUND ¶ 2 In May 2006, Breen filed suit alleging Gardner negligently collided with his vehicle. Jury trial of the suit began in May 2008. Breen's first witness, a highway patrol trooper, testified regarding his investigation of the accident. The trooper testified that, when he arrived at the accident scene, he took notes on a number of particulars, including "insurance on the accident." Gardner's counsel immediately requested permission to approach the bench and moved for a mistrial on grounds of mention of "the `insurance' word, the I-word." The district court recessed the jury, heard argument from counsel and took the motion for mistrial under advisement, allowing the parties the opportunity to present additional authority for the court's consideration. The trooper resumed his testimony before the jury, and was the only witness to testify on the first day of trial. ¶ 3 The next morning, the parties presented briefs on the insurance issue to the district court. The district court noted that in "all the cases" the expressed concern was the potential for prejudice, but that the majority of the cases involving automobiles predated Oklahoma's compulsory automobile liability insurance law. The district court also noted that, because of compulsory insurance, "almost anyone on the jury probably would have anticipated" that a highway patrol trooper would request insurance information from the drivers involved as part of the investigation of an automobile accident.[1] Further, the district court pointed out that the trooper's testimony did not disclose whether either party carried liability insurance or lacked proof of insurance. Based on its finding that the trooper's testimony "did not go to the issue of who's going to pay," the district court concluded that Gardner had not been prejudiced by the testimony and denied his motion for mistrial. ¶ 4 Breen presented testimony from several witnesses, including a doctor's videotaped deposition testimony, but Gardner did not present any witnesses.[2] The jury found in favor of Breen, awarding him damages of $170,000 pursuant to a general verdict form. ¶ 5 Gardner filed a motion for new trial, asserting that the trooper "advised the jury that the Defendant had insurance on the accident." Gardner claimed that the amount of the jury's verdict demonstrated prejudice "because Breen's medical bills were only $3,300." Gardner argued that "the interjection of liability insurance" required a new trial as a matter of law. The district court denied Gardner's motion for new trial. ¶ 6 Gardner appeals, claiming that the district court abused its discretion in denying his motions for mistrial and for new trial. The Oklahoma Association of Defense Counsel (OADC) and the Oklahoma Association for Justice (OAJ) sought, and were granted, leave to file briefs as amici curiae. Gardner is restricted on appeal to the issues raised in his motion for new trial. Okla. Sup. Ct. R. 1.22(C)(1), 12 O.S.2001, ch. 15, app. 1. The amici curiae are restricted to the issues raised and preserved by the parties. Rule 1.12(a)(1). STANDARD OF REVIEW ¶ 7 We review a trial court's order denying a motion for new trial for abuse of discretion. Jordan v. General Motors Corp., 1979 OK 10, ¶ 4, 590 P.2d 193, 195. "An abuse of discretion occurs when a trial court exercises its discretion `to an end or purpose not justified by, and clearly against, reason and evidence. It is discretion employed on untenable grounds or for untenable reasons, or ... which is manifestly unreasonable.'" State v. Vaughn, 2000 OK 63, ¶ 8, 11 P.3d *620 211, 214 (quoting Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194). Unless the court clearly erred in resolving a "pure simple question of law" or acted arbitrarily, we will not disturb on appeal its refusal to grant a new trial. Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, ¶ 16, 928 P.2d 291, 294. ANALYSIS ¶ 8 Gardner's brief in chief contains one proposition of error wherein he asserts: "Defendant Is Entitled To A New Trial." His appellate arguments center specifically on the following testimony by the highway patrol trooper: [Counsel for Breen] Question—Can you tell us what you did when you arrived on the scene? [The trooper] Answer—It was on a holiday, and the traffic had backed out into the roadway from pulling into the booths. I called an ambulance for a Mr. Breen's vehicle—or for he and his vehicle—and started taking down information, the driver's license and insurance on the accident, and the distances. In his brief in chief, Gardner misstates the trooper's testimony. In his statement of facts Gardner claims that "Trooper McReynolds told the jury that the Defendant was insured;" and that "During his direct examination, Trooper McReynolds testified to the jury that the Defendant was insured by a liability insurance policy." The Trooper's actual testimony clearly fails to support these claims. I. The Parties' Arguments ¶ 9 Relying primarily on the principles expressed in Redman v. McDaniel, 1958 OK 276, 333 P.2d 500, Gardner asserts that the trooper's reference to insurance required the district court to declare a mistrial as a matter of law because it informed the jury that an automobile liability insurance policy covered his liability for Breen's injuries. In its decision in Redman, the Court discussed the tension between the right of parties to question prospective jurors to reveal bias regarding the insurance industry, and the likelihood of prejudice created by a jury's knowledge that a defendant's insurance company will pay any judgment against the defendant. The Court recognized that "`parties have a right to question prospective jurors on their business connections, among other things, in order to determine their fitness in the particular case, and this includes the matter of insurance companies when there is occasion to inquire thereon....'" Id. at ¶ 7, 333 P.2d at 500 (quoting Lee v. Swyden, 1957 OK 331, ¶ 12, 319 P.2d 1009, 1012). The Court found, however, that the plaintiff's counsel "went beyond the point of necessity in his voir dire examination and exhibited a reckless disregard for the rights of the defendants." Id. at ¶ 12, 333 P.2d at 502-03. The Court held that "where plaintiff's counsel ... unnecessarily and effectively suggests that the loss would fall upon an insurance company, prejudice results, and this court will review the evidence and grant appropriate relief either by directing a remittitur or by ordering a new trial." Id. at ¶ 0, 333 P.2d at 500 (Syllabus by the Court). In that context, the Redman Court stated its agreement with "the view that knowledge of insurance coverage will cause a jury to render a larger verdict, and in some cases render a verdict in favor of the plaintiff when otherwise they would not." Id. at ¶ 15, 333 P.2d at 503. ¶ 10 Breen argues that the trooper's statement was not prejudicial. Relying principally on Hutton v. Lowry, 1968 OK 114, 444 P.2d 812, Breen correctly points out that the trooper did not specifically testify whether one or both parties actually carried insurance, or, if so, the type of insurance carried. Breen further argues that the question of whether testimony effectually informs the jury that defendant is protected against a judgment by insurance must be evaluated in the context of Oklahoma's compulsory automobile liability insurance law, set out in 47 O.S.2001 §§ 7-600 through 7-612. II. The Amici Curiae Arguments ¶ 11 The amici curiae briefs offer two additional arguments. The OAJ points to Tidmore v. Fullman, 1982 OK 73, 646 P.2d 1278, arguing that statements about liability insurance are no longer considered prejudicial *621 because every owner and every driver of a motor vehicle are required by law to maintain liability insurance.[3] This argument is extrapolated from the following statement: [W]here the fact of liability insurance coverage is brought before the jury unnecessarily or forcefully where liability insurance coverage is not legislatively mandated and where the insurer has no direct liability to the claimant, such jury revelations are, as a matter of law, prejudicial. Id. at ¶ 20, 646 P.2d at 1281. The OAJ concludes that because liability insurance is now "legislatively mandated," the rule announced in Redman and similar cases no longer applies. The OADC argues that the trooper's testimony was not only prejudicial, but also that prejudice is reflected in the ratio of the verdict to Breen's medical bills. A. Tidmore and Compulsory Liability Insurance ¶ 12 When the trial of this case occurred, section 7-601 of the "Compulsory Liability Insurance" article of the Financial Responsibility Act prohibited the operation of a motor vehicle unless the owner or operator maintained "security for the payment of loss resulting from the liability imposed by law for bodily injury, death and property damage." 47 O.S.2001 § 7-601(C)(1). Section 7-601.1 required a copy of the owner's insurance verification form to be carried in the motor vehicle "at all times" and to be "produced by a driver of the vehicle for inspection by any peace officer or representative of the Department of Public Safety." 47 O.S.2001 § 7-601.1(A)(1)(g)(2). These mandatory insurance verification cards contain a printed summary of this law. Owners may not renew state vehicle registrations without showing proof of liability insurance. See section 7.601.1(A)(1)(g)(1). Consequently, at the time this case was tried, any owner or operator of a motor vehicle subject to Oklahoma law was charged by law with the knowledge that liability insurance was required. The trooper's testimony in this case did nothing more than confirm his obligation to verify compliance with Oklahoma's compulsory liability insurance law. See section 7.601(C)(1).[4] ¶ 13 Contrary to Gardner's argument, Redman v. McDaniel, decided before the enactment of Oklahoma's compulsory liability insurance law, does not require a mistrial or a new trial every time the word insurance is mentioned during trial. Hutton and Tidmore clearly establish that principle. We agree with the district court; Gardner's right to a fair trial was not prejudiced by the trooper's testimony in this case. B. The Ratio Argument ¶ 14 The OADC argues that the prejudicial effect of the trooper's testimony is *622 demonstrated by the ratio of the verdict to the amount of Breen's medical expenses caused by the accident, which it claims to be approximately 50:1. A jury verdict may be set aside as excessive or a remittitur may be granted only if it appears that "the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous, showing the jury to have been actuated by passion, partiality, prejudice or corruption." Elmore v. Doenges Bros. Ford, Inc., 2001 OK CIV APP 27, ¶ 12, 21 P.3d 65, 70 (citing Currens v. Hampton, 1997 OK 58, ¶ 10, 939 P.2d 1138, 1141). Determination of whether a mistrial or a new trial was warranted based on prejudice depends on the facts and circumstances of each case. Hutton v. Lowry, 1968 OK 114, ¶ 13, 444 P.2d 812, 814-16 (holding that reference to the defendant's insurance at trial "is harmless unless the defendant's rights are prejudiced thereby" and whether such prejudice has occurred "depends essentially upon the facts and circumstances of each case"). The fundamental and controlling question is whether the reference to insurance has prevented defendant from having a fair trial of the issues. See Batts v. Carter, 1957 OK 135, 312 P.2d 472. ¶ 15 More importantly for this case, that issue must be resolved from the record on appeal, and it is Gardner's duty to provide that record. Hamid v. Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496, 497. This record does not contain any of the initial pleadings, the pretrial order, the jury instructions or any evidence related to the medical evidence presented establishing the injury for which Breen recovered. Likewise, there is nothing to establish how the jury apportioned damages between actual damages and other elements of damage. Therefore, the ratio argument presents nothing more than a mathematical calculation devoid of any context by which any claimed prejudice may be determined. As a result, Gardner has failed to establish any abuse of discretion by the district court in denying his motions for mistrial and new trial. CONCLUSION ¶ 16 We do not find that the trooper's testimony in this case informed the jury that Gardner had liability insurance or that a judgment against him would be paid by an insurance company. Therefore, we find the trooper's testimony regarding insurance does not contravene any principle announced in Redman v. McDaniel, and related cases. Further, Gardner failed to provide a record from which it could be determined whether the amount of damages awarded to Breen was excessive or resulted from prejudice. Therefore, we find the district court did not err in denying Gardner's motion for mistrial or his motion for new trial. The decisions of the district court which are the subject of this appeal are affirmed. ¶ 17 AFFIRMED. BARNES, P.J., and WISEMAN, J., concur. NOTES [1] "Proof of such security shall be carried in the vehicle at all times and shall be produced for inspection upon request by any law enforcement officer or representative of the Department and, in case of collision, such proof shall be shown upon request of any person affected by the collision." 47 O.S.2001 § 7-601(C)(1). The failure to produce a security verification form to appropriate law enforcement is a misdemeanor. See 47 O.S.2001 § 7-606(A)(1). [2] In his designation of the record for appeal, Gardner requested transcription of only the trooper's testimony and the hearing on the motion for mistrial. Breen filed a counter-designation of record, requesting transcription of his voir dire of the jury. The appellate record does not include the pretrial order, trial exhibits or jury instructions. [3] Fullman, the plaintiff in Tidmore, sued his uninsured motorist (UM) insurance carrier to cover any amount of his loss exceeding the defendant's ability to pay. Consequently, the existence of insurance was directly relevant to Fullman's claim. But Fullman argued for more. He also sued defendant Tidmore's UM carrier. Fullman first argued that to establish his right to UM benefits he needed to prove not only that he had a UM policy but also that the liability limits of Tidmore's policy were inadequate. The Supreme Court distinguished Oklahoma Transportation Co. v. Claiborn, 1967 OK 77, ¶ 18, 434 P.2d 299, 303, and similar cases in which the legislature had specifically authorized the joinder of the insurer in cases involving motor carriers. Finding no similar basis for joining Tidmore's insurer, the Court held that Tidmore's insurer would not be a proper party, and, therefore, allowing the jury to hear evidence regarding Tidmore's liability insurance would be prejudicial. Further, even though Fullman's UM carrier was a proper party, the Court found that evidence regarding that insurance would still be prejudicial. Fullman's insurer had stipulated that UM coverage existed, and agreed to be bound by the jury's verdict determining Fullman's damages. Based on these stipulations, the Court concluded that the name of Fullman's UM carrier and the policy limits were no longer relevant and should not be admitted into evidence. Tidmore, 1982 OK 73 at ¶ 25, 646 P.2d at 1282-83. [4] Further, pursuant to 38 O.S. Supp.2003 § 18(1), a jury pool must be selected from county residents who are "eighteen (18) years of age or older, and who are holders of a current driver license or a current identification license issued by the Department of Public Safety." This selection of jurors primarily from driver's license holders, coupled with the fact that Oklahoma mandates that its drivers know of and comply with its compulsory automotive liability insurance laws, creates a situation in which the members of any given jury are potentially aware that an automobile negligence defendant is required to carry liability insurance.

425 S.W.2d 822 (1968) Mario CHAVARRIA, Appellant, v. The STATE of Texas, Appellee. No. 41148. Court of Criminal Appeals of Texas. March 27, 1968. *823 Frank Y. Hill, Jr., San Antonio (On Appeal Only), for appellant. James E. Barlow, Dist. Atty., Earl C. Hill, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State. OPINION WOODLEY, Presiding Judge. The offense is unlawful possession of heroin; the punishment, 12 years. Trial was before the court on a plea of nolo contender. Appellant's brief sets out as ground of error "that he was unlawfully induced to change his plea from `not guilty' to `nolo contender' upon the promise that he was being reserved the right to complain on appeal of an unlawful arrest and search." Appellant's counsel, in his brief, agrees that the trial court, defense counsel and counsel for the state were at all times attempting to see that appellant was afforded proper treatment and that no intentional desire to infringe upon his rights is shown by the record. The question which controls the disposition of this appeal is whether a trial court is authorized to accept a defendant's plea of nolo contender under the conditions shown by this record. Appellant filed a motion to suppress the evidence obtained at the time of his arrest on the ground that his arrest was without warrant and without probable cause, and the search of his person incident to such arrest was therefore illegal and all fruits of the search must be suppressed. After hearing the evidence adduced on the motion, the trial judge overruled it, whereupon appellant's plea of not guilty was withdrawn, a plea of nolo contender was entered, a jury waived and appellant entered into stipulations and testified, all with the understanding that he was not waiving but was preserving all of his rights to appeal the court's ruling on the motion to suppress. Before accepting the plea of nolo contender the trial judge stated to appellant's trial counsel that he would not accept a plea of guilty "because I do think there may be some merit in your motion and * * * nolo contender would protect him on his motion to suppress. And, of course, if he wants to plead `nolo contender' that still would retain any rights he has on this constitutional question * * *." Under Art. 27.02(6) Vernon's Ann. C.C.P., the legal effect of a plea of nolo contender is the same as a plea of guilty insofar as the criminal prosecution is concerned. Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56. The judgment entered upon the plea demonstrates the correctness of such holding. It recites that appellant entered a plea of nolo contender and that the court admonished him of the consequences of such plea, but he persisted in such plea; "and after due inquiry, it plainly appearing to the court that the defendant is sane and uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of Guilty was received by the court and is now entered of record." Under the record, the trial court was in error in accepting the plea of nolo contender. For the reasons stated, the judgment is reversed and the cause remanded.

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS January 10, 2012 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court MUNEER AWAD, Plaintiff - Appellee, v. PAUL ZIRIAX, Agency Head, Oklahoma State Board of Elections, THOMAS PRINCE, Chairman of the Board, Oklahoma State Board of Elections, STEVE CURRY, Board Member, Oklahoma State Board of Elections, and JIM ROTH, Board Member, Oklahoma State Board of Elections, Defendants - Appellants. No. 10-6273 ---------------------------- FOUNDATION OF MORAL LAW; THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK; THE ISLAMIC LAW COMMITTEE OF THE AMERICAN BRANCH OF THE INTERNATIONAL LAW ASSOCIATION, THE AMERICAN JEWISH COMMITTEE, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, THE ANTI- DEFAMATION LEAGUE, THE BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY, THE CENTER FOR ISLAMIC PLURALISM, INTERFAITH ALLIANCE, AND THE  UNION FOR REFORM JUDAISM, Amici Curiae. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:10-CV-01186-M) Patrick R. Wyrick, Solicitor General (Scott D. Boughton and Janis Wood Preslar, Assistant Attorneys General, on the briefs), Office of the Attorney General of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellant. Micheal Salem, Salem Law Offices, Norman, Oklahoma (Joseph Thai, Norman, Oklahoma; Gadeir Abbas, Council of American Islamic Relations, Washington, DC; and Daniel Mach and Heather L. Weaver, American Civil Liberties Union Foundation, Washington, DC, with him on the briefs), appearing for Appellee. Roy S. Moore, Benjamin D. DuPre, and John Allen Eidsmoe, Montgomery, Alabama, filed an Amicus Curiae brief on behalf of the Foundation of Moral Law. Robert E. Michael, Robert E. Michael & Associates, PLLC, New York, New York, filed an Amicus Curiae brief on behalf of Association of the Bar of the City of New York and the Islamic Law Committee of the American Branch of the International Law Association. Craig C. Martin, Jenner & Block, LLP, Chicago, Illinois, and Joshua M. Segal, Jenner & Block, LLP, Washington, DC, filed an Amicus Curiae brief on behalf of American Jewish Committee; Americans United for Separation of Church and State; Anti- Defamation League; Baptist Joint Committee for Religious Liberty; Center for Islamic Pluralism; Interfaith Alliance; and Union for Reform Judaism. Before O’BRIEN, McKAY, and MATHESON, Circuit Judges. MATHESON, Circuit Judge. -2-  On November 2, 2010, Oklahoma voters approved a proposed constitutional amendment that would prevent Oklahoma state courts from considering or using Sharia law. Before the amendment can become effective, the Oklahoma State Election Board must certify this election result. The Board members have asked us to review whether a federal district court abused its discretion when it granted a preliminary injunction to prevent them from certifying the result. We conclude there was no abuse of discretion. I. BACKGROUND A. Constitutional Amendments in Oklahoma We start with an explanation of the constitutional amendment process in Oklahoma and how its courts construe such amendments. The state constitution can be amended in several ways. See Okla. Const. art. 24. We focus on the process used in this case. Under article 24, section 1 of the Oklahoma Constitution,1 the state legislature may 1 This provision of the Oklahoma Constitution states: Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two (2) houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds (2/3) vote of each house, shall order a special election for that purpose. If a majority of all the electors voting on any proposed amendment at such election shall vote in favor thereof, it shall thereby become a part of this Constitution. Continued . . . -3- pass a proposed constitutional amendment. The legislature also drafts a ballot title that explains the proposed amendment to voters. See Sw. Bell Tel. Co. v. Okla. State Bd. of Equal., 231 P.3d 638, 642 (Okla. 2009). The proposed amendment and ballot title are submitted to the Attorney General to ensure legal compliance. Id. The Attorney General must specify any defects “and, if necessary, . . . prepare a preliminary ballot title which complies with the law.” 34 Okla. Stat. tit. 34, § 9(C) (2009).2 Once certified by the Attorney General, the Secretary of ______________________________________ Cont. No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition. Okla. Const. art. 24, § 1. 2 This law was amended slightly in 2011. We refer to the 2009 version of the law, which was in effect for the 2010 election. It stated in pertinent part: When a measure is proposed as a constitutional amendment by the Legislature or when the Legislature proposes a statute conditioned upon approval by the people: 1. After final passage of a measure, the Secretary of State shall submit the proposed ballot title to the Attorney General for review as to legal correctness. Within five (5) business days, the Attorney General shall, in writing, notify the Secretary of State, the President Pro Tempore of the Senate and the Speaker of the House of Representatives whether or Continued . . . -4- State transmits the proposed measure and ballot title to the Election Board. Sw. Bell, 231 P.3d at 642. A proposed constitutional amendment therefore “consist[s] of two substantive parts—the measure and the ballot title.” Id. (quotations omitted). When the Oklahoma Supreme Court interprets a state constitutional amendment’s meaning, it reads these parts together, regardless of whether there are “ambiguities or absurdities.” Id. It considers the amendment’s text and the ballot title together because “those who framed and adopted the amendment considered” both substantive parts. Id. “The understanding of ______________________________________ Cont. not the proposed ballot title complies with applicable laws. The Attorney General shall state with specificity any and all defects found and, if necessary, within ten (10) business days of determining that the proposed ballot title is defective, prepare a preliminary ballot title which complies with the law and furnish a copy of such ballot title to the Secretary of State, the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The Attorney General may consider any comments made by the President Pro Tempore of the Senate or the Speaker of the House of Representatives and shall file a final ballot title with the Secretary of State no sooner than ten (10) business days and no later than fifteen (15) business days after furnishing the preliminary ballot title; and 2. After receipt of the measure and the official ballot title, as certified by the Attorney General, the Secretary of State shall within five (5) days transmit to the Secretary of the State Election Board an attested copy of the measure, including the official ballot title. 34 Okla. Stat. tit. 34, § 9(C) (2009). -5- the Legislature as the framers and of the electorate as the adopters of the constitutional amendment is the best guide for determining an amendment’s meaning and scope, and such understanding is reflected in the language used in the measure and the ballot title.” Id. Oklahoma law provides that the Election Board must certify election results before a constitutional amendment can take effect. See Okla. Const. art. 5, § 3; Okla. Stat. tit. 26, §§ 7-136, 12-118; Fent v. Henry, 257 P.3d 984, 986 (Okla. 2011). The State Election Board Rules provide that “[t]he State Election Board meets at 5 p.m. on Tuesday next following an election involving . . . state questions to certify the final election results.” § 230:35-3-91(c). B. The Proposed “Save Our State” Constitutional Amendment On May 25, 2010, the Oklahoma House of Representatives and Senate passed House Joint Resolution 1056 (“HJR 1056”). The resolution directed “the Secretary of State to refer to the people for their approval or rejection a proposed amendment to Section 1 of Article VII of the [Oklahoma] Constitution . . . [known as] the Save Our State Amendment.” Aplt. App. Vol. 1 at 167. The proposed amendment states: The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts -6-  shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. Id. at 168 (emphases added). HJR 1056 also provided that the ballot title should state: This measure amends the State Constitution. It would change a section that deals with courts of this state. It would make courts rely on federal and state laws when deciding cases. It would forbid courts from looking at international law or Sharia Law when deciding cases. SHALL THE PROPOSAL BE APPROVED? Id. at 169 (italic emphasis added). The Oklahoma Attorney General determined that the proposed ballot title did “not comply with applicable laws.” Id. at 175. It did “not adequately explain the effect of the proposition because it [did] not explain what either Sharia Law or international law is.” Id. The Attorney General prepared a revised ballot title, which states: This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. -7-  The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teachings of Mohammed.3 SHALL THE PROPOSAL BE APPROVED? Id. at 178-79 (italic emphases added). The Attorney General refrained from giving any opinion “on the merits or constitutionality of the underlying proposed changes in the law, [or] on the ability of federal law to preempt the changes in the law.” Id. at 178. This revised ballot title was placed on the ballot as State Question 755 (“SQ 755”). On November 2, 2010, just over 70 percent of Oklahoma voters approved SQ 755. Without intervention, the proposed amendment would likely have been certified on November 9, 2010. See Okla. State Board Election Rule § 230:35-3-91(c). C. Procedural History On November 4, 2010, Muneer Awad sued the members of the Oklahoma Election Board (collectively the “Appellants”). He sought to prevent certification of the SQ 755 election results. Mr. Awad, an American citizen residing in Oklahoma, is the executive director of the Oklahoma Chapter of the Council on American-Islamic Relations. As a Muslim, he adheres to the religious principles from the Koran and the teachings of Mohammed. 3 Various spellings have been used for “Sharia,” “Koran,” and “Mohammed.” We use the spellings adopted in the ballot title to avoid confusion. -8-  Mr. Awad alleges that the Save Our State Amendment violates his rights under both the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution. He objects to the amendment’s singling out his religion for negative treatment. He claims the amendment’s implementation would cause multiple adverse consequences, such as stigmatizing him and others who practice the Muslim faith, inhibiting the practice of Islam, disabling a court from probating his last will and testament (which contains references to Sharia law), limiting the relief Muslims can obtain from Oklahoma state courts, and fostering excessive entanglement between the government and his religion. The district court granted a temporary restraining order on November 9, 2010. On November 22, 2010, the court conducted an evidentiary hearing regarding Mr. Awad’s request for a preliminary injunction. It granted the preliminary injunction one week later. See Awad v. Ziriax, 754 F. Supp. 2d 1298, 1308 (W.D. Okla. 2010). Appellants filed a timely notice of appeal on December 1, 2010. Oral argument occurred before this panel on September 12, 2011. Following oral argument, the parties were asked to file simultaneous supplemental briefs to answer the following questions: 1. Should the test set forth in Larson v. Valente, 456 U.S. 228 (1982), govern the Establishment Clause issue in this case? See also Hernandez v. Commissioner, 490 U.S. 680 (1989); Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). Why or why not? -9-  2. How should the Establishment Clause issue be analyzed and decided under the Larson test, assuming it does apply? The parties filed supplemental briefs on November 2, 2011. We have jurisdiction under 28 U.S.C. § 1292(a)(1), which authorizes appellate review of a district court’s interlocutory order granting a preliminary injunction. II. DISCUSSION Appellants challenge the preliminary injunction. First, they argue that Mr. Awad’s claims are not justiciable. Second, they argue that, even if Mr. Awad’s Establishment or Free Exercise Clause claim is justiciable, each claim fails to meet preliminary injunction requirements. We hold that Mr. Awad’s Establishment Clause claim is justiciable and that the district court did not abuse its discretion in granting the preliminary injunction based on that claim. Because Mr. Awad’s Establishment Clause claim provides sufficient grounds to uphold the preliminary injunction, we affirm without reaching Mr. Awad’s Free Exercise claim. A. Justiciability Appellants argue that Mr. Awad lacks standing and that his claims are not ripe for review. They have not distinguished between the justiciability of his Establishment and Free Exercise claims. Because we do not reach the Free Exercise claim, we address only the justiciability of Mr. Awad’s Establishment Clause claim. “We review questions of -10- justiciability de novo.” Kansas Judicial Review v. Stout, 519 F.3d 1107, 1114 (10th Cir. 2008). 1. Mr. Awad Has Standing to Bring His Establishment Clause Claim To establish Article III standing, a plaintiff must establish (1) that he or she has “suffered an injury in fact;” (2) that the injury is “‘fairly traceable to the challenged action of the defendant;” and, (3) that it is “likely” that “the injury will be redressed by a favorable decision.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (quotations omitted); see also Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011). “At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007) (quotations omitted). As in all standing analyses, we must begin by determining whether Mr. Awad has alleged an injury in fact. To satisfy this requirement, plaintiffs must allege they “have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Winn, 131 S. Ct. at 1442 (quotations omitted). Appellants argue that Mr. Awad does not have standing because he has not -11- suffered an actual or imminent injury.4 They contend that because the amendment has not taken effect or been interpreted by any Oklahoma court, Mr. Awad’s alleged injuries are necessarily speculative. They further contend that Mr. Awad’s assertion that he will suffer official condemnation of his religion is “personal opinion.” Aplt. Br. at 14. Mr. Awad claims that the amendment threatens to injure him in several ways, such as condemning his Muslim faith, inhibiting the practice of Islam, disabling a court from probating his will (which contains references to Sharia law), and limiting the relief he and other Muslims can obtain from Oklahoma state courts. Determining whether a plaintiff has alleged a sufficient injury in fact is often not difficult. But “the concept of injury for standing purposes is particularly elusive in Establishment Clause cases.” Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 504-05 (5th Cir. 2007) (quotations omitted); see also Suhre v. Haywood Cnty., 131 F.3d 1083, 1085 (4th Cir. 1997) (same quote); Robinson v. City of Edmond, 68 F.3d 1226, 1230 n.6 (10th Cir. 1995) (“Standing is of course always necessary in an Establishment Clause case, and it is sometimes a difficult issue.”). The Supreme Court discussed this issue in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). In Valley Forge, a group of plaintiffs dedicated to the separation of church and state attempted to challenge the transfer of surplus federal property to an educational institution affiliated 4 Appellants have not challenged the causation or redressability elements of Mr. Awad’s standing. -12- with a particular religious order. The plaintiffs learned about the conveyance through a press release. None of them lived in or near Pennsylvania, the site of the property at issue. The Court held that the plaintiffs did not have standing because they failed to identify a personal injury resulting from the allegedly unconstitutional transfer. The Court noted that it was not enough for litigants to claim a constitutional violation. Rather, plaintiffs must “identify a[] personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” Id. at 485 (emphasis in original). The Court noted that it was “not retreat[ing] from [its] earlier holdings that standing may be predicated on noneconomic injury.” Id. at 486. 5 Since Valley Forge, the Supreme Court has not provided clear and explicit guidance on the difference between psychological consequence from disagreement with government conduct and noneconomic injury that is sufficient to confer standing.6 Our 5 This is consistent with our longstanding view that in Establishment Clause cases, “standing is clearly conferred by non-economic religious values.” Anderson v. Salt Lake City Corp., 475 F.2d 29, 31 (10th Cir. 1973) superseded on other grounds by Van Orden v. Perry, 545 U.S. 677 (2005); McCreary Cnty. v. Am. Civil Liberties Union of Kentucky, 545 U.S. 844 (2005). See Soc’y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1241 n.1 (10th Cir. 2005). 6 We have some direction, however, from the numerous cases in which the Court has addressed the merits of Establishment Clause claims alleging exposure to unwelcome government-sponsored religious messages. Summarized in recent Seventh Circuit and Ninth Circuit opinions, these cases involved “a crèche in a county courthouse, a crèche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments Continued . . . -13- court has addressed standing in the Establishment Clause context in several cases. For example, in O’Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005), plaintiffs, a college faculty member and a student, claimed their unwelcome exposure to a statue on their campus that was allegedly hostile to their Catholic religion violated the Establishment Clause. We held the plaintiffs had standing. We noted that “[i]n the context of alleged violations of the Establishment Clause, this court has held that standing is clearly conferred by non-economic religious values.” Id. at 1222 (quotations omitted). We explained, however, that “plaintiffs alleging non-economic injury must be ‘directly affected by the laws and practices against which their complaints are directed.’” Id. at 1222-23 (quoting Valley Forge, 454 U.S. at 486 n.22). We then concluded that “[a]llegations of personal contact with a state-sponsored [religious] image suffice to demonstrate this kind of direct injury.” Id. at 1223. ______________________________________ Cont. displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation.” Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 812 (7th Cir. 2011) (Williams, J., concurring); Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043, 1049-50 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 2875 (2011). The Supreme Court recently cautioned that “[w]hen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Arizona Christian Sch. Tuition Org. v. Winn, — U.S. —, 131 S. Ct. 1436, 1448 (2011). Nonetheless, the volume and content of Supreme Court merits decisions in Establishment Clause religious display and expression cases involving noneconomic injury is instructive. -14-  Our most recent Establishment Clause case to address standing was American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010). In that case, plaintiffs challenged the placement of crosses on government property in remembrance of fallen highway patrol troopers. We concluded that the plaintiffs suffered an Establishment Clause standing injury because they encountered an unwelcome government-sponsored religious symbol. We stated: “[A]llegations of personal contact with a state-sponsored image suffice to demonstrate . . . direct injury” for standing purposes in Establishment Clause cases. Id. at 1113 (quotations omitted). As in many Establishment Clause cases, the American Atheists plaintiffs did not suffer physical or economic injury. Their alleged injury was “personal and unwelcome contact with the crosses.” Id. (quotations omitted). We said “these allegations establish standing.” Id. This basis for standing was the same as in other cases in which plaintiffs have challenged government-sponsored religious symbols. See, e.g., Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989). Although standing remains difficult to define precisely in the Establishment Clause context, several key principles can be distilled from the above-referenced cases. First, “[i]n the context of alleged violations of the Establishment Clause, . . . standing is clearly conferred by non-economic religious values.” O’Connor, 416 F.3d at 1222 (quotations omitted). Second, it is not enough for litigants to claim a constitutional violation. They must also “identify a[] personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence -15- presumably produced by observation of conduct with which one disagrees.” Valley Forge, 454 U.S. at 485 (emphasis in original). Finally, alleging only “personal and unwelcome contact” with government-sponsored religious symbols is sufficient to establish standing. American Atheists, 637 F.3d at 1113 (quotations omitted). 7 As in other Establishment Clause cases, Mr. Awad alleges that the amendment threatens him with noneconomic injuries. In some respects, Mr. Awad’s alleged injuries are similar to those found sufficient to confer standing in our religious symbol Establishment Clause cases. Like the plaintiffs who challenged the highway crosses in American Atheists, Mr. Awad suffers a form of “personal and unwelcome contact” with an amendment to the Oklahoma Constitution that would target his religion for disfavored treatment. As a Muslim and citizen of Oklahoma, Mr. Awad is “directly affected by the law[] . . . against which [his] complaints are directed.” See Valley Forge, 454 U.S. at 487 n.22 (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963)). As further spelled out below, that is enough to confer standing. See Schempp, 374 U.S. at 224 n.9. Mr. Awad alleges injuries beyond the “personal and unwelcome contact” that suffices for standing with religious symbols. He alleges that the amendment condemns his religious faith and exposes him to disfavored treatment. Such condemnation was not 7 One of the American Atheists plaintiffs alleged that he was forced to alter his travel route to avoid contact with the crosses. We said that such an allegation was not necessary for standing but further supported his standing. 637 F.3d at 1113 (quoting O’Connor v. Washburn Univ., 416 F.3d 1216, 1223 (10thCir. 2005)). -16- present in the religious symbol cases. The plaintiffs in those cases certainly may have felt that a religious display conflicted with their religious beliefs or non-belief, but those symbols did not expressly target and condemn a specific religion. Mr. Awad alleges that the amendment condemns his religion and prohibits him from relying on his religion’s legal precepts in Oklahoma courts, while not prohibiting people of all other faiths to rely on the legal precepts of their religions.8 Mr. Awad’s alleged injury goes significantly beyond a “psychological consequence” from disagreement with observed government conduct, see Valley Forge, 454 U.S. at 485, “hurt feelings” from a presidential proclamation requesting citizens to pray, Freedom from Religion Found. Inc. v. Obama, 641 F.3d 803, 807 (7th Cir. 2011), or “a person’s deep and genuine offense to a defendant’s actions,” Catholic League for 8 In a case that did not involve the Establishment Clause, Allen v. Wright, 468 U.S. 737 (1984), plaintiffs, parents of black school children, sued the Internal Revenue Service for failure to enforce a law to deny tax-exempt status to private schools that discriminated on the basis of race. The Court denied that the plaintiffs’ claim of a stigmatizing injury suffered by all members of a racial group was sufficient for standing because the injury was too generalized and did not allege personal denial of equal treatment: There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. Our cases make clear, however, that such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct. Id. at 755 (quotations and citation omitted) (emphasis added). Here, Mr. Awad’s injury is personal and concrete. -17- Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043, 1062 (9th Cir. 2010) (en banc) (Graber, J., dissenting), cert. denied, 131 S. Ct. 2875 (2011). The harm alleged by Mr. Awad stems from a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition. The district court seemed to rely in part on the Ninth Circuit’s decision in Catholic League to confer standing on Mr. Awad. See Awad, 754 F. Supp. 2d at 1303. We do not rely on Catholic League, although our standing holding is consistent with that case, and the contrast between the two cases illustrates the strength of Mr. Awad’s standing. In Catholic League, the court upheld plaintiffs’ standing to challenge a non-binding San Francisco Board of Supervisors resolution denouncing a Catholic Church position on homosexual adoptions. 624 F.3d at 1046-53. In this case, the Oklahoma Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others. The non-binding city resolution in Catholic League conveyed “a government message,” 624 F.3d at 1048. The Oklahoma amendment conveys more than a message; it would impose a constitutional command. We conclude that Mr. Awad’s allegation—that the proposed state amendment expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to -18- create Establishment Clause standing. Because the amendment would likely have been certified a week after it was passed, we further conclude that the injury alleged by Mr. Awad is imminent and not conjectural or hypothetical. See Okla. State Election Board Rule § 230:35-3-91(c) (noting that the State Election Board meets on the Tuesday following an election to certify final election results on state questions); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006) (defining “imminent” injury as one that is “certainly impending” (quotations omitted)). Additionally, we agree with the district court that “plaintiff has shown that his alleged injuries are fairly traceable to the challenged action of defendants and are likely to be redressed by a favorable decision.” Awad, 754 F. Supp. 2d at 1304. Mr. Awad therefore has standing to bring his Establishment Clause claim.9 2. The Establishment Clause Claim Is Ripe For Review We also conclude that Mr. Awad’s Establishment Clause claim is ripe for review. The ripeness doctrine aims to prevent courts “from entangling themselves in abstract disagreements” by avoiding “premature adjudication.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). “Ripeness reflects constitutional considerations that implicate Article III 9 Appellants have not challenged Mr. Awad’s prudential standing, nor do we discern any issues on that ground. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). -19- limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010) (quotations omitted). Our ripeness analysis focuses on “whether the harm asserted has matured sufficiently to warrant judicial intervention.” Stout, 519 F.3d at 1116 (quotations omitted). “‘[I]f a threatened injury is sufficiently “imminent” to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied.’” Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1154 (10th Cir. 1999) (quoting Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1428 (D.C. Cir. 1996)). Thus, for the reasons discussed in our injury-in-fact standing analysis, we hold that Mr. Awad meets the constitutional ripeness requirement. Appellants challenge whether Mr. Awad’s claims are prudentially ripe. We analyze prudential ripeness by “examining both the fitness of the issues raised . . . for judicial review and the hardship to the parties from withholding review.” United States v. Vaquera-Juanes, 638 F.3d 734, 736-37 (10th Cir. 2011), cert. denied, 132 S. Ct. 315 (2011). First, on fitness, we “focus[] on whether determination of the merits turns upon strictly legal issues or requires facts that may not yet be sufficiently developed.” Stout, 519 F.3d at 1118. We must decide if “prudential limitations . . . require us to stay our hand until the issues in the case have become more fully developed.” Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1098 (10th Cir. 2006). -20-  Mr. Awad challenges the facial validity of the proposed amendment under the First Amendment. Such claims are generally considered to be strictly legal questions that do “not involve the application of [the law] in a specific factual setting.” Stout, 519 F.3d at 1118 (quotations omitted); see also ACORN v. City of Tulsa, Okla., 835 F.2d 735, 740 (10th Cir. 1987) (“In determining the facial validity of a statute or ordinance the court does not consider any specific type of conduct. Rather, the facial validity of a statute is decided by reference to all of the conduct that is proscribed by the statute.”). The constitutional validity of the proposed amendment in this case does not require us to evaluate specific factual context. Further factual development is therefore unnecessary to our resolution of the preliminary injunction factors. This matter is fit for judicial review. Second, as for hardship from withholding judicial review, we ask “whether the challenged action creates a direct and immediate dilemma for the parties.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995) (quotations omitted). Appellants plainly suffer no hardship from withholding review. But Mr. Awad has shown he faces an immediate and concrete condemnation injury if we withhold review and the measure is certified. Mr. Awad thus faces a “direct and immediate dilemma” and has established the necessary hardship to overcome prudential ripeness concerns. Id. We conclude this matter is ripe for review. Because Mr. Awad also has standing, we hold that his Establishment Clause claim is justiciable. B. Preliminary Injunction -21-  Having concluded that Mr. Awad’s claim is justiciable, we now address whether the district court abused its discretion by granting the preliminary injunction. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). “An abuse of discretion occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Wilderness Workshop v. United States Bureau of Land Mgmt., 531 F.3d 1220, 1223-24 (10th Cir. 2008) (quotations omitted). To obtain a preliminary injunction, Mr. Awad must show that four factors weigh in his favor: “(1) [he] is substantially likely to succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009); see also Fed. R. Civ. P. 65; Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Appellants argue that Mr. Awad is seeking a disfavored type of injunction and that he should therefore be subject to a more strenuous preliminary injunction test. There are three types of disfavored injunctions: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. When a preliminary injunction falls into one of these categories, it must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is -22-  extraordinary even in the normal course. A district court may not grant a preliminary injunction unless the moving party makes a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms. Summum v. Pleasant Grove City, 483 F.3d 1044, 1048-49 (10th Cir. 2007), rev’d on other grounds, 555 U.S. 460 (2009) (quotations omitted); see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004) (en banc), aff’d and remanded by, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). The district court applied the heightened standard because it found the preliminary injunction altered the status quo and afforded all the relief Mr. Awad could recover after a merits trial. See Awad, 754 F. Supp. 2d at 1305. Although Mr. Awad argues on appeal that the district court should have applied the less demanding traditional standard, we need not decide that issue because we affirm that Mr. Awad meets the heightened standard. The following therefore reviews the preliminary injunction under that standard, which calls for Mr. Awad to make “a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Summum, 483 F.3d at 1049. The heightened standard does not affect the analysis of the other two preliminary injunction factors: irreparable injury and public interest. See id. Mr. Awad need only show that those two factors weigh in his favor. We examine each preliminary injunction factor. 1. A Strong Showing of Likelihood of Success on the Merits -23-  The first factor is likelihood of success on the merits. Under the heightened standard, Mr. Awad must make a strong showing that he is likely to succeed on his Establishment Clause claim. We first determine the proper Establishment Clause test and then apply it to the facts to see if Mr. Awad has satisfied this burden. a. Determining the Proper Legal Test The First Amendment provides in part that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. Like other First Amendment provisions, the Establishment Clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Green v. Haskell Cnty. Bd. of Com’rs, 563 F.3d 784, 796 (10th Cir. 2009). To decide whether the district court abused its discretion in holding that Mr. Awad is likely to prevail on the merits, we must first determine the proper Establishment Clause test. There are two possibilities—the Lemon or Larson test.10 See Larson v. Valente, 456 10 “Although the Supreme Court is sharply divided” on whether Lemon remains valid law, this court “has recently affirmed that the touchstone for Establishment Clause analysis remains the tripartite test set out in Lemon.” Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1117 (10th Cir. 2010), cert. denied, Utah Highway Patrol Ass’n v. Am. Atheists Inc., 132 S. Ct. 12 (2011); see also Green, 568 F.3d at 798 n.8. An important distinction between American Atheists and this case is that the former involved religious symbols and not a law discriminating among religions. See Am. Atheists, 637 F.3d at 1112. To withstand an Establishment Clause challenge under the Lemon test, a provision must (1) “have a secular legislative purpose;” (2) have a “primary effect” that “neither Continued . . . -24- U.S. 228, 255 (1982); Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The Supreme Court instructs that Lemon applies to “laws affording uniform benefit to all religions, and not to provisions . . . that discriminate among religions.” Larson, 456 U.S. at 252 (emphases in original). The Larson test provides that if a law discriminates among religions, it can survive only if it is “closely fitted to the furtherance of any compelling interest asserted.” Id. at 255. 11 Strict scrutiny is required when laws discriminate among religions because “[n]eutral treatment of religions [is] ‘the clearest command of the Establishment Clause.’” Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (quoting Larson, 456 U.S. at 244)). “The First Amendment mandates governmental neutrality between religion and religion . . . . The State may not adopt programs or practices . . . which aid or oppose any religion . . . . This prohibition is absolute.” Larson, 456 U.S. at 246 (quotations omitted). Appellants argue that Larson is either no longer valid or does not fit the facts of ______________________________________ Cont. advances or inhibits religion;” and (3) “not foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 612-13 (quotations omitted). 11 In Larson, the court found the appellants failed to demonstrate that the provision at issue was closely fitted to further a compelling governmental interest. Larson, 456 U.S. at 251. It then considered the provision under Lemon, but asserted that step was unnecessary: “Although application of the Lemon tests is not necessary to the disposition of the case before us, those tests do reflect the same concerns that warranted the application of strict scrutiny.” Id. at 252. -25- this case. We disagree on both counts. Appellants surmise that Larson is no longer good law in part because it has been used infrequently. But the Supreme Court has never overturned it. Moreover, Larson’s rare use likely reflects that legislatures seldom pass laws that make “explicit and deliberate distinctions between different religious organizations” as contemplated in Larson. Id. at 247 n.23; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993) (“The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions.”). The Supreme Court and various circuits, including this one, have referenced or applied the Larson test. See, e.g., Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 695 (1989) (Larson teaches that . . . the initial inquiry is whether the law facially discriminates among religions. If no such facial preference exists, we proceed to apply the . . . [Lemon test].”); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339 (1987) (“But Larson indicates that laws discriminating among religions are subject to strict scrutiny.” (emphasis in original)); Lynch v. Donnelly, 465 U.S. 668, 687 n.13 (1984); Colorado Christian Univ., 534 F.3d at 1266; Sklar v. Comm’r of Internal Revenue, 549 F.3d 1252, 1257 n.3, 1265- 67 (9th Cir. 2008); Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090 (8th Cir. 2000); Koenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999); Wilson -26- v. N.L.R.B., 920 F.2d 1282, 1286-87 (6th Cir. 1990).12 In Colorado Christian University, we stated: “statutes involving discrimination on the basis of religion, including interdenominational discrimination, are subject to heightened scrutiny . . . under the . . . Establishment Clause.” 534 F.3d at 1266 (citing Larson, 456 U.S. at 246).13 Because the district court applied Lemon without determining if Larson should apply, see Awad, 754 F. Supp. 2d at 1305-06, we asked for supplemental briefing on this issue and on the appropriate outcome under Larson. Having considered the parties’ arguments and the record, we conclude that Larson is the proper test for determining if the proposed amendment violates the Establishment Clause.14 12 The Larson test can be seen as “the Establishment Clause counterpart to the rule against content discrimination . . . in free speech law . . . [both requiring] strict scrutiny.” John H. Garvey, The Architecture of the Establishment Clause, 43 Wayne L. Rev. 1451, 1463 (1997). The Larson test can also be seen as an Establishment Clause counterpart to the Equal Protection Clause in that both “provide[] constitutional protection against religious discrimination.” Fred Mark Gedicks, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States, 19 Emory Int’l L. Rev. 1187, 1189-90 (2005); see also, e.g., Niemotko v. Maryland, 340 U.S. 268, 272 (1951) (“The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims of personal opinions of a local governing body.”). 13 In Colorado Christian University, we acknowledged uncertainty as to what level of scrutiny should apply when discriminatory funding is at issue, see id. at 1267, but the proposed Save Our State Amendment is not about funding. 14 Although the district court applied Lemon instead of Larson, we need not remand when, as here, the record is sufficiently developed to allow us to determine whether Mr. Awad has met his burden under the four preliminary injunction factors. See Summum, 483 F.3d at 1049 (“[T]he District Court abused its discretion by analyzing Summum’s First Amendment claim under the incorrect legal standard. But rather than Continued . . . -27-  The Larson test applies because the proposed amendment discriminates among religions. This case presents even stronger “explicit and deliberate distinctions” among religions than the provision that warranted strict scrutiny in Larson. See Larson, 456 U.S. at 247 n.23. Larson involved a Minnesota statute that imposed certain registration and reporting requirements upon only those religious organizations that solicited more than 50 percent of their funds from nonmembers. Id. at 230. Unlike the provision in Larson, the Oklahoma amendment specifically names the target of its discrimination. The only religious law mentioned in the amendment is Sharia law, which is defined in SQ 755 in religious terms: “Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teachings of Mohammed.” Aplt. App. Vol. 1 at 179. Appellants argue there is no discrimination because the amendment bans all religious laws from Oklahoma courts and Sharia law is named only as an example. But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places. First, the amendment instructs Oklahoma courts to “uphold and adhere to . . . if ______________________________________ Cont. remanding to the District Court for the appropriate analysis, we find the record sufficiently developed to allow us to determine whether Summum has met its burden under the four factors necessary to prevail on its motion.” (citing Schrier v. Univ. of Colorado, 427 F.3d 1253, 1261 (10th Cir. 2005); Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1075-76 (10th Cir. 2001))). “[W]e are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Herman v. Pollock, 586 F.3d 1254, 1259 (10th Cir. 2009) (quotations omitted). -28- necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.” Id. at 168 (emphasis added). This language prohibits Oklahoma courts from upholding and adhering to laws of other states that include Sharia law but does not prohibit Oklahoma courts from upholding and adhering to laws of other states that include the laws of any other religion. On this basis alone, application of Larson strict scrutiny is warranted. Second, the amendment states that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” Id. (emphasis added). Appellants argue that the word “cultures” should be read to include religious groups, and that the amendment therefore “plainly prohibits the consideration of legal precepts associated with all religious denominations.” Aplt. Supp. Br. at 7. We disagree. The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret “cultures” to include “religions,” the text does not ban all religious laws. The word “other” in the amendment modifies both “nations” and “cultures.” Therefore, if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other . . . religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions. -29-  Because the amendment discriminates among religions, it is “suspect,” and “we apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246. b. Applying Larson’s Strict Scrutiny To survive strict scrutiny under Larson, Appellants must show (1) a compelling government interest, and (2) that the amendment is “closely fitted” to that compelling interest. See id. at 246-47. We pause here to clarify the burdens each party carries at this stage in the litigation. To succeed in his quest for a preliminary injunction under the heightened standard, Mr. Awad assumes the burden of making a strong showing that he is likely to succeed on the merits. See Summum, 483 F.3d at 1049. However, “burdens at the preliminary injunction stage track the burdens at trial.” O Centro Espirita, 546 U.S. at 429 (“[A]s the Government bears the burden of proof on the ultimate question of the challenged Act’s constitutionality . . . the movants must be deemed likely to prevail unless the Government has shown that [the strict scrutiny test is met].” (quotations omitted)). Therefore, if Appellants fail to carry their burden of showing a compelling interest and closely fitted means, Mr. Awad will have succeeded in carrying his burden of making a strong showing of likelihood of success on the merits. i. Compelling State Interest We first consider whether Appellants have asserted a compelling interest. For an interest to be sufficiently compelling to justify a law that discriminates among religions, the interest must address an identified problem that the discrimination seeks to remedy. -30- See Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2738 (2011). Appellants must identify an actual concrete problem—“[m]ere speculation of harm does not constitute a compelling state interest.” Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm’n of New York, 447 U.S. 530, 543 (1980); see also Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 644 (1994) (plurality) (“[The government] must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”). Supreme Court case law instructs that overly general statements of abstract principles do not satisfy the government’s burden to articulate a compelling interest. For example, in Brown, the Supreme Court insisted that “[t]he State must specifically identify an actual problem in need of solving . . . .” 131 S. Ct. at 2738 (quotations omitted). Similarly, in Watchtower Bible Tract Society of New York, Inc. v. Village of Strauss, 536 U.S. 150 (2002), the Court rejected the government’s asserted general interest of crime prevention in part because “there is an absence of any evidence of a special crime problem related to [the challenged discriminatory law] in the record before us.” Id. at 169. The supplemental briefing order asked how the Establishment Clause issue should be analyzed and decided under the Larson test. Appellants provided only one sentence on compelling interest. They simply assert that “Oklahoma certainly has a compelling interest in determining what law is applied in Oklahoma courts.” Aplt. Supp. Br. at 16. Oklahoma’s asserted interest is a valid state concern. But this general statement -31- alone is not sufficient to establish a compelling interest for purposes of this case. Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68. Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973). Because Appellants have failed to assert a compelling interest, they have failed to satisfy strict scrutiny. Mr. Awad has therefore made a strong showing that he is likely to prevail in a trial on the merits. 15 Even if Appellants could identify a problem of sufficient importance to constitute a compelling interest, under strict scrutiny they still must demonstrate that their stated justification is the actual purpose for the proposed amendment and not a “rationalization[] for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996) (citing Weisenburger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975)). Indeed, this court has emphasized that “[w]e cannot and will not uphold a statute that abridges an enumerated constitutional right on the basis of a factitious governmental interest found nowhere but in the defendants’ litigating papers.” Colorado Christian Univ., 534 F.3d at 1268-69. -32-  ii. “Closely Fitted” Without a compelling interest based on an actual problem, the second step of the strict scrutiny analysis—whether there is a close fit with a compelling state interest—is unnecessary and not feasible. See Larson, 456 U.S. at 246-47. It is unnecessary because both a compelling interest and a close fit are required to survive strict scrutiny. See id. It is not feasible because we have no concrete problem or compelling interest to try to fit with the Save Our State Amendment. One cannot try on a glove to see if it fits when the glove is missing. Nonetheless, we make the following observation about the “close-fit” or “narrowly tailored” step of strict scrutiny. See Grutter v. Bollinger, 539 U.S. 306, 333 (2003) (explaining that strict scrutiny’s narrow tailoring requirement measures whether there is a close fit between the means chosen and the compelling interest). The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest. See Brown, 131 S. Ct. at 2738 (explaining that the government assumes the burden to demonstrate a restriction “is narrowly drawn to serve” a compelling interest). Mr. Awad therefore has made a strong showing that he is likely to succeed on the merits. -33-  2. Mr. Awad Has Shown He Will Suffer Irreparable Injury If the Injunction Is Denied The second factor is whether irreparable injury is likely without the injunction. See Winter, 555 U.S. at 20. For the same reasons presented in the standing portion of this opinion, we disagree with the Appellants’ argument that Mr. Awad faces no injury if the injunction is denied. However, the question here is not just whether Mr. Awad faces a concrete and imminent injury, but whether such an injury will be irreparable without the injunction. “A plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1156 (10th Cir. 2001). Furthermore, “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (quotations omitted). “Damages would be inadequate or difficult to ascertain,” Dominion Video Satellite, 269 F.3d at 1156, for a claim of government condemnation of one’s religion. Mr. Awad has alleged that if the Oklahoma amendment takes effect, he will suffer such a condemnation injury in violation of constitutional rights. The district court did not abuse its discretion in holding that Mr. Awad is likely to face irreparable injury absent an injunction. See Awad, 754 F. Supp. 2d at 1307. 3. Mr. Awad Has Made a Strong Showing that his Threatened Injury Outweighs the Injury the Appellants Will Suffer Under the Injunction -34-  The third factor concerns the balance of harms. Under the heightened standard of review, Mr. Awad must make a strong showing that his threatened injury outweighs any injury to Appellants caused by granting the injunction. See Summum, 483 F.3d at 1049. Appellants argue that the balance weighs in their favor because Oklahoma voters have a strong interest in having their politically expressed will enacted, a will manifested by a large margin at the polls. But when the law that voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awad’s in having his constitutional rights protected. See Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 699 (9th Cir. 1997) As the Ninth Circuit explained, when a law that voters have approved “affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.” Id.; see also Williams v. Rhodes, 393 U.S. 23, 29 (1968) (“[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”). Appellants admitted at the preliminary injunction hearing that they did not know of any instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. 157- 58. Delayed implementation of a measure that does not appear to address any immediate -35- problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable. We hold that the district court did not abuse its discretion in deciding that Mr. Awad made a strong showing that his threatened injury outweighed any potential harm to Appellants in granting the injunction. See Awad, 754 F. Supp. 2d at 1308. 4. Mr. Awad Has Shown the Injunction Would Not Be Adverse to the Public Interest The last factor is whether the preliminary injunction would not be adverse to the public interest. See Beltronics, 562 F.3d at 1070. Appellants argue that the preliminary injunction interferes with Oklahomans’ fundamental right to vote, prevents enactment of the voters’ will, and “discourages the voters from participating in the election process.” Aplt. Reply Br. at 14. Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Awad, 754 F. Supp. 2d at 1308 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). “While the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” Id.; see also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”). -36-  We therefore hold that the district court did not abuse its discretion in determining that the preliminary injunction was not adverse to the public interest. See Awad, 754 F. Supp. 2d at 1308. *** We conclude that the district court did not abuse its discretion in holding that each of the preliminary injunction factors weighed in favor of Mr. Awad’s request and that he made a strong showing on the substantial likelihood and balance-of-harms factors as the heightened standard requires. We hold that the district court did not abuse its discretion in granting the preliminary injunction.16 III. CONCLUSION Because Mr. Awad has at least one justiciable claim and because the district court did not abuse its discretion in granting the preliminary injunction, we affirm. 16 Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument supplemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, “the court should simply treat the explicatory example as surplusage, and strike it.” Because this issue has not been adequately briefed, we do not address it. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.” (quotations omitted)). -37- 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,091 EX PARTE JOHN FRANCIS KENNEDY, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 055752-59-A IN THE 59TH DISTRICT COURT FROM GRAYSON COUNTY Per curiam. OPINION Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of a building and sentenced to nine (9) years’ imprisonment. He did not appeal his conviction. Applicant alleges, inter alia, that his prior felony convictions were not committed sequentially and thus could not be used to enhance punishment to the second degree felony punishment range. See TEX . PEN . CODE,§ 12.42 (a) (2). Applicant also alleges that his sentence was illegal because the nine-year sentence assessed exceeded the maximum sentence authorized by law  Kennedy -- 2 for this state jail felony offense. On September 10, 2008, this Court remanded this application because Applicant had alleged facts which, if true, could entitle him to relief. In response to this Court’s remand order, the trial judge obtained copies of the indictments and the judgments in the prior felony convictions which were used to enhance punishment to the second degree felony punishment range. On the basis of this evidence, the trial judge found the facts alleged in the second enhancement paragraph of the indictment were incorrect. Applicant’s prior felony convictions were not committed sequentially and thus could not be used to enhance punishment to the second degree felony punishment range. See TEX . PEN . CODE,§ 12.42 (a) (2). The nine-year sentence imposed fell outside the maximum punishment authorized by law for this state jail felony offense. The trial judge recommends that relief be granted. We agree. Relief is granted. The judgment in Cause Number 055752-59-A from the 59th Judicial District Court of Grayson County is hereby set aside, and Applicant is remanded to the custody of the Sheriff of Grayson County to be resentenced within sixty (60) days. Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division. Delivered: February 4, 2009 Do not publish 

506 F.Supp.2d 308 (2007) In re NETFLIX ANTITRUST LITIGATION. This Document Relates To; All Actions. Nos. C 07-00643 WHA, C 07-01266 WHA, C 07-01978 WHA. United States District Court, N.D. California. June 14, 2007. *309 *310 *311 Alan Himmelfarb, Law Offices of Himmelfarb & Himmelfarb, Vernon, CA, Ethan Preston, Scott A. Kamber, Kamber and Associates, LLC, New York, NY, Richard A. Lockridge, Robert K. Shelquist, Yvonne M. Flaherty, Lockridge, Grinal & Nauen, PLLP, Minneapolis, MN, for Dennis Dilbeck. Keith E. Eggleton, Maura L. Rees, Anthony J. Weibell, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for Defendant Netflix, Inc. ORDER GRANTING MOTION TO DISMISS WILLIAM ALSUP, District Judge. INTRODUCTION In this putative antitrust class action, defendant Netflix, Inc., moves to dismiss plaintiffs' antitrust claims for lack of *312 standing and for failure to state a claim. Plaintiffs have demonstrated that they have standing to bring a Walker Process claim. Defendant has shown, however, that plaintiffs have not pleaded a sufficient level of patent enforcement against Netflix's potential competitors, so plaintiffs' federal antitrust claims fail. Plaintiffs also bring state-law claims. To the extent that they are based on defendant's conduct before the Patent and Trademark Office, they are preempted by federal patent law. Plaintiffs' state-law claims fail because they have not pleaded any injury resulting from defendant's enforcing its patents. Accordingly, defendants' motion to dismiss is GRANTED. Limited discovery will be permitted, and plaintiffs will be given leave to file an amended complaint. STATEMENT Plaintiff Dennis Dilbeck resides in Los Angeles and has been a Netflix subscriber since October 2002 (Compl. ¶ 8). Plaintiffs in the two other actions consolidated with this action are also current Netflix subscribers. Netflix operates an online DVD-rental service that claims 5.2 million subscribers (Compl. ¶ 9). It is headquartered in Los Gatos, California. Netflix obtained two patents on its online DVD-rental service that describe methods of ordering DVDs via the internet, but not transmitting them via the internet. Its first patent, United States Patent No. 6,584,450 (the '450 patent), issued on June 23, 2003. Its second patent, United States Patent No. 7,024,381 (the '381 patent), issued on April 4, 2006. Netflix filed an application for the '450 patent on April 28, 2000. During prosecution, Netflix allegedly did not disclose any prior art references to the Patent and Trademark Office in connection with the application (id. at ¶ 19). While the '450 application was still pending, Netflix filed a continuation application on May 14, 2003. It ultimately issued as the '381 patent (id. at ¶ 17). After the '450 patent issued on June 23, 2003, Netflix allegedly flooded the PTO with over 100 references in support of the '381 application, none of which Netflix had disclosed in prosecuting the '450 patent (id. at ¶ 20). Plaintiffs allege that both maneuvers were done for the purpose of concealing material, non-cumulative prior art. Plaintiffs also allege that Netflix purposefully withheld some material prior art references in conjunction with both applications (id. at ¶ 27). These included several patents owned by NCR Corporation, four of which issued prior to the filing of the '450 application, describing methods such as "Ordering and Downloading Resources from Computerized Repositories" and "Mechanism for Dependably Organizing and Managing Information for Web Synchronization and Tracking Among Multiple Browsers" (id. at 28). Netflix initiated a declaratory-judgment action against NCR seeking a declaration of non-infringement in March of 2006. Netflix, Inc. v. NCR Corp., CV No. 06-1892 EDL. That action was dismissed on June 23, 2006. Plaintiffs allege that Netflix was aware of these patents at least as of 2003 and had a reasonable apprehension of suit sufficient to sustain a declaratory-judgment action. Plaintiffs also allege that Netflix withheld other material, non-cumulative prior art references from the PTO, including references describing subscription libraries, pay television services, and other prior art drawn to selecting and ordering items on the internet (id. at ¶ 30). One of Netflix's competitors, Blockbuster, Inc., launched its own online DVD-rental service in August 2004, after the '450 patent had issued and while the application for the '381 patent was still pending (id. at ¶ 58). In January 2005, Reed Hastings, Netflix's chief executive officer, and *313 Edward Stead, Blockbuster's then-executive vice president, purportedly met. During that meeting, Hastings allegedly "praised Blockbuster's competitive position in the online rental business and asked Stead when he had figured out that Netflix's '450 patent was a `joke'" (id. at ¶ 45). Netflix then filed a patent-infringement action against Blockbuster when the '381 patent issued on April 4, 2006. Netflix allegedly knew that the litigation was objectively and subjectively a sham (id. at ¶ 48-49). Plaintiffs also allege that Blockbuster was "ready, willing, and able" to enter the market before August 2004, but "delayed entering into the Relevant Market after learning of the '450 patent until August 2004" (id. at ¶ 59). Allegedly, Wal-Mart Stores, Inc., competed in the online DVD-rental market from June 2004 to June 2005 (id. at ¶ 60). Dilbeck's counsel inquired about Wal-Mart's exit from the market with an attorney in Wal-Mart's legal department. The only answer received was that the company does not publicly discuss its business dealings (ibid.). On information and belief, Dilbeck alleges that Wal-Mart withdrew from the relevant market after Netflix alerted it to the '450 patent to induce it to exit the market (id. at ¶ 61). He bases this belief on his allegation that "Wal-Mart is not the shrinking violet of our national economy" and that it is unlikely that Wal-Mart would withdraw of its own accord (ibid.). Plaintiffs also allege that Amazon.com, Inc. could have entered the market but was induced not to enter. Hastings' announcement that Amazon planned to enter the market in October 2004 led to a 41% drop in Netflix's stock valuation (id. at ¶ 62). Amazon did not end up entering the market in the United States; it instead introduced a similar service in the United Kingdom and Germany starting in August 2006 (ibid.): As with Wal-Mart, Amazon's legal department did not respond to plaintiffs' inquiries (ibid.). Based on these circumstances, loin information and belief, Dilbeck alleged that 1) Amazon learned of Netflix's '450 Patent either by its own efforts or by Netflix's effort, and 2) made the decision to enter the Relevant Market outside the United States, but 3) discarded its plans to enter the Relevant Market in the United States in August 2004 because of the '450 Patent" (id. at ¶ 63). On April 4, 2006, the same day that the '381 patent issued, Netflix filed an action for patent infringement against Blockbuster. Blockbuster's answer included defenses of inequitable conduct and patent misuse and counterclaims for monopolization and attempted monopolization under Section 2 of the Sherman Act. Dilbeck filed a motion to intervene as a consumer in Blockbuster's antitrust counterclaims on October 11, 2006. His motion was denied on December 7, 2006. On April 26, 2007, Netflix and Blockbuster filed a notice of stipulated dismissal of Blockbuster's antitrust counterclaims. On January 31, 2007, plaintiff Dennis Dilbeck filed this action alleging violations of Section 2 of the Sherman Act, California's Cartwright Act, and California's unfair competition law. Two additional complaints were later filed by plaintiff Melanie Polk-Stamps on March 2, 2007, and by plaintiff Steven Dassa on April 6, 2007. All three actions were consolidated. On April 20, 2007, plaintiffs designated Dilbeck's complaint as the operative consolidated complaint. Discovery was stayed on April 26, 2007. Defendant was allowed to proceed with its motion to dismiss. ANALYSIS A motion to dismiss under Rule 12(b)(6) tests for legal sufficiency of the claims alleged in the complaint. "While a complaint attacked by a Rule 12(b)(6) motion *314 to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). "All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996). 1. WALKER PROCESS CLAIM. "As a general rule, behavior conforming to the patent laws oriented towards procuring or enforcing a patent enjoys immunity from the antitrust laws." Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 375 F.3d 1341, 1356 (Fed.Cir. 2004), rev'd in part on other grounds, 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). "But this immunity is hardly absolute. Nearly forty years ago, the Supreme Court recognized that an inventor who obtains a patent by defrauding the patent office deserves no immunity." Ibid. Such antitrust claims are known as Walker Process claims, referring to the Supreme Court's decision in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 176, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). In order to "achiev[e] a suitable accommodation in this area between the differing policies of the patent and antitrust laws,' a distinction must be maintained between patents procured by `deliberate fraud' and those rendered invalid or unenforceable for other reasons." Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1069 (Fed.Cir.1998) (quoting Walker Process, 382 U.S. at 178-79, 86 S.Ct. 347 (Harlan, J., concurring)). To succeed on a claim for Walker Process fraud, the antitrust claimant must show: (1) that the asserted patent was obtained by knowingly and willfully misrepresenting the facts to the PTO; (2) that the party enforcing the patent was aware of the fraud when bringing suit; (3) independent and clear evidence of deceptive intent; (4) a clear showing of reliance, i.e., that the patent would not have issued but for the misrepresentation or omission; and (5) the necessary additional elements of an underlying violation of the antitrust laws. Nobelpharma, 141 F.3d at 1068-71. Generally, the law of the circuit in which the district court sits governs issues in antitrust law. Federal Circuit law controls as to matters within its jurisdiction. More specifically, "whether conduct in procuring or enforcing a patent is sufficient to strip a patentee of its immunity from the antitrust laws is to be decided as a question of Federal Circuit law." Nobelpharma, 141 F.3d at 1068. "When . . . the courts consider a patentee's behavior under Federal Circuit law and determine that it involved either an inappropriate attempt to procure a patent or an inappropriate attempt to enforce a patent, the remainder of the antitrust inquiry must proceed under the law of the regional circuit." Unitherm, 375 F.3d at 1357. A. Standing. A plaintiff must be a "proper party" to have standing to bring an antitrust action, regardless of whether they have suffered an antitrust injury in fact. Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110-11, nn. 5, 6, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986). A plaintiff must show *315 five factors to demonstrate antitrust standing: "(1) the nature of the plaintiff's alleged injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages." Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir.1996) (citing Assoc. Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 535, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). The first factor, antitrust injury, consists of the following elements: "(1) unlawful conduct, (2) causing an injury to plaintiffs, (3) that flows from that which makes the conduct unlawful, (4) that is of the type the antitrust laws were intended to prevent" and (5) that the plaintiff "be a participant in the same market as the alleged malefactors." Glen Holly Ent'mt., Inc. v. Tektronix, Inc., 352 F.3d 367, 372 (9th Cir.2003). Here, plaintiffs have alleged that Netflix fraudulently obtained a patent, which it then used to keep competitors out of the market. Plaintiffs were injured by the monopolistic overcharges Netflix could exact absent competition. Consumers were participants in the same market because they purchased Netflix's products. Assuming plaintiffs successfully plead unlawful conduct, they have shown that they have suffered an antitrust injury. Defendant argues that consumers' injuries would be too remote from the alleged patent fraud, that is, the fraud's true target was competitors, not consumers. Where the defendant's actions were targeted at its competitors, however, consumers still may have standing to sue for their antitrust injuries. See, e.g., Blue Shield of Virginia v. McCready, 457 U.S. 465, 478-79, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). Here, plaintiffs have alleged that their injuries flow from Netflix's having asserted its patents to keep competitors out of the market. Absent Netflix's enforcement of its fraudulently-procured patents, plaintiffs would not be harmed, or so the argument goes. This alleged injury is not so remote as to bar the courthouse doors against consumers. As to the remaining factors, the speculative measure of the harm is quite straightforward, at least for pleading purposes. Netflix exacted a monopolistic overcharge from its subscribers. Netflix allegedly dropped its prices by a significant amount when Blockbuster entered the market as a competitor. The risk of duplicative recovery is small because consumers have a different measure of damages than competitors. Consumers' damages come from paying a supracompetitive price, while competitors' damages are measured by foregone profits. Andrx Pharm., Inc. v. Biovail Corp. Int'l, 256 F.3d 799, 817 (D.C.Cir.2001). Because measures of damages are different, complexity in apportioning damages becomes minimal. Netflix argues that consumers, even where they are direct purchasers, do not have standing to bring Walker Process claims. Consumers' injuries, defendant contends, are simply too far removed from the fraud allegedly committed by the defendant on the patent office and defendant's subsequent enforcement of the patent. The Ninth Circuit has recognized the rule that only those potential competitors who are ready to enter the market may have standing to bring Walker Process claims. Bourns, Inc., v. Raychem Corp., 331 F.3d 704, 711-12 (9th Cir.2003). In that decision, the plaintiff lacked standing because it had not shown that it was prepared to enter the market at the time the patent was asserted against it. The plaintiff in Bourns did not suffer injury because it was not in the market or prepared to enter the market. The Bourns decision did not squarely address the question of *316 consumer standing. Neither party presents any appellate authority on the precise question of whether purchasers have standing to assert a Walker Process claim, and the Court found none. Nor has any decision from this Court been found on the subject. Defendant cites several district court decisions. All involve allegedly anti-competitive practices, such as collusive patent-infringement settlements or attempts to game the FDA's generic drug approval process, in connection with pharmaceutical patents. In In re DDAVP Direct & Indirect Purchaser Antitrust Litig., No. 05-2237, slip op. at 12 (S.D.N.Y.2006), a district court dismissed the consumers' Walker Process claims for lack of standing. The Court held that since the patents were not asserted or threatened to be asserted against them, they lacked standing. A similar conclusion was reached in In re Ciprofloxacin Hydrochloride Antitrust Litig., 363 F.Supp.2d 514, 547 (E.D.N.Y.2005), however, the holding to dismiss the consumers' Walker Process claims was actually predicated on a failure to allege enforcement activity. Two additional decisions reached the conclusion that consumers lacked standing to bring Walker Process claims because consumers did not suffer the kind of antitrust injury that Walker Process claims were meant to address. In re Remeron Antitrust Litig., 335 F.Supp.2d 522, 529 (D.N.J.2004); In re K-Dur Antitrust Litig., No. 01-1652, slip op. at 24-30 (D.N.J. Mar, 1, 2007) (Netflix's App. Exh. 5). Finally, Judge Posner, sitting by designation, held that because the fraud at issue in a Walker Process claim was directed at a patentee's competitors, suppliers of inactive pharmaceutical ingredients for those competitors lacked standing. Asahi Glass Co. v. Pentech Pharm., Inc., 289 F.Supp.2d 986, 995 (N.D.Ill.2003). The supplier's injuries were too remote to support standing. A single district court decision has held that consumers had standing to bring Walker Process claims. That decision held that Walker Process claims are properly viewed as antitrust claims, so standing under them should be viewed in the same way as well. Molecular Diagnostics Labs. v. Hoffmann-La Roche, Inc., 402 F.Supp.2d 276, 280 (D.D.C.2005). In reaching this conclusion, the district court stated that "[i]f one believes that one of the primary purposes of a treble damages action is deterrence, then increasing the number of parties scrutinizing the actions of potential monopolists will further that goal." Id. at 281. Furthermore, that decision also recognized that the harm in a Walker Process claim comes not from fraudulently obtaining a patent, it comes from creating or maintaining an unlawful monopoly using that patent. This order finds Molecular Diagnostics persuasive. Even though Walker Process claims are predicated on enforcement of a fraudulently-obtained patent, the harm still accrues directly to consumers. Competitors are excluded from the market allowing the patentee to create or maintain an `unlawful monopoly. Accordingly, if plaintiffs can plead the other elements of their Walker Process claim, they have standing. B. Fraud and Rule 9(b). "Like all fraud-based claims, Walker Process allegations are subject to the pleading requirements of Fed.R.Civ.P. 9(b)." Medimmune, Inc. v. Genentech, Inc., 427 F.3d 958, 967 (Fed.Cir.2005). "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." FRCP 9(b); see also Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1106 (9th Cir.2003). Plaintiffs must identify with particularity the reference or group of references *317 that, but for their omission from Netflix's patent applications, the PTO would not have granted the applications. See, e.g., Grid Sys. Corp. v. Texas Instruments Inc., 771 F.Supp. 1033, 1039 (N.D.Cal.1991) (for Walker Process claims, a party must allege that "but for the fraud the affected patents would not have issued"). A party need not plead the intent element of its Walker Process claim with particularity. Instead, "it is the `circumstances' constituting the fraud that must be alleged with specificity." Competitive Techs. v. Fujitsu Ltd., 286 F.Supp.2d 1118, 1149 (N.D.Cal.2003). Here, plaintiffs have identified the references that Netflix allegedly withheld from the PTO in prosecution — the NCR patents. For purposes of this motion, plaintiffs have alleged that Netflix was aware of the NCR patents' existence. Indeed, Netflix filed a declaratory-judgment action against NCR. In that complaint, Netflix alleged that NCR had sent notice as early as January 2003 that Netflix infringed some of NCR's patents (Compl. ¶ 34). Plaintiffs have also pleaded that but for the NCR references being withheld, the '450 patent and the '381 patent would not have issued. In doing so, they have identified parallels between the NCR patents and Netflix's applications that indicated that the NCR patents were material. Plaintiffs also point out that Netflix submitted no prior art references to the examiner in connection with the '450 patent. Plaintiffs have pleaded with sufficient particularity that but for the fraud, the patents would not have issued. C. Level of Enforcement. To plead a claim of Walker Process fraud, plaintiffs must plead that the fraudulently-procured patent was enforced; merely procuring a patent by fraud is not sufficient. Unitherm, 375 F.3d at 1355. If a plaintiff cannot plead the minimum level of enforcement necessary to sustain a declaratory judgment action, the plaintiffs likewise cannot plead a Walker Process claim. Id. at 1357-58. To determine standing in declaratory judgment actions, the Federal Circuit formerly used a "reasonable apprehension of suit" standard. Id. at 1358. The Supreme Court recently criticized this standard in Medlmmune Inc. v. Genentech, Inc., ___ U.S. ___, 127 S.Ct. 764, 771-72, 166 L.Ed.2d 604 (2007). Thereafter, the Federal Circuit held that "where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party, and where that party contends that it has the right to, engage in the accused activity without a license, an Article III case or controversy will arise and the party need not risk a suit for infringement by engaging in the identified activity before seeking a declaration of its legal rights." SanDisk Corp. v. STMicroelectronics, Inc., 480 F.3d 1372, 1381 (Fed.Cir.2007). "In the context of conduct prior to a existence of a license, declaratory judgment jurisdiction generally will not arise merely on the basis that a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement, without some affirmative act by the patentee." Id. at 1380-81. Plaintiffs allege that Netflix deterred three of its potential competitors from entering the market using the '450 patent: Wal-Mart, Amazon, and Blockbuster. Plaintiffs' allegations as to Wal-Mart and Amazon are similar. Wal-Mart introduced its own online DVD-rental service in June 2004. It exited the market in June 2005. Amazon announced plans to start its own service in October 2004, but ended up not doing so. It later started a similar service in the United Kingdom and Germany in August 2006. As to both companies, plaintiffs allege that they either exited the market or declined to enter the market, *318 the '450 patent was in existence at the time, so they must have known about it. The '450 patent must have deterred them from competing. Plaintiffs' allegations as to Wal-Mart and Amazon fail for two reasons. First, plaintiffs' bare-bones allegations that Wal-Mart and Amazon were aware of the '450 patent do not support the inference that they declined to enter the market or exited the market because Netflix threatened to assert it against them. They may have decided that barriers to entry were too high, they may have decided to focus on other parts of their business, or they may have decided not to enter the market for any number of other reasons. Simply pleading that the '450 patent was in existence, so Wal-Mart and Amazon surely must have known about it, does not support the inference that they exited because Netflix was threatening enforcement against them. Plaintiffs have pleaded no facts supporting an inference of any action taken by Netflix toward Wal-Mart or Amazon, so they have not pleaded a sufficient level of enforcement. Second, taking plaintiffs allegations as true, defendant's "alerting" Amazon and Wal-Mart to the existence of the '450 patent is not sufficient under the standards set out by the Federal Circuit." Merely notifying them to the existence of the patent, without any threat or implication at all that they must either stop practicing the patented method or risk Netflix's filing suit, would not meet the minimum standard for sustaining an action for declaratory judgment. In turn, these allegations could not form the basis of a Walker Process claim. Enforcement requires some affirmative act which is lacking in the pleadings. As to Blockbuster, plaintiffs first allege that because Blockbuster did not enter the market until August 2004, the presence of the '450 patent must have delayed Blockbuster's entry. Specifically, plaintiffs allege (Compl. ¶ 58): The only reasonable inference drawn from Blockbuster's allegation [in its antitrust counterclaim against Netflix] that Netflix's CEO asked Blockbuster's general counsel when he "figured out" that the '450 patent was a "joke" is that Blockbuster delayed its entry into the relevant market because of the '450 Patent, at least for as long as it took Blockbuster to "figure[] out" that the '450 Patent was "a joke." Plaintiffs attempt to draw the inference from the meeting between Blockbuster's general counsel and Netflix's CEO that there was enforcement activity at some time before that meeting. The timing does not work. That meeting allegedly took place in January 2005. Blockbuster had already entered the market in August 2004. Hastings' alleged statements are not sufficient to support an inference of enforcement activity nearly two years before those statements were made. At most, this allegation supports an inference that Blockbuster knew of the '450 patent, not an inference that Netflix attempted to enforce it against Blockbuster. Additionally, Blockbuster, in its own antitrust counterclaims against Netflix, alleged that Netflix had given it no warning that Netflix believed that Blockbuster infringed their patents until Netflix filed a complaint. Next, plaintiffs identify the patent-infringement action Netflix filed against Blockbuster on April 4, 2006, as enforcement action. It is undisputed that actually filing a patent-infringement complaint constitutes sufficient enforcement activity. Also undisputed is that Blockbuster entered the market in August 2004. Plaintiffs so pleaded (Compl. ¶ 58). Thus, to the extent that plaintiffs allege that the lawsuit delayed Blockbuster's entry into the market, they cannot do so. Blockbuster *319 had already entered the market nearly two years before the action was filed and has never left it. Plaintiffs next argue that their claim is based Netflix's action against Blockbuster deterring other competitors from entering the relevant market. Other than its previous allegations regarding Amazon and Wal-Mart, plaintiffs do not identify who these potential competitors might have been or what actions Netflix took against them. Perhaps plaintiffs could have pleaded that Amazon's decision to enter the European market but not the domestic market could have been based on Netflix's actions. They would still have to plead, however, that Netflix took some kind of enforcement action against Amazon to maintain a Walker Process claim. Plaintiffs could possibly plead that Netflix's lawsuit against Blockbuster may have deterred Blockbuster from fully entering the market or practicing all aspects of the patented method. This in turn could have prevented Blockbuster from competing effectively with Netflix. This theory is not developed in the pleadings. Plaintiffs simply allege that potential competitors' awareness of Netflix's patents deterred competition. Plaintiffs have not alleged that Netflix enforced or attempted to enforce its patents to unlawfully create or maintain a monopoly. Accordingly, defendant's motion to dismiss is GRANTED, and this claim must be DISMISSED. Plaintiffs will be granted leave to amend. 2. STATE-LAW CLAIMS. Plaintiffs' complaint includes claims for violations of California's Cartwright Act, Cal. Bus. & Prof.Code §§ 16720 and 16726, and for injunctive and restitutionary relief under California's unfair competition law, Cal. Bus. & Prof.Code § 17200. Defendant first argues that plaintiffs lack standing to bring these claims. Because this order has already determined that plaintiffs have standing under the federal antitrust laws if plaintiffs can demonstrate antitrust injury, consumers such as plaintiffs have standing to bring these claims under California law. A. Preemption. Netflix first argues that plaintiffs' state law claims are preempted by federal patent law. "Federal Circuit law governs whether federal patent law preempts a state law claim." Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 (Fed.Cir.2005) (citing Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1361 (Fed.Cir.1999)). Claims that are predicated on no more than bad-faith misconduct or fraud before the PTO or that are identical in scope to an inequitable conduct defense are preempted by federal patent law. Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 204 F.3d 1368, 1382 (Fed.Cir. 2000). Tort claims under state law are not preempted by federal patent law where they include additional elements not found in federal patent law claims. Dow Chemical, Co. v. Exxon Corp., 139 F.3d 1470, 1473 (Fed.Cir.1998). Plaintiffs may not predicate their state-law claims solely on Netflix's allegedly having obtained its patents through fraud. Conduct in front of the PTO is regulated by federal patent laws. To the extent that plaintiffs so plead, their claims are preempted by federal patent law. Plaintiffs contend that they "would recover under their California-law claims if the jury found they had proved . . . that Netflix's conduct before the Patent Office was inequitable and in bad faith, but their evidence fell short of actual fraud" (Opp. at 19-20). Plaintiffs are wrong. Absent proof of some other element, plaintiffs would merely be showing that Netflix engaged in misconduct before the PTO. At most, that would be a claim for inequitable conduct. *320 Such claims are preempted by federal patent law. For the state-law claims to survive, some element other than misconduct or fraud before the PTO is needed. Plaintiffs then argue that they have met the requirement for an additional element because they have alleged that Netflix "deterred" its potential competitors from entering the market using its ill-gotten patents. As with the federal claims, plaintiffs have failed to plead conduct by Netflix that would have deterred its competitors from entering. Plaintiffs have failed to allege any enforcement activity against potential competitors Wal-Mart or Amazon. As to Blockbuster, plaintiffs have perhaps alleged that Netflix's patent-infringement action against them was brought in bad faith, however, they have failed to plead any antitrust injury as a result of that action. Blockbuster entered the market in August 2004, it never left the market, and plaintiffs have not pleaded that there was any adverse effect on the market from defendant's actions to Blockbuster. Accordingly, at this point, plaintiffs have failed to plead state-law claims that are not preempted by federal law. For purposes of plaintiffs' Section 17200 claim, they have failed to plead conduct outside of fraudulently obtaining a patent that would constitute unfair competition. B. Cartwright Act Claim. Plaintiffs assert a claim under California's Cartwright Act, which makes unlawful any agreements or trusts having the effect of restraining trade. Cal. Bus. & Prof.Code §§ 16720, 16726. By the statute's own terms, a trust is a "combination of capital, skill or acts by two or more persons." Cal. Bus. & Prof.Code 16720. Attorneys and employees are generally considered agents and not co-conspirators, however, "[a]n attorney is not immune from antitrust liability if he becomes an active participant in formulating policy decisions with his client to restrain competition." Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1033 (9th Cir.1989). Allegedly, the "Netflix Patent Applicants," including Netflix, its employees, and its patent counsel Edward A. Becker and Hickman Palermo Truong & Becker LLP, formed a trust for the purpose of restraining trade (Compl. ¶¶ 100-102). As discussed above, these allegations of conspiracy are preempted by federal patent law to the extent that this alleged conspiracy was created solely to commit fraud on the PTO. There is no allegation that Becker or the Hickman firm helped Netflix actually assert its fraudulently-obtained patents. Nor is such an inference supported by the pleadings. Furthermore, plaintiffs have not pleaded facts that would support the inference that Becker or the Hickman firm was an active participant in formulating policy decisions related to enforcing the patents. In the pleadings, Becker's involvement is limited to patent prosecution. Accordingly, plaintiffs' theory that Netflix and, its patent prosecution counsel were in a conspiracy fails. Cartwright Act claims are properly dismissed "where the complaint makes conclusory allegations of a combination and does not allege with factual particularity that separate entities maintaining separate and independent interests combined for the purpose to restrain trade." Freeman v. San Diego Ass'n of Realtors, 77 Cal.App.4th 171, 189, 91 Cal.Rptr.2d 534 (1999). In their opposition brief, plaintiffs for the first, time advance the theory that Netflix and its competitors were in a tacit but unwilling conspiracy to restrain trade. Specifically, plaintiffs point to their allegation that "[w]hen Wal-Mart discontinued offering services in the Relevant Market, it referred its customers to Netflix and marketed (and continues to market) Netflix's services" (Compl. ¶ 60). In their opposition, plaintiffs argue that this allegation *321 would lead to the inference that there was an unlawful agreement between the two entities. This allegation is simply too conclusory. Plaintiffs' allegation does not support the conclusion that Netflix and Wal-Mart entered into an agreement to restrain trade. The complaint hints at the possibility, but that is not sufficient even at the pleading stage. Furthermore, it is not clear whether plaintiffs allege that Netflix used its patent position to get Wal-Mart to agree to leave the market, or if plaintiffs allege that Wal-Mart just agreed to stay out of the market. Because plaintiffs have failed to plead state-law claims, this order does not reach the issue of whether plaintiffs' claims were barred by California's litigation privilege. Accordingly, defendant's motion to dismiss is GRANTED as to plaintiffs' Cartwright Act and unfair competition claims. Plaintiffs will be granted leave to amend. 3. STAY OF DISCOVERY. An order dated April 26, 2007, stayed discovery in this action. District courts have broad discretion to stay discovery pending the resolution of a potentially dispositive motion, including a motion to dismiss. Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir.1987). Recently, the Supreme Court has recognized that staying discovery may be particularly appropriate in antitrust cases, where discovery tends to be broad, time-consuming and expensive. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1967 (2007). The Supreme Court pointed out that "determining whether some illegal agreement may have taken place between unspecified persons at different [companies] . . . at some point over seven years is a sprawling, costly, and hugely time-consuming undertaking. . . ." Id. at n. 6. In this action, discovery could indeed prove expansive if allowed to proceed. Plaintiffs' claims have been dismissed because they have failed to plead the requisite level of enforcement to sustain a Walker Process claim. At this stage, however, discovery should remain stayed except for a specific narrowly-tailored request. Unlike in Twombly, the players are known at least in the general sense — Netflix, Wal-Mart, Amazon, and Blockbuster. The subject-matter of communications relevant to plaintiffs' Walker Process allegations is narrow as well — communications regarding the '450 patent and the '381 patent. Accordingly, narrowly-tailored discovery will be permitted to go forward. Discovery in this action remains stayed with the following exception. Netflix is ordered to disclose all documents summarizing, describing, referring to or constituting written or oral communications between Netflix (or a representative), on one hand, and Wal-Mart or Amazon (or a representative), on the other hand, on the subject of the patents in suit (or either or them) from the date of issuance of the patents in suit (or either or them) to the filing of the complaint in this action. These are to be produced no later than JULY 2, 2007. Plaintiffs should file their amended complaint no later than JULY 16, 2007. CONCLUSION For all of the above-stated reasons, defendants' motion to dismiss is GRANTED. Plaintiffs will be granted leave to amend their complaint. Discovery remains stayed except for the narrow request described above. IT IS SO ORDERED.

809 F.2d 320 22 Fed. R. Evid. Serv. 571 UNITED STATES of America, Plaintiff-Appellee,v.Joe Dean SWIFT (86-1079), James C. Hettmansperger (86-1083),Defendants-Appellants. Nos. 86-1079, 86-1083. United States Court of Appeals,Sixth Circuit. Argued Nov. 6, 1986.Decided Jan. 16, 1987. Goerge S. Buth, Curtis R. Witte (argued), Grand Rapids, Mich., for Hettmansperger. Anthony J. Valentine (argued), Bruggink & Valentine, Grand Rapids, Mich., for Swift. John A. Smietanka, U.S. Atty., Grand Rapids, Mich., John C. Bruha, Donald A. Davis (argued), for plaintiff-appellee. Before LIVELY, Chief Judge, and MARTIN and BOGGS, Circuit Judges. BOYCE F. MARTIN, Jr., Circuit Judge. 1 Joe Swift and James Hettmansperger challenge their convictions arising from a drug conspiracy and tax evasion jury trial. Joe Swift was convicted of conspiring to distribute marihuana, of possession of marihuana with the intent to distribute and of interstate travel in aid of racketeering. James Hettmansperger was convicted of conspiring to distribute marihuana and of false declarations to a grand jury. Hettmansperger argues that the district court abused its discretion in joining him in the indictment against the other defendants, and both Hettmansperger and Swift argue that the district court abused its discretion in denying their motion for severance. Also, Swift asserts that the district court erred in allowing the jury to view bags containing marihuana and Hettmansperger argues that the district court erred by holding that his false statements were material to the grand jury. We find their arguments unpersuasive and affirm the district court. 2 In April of 1985 a grand jury returned a 17-count indictment against Swift, Hettmansperger and seven other defendants. The charges involved drug violations, racketeering, tax evasion and false declarations to a grand jury. Swift was indicted for conspiring to distribute marihuana, for possession of more than 1,000 pounds of marihuana with intent to distribute and of interstate travel in aid of racketeering. Hettmansperger was indicted for conspiring to distribute marihuana and for perjury before the grand jury. 3 Swift filed a pretrial motion to sever the tax related and perjury counts from the drug related ones. Hettmansperger filed a pretrial motion for severance of the two counts against him and for a separate trial for each. The district court ruled that the joinder under Rule 8(b) of the Federal Rules of Criminal Procedure was proper, but, in order to avoid confusion, severed the drug related counts from the tax related ones. During trial Swift joined in a motion for severance under Rule 14 on grounds of prejudice from financial evidence that was being introduced against other defendants. The district court denied this motion and the motion was not subsequently renewed. 4 During the course of trial, the government presented evidence contradicting Hettmansperger's grand jury testimony and establishing his involvement in the conspiracy. It also introduced evidence and testimony demonstrating Swift's participation in the drug conspiracy. In presenting its case, the government tried to introduce as evidence two bales of marihuana packaged in Purina Dog Chow bags, but the district court refused admission because of problems with authentication. As an alternative, the government sought to have a witness identify the method of packaging. The district court permitted the bags to be shown to the jury under those circumstances but specifically forbade the bags from being identified as containing marihuana. The packaged bales of marihuana were brought into the courtroom, the witness identified the packaging as being like that used by the drug conspiracy, and the bags were immediately removed. 5 Swift was found guilty of the three counts against him and sentenced to concurrent five year terms on each count. Hettmansperger was found guilty on both counts against him and sentenced to concurrent four year terms on each count. Hettmansperger argues on appeal that the district court abused its discretion in joining the defendants for trial. Swift and Hettmansperger both assert that the district court abused its discretion in refusing to sever them from the other defendants. Further, Swift claims that the district court committed reversible error in permitting the jury to view the Purina Dog Chow bags containing marihuana, and Hettmansperger asserts that he was improperly convicted for perjury under 18 U.S.C. Sec. 1623 because the district court erred in holding that his false statements to the grand jury satisfied that statute's materiality requirement. 6 We address first the improper joinder contention. The Federal Rules of Criminal Procedure permit joinder in an indictment of defendants "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense of offenses." Fed.R.Crim.P. 8(b). As we have held, this rule "can, and should, be 'broadly construed in favor of initial joinder,' because of the protection Rule 14 affords against unnecessarily prejudicial joinder." United States v. Franks, 511 F.2d 25, 28 (6th Cir.1975) (quoting United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974)). In the decision of whether to join, "the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once." Franks, 511 F.2d at 29 (quoting Baker v. United States, 401 F.2d 958, 971 (D.C.Cir.1968)). 7 The counts joined for trial in this case satisfy this requirement because they are logically interrelated and involve overlapping proof. See United States v. Johnson, 763 F.2d 773, 776 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 178, 88 L.Ed.2d 148 (1985). The drug conspiracy count involved all nine defendants. Swift's possession of the more than 1,000 pounds of marihuana was one of the overt acts of the conspiracy. Swift's racketeering count involved interstate travel for the purpose of obtaining marihuana. Hettmansperger's perjury count was related to his involvement in that conspiracy, and evidence establishing his involvement in that conspiracy also established the falsity of his grand jury testimony. The racketeering counts in which neither Swift nor Hettmansperger was indicted involved the investment of proceeds from the marihuana conspiracy. Thus, because all of the counts were related and involved many of the same elements of proof, and because joinder advanced judicial economy, the joinder was appropriate. 8 Second, we deal with Swift and Hettmansperger's arguments that the district court should have granted a motion for separate trials under Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides: "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information ... the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." A Rule 14 motion is left to the court's discretion, and the denial of a severance "will not be disturbed on review unless the district court abused its discretion in denying the motion." United States v. Gallo, 763 F.2d 1504, 1524-25 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986) (citations omitted). To establish an abuse of discretion requires "a strong showing of prejudice." Id. at 1525. The movant must demonstrate an inability of the jury to separate and treat distinctively evidence relevant to each particular defendant. Even if the movant establishes "some potential jury confusion, this must be balanced against society's need for speedy and efficient trials." Id. (citations omitted). 9 Swift and Hettmansperger argue that the district court should have granted a severance because they were prejudiced by a "spillover" of evidence, particularly the large quantities of financial evidence. Much of the evidence about which Swift and Hettmansperger complain--such as what happened to the proceeds--was relevant in establishing the existence and operation of the drug conspiracy and may have been admissible against them. As for evidence not admissible against them, the district court gave to the jury, both during and at the end of trial, cautionary instructions regarding the separate consideration to be given to each defendant. As a jury is presumed capable of sorting out evidence and considering each count and each defendant separately, United States v. Frazier, 584 F.2d 790, 795 (6th Cir.1978), Swift and Hettmansperger's arguments prove unpersuasive. Even if there is some potential for jury confusion, it is small and does not outweigh "society's need for speedy and efficient trials." Gallo, 763 F.2d at 1525. 10 As noted above, this severance motion was made during trial but not renewed at the close of the evidence. Other circuits have required that a motion to sever be renewed at the close of evidence for the objection to survive. See, e.g., United States v. Guess, 745 F.2d 1286, 1289 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1219, 84 L.Ed.2d 360 (1985); United States v. Mansaw, 714 F.2d 785, 790 (8th Cir.), cert. denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983). As a prospective ruling affecting cases tried after January 1, 1987, we hold that a severance motion will be deemed waived if it is not renewed at the end of the evidence. This ruling does not affect this case, however, because the district court effectively reconsidered the motion at the end of the case and found severance still inappropriate. 11 Third, we address Swift's contention that the district court erred in permitting the jury to view the Purina Dog Chow bags containing marihuana. According to Swift, he was unfairly prejudiced by the mere presence in the courtroom for a short time of large bags that had tears exposing marihuana. Rule 403 of Federal Rules of Evidence excludes evidence when its unfair prejudicial impact substantially outweighs its probative value. In balancing prejudice and probative value, trial courts have considerable leeway. Because appellate courts work with a record which cannot fully convey a trial's nuances, dynamics and atmosphere, they have a limited capacity to review the balance struck by the trial court. Consequently, we will not reject a trial court's balancing unless the "substantial prejudice" clearly outweighs the "probative value." See United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979) ("In reviewing a decision of a trial court on this issue we must look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect."). Accord F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104, 1107-08 (5th Cir.1981); cf. United States v. Robinson, 560 F.2d 507, 515 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978) ("the preferable rule is to uphold the trial judge's exercise of discretion unless he acts arbitrarily or irrationally"). 12 The district court never admitted that Purina Dog Chow bags into evidence and never permitted them to be identified as containing marihuana or as being the bags used by the conspiracy. The record before us does not indicate how much marihuana was visible through the tears in the Purina Dog Chow packaging. In fact, we do not know for certain that the jury could see any at all. Moreover, this was a large marihuana conspiracy trial; the jury would unlikely have been surprised to see large bags that contained marihuana. It is very difficult for us to gauge, as the district court could, the trial's dynamics and the effect of the presence of the bags in the courtroom for a short time. In permitting the jury to view the bags, the district court had to balance any unfair prejudice arising from their presence against the value of demonstrating to the jury the method of packaging and means of transporting large volumes of marihuana. We cannot say that the substantial prejudice clearly outweighs the probative value. 13 Finally, we have considered the other ground urged on appeal--the assertion that Hettmansperger's false declarations were not material and therefore could not support a perjury conviction under 18 U.S.C. Sec. 1623--and find it without merit. That statute criminalizes false declarations before a grand jury or court; specifically, it provides that "[w]hoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both." 18 U.S.C. Sec. 1623(a). As stated in United States v. Richardson, 596 F.2d 157, 165 (6th Cir.1979), a false declaration satisfies the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation. That Hettmansperger's false statements did not succeed in leading the grand jury astray is irrelevant. 14 We affirm.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 16-1891 ____________ LENICK CONSTRUCTION, INC., Appellant v. SELECTIVE WAY INSURANCE COMPANY ____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-14-cv-02701) District Judge: Honorable Cynthia M. Rufe ____________ Submitted Under Third Circuit L.A.R. 34.1(a) March 20, 2018 Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges. (Opinion Filed: June 6, 2018) ____________ OPINION * ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge. Lenick Construction, Inc. appeals a summary judgment in favor of Selective Way Insurance Company on Lenick’s declaratory judgment action for insurance coverage. The District Court held that Selective had no duty to defend or indemnify Lenick in state- court litigation that arose out of problems experienced by a condominium development in South Philadelphia. We will affirm. I The dispute underlying this coverage action began between The Villas at Packer Park Condominium Association and various entities collectively referred to as Westrum. Westrum was hired as the general contractor for the 92-unit development, and it subcontracted with Lenick to perform rough and finish carpentry and to install paneling, windows, and doors provided by the developer. Upon completion of the project, it was discovered that some units experienced water infiltration, leaks, and cracked drywall. In February 2013, the Villas sued Westrum in the Philadelphia County Court of Common Pleas, alleging contract and warranty claims. Westrum impleaded Lenick (and others), asserting claims for breach of contract and indemnification. Soon after it had been joined as a defendant, Lenick notified its insurer (Selective) of the claims, stating that the commercial general liability (CGL) policy in effect when the defects were discovered entitled Lenick to defense and indemnification. Selective initially denied Lenick’s request, but eventually agreed to defend Lenick, subject to a reservation of rights. 2  In response to Selective’s reservation of rights letter, Lenick filed an action in the Court of Common Pleas seeking a declaration that Selective was obliged to defend and indemnify Lenick. After Selective removed the action to federal court, the parties filed cross-motions for summary judgment regarding Selective’s duty to defend, and Selective also filed a motion for summary judgment on its duty to indemnify. For its part, Lenick sought reimbursement for fees that it incurred in the time period between its demand for a defense and Selective’s agreement to provide one. The District Court concluded that the allegations against Lenick were not covered under its CGL policy, so Selective had no duty either to defend or indemnify Lenick. Lenick timely appealed. II 1 Under Pennsylvania law, we decide whether a duty to defend exists by first reviewing the language of the insurance policy to determine when it provides coverage, and then examining the complaint against the insured to ascertain whether its allegations “constitute the type of instances that will trigger coverage.” 2 Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896–97 (Pa. 2006). “If the complaint filed against the insured avers facts which would support a recovery that is covered by the policy, it is the duty of the insurer to defend until such time as the claim is confined to a recovery that the policy does not cover.” Erie Ins. Exch. v. Transamerica 1 The District court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over summary judgments. Specialty Surfaces Int’l, Inc. v. Cont’l Cas. Co., 609 F.3d 223, 229 n.1 (3d Cir. 2010). 2 The pleadings relevant to our review include the Villas’ original complaint against Westrum, various amended complaints filed by the Villas against the defendant subcontractors, and the original and amended versions of the joinder complaints. 3 Ins. Co., 533 A.2d 1363, 1368 (Pa. 1987) (citation omitted). We liberally construe and accept as true all factual allegations against the insured, Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562 F.3d 591, 595–96 (3d Cir. 2009), but we may not stray outside the four corners of the complaint against the insured or consider extrinsic evidence, Kvaerner, 908 A.2d at 896. Instead, “an insurer’s duty to defend and indemnify [is] determined solely from the language of the complaint against the insured.” Id. (emphasis added); State Farm Fire & Cas. Co. v. DeCoster, 67 A.3d 40, 45–46 (Pa. Super. Ct. 2013). In this case, Lenick’s CGL policy insured it against bodily injury and property damage caused by an “occurrence,” which an endorsement to the policy defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Supp. App. 175. Lenick contends that the pleadings established occurrences under Pennsylvania law in three ways: (1) the damage occurred to areas of the property on which Lenick did not work, (2) the damage was caused by work performed by other subcontractors, and (3) the damage was caused by defects in the materials that Lenick used rather than by its own faulty workmanship. Selective counters that Lenick’s liability arises from its own faulty workmanship, which is not covered as an occurrence under the policy. With respect to its first argument, Lenick acknowledges that the Pennsylvania Supreme Court held in Kvaerner Metals v. Commercial Union Insurance that there is no occurrence when the complaint “avers only property damage from poor workmanship to the work product itself.” 908 A.2d at 900. Lenick emphasizes that the various complaints identify leaks, water infiltration, and cracked drywall, which were unrelated to Lenick’s 4 work. Lenick argues that, if presented with this question, the Pennsylvania Supreme Court would find that “consequential damages beyond the work itself[] are ‘occurrences’ under CGL policies.” Lenick Br. 27 (emphasis omitted). We disagree. As we said in Specialty Surfaces International v. Continental Casualty: “damages that are a reasonably foreseeable result of the faulty workmanship are . . . not covered,” even when such damage occurs to areas outside the work provided by the insured. 609 F.3d 223, 239 (3d Cir. 2010) (citing Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706, 713–14 (Pa. Super. Ct. 2007)). Because the Supreme Court of Pennsylvania has not subsequently issued a contrary opinion, we must follow the determination of the Specialty Surfaces panel. See id. at 231; see also Debiec v. Cabot Corp., 352 F.3d 117, 131 (3d Cir. 2003) (noting that this court will adhere to previous decisions “in the absence of a clear statement by the Pennsylvania Supreme Court to the contrary or other persuasive evidence of a change in Pennsylvania law” (citation omitted)). Lenick’s second argument—that the faulty workmanship of others led to the later failure of Lenick’s own work—is similarly unavailing. Though Lenick cites two affidavits to support this argument, we examine only the underlying complaints for the factual allegations made against Lenick. Kvaerner, 908 A.2d at 896; DeCoster, 67 A.3d at 45–46. As noted by the District Court, though the various complaints assert that others may be liable for the property damage, “they do not allege that Lenick should be held liable (in negligence or under any other theory) for the faulty products or poor workmanship of others. Lenick’s own faulty workmanship is the only legal theory under which Lenick, as opposed to other contractors or subcontractors, could be found liable.” 5 Lenick Constr., Inc. v. Selective Way Ins. Co., 2016 WL 1161571, at *5 (E.D. Pa. Mar. 23, 2016) (first emphasis added). We perceive no error in the District Court’s conclusion regarding this issue. Finally, Lenick’s contention that the property damage was caused by defects in the materials provided to it by the developer also lacks support in the pleadings. Here again, Lenick points only to extrinsic evidence to support this argument. Because the pleadings do not contain allegations sufficient to support a claim that the windows, doors, and/or panels used by Lenick “actively malfunctioned, directly and proximately causing” the property damage to the project, this argument fails. Indalex Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 83 A.3d 418, 424 (Pa. Super. Ct. 2013) (quoting Erie Ins. Exch. v. Abbott Furnace Co., 972 A.2d 1232, 1238 (Pa. Super. Ct. 2009)). 3 III For the reasons stated, we will affirm the District Court’s summary judgment. 3 Because the duty to defend is broader than the duty to indemnify, Lenick’s claim for indemnification also fails. See Kvaerner, 908 A.2d at 896 n.7. Its argument that Selective acted in bad faith fails because it has presented no evidence that Selective “did not have a reasonable basis for denying benefits under the policy and that [it] knew of or recklessly disregarded its lack of reasonable basis.” Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1148 (Pa. Super. Ct. 2013) (citation omitted). 6 

149 F.3d 1191 98 CJ C.A.R. 3165 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. UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Joe CONTRERAS, Defendant-Appellant. No. 97-8098. United States Court of Appeals, Tenth Circuit. June 15, 1998. 1 Before BALDOCK, EBEL and MURPHY, JJ. 2 ORDER AND JUDGMENT* EBEL. 3 In 1994, Joe Contreras ("Contreras") pled guilty to federal drug charges and was sentenced to 120 months' imprisonment. (ROA 1 ). On April 28, 1997, Contreras filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on the grounds that his guilty plea was unknowing and involuntary as a result of the government's breach of the plea agreement. (ROA 1 & 7 ). Contreras contended that the plea agreement provided that his federal sentence would run concurrently with any state sentence he might receive in connection with the conduct at issue in the federal proceedings. (ROA 1 & 7 ). Contreras argued that the government violated the plea agreement because Federal Bureau of Prison authorities failed to credit his sentence for over two and one-half years of time served from the date of his arrest under both state and federal custody. (ROA 1 & 7 ). As a result, he claimed that his sentence had been extended improperly by 30 months to 150 months' imprisonment. 4 The district court concluded that Contreras' claim that the government breached the plea agreement by failing to give him credit for time served could not be heard until after he exhausted his administrative remedies, i.e. the Bureau of Prisons' final determination of its position with regard to his sentence. (ROA 6 ). Consequently, the district court found that it lacked jurisdiction to consider Contreras' claim and denied his motion. (ROA 6 ). Contreras filed a Motion for Reconsideration arguing that because he was challenging the voluntariness of his plea agreement and not his sentence, he need not exhaust administrative remedies. (ROA 7 ). In the alternative, advising the court that he was in the process of exhausting his administrative remedies and was only awaiting a final decision from the Bureau of Prisons, Contreras asked the district court to vacate its order dismissing his § 2255 motion and to stay the proceedings until after the administrative process had run its course. (ROA 7 ). Contreras noted that he brought his § 2255 motion before he had completed the administrative process only because of the one-year limitation on claims filed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In addition, because his § 2255 motion was filed after the effective date of AEDPA, dismissal of his claim outright without staying the proceedings would prevent him from filing a second § 2255 motion. See 28 U.S.C.A. § 2255 (West Supp.1997) (disallowing successive motions except in limited circumstances). The district court denied Contreras' motion to reconsider on July 24, 1997. (ROA 10 ). Contreras now appeals.1 5 On August 25, 1997, the Bureau of Prisons issued a final decision in Contreras' administrative appeal of his sentence denying his claim for a sentence reduction. (Appellant Brief, Exhibit C ). As a result, Contreras has exhausted his administrative remedies. Given Contreras' good faith efforts to comply with AEDPA and exhaust his administrative remedies, the district court should have stayed the proceedings in this case until after the administrative process had come to an end. Thus, we find that the district court erred by denying Contreras' motion to reconsider. As a result, we need not address the question of whether Contreras had to exhaust administrative remedies before bringing his § 2255 motion. We also grant Contreras' motion to proceed In Forma Pauperis. 6 REVERSED and REMANDED for further proceedings. 7 The mandate shall issue forthwith. * 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) and 10th Cir. R. 34.1.9. 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. 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 Although the notice of appeal was not filed with the district court until more than 30 days after entry of the order of dismissal, Contreras delivered the notice of appeal to prison officials before the 30-day deadline as provided by Fed. R.App. P. 4(c)

711 P.2d 536 (1985) James A. TATE, Appellant, v. STATE of Alaska, Appellee. No. A-723. Court of Appeals of Alaska. December 20, 1985. *537 Cameron W. Leonard, Asst. Public Defender, Fairbanks and Dana Fabe, Public Defender, Anchorage, for appellant. Alan Hooper, Asst. Dist. Atty. and Harry L. Davis, Dist. Atty., Fairbanks and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ. OPINION SINGLETON, Judge. James A. Tate pled nolo contendere and was convicted of burglary in the second degree, a class C felony. AS 11.46.310. Tate is a first felony offender. The maximum penalty for a class C felony is five years' imprisonment. AS 12.55.125(e). Presumptive terms are, respectively, two and three years for second and third felony offenders. Id. Superior Court Judge Gerald J. Van Hoomissen sentenced Tate to a term of five years with three suspended. Tate appeals, contending that the sentence is excessive. We agree and reverse. James Tate and Donald L. Bumpus broke into a Fairbanks gas station at four o'clock in the morning on August 28, 1984. Officer Donald Wagner of the Fairbanks Police Department responded to a report of a burglary in progress and apprehended Tate and Bumpus in the act of stealing money from the service station. Further investigation indicated that Bumpus had used a hammer to break a window and gain entry to the service station. Tate later said that the two hoped to steal enough money to rent a room and hire the services of some prostitutes. Tate has no prior felony convictions. He does have an extensive misdemeanor record which began in 1982 and continued up until his apprehension for the instant offense. Most significant are Tate's four prior shoplifting convictions for which he was required to serve respectively, five days in 1982, three days in 1982, 20 days in 1983, and an additional 15 days in 1983. It also appears that he failed to comply with certain conditions of probation in 1984, resulting in revocation of probation and the imposition of a consecutive sentence, and that subsequent probation revocations occurred up until his apprehension for the instant felony. The trial court noted that Tate was jailed on July 24, 1984, for his most recent probation revocation and committed the instant offense on August 29, 1984. *538 Judge Van Hoomissen carefully considered the Chaney criteria.[1] Judge Van Hoomissen referred to Tate's misdemeanor record and said: That [the fact that Tate has past convictions and incarcerations for shoplifting, as well as probation violations] does not militate in your favor and it indicates to me however your good intentions are, you have some difficulty carrying it out when you are out from under the gun. And you haven't been impressed with the court's orders before. I think rehabilitation is going to require that you serve a substantial period of time in order to drive home to you that people are not going to put up with this. I think isolation is necessary in order to establish that fact. I don't know whether what I do to you will deter anybody else that's similarly inclined, but I hope it'll deter you because from now on you're going to be looking at very substantial sentences if you can't keep your hands off other people's property. The community condemnation for this is high. People expect you to keep your hands off of their property just as you have a right to expect they'll keep their hands off of yours. I can't see too many mitigating circumstances in this except your age [27]. You've made commitments before when you got out of school and got your — or got out of the service you were going to get your G.E.D. and be a — go on to be a geologist. Now, you're looking forward to marriage and a job and you're going to have to be able to raise your family without do — getting the money through this means. And you really haven't got an awful lot of wherewithal to do it. You're going to need some specialized training. And I think part of that training is to drive home to you the fact that nobody's going to put up with this. That being the fact, I think a substantial period of probation is in order. It'll be the judgment of the court that you be committed to the custody of the Commissioner of Health and Social Services for a period of five years and that three years of that sentence will be suspended. You've already spent 84 days in jail and you're entitled to the credit for the time served. But it is the intention of the court that you serve more than the time recommended by the Department of Corrections and substantially more than recommended by your attorney. DISCUSSION Tate bases his appeal on our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981) where we said: Normally a first [felony] offender should receive a more favorable sentence than the presumptive sentence for second offender. It is clear this rule should be violated only in an exceptional case. This appeal therefore presents a single issue. Does an extensive misdemeanor record, covering a period of two years and highlighted by four shoplifting convictions, and multiple probation revocations, constitute the kind of exceptional case that would warrant a sentence for a first felony offender convicted of a property crime that exceeds the presumptive term for a second felony offender? We conclude that it does not. We believe this case is governed by Brezenoff v. State, 658 P.2d 1359 (Alaska App. 1983). But see Mathison v. State, 687 P.2d 930, 931 (Alaska App. 1984), and Hansen v. State, 657 P.2d 862, 863-64 (Alaska App. 1983). In Brezenoff we interpreted the Austin rule as holding that a first felony offender must receive a more favorable sentence than he or she would have received as a second felony offender committing the same crime under the same circumstances. Brezenoff v. State, 658 P.2d at 1362. We emphasized that our *539 primary focus would be on the term of imprisonment the offender was required to serve, giving secondary consideration to any suspended sentence. Thus we said: Where the total sentence received by a first offender exceeds the presumptive sentence for a second offender but the period of actual imprisonment is substantially less, we will conclude that the total sentence meets the Austin requirement of a substantially more favorable sentence for the first offender. [Citation omitted.] Where, however, the actual period of imprisonment equals or exceeds the presumptive term for a second offender, we will require [a finding of] aggravating factors [AS 12.55.155(c)] or [a finding of] extraordinary circumstances [AS 12.55.165-.175] to justify additional time even if it is suspended. [Citation omitted.] 658 P.2d at 1362 (footnote omitted). Tate received a period of actual imprisonment equal to the presumptive term for a second felony offender convicted of a class C felony. In addition, he received suspended time. In order to affirm this sentence, and to ensure that Tate received a more favorable sentence than he would have received as a second felony offender committing the same crime under the same circumstances, Brezenoff and Austin require the presence of aggravating factors or extraordinary circumstances in the record. Such aggravating factors or extraordinary circumstances are not present. In evaluating the sentencing record in Austin, the trial court found no specific aggravating factors, nor did we. While our discussion of Austin's record and the circumstances of his offense did not explicitly make this point, our subsequent cases make it clear that we viewed Austin's case as one that, had Austin been a second felony offender, would have justified referral to a three-judge panel for consideration of imposition of a sentence in excess of the two-year presumptive term for a class C felony. See Bolhouse v. State, 687 P.2d 1166, 1174 (Alaska App. 1984); Peetook v. State, 655 P.2d 1308, 1310-11 (Alaska App. 1982); AS 12.55.165-.175 (establishing standards for referral to three-judge panel). We noted that Austin's joyriding crime was aggravated by his attempt to elude the police, resulting in a collision and damage to three vehicles, including the stolen car. See AS 12.55.155(c)(10) (conduct among the most serious contemplated within the definition of the offense). More significant in our view, however, was Austin's extensive juvenile record. As we said: The most important factor which supports the sentence which was imposed [three years] is the extensive juvenile record of the defendant. Austin was only eighteen at the time of this incident and had not been convicted of a felony as an adult, but he had a long juvenile record which started in 1968 when he was seven years old. The presentence report outlines constant and numerous offenses and probation violations. Also, the report, in its evaluation of Austin, was concerned with the "almost continuous" nature in which offenses were committed. Many of these charges would have been felonies if the defendant had been an adult at the time of the offense. 627 P.2d at 658 (emphasis added; footnotes omitted). We elaborated on Austin's record as follows: Austin's record is so extensive and involved so many offenses that it is difficult to list them all. According to the presentence report, his record includes several burglaries and theft offenses. Significantly, Austin's record includes five different incidents of joyriding. Austin has been placed in various juvenile institutions and programs as a result of his juvenile offenses. Upon release, his pattern of behavior has been to commit additional offenses. The record also shows Austin was convicted of a charge of criminal trespass in the second degree while he was released pending sentencing on the current charge. 627 P.2d at 658 n. 3. Given Austin's virtually continuous course of criminal conduct from the age of *540 seven until his first felony conviction at eighteen, given his substantial period of incarceration in juvenile institutions, and given the fact that a number of his prior juvenile incidents would have constituted felonies had Austin been an adult, it would have been permissible to conclude that his case was among those contemplated in AS 12.55.165-.175 for referral to a three-judge panel. It was thus the kind of extraordinary case that would warrant a sentence for a first felony offender equal to or greater than the presumptive sentence for a second felony offender. In contrast, Tate's criminal record occupied a period of two years. It does not appear he had a juvenile record. None of Tate's offenses bordered on felony convictions. Significantly, prior to his instant conviction, Tate had never served a continuous period of incarceration in excess of thirty days. His total prior jail time for all his shoplifting offenses apparently accumulated to less than forty-five days' imprisonment. We do not mean to minimize the serious problem that offenders like Tate pose. Nevertheless, if we ignore Tate's record, it is arguable that the appropriate sentence for this case, a second degree burglary, might have been probation in combination with restitution. Leuch v. State, 633 P.2d 1006, 1014 n. 22 (Alaska 1981) (defining probation as a sentence of sixty days or less). Tate's misdemeanor record, given its continuous nature and the short period of time elapsing between his most recent offense and the instant offense, clearly warranted a sentence in excess of sixty days' incarceration. Nevertheless, Leuch teaches that the trial court should not impose substantial periods of imprisonment on someone who has not been subjected to lesser periods of imprisonment.[2] At the time of sentencing, Tate had already served eighty-nine days in jail. The trial court could certainly have concluded that additional time in jail was necessary to deter and rehabilitate Tate. A sentence of up to two years would not have been clearly mistaken. In addition, the trial court's concerns regarding Tate's amenability to rehabilitation after he completed his sentence of incarceration would have warranted suspended time. The record would not, in our view, however, warrant a total sentence for Tate in excess of two years including suspended time. Sears v. State, 653 P.2d 349 (Alaska App. 1982). A sentence of five years with three years suspended is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence of the superior court is VACATED and this case REMANDED for resentencing to a period not to exceed two years with one year suspended. NOTES [1] State v. Chaney, 477 P.2d 441 (Alaska 1970): (1) rehabilitation of the offender; (2) protection of society from future criminal conduct of the offender; (3) deterrence of the offender; (4) deterrence of members of society with tendencies towards similar criminal behavior; and (5) community condemnation or reaffirmation of societal norms for the purpose of maintaining respect for those norms. 477 P.2d at 444. [2] In State v. Graybill, 695 P.2d 725 (Alaska 1985), the supreme court affirmed a composite of consecutive sentences totalling seven years with five and one-half years suspended imposed on a misdemeanant convicted of twenty fish and game violations. Id. at 731. The defendant had a twenty-year record of fish and game violations spanning the years 1962 to 1982 and was on probation at the time he committed the twenty offenses for which he was sentenced. Graybill's relative maturity, the length of his criminal record and his established immunity from rehabilitation serve to distinguish Graybill's case from Tate's.

                                    COURT OF APPEALS                                        SECOND DISTRICT OF TEXAS                                                    FORT WORTH                                         NO. 2-08-278-CV   IN RE ANNA HARRIS                                                               RELATOR                                                                                                                                                       ------------                                     ORIGINAL PROCEEDING                                               ------------                                 MEMORANDUM OPINION[1]                                               ------------ The court has considered relator=s petition for writ of mandamus and is of the opinion that relief should be denied.  Accordingly, relator=s petition for writ of mandamus is denied. Relator shall pay all costs of this original proceeding, for which let execution issue.   PER CURIAM     PANEL A:  HOLMAN, GARDNER, and WALKER, JJ.   DELIVERED:  July 7, 2008     [1]See Tex. R. App. P. 47.4.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT TERRY STURGEON, SR., Appellant, v. STATE OF FLORIDA, Appellee. No. 4D18-3583 [March 21, 2019] Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barbara Anne McCarthy, Judge; L.T. Case No. 17-6391 CF10A. Terry S. Sturgeon, Sr., Madison, pro se. No appearance required for appellee. PER CURIAM. Affirmed. GERBER, C.J., WARNER and MAY, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 22, 2008 No. 07-13777 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 07-00951-CV-ORL-22-DAB EDWARD C. BRANCA, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (January 22, 2008) Before TJOFLAT, BLACK and MARCUS, Circuit Judges. PER CURIAM: Edward C. Branca, proceeding pro se, appeals the dismissal with prejudice of his complaint alleging the imposition of a fraudulent federal tax lien on his property, in violation of Fla. Stat. §§ 713.31(2)(b) and 713.901(4), and demanding relief in the form of a declaratory judgment cancelling the lien and awarding punitive damages in accordance with Fla. Stat. § 713.31(2)(b) & (c). Branca originally filed the complaint in the Circuit Court, Orange County, Florida, but the government removed the case, pursuant to 28 U.S.C. §§ 1441, 1442, and 1444, to the district court, where it was subsequently dismissed for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. On appeal, Branca argues that removal of the case was improper, and argues that the district court erred by dismissing the complaint for lack of subject-matter jurisdiction instead of remanding the case to the Orange County Circuit Court where it was originally filed. He also asserts that pursuant to the Declaratory Judgment Act, although federal courts are prohibited from granting declaratory relief with respect to federal taxes, Florida circuit courts retain the power to adjudicate his claim. We affirm. The United States may remove any case in which it is named a party to federal court. See 28 U.S.C. § 1442(a). Branca named the United States a party to the instant suit, citing 28 U.S.C. § 2410(a). “Any action brought under § 2410 of this title against the United States in any State court may be removed by the United States to the district court of the United States for the district and division in which 2 the action is pending.” 28 U.S.C. § 1444. In his complaint, Branca sought relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Notably, the Act prohibits federal courts from issuing declaratory judgments in federal tax cases, with certain exceptions not applicable here. See 28 U.S.C. § 2201(a) (excepting cases “with respect to Federal taxes” from Act’s coverage). Finally, under § 2410, Congress has waived the United States’ immunity from suit only to the extent of a procedural challenge, but not to a suit concerning the underlying merits of a tax assessment. Stoecklin v. United States, 943 F.2d 42, 43 (11th Cir. 1991). Because Congress has explicitly provided for removal to federal court for suits brought under § 2410, the district court did not err in removing the case to federal court. See 28 U.S.C. § 1444. The district court also did not err by dismissing, for lack of subject-matter jurisdiction, Branca’s claims challenging the underlying merits of his federal tax lien and seeking declaratory relief. See 28 U.S.C. § 2201(a). Finally, the district court did not err by finding that the United States had not waived sovereign immunity for suits challenging the underlying merits of a federal tax lien under § 2410. Thus, its dismissal, with prejudice, of the remaining portions of the suit was proper. We are unpersuaded by Branca’s other arguments. Accordingly, we affirm. AFFIRMED. 3 

Citation Nr: 1452647 Decision Date: 11/28/14 Archive Date: 12/02/14 DOCKET NO. 11-02 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1983 to September 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Wichita, Kansas, Medical and Regional Office Center (RO) which, in pertinent part, denied service connection for bilateral hearing loss. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issues on appeal (previously characterized as service connection for bilateral hearing loss) were previously remanded by the Board in April 2014 in order to provide the RO an opportunity to consider newly submitted evidence. For the reasons discussed in detail below, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that service connection for bilateral hearing loss is warranted as the claimed disability was incurred secondary to his in-service noise exposure. The accredited representative states that the Veteran was afforded an inadequate VA audiological evaluation in November 2009 and requests that the Veteran's appeal be remanded to the RO so that the Veteran could be afforded an additional VA audiological evaluation. See October 2014 Informal Hearing Presentation. In regard to the Veteran's left ear hearing loss disorder, the Board finds that the Veteran had a pre-existing left ear disability prior to entry into service in September 1983. Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2014). See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). In the April 1983 service entrance examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 10, 15, 10, 40, and 45, respectively, with an average puretone threshold of 24 decibels. In a subsequent January 1985 report of medical examination (physical examination), the in-service audiologist noted that the Veteran had decreased acuity in the left ear for approximately two to three years "before entry into service." Further, the in-service audiologist noted that puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 20, 20, 55, and 55 respectively, with an average puretone threshold of 33 decibels. As the Veteran had auditory threshold of two frequencies (3,000 and 4,000 Hertz) of 40 decibels or greater in the left ear at service entrance, the Board finds that he had a pre-existing left ear disability prior to entry into service. Thus, the presumption of sound condition at service entrance does not attach with respect to the Veteran's left ear, and his claim of entitlement to service connection for left ear hearing loss is one for aggravation. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304(b) (2014). See also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.306 (2014). The Veteran's service separation examination report in May 1991 reflects a decrease in left ear hearing acuity at 3000 and 4000 Hertz. Specifically, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 10, 20, 15, 55, and 60 respectively, with an average puretone threshold of 32 decibels. The Veteran was afforded a VA audiology examination in November 2009. The examiner diagnosed the Veteran with sensorineural left ear hearing loss. The examiner then opined that the Veteran's left ear hearing loss was less likely than not permanently aggravated by in-service acoustic trauma. In support of this opinion, the VA examiner reasoned that the Veteran's entrance examination in 1983 revealed a mild to moderately-severe hearing loss in the left ear at 3000- 6000 Hz. At service separation in 1991, the Veteran's left ear did not show "significant aggravation at 3000-6000 Hz." The Veteran reported recreational noise exposure of hunting prior to entering the service and reported that he was right handed and had greater noise exposure to his left ear. The examiner further stated that the Veteran's military occupational specialty (MOS) did not "concede acoustic trauma and he denies engaging in any combat." When evaluating his current degree of loss, the examiner noted that "one cannot rule out contributions from his current civilian occupation that requires participation in the hearing conservation program and aging." The Board finds the November 2009 VA medical opinion to be inadequate. Although the Veteran's MOS as a supply clerk may not necessarily "concede" acoustic trauma in service, the Veteran has consistently maintained, to include during the November 2009 VA examination, that he was exposed to gunfire and aircraft noise while in service. The Board finds that the VA examiner did not adequately consider the Veteran's statements regarding in-service noise exposure. Further, in March 2014, the Veteran submitted a lay statement from L.W., a retired Non-Commission Officer in Charge that served at the same time as the Veteran. L.W. stated that the facility where the Veteran was stationed was approximately 100 yards from the air strip where aircrafts took off and landed all day. The noise level was intense and regularly hurt the ears. L.W. noted that the men were given ear protection; however, due to the intensity of the noise, L.W. stated that they were not very helpful. The Board finds that the Veteran's statements and those made by L.W. to be credible. Accordingly, the Board finds that the Veteran was exposed to acoustic trauma in service. As the November 2009 VA examiner did not have an opportunity to view this evidence, the Board finds that a new VA examination is warranted. Further, the November 2009 VA examiner also discussed the Veteran's noise exposure prior to service and after service separation in support of the finding that the Veteran's hearing loss was not aggravated during service. This discussion by the VA examiner regarding pre-service and post-service noise exposure does not address the question of permanent worsening during service. Further, although the examiner stated that a shift of 15 decibels in 3000 and 4000 Hertz was not "significant aggravation," the Veteran is not required to show "significant" aggravation, but only a "permanent worsening beyond the natural progression of the condition." See 38 C.F.R. § 3.306. For these reasons, the Board finds that a new VA examination is required in order to assist in determining whether there is clear and unmistakable evidence that the Veteran's pre-existing left ear hearing loss disability was not aggravated beyond its natural progression during service. In regard to the Veteran's right ear hearing loss disorder, the Board finds that the Veteran did not have a pre-existing right ear hearing loss disability prior to entry into service. In the April 1983 service entrance examination, a right ear hearing loss disorder was not noted and puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 15, 5, 0 and 0, respectively, with an average puretone threshold of 5 decibels. See Hensley, 5 Vet. App. at 157. Accordingly, the presumption of sound condition at service entrance attaches with respect to the Veteran's right ear. The Veteran currently has a right ear hearing loss disability for VA compensation purposes. During the November 2009 VA examination report, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 25, 15, 25, 40 respectively, with an average puretone threshold of 25 decibels. As the Veteran's auditory threshold in the 4,000 Hertz frequency was 40 decibels, the Veteran meets the criteria for impaired hearing under 38 C.F.R. § 3.385. As noted above, the Veteran was afforded a VA examination in November 2009; however, the VA examiner only addressed the question of aggravation and did not opine as to whether the Veteran's right ear hearing loss was incurred in or was otherwise related to service. Accordingly, a new VA examination is warranted. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain any updated VA treatment records and should associate them with the record. 2. Then, schedule the Veteran for a VA audiological examination. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to completion of the examination. All necessary testing should be conducted. The examiner is asked to address the following: (a) Whether there is clear and unmistakable evidence that the Veteran's pre-existing left ear hearing loss disability was not aggravated beyond its natural progression from September 1983 to September 1991. The examiner should assume that the Veteran was exposed to acoustic trauma during service. Note: Aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right ear hearing loss disorder was incurred in or is otherwise related to service, to include the in-service acoustic trauma. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All examination findings, along with rationale for all opinions expressed, should be set forth in the examination report. 3. Then, readjudicate the issues on appeal. If the benefits sought remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).

311 F.2d 26 DAY-BRITE LIGHTING, INC., Plaintiff-Appellee,v.COMPCO CORPORATION, Defendant-Appellant.DAY-BRITE LIGHTING, INC., Plaintiff-Appellant,v.COMPCO CORPORATION, Defendant-Appellee. No. 13699. No. 13700. United States Court of Appeals Seventh Circuit. December 14, 1962. Rehearing Denied January 18, 1963. Owen J. Ooms, Malcolm S. Bradway, Ooms, Welsh & Bradway, Chicago, Ill., Frederick M. Woodruff, Gravely, Lieder & Woodruff, St. Louis, Mo., of counsel, for Day-Brite Lighting, Inc. Jerome F. Fallon, Timothy L. Tilton, Chicago, Ill., for Compco Corp. Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges. KNOCH, Circuit Judge. 1 Plaintiff, Day-Brite Lighting, Inc., brought suit against defendant, Compco Corporation, for infringement of plaintiff's design patent and unfair competition. 2 The District Judge found that the patent was invalid and not infringed. He found the defendant was guilty of unfair competition, granted an injunction and ordered an accounting for damages. The defendant appealed this latter part of the judgment. The plaintiff cross-appealed the finding of invalidity and non-infringement of the patent. 3 The design of the patent concerns reflectors in commercial fluorescent lighting fixtures. The fixtures here involved are of the "uplight" type; 48 inches long; made of a housing, a ballast (transformer), a reflector, sockets and wiring for long lighting tubes; all sold, not in component parts but as a unit, ready for ceiling installation. The reflector, sandwiched, as indicated, between the housing and the light tubes, has elongated slots to allow light from the tubes to be directed upward against the ceiling as well as down toward the floor. The fixtures may be positioned end to end in a continuous line. 4 This type of fixture, popular in the early 1950's and marketed by a number of companies, including plaintiff's, used cross ribs between the elongated slots, the housings and over-all fixtures being similar in general appearance and size. 5 In 1954, after complaints of warpage in the reflectors, which caused the porcelain reflective coatings to chip, plaintiff altered its design by extending the cross ribs down the sides of the U-shaped reflector. Although this also presented an attractive appearance, it served to strengthen the reflector. The changed design was embodied in fixtures which the plaintiff began selling in or about October, 1954. These are sold under the name "C F I-10." The new appearance of the plaintiff's fixtures was the subject of its Patent No. Des. 176,367, issued December 13, 1955, which plaintiff sought to enforce in this action. Styling is considered important in the industry and such styling does provide product identification which increases salability of products. 6 In 1955, Mitchell Manufacturing Company manufactured fixtures with reflectors under the names "Mitchell" and "Dynalite," which were almost exact copies of plaintiff's C F I-10 design. On or about December 31, 1955, the plaintiff gave notice of infringement to Cory Manufacturing Company, which had then acquired Mitchell Manufacturing Company and was advertising the reflectors. On or about March 9, 1956, defendant acquired certain of the Mitchell assets from Cory, and defendant then manufactured the Mitchell and Dynalite reflectors, using the same advertising and promotional literature put out by Mitchell and Cory. 7 On or about March 30, 1956, the plaintiff gave notice of infringement to the defendant. Defendant denied both infringement and the validity of the plaintiff's patent. Two of the plaintiff's other competitors who were offering reflectors having the overall appearance of C F I-10 entered into consent judgments holding the patent valid and infringed. Others discontinued manufacturing such reflectors on notice of infringement. 8 The District Judge held that plaintiff's patent was invalid. He specifically found that the function of the cross ribs was to strengthen against warp and twist, to minimize distortion due to the heat of the porcelain enameling process, and to prevent chipping of the finish after cooling; that the size, shape and length were dictated by the manufacturing process. He also found that had plaintiff's patent been valid, it would have been infringed by the defendant's reflectors. 9 The evidence of infringement presents no substantial issue. We must agree with the District Court that if the plaintiff's patent is valid, it is also infringed. 10 The evidence clearly indicates that the change of design as shown in the patent in suit arose out of a need to meet complaints of warping. While a choice of ribbing to meet the need was available, any particular choice had to be made from those types of ribbing which would be suitable to the functional requirement. The rib design had to be of a type to strengthen the reflector against warp and twist. The plaintiff's Manager of Tools and Dies, Bert A. Kaeppel, testified that the depth and shape of the ribbing was dictated by production requirements. He stated that drawing the ribs "too deep" or making the side of the ribs "much more nearly parallel" would create a "problem of tearing the metal." 11 A design patent covering mere functional configuration does not meet the standard of invention for a design patent. Spaulding v. Guardian Light Co., 7 Cir., 1959, 267 F.2d 111, 113, cert. den. 361 U.S. 883, 80 S.Ct. 154, 4 L.Ed.2d 119; Hopkins v. Waco Products, Inc., 7 Cir., 1953, 205 F.2d 221, 224. 12 The District Court's decision that the design of the cross ribs was functional and dictated by the limitations of the manufacturing process is fully supported by the evidence. The Trial Judge also had before him prior art which had not been considered by the Patent Office. The Abernathy Mechanical patent (No. 2,332,770, October 26, 1943), the only reference cited, does not show cross ribs. The prior art reflectors listed by the Trial Judge in his Finding of Fact No. 7 do show transverse ribs. Thus the presumption of validity otherwise attaching to a patent was weakened here. Senco Products, Inc. v. Fastener Corp., 7 Cir., 1959, 269 F.2d 33, 34, cert. den. 361 U.S. 932, 80 S.Ct. 370, 4 L.Ed.2d 353 (1960); Hobbs v. Wisconsin Power & Light Co., 7 Cir., 1957, 250 F.2d 100, 105, cert. den. 356 U.S. 932, 78 S.Ct. 774, 2 L.Ed.2d 762. 13 It is the plaintiff's contention that the Trial Court decided the question of validity purely on the premise that certain individual elements in the design were old, and failed to consider the "over-all appearance" with its subtle changes and arrangements of old lines and shapes. We cannot agree. 14 In Amerock Corporation v. Aubrey Hardware Mfg., Inc., 7 Cir., 1960, 275 F.2d 346, Chief Judge Hastings examined the entire line of decisions in this Court respecting design patents. At page 348 of that opinion, he said: 15 "It is settled beyond dispute that `[a] design patent, in order to be valid, must disclose a design that is new, original and ornamental, unanticipated and inventive in character, and beyond the skill of the ordinary designer or draftsman.'" [Citing cases.] 16 We are satisfied that the District Court applied the proper criteria and correctly found that the design patent in suit was invalid. 17 This brings us to the question of unfair competition. While the District Judge did not specifically find "secondary meaning" identifying the reflectors with the plaintiff as a source, he did find that the appearance of the C F I-10 has the capacity to identify the plaintiff in the trade and does, in fact, so identify the plaintiff to the trade. He found that concurrent sale of C F I-10 and Mitchell-Dynalite fixture reflectors was likely to cause confusion in the trade, and that actual confusion had occurred. Therefore, although he dismissed the Complaint insofar as patent infringement was concerned, he did find the defendant guilty of unfair competition. He granted an injunction against unfair competition by sale or attempted sale of reflectors identical with or confusingly similar to the C F I-10 or the Mitchell "Dynalite," and ordered an accounting for damages resulting from such unfair competition. 18 Defendant contends that confusion of purchasers is impossible because those who buy this type of comparatively expensive product (which is always shipped in clearly marked containers) are skilled, experienced and discriminating purchasers. However, the District Court did find confusion likely, and there is substantial evidence in the record to support that finding. We cannot characterize the finding as "clearly erroneous" and may not set it aside. Federal Rules of Civil Procedure, Rule 52. 19 The defendant argues that in the absence of a finding of either "secondary meaning" or "palming off," there can be no holding of unfair competition; that the essence of unfair competition is fraud. Defendant relies on statements in the opinion on petition for rehearing in Day-Brite Lighting, Inc. v. Sandee Mfg. Co., 7 Cir., 1961, 286 F.2d 596, 600, and similar expressions from this and other Circuits. In the Sandee case, the plaintiff in its petition for rehearing had sought clarification of the decision on the issue of unfair competition, the plaintiff having presumed that this Court intended to affirm the District Court on the issue of unfair competition, while holding that the patent in suit was invalid and not infringed. In clarification, the opinion on the petition for rehearing stated: 20 "We realize, of course, that a case of unfair competition may be made, separate and apart from that of infringement. In this case, however, we think the two issues were so closely allied that the former could not prevail in the absence of the latter and that holding the patent invalid and not infringed also disposed of the action for unfair competition adversely to plaintiff." 21 The opinion on petition for rehearing then cites Zangele & Peterson Co. v. Venice Furniture Novelty Mfg. Co., 7 Cir., 1943, 133 F.2d 266, 269; General Time Instruments Corp. v. United States Time Corp., 2 Cir., 1948, 165 F.2d 853, 854; and Sinko et al. v. Snow-Craggs Corp., 7 Cir., 1939, 105 F.2d 450, to the effect mere copying of the teaching of an invalid patent does not constitute unfair competition. This was the law in Illinois. It is not contested that Illinois law governs the case before us. 22 However, there has been a change in the law of Illinois on this subject, as analyzed by Judge Duffy in his opinion in Independent Nail & Packing Co. Inc. v. Stronghold Screw Products, Inc., 7 Cir., 1953, 205 F.2d 921. After stating the rule promulgated in earlier cases, Judge Duffy continues (at page 926): 23 "However, we think the rule announced in these cases is no longer the law of Illinois. 24 "In 1942 the Supreme Court of Illinois in Investors Syndicate of America, Inc. v. Edward J. Hughes, Secretary of State, 378 Ill. 413, at page 422, 38 N.E.2d 754, at page 759, stated, `Even in injunction cases between competing corporations the trend of decision is to place less emphasis on competition and more on confusion, as is evidenced by the following cases: (citing) "The test should be whether the public is likely to be deceived."'" 25 The defendant would limit the holding in Independent Nail to such "protectable" rights as trademarks. The plaintiff's reflectors, as found by the Trial Court, in findings supported by the evidence, do have the capacity to identify the plaintiff and do so identify the plaintiff in the trade. The capacity of the plaintiff's design to serve the plaintiff in somewhat the manner of a trademark does constitute a "protectable" right. 26 As noted, several choices of ribbing were apparently available to meet the functional needs of the product. The defendant did not avail itself of the other types but instead chose precisely the same design used by the plaintiff and followed it so closely as to make confusion likely. We are constrained to agree with Judge Duffy's statement in Radio Shack Corp. v. Radio Shack, 7 Cir., 1950, 180 F. 2d 200, 206, as cited with approval so recently as November 21, 1962, in Judge Hastings' opinion in G. Leblanc Corp. v. H. & A. Selmer, Inc., 310 F.2d 449: The essence of "unfair competition" is that it be unfair, that "in all cases of unfair competition, it is principles of old fashioned honesty which are controlling." 27 We have examined all the arguments advanced by both parties and have concluded that the judgment of the District Court must be affirmed. 28 Affirmed.

T.C. Memo. 2013-91 UNITED STATES TAX COURT TRAVIS C. TINNEY AND AMANDA A. TINNEY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 29009-10. Filed April 3, 2013. Travis C. Tinney, pro se. Randall B. Childs, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION MORRISON, Judge: The respondent issued a notice of deficiency determining a $72,105 deficiency in the petitioners’ federal income tax and a $14,421 accuracy-related penalty under section 6662(a) for the 2006 tax year. Unless otherwise indicated, all section references are to the Internal Revenue Code  -2- [*2] as in effect for the 2006 tax year. The respondent is referred to as the IRS. The petitioners are referred to as Travis Tinney and Amanda Tinney (collectively, Tinneys). After concessions by the parties,1 the issues for decision are: (1) whether the Tinneys failed to report $101,963 of gross receipts on Schedule C, Profit or Loss From Business; (2) whether the Tinneys are entitled to deduct $8,696 in Schedule C car and truck expenses disallowed in the notice of deficiency; (3) whether the Tinneys are entitled to $33,644 in miscellaneous itemized deductions claimed on Schedule A, Itemized Deductions, of their return; and (4) whether the Tinneys are liable for the accuracy-related penalty pursuant to section 6662(a). 1 The Tinneys reported $10 in gambling income on their return. The notice of deficiency determined that their gambling income was $2,250, resulting in an adjustment of $2,240. The Tinneys have conceded they had $2,250 in gambling income. The IRS has conceded that they are entitled to an itemized deduction for $2,250 in gambling expenses. This concession is reflected on page 41 of the transcript of the proceedings of February 10, 2012. The Tinneys also reported $42,466 in short-term capital gains. The notice of deficiency determined they had short-term capital gains of $154,842, resulting in an adjustment of $112,376. The IRS conceded this adjustment and agrees with the amount reported on the return.  -3- [*3] FINDINGS OF FACT Some facts have been deemed admitted under Tax Ct. R. Pract. & Proc. 91(f) and are so found. The Tinneys resided in Florida at the time the petition was filed. Travis Tinney was self-employed in the construction industry during 2006. Amanda Tinney, his wife, was a homemaker. The Tinneys filed a Form 1040, U.S. Individual Income Tax Return, for 2006. An accountant prepared the return, which included a Schedule C and a Schedule A. The Tinneys did not review the return before signing it. The adjustments in the notice of deficiency are summarized in the table below.  -4- [*4] Adjustments in the notice of deficiency (except computational adjustments) As reported on IRS Total after Item the return adjustments adjustments Gross receipts from Travis Tinney’s Schedule C business $24,100 $101,963 $126,063 Gambling income 10 2,240 2,250 Short-term capital gain 42,466 112,376 154,842 Car and truck expense deductions (total): 20,985 (8,696) 12,289 Mileage 14,560 (2,271) 12,289 Insurance 1,480 (1,480) -0- Repairs and maintenance 4,945 (4,945) -0- Schedule A “other expenses” 33,644 (33,644) -0- The case was tried in Tampa, Florida. OPINION One procedural matter requires attention before we proceed to the merits of this case. When the case was called for trial, Amanda Tinney did not appear, nor was there any appearance on her behalf. Travis Tinney did appear. As Travis Tinney had no authority to represent his wife, and there was no other appearance by her or on her behalf, the Court will, on its own motion, dismiss her from this  -5- [*5] case for lack of prosecution. A decision will be entered against Amanda Tinney for a deficiency and a penalty in the same amounts as those ultimately determined against Travis Tinney. The taxpayer generally bears the burden of proving by a preponderance of the evidence that the IRS’s determinations in the notice of deficiency are incorrect. Tax Ct. R. Pract. & Proc. 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Bronstein v. Commissioner, 138 T.C. 382, 384 (2012). Under section 7491(a), if the taxpayer produces credible evidence with respect to any factual issue relevant to ascertaining the taxpayer’s liability for tax and meets other requirements, the burden of proof rests on the IRS as to that factual issue. The Tinneys have not established their compliance with the requirements of section 7491(a). They bear the burden of proof with respect to the deficiency determined in the deficiency notice. See Tax Ct. R. Prac. & Proc. 142(a). 1. Whether the Tinneys failed to report $101,963 of Schedule C gross receipts The Tinneys attached a Schedule C to their 2006 return for Travis Tinney’s construction business Travis Tinney operated. They reported gross receipts of  -6- [*6] $24,100. The facts deemed established show that the Tinneys failed to report $101,963 in gross receipts.2 We hold that the Tinneys failed to report $101,963 in gross receipts for Travis Tinney’s construction business. 2. Whether the Tinneys are entitled to an $8,696 deduction for Schedule C car and truck expenses disallowed in the notice of deficiency On the Schedule C the Tinneys claimed deductions of $14,560 for car and truck expenses, $1,480 for insurance, and $4,945 for repairs and maintenance. These deductions--which total $20,985--related to an F-350 truck that Travis Tinney used for business purposes. According to the return, the $14,650 in the car 2 It has been deemed admitted that the bank deposits analysis the IRS performed showed that the Tinneys had unexplained bank deposits of $101,963 and that this amount should have been, but was not, reported as gross receipts. At the trial the Court told Travis Tinney that it would consider vacating its order deeming these facts established if it were shown that those facts should not be deemed admitted, but he did not challenge the accuracy of the deemed facts. If a taxpayer fails to keep adequate records, the IRS may reconstruct the taxpayer’s income by any reasonable method that clearly reflects income. See, e.g., sec. 446(b); Holland v. United States, 348 U.S. 121, 130-132 (1954). One acceptable method is the bank deposits method. Clayton v. Commissioner, 102 T.C. 632, 645 (1994); DiLeo v. Commissioner, 96 T.C. 858, 867 (1991), aff’d, 959 F.2d 16 (2d Cir. 1992); Bevan v. Commissioner, T.C. Memo. 1971-312, aff’d, 472 F.2d 1381 (6th Cir. 1973). This method assumes that if a taxpayer is engaged in an income-producing activity and makes deposits to bank accounts, then those deposits, less amounts identified as nonincome items, constitute taxable income. See Clayton v. Commissioner, 102 T.C. at 645-646. The record is devoid of any books or records of the receipts and expenses of Travis Tinney’s construction business.  -7- [*7] and truck category was equal to 32,720 miles multiplied by a business use percentage of 100%, multiplied by a standard mileage rate of 0.445 dollars per mile. The notice of deficiency allowed only a $12,289 deduction for the expenses for the F-350 truck, which was calculated using the mileage method. Thus, the notice of deficiency disallowed $2,271 of the $14,560 deduction the Tinneys claimed in the car and truck category, it completely disallowed the $1,480 deduction claimed for insurance, and it completely disallowed the $4,945 deduction claimed for repairs and maintenance. The total disallowance was $8,696 (= $2,271 + $1,480 + $4,945). The Tinneys presented no documentary evidence or testimony regarding the disallowed F-350 truck expenses. Therefore they have not met their burden of proof.3 We hold that they cannot deduct the $8,696 in disallowed expenses. 3. Whether the Tinneys are entitled to $33,644 in Schedule A miscellaneous itemized deductions claimed on their return On their Schedule A, the Tinneys entered $33,644 as “other expenses” under miscellaneous itemized deductions. A statement attached to the Schedule A gave the following details: 3 Truck expenses are subject to the strict substantiation requirements of sec. 274(d). See sec. 1.274-5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985). The Tinneys have failed to satisfy their burden of proof even without considering the effect of the strict substantiation requirements.  -8- [*8] Description Amount Seminars, travel & lodging $15,120 Mileage--land investments 8,010 Legal fees--land investments 1,100 Listing fees--land investmen [sic] 150 Telephone--land investments 1,822 Fax line--land investments 105 Internet--land investments 390 Postage--land investments 756 Hometown remodelers 4,457 Parking 8 Tolls 281 Marketing--land investments 1,167 Advertising 278 Total 33,644 At trial Travis Tinney testified that the $33,644 was the total expense of repairing and rehabilitating rental properties that the Tinneys owned. One of these properties, Travis Tinney testified, was 1315 Florida Avenue in St. Cloud, Florida.4 He introduced no documents to support the deductibility of the $33,644 in expenses. 4 The income and expenses from rental properties are required to be reported on Schedule E, Supplemental Income and Loss, see Form 1040, line 17, but no Schedule E was attached to the Tinneys’ Form 1040.  -9- [*9] To the extent the $33,644 constitutes travel expenses, no deduction is available because there is no evidence corroborating Travis Tinney’s testimony. See sec. 274(d). As for the nontravel expenses, there is insufficient information on which to base an estimate of any deductible amount. Therefore, no deduction can be allowed for nontravel expenses. See Williams v. United States, 245 F.2d 559, 560 (5th Cir. 1957); Vanicek v. Commissioner, 85 T.C. 731,742-743 (1985). 4. Whether the Tinneys are liable for the accuracy-related penalty pursuant to section 6662(a) The IRS determined that the Tinneys are liable for an accuracy-related penalty pursuant to section 6662(a) and (b)(1) and (2) for negligence or substantial understatement of income tax. The IRS bears the burden of production with respect to this penalty. See sec. 7491(c). To meet this burden, the IRS must produce evidence establishing that it is appropriate to impose this penalty. Once the IRS has done so, the burden of proof is upon the Tinneys. See Higbee v. Commissioner, 116 T.C. 438, 449 (2001). Negligence includes a failure to make a reasonable attempt to comply with internal revenue laws or to exercise ordinary and reasonable care in preparing a tax return. See sec. 6662(c); sec. 1.6662- 3(b)(1), Income Tax Regs. Negligence also includes the failure to keep adequate books and records or substantiate items properly. See sec. 1.6662-3(b)(1), Income  - 10 - [*10] Tax Regs. The Tinneys did not maintain adequate records of the disputed items, and they did not review the return before filing it. The IRS has carried its burden of production with respect to the section 6662(a) penalty for negligence. For the same reasons we conclude (1) there was no reasonable cause for the underpayment and (2) the Tinneys did not act in good faith. See sec. 6664(c)(1) (the accuracy-related penalty does not apply with respect to any underpayment for which it is shown that the taxpayer has reasonable cause and acted in good faith). We hold that the Tinneys are liable for a section 6662(a) penalty for negligence. To reflect the foregoing, Decision will be entered under Rule 155 with respect to Travis C. Tinney, and an appropriate order and decision will be entered with respect to Amanda A. Tinney. 

495 S.W.2d 20 (1973) William W. CRAIN, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the CITY OF FORT WORTH, Appellee. No. 17403. Court of Civil Appeals of Texas, Fort Worth. April 27, 1973. Rehearing Denied May 25, 1973. *22 Farrar & Claunch, and Jim Claunch, Fort Worth, for appellant. S. G. Johndroe, Jr., City Atty., and Ted Gorski, Jr., Asst. City Atty., Fort Worth, for appellee. OPINION MASSEY, Chief Justice. William W. Crain brought suit, as plaintiff, for an injunction against threatened action by the defendant Commission removing his name as the first of the three on the July 17, 1972 eligibility list for the position of District Fire Chief in the Fire Department of the City of Fort Worth. Such eligibility list will expire and become of no effect on July 17, 1973; therefore the injunctive relief sought would only be effective until such date were it obtained. Upon hearing of the application for temporary injunction relief was denied. Plaintiff has appealed. Reversed and remanded with instructions. Vernon's Ann.Tex.Civ.St. Title 28, "Cities, Towns and Villages", Chapter 22, "Civil Service", Art. 1269m, "Firemen's and Policemen's Civil Service in cities over 10,000", has full application to the circumstances which served as a predicate for the instant litigation. Thereunder, Sec. 10, "Method of filling positions" provides that when a vacancy occurs in the Fire Department of a city (including the City of Fort Worth) the Fire Chief or head of the Fire Department shall request from the Firemen's and Policemen's Civil Service Commission the names of the three persons having the highest grades on the "eligibility list" for the particular vacancy. To fill the vacancy the appointment is directed to be the person thereon having the highest grade, except for valid reason(s) to be stated in writing delivered to the Commission with copy to such person having the highest grade. There is like provision in the case of appointment of the third person on the list, so that the Commission and the first and second persons shall be on notice. Section 14 of the aforesaid Article provides relative to "Promotions; filling vacancies" that the Commission shall make rules and regulations governing promotions and shall hold promotional examinations to provide eligibility lists for each classification, which are directed to be held substantially under requirements stated. Noted among these is "A", that a fireman who has held a continuous position for two (2) years or more in the classification immediately below that for the purposes an examination is to be held is eligible for the examination for promotion to the next higher position "eligibility list"; "D", that the examination for a particular position "eligibility list" shall be given to all qualified applicants, in writing with "all of said questions shall be based upon material which has been made available to all members of the Fire or Police Department involved and shall be based upon the duties of the position sought and upon any study courses given by such Departmental Schools of Instruction and upon the applicant's efficiency." Section 14 also provides for the method of computing grades, and that any applicant who desires to do so is entitled to remain present during the grading—to take place immediately following the completion of the examination. Impliedly, at least, the "eligibility list" is provided to be established immediately upon the completion of the examination and grading of the examination papers of all applicants for a particular position. Indeed this is what occurred in the instant case for on July 17, 1972, the day the examination was taken by all the applicants for the position of District Fire Chief, such "eligibility list" was established and posted. Thereon plaintiff William W. Crain was denominated the applicant having the highest grade, with the position of No. 1 on the list. Section 14 further provides as follows: "Each applicant shall have the opportunity *23 to examine his examination and his answers thereto together with the grading thereof and if dissatisfied shall, within five (5) days, appeal the same to the Commission for review in accordance with the provisions of this Act...." The only part of the Act relative to the matter of review on appeal is that in Section 17, "Procedure before commission", which actually contemplates only an appeal from a suspension from duty, etc., or in any event instances where there is requirement for the filing, within ten (10) days, a statement denying the truth of the charge as made, or taking exception to the legal sufficiency of such charge and asking for a hearing by the Commission. Section 18, "Appeal to district court" has application to appeal by one who is dissatisfied with a decision of the Commission, providing that such a person may, within ten (10) days after the rendition of the decision of the Commission file a petition in the District Court attacking the Commission's order. By Sections 10 and 14 it is necessarily implied that there be notice of some character to the Commission by one aggrieved or dissatisfied with the examination, or its results. Such a person could not appeal within five days unless there was notice of some character relative thereto. In municipal administrative matters compliance with any applicable requisite need not meet the formalities of procedure in the courts of law. Nevertheless, when a formal purpose is involved, such as that necessarily incident to any appeal, mere knowledge that a person was dissatisfied would not suffice to produce an appeal. In order that there might be an appeal, there must be something further by way of notice brought home to the administrative agency, or to the Commission, that he who was dissatisfied desired to be heard by way of appeal. This is especially true when there is a provision by way of limitation of the time within which any appeal should be taken. On this see generally Merrill on Notice, Sections 509 to 519, inclusive. That the person whose name appears first on the "eligibility list" for a position such as that of District Fire Chief is possessed of an equitable property right is the underlying principle of a prior decision of this court. Bostick v. Owens, 423 S.W. 2d 471 (Fort Worth Civ.App., 1968, writ ref., n. r. e.). That same thing would be true as applied to one whose name appeared first on such an "eligibility list" in an instance where there was action or threatened action which would change such list so he would be reduced to any lower position. Though profit to him be contingent upon some event which might happen or not its character as a property right would continue. This is what occurred in the instant case. The examination of July 17, 1972, was followed by a posting of the "eligibility list", upon which the plaintiff's name was that first appearing. Although by other persons taking the examination there were questions asked concerning certain questions posed upon the examination for District Fire Chief relative to authority for the presence upon the examination of particular questions, in no case was there any appeal within the ensuing five day period by anyone considering himself aggrieved. Therefore, the relative positions of those who obtained on such "eligibility list" was fixed and legally established after the expiration of five days from July 17, 1972. Pursuant to an appeal by a person who had taken another examination on a different date for another and different position in the Fire Department it was discovered not only as applied to such other examination, but also as applied to the examination for the position of District Fire Chief, that (as applied to the latter examination) there had been five questions asked, requiring answers or attempted answers, which were not based upon material which had been made available to all members of the Fire Department involved. It was shown that by reason of such discovery, at a date over one *24 month subsequent to July 17, 1972, that the Commission had directed action to be taken which, if consummated, would delete such five questions and answers as matter to be considered in establishing a proper "eligibility list" and in consequence of such deletion would change the grades of those who had taken the examination so that the plaintiff's name would be removed from its No. 1 position and he would be given the No. 3 position on a newly promulgated "eligibility list". Note should be taken that Section 14 of Art. 1269m directs that all questions given on an examination should be upon material made available to all members of the department involved. Hence the occasion for plaintiff's suit. He seeks to preserve an equitable property right which, as above indicated, existed as a matter of law. Furthermore, since there was want of any appeal which could have and probably would have cost plaintiff his place as No. 1 on the "eligibility list", such property right existed at the time of the hearing on temporary injunction in the trial court. Since the proceeding was one in equity there might be the question of plaintiff's want of "clean hands", or the possibility that he would have an adequate remedy at law, etc., so that the trial court would be justified in a denial of the equitable relief prayed for, but by the record all these are obviated and the circumstances presented show that the "status quo", ordinarily to be preserved on temporary injunction was that wherein plaintiff stood with his equitable property right unimpaired, albeit threatened by the action of the Commission of the City of Fort Worth. In such circumstances we hold that it amounted to an abuse of discretion for the trial court to refuse to grant a writ of temporary injunction. Therefore the order of this court will be one which grants such character of relief for the requisite period. Preliminary to our discussion of the reasons for our holding we will direct our attention to the matter of parties. Those persons who would enjoy places No. 1 and No. 2 if a new "eligibility list" should be promulgated would, of course, be necessary and indispensible parties on a hearing for permanent injunction. But it has been held that a person with rights needing preserving pending final trial need not join all necessary parties before he can obtain interim orders, as, for example, a writ of temporary injunction. 31 Tex.Jur.2d, p. 230, "Injunctions", Sec. 120, "Defendants", in Annotations: Littlejohn v. Finder, 348 S.W.2d 237 (San Antonio Civ.App., 1961, no writ hist.); Temple Independent School Dist. v. Proctor, 97 S.W.2d 1047, 1051 (Austin Civ.App., 1936, error refused). In the cases cited there had been grants of temporary injunction and propriety of the grants was the subject of both appeals. Here there had been a denial of temporary injunction and such denial is the subject of attack. We perceive no distinction to be made in the law by reason of such differentiation. On the merits of the petition for writ of injunction it is noticed in 4 Pomeroy's Equity Jurisprudence, 5th Ed., p. 935, "Injunctions in General", Sec. 1338, "Fundamental Principle" it is stated, as follows: "The general principle may be stated as follows: Wherever a right exists or is created, by contract, by the ownership of property or otherwise, cognizable by law, a violation of that right will be prohibited, unless there are other considerations of policy or expediency which forbid a resort to this prohibitive remedy. The restraining power of equity extends, therefore, through the whole range of rights and duties which are recognized by the law, and would be applied to every case of intended violation, were it not for certain reasons of expediency and policy which control and limit its exercise ...." In Section 1339, "Generally" succeeding that from which Pomeroy's language is quoted, it is furthermore stated, as follows: "... Since the estate, interest, or claim of the complainant is purely *25 equitable, it is exclusively cognizable by equity; and if its existence is shown, a court of equity not only has the jurisdiction, but is bound to grant every kind of remedy necessary to its complete establishment, protection, and enforcement according to its essential nature...." By our holding as a matter of law that plaintiff possessed a vested equitable property right as a consequence of the first "eligibility list", coupled with additional holding, also as a matter of law, that such property right persisted in view of the finality of the standings on such list because there had been no appeal taken within five days from July 17, 1972, the case presents itself as one in which no material fact is disputed. Therefore the case is one where as a matter of law there will be violation of the plaintiff's undoubted legal right unless the order of the court prohibit that violation, while at the same time no equitable reason is existent which would entitle the court to withhold it; where plaintiff's right is clear and he has complied with all the requirements of law for the issuance of an injunction. In these circumstances he is entitled to the injunction as a matter of right, and it is the duty of the appellate court to reverse the trial court's action if it be in denial of the right. 31 Tex.Jur.2d, p. 88, "Injunctions", Sec. 36, "Where facts are undisputed". Though a trial court may ordinarily exercise a broad discretion in granting or refusing a temporary injunction the failure or refusal of the court to apply the law to undisputed or established facts constitutes an abuse of discretion. Costello v. Hillcrest State Bank of University Park, 380 S.W.2d 780 (Dallas Civ.App., 1964, no writ hist.). The author prefers the statement: "... the trial court's discretion is not unlimited and does not extend to the erroneous application of the law to undisputed facts", appearing in Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935). Chief Justice Calvert, discussing such case and others by the Supreme Court indicated preference for the "abuse of discretion" term in an interesting discussion of the legal principle involved. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). In accord with the legal principle regardless of the manner by which it is stated, are other cases including the following: City of Waco v. Marstaller, 271 S.W.2d 722 (Waco Civ.App., 1954, no writ hist.); Falkner v. Memorial Gardens Association, 298 S.W.2d 934, 943 (Austin Civ. App., 1957, writ ref., n. r. e.); City of Houston v. Memorial Bend Utility Company, 331 S.W.2d 418, 422 (Houston Civ.App., 1960, writ ref., n. r. e.); and John L. Bramlet & Company v. Hunt, 371 S.W.2d 787 (Dallas Civ.App., 1963, writ ref., n. r. e.). The judgment of the trial court is reversed and the cause remanded to that court with instructions to grant the temporary injunction, to continue through July 17, 1973, upon the execution by plaintiff William W. Crain of an injunction bond in an amount to be set by the court.

985 F.2d 552 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Pablo CARPIO-REYES, Petitioner,v.UNITED STATES, Respondent. No. 92-1831. United States Court of Appeals,First Circuit. December 8, 1992 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Pablo Carpio-Reyes on brief pro se. Daniel F. Lopez-Romo, United States Attorney, Edwin O. Vazquez, Assistant United States Attorney, and Jose A. Quiles-Espinosa on Motion for Summary Disposition and Memorandum of Law in Support. D.Puerto Rico. AFFIRMED. Before Breyer, Chief Judge, Torruella and Cyr, Circuit Judges. Per Curiam. 1 In view of the Supreme Court's recent decision in United States v. Wilson, 112 S.Ct. 1351 (1992), which concluded that it is the Attorney General-and not the court-who decides whether time spent in detention will be credited towards a sentence, the district court properly denied appellant's motion for credit for time spent on bond. 2 Affirmed.

733 F.Supp. 14 (1990) In the Matter of the Complaint of The CONNECTICUT NATIONAL BANK, Trustee, as Owner; General Electric Credit Corporation, as Sole Beneficiary of Grantor Trust; 660 Leasing Company, as Bareboat Charterer; Connecticut Transport, Inc., as Owner pro hac vice and Bareboat Subcharterer of S/S OMI YUKON, for Exoneration from or Limitation of Liability, Plaintiffs. HAWAIIAN INDEPENDENT REFINERY, INC., and Pacific Resources, Inc., Claimants and Third-Party Plaintiffs, v. OMI CORP., Third-Party Defendant. OMI CORP., Third-Party Defendant and Fourth-Party Plaintiff, and The Connecticut National Bank, et al., Plaintiffs and Fourth-Party Defendants, v. CALEB BRETT U.S.A. INC., Fourth-Party Defendant. No. 86 Civ. 8358 (RLC). United States District Court, S.D. New York. March 16, 1990. *15 Livingston & Weiss, P.C., San Francisco, Cal., for claimant Duffy; William E. Weiss, of counsel. William M. Kimball, New York City, for plaintiffs and third-party defendant, Connecticut National Bank, et al. and OMI Corp. Freehill Hogan & Mahar, New York City, for fourth-party plaintiff; John J. Walsh, of counsel. Cadwalader Wickersham & Taft, New York City, for claimants and third-party plaintiffs; Hawaiian Independent Refinery and Pacific Resources, Inc.; William L. Busch, Theodore A. Ulrich, of counsel. ROBERT L. CARTER, District Judge. On October 25, 1986, the S/S OMI YUKON commenced a voyage from Barber's Point, Hawaii en route to Pusan, Korea. On October 28, 1986, explosions and fires on the vessel killed four crew members and injured others. After being towed to Japan, the vessel was declared a constructive total loss. The vessel was owned by the Connecticut National Bank ("CNB") as trustee for General Electric Credit Corp. ("GECC"), both Connecticut corporations, bareboat chartered to 660 Leasing Corp. ("Leasing"), a Pennsylvania corporation, and sub-bareboat chartered to Connecticut Transport, Inc. ("CTI"), a New York corporation. The above party plaintiffs commenced this proceeding pursuant to 46 U.S. C.App. § 183 (1958 & Supp.1989) seeking exoneration from, and limitation of, liability for the disaster. Plaintiffs have asserted claims against Hawaiian Independent Refinery, Inc. ("HIF") and Pacific Resources, Inc. ("PRI") for contribution and independent liability. In due course, some 18 personal injury and death claimants filed claims and answers, as have HIRI, PRI and Caleb Brett. All of the personal injury and death claims have been settled, except the claim of Louanna Duffy, individually and as the personal representative of the estate of James W. Duffy, deceased, a former member of the OMI Yukon crew who was killed by the explosion on October 28, 1986. The Duffy claim under the Death on the High Seas Act, 46 U.S.C.App. § 761 et seq. (1958), was tried to the court on December 18, 1989. The decedent, a qualified member of the engine department ("QMED") was 52 years old at the time of his death, with a life expectancy of 23.4 years[1] and a work life expectancy of 10.8[2] years. He married in 1963, and the surviving spouse was 67 years of age at the time of trial and in retirement since February, 1987, from employment with the Navy. The decedent earned $25,418 in 1980; $30,423 in 1981; $44,298 in 1982; $64,525 in 1983; $64,727 in 1984; $17,092 in 1985; and $17,550 in 1986. The low earnings in 1985 and 1986 were the result of his being required to stay home to take care of his wife who had broken her hip in 1985, requiring a hip replacement and two hip operations. In addition, Duffy's invalid mother-in-law required care as well. During the periods when the decedent was employed, he worked 7 days a week 12 hours a day. When steadily employed his schedule was 56 days at sea and 6 days at home. During his periods at home, he cooked and cleaned when his wife worked, did all the electrical work, trimmed hedges, did necessary painting and repaired all the appliances. The Duffys have no children. Louanna Duffy testified as to the above facts which have not been controverted. In support of the claim an economist, Richard A. Palfin, with a Ph.D degree from the University of Hawaii testified to support a claim for damages in the sum of $586,825. *16 Dr. Palfin is the chief economist for Legal Economics Evaluations, Inc. which he characterized as "the nation's largest consulting firm specializing in litigation-type economics. ..." (T. 34). There was no other testimony. My problem with Dr. Palfin's testimony is that he used abstract figures without reference to the actuality of the Duffy's situation. He calculated the decedent's household services based on information supplied by the United States Department of Agriculture for all males in a 1982 publication "Family Economics Review" (T. 80), and without reference to information on the subject supplied by the widow. The approach to damages in situations such as this is pursuant to an oversimplified formula, but one which seeks to determine what the decedent's earning would have been had he survived in good health, multiplied by decedent's work life expectancy with the resultant dollar figure arrived at, then discounted to the present value. In this case an additional element of damages is an award for loss of services. The decedent performed services— painting, repairing appliances, doing electrical work—which the widow must now pay for. There were no funeral service expenses, and no damages for loss of nurture and guidance since there were no children. While Mrs. Duffy is entitled to the benefit of any inheritance from her husband, no claim for such has been made, other than for loss of income and services since decedent's death. Decedent has made a claim for pain and suffering. Although the court is sympathetic to that claim, the controlling case law appears to deny such recovery under the circumstances of decedent's death. Great Northern R.R. Co. v. Capital Trust Co., 242 U.S. 144, 147, 37 S.Ct. 41, 42, 61 L.Ed. 208 (1916); St. Louis-Iron Mountain R.R. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 705, 59 L.Ed. 1160 (1915). The explosion which caused Duffy's death occurred in the engine room and according to the National Transportation Safety Board it is clear that explosion forces removed the top of the engine room casing ... Unfortunately, the time sequence of the explosion(s) manifestations could not be unequivocally determined from surveys after the accident or from the testimony of witnesses. However, it is clear that multiple explosions (up to three) occurred. Testimony of various crew members described the first explosion as a rumbling sound low in the engine room similar to the sensation of the vessel running aground. Another crew member described it as a "whoom" rather than a sharp explosion. The "rumbling" description is postulated to be the result of the flame/explosion propagating through the starboard fuel oil storage tank from aft to forward. The first step in this process is postulated to have been the ignition of vapors venting from the aft vent on the starboard fuel oil storage tank. Second, the flame propagated back through the vent which did not have a flame screen into the space above the fuel oil. Inside the storage tank in the immediate vicinity of the vent, the fuel oil vapors were quite lean leading to the rumbling or pressure build-up phase as the combustible mixture undergoes a low order explosion that propagates forward into a volume containing a richer hydrocarbon mixture. The flame propagation would simultaneously develop more vapors and more energy as it progresses forward. The progression of the flame from aft to forward in the starboard oil storage tank would have led to an increasing pressure build-up that rapidly exceeded the capacity of the two vents, and an explosion would have occurred which could be characterized as a rumbling sound and a `whoom' as the tank structure failed and vented into the engine room. Report of the National Transportation Safety Board, Claimant Duffy's Ex. 7, at 44. In order to recover for pain and suffering there must be evidence that the decedent was actually conscious between the time of his injury and death. Absent such evidence an award for pain and suffering is *17 inappropriate. The Corsair, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727 (1892). There is no necessity for eyewitness testimony to validate an award for pain and suffering, Petition of United States Steel Corp., 436 F.2d 1256, 1275 (6th Cir.), cert. denied, 402 U.S. 987, 91 S.Ct. 1660, 29 L.Ed.2d 153 (1970), but there were survivors to describe the "rumbling sound" and a "whoom" which preceded the explosion and inflammation that destroyed the engine room and caused the decedent's death. Nor do the cases require any particular period of consciousness in order to validate an award for pain and suffering. Stissi v. Interstate & Ocean Transport Co., 590 F.Supp. 1043, 1048-49 (E.D.N.Y.1984), rev'd in part on other grounds, 765 F.2d 370 (2d Cir.1985) (an award for pain and suffering prior to cardiopulmonary arrest due to drowning was allowed). In Cook v. Ross Island Sand and Gravel Co., 626 F.2d 746, 750-752 (9th Cir.1980), an award for pain and suffering was allowed on testimony of a medical expert who testified that since the autopsy produced no evidence of skull fracture, it was probable that the decedent in his fall into the Columbia River was conscious for up to two and one half minutes. There could have been a period of consciousness between the rumbling sound and the whoom before decedent was engulfed in flames, but it is also equally possible the pain and suffering could have been "substantially contemporaneous with death or mere incidents to it," Great Northern R.R. Co. v. Capital Trust Co., 242 U.S. 144, 37 S.Ct. 41, 61 L.Ed. 208 (1916); St. Louis-Iron Mountain R.R. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 705, 59 L.Ed. 1160 (1915), in which case there can be no award for pain and suffering. One can only surmise which scenario accurately fits this case, and since "instantaneous death is as acceptable as any other theory," recovery for conscious pain and suffering will not be allowed. Marine Sulphur Transport Corp., 1974 A.M.C. 1504, 1511 (S.D.N.Y.1974) (Cannella, J.). The decedent's earnings from 1980 show a steady rise, to 1984, but the years 1985 and 1986 are sharply down. The future earnings profile has been arrived at by utilizing an average of earnings for the six years preceding the accident. Candiano v. Moore-McCormack Lines, Inc., 251 F.Supp. 654, 660 (S.D.N.Y.1966) (Feinberg, J.). The formula was approved on appeal sub silentio, 382 F.2d 961 (2d Cir.1967), cert. denied, 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968). Although the holding was affirmed, I am not as confident as defendants appear to be that averaging the decedent's income for six years immediately prior to injury or death to determine future earnings is the rule of this circuit. In this area, the Court of Appeals appears to grant a great deal of discretion to the trial court. See e.g. Taliercio v. Compania Empressa Lineas Argentina, 761 F.2d 126, 129 (2d Cir.1985) (rate of prejudgment interest in the sound discretion of the trial court). The formula in the Sixth Circuit is "the higher of the year immediately preceding the [accident] or the average of four years preceding it," unless the single year was high for abnormal reasons. Petition of United States Steel Corp., 436 F.2d 1256, 1275 (6th Cir.1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1660, 29 L.Ed.2d 153 (1971). To utilize the decedent's earnings for 1985 and 1986 as part of the equation seems grossly unfair. His income for those two years was abnormally low because he spent much of the time at home, taking care of his wife and mother-in-law, both of whom were incapacitated. A fair measure of his future anticipated income flow is probably reflected in the 1983 and 1984 figures of $64,525 and $64,727, respectively. While defendants point out the loss of seamen's jobs in the shipping industry in the United States, this downward cycle was in progress in 1983 and 1984 when the decedent earned his highest salary. Mrs. Duffy testified that "shipping had gotten fairly bad on the west coast and we were going to move. We always moved according to shipping or he would go and ship out, but I had to retire so we ... I stayed living in San Francisco until I could retire." (T. 10) Further on she testified about living in the New York area and indicated that they moved to various locations *18 "[w]here the shipping was best at the time in his rating." (T. 11) However, a fairer measure would probably be an average of the four years of salary for 1981-1984 when the decedent earned $30,421, $44,298, $64,525 and $64,727. Those were the years of decedent's highest earnings, but except for family illness which kept him at home much of 1985 and 1986, it is fair to assume that his income for the last two years of his life would have been closer to the earnings reflected in 1981-1984, than to the 1980, 1985 or 1986 earnings. The average of decedent's 1981-1984 salary for those years is $50,993. Deductions of $7,506 for federal income taxes[3] and $3,619 for FICA[4] leave a net after tax income of $39,988. Defendants suggest that 50% be deducted from that figure to arrive at the sum available for the widow. They have support for this approach in a number of decisions of this court. See e.g. Petition of Marina Mercante Nicaraguense, S.A., 248 F.Supp. 15, 28 (S.D.N.Y. 1965) (Weinfeld, J.), modified on other grounds, 364 F.2d 118 (2d Cir.1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 710, 17 L.Ed.2d 544 (1967) (after deductions for personal expenses and taxes where beneficiaries are wife and four children, 81% of the remainder for family; wife and three children, 75% of the remainder for family, wife and one child, 66 2/3 %, and where wife is sole beneficiary, she is entitled to receive 50% of decedent's salary); NYE v. A/S D/S Svendborg, 358 F.Supp. 142, 153 (S.D. N.Y.1973) (Gurfein, J.) (same formula applied); In the matter of Marine Sulphur Transport Corporation, 1974 A.M.C. 1504 (S.D.N.Y.1974) (Cannella, J.) (formula applied). In Marine Sulphur Transport, Judge Cannella made no deductions for federal taxes where income was below $25,000. In United States v. English, 521 F.2d 63, 72 (9th Cir.1975), the court found a deduction of 30% which included personal expenses and taxes, with the remainder allocated to a family, appropriate. However, it should be pointed out that the beneficiaries were a widow and five children. Thus, that formula is akin to that utilized by Marina Mercante Nicaraguense and cognate cases in this court. In this case a 50% deduction to arrive at income available to the widow seems too high. Indeed, defendant seeks an additional 5% deduction from the net figure for personal expenses and then an additional 50% deduction to arrive at what is available for the widow. Decedent when employed full time was on a 56 days at sea and 6 days at home cycle. While at sea, no expenditures for food or travel were required, and with a home cycle of 6 days roughly six times a year, a deduction of approximately $10,000 for decedent's personal consumption and share of the common household seems adequate. Under these calculations approximately 52% of decedent's gross salary is available for the widow or $29,912 yearly. The total of that amount for 10.8 years[5] discounted at 2%[6] to arrive at the present value is $288,506.[7] In addition, the decedent's widow is entitled to $11,077 for loss of services.[8] This figure is arrived at on the basis of the 56 days at sea, 6 days at home a year. This *19 comes to an average of 33 days a year at home where he performed services—painting, repairing etc. Defendants seek a setoff of $20,000 which is a death benefit received by the widow from the union. There is nothing in the record to indicate that this benefit was in any way attributable to defendants. It comes from an entirely independent source and is therefore not available to defendants as a setoff. Haughton v. Blackships, Inc., 462 F.2d 788, 790 (5th Cir.1972) ("employer-tortfeasor not entitled to mitigate damages by setting off compensation received by employee from an independent source."); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir.1962) ("tortfeasor should not have benefit of payment to [decedent] which he did not make."). The claimant seeks the value of various fringe benefits to decedent as additional damages. There is nothing in the record to show that there were benefits the widow would have received. Indeed, there is nothing in the record to show what these benefits were. Claimant's economist uses a percentage derived from Department of Agriculture figures without more. I find that approach too vague for reliability. Hence the claim for fringe benefits is disallowed. Total recovery allowed claimant is $434,395. To recapitulate, damages allowed are broken down as indicted below. wages: $29,912 for 10.8 years discounted at 2% $288,506 services: 33 days per year at 8 hours per 11,077 day at $4.35 per hour for 10.8 years, discounted at 2% $299,583 ________ Interest at 12% from October 28, 1986 to January 26, 1990 (3.25 years) $134,812 ________ $434,395 IT IS SO ORDERED. NOTES [1] United States Life Tables, 1979-80. [2] Id. [3] This figure was arrived at by using the 1989 Tax Table, figured for married persons using the standard deduction of $5,800 (because widow is over 65) and exemption of $4,000. No deduction was made for state or local tax. There was no evidence in the record to warrant deduction for these taxes. Indeed, defendants made allowance for federal income taxes and FICA taxes only on their submissions. See Ex. A, HIRI and PRI's Memorandum of Law. [4] Figured using 1989 standards: 7.51% with a cutoff at $48,000. [5] 10.8 work life expectancy of decedent based on United States Life Tables, 1979-80. [6] In this circuit a 2% discount is suggested. Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 40 (2d Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 351 (1981); McCrann v. United States Lines, Inc., 803 F.2d 771, 775 (2d Cir.1986). [7] Decedent's net income available to widow after federal taxes, social security taxes and 25% personal consumption deducted for 10.8 years discounted at 2%. [8] I have calculated services of 8 hours per day at $4.35 per hour (minimum wage) for 10.8 years, discounted at 2%.

309 F.3d 1290 ESTATE OF Melvine B. ATKINSON, Deceased, Christopher J. MacQuarrie, Executor, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 01-16536. United States Court of Appeals, Eleventh Circuit. October 16, 2002. David DeCoursey Aughtry, Charles E. Hodges, II, Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, GA, for Petitioners-Appellants. Jonathan S. Cohen, Steven Parks, Anthony T. Sheehan, Dept. of Justice, App. Tax Div., Washington, DC, for Respondent-Appellee. Appeal from a Decision of the United States Tax Court. Before BIRCH and COX, Circuit Judges, and GEORGE*, District Judge. BIRCH, Circuit Judge: 1 In this tax appeal, we determine whether the failure of an estate to comply with tax regulations regarding annual disbursements from a charitable remainder annuity trust results in the complete denial of a charitable deduction, even when a substantial amount of money would flow to charity. The Tax Court held that no charitable deduction was allowable. Because the law is clear, we AFFIRM. I. BACKGROUND 2 Melvine B. Atkinson, an extraordinarily charitable woman, intended to create an estate plan that first provided for chosen beneficiaries for their lifetimes and then donated the remainder of the estate to several charitable organizations. On 9 August 1991, in pursuit of this goal, Atkinson signed a will and created two trusts: the Melvine B. Atkinson Charitable Remainder Annuity Trust ("the annuity trust") and the Melvine B. Atkinson Irrevocable Trust ("the administrative trust"). The annuity trust, funded with stock worth approximately $4 million, would provide a lifetime annuity of $200,000 to Atkinson and, at her death, would divide a similar annuity between four beneficiaries for the terms of their lives, provided that those beneficiaries agreed to pay their share of any estate taxes due at Atkinson's death. After the death of the last beneficiary, any amount remaining in the annuity trust would be donated to certain charitable groups. The administrative trust, funded with stock worth approximately $1 million, existed to pay the funeral expenses of Atkinson, any outstanding claims against her estate at the time of her death, and any applicable estate taxes. 3 The Tax Court found that no annuity payments were ever actually made to Atkinson from the assets of the annuity trust. The estate continues to claim that checks were sent to Atkinson, but that Atkinson saw no need to cash them because her material needs were amply met by non-trust assets. However, this claim is undercut by the fact that the estate produced no copies of these checks or the cover letters that supposedly accompanied the checks to Atkinson, nor did the annuity trust's ledger reflect any outgoing annuity payments to Atkinson during her lifetime. 4 Upon Atkinson's death, the non-charitable beneficiaries next in line to the annuity trust's assets were compelled to make an election. Either they could accept the annuity and pay their share of Atkinson's estate taxes according to the terms of the annuity trust, or they could refuse Atkinson's gift. None of these non-charitable beneficiaries elected to accept the annuity under the terms of the trust. One potential beneficiary, Atkinson's caretaker Mary Birchfield, citing a putative inter vivos promise by Atkinson that Birchfield would not be held liable for any estate taxes resulting from her annuity from the trust, instigated litigation against the estate. Eventually, the trustee paid a settlement of $667,000 to Birchfield in satisfaction of all her claims against the estate and also resumed annuity payments to Birchfield in the amount set by the trust, which payments continued until Birchfield's death in 1997. Birchfield never paid her share of the estate taxes due on the money she received. 5 Before the settlement of Birchfield's claim, the estate was required to file its federal estate tax return. The taxable gross estate, according to the executor, consisted of Atkinson's annuity rights under the trust ($366,334.92) as well as the date-of-death value of both the annuity and administrative trusts ($4,284,308 and $1,484,854, respectively). The estate claimed a charitable deduction in the amount of $3,894,535, representing the present value of the remainder interest in the annuity trust as of the date of Atkinson's death, measured under the assumption that Birchfield, whose claim against the estate had not been settled at that time, would prevail on that claim and be entitled to an annuity from the trust for the balance of her lifetime and, correlatively, that the charities would not take their remainder interest in the trust until Birchfield's death. 6 The Internal Revenue Service ("IRS") selected the estate's tax return for audit and found that the estate was not entitled to take any charitable deduction because the annuity trust failed to comply with certain statutory procedures applicable to the deductibility of charitable remainders. With the disallowance of the charitable deduction, the IRS determined that the estate owed $2,654,976 in taxes. Because the administrative trust and the balance of other estate assets would not be sufficient to satisfy this tax liability, it became apparent that the remaining amount due would be paid by the annuity trust. The estate challenged the IRS's decision in the United States Tax Court, which agreed with the IRS that a charitable deduction was not appropriate. See Atkinson v. Comm'r, 115 T.C. 26, 32, 2000 WL 1030270 (2000). II. DISCUSSION1 A. Standards of Review 7 The Tax Court's factual findings are reviewed for clear error, and its legal conclusions are reviewed de novo. Davenport Recycling Assocs. v. Comm'r, 220 F.3d 1255, 1258-59 (11th Cir.2000). B. Deductibility of Charitable Remainders 8 A federal estate tax is imposed on "the transfer of the taxable estate of every decedent who is a citizen or resident of the United States." I.R.C. § 2001(a) (West 2002). A deduction is generally available for that portion of the estate that is directly devised to charitable organizations. Id. § 2055(a)(2). When property or money is given directly to the charity at the death of the decedent, then the amount of a charitable deduction that may be taken by the estate is easily calculated. However, when a decedent donates a remainder interest in property to charity, the valuation of the charitable deduction becomes more difficult. The estate tax return might be filed before the charity's interest in the property becomes possessory and can be conclusively valued for purposes of claiming a charitable deduction. This temporal disconnect provides an avenue by which unscrupulous estates may claim a large charitable deduction, then manage the split-interest property in such a way that the benefit to the non-charitable beneficiaries is maximized, with the charity ultimately receiving much less value than that claimed as a deduction on the estate tax return. 9 Recognizing this problem, Congress strictly limited the deductibility of charitable remainders by requiring that such an interest pass to the charity in the context of a "charitable remainder annuity trust" ("CRAT"), a "charitable remainder unitrust," or a "pooled income fund." Id. § 2055(e)(2)(A). The trust in this case was established as a CRAT and does not fit the definition for the other two options. A CRAT, by statutory definition, is a trust 10 (A) from which a sum certain (which is not less than 5 percent of the initial net fair market value of all property placed in trust) is to be paid, not less often than annually, to one or more persons (at least one of which is not a [charitable organization] and, in the case of individuals, only to an individual who is living at the time of the creation of the trust) for a term of years (not in excess of 20 years) or for the life or lives of such individual or individuals, 11 (B) from which no amount other than the payments described in subparagraph (A) may be paid to or for the use of any person other than [a charitable organization], 12 (C) following the termination of the payments referred to in subparagraph (A), the remainder interest in the trust is to be transferred to, or for the use of, [a charitable organization] or is to be retained by the trust for such a use. 13 Id. § 664(d)(1) (West 1986) (amended 1997).2 14 Paragraph "(A)" of the CRAT requirements limits the interest of the non-charitable beneficiaries to a yearly sum certain based on the initial fair market value of the trust's assets. This fixed interest eliminates the impetus for investments that maximize the non-charitable beneficiaries' interests, and, accordingly, prevents the redirection of trust assets away from the charitable remaindermen. As noted by the Tax Court, this requirement also ensures that the trust does not accumulate untaxed wealth for charities, which would sidestep the income distribution requirements for private foundations. See Atkinson, 115 T.C. at 32. The CRAT is required to pay the non-charitable annuity from the first year of its existence. Treas. Reg. § 1.664-2(a)(5) (as amended in 2001).3 15 Paragraph "(B)" prohibits any disbursement of trust assets beyond the fixed annuity interests and the charitable remainder, again buttressing the charitable remainder and the correlative deduction. Should the trust leave open the possibility of making other payments beyond the annuity, it is disqualified as a CRAT. Treas. Reg. § 1.664-1(a)(6) (Example 3) (as amended in 2001). Each of these requirements attempts to make the valuation of the charitable remainder at the death of the grantor conform more closely to the actual interest that will one day pass to charity. 16 To preserve the estate's ability to claim a charitable deduction for a remainder interest in property, the trust must not only be set up as a CRAT, but it must also comply with the CRAT statutory requirements from its formation to the final disposition of the trust's assets. Treas. Reg. § 1.664-1(a)(4) (as amended in 2001). As noted by the IRS in this litigation, "without the limitations ..., the intent of Congress in enacting [the CRAT rules] could be defeated by the creation of CRATs that have their documents in order but that fail to function as CRATs after their creation." Appellee's Brief, at 32. C. Atkinson Annuity Trust's Compliance with CRAT Regulations 1. Applicability of CRAT Regulations 17 The estate argues that the CRAT rules have no application where, as here, none of the non-charitable beneficiaries ever qualified under the terms of the trust. According to the estate, the failure of the non-charitable beneficiaries to qualify means that no interest "passed," within the meaning of § 2055(e)(2),4 both to these non-charitable beneficiaries and to the charities so as to invoke the CRAT rules. The IRS regulations refute the estate's argument. According to Treas. Reg. § 20.2056(c)-1(a)(5) (as amended in 1994), property interests transferred during the life of the decedent are immediately considered to have "passed" from the decedent to the recipient for purposes of § 2055(e)(2).5 Though these interests may be contingent, the contingency does not mean that the interests do not immediately "pass" unless the possibility of the contingency occurring is so remote as to be negligible. Treas. Reg. § 20.2055-2(e)(1)(i) (as amended in 2001). The non-charitable beneficiaries each received a property interest, contingent on their acceptance of their share of the estate's tax burden, in the trust upon its establishment. The possibility of at least one beneficiary accepting the trust's terms and fulfilling the contingency cannot be said to be remote; therefore, their interests immediately "passed" under § 2055(e)(2) when the trust was established. From that moment on, the trust was required to operate as a CRAT in order to preserve its ability to qualify for a deduction of the charitable remainder. 2. Adherence to Regulations 18 The documents that establish the Atkinson annuity trust track the CRAT requirements to the letter. However, the Atkinson annuity trust failed to comply with the CRAT rules throughout its existence. Yearly annuity payments to Atkinson were not made during her lifetime. Accordingly, since the CRAT regulations were not scrupulously followed through the life of the trust, a charitable deduction is not appropriate. 19 The estate complains that this stringent focus on the CRAT rules amount to a denial of a substantial charitable deduction because of what amounts to a "foot fault," or a minor mistake. However, the scheme established by Congress is specifically designed to combat the problems associated with the donation of charitable remainders. In exchange for the significant benefits of allowing a present charitable deduction, even when the actual charitable donation is not to occur until the remainder interest in the property becomes possessory, and in allowing the assets of the trust to grow tax-free, the Code requires adherence to the CRAT rules. It is not sufficient to establish a trust under the CRAT rules, then completely ignore the rules during the trust's administration, thereby defeating the policy interests advanced by Congress in enacting the rules. Despite the certain charitable donation in this case, the countervailing Congressional concerns surrounding the deductibility of charitable remainders in general counsel strict adherence to the Code, and, barring such adherence, mandate a complete denial of the charitable deduction.6 III. CONCLUSION 20 From our review of the record and the parties' briefs, we find no reversible error. Because the annuity trust did not adhere to the CRAT regulations throughout its existence, the charitable remainder interest does not qualify as a charitable deduction. 21 AFFIRMED. Notes: * Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by designation 1 To the extent that additional arguments are raised by the estate and not discussed in the body of this opinion, we find that those arguments are without merit and deserve no substantial discussion. In addition, since we decide that the trust was not a CRAT because of its failure to pay Atkinson a lifetime annuity, we do not reach the issue of whether the trust additionally failed due to its exposure to estate tax liability 2 This statement of the CRAT definition was the one in force when Atkinson established her annuity trust in 1991. In 1997, Congress amended the CRAT definition,see I.R.C. § 664(d)(1) (West Supp.2001), but those amendments are not retroactively applicable to the trust at issue in this case. 3 We defer to administrative regulations as long as they implement a Congressional mandate in a reasonable mannerChevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984). As noted by this court in RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1464 (11th Cir.1992): The Supreme Court has been particularly deferential in the area of tax laws because it is "not in the business of administering the tax laws of the Nation. Congress has delegated that task to the Secretary of the Treasury, 26 U.S.C. § 7805(a), and regulations promulgated under this authority, if found to `implement the congressional mandate in some reasonable manner must be upheld.'" Cartwright, 411 U.S. at 550, 93 S.Ct. at 1716 (citing United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537 (1967)). 4 The relevant text of § 2055(e)(2) reads as follows: Where an interest in property (other than an interest described in section 170(f)(3)(B)) passes or has passed from the decedent to a [charitable use or beneficiary], and an interest (other than an interest which is extinguished upon the decedent's death) in the same property passes or has passed (for less than an adequate and full consideration in money or money's worth) from the decedent to a [non-charitable use or beneficiary], no deduction shall be allowed under this section for the interest which passes or has passed to [the charitable use or beneficiary] unless — (A) in the case of a remainder interest, such interest is in a trust which is a charitable remainder annuity trust or a charitable remainder unitrust ... or a pooled income fund ..., or (B) in the case of any other interest, such interest is in the form of a guaranteed annuity or is a fixed percentage distributed yearly of the fair market value of the property (to be determined yearly). 5 The regulations under § 2055(e)(2) point to corresponding regulations under § 2056(c) for purposes of determining whether an interest has "passed," thus the citation to these regulations in the text 6 We note that no argument was made by the estate that the trust could be reformed under § 2055(e)(3) to comply with the Code's requirements and, thus, that the estate would be entitled to a charitable deduction. Thus, we express no opinion on that matter

115 F.3d 1240 In re GRAND JURY PROCEEDINGS. No. 96-20728. United States Court of Appeals,Fifth Circuit. June 26, 1997. Paula Camille Offenhauser, Assistant U.S. Attorney, Kathlyn Giannaula Snyder, Houston, TX, for Appellant. Simson Unterberger, Durango, CO, for Appellee. Appeal from the United States District Court for the Southern District of Texas. Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges. EDITH H. JONES, Circuit Judge: I. BACKGROUND 1 Faced with a request to quash a grand jury subpoena, the federal district court in Houston was apprised that two months earlier, the movants' premises had been searched in Colorado under a warrant with a sealed supporting affidavit. The district court disagreed philosophically that a search could be so conducted. Consequently, although the movants never objected to the search, the court went them one better on relief from the grand jury subpoena. He ordered that unless the search warrant affidavit was unsealed, he would suppress the evidence from the search. The government has appealed. Because this order lacks supporting authority and, indeed, flouts the governing procedures for contest of search warrants and grand jury subpoenas, we reverse. 2 On May 6, 1996, the United States Attorney for the Southern District of Texas requested two grand jury subpoenas, to be served on two Colorado organizations, Pro Vantage One International, L.L.C., and Pro Vantage One (collectively, "Pro Vantage"), requiring them to produce documents and appear before a Houston, Texas federal grand jury. In connection with the grand jury investigation, the government also applied to a federal magistrate judge in Colorado for a search warrant. The magistrate judge promptly issued the warrant, which was executed on May 15 at a house in Colorado. The printed search warrant form completed by the government did not list the objects of the search. Instead, the form stated: 3 [T]here is now concealed a certain person or property, namely (describe the person or property) PLEASE SEE AFFIDAVIT 4 The only attachment described the premises with a photograph of the building to be searched. By request of the government, the Colorado magistrate judge sealed the application and affidavit supporting the search warrant except to law enforcement officials. Thus, Pro Vantage never received the affidavit that listed the objects of the search in the warrant. After a large volume of documents was seized pursuant to the warrant, however, Pro Vantage was given an inventory. 5 On July 25, Pro Vantage One International, L.L.C. and its manager Thomas Kiser ("Appellees") moved to quash the grand jury subpoenas in the Southern District of Texas, arguing that the subpoenas are impermissibly overbroad and lacking in particularity in violation of the Fourth Amendment, and that by serving subpoenas simultaneously with search warrants, the government was seizing Appellees' papers and effects without having to show the probable cause that a search warrant would require. 6 The federal district court held a hearing on this motion, during which the court requested to see the sealed affidavit that the government had filed in the Colorado federal court pursuant to its FED. R. CRIM. P. 41 search warrant application. The court reviewed the affidavit in camera. A day later, he ordered the government to disclose the search warrant affidavit to Appellees. That August 2nd order also stated that the scope of the subpoena was "excessive on the basis of the affidavit," and required the government to revise its description of the documents being sought by subpoena. Responding to the government's motion to reconsider, the court entered another order on August 7, which stated in part: "the government must disclose the affidavit supporting the search warrant by noon, Friday, August 9, 1996, or all the evidence from the search will be suppressed." The district court reiterated this demand in an accompanying Opinion on Search Warrant issued on August 7, 1996. This court stayed the district court's order pending appeal. II. STANDARD OF REVIEW 7 We review subject matter jurisdiction de novo as a question of law. DeCell & Assoc. v. Federal Deposit Ins. Corp., 36 F.3d 464, 467 (5th Cir.1994), cert. denied, 515 U.S. 1121, 115 S.Ct. 2275, 132 L.Ed.2d 279 (1995). We review a district court's decision granting a motion to quash or modify a subpoena for abuse of discretion. See Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.1994). We review a district court's rulings on a motion to suppress under the clearly erroneous standard for findings of fact, and de novo for issues of law, viewing evidence in the light most favorable to the prevailing party. United States v. Brown, 102 F.3d 1390, 1394 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1455, 137 L.Ed.2d 559 (1997). 8 We have jurisdiction over a district court order quashing or modifying a grand jury subpoena pursuant to 18 U.S.C. § 3731. See In re Grand Jury Subpoena, 646 F.2d 963, 967 (5th Cir.1981). We also have jurisdiction over a preindictment conditional suppression order pursuant to 18 U.S.C. § 3731. See United States v. Ramirez-Gonzalez, 87 F.3d 712, 713 (5th Cir.1996) (stating that court had jurisdiction over appeal of suppression order before jeopardy attached under 18 U.S.C. § 3731); United States v. Presser, 844 F.2d 1275, 1279-80 (6th Cir.1988) (finding appellate jurisdiction under 18 U.S.C. § 3731 for a government appeal of a discovery order when suppression of evidence was threatened for noncompliance); United States v. Horwitz, 622 F.2d 1101, 1104-05 (2d Cir.1980), cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 799 (1981) (concluding that government could immediately appeal a conditional suppression order under 18 U.S.C. § 3731). III. ANALYSIS 9 1. Order to Revise Grand Jury Subpoenas. 10 The only issue properly before the district court in Houston was Appellees' motion to quash the grand jury subpoenas. Appellees did not challenge the Colorado search based on Fourth Amendment grounds or pursuant to Fed. Rule Crim. Proc. 41(e), but rather argued that the documents requested by the subpoenas might be the same as those seized during the search, and that the subpoenas (not the warrants ) were overbroad and lacking in particularity. Although the district court reviewed the search warrant affidavit in camera, the government never filed the sealed affidavit with the district court, and the government urged that it did not need to establish probable cause to support a grand jury subpoena. Thus, the subpoena alone, and not the search warrant, was properly before the court. 11 In general, courts have very little authority over the proceedings of a grand jury. As the Supreme Court has observed, "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside." United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992). Further, "[j]udges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office." Id. These cautions frame the first issue, whether there was any ground for the district court, in its August 2 order, to find that the scope of the subpoena was excessive and to require the government to modify the subpoena by revising the list of documents being sought. 12 In examining a grand jury subpoena, a court considers whether compliance "would be unreasonable or oppressive." See FED. R. CRIM. P. 17(c); United States v. R. Enterprises, Inc., 498 U.S. 292, 299, 111 S.Ct. 722, 727, 112 L.Ed.2d 795 (1991). The law presumes, however, that, "absent a strong showing to the contrary, ... a grand jury acts within the legitimate scope of its authority." Id. at 301, 111 S.Ct. at 728. Moreover, "a grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance." Id. 13 The Appellees have failed to meet their burden. In their Motion to Quash Subpoenas to Testify Before Grand Jury, Appellees objected to the grand jury subpoenas on three grounds. First, they argued that certain items which the subpoenas required the Appellees to produce may have already been seized pursuant to the search warrant; they asserted they were hampered from confirming this by the sealing of the warrant affidavit. This complaint proves nothing in terms of unreasonableness or oppression. Appellees received a written inventory of the documents seized. Rather than seeking to quash the subpoenas, the Appellees could state to the grand jury that the documents are now in the government's possession. Appellees' administrative compliance problem is not the courts' business. 14 Second, Appellees contended that the subpoenas were overbroad and lacking in particularity, in violation of their Fourth Amendment right to be free of unreasonable searches and seizures. A subpoena duces tecum is not itself a search or seizure, however, and the actual search that occurred on May 15, 1996 was conducted pursuant to a search warrant. Thus, Appellees' argument conflates a grand jury subpoena with a magistrate judge's search warrant. But the instruments are different in nature and issued from different authorities. Even if this court were to construe Appellees' argument as an assertion that compliance with the subpoena would be unreasonable or oppressive, Appellees have failed to make the requisite showing. Appellees cite that the subpoena requested at least eighty-five kinds of documents relating to approximately one hundred and seventy-eight different persons and entities, but they do not explain how, if at all, production of the documents unreasonably burdens them. Simply citing the types of information sought by the government does not alone constitute a "strong showing" sufficient to counter the presumption that the grand jury was acting within the proper scope of its authority. 15 Third, Appellees asserted that because the subpoenas were issued simultaneously with a search warrant, they evidenced an attempt to seize and secure items belonging to the Appellees without showing probable cause for the issuance of a search warrant. This argument is a red herring; even if the search warrant was defective, there is no probable cause requirement for the issuance of a grand jury subpoena. R. Enterprises, 498 U.S. at 297, 111 S.Ct. at 726. Issues of probable cause relate solely to the validity of the search warrant, not the subpoenas. 16 For all these reasons Appellees failed to meet the standards of FED. R. CRIM. P. 17(c); therefore, the district court abused its discretion in ordering that the subpoenas be modified by revising the list of the documents being sought. 17 2. Order to Unseal Search Warrant Affidavit/Conditional Order to Suppress. 18 The government also appeals Judge Hughes's actions in going beyond the motion to quash and granting, sua sponte, a conditional suppression order mandating that the government produce the sealed affidavit "or all the evidence from the search w[ould] be suppressed." This order was problematic for several reasons. Most important, Appellees never contested the search warrant based on the Fourth Amendment; instead, they challenged the grand jury subpoenas. Appellees, however, had the burden of affirmatively challenging the search warrant based on Fourth Amendment grounds: 19 In order to effectuate the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, this Court long ago conferred upon defendants in federal prosecutions the right, upon motion and proof, to have excluded from trial evidence which had been secured by means of an unlawful search and seizure.... However, we have also held that rights assured by the Fourth Amendment are personal rights, and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. 20 Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968) (emphasis added). Because the Fourth Amendment right must be affirmatively asserted, Judge Hughes erred in fashioning a suppression order in the absence of a motion by Appellees requesting such relief. 21 But even if Appellees had sought relief for the search and seizure, the Southern District of Texas was not the appropriate preindictment forum in which to proceed. The Federal Rules of Criminal Procedure govern these issues. FED. R. CRIM. P. 41(e) states: 22 A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property.... If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12 (emphasis added). 23 Rule 41(e) specifies that an aggrieved party's preindictment remedy is a motion for the return of property, which should be filed in the district in which the property was seized--in this case the District of Colorado. Rule 41(f), on the other hand, states: 24 A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12. 25 (emphasis added). The court of the district of trial cannot be determined prior to an indictment. 26 A district court in the Eighth Circuit recognized the limits imposed by Rule 41. In re Grand Jury Proceedings, 466 F.Supp. 863 (D.C.Minn.1979), aff'd as modified by 629 F.2d 548 (8th Cir.1980). In Grand Jury Proceedings, the potential corporate defendant sought a preindictment motion to suppress in a district court in the district where the trial would be held if a grand jury indicted the company. The district court concluded that it was not the proper court to rule on the legality of the seizure prior to indictment, observing: "This court is located in the district where any future criminal trials probably would occur, but it is not the trial court. If any indictments are handed down, there is no guarantee that this court, rather than other courts in this district, would be assigned the resulting criminal trials.... Moreover, Rule 41(e) contains no express authorization for this court to rule prior to indictment." Id. at 866 (emphasis added).1 The same logic applies here. Judge Hughes's court is not a court in the district in which Appellees' property was seized, nor will it necessarily be the trial court, if ProVantage and Kiser are ever indicted. Thus, the Federal Rules did not authorize this court to rule on a motion to suppress at the preindictment stage. Rules 41(e) and (f) together provide that Appellees' only remedy for the search and seizure prior to indictment was to seek a Rule 41(e) motion for the return of property in the District of Colorado--an option they ignored. Nevertheless, Appellees are not left unprotected. If they are indicted, Appellees may move to suppress in the trial court, whatever court that may be. 27 Appellees have not defended the court's order to unseal the search warrant affidavit on the basis of the Federal Rules. Instead, they urge various bases for his inherent authority to act. Appellees principally rely on an amorphous theory called anomalous jurisdiction. Anomalous jurisdiction was expressly recognized by this court in Hunsucker v. Phinney, 497 F.2d 29 (5th Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975): 28 A substantial body of precedent establishes that federal district courts have power to order the suppression or return of unlawfully seized property even though no indictment has been returned and thus no criminal prosecution is yet in existence.... The theory articulated by most of the cases is that jurisdiction to order suppression or return prior to indictment exists not by virtue of any statute but rather derives from the inherent authority of the court over those who are its officers. 29 Id. at 32. Despite this court's recognition of anomalous jurisdiction, it has rarely been invoked or discussed since Hunsucker, and its very existence has been questioned.2 Several considerations lead us to conclude the district court's attempt to exercise this jurisdiction, if it exists, was inappropriate. 30 In Richey v. Smith, 515 F.2d 1239 (5th Cir.1975), this court listed the factors a court should consider in deciding whether to exercise anomalous jurisdiction: whether the government displayed "a callous disregard for the constitutional rights of the [plaintiff];" "whether the plaintiff has an individual interest in and need for the material whose return he seeks; whether the plaintiff would be irreparably injured by denial of the return of the property; and whether the plaintiff has an adequate remedy at law for the redress of his grievance." Id. at 1243-44 (citations and internal quotations omitted). The district court articulated none of these factors, and they are not conducive to the result Appellees seek. 31 First, while this court has not yet determined whether the issuance of a search warrant combined with a sealed affidavit constitutes a violation of the Fourth Amendment, the Seventh Circuit has expressly affirmed the practice. See In re Eyecare Physicians of America, 100 F.3d 514, 516 (7th Cir.1996). The Seventh Circuit observed that "no provision within the Fourth Amendment grants a fundamental right of access to sealed search warrant affidavits before an indictment." Id. at 517. This court ordinarily abides by the decisions of our sister circuits, and we do so with respect to this sensible decision. Accordingly government did not display "callous disregard" of Appellees' rights. 32 The next two factors promoting anomalous jurisdiction are likewise unsatisfied. Appellees have neither explained their specific interest in and need for the documents seized pursuant to the warrant, nor have they stated how they will be irreparably injured by denial of the return of the property. Appellees have not indicated, for example, whether they requested a copy of the documents seized, and whether the government refused to comply with such a request. See, e.g., Eyecare Physicians, 100 F.3d at 515 (noting that the government offered to provide appellant with copies of the seized documents). The absence of any showing of necessity or irreparable injury weigh against the exercise of anomalous jurisdiction. 33 Finally, unlike the situation in Richey,3 these Appellees have an adequate remedy at law. They failed to avail themselves of the preindictment remedy provided by Rule 41(e) in the Colorado federal court. Such a motion, if granted, might well have affected the government's decision whether to continue seeking an indictment. Thus, this also was not a situation in which Appellees possessed no opportunity to avoid the stigma of a criminal indictment. See Richey, 515 F.2d at 1243, n. 10 (observing that "where examination of the seized material leads to a criminal prosecution, it may not be sufficient that a motion to suppress the evidence can be filed prior to the criminal trial"). Appellees may still pursue a suppression order, should they be indicted. 34 Having examined these factors, we find that even if Appellees had affirmatively moved to suppress in Judge Hughes's court based on anomalous jurisdiction, its exercise was not warranted under these circumstances. 35 Appellees assert two other grounds to show the district court had jurisdiction to enter its order. First, Appellees cite several cases in which the media was the applicant for the unsealing of search warrant materials and jurisdiction was simply assumed.4 Each of these cases, however, involved motions to unseal, not conditional suppression orders contingent on the government's producing a warrant affidavit. Furthermore, each of the decisions regarding the access to warrant material arose in the district of seizure, and implicated no cross-jurisdictional concerns. None of these cases support the argument that a court in one district, which is neither the district of trial nor the district of seizure, has jurisdiction to issue a conditional suppression order based on a warrant issued in another district. 36 Second, Appellees cite two cases for essentially the same proposition: courts have a general supervisory power over records and files presented to them.5 Both of these cases considered the question whether a court has the power to restrict access to documents properly filed with that court. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) involved a decision by the district court to restrict media access to tape recordings that had been entered into evidence in a criminal trial, until the defendants' appeal of the trial had been resolved. In the Matter of Sealed Affidavit(s) To Search Warrants Executed on February 14, 1979, 600 F.2d 1256 (9th Cir.1979) involved a decision by the district court, which had issued search warrants, to seal the master affidavit supporting the warrants. These cases do not provide an independent basis for jurisdiction apart from the federal rules, however, and we do not construe their holdings to give the district court in the instant case inherent power over the search warrant affidavit simply because he was briefly provided with the affidavit for an in camera inspection. To hold otherwise would allow any federal court in this nation to disrupt the proceedings of another court if it temporarily peruses a document within the other court's control. IV. CONCLUSION 37 Based on the foregoing, we REVERSE the district court's ruling on the motion to quash the grand jury subpoenas and its sua sponte issuance of a conditional suppression order. 1 Appellees inexplicably cite this case for the proposition that a district court that is not in the district of seizure has jurisdiction to decide a preindictment Rule 41(e) motion. Grand Jury stands for precisely the opposite proposition. Appellees also cite Ex Parte Decious, 622 F.Supp. 40 (E.D.N.Y.), appeal dismissed, 779 F.2d 35 (2d Cir.1985) to support their proposition, even though the Decious court (which was in the district of seizure), in declining to exercise jurisdiction over the Rule 41(e) motion, noted that the movants still retained the right "to make a suppression motion in any district court where a trial is pending." Id. at 41 (emphasis added). This reasoning expressly contemplates that the movants' only potential remedy, once a district of seizure court declines to exercise jurisdiction over the Rule 41(e) motion, lies in a trial court after indictment 2 Only five other decisions in this circuit have discussed this doctrine, even in passing. See In re Grand Jury Proceedings, 724 F.2d 1157, 1160 (5th Cir.1984) (holding that the appellate court lacked jurisdiction to entertain the appeal of an order denying a motion for the return of property that was based on anomalous jurisdiction); Linn v. Chivatero, 714 F.2d 1278, 1281 (5th Cir.1983) (questioning whether the doctrine of anomalous jurisdiction survived the repeal of the amount-in-controversy requirement of 28 U.S.C. § 1331); United States v. Chapman, 559 F.2d 402, 406 (5th Cir.1977) (discussing equitable factors justifying the use of anomalous jurisdiction); Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir.1977) (affirming the district court's exercise and discussion of anomalous jurisdiction); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir.1975) (discussing the basis and rationale for anomalous jurisdiction) 3 In Richey, the district court had determined that the issue whether the appellants were entitled to an order granting the return of property was moot, and also held that a motion to suppress could not be granted because no criminal prosecution was pending, thus leaving the appellants without a procedural leg on which to stand. Richey, 515 F.2d at 1242 4 See In re Application of Newsday, Inc., 895 F.2d 74 (2d Cir.), cert. denied sub nom. Gardner v. Newsday, Inc., 496 U.S. 931, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990) (appeal of decision by the district court, which had originally ordered search warrant application sealed, to release a redacted copy of the warrant application); Baltimore Sun Company v. Goetz, 886 F.2d 60 (4th Cir.1989) (appeal from district court's order denying a petition for writ of mandamus ordering a magistrate to unseal a search warrant affidavit); Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir.1989) (appeal of district court orders in two different districts denying requests to unseal search warrant materials after direct review of magistrate decisions in the respective districts); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir.1988) (appeal of decision by the district court in the district of seizure not to unseal affidavits and materials attached to search warrants issued by the court) 5 See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978) (stating that "[e]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes"); In re Sealed Affidavit(s) To Search Warrants Executed on February 14, 1979, 600 F.2d 1256, 1257 (9th Cir.1979) (noting that "courts have inherent power, as an incident of their constitutional function, to control papers filed with the courts within certain constitutional and other limitations")

12 N.Y.3d 703 (2009) MATTER OF SUTHERLAND, v. SELSKY. Court of Appeals of New York. Decided February 19, 2009. Motion for leave to appeal denied[*]. NOTES [*] Motion for poor person relief dismissed as academic or denied.

75 B.R. 637 (1987) In re EEI ENERGY, INC., Debtor. Bankruptcy No. 83 B 2389. United States Bankruptcy Court, N.D. Illinois, E.D. July 9, 1987. *638 Edward W. Rothe, Chicago, Ill., for debtor. Debra L. Stefanik, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C. James D. Newbold, Revenue Litigation Div., State of Ill., Chicago, Ill. John T. Lortie, Office of Chief Counsel, Chicago, Ill. MEMORANDUM OPINION AND ORDER FREDERICK J. HERTZ, Bankruptcy Judge. This cause was heard upon the motion of the trustee for EEI Energy, Inc., to deny priority status to pre-petition interest on pre-petition federal and state taxes. For the reasons set forth below, this motion is denied. EEI filed for bankruptcy under Chapter 11 on February 18, 1983. This case was subsequently converted to Chapter 7 on April 24, 1983. Both the Internal Revenue Service and the State of Illinois filed claims seeking priority status under 11 U.S.C. § 507(a)(6), now (a)(7), for pre-petition taxes plus interest on those taxes. The sole issue before this court is whether the interest is entitled to priority status. § 507(a) provides priority status for "allowed unsecured claims of governmental units." Specifically enumerated under this provision are taxes, § 507(a)(7)(A), and penalties, § 507(a)(7)(G). The trustee contends that this provision's silence with respect to interest on taxes evinces an intent by Congress to deny priority status to interest. Both the I.R.S. and the State of Illinois argue that interest is included in the broad definition of the term "claim," and thus is entitled to priority. While this issue has not been considered in this jurisdiction, the majority of courts in other jurisdictions have granted priority status to interest on pre-petition tax claims. Matter of Unimet Corporation, 74 B.R. 156 (Bankr.N.D.Oh.1987); United States of America v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D. W.Vir.1986); In re Hirsch-Franklin Enterprises, Inc., 63 B.R. 864 (Bankr.M.D.Ga. 1986); In re Reich, 66 B.R. 554 (Bankr.D. Colo.1986); In re Keller and Katkowsky, P.C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bankr.N.D.Tex. 1985), aff'd Bankr.L.Rep. (CCH) ¶ 71,273 (N.D.Tex.1986); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D. Miss.1983); and In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). But see, In re Razorback Ready-Mix Concrete Company, 45 B.R. 917 (Bankr.E. D.Ark.1984); and In re Ayala, 35 B.R. 651 (Bankr.D.Utah 1983). In United States v. Friendship College, Inc., (In re Friendship College, Inc), 737 F.2d 430 (4th Cir.1984), the Fourth Circuit Court of Appeals considered an analogous issue. In that case, the court ruled that post-petition tax claims and penalties should be treated as an administrative expense under § 503(b)(1)(B)(i). A related issue concerned the priority treatment of interest on the tax claims. The trustee argued the interest should not be given the same priority status as the underlying tax claim because it was not specifically included in § 503, as were taxes and penalties. The court rejected this argument, holding that interest was entitled to the same priority as the tax claim itself. The District Court for the Southern District of West Virginia, in the case of In re H.G.D. & J. Mining Co., supra, applied the Friendship College holding to conclude that, pursuant to § 507(a)(7), pre-petition interest on pre-petition taxes should also be given the same priority as the underlying tax claim. The court stated: The final version of § 507(a)[7] did not provide for the priority treatment of interest on a tax claim even though the Senate bill did. However, we can find no proof in the Bankruptcy Act or its legislative history that Congress intended to treat interest on a tax claim differently from the tax claim itself. See, Friendship College, Inc., 737 F.2d at 433. Furthermore, *639 the fact that interest was not included in the detailed listing in § 507(a)[7] of tax claims entitled to priority does not mean that it was excluded. Interest was not listed as an element of an administrative expense in § 503(b)(1) while the tax and any penalty on the tax were and yet the Fourth Circuit held that it was such an element. Id. We think the reasoning of the Fourth Circuit that the tax and the interest thereon should be treated the same applies equally in regard to interest on tax claims under § 507(a). Therefore, this court holds that pre-petition interest on a pre-petition tax claim should be given the same priority as the underlying tax claim itself. Id., at 124-125. This court finds the reasoning of H.G.D. & J. Mining Co., supra, as well as those cases interpreting "tax claim" to include interest and thus be entitled to the same priority for distribution, to be persuasive. This is consistent with the United States Supreme Court's finding in Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), that "in most situations, interest is considered to be the cost of the use of the amounts owing a creditor and incentive to prompt repayment and, thus, an integral part of a continuing debt. Interest on a tax debt would seem to fit that description." (Emphasis added.) Id., at 359, 84 S.Ct. at 907. Although the Bruning holding, that post-petition interest on an undischarged tax debt may be enforced as a continuing non-dischargeable obligation against a debtor, has been rejected with the adoption of the Bankruptcy Code, the underlying principle enunciated in Bruning is still sound. Accordingly, this court holds that pre-petition interest on pre-petition tax claims are entitled to priority status under § 507(a)(7). THEREFORE, IT IS HEREBY ORDERED that the trustee's motion contesting priority status to pre-petition interest on pre-petition federal and state taxes is denied. IT IS SO ORDERED.

[Cite as State v. Rhoades, 2020-Ohio-2688.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 19AP-93 v. : (M.C. No. 2018CRB-13523) Alonzo Rhoades, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on April 28, 2020 On brief: Zachary M. Klein, City Attorney, Bill R. Hedrick, and Orly Ahroni, for appellee. Argued: Orly Ahroni. On brief: Alonzo Rhoades, pro se. Argued: Alonzo Rhoades. APPEAL from the Franklin County Municipal Court DORRIAN, J. {¶ 1} Defendant-appellant, Alonzo Rhoades, appeals pro se from the judgment of conviction and sentence entered by the Franklin County Municipal Court pursuant to a jury verdict finding him guilty of violating a civil protection order. For the following reasons, we affirm. I. Facts and Procedural History {¶ 2} The case giving rise to this appeal involves allegations that Rhoades violated a civil protection order requiring him to stay away from Jaide Reinhard ("Jaide"). Rhoades and Jaide were previously in a relationship and have a child together. In August 2017, Jaide petitioned for a domestic violence civil protection order from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. A protection order was No. 19AP-93 2 issued by consent on September 26, 2017 ("Protection Order"), providing, among other conditions, that Rhoades could not be within 500 feet of Jaide or any place he knew or should know she was likely to be. The Protection Order further provided that if Rhoades accidentally came within 500 feet of Jaide in any public or private place, including roadways, he was required to depart immediately. The Protection Order was effective for four years, until September 26, 2021. A copy of the Protection Order was served on Rhoades on October 10, 2017. {¶ 3} The case on appeal began when a complaint was filed in the municipal court alleging that on July 2, 2018 Rhoades recklessly violated the Protection Order, a first- degree misdemeanor in violation of R.C. 2919.27(A)(1), by being within 500 feet of Jaide. The case was designated as Municipal Court criminal case No. 2018CRB-13523 ("case No. 13523"). On October 1, 2018, another complaint was filed in the municipal court alleging that on September 30, 2018, Rhoades again violated the Protection Order, a first-degree misdemeanor in violation of R.C. 2919.27(A)(1). That case was designated as Municipal Court criminal case No. 2018CRB-20334 ("case No. 20334"). The state, plaintiff-appellee, moved to consolidate case No. 13523 with case No. 20334 for trial. A jury trial was conducted on the consolidated cases in February 2019. {¶ 4} Jaide testified at trial that she and her mother, Jennifer Reinhard ("Jennifer"), had lived in the same house on Joos Avenue since 2011. On July 2, 2018, Jaide and Jennifer left their home in separate cars so Jaide could drop off her car for repairs. After leaving Jaide's car to be serviced, they returned home with Jennifer driving. Upon approaching their home, Jaide saw Rhoades' car on Joos Avenue at a stop sign where Joos Avenue intersected a cross street. Jaide testified she recognized Rhoades' car because it was the same one he drove when they were in a relationship. Rhoades was in the driver's seat of the car. Jaide testified she made eye contact with Rhoades for a few seconds and pointed him out to Jennifer. When Rhoades drove away from the intersection, Jennifer turned the car around and drove after him while Jaide tried to get a photograph of Rhoades' car. Jaide testified the two cars passed within 10 to 15 feet of each other before Jennifer turned around to pursue Rhoades. Jaide was unable to take a photograph and they stopped pursuing Rhoades after he exited the neighborhood. Jaide then called police to report the incident. A recording of Jaide's call to police was played for the jury. No. 19AP-93 3 {¶ 5} Jaide described Joos Avenue as a short side street in a small, quiet, residential neighborhood. She testified it would not be necessary to drive on Joos Avenue to reach any particular destination. The state presented an aerial photograph of the area around Jaide's home, demonstrating it was a residential neighborhood with no businesses located on that block of Joos Avenue. Jaide estimated the stop sign where she spotted Rhoades was about 300 feet from her residence. {¶ 6} Jennifer also testified at trial, stating she was driving home with Jaide on July 2, 2018 after dropping off Jaide's car to be serviced, when she saw Rhoades' car stopped at a stop sign at the end of Joos Avenue. After passing Rhoades, Jennifer pulled into the first driveway on their street to turn around. She then pursued Rhoades' car until it exited the neighborhood. {¶ 7} Columbus Division of Police Officer Matthew Carroll testified he and his partner, Officer Anthony Nowalk, were dispatched to the Reinhards' residence on July 2, 2018. They spoke with Jaide about the incident and Officer Carroll subsequently prepared and filed a complaint against Rhoades. Officer Carroll testified he did not speak with anyone other than Jaide about the incident because he did not find it necessary. Officer Nowalk testified he reviewed a copy of the Protection Order while Officer Carroll interviewed Jaide. Officer Nowalk stated he measured the distance between the stop signs at either end of the Reinhards' block on Joos Avenue using a traffic-detection laser as 432 feet. He testified that was approximately twice the distance between the Reinhards' house and the stop sign where Jaide saw Rhoades. {¶ 8} With respect to case No. 20334, Jaide testified she called police on September 30, 2018 because the neighbors who lived directly across the street told her they had seen a man and woman banging on the doors and looking in the windows of the Reinhards' house earlier in the day, while the Reinhards were away. A recording of Jaide's call to police on September 30, 2018 was played for the jury. {¶ 9} Mike Franceschelli testified he lives directly across the street from the Reinhards and was friends with them. He testified that on September 30, 2018, while he was in the front yard of his home, he saw Rhoades pull up in front of the Reinhards' house in a car with a woman in the passenger seat. He recognized Rhoades because he had previously seen him together with Jaide. Rhoades exited the car and pounded on the No. 19AP-93 4 Reinhards' front door, then went to the back of the house and pounded on the back door. He testified he told Jennifer what had occurred after the Reinhards returned home later that day and subsequently spoke to police about what he saw. Nancy Franceschelli similarly testified that she lives directly across the street from the Reinhards. On September 30, 2018, while in her living room, she saw a car with a man and woman pull up in front of the Reinhards' house. The man exited the car, went to the front door of the Reinhards' house, and started beating on the door. The man then walked around the house and went through the gate into the back yard. She did not recognize the man who was banging on the door. She talked to Jennifer about the incident and later spoke with a police officer about it. {¶ 10} Officer Nowalk testified he was working without a partner on September 30, 2018 when he was dispatched to the Reinhards' residence. He spoke with Jaide and then interviewed the Franceschellis about what they observed. Based on these interviews, Officer Nowalk prepared and filed a complaint against Rhoades. {¶ 11} Following the state's presentation, Rhoades' trial counsel moved for acquittal under Crim.R. 29, arguing the evidence was insufficient to sustain convictions. The trial court denied the motion for acquittal. Rhoades' trial counsel indicated to the court that Rhoades intended to testify in his own defense. Before the defense presentation began, the prosecutor moved to suppress a grocery store receipt Rhoades had provided in discovery, arguing it was inadmissible hearsay. Rhoades' trial counsel argued the receipt was admissible as a business record. When the trial court indicated it was inclined to grant the motion to suppress, Rhoades' trial counsel moved for a continuance to try to secure a witness from the grocery store to authenticate the receipt. The following day, Rhoades' trial counsel indicated Rhoades decided not to testify in his own defense, and he wished to proceed to closing arguments without presenting any additional evidence. The prosecutor and Rhoades' trial counsel made closing arguments and the case was submitted to the jury. {¶ 12} The jury was unable to reach a decision in case No. 20334, relating to the September 30, 2018 incident, and the trial court declared a mistrial in that case. The court then dismissed the charge in case No. 20334 at the prosecutor's request. In case No. 13523, the jury found Rhoades guilty of violating the Protection Order. The trial court sentenced Rhoades to 180 days of incarceration, with 39 days of jail-time credit. The court suspended the sentence and placed Rhoades on probation for two years. No. 19AP-93 5 II. Assignments of Error {¶ 13} Rhoades appeals and assigns the following nine assignments of error for our review: [I.] The trial court erred and abused its discretion by not separating each case as its own separate incident. [II.] The trial court erred and abused its discretion by not recognizing the biases of the judge due to history regarding catch court and history with simuler case. [III.] The prosecution failed to disclose the full text of the consent agreement and its rules and limitations. [IV.] the honorable judge did see that after both key witness rule 29 was clear and applicable or that the wemon in testomony where biesed and provided no cretable evidnce to prove there case [V.] the responding officers did not meet the standered operating procieder gather evidence or hear from more then one party who by her own abmition carried strong biase [VI.] evidence was held and hidden till the minute of it being shown in court not allowing the othwer party the opertunity to see before the jury [VII.] Defentents counsal advised not to testifie do to evidence not yet shown and lack of berdon of proof [VIII.] the judge grandented a last ditch efferot to block the voice of the defendent by trying to suprese evidence with goes agents the judges ethics provided on his clerk of court profile [IX.] the court never established why the defince could have been in the naighbor hood or that the protected party lived there (Sic passim.) III. Discussion A. Joinder of offenses for trial {¶ 14} Rhoades argues in his first assignment of error the trial court abused its discretion by joining case Nos. 13523 and 20334 for trial. Rhoades argues there was a risk No. 19AP-93 6 of jury confusion arising from the testimony and evidence, and a risk that if the jury found him guilty of one offense they would assume he was guilty of the other. {¶ 15} Under Crim.R. 13, a court may order multiple complaints to be tried together if the offenses or defendants could have been joined in a single complaint. Crim.R. 8(A) provides that multiple offenses may be charged in the same complaint if the offenses "are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Generally, the law favors the joinder of multiple offenses into a single trial. State v. Brinkley, 105 Ohio St.3d 231, 2005- Ohio-1507, ¶ 28. {¶ 16} If similar offenses are properly joined, a defendant may move to sever the charges, pursuant to Crim.R. 14, which provides that if a defendant is prejudiced by a joinder of complaints for trial, the court shall order a separate trial or provide such other relief as justice requires. To demonstrate a trial court erred by denying a motion to sever, a defendant "must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant's right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial." State v. Schaim, 65 Ohio St.3d 51, 59 (1992). {¶ 17} A trial court's decision on joinder is subject to review for abuse of discretion. State v. Morris, 10th Dist. No. 18AP-208, 2018-Ohio-5252, ¶ 34. In the present case, Rhoades did not oppose the state's motion for joinder prior to trial and did not move to sever the complaints for trial under Crim.R. 14. Therefore, he has forfeited all but plain error. Id. Plain error exists when an error is plain or obvious and affects a substantial right. State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 13. The error must constitute an obvious defect in the legal proceedings and there must be a reasonable probability that the error affected the outcome. State v. Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640, ¶ 32. Appellate courts find plain error with the utmost caution, under exceptional circumstances to prevent a manifest miscarriage of justice. Id. {¶ 18} A trial court may sever properly joined offenses where the defendant affirmatively demonstrates prejudice resulting from a joint trial. Morris at ¶ 36. The state No. 19AP-93 7 can refute a claim of prejudice by demonstrating that: (1) the evidence of one offense could be introduced under Evid.R. 404(B) at the trial of the other offense, or (2) the evidence of the offenses joined at trial is simple and direct. The state need only satisfy one of these tests to negate a claim of prejudice. Id. at ¶ 37. See also State v. Lott, 51 Ohio St.3d 160, 163 (1990) ("[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as 'other acts' under Evid.R. 404(B)."). {¶ 19} "Evidence is 'simple and direct' if the jury is capable of segregating the proof required for each offense." State v. Wilson, 10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 23. The offenses in the joined cases were the same, but they were committed on different days and involved different conduct. The evidence for case No. 13523 was provided by Jaide, Jennifer, and the responding police officers, based on their testimony about what occurred on July 2, 2018. The evidence for case No. 20334 was provided by the Franceschellis, testifying what they observed on September 30, 2018. Although Jaide also testified about the September 30, 2018 incident, her testimony was based on the Franceschellis' accounts and mirrored their testimony. Thus, the evidence as to each case was simple and direct. See State v. McBride, 10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 12 ("Here, the evidence of the offenses is simple and direct and is not confusing or difficult to separate. The offenses in each indictment were analytically and logically separate: burglaries and thefts which occurred in different buildings on different days. Although the offenses involved similar conduct, the offenses were separate and not so complex that the jury would have difficulty separating the proof required for each offense."); see also State v. Wigle, 9th Dist. No. 25593, 2011-Ohio-6239, ¶ 24 (finding evidence of each charge was simple and direct for joined offenses of violating a protection order, resisting arrest, and disorderly conduct where defendant's neighbor testified about events giving rise to charge of violating protection order and arresting officers testified about events leading to charges of resisting arrest and disorderly conduct). Moreover, although the jury found Rhoades guilty in case No. 13523, they were unable to reach a verdict in case No. 20334. This demonstrates the jury was able to distinguish between the evidence as to each offense. See Wigle at ¶ 24 ("[T]he fact that the jury acquitted Wigle of the protection order violation, and convicted him of the remaining charges demonstrates that the jury was capable of separating the No. 19AP-93 8 issues."). Under these circumstances, we conclude the trial court did not plainly err by joining the cases for trial. {¶ 20} Accordingly, we overrule Rhoades' first assignment of error. B. Judicial bias {¶ 21} In his second assignment of error, Rhoades asserts the trial judge was biased against him. Rhoades claims the trial judge is generally biased in favor of women, citing his participation in a specialized human trafficking docket and statements favorable to women allegedly made by the trial judge in speeches, articles, and other trials. Rhoades further argues the trial judge's bias was demonstrated by the revocation of a personal recognizance bond before trial. {¶ 22} If a municipal court judge is alleged to have a bias or prejudice for or against any party to a proceeding pending before the judge, or be otherwise disqualified to preside over the proceeding, any party to the proceeding may file an affidavit of disqualification with the clerk of the Ohio Supreme Court. R.C. 2703.031. "R.C. 2703.031 provides the exclusive means by which a litigant may claim that a municipal court judge is unduly interested, biased, or prejudiced." Columbus Checkcashers, Inc. v. Guttermaster, Inc., 10th Dist. No. 13AP-106, 2013-Ohio-5543, ¶ 33. See also State v. Varouh, 9th Dist. No. 18CA011415, 2020-Ohio-528, ¶ 27 ("[R.C. 2701.031] is the exclusive means by which a litigant may assert that a municipal court judge is biased or prejudiced."). The clerk of the municipal court is notified when an affidavit of disqualification of a municipal court judge is filed and must enter a notice on the docket of the proceeding. R.C. 2701.03(C)(1)(b) and (c). There is no indication on the docket of either municipal court case that Rhoades filed an affidavit of disqualification of the municipal court judge with the clerk of the Supreme Court. Therefore, Rhoades failed to invoke the jurisdiction of the proper court to review his claim of judicial bias. State v. Hussein, 10th Dist. No. 15AP-1093, 2017-Ohio-5519, ¶ 9. See also State v. Castile, 10th Dist. No. 13AP-10, 2014-Ohio-1918, ¶ 13 ("Because appellant failed to file an affidavit of disqualification against the trial judge, he forfeited his complaint [of judicial bias] on appeal."). {¶ 23} Accordingly, we overrule Rhoades' second assignment of error. No. 19AP-93 9 C. Sufficiency and weight of the evidence {¶ 24} In his third, fourth, fifth, and ninth assignments of error, Rhoades appears to challenge the sufficiency of the evidence supporting his conviction and to argue that the conviction was against the manifest weight of the evidence. We will consider these assignments of error together. {¶ 25} "Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine "whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Where the evidence, "if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction. Id. "The testimony of a single witness, if believed by the finder of fact, is sufficient to support a criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 18. Because a Crim.R. 29 motion questions the sufficiency of the evidence, we apply the same standard of review on appeal of a denial of a Crim.R. 29 motion as in a challenge to the sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941, ¶ 44. {¶ 26} Rhoades was charged with violating R.C. 2919.27(A)(1), which prohibits recklessly granting a protection order or consent agreement issued under R.C. 2919.26 or 3113.31. The latter statute provides for issuance of a domestic violence civil protection order or consent agreement. "A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C). {¶ 27} Jaide testified she had a civil protection order against Rhodes. A copy of the Protection Order was introduced into evidence, establishing it was a domestic violence civil protection order issued by consent of the parties pursuant to R.C. 3113.31. The Protection Order was effective from September 26, 2017 through September 26, 2021, and prohibited No. 19AP-93 10 Rhoades from certain conduct with respect to Jaide, including being within 500 feet of where she was or any place she was likely to be. The order to serve the Protection Order was entered into evidence, showing a copy of the Protection Order was served on Rhoades on October 10, 2017. Jaide testified she has lived at the same address on Joos Avenue since 2011. That address was also shown as Jaide's address on the Protection Order. Jaide and Jennifer both testified that on July 2, 2018, they saw Rhoades in the driver's seat of his car at a stop sign at the end of their block on Joos Avenue. Jaide testified the stop sign where she saw Rhoades was located 300 feet or less from her house. Officer Nowalk testified he measured the distance between the stop signs at either end of the block where Jaide's residence was located on Joos Avenue as 432 feet. He testified that was roughly twice the distance from Jaide's residence to the stop sign. Jaide and Jennifer also testified their vehicle passed Rhoades' car on the road, with Jaide estimating the distance between the two vehicles when they passed as 10 to 15 feet. {¶ 28} Viewing the evidence in the light most favorable to the state, a rational trier of fact could have found beyond a reasonable doubt that Rhodes was guilty of violating R.C. 2919.27(A)(1) by being at the stop sign at the end of Joos Avenue on the block where Jaide's residence was located, because he was aware of the Protection Order and disregarded a substantial and unjustifiable risk that being in that location would place him within 500 feet of Jaide or a place she was likely to be while the Protection Order was in effect and prohibited such conduct. See, e.g., State v. Kaseda, 11th Dist. No. 2012-L-002, 2012-Ohio- 4652, ¶ 11-12 (finding evidence sufficient to support conviction for violating R.C. 2919.27(A)(1) where the state presented evidence that a protection order prohibiting defendant from coming within 500 feet of the protected person was in effect at time of arrest, defendant was apprehended within 500 feet of the protected person's residence, and there was testimony that defendant was aware of the existence of the protection order); State v. Mohamed, 10th Dist. No. 05AP-29, 2005-Ohio-4928, ¶ 12 (finding evidence sufficient to support conviction for violating R.C. 2919.27(A)(1) where protection order was in effect prohibiting defendant from initiating or having contact with the protected person, defendant knew of the protection order, and defendant called the protected person's place of work and asked to speak with her). Thus, the evidence presented at trial was sufficient to sustain the jury's verdict. No. 19AP-93 11 {¶ 29} "While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. When evaluating a challenge to a verdict as being against the manifest weight of the evidence, "an appellate court may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at 387. In conducting our review of the evidence, "we are guided by the presumption that the jury, or the trial court in a bench trial, 'is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the " 'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). {¶ 30} Rhoades alleges the testimony from Jaide and Jennifer was clearly contradictory; however, he fails to cite any specific contradictions or inconsistencies. Even if there were inconsistencies, a defendant "is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial." State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 9. "[T]he jury may take note of the inconsistencies and resolve them accordingly, 'believ[ing] all, part, or none of a witness's testimony.' " State v. Taylor, 10th Dist. No. 17AP-103, 2017-Ohio-8327, ¶ 37, quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21. Rhoades also attacks Officer Nowalk's credibility, noting he did not interview Jennifer about the July 2, 2018 incident, and alleging that laser scanning equipment is not part of the standard department issued traffic equipment. Officer Nowalk admitted at trial that he did not interview Jennifer on July 2, 2018, explaining he did not realize at the time that she had also witnessed the No. 19AP-93 12 incident. To the extent Rhoades suggests this reduces the credibility of Officer Nowalk's investigation or his testimony, the jury was aware of this issue and able to consider it in weighing Officer Nowalk's credibility. With respect to the measurements, Officer Nowalk testified he measured the distance between the stop signs using his department issued laser traffic detector, which could be used to measure distance. Rhoades does not cite anything in the record to contradict Officer Nowalk's testimony about the laser measuring device. {¶ 31} Rhoades also argues there was a grocery store receipt and other materials establishing he was not on Joos Avenue on July 2, 2018 at the time Jaide and Jennifer claimed to see him. As discussed below, the grocery store receipt was disclosed in pretrial discovery but was not admitted into evidence. Likewise, none of the other materials Rhoades refers to were admitted into evidence at trial or otherwise made part of the record. Finally, Rhoades argues there was no evidence he attempted to talk to or otherwise make contact with Jaide. However, as explained above, the Protection Order prohibited Rhoades from being within 500 feet of Jaide or a place where she was likely to be. Therefore, it was not necessary for the state to establish Rhoades made any attempt to speak with or otherwise contact Jaide to prove a violation of the Protection Order. {¶ 32} Jaide and Jennifer both testified they saw Rhoades in his car at a stop sign at the end of the block of Joos Avenue where their home was located. They both testified they pursued Rhoades' car as it exited their neighborhood in an attempt to get a photograph, but were unable to take a photograph. Both Jaide and Officer Nowalk testified that the stop sign where Jaide and Jennifer saw Rhoades was less than 500 feet from Jaide's home. There was documentary evidence establishing the Protection Order prohibited Rhoades from being within 500 feet of Jaide or any place she was likely to be, that the Protection Order was in effect on July 2, 2018, and Rhoades was aware of the Protection Order. Based on our review of the evidence, we cannot conclude the jury clearly lost its way in finding Rhoades guilty of violating R.C. 2919.27(A)(1). {¶ 33} Because we conclude the conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, we overrule Rhoades's third, fourth, fifth, and ninth assignments of error. No. 19AP-93 13 D. Suppression of evidence {¶ 34} In his sixth, seventh, and eighth assignments of error, Rhoades presents arguments relating to the suppression of evidence he intended to introduce at trial. Rhoades argues the trial court erred by suppressing a grocery store receipt that he claims would have established he was not on Joos Avenue on July 2, 2018 at the time Jaide and Jennifer claimed to have seen him. {¶ 35} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. A court of appeals must accept the trial court's findings of fact if they are supported by competent, credible evidence. Burnside at ¶ 8. "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. {¶ 36} After the close of the state's presentation, the prosecutor moved to suppress the grocery store receipt, which had been provided in pretrial discovery. The prosecutor argued the receipt was hearsay and did not qualify for any of the exceptions to the hearsay rule under the rules of evidence. Specifically, the prosecutor asserted the receipt was not admissible under the business records exception to the hearsay rule because, based on the pretrial witness disclosures, Rhoades did not plan to present a representative of the grocery store or other qualified witness to testify about the receipt. The prosecutor argued that because it was possible to falsify or forge a receipt, it was necessary for Rhoades to present a qualified witness to authenticate the grocery store receipt. Rhoades' trial counsel argued the grocery store receipt was admissible as a business record and that Rhoades would be able to testify to the authenticity of the receipt and the circumstances under which he received it. He further asserted Rhoades would be able to present evidence of having a credit card that matched the payment information on the grocery store receipt. When the trial court indicated it was likely to grant the motion to suppress, Rhoades' trial counsel requested a continuance to pursue securing testimony from a representative of the grocery store. The trial court granted a continuance until the following day. Ultimately, Rhoades elected not to put on any evidence or testify in his own defense. Thus, although the trial court indicated it was inclined to grant the motion to suppress, it did not issue a final ruling No. 19AP-93 14 on the motion. Further, because Rhoades elected not to put on any evidence, the grocery store receipt was not proffered for admission as evidence. Notwithstanding the lack of a final ruling, because the trial court indicated it was inclined to grant the state's motion to suppress, we will consider whether the grocery store receipt would have been admissible. {¶ 37} Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Under the rules of evidence, a statement includes a written assertion. Evid.R. 801(A). Generally, hearsay evidence is not admissible, except as otherwise permitted under a constitutional provision, statute, or rule. Evid.R. 802. Evid.R. 803(6) provides an exception to the prohibition on hearsay evidence for records of "regularly conducted business activity * * * if it was the regular practice of that business activity to make the * * * record * * * as shown by the testimony of the custodian or other qualified witness." {¶ 38} Rhoades suggests the grocery store receipt would have established his whereabouts as somewhere other than Joos Avenue on July 2, 2018, when Jaide and Jennifer claimed to have seen him. Thus, if offered into evidence, the receipt would have been hearsay because it was an out-of-court statement offered for the truth of the matter asserted—i.e., the date, time, and location information contained in the receipt. As such, it would have been inadmissible unless Rhoades could establish that it fell within an exception to the hearsay rule. {¶ 39} A store receipt may be admissible as a business record under Evid.R. 803(6). See State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 36 ("Had the receipt been offered into evidence, it may have qualified for the business records exception to hearsay contained in Evid.R. 803(6)."). To qualify for admission under Evid.R. 803(6), a business record must satisfy four essential elements: (1) it must be one regularly recorded in a regularly conducted activity, (2) it must have been entered by a person with knowledge of the act, (3) it must have been recorded at or near the time of the transaction, and (4) a foundation must be laid by the custodian of records or some other qualified witness. State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 39. A qualified witness is someone with enough familiarity with the record-keeping system of the business to explain how the record came into existence in the ordinary course of business. Id. Rhoades has failed to No. 19AP-93 15 establish that he was the custodian of records for the grocery store in question or otherwise had sufficient familiarity with the grocery store's record-keeping system to explain how the receipt was created in the ordinary course of business, or that he would have been able to produce testimony from the custodian of records or other qualified witness. See, e.g., State v. Shaheen, 3d Dist. No. 5-97-03 (July 29, 1997) (holding that loss-prevention manager of retail store was a qualified witness for purpose of admission of inventory history and refund receipt from that store); State v. Early, 2d Dist. No. CA 10827 (Dec. 30, 1988) (holding retail store receipt was properly admitted as a business record where general manager and apparel manager for the store testified regarding process for creation of receipts from the store). Thus, while the grocery store receipt was potentially admissible under the business records exception to the hearsay rule, Rhoades fails to demonstrate he could present a custodian or other qualified witness to authenticate the receipt. {¶ 40} Accordingly, we overrule Rhoades' sixth, seventh, and eighth assignments of error. E. Ineffective assistance of counsel {¶ 41} In addition to referring to the exclusion of the grocery store receipt in his seventh assignment of error, Rhoades also appears to suggest he received ineffective assistance of counsel. Rhoades indicates his trial counsel advised him not to testify in his own defense, and asserts this limited his ability to present certain evidence he argues would tend to establish he was not present on Joos Avenue on July 2, 2018. {¶ 42} We apply a two-part test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense." Strickland at 687. To establish prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. {¶ 43} Generally, a licensed attorney in Ohio is presumed to be competent and trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Jones, 10th Dist. No. 16AP-803, 2017-Ohio- No. 19AP-93 16 5529, ¶ 11. Appellate courts normally refrain from second-guessing strategic decisions made at trial. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, ¶ 138. The decision whether to allow a defendant to testify in his own defense usually constitutes a tactical decision. State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 69. {¶ 44} To the extent Rhoades suggests his trial counsel was ineffective by advising him not to testify, he relies on matters outside the record. The only evidence in the record relating to Rhoades' ultimate decision not to testify indicates his trial counsel discussed the implications of testifying but does not reveal any specific advice his trial counsel gave. After the close of the state's presentation, Rhoades' trial counsel indicated Rhoades was inclined to testify: The Court: And I believe Mr. Rhoades would like to testify. [Rhoades' trial counsel]: Your Honor, I have discussed that with Mr. Rhoades. At this point, I have talked to him about all of the potential ramifications of doing so. It is my belief that it is his intention to testify in his own defense. (Tr. Vol. II at 177.) The prosecutor then moved to suppress the grocery store receipt and Rhoades' trial counsel obtained a continuance. When trial resumed the following day, Rhoades' trial counsel informed the court Rhoades had chosen not to testify: [Rhoades' trial counsel]: Your Honor, yesterday at the close of -- at the close of the State's case, we had sort of contemplated timing and the decision by Mr. Rhoades to testify at that point. I have had several discussions with Mr. Rhoades, as well as his family, and it's my understanding that at this point that he has decided not to testify, and we would then proceed directly to closing and charge of the jury. I did want to put that on the record, since yesterday we had put out that it was my belief that he was going to testify. So I just want to make the record clear. It was his decision today not to testify. (Tr. Vol. II at 191). Although the transcript clearly indicates Rhoades and his trial counsel discussed whether Rhoades should testify, the record does not contain any information about advice Rhoades' trial counsel may have given regarding that decision. Because a claim of ineffective assistance of counsel arising from any advice Rhoades' trial counsel may have given about whether to testify relies on matters outside the record, such a claim would not be appropriate on direct appeal. See State v. Davis, 10th Dist. No. 05AP-193, 2006- No. 19AP-93 17 Ohio-5039, ¶ 19 ("When allegations of ineffective assistance of counsel hinge on facts not appearing in the record, the proper remedy is a petition for post-conviction relief rather than a direct appeal."). {¶ 45} Accordingly, to the extent Rhoades' seventh assignment of error asserts a claim of ineffective assistance of counsel, we overrule the seventh assignment of error. IV. Conclusion {¶ 46} For the foregoing reasons, we overrule Rhoades' nine assignments of error and affirm the judgment of the Franklin County Municipal Court. Judgment affirmed. BROWN and BEATTY BLUNT, JJ., concur. 

Court of Appeals of the State of Georgia ATLANTA, May 05, 2016 The Court of Appeals hereby passes the following order A16A1473. AYAZ, INC. v. PREMIER PETROLEUM, INC.. Upon consideration of the APPELLANT'S motion FOR PERMISSION TO WITHDRAW THE APPEAL in the above styled case, it is ordered that the motion is hereby GRANTED. Court of Appeals of the State of Georgia Clerk's Office, Atlanta, May 05, 2016. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

259 P.3d 748 (2011) IN RE QUILLEN. No. 104720. Court of Appeals of Kansas. September 9, 2011. Decision Without Published Opinion Affirmed.

91 Cal.Rptr.2d 730 (2000) 22 Cal.4th 190 990 P.2d 603 In re TAMEKA C, a Person Coming Under the Juvenile Court Law The People, Plaintiff and Respondent, v. Tameka C, Defendant and Appellant. No. S068192. Supreme Court of California. January 13, 2000. *731 Terry K. Diggs, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias, David D. Salmon, Richard Rochman and Linda M. Murphy, Deputy Attorneys General, for Plaintiff and Respondent. GEORGE, C.J. When a defendant commits an assault with a firearm upon an intended victim, and with the same shot injures an unintended victim, thereby committing another assault, may the sentence for each assault be enhanced by a separate firearm-use *732 enhancement? We conclude the sentence may be so enhanced. I On the evening of March 1, 1994, an altercation broke out between defendant Tameka C. and Eddie Stansberry. Stansberry struck defendant in the face. Defendant left the scene and returned shortly thereafter with a firearm. She shot Stansberry in the buttocks. Three police officers who had been at the scene observing Stansberry's activities emerged from their vehicle. One identified himself as a police officer and ordered defendant to freeze. She turned toward the police officers and fired her weapon in their direction. The shot defendant fired toward the officers did not strike any of them, but shattered the glass in a door of a nearby hotel. A child inside the hotel, Michael K., was struck in the eye by the shattering glass and sustained a serious injury. His mother, Kimberly K., was nearby but was not injured. In an exchange of fire, the officers shot defendant, and she suffered a spinal cord injury. In a juvenile wardship proceeding, the juvenile court dismissed allegations that defendant had attempted to murder Stansberry and the three police officers involved in the fracas. The court found true the allegations that defendant committed an assault with a firearm upon each of the three officers in violation of Penal Code section 245, subdivision (d)(1).[1] The court also found true the allegations that defendant committed an assault with a firearm upon Stansberry and upon Michael K., in violation of section 245, subdivision (a)(2). The court dismissed allegations that defendant committed mayhem upon Michael K. in violation of section 203, and also dismissed an allegation that she committed an assault with a firearm upon Kimberly K. As to each of the sustained allegations, the court also found true the allegation that defendant used a firearm in the commission of the offense pursuant to section 12022.5, subdivision (a). The court made a finding that defendant had fired at least one round at the officers in the direction of the hotel where Michael K. was injured. In dismissing the mayhem count, the court observed that defendant was not aware of the presence of Michael K. The court also made a finding "as a matter of law that in the shooting of Michael K., defendant here fired at the police officers, that the boy was behind those police officers, that the ricocheting of the bullets caused the glass to fracture, which penetrated the eye of the minor, causing him ... at least at the present time to lose vision out of that eye, to a certain extent. And as a consequence he is a victim of that assault...." The court also explained its disagreement with defense counsel's assertion that the injury was unforeseeable, stating: "Certainly, if you fire in an urban area at an individual and a glass structure [is] behind that person you are firing at, the chances are certainly reasonable that the glass that's in the direction of your bullet can shatter causing it to hit people." The court committed defendant to the California Youth Authority, calculating that her maximum period of confinement would be for a period of 17 years and eight months, comprised of the following: an eight-year base term for the assault with a firearm upon one of the police officers, plus a five-year consecutive firearmuse enhancement pursuant to section 12022.5, subdivision (a)[2] (as well as concurrent maximum terms of 13 years for the remaining two enhanced counts of assault with a firearm upon a police officer); a one-year consecutive sentence for the assault with a firearm upon Stansberry, plus a 16-month consecutive firearm-use enhancement; and a one-year consecutive *733 sentence for the assault with a firearm upon Michael K., plus a 16-month consecutive firearm-use enhancement.[3] On appeal, in addition to claims not raised here, defendant contended that the juvenile court erred in committing her to the California Youth Authority for a maximum term that included a firearm-use enhancement for the assault on Michael K. The majority opinion of the Court of Appeal rejected this claim. One justice filed a concurring and dissenting opinion, concluding that the firearm-use enhancement may not be imposed in connection with the term for the assault on Michael K. We granted defendant's petition for review. II At the time these offenses were committed, section 12022.5, subdivision (a), provided in relevant part that "any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison of three, four, or five years...." (Stats.1993, ch. 611, § 31.5, p. 3581.) This court has held that multiple firearm-use enhancements may be imposed pursuant to section 12022.5, subdivision (a), when the defendant uses a firearm in a single, indivisible transaction that results in injury to multiple victims. (People v. King (1993) 5 Cal.4th 59, 79, 19 Cal. Rptr.2d 233, 851 P.2d 27 (King).) In reaching this decision in King, we overruled this court's earlier ruling in In re Culbreth (1976) 17 Cal.3d 330, 130 Cal. Rptr. 719, 551 P.2d 23 (Culbreth), a case that held that only one enhancement could be imposed pursuant to section 12022.5 when "the charged offenses are incident to one objective and effectively comprise an indivisible transaction." (17 Cal.3d at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23.) In the Culbreth case, we concluded that the intent of the Legislature in enacting section 12022.5 was to "deter the use of firearms on subsequent occasions" (17 Cal.3d at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23), but the King opinion disagreed, finding that the statutory language did not support this premise: "Nothing limits the enhancements to one for every separate occasion, whatever that might mean." (5 Cal.4th at p. 77, 19 Cal.Rptr.2d 233, 851 P.2d 27.) In Culbreth, the defendant used a rifle to kill his wife, his mother-in-law, and his brother-in-law in rapid succession. We considered whether the sentence for each of two counts of second degree murder could be enhanced pursuant to section 12022.5,[4] or could be enhanced only once. In determining that only one enhancement was proper, we stated: "The legislative purpose of section 12022.5 has been described as deterrence, i.e., to deter the use of firearms on subsequent occasions. Thus it has been held that where there are consecutive robberies in several communities over a period of several hours, a defendant may not bootstrap himself into avoidance of additional penalties by claiming that the series of divisible acts, each of which had been committed with a separate identifiable intent and objective, composed an indivisible transaction. [Citations.] But if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then section 12022.5 may be invoked only once and not in accordance with the number of victims." (Culbreth supra, 17 Cal.3d at pp. 333-334, 130 Cal.Rptr. 719, 551 P.2d 23.) *734 We pointed to similar conclusions reached in Court of Appeal decisions limiting firearm-use enhancements to one per discrete occasion, and announced: "It is clear that the term `uses' was deliberately employed by the Legislature when it adopted section 12022.5. To `use' means, among other things, `"to carry out a purpose or action by means of," to "make instrumental to an end or process," and to "apply to advantage."' [Citation.] The `end or process' here was the commission of a single frenetic act of violence which, unfortunately, resulted in multiple victims." (Culbreth, supra, 17 Cal.3d at p. 334, 130 Cal.Rptr. 719, 551 P.2d 23.) In specifically rejecting the People's theory that "no consideration of the facts is necessary; a body count of victims is sufficient to establish the number of separate transactions," we stated that "[t]his simplistic formula is untenable; an analysis of the events is essential to ascertain the apparent intent and objective of the defendant." (Id. at p. 335, 130 Cal.Rptr. 719, 551 P.2d 23.) We concluded: "Such an analysis here clearly indicates the homicides — the two second degree murders and the manslaughter — occurred in a matter of seconds, all part of a single melee. There was but one occasion, one intent, one objective, one indivisible transaction. Therefore section 12022.5 may be applied only once." (Ibid.) In King, however, in which the defendant shot two victims in rapid succession during a robbery, we rejected the "single occasion" rule of Culbreth. We observed that nothing in the language of section 12022.5, subdivision (a), limits the sentencing court to imposing only one enhancement per "occasion." We agreed with Court of Appeal cases criticizing the Culbreth rule on the ground that it rewarded the defendant who acted with the broader criminal objective. "`A test based in part on intent and objective is seriously flawed for several reasons: it favors those who harbor the graver criminal intent over those whose crimes are, in part, largely reactions to circumstances; worse, the test is so subjective that it approaches arbitrariness in its application.'" (King, supra, 5 Cal.4th at p. 73, 19 Cal.Rptr.2d 233, 851 P.2d 27.) We also agreed with appellate court observations that it is illogical to restrict the sentencing court to one firearm-use enhancement when a defendant simultaneously victimizes a number of persons on a single occasion, while permitting multiple enhancements when the defendant victimizes the same number of persons in a series of crimes — both in terms of the effect upon the victims and the culpability of the defendant. We related an example, given by one Court of Appeal, as an aid in resolving the issue presented in the King case: "`An armed defendant convicted of robbing seven solitary attendants at seven gas stations on the same street in the same evening may receive seven consecutive sentences and seven consecutive gun use enhancements [under the Culbreth rule].... But the armed outlaw who robs a group of seven individuals at one gas station may receive seven consecutive robbery sentences and only one firearm use enhancement. On what basis is a more lenient sentence for the [latter] felon justifiable? Are the "extra" six victims any less terrorized because they were from the outset, part of a group? Are one felon's criminal actions less blameworthy than those of the others? [¶] ... [The Culbreth rule] is just another way of saying that the more grandiose the perpetrator's original plan, in terms of the number of victims, the less severe will be the punishment — a grotesque rule of law by any standard.'" (King, supra, 5 Cal.4th at pp. 73-74, 19 Cal.Rptr.2d 233, 851 P.2d 27.) We also observed that in the Culbreth case, the defendant clearly "used" a firearm each time he shot a victim — noting in passing, however, that the victims were not killed with a single bullet. (King, supra, 5 Cal.4th at pp. 77, 79, 19 Cal.Rptr.2d 233, 851 P.2d 27.) We also rejected Culbreth's deterrence rationale, expressing a "doubt that the Legislature intended either *735 deterrence or punishment to cease with the first victim. We think it far more likely, and consistent with the actual statutory language, that the Legislature intended to deter (and undoubtedly to punish) firearm use against multiple victims more strongly than firearm use against a single victim." (5 Cal.4th at p. 78, 19 Cal.Rptr.2d 233, 851 P.2d 27.) As we explained in King, nothing in the language of section 12022.5, subdivision (a), limits the sentencing court to one enhancement per "occasion" of firearm use. As respondent points out, the sentencing court is not limited to imposing one enhancement per occasion of firearm use, but rather is to impose one enhancement for each felony in which a firearm has been used. Defendant does not object to the juvenile court's having sustained the allegations of four assaults with a deadly weapon on the basis of what may have been only one shot — nor does she object to including in the maximum period of confinement the three firearm-use enhancements added for the assaults on the police officers. The use enhancements simply follow from the allegations having been sustained as to the substantive offenses of assault with a firearm. Under the King rationale, a robber who enters a convenience store and obtains the valuables of seven patrons with a single display of a firearm has committed seven robberies, and each felony is subject to enhancement for use of a firearm. Keeping in mind both the effect on the victims and the culpability of the defendant, we see no distinction between this situation and one in which a defendant commits multiple assaults with a single shot from a firearm. The language of section 12022.5, subdivision (a), and the intent of the Legislature in enacting this provision support the conclusion that an enhancement for each assault is appropriate in the present case. The intent of the enhancement provision is to "`deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime'" (People v. Bland (1995) 10 Cal.4th 991, 996, 43 Cal.Rptr.2d 77, 898 P.2d 391), and to "`deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.'" (People v. Fierro (1991) 1 Cal.4th 173, 225, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) As one Court of Appeal has put it: "In other words, the term `use,' as employed in this statute [section 12022.5] should be broadly construed, consistent with common usage, to check the magnified risk of serious injury which accompanies any deployment of a gun in a criminal endeavor." (People v. Granado (1996) 49 Cal.App.4th 317, 322, 56 Cal.Rptr.2d 636.) It is clear that a person who engages in an urban gun battle is more culpable than one who fires a weapon at an isolated individual. The risk of injury to bystanders clearly is a risk arising from even one firing of the weapon. The more culpable and dangerous the behavior, the greater the need exists for effective deterrence. An increased sentence measured by the risk of harm to multiple victims reflects a rational effort to deter such reprehensible behavior. Defendant hardly can claim that she did not "use" a firearm in her assault upon Michael K. Relying upon the common meaning of the term "use," we have declared that "`[u]se' means, among other things, `to carry out a purpose or action by means of,' to `make instrumental to an end or process,' and to `apply to advantage.' (Webster's New Internat. Diet. (3rd ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that `uses' be broadly construed." (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024.) We have said that a firearm-use allegation may be established as true if the defendant "utilized the gun at least as an aid in completing an essential element of the [underlying] *736 crime...." (Id, at pp. 672-673, 102 Cal.Rptr. 776, 498 P.2d 1024.) Employing these definitions, to the extent that defendant committed an assault upon Michael K. with a firearm within the meaning of section 245, subdivision (a)(2) — a substantive charge that defendant does not contest — we conclude that defendant made the firearm "instrumental" in the assault, or "applied" the firearm to advantage, in connection with the assault upon Michael K. Further, the use of the firearm aided in the completion of an element of the assault against Michael K. — the attempted (and indeed completed) battery against him. (See People v. Colantuono (1994) 7 Cal.4th 206, 214-217, 26 Cal.Rptr.2d 908, 865 P.2d 704.) We also observe that section 1203.06, subdivision (b)(3), in language that has been interpreted as applicable in defining the term "use" in section 12022.5, provides that "use" means "to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it." (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1319, 45 Cal. Rptr.2d 602; CALJIC No. 17.19; see also People v. Hamilton (1998) 61 Cal.App.4th 149, 155, 71 Cal.Rptr.2d 359.) Defendant does not contest that she fired her weapon intentionally, and under the quoted definition nothing more is required. Under any reasonable definition of the word "use," if we ask what instrumentality defendant employed in committing the assault upon Michael K., it is obvious that she used something, and that the weapon used was a firearm and not any other object. The circumstance that on the same occasion, and indeed in the same act, she used the firearm when she committed the assault against the police officers does not detract from the reality that she also "used" the firearm in the assault upon Michael K. within the meaning of section 12022.5, subdivision (a). As for the statutory phrase "in the commission of," nothing indicates that the Legislature intended to limit application of the statute to crimes in which the defendant possessed the intent to injure a particular victim. We have interpreted identical language in section 12022, subdivision (a), providing for a sentence enhancement for being armed "in the commission of a felony, to require only that "the `arming' take place during the underlying crime and that it have some 'facilitative nexus' to that offense." (People v. Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics in original.) Similarly, we have concluded that the phrase "in the commission of a felony, as used in section 12022.5, means during and in furtherance of the felony. (People v. Fierro, supra, 1 Cal.4th at pp. 225-227, 3 Cal. Rptr.2d 426, 821 P.2d 1302 [defendant who shoots one victim, thereby facilitating his escape from the robbery of another victim, has used the firearm in the commission of the robbery].) In the present case, defendant's use of the firearm not only "furthered" or "facilitated" the commission of the offense in question (the assault on Michael K.); the firearm actually was the instrumentality used to perform the assault. In these circumstances, defendant used the firearm "in the commission of the assault. Defendant also contends that because her purpose was not to injure or assault Michael K. when she fired the weapon, she did not "use" the firearm in connection with her assault on this victim. Contending that there is no statutory definition of the term "use," she urges that the deterrent objective of the statute is not served by imposing multiple enhancements when a single shot results in offenses being committed against more than one victim and the presence of one of the victims is unknown to the perpetrator. The dissenting justice in the Court of Appeal also contended that defendant's purpose — or lack of purpose — should be considered in determining whether to impose the use enhancement, as should the circumstance that only a single shot was fired. *737 Defendant's contention that the use enhancement applies to an assault with a firearm count only if the defendant specifically intended to assault or injure the particular victim finds no support in the words of the statute and is inconsistent with the nature of the underlying crime and with the purpose of the enhancement statute. The underlying substantive offense of assault with a firearm does not require a specific intent to injure a particular victim. As we have said in discussing the mens rea of assault with a deadly weapon, "[although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm." (People v. Colantuono, supra, 7 Cal.4th at p. 214, 26 Cal.Rptr.2d 908, 865 P.2d 704.) We observed that because the law seeks to prevent the wrongful application of physical force upon the victim "irrespective of any actual purpose to cause it," the mens rea element of assault is established by proof of general criminal intent. (Id. at p. 217, 26 Cal. Rptr.2d 908, 865 P.2d 704.) We emphasized that "[t]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm." (Id. at p. 218, 26 Cal.Rptr.2d 908, 865 P.2d 704.) It would be anomalous to suppose that the Legislature, in contrast, did intend to impose such a specific intent requirement as to the firearm-use enhancement, particularly when enhancements do not constitute separate crimes or offenses, but simply are the basis for the imposition of additional punishment for the underlying substantive offense. (People v. Wims (1995) 10 Cal.4th 293, 304, 41 Cal.Rptr.2d 241, 895 P.2d 77.) Indeed, when the Legislature intends to require proof of a specific intent in connection with a sentence enhancement provision, it has done so explicitly by referring to the required intent in the statute. (See, e.g., former § 12022.7, subd. (a), as amended by Stats. 1994, ch. 873, § 3.) Finally, with respect to the concern of the dissenting justice that an unintended injury should be punished less severely than an intentional one, the sentencing court may take intent into account in determining whether to impose a concurrent or consecutive term on the underlying assault, and in determining whether to impose a lower, middle, or upper term. As noted, defendant claims no possibility of deterring the use of a firearm exists when the victim is unintended. We reject this claim. By such reasoning, the substantive offense against Michael K. also should not be punished — although defendant does not challenge the finding or commitment for that offense, and the law is contrary to her contention. As the trial court observed, to fire a weapon in an urban area and thereby injure others is reprehensible risk-taking behavior that effectively may be deterred by the firearmuse enhancement, even when the perpetrator does not specifically intend to injure one of his or her victims or intends only to assault a person other than the victim. Further, we have recognized that the firearm-use enhancement may be effective in deterring a defendant from making any use of a gun in his or her criminal enterprises (People v. Masbruch (1996) 13 Cal.4th 1001, 1014, 55 Cal.Rptr.2d 760, 920 P.2d 705), and this deterrent effect will operate irrespective of the defendant's intent as to a particular victim.[5] *738 In essence, defendant, urging that a single shot is a single occasion of firearm use and should be subject only once to enhanced punishment, would have us return to the discredited "single occasion" rule of Culbreth. We decline to do so. The Legislature has expressed its purpose of deterring unlawful firearm use and avoiding the ensuing injury to the public, and we have recognized that the number of victims exposed to the use of a firearm is relevant to the defendant's culpability. (See King, supra, 5 Cal.4th at p. 78, 19 Cal.Rptr.2d 233, 851 P.2d 27; see also People v. Alvarez (1992) 9 Cal.App.4th 121, 128, 11 Cal.Rptr.2d 463 ["a defendant who commits an act of violence against more than one person is legitimately punished for each victim of his violence"].) We therefore reject defendant's contention that section 12022.5, subdivision (a), should be interpreted to provide that even if a single shot facilitates the commission of more than one felony, only one firearm-use enhancement may be imposed. Instead we conclude that defendant used a firearm in the commission of each of the multiple assaults upon the three officers and Michael K., even though such use occurred on a single occasion and apparently involved a single act. III The judgment of the Court of Appeal is affirmed. KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN, J., concur. Concurring Opinion by MOSK, J. I concur under compulsion of People v. King (1993) 5 Cal.4th 59, 19 Cal.Rptr.2d 233, 851 P.2d 27. Defendant does not dispute that she committed the felony of assault against the police officer by shooting a gun; she thus "personally use[d] a firearm in the commission ... of [that] felony," within the meaning of Penal Code section 12022.5. She also concedes that she committed the felony of assault against Michael K. when the same bullet shattered a window, causing Michael K. eye injuries from broken glass. By definition, she thus "personally use[d] a firearm in the commission ... of [that] felony" (ibid.) as well, regardless of her subjective purpose; accordingly, a separate enhancement with regard to that offense was properly added to her sentence. NOTES [1] All statutory references are to the Penal Code, unless otherwise indicated. [2] At the time of the offenses, section 12022.5, subdivision (a), established a term of three, four, or five years for the use enhancement. (See Stats. 1993, ch. 611, § 31.5, p. 3581.) [3] Pursuant to section 1170.1, subdivision (a), the 16-month terms represented one-third the midterm for the firearm-use enhancements. [4] The remaining voluntary manslaughter count was not subject to enhancement pursuant to section 12022.5 at that time. [5] Defendant's contention that to impose multiple firearm-use enhancements in the present case undermines the provisions of the determinate sentencing law calling, for example, for an upper term or consecutive sentence in the case of multiple victims, and ignores the reality that the enhancement statutes authorize the imposition of multiple enhancements in addition to the punishment imposed for the underlying offense, whether or not the factual basis for the enhancement may be used in calculating a base term for the substantive offense. In the case of the firearm-use enhancement, for example, it is clear that the Legislature intended to impose additional punishment even though the firearm use is an element of the underlying offense of assault as defined by section 245. (See § 12022.5, subd. (d); People v. Johnson (1996) 51 Cal. App.4th 1329, 59 Cal.Rptr.2d 798.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Sep 25 2018, 9:24 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Appellate Division of the Office of the Attorney General of Indiana Public Defender Crown Point, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Searcy T. Boyd Jr., September 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1108 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff. Boswell, Judge Trial Court Cause No. 45G03-1606-MR-4 Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 1 of 8  Case Summary [1] In March of 2016, Searcy T. Boyd Jr. shot and killed Craig Hatten. Boyd subsequently pled guilty to Level 2 felony voluntary manslaughter and was sentenced to a twenty-five-year term of imprisonment. Boyd challenges his sentence on appeal. First, he contends that the trial court abused its discretion by failing to find certain mitigating factors. Second, he contends that his twenty-five-year sentence is inappropriate in light of the nature of his offense and his character. We affirm. Facts and Procedural History [2] On March 14, 2016, Boyd was staying at a home in Hammond with his sister, Shaquanna Boyd. That evening, Hatten, Michelle Miller, and Carlus Carter came to the home and the group visited, played cards, and drank alcohol together. As the evening drew to a close, tension grew between Miller and Shaquanna. Miller and Shaquanna got into a verbal argument on the sidewalk outside the home as Miller, Hatten, and Carter prepared to leave. Boyd was standing on the front porch of the home at the time of the argument. At some point, Hatten attempted to intervene in the fight between Miller and Shaquanna. As he did so, Boyd drew and fired a 9mm handgun. The bullet from Boyd’s handgun struck Hatten in the stomach, causing Hatten to suffer severe internal bleeding. Hatten later died. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 2 of 8 [3] On June 24, 2016, the State charged Boyd with murder and Level 4 felony unlawful possession of a firearm by a serious violent felon. On February 8, 2018, Boyd and the State entered into a plea agreement. Pursuant to the terms of the agreement, the State amended the charging information to include a Level 2 felony voluntary manslaughter charge, Boyd pled guilty to this charge, the State dismissed the murder and firearm possession charges, and sentencing was left to the discretion of the trial court. Following a hearing, the trial court accepted Boyd’s guilty plea, entered judgment of conviction on the Level 2 felony voluntary manslaughter charge, and sentenced Boyd to a twenty-five- year term of imprisonment. Discussion and Decision I. Abuse of Discretion [4] Boyd contends that the trial court abused its discretion in sentencing him. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted). One way in which a trial court may abuse its discretion is to enter a sentencing statement that omits aggravating or mitigating factors that Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 3 of 8  are “clearly supported by the record and advanced for consideration[.]” Id. at 491. [5] In challenging the trial court’s sentencing order, Boyd claims that the trial court abused its discretion by failing to find certain mitigating factors. The finding of mitigating factors is discretionary with the trial court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). The trial court “need not consider, and we will not remand for reconsideration of, alleged mitigating factors that are highly disputable in nature, weight, or significance.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied. Likewise, the trial court is not required to weigh or credit the mitigating evidence the way an appellant suggests it should be credited or weighed. Fugate, 608 N.E.2d at 1374. If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist. Id. A. Guilty Plea [6] Boyd claims that the trial court should have found his guilty plea to be a significant mitigating factor. We have previously held that a guilty plea does not automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. “For instance, a guilty plea does not rise to the level of significant mitigation where the defendant has received a substantial benefit from the plea or where the evidence against him is such that the decision to plead guilty is merely a pragmatic one.” Id. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 4 of 8 [7] In this case, Boyd’s decision to plead guilty seems to be a pragmatic decision as he received a substantial benefit and there was overwhelming evidence of his guilt. Boyd benefitted from reduced criminal exposure and a potentially reduced period of incarceration as the State agreed to dismiss the murder and the Level 4 felony firearm possession charges in exchange for his plea. See Ind. Code § 35-50-2-3(a) (providing that a person convicted of murder shall be imprisoned for up to sixty-five years); Ind. Code § 35-50-2-5.5 (providing that a person convicted of a Level 4 felony shall be imprisoned for up to twelve years). A Level 2 felony, i.e., the level of crime to which Boyd pled guilty, has a sentencing range “between ten (10) and thirty (30) years.” Ind. Code § 35-50-2- 4.5. The trial court sentenced Boyd to a twenty-five-year term, far less than the maximum seventy-seven-year term that he could have faced if found guilty of the charged offenses at trial. In addition, Boyd shot Hatten without provocation in front of numerous witnesses, all of whom seemingly would have been available to testify against him at trial. Boyd has failed to demonstrate that his guilty plea warranted significant mitigating weight. B. Remorse [8] Boyd also claims that the trial court should have found his remorse to be a significant mitigating factor. Substantial deference must be given to a trial court’s evaluation of remorse. Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). “The trial court, which has the ability to directly observe the defendant and listen to the tenor of his or her voice, is in the best position to determine whether the remorse is genuine.” Id. Stated differently, “[r]emorse, Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 5 of 8  or lack thereof, by a defendant is something better guarded by a trial judge who views and hears a defendant’s apology and demeanor first hand and determines the defendant’s credibility.” Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App. 2012) (internal quotation omitted). [9] In expressing remorse, Boyd indicated that he regretted both the impact that the shooting had on the victim’s family and on him, saying “I just hope this doesn’t cost me my life.” Tr. Vol. II, p. 40. He also seemingly attempted to downplay his actions by suggesting that he had acted in self-defense1 and indicating that while he had made mistakes, “[n]obody is perfect.” Tr. Vol. II, p. 40. Given that the trial court was in the best position to determine whether Boyd’s claimed remorse was genuine, we conclude that Boyd has failed to demonstrate that his alleged remorse warranted significant mitigating weight. C. Employment [10] Boyd last claims that the trial court should have found the fact that he had worked regularly to be a significant mitigating factor. However, as we concluded in Newsome, the fact that Boyd has been steadily employed “need not have been given the same significance by the trial court as [he] would have it give.” 797 N.E.2d at 301. “Many people are gainfully employed such that this 1 The trial court questioned counsel after Boyd claimed to have acted in self-defense. Defense counsel indicated that he “obviously evaluated the evidence” to see whether Boyd could plausibly raise a claim of self-defense. Tr. Vol. II, p. 41. The deputy prosecutor added that the stipulated factual basis demonstrated “that this is not a legitimate case of self-defense.” Tr. Vol. II, p. 41. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 6 of 8  would not require the trial court to note it as a mitigating factor or afford it the same weight” as Boyd proposes. Id. Boyd has failed to demonstrate that his employment warranted significant mitigating weight. II. Appropriateness of Sentence [11] Boyd also contends that his twenty-five-year sentence is inappropriate in light of the nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). [12] The nature of Boyd’s offense is unquestionably serious. He escalated a verbal fight between two other individuals by pulling out and shooting his gun. In doing so, Boyd took the life of a fellow human being. We agree with the State that the circumstances surrounding the altercation “indicate that the killing of the victim was an utterly senseless crime.” Appellee’s Br. p. 12. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 7 of 8 [13] As for his character, the record reveals that Boyd had previously been convicted of battery, resisting a peace officer, and felony armed robbery. He was on parole for the armed robbery conviction when he shot and killed Hatten. In addition, Boyd has previously shown a lack of concern for the well-being of others as he has been arrested for domestic battery and resisting a peace officer. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (“[A]lthough a record of arrests by itself is not evidence of a defendant’s criminal history, it is appropriate to consider such a record as a poor reflection on the defendant’s character, because it may reveal that he or she has not been deterred even after having been subjected to the police authority of the State.”). Boyd was not deterred by his prior convictions or arrests and again displayed a gross lack of concern for the well-being of others when he shot Hatten. Boyd has failed to convince us that his twenty-five-year sentence is inappropriate. [14] The judgment of the trial court is affirmed. Bailey, J., and Mathias, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1108 | September 25, 2018 Page 8 of 8 

856 A.2d 724 (2004) 382 Md. 688 TAYLOR v. SOCIAL SERVICES Court of Appeals of Maryland. Granted August 25, 2004. Petition for writ of certiorati granted on the motion of this Court.

517 A.2d 1035 (1986) SECURITY PACIFIC CREDIT (HONG KONG) LTD. et al. v. LAU KING JAN, alias Wong Lau King Jan, alias, and S.C. Wong, alias, Wong Siu Chung, alias, and Hoiyong Corporation. No. 84-121-A. Supreme Court of Rhode Island. November 18, 1986. Jill S. Votta, Votta & Votta Law Offices, Ltd., Providence, for plaintiff. Daniel C. Waugh, Tillinghast Collins & Graham, Providence, for defendant. OPINION WEISBERGER, Justice. This case comes before us on appeal by Hoiyong Gems Corporation (Gems) from the entry of default and thereafter the entry of a default judgment in the amount of $1,146,659.63, including interest and costs. We vacate the judgment. The facts of the case as disclosed by affidavits of the parties are as follows. On July 22, 1983, plaintiffs, Security Pacific Credit (Hong Kong) Ltd. and Bank of Canton, Ltd., caused service of a summons and complaint to be made upon the agent of Gems for service of process. The complaint alleged that Gems and two individual defendants (who are not involved in this appeal) owed plaintiffs $983,057.82 on book account. The agent for service of process went on vacation for one week on the day after service of process was made. He had been excused from court appearances during that week. When the agent, who was also an attorney, returned, the officers of Gems were traveling out of state. Consequently, the agent sent a certified letter to the offices of Gems on August 1, 1983. The letter was received on August 26 when the treasurer of Gems returned to Rhode Island for a week. According to an affidavit filed by the agent, his attempt to communicate with the treasurer and to receive authorization to answer the complaint was made difficult by the fact that she, along with the other officers of the corporation, spoke English with difficulty. Consequently, he was unable to communicate effectively the need for a prompt response to the complaint in order to avoid an entry of default. Meanwhile, the agent procured an extension of time from counsel for plaintiffs until August 31, 1983. However, no authority to defend against the action was *1036 forthcoming from the officers of the corporation. Consequently, counsel for plaintiffs requested entry of default to be made by the clerk on September 9, 1983. Thereafter, an entry of appearance was filed on behalf of Gems on September 14, 1983, and a motion to set aside the default was filed pursuant to Rule 55(c) of the Superior Court Rules of Civil Procedure on September 29, 1983. Along with said motion was a proposed answer denying liability on behalf of Gems to plaintiffs in any amount, an affidavit of the agent for service of process setting forth his difficulties in communication with the officers of Gems, their lack of fluency in the English language, and their apparent lack of understanding of the requirement that the action against Gems be answered within a limited period. Also filed was an affidavit of Yu Yuet Ming, the treasurer of Gems, who set forth her lack of understanding of the English language, the lack of facility of other officers of Gems in the English language, and her failure to understand the need to have an attorney enter an appearance on behalf of and answer for the corporation. The treasurer also set forth in her affidavit that Gems had no book account with either plaintiff and owed no money to either plaintiff. The motion to set aside the default was denied by a justice of the Superior Court on or about October 13, 1983. Thereafter, on January 23, 1984, a hearing was held before another justice of the Superior Court on a motion filed by plaintiffs seeking entry of judgment by default. This motion was accompanied by affidavits in proof of claim, which indicated that plaintiffs had loaned money to the individual defendants Lau King Jan, S.C. Wong, and a corporation controlled by the individuals entitled S.C. Wong Jewelry Products Far East Limited (Wong, Ltd.). The affidavit also alleged that the assets of Wong Ltd. had been given to, transferred to, and/or usurped by Gems. It therefore appears that the action against Gems was not a book-account action, nor an action for money loaned, but essentially constituted a complaint to reach and apply assets that had been allegedly transferred to Gems in fraud of creditors. Although several issues have been raised in support of the appeal of Gems, we are of the opinion that one issue is dispositive. That issue may be stated as the question of whether the justice of the Superior Court erred in denying Gems's motion to remove the default. This court stated in Berberian v. Petit, 118 R.I. 448, 452-53, 374 A.2d 791, 793 (1977): "Under Super.R.Civ.P. 55(c) the only showing required for removing [a] default was `good cause' and not the `mistake, inadvertence, surprise, or excusable neglect' showing which would have been demanded under Super.R.Civ.P. 60(b), had the default been followed by the subsequent entry of a final judgment. And `where there are no intervening equities any doubt [about the existence of good cause,] should, as a general proposition, be resolved in favor of the movant to the end of securing a final trial upon the merits.' 6 Moore, Federal Practice ¶ 55.10[1], at 55-235 to -236 (2d ed. 1976)." With that statement of the general rule this court affirmed the removal of a default more than a year after it had been entered by the clerk. This rather liberal interpretation of Rule 55(c) is in accord with the interpretation given to its federal counterpart Fed.R. Civ.P. 55(c), whose terms are substantially identical to those of the Rhode Island rule. The general rule applicable to removal of entries of defaults in federal courts has been stated as follows: "A Rule 55(c) motion also may be granted whenever the court finds that the default was not the result of gross neglect, that the nondefaulting party will not be substantially prejudiced by the reopening, and the party in default has a meritorious defense." 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2696 at 518-19 (1983). *1037 Although federal courts have varied somewhat in their application of principles relating to removal of entries of default, it appears that a significant body of opinion would support resolving doubts in favor of removal of the entry of default, particularly in an action where large sums are involved in the suit. See, e.g., United States v. One Parcel of Real Property, 763 F.2d 181 (5th Cir.1985); Feliciano v. Reliant Tooling Co., 691 F.2d 653 (3rd Cir.1982); Tolson v. Hodge, 411 F.2d 123 (4th Cir.1969); In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398 (E.D.Pa. 1981); Henry v. Metropolitan Life Insurance Company, 3 F.R.D. 142 (W.D. Va. 1942). Applying the foregoing principles to the facts of the case at bar, we are of the opinion that there was no gross negligence shown in the failure to answer this case for a period of fourteen days after the extension of time for answering and entering an appearance had expired. Without question, the officers of the corporation did not respond promptly in authorizing either their agent for service of process or another attorney to proceed on behalf of Gems. In light of their lack of familiarity with the English language and their lack of understanding of the need for a prompt response, there is insufficient evidence to support a finding of gross negligence. Further, there seemed little prejudice to plaintiffs from this fourteen day delay other than the necessity to prove a claim against Gems, a burden that in the circumstances might well have provided some problems on the merits. We are of the opinion that cases involving alleged fraudulent conveyances are not readily to be resolved on affidavit in proof of claim as mere book-account cases. See generally, Spaziano v. Spaziano, 122 R.I. 518, 410 A.2d 113 (1980); Oury v. Annotti, 113 R.I. 506, 324 A.2d 325 (1974); Warwick Municipal Employees Credit Union v. Higham, 106 R.I. 363, 259 A.2d 852 (1969). Hence, we believe that the justice of the Superior Court in denying the motion to set aside the default applied too stringent a standard for a Rule 55(c) motion. For the reasons stated, Gems's appeal is hereby sustained, the order denying the motion to set aside the default is reversed. Consequently, the default judgment thereafter entered must also be vacated. The papers in the case are remanded to the Superior Court for further proceedings in accordance with this opinion.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 02-4415 ANTHONY JEROME DANIELS, a/k/a Ant, Defendant-Appellant.  Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (CR-99-11-V) Submitted: December 17, 2002 Decided: January 15, 2003 Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. COUNSEL Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. 2 UNITED STATES v. DANIELS Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Anthony Jerome Daniels appeals from his conviction and 180- month sentence for conspiracy to possess with intent to distribute quantities of cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 846 (2000). Daniels’ counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he raises three issues: (1) whether the Rule 11 hearing was adequate under Fed. R. Crim. P. 11; (2) whether the district court correctly applied the Sentencing Guidelines; and (3) whether the court properly denied his motion for a downward depar- ture under U. S. Sentencing Guidelines Manual § 4A1.3 (2000). Dan- iels filed a pro se supplemental brief arguing violations of Apprendi v. New Jersey, 530 U.S. 466 (2000), double jeopardy, and prosecu- torial misconduct. After reviewing the record, it is clear Daniels has waived his right to appeal in his plea agreement. A defendant may waive the right to appeal if that waiver is both knowing and intelligent. See United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). This Court reviews the validity of a waiver de novo. See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Because the district court fully questioned Daniels regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. See United States v. Wes- sells, 936 F.2d 165, 167-68 (4th Cir. 1991); United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir. 1990). Although Daniels waived his appellate rights, he may raise allega- tions of prosecutorial misconduct on appeal. However, Daniels’ con- tentions that the Government ran a "sham" on the court "by acting as  UNITED STATES v. DANIELS 3 if the indictment in this case charged a Federal offense" and created an "illusionary plea agreement," are baseless and unsupported. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We there- fore affirm Daniels’ conviction and sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a peti- tion would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 

F11- D E COURT APPEALS 2013 3 BY IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II KARYN A.CARBAUGH, an individual, No. 42780 0 II - - Appellant. V. JOHN N. JOSLIN and " JANE DOE"JOSLIN, UNPUBLISHED OPINION husband and wife, and the marital community comprised thereof, NORMA O. JOSLIN and JOHN DOE"JOSLIN, wife and husband, and the marital community comprised thereof, Defendants, and PROGRESSIVE NORTHWEST INSURANCE COMPANY, J. Karyn A. Carbaugh appeals a superior court's judgment against JOHANSON, A. . C — Progressive Northwest Insurance Company which reduced her arbitration award by offsetting an amount paid under her personal injury protection (PIP)coverage. We affirm the superior court holding that Progressive is entitled to the PIP offset for its PIP payments because Carbaugh's insurance contract contained an offset clause and she was fully compensated under her insurance No.42780 0 II - - policy. We also deny Carbaugh's request for appellate attorney fees and costs because Carbaugh does not prevail. FACTS In April 2005, John N. Joslin, while driving his mother's vehicle, struck a vehicle in which Carbaugh was a passenger, injuring Carbaugh. Joslin and his mother were both uninsured. Carbaugh had $ 0, 00 PIP coverage and $ 5, 00 underinsured motorist ( IM)coverage 1 0 2 0 U through Progressive. Carbaugh's insurance contract with Progressive contained an offset clause. In the UIM section, under the heading " IMITS OF LIABILITY," provides L it In determining the amount we will pay for bodily injury sustained by an insured person ... the amount of bodily injury damages which an insured person is entitled to recover ... shall be reduced by. . . 3. any paid under Part II — sums Personal Injury Protection Coverage due to bodily injury to the insured person. Clerk's Papers (CP)at 49 50. In 2005, 2006, and 2007, Progressive made several PIP payments - to medical providers on Carbaugh's behalf,totaling $ 28. 7230. , In 2008, Carbaugh sued Joslin and Progressive intervened. In April 2011, the Joslins, Progressive, and Carbaugh entered a stipulation and order of dismissal as to the Joslins and allowed Carbaugh to pursue her UIM coverage claims directly against Progressive. In July 2011, 1 The facts are undisputed. 2 UIM is an acronym for either uninsured or underinsured motorist coverage. Hamm v. State Farm Mut. Auto. Ins. Co.,151 Wn. d 303, 306 n. , P. d 395 ( 2004). Carbaugh's policy 2 l 88 3 defines an underinsured motor vehicle as a motor vehicle to which no liability policy applies at the time of the accident or to which a policy applies but the sum of all applicable limits of liability is less than the damages which the insured person is entitled to recover. 2 No. 42780 0 II - - the case proceeded to arbitration; the arbitrator awarded Carbaugh $ 70 7, in special damages 131. and $20, 00 in 0 general damages, for a 27, 31. The arbitrator's decision total award of $ 70. 1 awarded Carbaugh " llowable taxable costs and statutory fees [but] did not rule on any insurance a coverage issues including PIP offset."CP at 14. On September 7, 2011, Carbaugh moved the superior court to enter judgment on the arbitration award. Because the total award of $ 70 27, 31. exceeded Carbaugh's UIM policy 1 limits, Carbaugh sought judgment against Progressive for the full $ 000 UIM policy limits. 25, The next day, Progressive unsuccessfully moved the superior court for a PIP adjustment to the judgment amount, arguing that if the court awarded Carbaugh $25, 00, she would receive a 0 double recovery for her medical bills because Progressive had already paid Carbaugh $ 28 7,230. under her PIP coverage. The superior court denied Progressive's motion for a PIP offset, without explanation. Later that month, Carbaugh again moved the superior court to enter a $ 000 judgment on the 25, arbitration award and Progressive filed a motion for reconsideration of the superior court's order denying the PIP offset. The superior court granted Progressive's motion for reconsideration. It explained, I] order n to make her whole, she should receive $27, 31. The most she can 1 receive on the UIM coverage is $ 000. That means her PIP has to contribute 25, 2, to make her whole. She received from PIP $ 131 28. 7, 230. Backing out the 2, to make her whole leaves a reimbursement on the PIP of 5, 131 28]. $ 099[. 3 No. 42780 0 II - - Verbatim Report of Proceedings (VRP) Oct. 7, 2011) at 1. Thus, the superior court ordered ( that Progressive was entitled to a partial PIP offset of $ 58, entered judgment in the 5,098. and amount of 19, 01.to Carbaugh, plus interest, costs, and attorney fees. Carbaugh appeals. 42 $ 9 ANALYSIS Carbaugh argues that the superior court erroneously granted the PIP offset because if Progressive receives a PIP offset, 1) will not be fully compensated, 2) offset makes her ( she ( the worse off because she purchased UIM and PIP coverage from the same insurer, and ( 3) Progressive had no right to a PIP offset that reduced her award of general damages. We disagree and conclude that the superior court correctly granted the PIP offset because (1)Carbaugh's contract allowed Progressive to offset its UIM payments by the amounts paid under PIP coverage; 2)Carbaugh has been fully compensated and is,not entitled to double recovery; and ( 3) offset is appropriate even if the offset reduces Carbaugh's general damages. an 3 There is a de minimus discrepancy between the court's oral ruling and the written judgment. 4 The $ 28 7, in PIP payments and the $ 230. 42 19, 01.judgment equal the $ 9 70 27, 31.awarded by 1 the arbitrator. 5 Regarding attorney fees, the superior court specifically noted, So,I didn't do the Hamm [sic] " calculation, so you have to do the Hamm [sic] calculation, so that's going to drop that $ 099. 28 5, even lower."VRP (Oct. 7, 2011) at 1. Hamm fees are awarded in insurance cases and are an exception to the well known " merican rule"on attorney fees. Matsyuk v. State Farm Fire & - A Cas. Co., Wn. d 643, 647, 272 P. d 802 (2012)citing Hamm, 151 Wn. d 303).Otherwise 173 2 3 ( 2 known as the pro rata fee sharing rule, the Hamm fee rule requires a PIP insurer "to share pro rata in the attorney fees incurred by an injured person when the recovery benefits the PIP insurer."Matsyuk, 173 Wn. d at 647. 2 6 The parties agree that the superior court had jurisdiction to rule on the offset issue based on Mercier v. and GEICO Indem. Co., agree. 139 Wn. App. 891, 903, 165 P. d 375 (2007), we 3 review denied, 163 Wn. d 1028 (2008) and abrogated on other grounds by Little v. King, 147 2 Wn. App. 883, 198 P. d 525 (2008).In Mercier, GEICO argued that the superior court properly 3 decided the offset because the arbitrator did not have authority to decide any offset issues. 0 No. 42780 0 II - - When no relevant facts are in dispute, we review a superior court's decision regarding insurance coverage de novo. Hillhaven Props.,Ltd. v. Sellen Constr. Co., 133 Wn. d 751, 757, 2 948 P. d 796 (1997).Carbaugh and Progressive do not dispute the facts; therefore our review is 2 de novo. In determining whether an insurer is entitled to an offset, we apply a two step approach. - An insurer is entitled to an offset ... when both (1) contract itself authorizes it and (2) the the insured is fully compensated by the relevant `applicable measure of damages."' Sherry v. Fin. Indem. Co.,160 Wn. d 611, 619, 160 P. d 31 (2007)quoting Barney v. Safeco Ins. Co. ofAm., 2 3 ( 73 Wn. App. 426, 429 31, 869 P. d 1093 (1994), - 2 overruled by Price v. Farmers Ins. Co. of Wash.,133 Wn. d 490, 946 P. d 388 (1997)). 2 2 Carbaugh's contract with Progressive authorizes an offset under its UIM section. Because the contract itself authorizes an offset, we next determine whether Carbaugh was fully compensated, entitling Progressive to an offset for the PIP payments it made. Sherry, 160 Wn. d at 619. Insureds are fully compensated when they have recovered all of their damages as 2 a result of a motor vehicle accident. Sherry, 160 Wn. d at 621. Insureds are not entitled to 2 double recovery. Sherry, 160 Wn. d at 618. After an insured is "` ully compensated for his 2 f loss, "' an insurer may seek an offset, subrogation, or reimbursement for PIP benefits already Mercier, 139 Wn. App. at 898. Division One of this court disagreed, relying on MAR 6. for the 1 arbitrator's authority in mandatory arbitration to manage the full case and decide all issues. Mercier, 139 Wn. App. at 899. Because the arbitrator made clear that it believed it lacked authority to determine the offset issue, leaving it specifically for the superior court to decide, Division One agreed that the superior court acted appropriately in deciding the issue. Mercier, 139 Wn. App. at 902. Likewise, here the arbitrator had authority to rule on the offset issue, but specifically declined to do so. Therefore, because the arbitrator specifically, though incorrectly, declined to rule on the offset issue, we agree that the superior court appropriately decided the issue. 5 No. 42780 0 II - - paid. Sherry, 160 Wn. d at 618 (quoting Thiringer v. Am. Motors Ins. Co., Wn. d 215, 219, 2 91 2 588 P. d 191 (1978)). offset is "` credit to which an insurer is entitled for payments made 2 An a under one coverage against claims made under another coverage within the same policy."' Matsyuk v. State Farm Fire & Cas. Co.,173 Wn. d 643, 650, 272 P. d 802 (2012) quoting 2 3 ( Winters v. State Farm Mut. Auto. Ins. Co., Wn. d 869, 876, 1 P. d 1164 ( 001)). 144 2 3 3 2 First, Carbaugh argues that an insured is not fully compensated when an insurer receives a PIP offset reducing the insured's award if the insured's total damages exceed the UIM policy limits, citing Keenan v. Industrial Indemnity Insurance Co. of the Northwest, 108 Wn. d 314, 2 318 19, 738 P. d 270 (1987), - 2 overruled on other grounds by Price v. Farmers Ins. Co. of Wash., 133 Wn. d 490, 946 P. d 388 (1997), 2 2 and Taxter v. Safeco Ins. Co. ofAm., Wn. App. 121, 44 721 P. d 972 (1986), 2 review denied, 108 Wn. d 1037 (1987).Carbaugh misreads these cases. 2 Our Supreme Court in Keenan held that the insurer was entitled to an offset for PIP payments against amounts payable to the insured under the UIM endorsement and where the insured was fully compensated for all damages, even taking into account the offset.,108 Wn. d 2 at 317. Keenan quoted the rule from Taxter that " PIP setoff against UIM]coverage is valid a [ only when the extent of the insured's damages are less than his policy limits. Where the insured's damages exceed those limits, public policy dictates against any PIP offset."Keenan, 108 Wn. d at 318 (quoting Taxter, 44 Wn. App. at 131). 2 7 Neither subrogation nor reimbursement applies to Carbaugh's facts. Subrogation allows an insurer to recover what it pays to an insured under a policy by suing the wrongdoerthe insurer — steps into the shoes of its insured. Averill v. Farmers Ins. Co., 155 Wn. App. 106, 112 n. ,229 2 P. d 830, review denied, 169 Wn. d 1017 (2010). Reimbursement comes into play where an 3 2 insurer is permitted to recoup its payment out of the proceeds of an insured's recovery from the wrongdoerso the insurer's right of recoupment is contingent on a third party recovery by the — - insured. Averill, 155 Wn. App. at 112 n. . 2 No. 42780 0 II - - In Keenan, Genevieve Keenan was insured by Industrial Indemnity Insurance Company Industrial)for $ 0, 00 PIP for medical expenses, 10, 00 PIP for wage loss, and $ 5, 00 UIM 1 0 $ 0 3 0 coverage. Keenan, 108 Wn. d at 316. Keenan was injured in a head on collision with Buell 2 - Wood, who had a $ 000 liability policy. Keenan, 108 Wn. d at 315 16. After an arbitrator 25, 2 - awarded Keenan $44, 78. Industrial sought to reduce the amount it paid Keenan by the 28, 4 25, 00 Keenan received from Wood's insurance and by the $ 0 90 9, it had paid in Keenan's 999. PIP payments. Keenan, 108 Wn. d at 317. Keenan objected to the $ 2 90 9, offset, but our 999. Supreme Court held that the offset was appropriate. The court explained that the purpose behind UIM coverage is to allow an injured party to recover those damages he or she would have received had the responsible party maintained adequate liability insurance. The injured party is not entitled to be put in a better position, by virtue of being struck by an underinsured motorist, than she would be had she been struck by a fully insured motorist. Keenan, 108 Wn. d at 320 21 (citations omitted). 2 - The court further explained that UIM coverage and PIP coverage protect against two different risks. Keenan, 108 Wn. d 2 at 322. PIP coverage guarantees payment of special damages following an automobile accident, regardless of which party was at fault; while UIM coverage guarantees payment of both special and general damages, but only if the other driver was at fault. Keenan, 108 Wn. d 2 The two coverages at 322. " overlap at one point —payment of certain special damages when the other driver was at fault. Only at this point does the PIP reimbursement clause operate to deny plaintiff recovery under both coverages." Keenan, 108 Wn. d at 322. The court held that Industrial was entitled to a PIP offset to prevent Keenan from 2 getting double recovery. Keenan, 108 Wn. d at 321. 2 7 No.42780 0 II - - Similarly, in Carbaugh's case, the PIP offset prevents double recovery. The arbitrator awarded Carbaugh $ 70, $ 27, 31.7, was for special damages. As in Keenan, Carbaugh is 1 70 131. not entitled to a judgment for $ 5, 00 against Progressive in superior court because Progressive 2 0 has already paid Carbaugh's PIP medical costs of 7230. So a $ 000 judgment under the 28. $ , 25, UIM policy would result in double recovery. Instead, the PIP payments that Progressive has already paid represent where PIP and UIM overlap and Carbaugh is not entitled to double coverage of those damages. Keenan, 108 Wn. d at 321. 2 Carbaugh disagrees that the full $ 000 award would represent double recovery; but in 25, doing so, she erroneously asks us to rely on a Keenan quote out of context. Carbaugh argues that we should apply the rule that "[ here the insured's damages exceed those limits, public policy w] dictates against any PIP offset, " without looking at the circumstances in the Keenan case. Keenan involved a second driver who had $25, 00 0 liability insurance. Because Keenan's damages exceeded $ 25, 00, Keenan's 0 UIM coverage was available to make her whole. This coverage differs from the UIM coverage Carbaugh had where the second driver was completely uninsured. Sherry explained that UIM coverage is unique and "simply insures a driver against someone else not having enough insurance to pay a judgment, rather than insuring for full compensation in the case of an accident." Sherry, 160 Wn. d at 622 23. Ultimately, despite 2 - some seemingly contrary general language, the Keenan court applied the PIP offset to avoid double recovery, and we do the same here. 8 Keenan, 108 Wn. d at 318 (quoting Taxter, 44 Wn. App. at 131). 2 L No.42780 0 II - - Carbaugh also argues that Barney, 73 Wn. App. 426, supports her argument; but again Carbaugh ignores the factual distinction regarding the insurance coverage and asks us to rely on one quote from the case taken out of context. Barney is distinguishable because Barney's insurance contract did not contain an offset clause allowing Safeco to deduct medical payment coverage from its UIM coverage; but Carbaugh's insurance contract does. The Barney court specifically explained that its " olding would be otherwise if the insurance contract contained an h offset clause permitting Safeco to deduct the amount paid under its medical payments coverage from the amount due under its UIM coverage." Barney, 73 Wn. App. at 430. The court stated that if Barney's contract contained an offset clause, then Safeco could take the $5, offset 000 without depriving Barney of full recovery. Barney, 73 Wn. App. at 430. Carbaugh's contract contains the offset clause, thus Progressive is entitled to an offset without depriving Carbaugh full recovery of the $ 70 27, 31.awarded under the arbitration. 1 Next, Carbaugh argues that other Washington Supreme Court cases support her argument that she is entitled to double recovery in this case, citing Matsyuk, 173 Wn. d 643; Hamm v. 2 State Farm Mut. Auto. Ins. Co., 151 Wn. d 303, 309, 88 P. d 395 (2004); 2 3 Winters, 144 Wn. d 2 869; Mahler v. Szucs, 135 Wn. d 398, 957 P. d 632, 966 P. d 305 (1998). But again, these 2 2 2 cases are inapplicable. They address the issue of whether an insurer must pay a pro rata share of the insured's costs and attorney fees in obtaining a PIP offsetnot whether the PIP offset was — 9 Carbaugh also cites a New Mexico case and a Louisiana case in this section. Fickbohm v. St. Paul Ins. Co.,133 N. . 414, 63 P. d 517 (2002); M 3 Barnes v. Allstate Ins. Co.,608 So. d 1045 2 La. Ct. App. 1992). Because we are not bound by case law from other states and because we can reach our answer with Washington case law,we do not analyze Fickbohm and Barnes. to Barney, 73 Wn. App. at 427. E No. 42780 0 II - - appropriate. Matsyuk, 173 Wn. d at 647; Hamm, 151 Wn. d at 306; Winters, 144 Wn. d at 872; 2 2 2 Mahler, 135 Wn. d at 405. 2 Next, Carbaugh argues that the PIP offset prejudices her simply because she would have been better off had she purchased PIP and UIM coverage from two different insurers rather than one. She posits two hypothetical situations that she argues explain why Progressive is not entitled to an offset. But her arguments do not persuade because the insurance that she purchased contained an offset clause limiting Progressive's liability in situations such as hers. Thus, the superior court appropriately limited Progressive's liability when it reduced Carbaugh's award by a portion of the amount Progressive paid under the PIP coverage. Finally, Carbaugh argues that Progressive is not entitled to an offset that invades her award of general damages. Carbaugh argues that because the arbitrator awarded her $ 000 20, general damages, the superior court cannot apply a PIP offset that reduces her judgment below 20, 00. We considered and rejected an identical argument in Schrader v. Grange Insurance 0 Ass'n,83 Wn. App. 662, 922 P. d 818 (1996), 2 review denied, 131 Wn. d 1007, and overruled 2 on other grounds by Price, 133 Wn. d 490. 2 In Schrader, Grange Insurance Association paid $ 6, 27.in PIP benefits on Schrader's 50 4 8 behalf after an automobile accident. 83 Wn. App. at 665. An arbitrator awarded Grange 145, 00: $ 000 for general damages and $ 000 for special damages. Schrader, 83 Wn. 0 115, 30, App. at 665. Schrader argued that Grange was entitled to only a $ 000 offset rather than the 30, 50 46, 27.amount Grange paid under the PIP coverage because the arbitrator allocated $ 000 8 30, for special damages. Schrader, 83 Wn. App. at 666. We disagreed and explained that because Schrader's policy contained an offset clause, the arbitrator's award did not affect Grange's right 1. 0 No. 42780 0 II - - to offset its actual PIP payments. Schrader, 83 Wn. App. at 668. We stated, "To grant Schrader's claim would vitiate the insurance contract and punish the company for promptly paying [PIP payments] in good faith pending a final determination of liability." Schrader, 83 Wn. App. at 668.. Similarly here, Progressive's offset is not limited by the arbitrator's special damage award because Carbaugh's contract contained an offset clause and because Progressive should not be punished for promptly paying Carbaugh's medical bills. To conclude, we affirm the superior court's order allowing a PIP offset to Progressive because (1)Carbaugh's contract contained an offset clause; ( ) superior court's judgment, 2 the plus Progressive's PIP payments fully compensated Carbaugh under the arbitrator's 27, 31. 70 $1 award; and (3)Carbaugh is not entitled to double recovery. Accordingly, we affirm the superior court and hold that Progressive is entitled.to a $ 58 5098.PIP offset. . , ATTORNEY FEES Carbaugh requests attorney fees and costs on appeal under RAP 18.1 and for responding to Progressive's motion for reconsideration at the superior court under Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn. d 37, 54, 811 P. d 673 (1991), Safeco Insurance Co. v. 2 2 and Woodley, 150 Wn. d 765, 773 74, 82 P. d 660 (2004) Because Carbaugh does not prevail on 2 - 3 appeal, she is not entitled to attorney fees and costs. 11 No. 42780 0 II - - We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 040, 2.6.it is so ordered. 0 v t Johanson, A. . J. C We conofur: 7 6tJ 411- A% Z, - 0 Quinn- BrintnalY J. PI 12 

25 U.S. 19 (____) 12 Wheat. 19 MARTIN, Plaintiff in Error, v. MOTT, Defendant in Error. Supreme Court of United States. *28 The cause was argued by the Attorney General, and Mr. Coxe, for the plaintiff in error, and by Mr. D.B. Ogden, for the defendant in error. Mr. Justice STORY delivered the opinion of the Court. This is a writ of error to the judgment of the Court for the Trial of Impeachments and the Correction of Errors of the State of New-York, being the highest Court of that State, and is brought here in virtue of the 25th section of the Judiciary Act of 1789, ch. 20. The original action was a replevin for certain goods and chattels, to which the original defendant put in an avowry, and to that avowry there was a demurrer, assigning nineteen distinct and special causes of demurrer. Upon a joinder in demurrer, the Supreme Court of the State gave judgment against the avowant; and that judgment was affirmed by the high Court to which the present writ of error is addressed. The avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a Court Martial, for a failure to enter the service of the United States as a militia-man, when thereto required by the President of the United States, in pursuance of the act of the 28th of February, 1795, c. 101. It is argued that this avowry is defective, both in substance and form; and it will be our business to discuss the most material of these objections; and as to others, of which no particular notice is taken, it is to be understood that the Court are of opinion, that they are either unfounded in fact or in law, and do not require any separate examination. For the more clear and exact consideration of the subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795. The constitution declares that Congress shall have power "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions:" *29 and also "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." In pursuance of this authority, the act of 1795 has provided, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper." And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of Congress, or that Congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil. The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the *30 President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If "the power of regulating the militia, and of commanding its services in times of insurrection and invasion, are (as it has been emphatically said they are) natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the confederacy,"[a] these powers must be so construed as to the modes of their exercise as not to defeat the great end in view. If a superior officer has a right to contest the orders of the President upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his defence must finally rest upon his ability to establish the facts by competent proofs. Such a course *31 would be subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the President might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment. If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, "whenever the United States shall be invaded, or be in imminent danger of invasion, &c. it shall be lawful for the President, &c. to call forth such number of the militia, &c. as he may judge necessary to repel such invasion." The power itself is confided to the Executive of the Union, to him who is, by the constitution, "the commander in chief of the militia, when called into the actual service of the United States," whose duty it is to "take care that the laws be faithfully executed," and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, *32 that the statute constitutes him the sole and exclusive judge of the existence of those facts. And, in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny. This doctrine has not been seriously contested upon the present occasion. It was indeed maintained and approved by the Supreme Court of New York, in the case of Vanderheyden v. Young, (11 Johns. Rep. 150.) where the reasons in support of it were most ably expounded by Mr. Justice Spencer, in delivering the opinion of the Court. But it is now contended, as it was contended in that case, that notwithstanding the judgment of the President is conclusive as to the existence of the exigency, and may be given in evidence as conclusive proof thereof, yet that the avowry is fatally defective, because it omits to aver that the fact did exist. The argument is, that the power confided to the President is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the Executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the Court, that this objection cannot be maintained. When the President exercises an authority confided to him by law, the presumption *33 is, that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favourably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he may rightfully do, was so done. If the fact of the existence of the exigency were averred, it would be traversable, and of course might be passed upon by a jury; and thus the legality of the orders of the President would depend, not on his own judgment of the facts, but upon the finding of those facts upon the proofs submitted to a jury. This view of the objection is precisely the same which was acted upon by the Supreme Court of New-York, in the case already referred to, and, in the opinion of this Court, with entire legal correctness. Another objection is, that the orders of the President are not set forth; nor is it averred that he issued any orders, but only that the Governor of New-York called out the militia upon the requisition of the President. The objection, so far as it proceeds upon a supposed difference between a requisition and an order, is untenable; for a requisition calling forth the militia is, in legal intendment, an order, and must be so interpreted in this avowry. The majority of the Court understood and acted upon this sense, which is one of the acknowledged senses of the word, in Houston v. Moore, (5 Wheat. Rep. 1.) It was unnecessary to set forth the orders of the President at large; it was quite sufficient to state that the call was in obedience to them. No private citizen is presumed to be conversant of the particulars of those orders; and if he were, he is not bound to set them forth in hæc verba. The next objection is, that it does not sufficiently appear in the avowry that the Court Martial was a lawfully constituted Court Martial, having jurisdiction of the offence at the time of passing its sentence against the original plaintiff. Various grounds have been assigned in support of this objection. In the first place, it is said, that the original plaintiff was never employed in the service of the United States, but refused to enter that service, and that, consequently, he was not liable to the rules and articles of war *34 or to be tried for the offence by any Court Martial organized under the authority of the United States. The case of Houston v. Moore, (5 Wheat. Rep. 1.) affords a conclusive answer to this suggestion. It was decided in that case, that although a militiaman, who refused to obey the orders of the President calling him into the public service, was not, in the sense of the act of 1795, "employed in the service of the United States" so as to be subject to the rules and articles of war; yet that he was liable to be tried for the offence under the 5th section of the same act, by a Court Martial called under the authority of the United States. The great doubt in that case was, whether the delinquent was liable to be tried for the offence by a Court Martial organized under State authority. In the next place, it is said, the Court Martial was not composed of the proper number of officers required by law. In order to understand the force of this objection, it is necessary to advert to the terms of the act of 1795, and the rules and articles of war. The act of 1795 (s. 5.) provides, "that every officer non-commissioned officer, or private of the militia, who shall fail to obey the orders of the President of the United States," &c. shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a Court Martial." And it further provides, (s. 6.) "that Courts Martial for the trial of militia shall be composed of militia officers only." These are the only provisions in the act on this subject. It is not stated by whom the Courts Martial shall be called, nor in what manner, nor of what number they shall be composed. But the Court is referred to the 64th and 65th of the rules and articles of war, enacted by the act of 10th of April, 1806, ch. 20., which provide, "that General Courts Martial may consist of any number of commissioned officers from five to thirteen inclusively; but they shall not consist of less than thirteen, where that number can be convened without manifest injury to the service:" and that "any general officer commanding an army, or colonel commanding a separate department, may appoint General Courts Martial when necessary." Supposing these clauses applicable to the Court Martial in question, it is very clear, *35 that the act is merely directory to the officer appointing the Court, and that his decision as to the number which can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. But the present avowry goes further, and alleges, not only that the Court Martial was appointed by a general officer commanding an army, that it was composed of militia officers, naming them, but it goes on to assign the reason why a number short of thirteen composed the Court, in the very terms of the 64th article; and the truth of this allegation is admitted by the demurrer. Tried, therefore, by the very test which has been resorted to in support of the objection, it utterly fails. But, in strictness of law, the propriety of this resort may admit of question. The rules and articles of war, by the very terms of the statute of 1806, are those "by which the armies of the United States shall be governed;" and the act of 1795 has only provided, "that the militia employed in the service of the United States (not the militia ordered into the service of the United States) shall be subject to the same rules and articles of war as the troops of the United States;" and this is, in substance, re-enacted by the 97th of the rules and articles of war. It is not, therefore, admitted, that any express authority is given by either statute, that such a Court Martial as is contemplated for the trial of delinquents under the 5th section of the act of 1795, is to be composed of the same number of officers, organized in the same manner as these rules and articles contemplate for persons in actual service. If any resort is to be had to them, it can only be to guide the discretion of the officer ordering the Court, as matter of usage, and not as matter of positive institution. If, then, there be no mode pointed out for the formation of the Court Martial in these cases, it may be asked, in what manner is such Court to be appointed? The answer is, according to the general usage of the military service, or what may not unfitly be called the customary military law. It is by the same law that Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon *36 any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them. The act of the 18th of April, 1814, ch. 141, which expired at the end of the late war, was, in a great measure, intended to obviate difficulties arising from the imperfection of the provisions of the act of 1795, and especially to aid Courts Martial in exercising jurisdiction over cases like the present. But whatever may have been the legislative intention, its terms do not extend to the declaration of the number of which such Courts Martial shall be composed. The first section provides, "that Courts Martial to be composed of militia officers alone, for the trial of militia drafted, detached, and called forth, (not or called forth,) for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, when necessary, be appointed, held, and conducted, in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting, Courts Martial for the trial of delinquents in the army of the United States." This language is obviously confined to the militia in the actual service of the United States, and does not extend to such as are drafted and refuse to obey the call. So that the Court are driven back to the act of 1795 as the legitimate source for the ascertainment of the organization and jurisdiction of the Court Martial in the present case. And we are of opinion, that nothing appears on the face of the avowry to lead to any doubt that it was a legal Court Martial, organized according to military usage, and entitled to take cognizance of the delinquencies stated in the avowry. This view of the case affords an answer to another objection which has been urged at the bar, viz. that the sentence has not been approved by the commanding officer, in the manner pointed out in the 65th of the rules and articles of war. That article cannot, for the reasons already stated, be drawn in aid of the argument; and the avowry itself shows that the sentence has been approved by the President of the United States, who is the commander in *37 chief, and that there was not any other officer of equal grade with the major generals by whom the Court Martial had been organized and continued within the military district, by whom the same could be approved. If, therefore, an approval of the sentence were necessary, that approval has been given by the highest, and indeed only, military authority competent to give it. But it is by no means clear that the act of 1795 meant to require any approval of the sentences imposing fines for delinquencies of this nature. The act does not require it either expressly or by necessary implication. It directs (s. 7.) that the fines assessed shall be certified by the presiding officer of the Court Martial to the marshal, for him to levy the same, without referring to any prior act to be done, to give validity to the sentences. The natural inference from such an omission is, that the Legislature did not intend, in cases of this subordinate nature, to require any farther sanction of the sentences. And if such an approval is to be deemed essential, it must be upon the general military usage, and not from positive institution. Either way, we think that all has been done, which the act required. Another objection to the proceedings of the Court Martial is, that they took place, and the sentence was given, three years and more after the war was concluded, and in a time of profound peace. But the opinion of this Court is, that a Court Martial, regularly called under the act of 1795, does not expire with the end of a war then existing, nor is its jurisdiction to try these offences in any shape dependent upon the fact of war or peace. The act of 1795 is not confined in its operation to cases of refusal to obey the orders of the President in times of public war. On the contrary, that act authorizes the President to call forth the militia to suppress insurrections, and to enforce the laws of the United States, in times of peace. And Courts Martial are, under the 5th section of the act, entitled to take cognizance of, and to punish delinquencies in such cases, as well as in cases where the object is to repel invasion in times of war. It would be a strained construction of the act, to limit the authority of the Court to the mere time of *38 the existence of the particular exigency, when it might be thereby unable to take cognizance of, and decide upon a single offence. It is sufficient for us to say, that there is no such limitation in the act itself. The next objection to the avowry is, that the certificate of the President of the Court Martial is materially variant from the sentence itself, as set forth in a prior allegation. The sentence as there set forth is, "and thereupon the said General Court Martial imposed the sum of 96 dollars as a fine on the said Jacob, for having thus failed, neglected, and refused to rendezvous and enter in the service of the United States of America, when thereto required as aforesaid." The certificate adds, "and that the said Jacob E. Mott was sentenced by the said General Court Martial, on failure of the payment of said fine imposed on him, to twelve months imprisonment." It is material to state that the averment does not purport to set forth the sentence in hæc verba; nor was it necessary in this avowry to allege any thing more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chattels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects the imprisonment, because the certificate constitutes the warrant to the marshal for his proceedings. The act of 1795 expressly declares, that the delinquents "shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." If indeed it had been necessary to set forth the whole sentence at large, the first omission would be helped by the certainty of the subsequent averment. There is, then, no variance or repugnance in these allegations; but they may well stand together. Of the remaining causes of special demurrer, some are properly matters of defence before the Court Martial, and its sentence being upon a subject within its jurisdiction, is conclusive; and others turn upon niceties of pleading, to which no separate answers are deemed necessary. In general *39 it may be said of them, that the Court do not deem them well-founded objections to the avowry. Upon the whole, it is the opinion of the Court, that the judgment of the Court for the Trial of Impeachments and the Correction of Errors ought to be reversed, and that the cause be remanded to the same Court, with directions to cause a judgment to be entered upon the pleadings in favour of the avowant. JUDGMENT. This cause came on, &c. On consideration whereof, it is CONSIDERED and ADJUDGED, that there is error in the judgment of the said Court for the Trial of Impeachments and the Correction of Errors, in this, that upon the pleadings in the cause, judgment ought to have been rendered in favour of the avowant, whereas it was rendered in favour of the original plaintiff; and it is, therefore, further CONSIDERED and ADJUDGED, that the same judgment be, and the same hereby is, REVERSED and ANNULLED; and also, that the judgment of the Supreme Court of Judicature of the State of New York, which was affirmed by the said Court for the Trial of Impeachments and the Correction of Errors, be REVERSED and ANNULLED; and that judgment be rendered, that the said avowry is good and sufficient in law to bar the plaintiff's action, and that the plaintiff take nothing by his writ; and that the cause be remanded to the said Court for the Trial of Impeachments and the Correction of Errors, if the record be now in the said Court, and if not, then to the Supreme Court of Judicature of the State aforesaid, to which the same has been remitted, with directions to cause judgment to be entered upon the pleadings in favour of the avowant. NOTES [a] The Federalist, No. 29.

18‐152‐cv Burdick v. Kurilovitch 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand nineteen. PRESENT: AMALYA L. KEARSE, BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ STEVEN D. BURDICK, Plaintiff‐Appellant, v. No. 18‐152‐cv NYS TROOPER ALEX KURILOVITCH, NYS TROOPER MICHAEL SCHMIT, Defendants‐Appellees,  NEW YORK STATE POLICE, EDWIN CROUCHE, NYS TROOPER SERGEANT, OSWEGO COUNTY, NY, Defendants. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ FOR APPELLANT: Steven Burdick, pro se, Fulton, NY. FOR APPELLEES : Jonathan D. Hitsous, Esq., Assistant Solicitor General, Albany, NY, Jeffrey W. Lang, Deputy Solicitor General, for Barbra D. Underwood, Attorney General. Appeal from a judgment of the United States District Court for the Northern District of New York (Sannes, J.; Dancks, M.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Steven D. Burdick, proceeding pro se, appeals the district court’s judgment in his 42 U.S.C. ' 1983 action, following a jury verdict. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Burdick sued New York State Police officers claiming, as relevant here, that (1) they used excessive force in arresting him, (2) one of the officers initiated a malicious prosecution against him for child endangerment, and 2 (3) the publicity surrounding the arrest and prosecution damaged his reputation and business. On appeal, Burdick challenges the evidentiary rulings of the district court, its management of jury selection, and its failure to appoint Burdick new counsel after he claimed that his trial counsel was conflicted; Burdick also argues that the court was biased against him. A district court’s evidentiary rulings are reviewed for abuse of discretion. Kogut v. Cty. of Nassau, 789 F.3d 36, 47 (2d Cir. 2015). The admission of evidence of criminal convictions is governed by Fed. R. Evid. 404, which provides that evidence of a crime is not admissible to prove character. Huddleston v. United States, 485 U.S. 681, 685 (1988); accord United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012). Burdick objects to the admission of his 2009 arrest and related convictions. However, the record is clear that the district court did not admit the evidence to establish character. Rather, the court permitted the introduction of the 2009 arrest and related criminal proceedings so that the jury could assess Burdick’s theory of reputational harm. To the extent he suggests that his arrests and convictions were more prejudicial than probative under Fed. R. Evid. 403, that claim also fails. We “afford great deference to the district court’s balancing under Rule 403,” and will 3 overrule the district court’s decision only if it was “arbitrary and irrational.” United States v. Desposito, 704 F.3d 221, 234 (2d Cir. 2013). Here, Burdick’s prior arrest and the associated publicity were relevant to the question of reputational harm stemming from the second arrest. Indeed, Burdick admits the 2009 arrest and charges were highly relevant, arguing that the initial arrest was “the seed of doubt planted in the minds of [his] once loyal clientele,” which made them more susceptible to believing the second set of charges against him. Since the officers were permitted to use the conviction only to challenge Burdick’s assertion of reputational harm, the district court correctly determined that admission of the arrest and subsequent criminal proceedings was not substantially more prejudicial than probative under Fed. R. Evid. 403. Burdick also claims the district court erred by striking exhibits which would have painted him in a favorable light. These exhibits included a compilation of newspaper articles and online comments Burdick filed pro se. The district court struck these exhibits because, as a represented party, Burdick was obliged to have his trial conducted through his attorney. Burdick nevertheless argues that the exhibits should have been admitted to show his “personal history” and “ma[k]e [him] look favorable to the court.” Appellant’s Brief at 5. However, the desire 4 to explain his personal history and build sympathy was not relevant to whether the officers used excessive force in arresting him, or whether the prosecution for child endangerment was malicious. See Fed. R. Evid. 401 (for a fact to be relevant it must be “of consequence in determining the action”). Thus, the district court did not err in striking the exhibits. As to Burdick’s argument that the voir dire process rendered his trial unfair, “[t]he content and quality of the voir dire are generally committed to the sound discretion of the court, and will not be disturbed absent an abuse of discretion.” Pitasi v. Stratton Corp., 968 F.2d 1558, 1563 (2d Cir. 1992). A district court abuses its discretion if it refuses to adequately probe the jury for bias or prejudice. Id. Here, counsel did not object to the district court’s decision to limit voir dire to 15 to 20 minutes per side. Thus, this argument is unpreserved for appellate review. Cf. McCrory v. Henderson, 82 F.3d 1243, 1245 (2d Cir. 1996) (holding that failure to timely object to the opposing party’s use of peremptory challenges waives the right to do so later). But even on the merits, this argument is unpersuasive. See United States v. Maldonado‐Rivera, 922 F.2d 934, 971 (2d Cir. 1990) (concluding that 15 minutes of voir dire per side provided sufficient time to probe the jury for bias). Burdick also argues that the district court erred during voir dire by failing to more 5 thoroughly question jurors with law enforcement connections or who had heard of the case, citing to United States v. Flores‐Elias, 650 F.2d 1149, 1151 (9th Cir. 1981) (concerning a district court’s duties when a criminal defendant has been the subject of pervasive accusatory media coverage). But here, nothing indicated that the jurors had prejudged the case, and any jurors who had heard of Burdick’s arrests, when questioned, could not recall the details of the media coverage. Therefore, even if this argument were preserved for appeal, Burdick has failed to show that the district court erred during jury selection. Burdick next claims that the district court coerced him to retain conflicted counsel by telling him it would not appoint counsel or postpone the trial. But the district court did no such thing; it merely stated that it was disinclined to postpone a three‐year‐old case and recited the applicable law on appointment of counsel. Under that law, the appointment of counsel lies within the discretion of the district court, which may appoint counsel if it finds some likelihood of merit in the unrepresented party’s claims. See Hendricks v. Coughlin, 114 F.3d 390, 392–93 (2d Cir. 1997) (citing Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1987)). When there are serious conflicts that may warrant disqualification, the district court must ensure that the litigant fully appreciates the situation. Dunton v. Suffolk Cty., 729 6 F.2d 903, 908 (2d Cir. 1984) (concerning the simultaneous representation of a police officer and a county despite their divergent interests). Here, unlike in Dunton, the district court correctly determined that this case did not present a serious conflict. The court fully addressed Burdick’s concerns by affording him the opportunity to proceed without his retained counsel, and Burdick did not avail himself of that opportunity and chose to proceed to trial with his original counsel. The district court did not err. Finally, Burdick claims the district court was biased – and cites as proof the above rulings. But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” and do not do so here. Liteky v. United States, 510 U.S. 540, 555 (1994). We have considered Burdick’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court 7 

840 F.2d 14 U.S.v.Lozano* NO. 87-5537 United States Court of Appeals,Fifth Circuit. FEB 09, 1988 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

15 A.3d 216 (2011) BEAR MUFFLERS MASTERS, INC. v. GARNESKI. No. 452, 2010. Supreme Court of Delaware. February 22, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.

Case: 13-10122 Document: 00513154734 Page: 1 Date Filed: 08/14/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-10122 United States Court of Appeals Fifth Circuit FILED In the Matter of: ONDOVA LIMITED COMPANY, August 14, 2015 Lyle W. Cayce Debtor Clerk ---------------------------- GARY N. SCHEPPS, Appellant v. DANIEL J. SHERMAN, Chapter 11 Trustee, Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 3:12-CV-416 Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:* Attorney Gary Schepps appeals from a bankruptcy court order entered in the case styled Matter of Ondova Limited Company. 1 The order at issue, *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. 1 Case No. 09-34784-sgj-11 (Bankr. N.D. Tex.).  Case: 13-10122 Document: 00513154734 Page: 2 Date Filed: 08/14/2015 No. 13-10122 entered on December 15, 2011, barred Schepps from appearing or participating further in the Ondova Limited bankruptcy (the “Bar Order”). 2 Concluding that the Bar Order against Schepps was effectively vacated by subsequent orders of the district court and bankruptcy court—and emphasizing that it has so been vacated—we dismiss this appeal as moot. 3 I. By way of background, the Ondovo Limited bankruptcy spawned out of a convoluted litigation, the history of which we set out in Netsphere, Inc. v. Baron. 4 Schepps had served as counsel for Jeffrey Baron in Netsphere and he purported to represent Baron and various Baron-controlled entities, along with various other entities, in the Ondovo Limited bankruptcy. Some of the entities Schepps purported to represent in the Ondovo Limited bankruptcy became subject to a receivership order entered by the district court in the Netsphere 2 R.19-21. The Bar Order provided, specifically, that: (1) “Gary Schepps . . . shall file no further pleadings and/or appeals of any kind in the Ondova Limited Company bankruptcy, Case No. 09-34784-sgj-11;” (2) “[t]he Clerk for the United States Bankruptcy Court for the Northern District of Texas is directed to remove any pleadings and/or appeals filed by Gary Schepps electronically as soon as they are filed;” (3) “[n]o responses are required to be filed by counsel relating to any pleadings or appeals filed by Gary Schepps in this Bankruptcy Case;” and (4) “[i]n the event Gary Schepps files any pleadings in violation of this Order, this court will conduct a show cause hearing and issue appropriate sanctions against Gary Schepps.” Id. at 21. 3 Schepps’ notice of appeal references a district court order administratively closing the case with regard to his appeal from the Bar Order, but his substantive challenge pertains to the Bar Order itself. Because we dismiss Schepps’ substantive arguments as moot, and because mootness is an independent jurisdictional barrier, see North Carolina v. Rice, 404 U.S. 244, 245-46 (1971), we need not and do not reach the question of whether the district court order administratively closing the case was a “final decision” over which we have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. See generally Mire v. Full Spectrum Lending Inc., 389 F.3d 163 (5th Cir. 2004) (explaining that in some situations an administratively closed case is the functional equivalent of a stay and cannot constitute a final appealable order, but in others it is the functional equivalent of a dismissal over which an appellate court can exercise review). 4 703 F.3d 296, 302-05 (5th Cir. 2012). 2  Case: 13-10122 Document: 00513154734 Page: 3 Date Filed: 08/14/2015 No. 13-10122 case on November 24, 2010 (the “Receivership Order”). 5 The Receivership Order identified entities subject to the receivership as Baron and any Baron- controlled entity, and it “enjoin[ed] any person from taking any action based upon any [then] existing directive from any person other than the [r]eceiver with regard to the affairs and business” of any such entity. 6 It also gave the receiver exclusive authority to act on behalf of any such entity in legal proceedings and to control such entity’s actions in such proceedings. 7 After entry of the Receivership Order, Schepps made several filings in the bankruptcy court on behalf of Novo Point, LLC, an entity expressly subject to the receivership, apparently in violation of the Receivership Order. In response to these filings, and on motion of the receiver, the bankruptcy court issued a show-cause order and initiated contempt proceedings against Schepps. Following several rounds of hearings, the bankruptcy court issued the Bar Order, the purpose of which was to prohibit Schepps from taking further action on behalf of entities subject to the receivership in violation of the Receivership Order. Schepps appealed the Bar Order to the district court. By the time briefing was completed, “the [r]eceivership [was] in the process of winding down,” and the district court reasoned that the underlying purpose of the Bar Order would not be further served by its enforcement at that time. 8 On June 18, 2012, the district court entered an “Order on Appeal” that effectively reversed the Bar Order. 9 The district court’s Order on Appeal was entered on 5 Doc. 130, Case No. 3:09-cv-00988-L (N.D. Tex.) (Order Appointing Receiver, Nov. 24, 2010). Id. at 2. 6 Id. at 7-8. 7 8 See R.996-1001. 9 Id. at 1001 (“[I]t is ORDERED that Gary Schepps has a right to appear in the District Court as counsel of record for Baron and those entities he claims he owns. Schepps is 3  Case: 13-10122 Document: 00513154734 Page: 4 Date Filed: 08/14/2015 No. 13-10122 the bankruptcy court docket the same day. 10 In response to the Order on Appeal, the bankruptcy court issued the following order dated August 27, 2012: This court must honor the guidance and reasoning of the Article III court from which this bankruptcy court’s authority to exercise bankruptcy jurisdiction flows. [The district court] has essentially indicated in the Order on Appeal of Schepps Bar Order that, regardless of whatever restrictions he may have at one time intended with respect to Novo Point, LLC and who may speak for it, he believes Schepps should be permitted to speak for Jeff Baron, Novo Point, LLC, and any other entities Jeff Baron claim he owns in these court proceedings. Given this ruling, this court does not believe it is appropriate to further consider the Show Cause Matters that it has had under advisement. WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the Show Cause Matters are considered resolved and discharged and this court will not further consider the appropriateness of civil contempt sanctions against . . . Schepps. 11 No party challenged the district court’s Order on Appeal or the bankruptcy court’s subsequent order discharging the show-cause matters against Schepps. Months later, in Netsphere, we vacated the Receivership Order as improper. 12 We found it unnecessary to address an outstanding petition for a writ of mandamus filed by Novo Point, LLC, “which challenged the bankruptcy court’s decision to strike various notices of appeal filed by Novo Point [because] [t]he bankruptcy court struck these notices based on its finding that they violated the terms of the [R]eceivership [O]rder—which we have now set aside.” 13 To be clear, the Bar Order at issue today also stemmed from the GRANTED LEAVE TO APPEAL all orders of the Bankruptcy Court allegedly affecting property now in possession and control of the Receiver on Jeffrey Baron’s behalf.”). 10 Doc. 790, Case No. 09-34784-sgj-11 (Bankr. N.D. Tex.). 11 Doc. 807, Case No. 09-34784-sgj-11 (Bankr. N.D. Tex.). 12 703 F.3d 296, 311 (5th Cir. 2012). 13 Id. at 315. 4  Case: 13-10122 Document: 00513154734 Page: 5 Date Filed: 08/14/2015 No. 13-10122 bankruptcy court’s efforts to enforce the terms of the Receivership Order, which we vacated in Netsphere. On January 7, 2013, the district court entered an order instructing the clerk to administratively close the case with regard to Schepps’ appeal of the Bar Order because, “[i]n light of the Fifth Circuit’s recent opinion [in Netsphere] . . . there are no further issues . . . to address concerning the appeal of the [B]ar [O]rder.” 14 Schepps appeals the district court order administratively closing the case to our court. 15 II. Our decision in Netsphere vacated the Receivership Order from which the Bar Order derived. Yet even before Netsphere issued both the district court and the bankruptcy court issued orders effectively vacating the Bar Order and discharging all show-cause matters against Schepps. Emphasizing that the Bar Order is no longer of any effect and that Schepps remains an officer of the court in good stead, we DISMISS this appeal as MOOT. The Trustee’s motion to dismiss this appeal as untimely is DENIED as MOOT. 14 R.1002. 15 Id. at 1003-05. 5 

721 N.W.2d 487 (2006) STATE v. McCOY. No. 2006AP0417-CR. Supreme Court of Wisconsin. August 30, 2006. Petition for review denied.

United States Court of Appeals, Fifth Circuit. No. 92–2152. Henry J. WILSON, Plaintiff–Appellant, v. Al BUDNEY, Sr., Defendant–Appellee. Nov. 9, 1992. Appeal from the United States District Court for the Southern District of Texas. Before DUHÉ, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIAM: A prison inmate does not have a protectable liberty or property interest in his custodial classification. Moody v. Baker, 857 F.2d 256, 257–58 (5th Cir.), cert. denied, 488 U.S. 985, 109 S.Ct. 540, 102 L.Ed.2d 570 (1988). Henry J. Wilson's disagreement with his medical classification is insufficient to establish a constitutional violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991). The State was no t required to permit Wilson, a mental patient, to attend classes and religious services with the general prison population. See Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir.1986). Wilson's allegations of a conspiracy are merely conclusional and do not support an action under 42 U.S.C. § 1983. Hale v. Harney, 786 F.2d 688, 690 (5th Cir.1986) (citations omitted). His claim that he has received threats as a result of an allegedly false statement in his medical records also fails to state a constitutional violation. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). The district court did not abuse its discretion when it dismissed Wilson's in forma pauperis complaint as frivolous. See Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir.1992). AFFIRMED. 

733 F.Supp. 1410 (1990) John G. MILES, Plaintiff, v. DENVER PUBLIC SCHOOLS, Defendant. Civ. A. No. 89-B-1121. United States District Court, D. Colorado. March 27, 1990. Martha R. Houser, William J. Maikovich, Gregory J. Lawler, Michelle Smith Rabouin, Colorado Educ. Ass'n, Aurora, Colo., for plaintiff. *1411 Martin Semple, Patrick B. Mooney, Semple & Jackson, P.C., Denver, Colo., for defendant. MEMORANDUM OPINION AND ORDER BABCOCK, District Judge. Before me are cross motions for summary judgment. The sole issue is whether defendant Denver Public Schools (DPS) violated the First Amendment speech and expression rights of plaintiff teacher John G. Miles (Miles) by reprimanding him for a statement he made to his ninth grade National Government class. The issue has been adequately briefed by both parties and oral argument would not assist me in my ruling. Because DPS's interest in suppressing the speech outweighed Miles' interest in making the statement, I grant DPS's motion for summary judgment and deny Miles' motion for summary judgment. Plaintiff John G. Miles (Miles) was a teacher employed with defendant Denver Public Schools (DPS) at Thomas Jefferson High School. On March 31, 1989, while conducting his ninth grade National Government class, Miles was asked by a student to explain the difference between the high school today as opposed to prior years. According to Miles' uncontested deposition, Miles responded that the building now was not as clean, that there was a lack of discipline and "I don't think in 1967 you would have seen two students making out on the tennis court." Miles Deposition at 78. The deposition also indicates that Miles specifically named one of the individuals involved in the incident on the tennis court. Miles Deposition at 74-75, 79 & 119-20. The students allegedly involved in the incident on the tennis court and their parents complained to school personnel about Miles' statement. Miles was placed on administrative leave with pay while DPS conducted an investigation. Subsequently, the Assistant Principal issued a letter of reprimand to Miles which states in relevant part: After completing the investigation of the alleged incident in your period 3 class on March 30, 1989, I find it necessary to write you this letter of reprimand. The investigation revealed that you displayed poor judgment in your comment "making out" on the tennis court. Informing your students of an alleged incident of one of your tennis players "making out" with a female student on the tennis courts during the lunch period was an inappropriate topic for comment in a classroom setting. The letter was placed in Miles' personnel file. Miles was also instructed to "refrain from commenting on any items which might reflect negatively on any individual members of our student body." Miles' sole claim is that his answer to the student's question was protected by his right to exercise free speech and freedom of expression as guaranteed by the First and Fourteenth Amendments to the United States Constitution. DPS claims that the answer was outside the scope of First Amendment protection. Both parties seek summary judgment on this discrete issue. Whether Miles' reply is entitled to First Amendment protection is a legal query. Koch v. City of Hutchinson, 847 F.2d 1436, 1441 (10th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988). To establish that DPS's actions against Miles contravenes his First Amendment rights, Miles must satisfy the test articulated in Mount Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Under Mount Healthy, (1) Miles must initially show as a matter of law that his answer to the student's question deserves constitutional protection, (2) Miles then must prove as a factual matter that the answer was a motivating factor in the action taken by DPS against Miles and (3) DPS is then given an opportunity to prove that it would have taken the same action regardless of Miles' answer. McEvoy v. Shoemaker, 882 F.2d 463, 465 (10th Cir.1989). On the summary judgment motions before me, only the first prong of the Mount Healthy test is at issue. Miles' answer to the student's question deserves constitutional *1412 protection if (1) it constitutes a matter of public concern and (2) Miles' interest in answering as he did outweighs "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968); McEvoy, 882 F.2d at 465. I. MATTER OF PUBLIC CONCERN Whether Miles' answer to the student's question addressed a matter of public concern "depends on its content, context and form...." Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987); McEvoy, 882 F.2d at 466. Miles' answer is a matter of public concern if it can be "fairly considered as relating to any matter of political, social, or other concern of the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Wulf v. City of Wichita, 883 F.2d 842, 857 (10th Cir.1989). Miles' statement regarding students "making out" was in response to a question regarding the deteriorating conditions at the public school. Miles is correct in arguing that the subject pertained to the affairs of his students, the school and the community at large. His answer was not motivated solely by personal interest or hostility. See Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988). Rather, it was calculated to enlighten students to the relative condition of the institution in which he instructed and in which the students were enrolled. The subject had more than "purely personal significance." See Ware v. Unified School Dist., 881 F.2d 906, 909 (10th Cir.1989); McEvoy, 882 F.2d at 467. Thus, the topic itself was a matter of public concern. However, the public concern analysis does not stop here. As the Tenth Circuit recently stated: [I]n determining whether speech is on a matter of public concern, "it is not always enough that `its subject matter could, in [certain] circumstances, [be] the topic of a communication to the public that might be of general interest.' [Connick, 461 U.S. at 148] n. 8 [103 S.Ct. at 1691 n. 8] (emphasis added). What is actually said on that topic must itself be of public concern." Wilson v. City of Littleton, Colo., 732 F.2d 765, 769 (10th Cir.1984). Melton v. City of Oklahoma City, 879 F.2d 706, 713-14 (10th Cir.1989) (all modifications in original). I must look beyond the subject matter of the statement, which in this case is clearly a matter of public concern, and evaluate the statement itself. The distinction between subject matter and statement wording is important here because it is clear from the depositions that Miles was not reprimanded for making the now-and-then comparison of the school. He was reprimanded for using the rumored incident on the tennis court as an example and, more specifically, for using the name of one of the students alleged to have been involved in the incident. Miles does not argue that he had any basis for believing that the incident occurred but for hearing the story from a colleague. The pleadings show that the particulars of Miles' statement were nothing more than repetition of unsubstantiated rumor. Miles admits that he never confirmed that the incident in fact took place before circulating the rumor to his students. "It is difficult to see how a maliciously or recklessly false statement could be viewed as addressing a matter of public concern. Nonetheless, a merely erroneous statement may be of public concern." Wulf, 883 F.2d at 859 n. 24 (emphasis in original) (citation omitted). Likewise, although repetition of unverified information may involve a matter of public concern, I agree with defendants that, in this case, revealing the name of one of the students involved in the tennis court episode did not address a matter of public concern, even if subsequently confirmed. Arguably, Johnsen v. Independent School Dist., 891 F.2d 1485, 1490-93 (10th Cir.1989), stands for the proposition that I should not separate the subject matter of Miles' statement from the statement itself when determining whether it touched on a *1413 matter of public concern. Although I do not read Johnsen as stating such a rule, even if it did, Miles' statement is not protected by the First Amendment because his interest in answering the question as he did is outweighed by DPS's competing interests in suppressing the statement. II. COMPETING INTERESTS I agree with DPS that it has a stake in (1) preventing teachers from using their authoritative positions to provide credibility to otherwise unsubstantiated rumors, (2) disassociating itself from statements which lend credence to rumors about students, (3) the content and teaching methods of teachers, (4) providing an educational atmosphere free from embarrassing statements by teachers about students and (5) maintaining a teaching staff with sound judgment. These interests must be weighed against the interests Miles had in making the statement. Miles argues only that his status as a teacher heightens his First Amendment interest. It may be that, under some academic freedom theory applicable to high school instructors, he is afforded more latitude than a non-academic speaker. On the other hand, the academic freedom interest cuts both ways and may actually weigh in favor of DPS. As one commentator argued, "constitutional academic freedom should primarily insulate the university in core academic affairs from interference by the state" as opposed to protecting the individual teacher's autonomy. Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 Yale L.J. 251, 253 (1989). However, regardless of the issues in the field of academic freedom, I need not decide that issue because, even if Miles is correct, DPS's interests are weightier. Miles admittedly made an inappropriate comment. Although "[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern," Rankin, 483 U.S. at 387, 107 S.Ct. at 2898, it is relevant to balancing the parties' relative interest. Miles concedes his error in judgment. It can hardly be contested that DPS has an interest in maintaining the quality of its faculty. By the very nature of the teaching profession, poor judgment will most likely manifest itself in instructors' speech. Thus, in weeding out ineffective or harmful teaching methods, fostering an atmosphere free of embarrassing and pernicious rumors, and fashioning employment decisions calculated to attain or preserve teaching excellence, DPS may have to base its employment decisions on the content of teachers' expression. Under the circumstances here, the interests of DPS outweigh Miles' interest in making the statement. This is harmonious with the Supreme Court's "oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 571, 98 L.Ed.2d 592 (1988). ACCORDINGLY, it is ORDERED that Plaintiff's motion for summary judgment is DENIED. It is FURTHER ORDERED that Defendant's motion for summary judgment is GRANTED and this case is dismissed.

757 F.2d 1292 Perkinsv.Hartigan 84-2334 United States Court of Appeals,Seventh Circuit. 2/14/85 1 N.D.Ill. AFFIRMED

Docket Nos. 101231, 101347 cons.. IN THE SUPREME COURT OF THE STATE OF ILLINOIS INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, Appellant and Cross-Appellee, v. LOWE EXCAVATING COMPANY, Appellee and Cross-Appellant. Opinion filed November 30, 2006. JUSTICE FITZGERALD delivered the judgment of the court, with opinion. Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion. Justice Garman dissented, with opinion. Chief Justice Thomas took no part in the decision. OPINION This case involves litigation spanning 18 years between plaintiff, Lowe Excavating Company (Lowe), and defendant, International Union of Operating Engineers, Local 150 (the Union). In 1988, Lowe filed a multicount complaint against the Union in the circuit court of McHenry County, generally alleging that the Union picketed a Lowe work site with placards containing false information. After a bench trial, the trial court ruled in favor of the Union. The appellate court reversed, concluding that Lowe proved a cause of action for trade libel because the evidence showed that the Union made false statements and the statements were made with actual malice. On remand, the trial court awarded Lowe $4,680 in compensatory damages and $525,000 in punitive damages. The appellate court reduced the punitive damages award to $325,000. 358 Ill. App. 3d 1034. We granted the parties’ petitions for leave to appeal. For the reasons that follow, we reverse the judgment of the appellate court. BACKGROUND Lowe is an Illinois corporation that performs excavating and site- preparation services. In February 1988, Lowe was performing excavation work at the Canterbury Place Retirement Community in McHenry County. Specifically, Lowe was working on a portion of the project known as Ballashire Hall, which was funded by the federal government through the Department of Housing and Urban Development (HUD). In order to obtain the contract on this project, Lowe had to certify its payroll with the federal government, and thus had to demonstrate that it was paying its employees prevailing wages and benefits established by the United States Secretary of Labor. 40 U.S.C. §276a (1982). On February 15, 1988, the Union began picketing the Ballashire Hall site with placards stating: “NOTICE TO THE PUBLIC LOWE EXCAVATING DOES NOT PAY THE PREVAILING WAGES AND ECONOMIC BENEFITS FOR OPERATING ENGINEERS WHICH ARE STANDARD IN THIS AREA OUR DISPUTE CONCERNS ONLY SUBSTANDARD WAGES AND BENEFITS PAID BY THIS COMPANY LOCAL 150 International Union of Operating Engineers, AFL-CIO.” Lowe was ordered off the project by the general contractor as a result of the Union’s picketing. On that same day, Lowe filed a complaint in the McHenry County circuit court seeking a temporary restraining order (TRO), preliminary and permanent injunctions, and damages. The complaint alleged a cause of action for tortious interference with a prospective economic advantage. The Union -2- promptly filed a petition for removal of the matter to federal court, asserting that Lowe’s complaint sought relief for an unfair labor practice, which was a federal law issue. The federal court found that it did not possess subject matter jurisdiction over Lowe’s cause of action and returned the cause to the circuit court. Lowe subsequently amended its complaint to allege causes of action for trade libel, tortious interference with a contractual relationship, tortious interference with a prospective economic advantage and negligent interference with a contract. Lowe also continued to seek a TRO and further injunctive relief. The trial court granted Lowe’s request for a TRO, but denied Lowe’s request for other injunctive relief as being preempted by federal law. Lowe then filed an interlocutory appeal of the trial court’s judgment. The appellate court concluded that the cause of action was not preempted by federal law and thus remanded the matter for the circuit court to review Lowe’s motion for a preliminary injunction. Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150, 180 Ill. App. 3d 39 (1989) (Lowe I). The Union filed a petition for leave to appeal to this court, which was denied. Lowe Excavating Co. v. International Union of Operating Engineers, 126 Ill. 2d 560 (1989) (table). The Union then filed a petition for a writ of certiorari to the United State’s Supreme Court, which was likewise denied. International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 493 U.S. 975, 107 L. Ed. 2d 502, 110 S. Ct. 499 (1989). The matter proceeded to a bench trial in April 2000. At trial, the relevant evidence demonstrated that Lowe has been in business since 1969. Prior to 1988, Lowe employees were not unionized. In 1987, Colin Darling, a business agent for the Union, received information about the wages and benefits paid to Lowe employees from two individuals who were then employed with the company. That same year, the Union, at the invitation of Lowe’s president, Marshall Lowe, met with Lowe employees, seeking to represent them for collective- bargaining purposes. Negotiations between the Union and Lowe stalled. Several months later, in February 1988, the Union decided to picket Lowe because it believed that the company was not paying area-standard wages. The decision to picket was made by Darling and -3- another Union employee without any further investigation into Lowe’s wage or benefit packages. On Friday, February 12, 1988, the Union sent Lowe a mailgram indicating that it would be picketing at Ballashire Hall because Lowe was not paying its operating engineers area-standard wages. Lowe sent a telegram back to the Union which stated: “We are paying area standards.” The Union nevertheless began picketing the Ballashire Hall work site on the following Monday, February 15, 1988, at 6 a.m. The Union claimed that it did not know that Ballashire Hall was a federally funded project when it began picketing. However, the evidence presented at trial demonstrated that the Union was quickly advised of this fact by Bradley Brei, the president of FAMCO, the company serving as the general contractor of the Canterbury Place project. Brei testified that, when the picketing started, he approached Darling and “I asked Mr. Darling why they were even there, that Ballashire Hall was a HUD project and that I had already filed certified payrolls with HUD that Lowe Excavating was paying the prevailing wage rates and I could not understand on what bases *** he was there or why the pickets were there.” Despite this information, the Union continued picketing and did not cease until Brei ordered Lowe to discontinue its work and Lowe’s equipment was removed from the site. Lowe remained off the Ballashire Hall project until September 1988, when employees returned to do finishing work. Although the Union knew at that point, through Colin Darling, that Ballashire Hall was a federally funded project, it nevertheless picketed the work site. Lowe was removed a second time from the Ballashire Hall project by Bradley Brei. According to Marshall Lowe, the company suffered lost profits of $4,680 as a result of its removal from the Ballashire Hall project. Additionally, FAMCO declined to do business with Lowe for five to six years. Brei testified that he did not want to work with Lowe because he felt the company did not have its “house in order.” At trial, Lowe presented testimony from Frank Stampler, a certified public accountant, who stated that an audit of Lowe’s wages and benefits for the period of January 13, 1988, through February 16, 1988, demonstrated that Lowe employees at the Ballashire Hall project were actually being paid more than the federal prevailing wage rate. Additionally, John O’Hagan, president of Human Resources -4- Planning Associates, a business which provides compensation, benefits and insurance planning services, testified that he compared Lowe’s benefits with those of the Union in 1987 and 1988 at the request of Marshall Lowe. O’Hagan determined that Lowe’s health and life insurance plans were superior to the those of the Union. Marshall Lowe, however, admitted that, prior to August 1988, Lowe did not pay its employees prevailing wages and was not meeting the area standards for wages and employee benefits. Marshall Lowe specified that between 1969 and 1986, Lowe was not paying contract wage rates received by Union employees and did not offer a retirement plan for its employees. This practice changed when Lowe and the Congress of Independent Unions (CIU) entered into a collective-bargaining agreement in 1988, which provided that Lowe would pay prevailing wages at all times retroactive to April 15, 1988. Marshall Lowe added that the Ballashire Hall project was one of the first prevailing wage projects that Lowe ever worked on and, therefore, was one of the first times Lowe paid its employees the prevailing wage. After hearing the evidence, the trial court ruled in favor of the Union on all counts. Lowe appealed, and the Union cross-appealed. The appellate court reversed the judgment of the trial court. Lowe Excavating Co. v. International Union of Operating Engineers, Local No. 150, 327 Ill. App. 3d 711 (2002) (Lowe II). The appellate court concluded that the statement appearing on the placards used by the Union in picketing Lowe constituted defamation per quod. Lowe II, 327 Ill. App. 3d at 722. The court determined that, after being told by Brei that Ballashire Hall was a federally funded project, that Lowe’s payroll had been certified, and that Lowe was paying prevailing wages, “Darling at least should have entertained serious doubts as to the truth of the statements contained on the picket signs.” Lowe II, 327 Ill. App. 3d at 723. Because the Union continued to picket even after possessing this information, the court determined that the Union acted with reckless disregard for the truth and, therefore, the defamatory statements made were made with actual malice. The appellate court rejected the Union’s claim on cross-appeal that Lowe’s defamation claim was preempted by federal law. Lowe II, 327 Ill. App. 3d at 723. -5-  The appellate court then concluded that punitive damages could be appropriate in this case in light of its finding that the Union acted with actual malice. Lowe II, 327 Ill. App. 3d at 724. The appellate court thus directed the trial court to consider evidence of Lowe’s attorney fees in the event that it decided to award punitive damages. Lowe II, 327 Ill. App. 3d at 725. The court cautioned, however, that attorney fees could not “be awarded as a separate entity distinct from punitive damages.” Lowe II, 327 Ill. App. 3d at 725. The Union sought leave to appeal from this court, and leave to appeal was denied. Lowe Excavating Co. v. International Union of Operating Engineers, Local No. 150, 199 Ill. 2d 557 (2002) (table). The Union then filed a petition for a writ of certiorari to the United States Supreme Court, which was likewise denied. International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 537 U.S. 1028, 154 L. Ed. 2d 442, 123 S. Ct. 555 (2002). Upon remand, the trial court first entered a judgment in favor of Lowe in the amount of $4,680 for actual damages sustained as a result of the Union’s conduct. Lowe then filed a motion for punitive damages wherein it asserted that attorney fees plus expenses amounted to $506,659.78, and ultimately sought punitive damages of $5 million. The trial court accepted briefing from both parties on the issue of punitive damages and awarded punitive damages against the Union in the amount of $325,000. In doing so, the trial court specifically stated that punitive damages were appropriate in light of the appellate court’s finding of actual malice. The court added that punitive damages were necessary to deter the Union from similar conduct in the future. The court then noted that, while the actual damages in this case were small, Lowe “incurred substantial attorney’s fees and expenses in this protracted litigation.” The court specified, however, that it was “not awarding attorney’s fees.” The record shows that the court initially considered the fees of Lowe’s attorney, Gerard C. Smetana, which, according to his affidavit, totaled $304,101.62. The trial court did not consider the fees of Smetana’s cocounsel, Michael E. Avakian of the Center on National Labor Policy, Inc., as it did not appear that Lowe was responsible for payment of the $194,350 in fees and expenses incurred by Avakian and his organization. Lowe moved for reconsideration of the trial court’s punitive damages award, asserting that the trial court -6- improperly ignored the fees incurred by Avakian. The trial court reconsidered and increased the punitive damages award to $525,000. Both parties appealed. Neither party challenged the compensatory damages awarded, but both parties took issue with the award of punitive damages. The Union initially argued that punitive damages were inappropriate in this case. The appellate court disagreed, holding that punitive damages are available in defamation actions; that they were proper in this case because the Union acted with actual malice; and that the trial court imposed punitive damages for appropriate purposes, namely, punishing the Union for its malicious conduct and dissuading the Union from engaging in similar conduct in the future. 358 Ill. App. 3d at 1040-41 (Lowe III). The Union next raised a common law challenge asserting that the punitive damages awarded were excessive. The appellate court rejected this claim, stating that “[n]othing in the record suggests that the trial court’s award was the product of passion, partiality, or corruption.” Lowe III, 358 Ill. App. 3d at 1041. The appellate court added that the trial court carefully considered the nature and enormity of the Union’s misconduct and attempted to impose a sanction sufficient to deter the Union from similar offenses, while mindful of the amount of attorney fees incurred by Lowe. Lowe III, 358 Ill. App. 3d at 1041. The Union further argued that the punitive damages awarded were unconstitutionally excessive in violation of the due process clause. The appellate court agreed, finding that the ratio of punitive damages to compensatory damages was approximately 115 to 1 and was therefore “exceedingly disproportionate.” Lowe III, 358 Ill. App. 3d at 1044. The appellate court thus reduced the punitive damages award from $525,000 to $325,000, finding that “[s]uch an award *** results in a constitutionally acceptable ratio of approximately 75 to 1.” Lowe III, 358 Ill. App. 3d at 1046. As a result of this finding, the appellate court did not address Lowe’s contention that the amount of punitive damages awarded was insufficient. Lowe III, 358 Ill. App. 3d at 1046. We allowed the parties’ petitions for leave to appeal, and now consider whether the award fashioned by the appellate court was unconstitutionally excessive as urged by the Union, or whether the award was deficient, as urged by Lowe. -7-  ANALYSIS At the outset, we make clear that neither party contests the compensatory damages awarded in this case. Further, neither party is raising a common law challenge to the award of punitive damages. The issue in this case is whether the punitive damages awarded violate the due process clause of the fourteenth amendment, which prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 416, 155 L. Ed. 2d 585, 600, 123 S. Ct. 1513, 1519-20 (2003). I. Standard of Review The parties disagree as to the proper standard of review that should be used in reviewing this constitutional claim. Lowe asserts that an abuse of discretion standard should be applied and, in support, cites to Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129, 1138 (2004). Lowe misstates the holding of Franz. Contrary to Lowe’s assertions, the Franz court never used an abuse of discretion standard of review, under any circumstances, to determine the propriety of a punitive damages award. The Franz court did, however, provide a clear directive regarding the standard of review that should be used with respect to the constitutional claims raised herein. Citing Cooper Industries , Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 149 L. Ed. 2d 674, 121 S. Ct. 1678 (2001), the court explicitly stated: “The standard of review for the constitutional question of whether a punitive damages award is excessive in violation of due process is indeed de novo ***.” Franz, 352 Ill. App. 3d at 1147. Also relying on the Supreme Court’s decision in Cooper, as well as statements made by the Court in State Farm, the Union maintains that de novo review is proper in this case. In Cooper, the Supreme Court considered the proper standard of review in cases where punitive damages were alleged to be constitutionally excessive. In doing so, the Court acknowledged that the assessment of punitive damages was a form of punishment upon the wrongdoer and thus looked to jurisprudence in all areas of the law where “constitutional violations were predicated on judicial determinations that the -8- punishments were ‘grossly disproportional to the gravity of ... defendant[s’] offense[s].’ ” Cooper, 532 U.S. at 434, 149 L. Ed. 2d at 686, 121 S. Ct. at 1684, quoting United States v. Bajakajian, 524 U.S. 321, 334, 141 L. Ed. 2d 314, 329, 118 S. Ct. 2028, 2036 (1998). The Court noted that cases of this ilk required “an independent examination” of the relevant information by reviewing courts. Cooper, 532 U.S. at 435, 149 L. Ed. 2d at 686, 121 S. Ct. at 1685. The Court further noted that the question of whether a punishment is constitutionally excessive “ ‘calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate.’ ” The Cooper Court explored the reasons why de novo review was necessary under these circumstances. The Court explained that the concept of gross excessiveness is a “fluid concept[ ]” that cannot be precisely articulated. Cooper, 532 U.S. at 436, 149 L. Ed. 2d at 687, 121 S. Ct. at 1685, quoting Ornelas v. United States, 517 U.S. 690, 696, 134 L. Ed. 2d 911, 918, 116 S. Ct. 1657, 1661 (1996). Concepts of this nature acquire “ ‘content only through application’ ” and are best controlled and clarified through independent review. Cooper, 532 U.S. at 436, 149 L. Ed. 2d at 687, 121 S. Ct. at 1685, quoting Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at 1662. De novo review, under such circumstances, serves to “ ‘unify precedent’ ” and “ ‘stabilize the law.’ ” Cooper, 532 U.S. at 436, 149 L. Ed. 2d at 687, 121 S. Ct. at 1685, quoting Ornelas, 517 U.S. at 697-98, 134 L. Ed. 2d at 919-20, 116 S. Ct. at 1662. Finally, the Cooper Court explained that de novo review is beneficial because it provides citizens notice of conduct that will result in punishment and serves to assure the uniform treatment of individuals engaged in similar conduct: “ ‘Requiring the application of law, rather than a decisionmaker’s caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself.’ ” Cooper, 532 U.S. at 436, 149 L. Ed. 2d at 687, 121 S. Ct. at 1685, quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 587, 134 L. Ed. 2d 809, 834, 116 S. Ct. -9-  1589, 1605 (1996) (Breyer, J., concurring, joined by O’Connor and Souter, JJ.). In State Farm, the Supreme Court reiterated some of the principles set forth in Cooper and stated that de novo review was “mandated” when considering whether a punitive damage award was unconstitutionally excessive. State Farm, 538 U.S. at 418, 155 L. Ed. 2d at 601, 123 S. Ct. at 1520. Lowe argues that Cooper and State Farm, and the cases upon which they relied, do not require that this court utilize a de novo standard of review because those cases involved punitive damages awarded by a jury instead of a judge after a bench trial. We find this distinction to be of no consequence. Whether punitive damages were awarded by a judge or jury has no impact on the reasons articulated in Cooper for applying a de novo standard, such as unification of precedent and stabilization of the law. Accordingly, we review the constitutional question before us de novo. II. Constitutionality of Punitive Damages Award A. Excessiveness The Union first argues that the appellate court erred in affirming the trial court’s punitive damages award, as the damages imposed are unconstitutionally excessive in violation of due process. Lowe counters that the appellate court erred in reducing the punitive damages award and asserts that it is entitled to a greater amount of punitive damages. Lowe adds that the reduced award is deficient because it will not serve to adequately punish the Union for its misconduct against Lowe or deter the Union from similar misconduct in the future. The parties agree that the relevant test to determine whether punitive damages awarded are excessive was set forth in the United States Supreme Court’s opinion in BMW of North America, Inc. v. Gore, 517 U.S. 559, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996), and recently reiterated in State Farm. In those cases, the Supreme Court instructed that three guideposts should be considered in reviewing an award of punitive damages: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages -10- award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 155 L. Ed. 2d at 601, 123 S. Ct. at 1520, citing Gore, 517 U.S. at 575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1598-99. We now consider each of these guideposts in reviewing the punitive damages award presently in dispute. 1. Degree of Reprehensibility In Gore, the Supreme Court stated: “Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1599. Courts are instructed to consider the following factors when determining reprehensibility: (1) whether the harm caused was physical as opposed to economic; (2) whether the tortious conduct evinced an indifference to or a reckless disregard for the health and safety of others; (3) whether the target of the conduct was financially vulnerable; (4) whether the conduct involved repeated actions or was an isolated incident; and (5) whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm, 538 U.S. at 419, 155 L. Ed. 2d at 602, 123 S. Ct. at 1521. Courts are further instructed that: “The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect. It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” State Farm, 538 U.S. at 419, 155 L. Ed. 2d at 602, 123 S. Ct. at 1521. The appellate court considered the factors set forth in Gore and State Farm in determining the Union’s degree of reprehensibility. The court concluded that the reprehensibility of the Union’s conduct was heightened by facts demonstrating that Lowe was financially vulnerable because it is a small business with only 16 employees and its reputation is very important to its continued success. The appellate -11- court specifically found that the Union’s false allegations against Lowe were “potentially devastating” to Lowe’s reputation and “could have financially ruined the company.” Lowe III, 358 Ill. App. 3d at 1043. Further, the appellate court concluded that the Union’s conduct was not isolated, because the Union picketed on more than one occasion and continued to picket even after learning that Ballashire Hall was a federally funded project and Lowe was required to pay prevailing wages. Lowe III, 358 Ill. App. 3d at 1043. Finally, the court reiterated its previous holding that the Union’s conduct was the product of intentional malice. The court stated that the finding of malice was the “law of the case,” and it declined to alter the holding in light of evidence demonstrating that the Union knew Lowe’s payrolls had been certified by the Department of Labor. Lowe III, 358 Ill. App. 3d at 1043. The Union maintains that the appellate court’s findings were erroneous because none of the factors required to demonstrate reprehensibility were proven. Lowe disputes the Union’s claim, but agrees that the first two reprehensibility factors do not weigh in its favor. Lowe concedes that the Union’s conduct created a harm that was economic rather than physical and that the Union’s conduct did not evince a reckless disregard or indifference to the health and safety of others. A dispute arises, however, with respect to the third reprehensibility factor–financial vulnerability. The Union maintains that the evidence presented at trial was insufficient to demonstrate that Lowe was financially vulnerable. Lowe asserts that the evidence demonstrated that it is a small business and this fact proves its financial vulnerability. Lowe also argues that evidence in the record demonstrates that the company had to “engage in odd jobs in the winter to stay afloat until it was recalled for work in the Spring.” Contrary to Lowe’s contentions and the appellate court’s findings, we conclude that the record in this case is devoid of evidence demonstrating that Lowe was financially vulnerable. Lowe claims that the record shows that it was forced to “engage in odd jobs” after the picketing. However, the portion of the record Lowe cites merely demonstrates that, some four to six years after the Ballashire Hall project, FAMCO contacted Lowe to perform snow removal work. Lowe cites to nothing in the record indicating that it was required to do such work to “stay afloat,” as it now contends. -12-  Further, the fact that Lowe is a “small business” does not, by itself, prove financial vulnerability. While we agree with the appellate court that small businesses often rely on reputation to maintain and attract customers, the evidence presented in this case demonstrated that Lowe temporarily lost only one customer, FAMCO, as a result of the Union’s conduct. The evidence also demonstrated that Lowe operated as a nonunion company paying less than the prevailing wage rate for the area without incident from 1969 until 1988 when the Union picketed the Ballashire Hall site. There is no evidence that Lowe lost any other business as a result of the Union’s conduct. Moreover, the only financial loss proven was the $4,680 in lost profits stemming from the Ballashire Hall project. Lowe provided no other financial information which would demonstrate its vulnerability. We acknowledge that the United States Court of Appeals for the Third Circuit affirmed a finding by the United States district court that a “modest family-run business” was financially vulnerable without any evidence of its financial circumstances. See Willow Inn, Inc. v. Public Service Mutual Insurance Co., 399 F.3d 224 (3d Cir. 2005). In Willow Inn, the court awarded punitive damages to the plaintiff after evidence demonstrated that the defendant insurer acted in bad faith and withheld payment on Willow Inn’s property damage claim. In determining reprehensibility, the court found that Willow Inn was financially vulnerable based on evidence demonstrating that after being damaged by a tornado, the bar/restaurant was unable to afford professional help to clear away the rubble and initiate repairs. Instead, for 36 hours following the tornado, the owner and neighborhood volunteers worked to protect the building from further damage and clear away debris to make the surrounding area less hazardous. Willow Inn, 399 F.3d at 232. Lowe provided no evidence akin to that presented in Willow Inn which would demonstrate its financial vulnerability. Accordingly, we find that case to be readily distinguishable. Lowe cites to Planned Parenthood v. American Coalition of Life Activists, 422 F.3d 949 (9th Cir. 2005), to support its assertion that it was financially vulnerable. In that case, the defendants threatened and attempted to intimidate several doctors who performed abortions. The federal appeals court for the Ninth Circuit held that the defendant’s conduct was reprehensible in light of the physician’s -13- financial vulnerability. Specifically, the court determined that the physician’s livelihoods depended on their practices, and the defendants intentionally tried to scare the doctors into suspending their practices. In fact, one doctor stopped practicing because he feared for his life. Planned Parenthood, 422 F.3d at 958. Lowe argues that its livelihood and that of its employees depended on its ability to work, just as the doctors in Planned Parenthood. We find Lowe’s comparison to be unpersuasive. In Planned Parenthood, the doctors’ entire practice was negatively affected by the conduct of the defendants, and the doctors were afraid to perform a medical procedure which was the focus of their practices. In this case, Lowe was prohibited from working at one job site and temporarily lost the business of one customer. The record contains no evidence that Lowe lost other contracts or was unable to perform excavating work at other locations as a result of the Union’s conduct. Accordingly, we conclude that the appellate court erred in finding that Lowe was financially vulnerable. We now turn to the fourth reprehensibility factor–whether the Union’s conduct constituted an isolated incident or a repeated act of misconduct. The appellate court concluded that the Union’s conduct was repeated, finding that the Union picketed with false information from February 15, 1988, until June 30, 1988, and then again from September 28, 1988, until October 11, 1988. Lowe III, 358 Ill. App. 3d at 1043. The Union asserts that the appellate court erred in considering picketing conducted at any time other than February 15, 1988. The Union maintains that in Lowe II, it was held liable for its conduct in February 1988 only and, therefore, its conduct on other dates should not have been part of the appellate court’s determination in Lowe III. Lowe appears to agree that the appellate court’s finding in Lowe III regarding periods of time between February and June 1988 and September and October 1988 was not based on the evidence, as Lowe discusses only two instances of defamation in its briefs. Specifically, Lowe cites to the Union’s conduct beginning on February 15, 1988, and its conduct in September 1988 as evidence of repeated acts of misconduct. A review of the appellate court’s findings in Lowe II, as well as the evidence presented in the record and the parties’ representations in their briefs, demonstrates that the Union falsely picketed Lowe at the -14- Ballashire Hall project on February 15, 1988. The Union then returned to the site on February 16, 1988, and picketed again for some portion of the day. There was testimony presented which indicated that the Union returned for a third time on February 17, 1988, but that testimony was not corroborated and was contradicted. Significantly, in their briefs, the respective parties do not treat the February picketing incidents as separate encounters, and Lowe does not argue that the Union’s act of picketing on at least two, back-to-back days demonstrates recidivist conduct. Rather, Lowe points to the Union’s act of returning to Ballashire Hall in September 1988 for picketing as evidence of the Union’s repeated conduct. We note that there is no indication in the record, nor do the parties represent that the September picketing lasted for more than one day. We also note that there is no indication in the record, nor do the parties argue, that the Union falsely picketed Lowe on any other occasions that those previously identified. Although the Union admits in its brief to picketing Lowe repeatedly at various work sites throughout 1988, there is no evidence suggesting that picketing at sites other than Ballashire Hall was false. With these facts in mind, we are left to determine whether the Union’s false picketing in February and September 1988 constitutes repeated conduct supporting a reprehensibility finding. The Union argues that two instances of picketing falsely in February and September 1988 do not constitute a pattern of repeated malfeasance. In support, the Union points to federal jurisprudence which suggests that “repeated conduct” under the reprehensibility analysis is “not merely a pattern of contemptible conduct within one extended transaction ***, but rather specific instances of similar conduct by the defendant in relation to other parties.” Willow Inn, 399 F.3d at 232. The Union maintains that no evidence was presented to demonstrate that it falsely picketed anyone other than Lowe and, therefore, its conduct cannot be construed as repeated malfeasance. Lowe counters that the Union’s conduct was repeated because it occurred on more than one occasion. Lowe maintains that the Union’s “subsequent misconduct in September 1988” should be “counted” as evidence of recidivist behavior. -15-  The repeated conduct factor of the reprehensibility test is grounded in the Supreme Court’s opinion in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991), one of the precursors to Gore and State Farm. In that case, the Supreme Court adopted certain factors that should be considered when determining whether a punitive damage award was excessive or inadequate. These factors include “the degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct.” Haslip, 499 U.S. at 21, 113 L. Ed. 2d at 22, 111 S. Ct. at 1045. In Gore, the Supreme Court considered whether BMW engaged in repeated misconduct when it routinely sold cars in the state of Alabama that had been slightly damaged and repaired as “new” without disclosing the damages and repairs to the customer. The Court determined that BMW could not be labeled a recidivist even though it engaged in similar conduct in other states because its disclosure policy was not considered fraudulent in those other states. Gore, 517 U.S. at 577-78, 134 L. Ed. 2d at 827-28, 116 S. Ct. at 1599-1600. Significantly, the Court reached this conclusion despite evidence demonstrating that a jury in a similar lawsuit had previously found that BMW’s failure to disclose was fraudulent under Alabama law and awarded compensatory damages. Gore, 517 U.S. at 565, 134 L. Ed. 2d at 820, 116 S. Ct. at 1594. However, the Court stated: “Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant’s disrespect for the law. [Citations.] Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance.” Gore, 517 U.S. at 576-77, 134 L. Ed. 2d at 827, 116 S. Ct. at 1599-1600. Gore’s treatment of the repeated conduct factor demonstrates that recidivist conduct is to be considered reprehensible, and further demonstrates that court’s may look outside the misconduct committed toward the plaintiff in question to other, similar conduct, when considering the recidivism factor. -16-  In State Farm, the Supreme Court reaffirmed these principles. There, the Court considered whether the defendant insurer, which was found to have engaged in fraudulent insurance practices by improperly capping claim payments, was a repeat offender. The Court declined to label State Farm a recidivist for reprehensibility purposes because the plaintiffs were unable to present sufficient evidence of other conduct similar to that which injured them. State Farm, 538 U.S. at 423, 155 L. Ed. 2d at 604-05, 123 S. Ct. at 1523. Looking to Gore, the Court acknowledged that consideration of a defendant’s similar, past conduct towards others was relevant to a determination of reprehensibility, but, where evidence of repeated misconduct of the sort that injured the plaintiffs in question is “scant,” the conduct that actually harmed the plaintiffs “is the only conduct relevant to the reprehensibility analysis.” State Farm, 538 U.S. at 423-24, 155 L. Ed. 2d at 605, 123 S. Ct. at 1523-24. The lesson gleaned from the analysis in State Farm is that courts may look externally, to a defendant’s similar past conduct with respect to other parties, as well as internally, to a defendant’s conduct towards the plaintiff in question, when considering recidivism. Relying on Gore and State Farm, the United States District Court for the Third Circuit put this guideline into practice in Willow Inn when it looked to evidence of the defendant’s similar misconduct in relation to other parties as well as the defendant’s repetitive conduct towards the plaintiff in question to determine whether the defendant should be labeled a recidivist. In that case, the defendant insurance company was found to have improperly withheld insurance claim payments from the plaintiff. Although the court was disinclined to label the defendant a recidivist because there was no evidence presented which demonstrated that the defendant withheld payment of claims from other persons whom it insured, the court nevertheless gave some weight to the repeated conduct subfactor in determining punitive damages. The court stated: “[W]e consider this subfactor to be relevant, but with less force, insofar as the series of actions and inaction by PSM which delayed settlement of the claim *** implied a concerted effort to lessen PSM’s expected payment on the claim.” Willow Inn, 399 F.3d at 232-33. Similarly, in Williams v. ConAgra Poultry Co., 378 F.3d 790 (8th Cir. 2004), the Eighth Circuit found the defendant to have engaged in repeated racial discrimination against the plaintiff. In doing so, the -17- court looked to the plaintiff’s testimony concerning instances in which he experienced racism, as well as the testimony of other ConAgra employees who described instances of discrimination that were factually similar to those described by the plaintiff. ConAgra, 378 F.3d at 798; see also United States v. Veal, 365 F. Supp. 2d 1034, 1039 (W.D. Mo. 2004) (where court found the defendant’s conduct was recidivistic after evidence demonstrated that the defendant engaged in sexual harassment and discrimination against 11 different women and that the harm suffered by each woman was “severe and persistent”). Our appellate court’s decision in O’Neill v. Gallant Insurance Co., 329 Ill. App. 3d 1166 (2002), also provides guidance. The facts demonstrate that the defendant refused to even consider an offer to settle a claim resulting from an automobile accident where the policyholder was clearly negligent and the victim of the accident suffered severe and permanent injury. The defendant’s conduct “turned $20,000 worth of contractual duty into a $3,010,063 judgment for a bad-faith refusal to settle” and exposed the policyholder to financial ruin. O’Neill, 329 Ill. App. 3d at 1168. In determining whether the punitive damages awarded for the defendant’s bad-faith refusal to settle were unconstitutional, the court considered the repetitive nature of the defendant’s conduct. The court first looked to the defendant’s conduct towards the policyholder and concluded that there was evidence of repetitive misconduct. The facts showed that defendant refused to respond to a settlement demand; ignored repeated advice and pleas from the policyholder, her attorneys and claims adjusters within the company to settle; employed unnecessary legal tactics to avoid paying the claim; and lied to and threatened the policyholder. O’Neill, 329 Ill. App. 3d at 1182-83. As the court summarized, “Gallant blatantly ignored its policyholder’s financial security and did virtually nothing to protect her.” O’Neill, 329 Ill. App. 3d at 1183. The court then looked to conduct that extended beyond the policyholder’s case, and considered evidence revealing a pattern of conduct, over a five-year period, where the defendant’s Illinois customers suffered excess judgments based on the defendant’s refusal to settle within policy limits. O’Neill, 329 Ill. App. 3d at 1172, 1183. In light of this evidence, the court concluded that defendant’s conduct was reprehensible and ultimately found that the punitive damages awarded were not unconstitutionally excessive. O’Neill, 329 Ill. App. 3d at 1185. -18-  These cases demonstrate that courts are permitted to consider a defendant’s conduct towards the plaintiff in question, as well as similar conduct extending beyond the plaintiff’s case, when determining whether a defendant can be labeled a recidivist for reprehensibility purposes. Contrary to the Union’s contentions herein, a court’s consideration of recidivism should not be restricted to misconduct involving other parties unrelated to the case before the court. Thus, in applying the relevant analysis to the instant case, we find that the Union engaged in repeated acts of misconduct where the evidence demonstrated that it falsely picketed Lowe on more than one occasion in 1988. However, like the court in Willow Inn, “we consider this subfactor to be relevant, but with less force.” Willow Inn, 399 F.3d at 232-33. While we certainly do not condone the Union’s decision to continue to picket Lowe at Ballashire Hall after being advised that Lowe was paying the prevailing wage on the project, the fact remains that the Union falsely picketed Lowe at Ballashire Hall on two days in February 1998 and once in September 1988. There is no evidence before this court demonstrating that the Union falsely picketed Lowe, or anyone else, as a matter of course. The defendants labeled recidivists in the cases reviewed herein each had a “pattern” of misconduct that typified the manner in which they did business. There is no evidence of a similar pattern of misconduct in this case. Accordingly, while we conclude that the Union’s conduct was repeated for purposes of the reprehensibility analysis, we afford this factor little weight in our overall assessment of reprehensibility. We now turn to the final reprehensibility factor and consider whether the harm to Lowe was the result of intentional malice, trickery or deceit, or mere accident. Before addressing the parties’ arguments, we look again to the judgments of the appellate court on this issue. In Lowe II, the appellate court considered whether the Union published the defamatory statements about Lowe with actual malice, i.e., “ ‘with knowledge of their falsity or with reckless disregard of whether they were true or false.’ ” Lowe II, 327 Ill App. 3d at 722, quoting Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 65, 15 L. Ed. 2d 582, 591, 86 S. Ct. 657, 664 (1966). The appellate court recognized that “[r]eckless disregard for the truth means that the defendant published the statements while entertaining serious doubts as to the truth of the statements.” -19- (Emphasis omitted.) Lowe II, 327 Ill. App. 3d at 722-23. The court then looked to the facts which demonstrated that Darling was told by Brei that Ballashire Hall was a federally funded project, that Lowe’s payroll had been certified and sent to the Department of Labor, and that Lowe was paying prevailing wages. The court concluded that “Darling at least should have entertained serious doubts as to the truth of the statements contained on the picket signs,” and later reiterated that “the defendant committed a tort with actual malice.” Lowe II, 327 Ill. App. 3d at 723-24. In Lowe III, the appellate court stated that it “decline[d] to alter the law of the case with regard to the malice finding.” Lowe III, 358 Ill. App. 3d at 1043. Lowe now argues that we are bound by the law of the case, and therefore, must find that the Union acted with intentional malice. The Union agrees that we are bound by the law of the case, but asserts that the appellate court did not properly find actual malice. Instead, according to the Union, the appellate court made a finding of negligence by stating that “Darling at least should have entertained serious doubts as to the truth of the statements contained on the picket signs.” Thus, the Union asserts that if we follow the law of the case, we must conclude that Darling’s conduct was negligent rather than the product of intentional malice. We disagree with the parties’ interpretation of the law of the case doctrine. As this court explained in Relph v. Board of Education of De Pue Unit School District No. 103, 84 Ill. 2d 436, 442 (1981): “Even if the appellate court were bound by the law of the case it had announced in the first appeals, that limitation would not apply to this court. Although this court denied petitions for leave to appeal in both of the previous appeals of these cases, such action has no precedential effect and in no way amounts to a consideration of the merits of the cases. Nor does it indicate approval of the appellate court’s action. [Citation.]. Therefore, this is the first time these cases have been before us on the merits. Our review may cover all matters properly raised and passed on in the course of litigation. [Citation.]” See also Garibaldi v. Applebaum, 194 Ill. 2d 438, 447-48 (2000). Although this case has run the gamut of the appellate process in the past 18 years, this is our first opportunity to substantively review the -20- appellate court’s finding of actual malice. Accordingly, we are not bound by the law of the case doctrine. However, having reviewed the issue on the merits, we nevertheless agree with the appellate court’s conclusion that the Union acted with intentional malice. The facts of this case demonstrate that Darling either knew that the statements contained on his picket signs were false or, at the very least, seriously doubted their veracity. Nevertheless, he chose to picket Lowe at the Ballashire Hall project, on two occasions, demonstrating a reckless disregard for the truth or falsity of the statements. We thus find that the Union acted with intentional malice and, therefore, its conduct can be characterized as reprehensible. We note that our overall finding of reprehensibility rests mostly on only one of the five factors set forth in Gore, because, as previously explained, the repeated conduct factor lends marginal weight to a finding of reprehensibility based on the facts of this case. We are thus reminded of the Supreme Court’s cautionary statement in State Farm: “The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award.” State Farm, 538 U.S. at 419, 155 L. Ed. 2d at 602, 123 S. Ct. at 1521; see also Turner v. Firstar Bank, N.A., 363 Ill. App. 3d 1150, 1163-64 (2006) (where the court found that the presence of only one reprehensibility factor was insufficient to sustain a punitive damages award 20 times higher than the compensatory damages award); Clark v. Chrysler Corp., 436 F.3d 594, 605 (6th Cir. 2006) (where court held that the presence of only one reprehensibility factor was insufficient to sustain a large punitive damages award). 2. Disparity Between Actual Harm and the Punitive Damages Award Turning to the second Gore guidepost, we must consider the ratio between the actual harm suffered by Lowe and the punitive damages awarded. See Gore, 517 U.S. at 580, 134 L. Ed. 2d at 829, 116 S. Ct. at 1601; State Farm, 538 U.S. at 418, 155 L. Ed. 2d at 601, 123 S. Ct. at 1520. Lowe suffered $4,680 in actual damages and was awarded punitive damages of $325,000. The ratio between the actual harm and the punitive damages is approximately 75 to 1. The Union argues that this ratio is unconstitutional and unreasonable and, in support, cites several cases from other jurisdictions where punitive -21- damages exceeding a single-digit ratio were deemed unconstitutionally excessive and thus reduced. Lowe counters that the double-digit ratio was not excessive because the Union’s conduct was particularly egregious and the monetary value of the noneconomic harm was hard to detect and difficult to determine. In fact, Lowe asserts that the punitive damages awarded by the appellate court were deficient, and urges that the amount of punitive damages awarded should be increased. In considering whether a punitive damages award is constitutional, courts are instructed to consider whether there is a reasonable relationship between the punitive damages award and the potential and actual damages resulting from the defendant’s conduct. Gore, 517 U.S. at 581, 134 L. Ed. 2d at 830, 116 S. Ct. at 1602. The Supreme Court has “consistently rejected the notion that the constitutional line is marked by a simple mathematical formula” (Gore, 517 U.S. at 582, 134 L. Ed. 2d at 830, 116 S. Ct. at 1602) and has declined “to impose a bright-line ratio which a punitive damages award cannot exceed.” State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 605, 123 S. Ct. at 1524. Nevertheless, the Court has cautioned that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 605-06, 123 S. Ct. at 1524. The Court has also said that a punitive damages award of “ ‘more than 4 times the amount of compensatory damages’ might be ‘close to the line.’ ” Gore, 517 U.S. at 581, 134 L. Ed. 2d at 830, 116 S. Ct. at 1602, quoting Haslip, 499 U.S. at 23-24, 113 L. Ed. 2d at 23, 111 S. Ct. at 1046. The Court has, however, recognized that “because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’ ” State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 606, 123 S. Ct. at 1524, quoting Gore, 517 U.S. at 582, 134 L. Ed. 2d at 831, 116 S. Ct. at 1602. In this case, the trial court originally awarded Lowe $325,000 in punitive damages. The trial court then reconsidered the award and raised it to $525,000 after being persuaded to consider additional attorney fees. Although the trial court stated on the record that it was not awarding attorney fees, the punitive damages award is very close -22- to the amount of attorney fees and expenses incurred by Lowe, which was reported to be $506,659.78. The appellate court reviewed the award and found it to be unconstitutionally excessive. It thus reduced the award to $325,000, the amount originally granted by the trial court. In doing so, the appellate court acknowledged that the ratio between actual and punitive damages was in the double-digit range, but concluded that the ratio was appropriate because Lowe’s reputation was injured and a small amount of compensatory damages was awarded. Lowe III, 358 Ill. App. 3d at 1044-45. The appellate court relied on three cases to support the proposition that higher ratios in the double-digit range are appropriate where the amount of compensatory damages is minimal. In Routh Wrecker Service, Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998), the court approved a 75 to 1 ratio where the plaintiff was awarded only $1,000 in compensatory damages. Similarly, in Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262 (10th Cir. 2000), the court upheld a 59 to 1 ratio where the plaintiff was awarded $5,000 in compensatory damages. Finally, in Jones v. Rent-A-Center, Inc., 281 F. Supp. 2d 1277 (D. Kan. 2003), the court upheld a 29 to 1 ratio where the plaintiff was awarded $10,000 in punitive damages. We find the court’s reliance on these cases to be misplaced. A review of the facts of those cases demonstrates that the high, double- digit ratios awarded to the parties were less the result of small compensatory damages awards and more the result of particularly egregious conduct which caused the plaintiffs great personal harm. For example, in Routh, the court awarded punitive damages that were 75 times higher than compensatory damages after hearing evidence demonstrating that the defendant wrongfully accused the plaintiff of stealing a car from the defendant’s business and then swore out an affidavit for an arrest warrant knowing that the plaintiff did not steal the car. The plaintiff was subsequently arrested at his place of employment, handcuffed, booked and placed in a cell. The defendant did not drop the charges, but pursued them until they were ultimately dropped by the prosecution. Routh, 335 Ark. at 236, 980 S.W.2d at 242. The plaintiff was not only humiliated, he also suffered emotional and physical distress, including headaches and dramatic weight loss. Routh, 335 Ark. at 241, 980 S.W.2d at 244. The court concluded that the ratio of compensatory damages to punitive damages of 75 to 1 -23- was appropriate in that case because the defendant’s egregious and reprehensible conduct resulted in “extreme psychological pressure and turmoil.” Routh, 335 Ark. at 242, 980 S.W.2d at 245. Likewise, in both Deters and Jones, the plaintiffs were victims of extreme acts of sexual harassment in their respective workplaces. The Deters court found the 59 to 1 ratio of compensatory to punitive damages to be appropriate in light of the “particularly egregious” conduct of the defendants. Deters, 202 F.3d at 1273. The court added that a greater ratio is appropriate in cases where the injury suffered is “primarily personal” and noted that punitive damages awards are available in sexual harassment cases even in the total absence of compensatory damages. Deters, 202 F.3d at 1273. Relying on the rationale in Deters, the Jones court upheld a ratio of 29 to 1, citing the “personal” nature of the injury sustained by the plaintiff. Jones, 281 F. Supp. 2d at 1289-90. The Union’s conduct in the instant case is not comparable to the conduct of the defendants in Routh, Deters and Jones. Here, Lowe did not suffer a physical or emotional injury, and the injury sustained was not of a personal nature, as a corporation cannot be personally affronted. Lowe’s injury cannot be compared to the humiliation suffered by individuals who endure sexual harassment in the workplace, and is also not comparable to the injury sustained by an individual who is arrested at his workplace for a crime he did not commit, handcuffed, and placed in a cell. While ratios ranging from 75 to 1 to 29 to 1 may have been appropriate under those circumstances, we cannot conclude that a ratio in that range is appropriate here where the Union’s conduct was much less egregious. We recognize that low compensatory damages awards may support higher ratios where a particularly egregious act has resulted in a small amount of economic damage, or where an injury is hard to detect and the harm is difficult to determine. See Gore, 517 U.S. at 582, 134 L. Ed. 2d at 831, 116 S. Ct. at 1602; State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 606, 123 S. Ct. at 1524. In our estimation, the best way to determine whether a given ratio is appropriate is to compare it to punitive damages awards in other, similar cases. See Romanski v. Detroit Entertainment, L.L.C., 428 F.3d 629, 646 (6th Cir. 2005). The parties have not cited a case squarely on point with the one before us, but we have found cases which provide some guidance on this issue. -24-  In Argentine v. United Steel Workers of America, 287 F.3d 476 (6th Cir. 2002), the plaintiffs were elected officers of their union. They stridently criticized the defendant’s conduct during contract negotiations and were thus removed from their positions by the defendant without due process. The defendant accused the plaintiffs of mishandling the union’s funds and usurped the plaintiffs’ elected authority without proper notice and hearing. The plaintiffs were awarded $9,406 in compensatory damages and $400,000 in punitive damages. The defendant argued that the punitive damages award was excessive under Gore. The court determined that the defendant’s conduct was reprehensible because the defendant acted deliberately to violate the plaintiffs’ free speech rights and harm their reputations for the defendant’s own benefit. The court concluded that, although the compensatory damages were small “and without a ready monetary value,” a ratio of 42.5 to 1 was reasonable. Argentine, 287 F.3d at 488. In Turner, a case recently decided by our appellate court, the plaintiff was awarded $25,000 in compensatory damages for property stolen from her when her car was wrongfully repossessed by the defendant and $500,000 in punitive damages. The facts demonstrated that the defendant had a “systemwide” problem in its bill tracking system, and that it ignored the problem despite being aware that the system was only 50% accurate. The defendant’s conduct resulted in “multiple wrongful repossessions” throughout a one-year period. Turner, 363 Ill. App. 3d at 1155. The plaintiff’s car was wrongfully repossessed and she lost $25,000 worth of equipment which she stored in her car as a result. The plaintiff tried, with assistance of counsel, to obtain reimbursement from the defendant for these stolen items for nearly two years before she filed suit. During that time, even though plaintiff was able to provide documentation showing that she had paid off her car loan in full, the defendant reported her to three major credit bureaus and continued to report her for 3½ years. 3. Sanctions for Comparable Misconduct Gore instructs us to consider the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. See Gore, 517 U.S. at 583, 134 L. Ed. 2d at 831, 116 S. Ct. at 1603; State Farm, 538 U.S. at 428, 155 L. Ed. 2d at 607-08, 123 S. Ct. at 1526. The purpose of this guidepost -25- is to “ ‘accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.’ ” Gore, 517 U.S. at 583, 134 L. Ed. 2d at 831, 116 S. Ct. at 1603, quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 106 L. Ed. 2d 219, 254, 109 S. Ct. 2909, 2934 (1989) (Brennan, J., concurring, joined by Marshall, J.). It is uncontested that no comparable Illinois law imposes a civil penalty, such as a fine, for defamation. As the legislature has not spoken on this issue, it is not necessary for us to further consider this guidepost. See State Farm, 538 U.S. at 428, 155 L. Ed. 2d at 608, 123 S. Ct. at 1526; see also Turner, 363 Ill. App. 3d at 1164-65 (“Neither party has presented any cases or statutes regarding this factor that are comparable in a meaningful sense to this case, nor is this court aware of any such cases or statutes. Accordingly, this guidepost is of minimal value in our assessment”). Before fashioning a punitive damages award in this case, we take note of the observations of the Seventh Circuit set forth in Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003). There, the court pointed out several considerations that should be made in determining an appropriate compensatory to punitive damages ratio that are relevant to the case at bar. Specifically, the court cautioned that compensatory damages do not always “do the trick” in cases where the harm is largely dignatory because these damages may be too slight to give the victim an incentive to sue and are insufficient to deter and punish the defendant. Mathias, 347 F.3d at 677. Further, the court noted that an award of punitive damages can prevent a defendant from profiting from wrongful conduct. Mathias, 347 F.3d at 677. Finally, the court considered whether a defendant’s wealth enables it to mount an extremely aggressive defense, making litigation too costly for a plaintiff and making it difficult for a plaintiff to find a lawyer willing to handle an involved case for modest stakes. Mathias, 347 F.3d at 677. In addition to these considerations, we acknowledge that we are permitted to take into account the amount of the attorney fees expended in a case when assessing a punitive damages award. Lowe II, 327 Ill. App. 3d at 724-25, citing E.J. McKernan Co. v. Gregory, 252 Ill. App. 3d 514, 535-36 (1993). We also consider the need to achieve the goals of punishment and deterrence. Gore, 517 U.S. at 568, 134 L. Ed. 2d at 822, 116 S. Ct. at 1595; State Farm, 538 U.S. -26- at 416, 155 L. Ed. 2d at 600, 123 S. Ct. at 1519; O’Neill, 329 Ill. App. 3d at 1178-79. With all of these principles in mind, we hold that a punitive damages award of $325,000, at a ratio of approximately 75 to 1, is unconstitutionally excessive in light of the Union’s conduct in the instant case. We find that an award of punitive damages against the Union in the amount of $50,000, for a double-digit ratio of approximately 11 to 1, would be reasonable and constitutional. As our analysis demonstrates, the Union’s conduct was minimally reprehensible, and the appellate court’s award of punitive damages far exceeded awards given in other cases where the conduct exhibited was much more egregious. Furthermore, Lowe did not present evidence demonstrating that it sustained any injury to its reputation that extended beyond its strained and ultimately reconciled relationship with FAMCO. We cannot presume such damage, as the evidence does not warrant it. Indeed, the evidence shows that Lowe was a nonunion company paying less than the prevailing wage from 1969 until 1988. While Lowe’s business decisions in this regard have no bearing on the issue before us, it stands to reason that companies that did business with Lowe were aware of its practices, and remained Lowe customers nonetheless. We recognize that the $50,000 awarded here does not come close to covering the attorney fees and costs which were incurred throughout the duration of this protracted litigation. While attorney fees can be considered when awarding punitive damages, it is not within the purview of this court to award such fees outright, nor should they be awarded under the guise of a punitive damages award. E.J. McKernan Co., 252 Ill. App. 3d at 546; Anderson v. Ferris, 128 Ill. App. 3d 149, 156 (1984). We have considered the cost of the litigation, as well as the goals of punishment and deterrence in fashioning the punitive damages award, and even after making those considerations, we find an award of $50,000 to be appropriate. B. Fairness The Union argues that any amount of punitive damages awarded to Lowe in the instant case are unconstitutional because the Union lacked notice that it was at risk for such a severe punishment. The Union maintains that no other court has imposed liability for -27- defamation based on false picketing and, therefore, the Union did not have fair notice that its conduct could result in a punitive damages award. The Union failed to raise this claim of unfairness below, and raises it for the first time in this appeal. Accordingly, it is forfeited. Marshall v. Burger King Corp., 222 Ill. 2d 422, 430-31 (2006). However, we note that, even if we were to consider this claim, it would be deemed meritless, as it is well established that punitive damages can be awarded in defamation cases where a party, acting with actual malice, publishes false information about a person or entity. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 109-10 (1996); Edward v. Paddock Publications, Inc., 327 Ill. App. 3d 533, 566 (2001); Krasinski v. United Parcel Service, Inc., 208 Ill. App. 3d 771, 773 (1991); Winters v. Greeley, 189 Ill. App. 3d 590, 599 (1989). III. Lowe’s Claims As previously stated, Lowe asserts in its cross-appeal that the punitive damages award of $325,000 fashioned by the appellate court was deficient and should be increased. We decline to address this claim in light of our decision herein. CONCLUSION For the reasons stated, we reverse the judgment of the appellate court and affirm the judgment of the circuit court as modified by a reduction in the award of punitive damages from $325,000 to $50,000. Appellate court judgment reversed; circuit court judgment affirmed as modified. CHIEF JUSTICE THOMAS took no part in the consideration or decision of this case. -28-  JUSTICE GARMAN, dissenting: Because I believe the majority’s decision in this case does not adequately vindicate the goals of punitive damage awards, I respectfully dissent. While the majority cites the goals of punishment and deterrence as informing its punitive award against the union, the resulting award of $50,000 does not achieve the purpose of those goals. I agree with the majority’s analysis and consideration of the guideposts for reviewing the constitutionality of an award of punitive damages set forth in Gore and further developed in State Farm. State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418, 155 L. Ed. 2d 585, 601, 123 S. Ct. 1513, 1520 (2003), citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 134 L. Ed. 2d 809, 826, 116 S. Ct. 1589, 1598-99 (1996). These guideposts are “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 155 L. Ed. 2d at 601, 123 S. Ct. at 1520. In considering these guideposts courts must keep in mind the underlying goals of punitive awards. An award of punitive damages serves “to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore, 517 U.S. at 568, 134 L. Ed. 2d at 822, 116 S. Ct. at 1595; State Farm, 538 U.S. at 416, 155 L. Ed. 2d at 600, 123 S. Ct. at 1519. Punitive damages have been described as “private fines,” intended to deter future wrongdoing as well as punish a defendant. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432, 149 L. Ed. 2d 674, 684, 121 S. Ct. 1678, 1683 (2001). Not surprisingly, fashioning appropriate punitive awards in furtherance of these goals can be difficult in certain situations. Here, defendant’s conduct was reprehensible based upon the fact that it was intentional and malicious. However, defendant’s conduct of false picketing, while malicious, was not nearly as egregious as sexual harassment or wrongful prosecution. Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262 (10th Cir. 2000) (sexual harassment); Jones v. Rent-A-Center, Inc., 281 F. Supp. 2d 1277 (D. Kan. 2003) (sexual harassment); Routh Wrecker Service, Inc. v. -29- Washington, 335 Ark. 232, 980 S.W.2d 240 (1998) (defendant wrongfully accused and swore out an arrest warrant against plaintiff for a crime he did not commit). Moreover, the award by the appellate court would result in disparity between the compensatory damages suffered by plaintiff and the punitive damages awarded at a ratio of almost 75 to 1. These facts do not end the analysis, however. In fact, the majority acknowledges that there is no bright-line ratio to follow when considering the disparity between the actual harm suffered by a plaintiff and the punitive damages awarded and explains that courts have considered a variety of other factors in fashioning punitive awards. Slip op. at 20-21, 25. Despite this, the majority focuses too greatly on the size of the ratio, fails to adequately utilize the other factors courts consider in fashioning punitive awards, and loses sight altogether of the underlying goals of punitive damages. While the United State Supreme Court has stated that “few awards exceeding a single-digit ratio between punitive and compensatory damages *** will satisfy due process,” there is no bright-line ratio and courts consider a variety of factors when departing from single-digit ratios. State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 605-06, 123 S. Ct. at 1524. Where compensatory damages are inadequate to give victims any incentive to sue and thus insufficient to deter and punish defendants, punitive awards with high ratios are more appropriate. Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676-77 (7th Cir. 2003). Such awards are also more appropriate where a defendant’s wealth enables it to mount such an extremely aggressive defense that plaintiffs never bring suits in the first place. Mathias, 347 F.3d at 677. In these situations the extreme litigation costs imposed by the defendant’s practices and the potential difficulty these costs impose on a plaintiff’s ability to find a lawyer willing to fight in a case of modest stakes make high-ratio punitive awards more appropriate. Mathias, 347 F.3d at 677. Similarly, high- ratio awards are more appropriate where the attorney fees expended in a case are especially great. Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150, 327 Ill. App. 3d 711, 724-25 (2002), citing E.J. Mckernan Co. v. Gregory, 252 Ill. App. 3d 514, 535-36 (1993). While the majority identifies these factors, it does not appear to actually utilize them in concluding that a punitive damages award of $325,000, at a ratio of approximately 75 to 1, is unconstitutionally -30- excessive, while an award of $50,000, at a ratio of 11 to 1, is reasonable and constitutional. Although the majority’s analysis and resulting 11 to 1 ratio award make clear its belief that this is a situation where an award exceeding a single-digit ratio between punitive and compensatory damages meets the requirements of due process, the majority’s $50,000 award is not sufficient to achieve the punishment and deterrence purposes of punitive awards. Simply providing any double-digit ratio does not prove, in and of itself, an appropriate consideration of all the factors courts must utilize in finally setting an award. This case has been going on since February 17, 1988, when plaintiff first filed suit. The compensatory damages plaintiff was able to establish amounted to only $4,680. Its attorney fees were much greater. When plaintiff filed its original motion for punitive damages on August 15, 2003, it attached affidavits of its company president as well as its attorneys. The company president’s affidavit provided that plaintiff had, at that point, paid $225,925.83 in fees and expenses on the case. The attorneys’ affidavits provided that fees and expenses actually totaled over $500,000. These facts make evident that this is a situation where, under similar circumstances, compensatory damages may be too inadequate to give a victim an incentive to sue in the first place, and thus insufficient to punish and deter a defendant. Additionally, this case provides a strong example of a situation where, without a significant punitive award, extreme litigation costs could make it difficult for a plaintiff to find a lawyer willing to fight for such modest stakes. In fact, in making its findings concerning punitive awards, the trial court in this case specifically stated that it considered “the small amount of actual damages awarded to the Plaintiff, the additional harm to the Plaintiff caused by the Defendant’s actions which caused the Plaintiff to be involved in protracted litigation and to expend substantial amounts for attorney’s fees.” Finally, the attorney fees expended by plaintiff in this case are unquestionably high. Considering the above, and despite the flaws identified by the majority in the appellate court’s analysis of the Gore and State Farm factors, I do not feel that a punitive award of $50,000 goes far enough. While an award of $325,000 leads to a high ratio between punitive and compensatory damages, it does provide an amount truly informed by the facts of this case and the underlying goals of punitive -31- damages. Like the majority, I would therefore not strictly adhere to a single-digit ratio. Having found this a situation appropriate for a double-digit award ratio, I would go further than the majority to appropriately punish defendant for its intentionally malicious conduct as well as deter it and others from considering similar courses of conduct in the future. Similarly situated potential plaintiffs must know that they will receive adequate compensation to justify filing suit in these types of cases, or to offset the extreme litigation costs occasioned by overly and wrongfully aggressive defendants. Upholding the appellate court’s punitive damages award of $325,000 would accomplish these tasks and truly reflect a consideration of the factors which courts utilize in fashioning high-ratio punitive to compensatory awards. -32- 

Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-18-00427-CR Bobby J. PORTER, Appellant v. The STATE of Texas, Appellee From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR5248 Honorable Joey Contreras, Judge Presiding BEFORE JUSTICE MARTINEZ, JUSTICE RIOS, AND JUSTICE WATKINS In accordance with this court’s opinion of this date, the judgment of the trial court is affirmed. SIGNED April 17, 2019. _____________________________ Rebeca C. Martinez, Justice 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1710 REGINALD EVANS, Plaintiff – Appellant, v. CHERYL M. STANTON, Executive Director of South Carolina Department of Employment and Workforce (DEW), Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:16-cv-01585-JFA) Submitted: October 13, 2016 Decided: October 17, 2016 Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Reginald Evans, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Reginald Evans appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his civil complaint. The magistrate judge recommended that relief be denied and advised Evans that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007). Evans has waived appellate review by failing to file specific objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. 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 

827 F.Supp. 578 (1992) Julie BETTACK, Plaintiff, v. M-B COMPANY, INC., Defendant. No. 91-C-706-S. United States District Court, W.D. Wisconsin. March 16, 1992. *579 Mary E. Kennelly, Fox & Fox, Madison, WI, for plaintiff. James A. Mast, Rohde, Dales, Melzer, Te Winkle & Gass, Sheboygan, WI, for defendant. MEMORANDUM AND ORDER SHABAZ, District Judge. Plaintiff Julie Bettack brings this action for sex discrimination pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 201, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Jurisdiction is based on 28 U.S.C. § 1331. Pursuant to this Court's order of February 6, 1992, plaintiff was permitted to amend her complaint to add claims for compensatory and punitive damages and a demand for a jury trial pursuant to the Civil Rights Act of 1991. The matter now comes before the Court on defendant's motion to strike these newly-added claims on the grounds that the Civil Rights Act of 1991 is to be applied prospectively only. MEMORANDUM District courts which have considered the issue of retroactive application of the Civil Rights Act of 1991 have been sharply divided. However, most of the courts which have considered the issue have concluded that the Act and its legislative history are ambiguous concerning whether Congress intended retroactive or prospective application of the law. See e.g. Khandelwal v. Compuadd Corp., 780 F.Supp. 1077 (E.D.Va.1992). This Court agrees that neither the provisions of the Act nor the legislative history of the Act provide unambiguous statements as to Congressional intent on retroactive or prospective application of the law. Because the Statute and Legislative history are unclear, it becomes important to choose between the conflicting United States Supreme Court holdings in Bradley v. School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), and Bowen v. Georgetown University Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The distinction is important because Bradley presumes retroactive application, while Bowen presumes prospective application of the law. The Court finds that the Seventh Circuit Court of Appeals has consistently and clearly favored application of the Bradley rule over Bowen. Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089, 1095, n. 6 (7th Cir. 1991). The Seventh Circuit further clarified its position in Littlefield v. McGuffey, 954 F.2d 1337 (1992). In Littlefield the Seventh Circuit applied the Bradley analysis to the determination of whether to retroactively apply the removal of the cap on punitive damages under the Fair Housing Amendments Act of 1988. Given the similarity between the changes at issue in this case and the changes considered under the Fair Housing Amendments Act, it is apparent that the Seventh Circuit would apply the Bradley analysis to the retroactivity issue here. Other district courts in this Circuit have reached the same conclusion. Mojica v. Gannett Co., Inc., 779 F.Supp. 94 (N.D.Ill. 1991), Graham v. Bodine Electric Co., 782 F.Supp. 74 (N.D.Ill.1992), Bristow v. Drake Street, Inc., 1992 WL 14262 1992 U.S.Dist.Lexis 499 (N.D.Ill.1992). Accordingly, this Court is obliged to presume that Congress intended retroactive application of the Statute unless it determines that manifest injustice would result from retroactive application. In determining whether manifest injustice would result from retroactive application, the Court considers three factors: "(1) The nature and identity of the parties; (2) the nature of the rights *580 affected; and (3) the impact of the change in law on preexisting rights." Wright, 942 F.2d at 1096. There is no question that although this particular dispute is between private parties, cases involving sexual discrimination and the legislation under consideration are matters of public concern which favor retroactive application. The second factor requires the Court to determine whether retroactive application "would infringe upon or deprive a person of a right that had matured or become unconditional." Bradley, 416 U.S. at 720, 94 S.Ct. at 2020. The claims in question here concern the enhancement of certain remedies and the availability of a jury trial. Neither the right to a bench trial nor the right to limitation of damages constitute a matured or unconditional right under the second factor. United States v. Ettrick Wood Products, Inc., 683 F.Supp. 1262 (W.D.Wis.1988). Under the third Bradley factor, the issue is whether there is the "possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard." Wright, 942 F.2d 1089, 1096. The essence of the analysis under this factor is whether a defendant in conducting its affairs could reasonably have relied upon the law as it existed prior to the change. Wright, 942 at 1097 (party could not reasonably have relied upon a restrictive interpretation of prior common law in ordering financial affairs.) Bradley, 416 U.S. at 721, 94 S.Ct. at 2021. (Defendant would not have conducted litigation differently had it known of its obligation to pay attorneys' fees.) Applying that analysis here, there is no indication that the increased potential for damages would have influenced the defendant's alleged discriminatory conduct in any way. Mojica, 779 F.Supp. at 98. Since the defendant would have done nothing differently had it been aware of the change in the law, there is no manifest injustice to retroactive application. The Court is not persuaded that any minimal reliance which may have been placed on prior law during settlement negotiations is sufficient to rise to the level of manifest injustice. In conclusion, applying the reasoning of Bradley to the facts of this case the Court finds no manifest injustice to retroactive application. ORDER IT IS ORDERED that defendant's motion to strike plaintiff's amended claim for compensatory and punitive damages is DENIED.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-823V Filed: March 27, 2017 * * * * * * * * * * * * * * Special Master Sanders DAN WOJCIECHOWSKI, * * Attorney’s Fees and Costs; Unopposed; Petitioner, * Reasonable Amount Requested. * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Matthew B. Vianello, Jacobson Press & Fields, Clayton, MO, for Petitioner. Lisa A. Watts, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On July 11, 2016, Dan Wojciechowski (“Petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).2 Petitioner alleged that an influenza (“flu”) vaccine administered on October 21, 2016 caused him to suffer from transverse myelitis. Petition at 1-3, filed July 11, 2016. On March 8, 2017, the undersigned issued a decision awarding compensation to Petitioner pursuant to the parties’ joint stipulation. Decision, ECF No. 22. 1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.  On March 24, 2017, Petitioner filed an Unopposed Motion for Attorney’s Fees and Costs. Mot. Att’y’s Fees, ECF No. 25. Petitioner requested attorney’s fees in the amount of $13,437.50. Id. at 1. Petitioner requested attorney’s costs in the amount of $825.50, and costs personally incurred by Petitioner in the amount of $6.50. Id. at 1-2; Statement Regarding General Order No. 9, filed Mar. 27, 2017. Respondent indicated that he “does not object to the overall amount sought, as it is not an unreasonable amount to have been incurred for proceedings in this case to date.” Mot. Att’y’s Fees at 1. Respondent also stated that “Respondent’s lack of objection to the amount sought in this case should not be construed as an admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs.” Id. The undersigned has reviewed Petitioner’s counsel’s detailed records of time and expenses incurred in this case, and they are reasonable.3 In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorney’s fees and costs. Accordingly, the undersigned hereby awards the amount of $14,263.00,4 in the form of a check made payable jointly to Petitioner and Jacobson Press & Fields P.C.; and awards the amount of $6.50, in the form of a check payable to Petitioner only. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.5 IT IS SO ORDERED. /s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Petitioner’s application for fees and costs, although unopposed, relies upon a proposed hourly rate for Petitioner’s counsel, Matthew Vianello, who practices in St. Louis, Missouri. Respondent does not maintain an objection to the amount of fees and costs sought by Petitioner, and I find that the total sum requested is reasonable under the circumstances. Therefore, I do not reach the question of whether Mr. Vianello is entitled to the forum rate under the test established by the Federal Circuit in Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). This decision does not constitute such a determination. 4 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991). 5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 2 

436 F.2d 416 UNITED STATES of America, Appellee,v.Lee WEINBERG, Appellant.UNITED STATES of America, Appellee,v.David Alfred SCHEFFLER, Appellant.UNITED STATES of America, Appellee,v.Teri Ann VOLPIN, Appellant.UNITED STATES of America, Appellee,v.Karen DUNCAN, Appellant.UNITED STATES of America, Appellee,v.Pamela DONALDSON, Appellant. No. 26903, Misc. Nos. 5484-5487. United States Court of Appeals, Ninth Circuit. Dec. 23, 1970, Concurring Opinion Jan. 11, 1971. Jerald E. Olson, Asst. U.S. Atty., Seattle, Wash., for appellants. Warren H. Ploeger, James E. Nelson, J. Fred Simpson, Seattle, Wash., for appellee. ORDER Before HAMLEY and HUFSTEDLER, Circuit Judges. PER CURIAM. 1 The motions of the above-named appellants for admission to bail pending disposition of their appeals from district court orders adjudging them to be in civil contempt of court for refusing to testify before a Federal Grand Jury presently convened in Tucson, Arizona, and committing them to the custody of the United States Marshal for the District of Arizona for the life of the grand jury sitting at Tucson, or until March 31, 1971, whichever occurs first, or until such time as they purge themselves of the contempt, is granted. 2 Each of the named appellants shall be immediately released on his or her own recognizance or, in the discretion of the district court, released into the custody of one of his or her attorneys, pending disposition of their appeals, Provided, that this order is subject to reconsideration upon request of the United States filed on or before January 4, 1971. HAMLEY, Circuit Judge (concurring): 3 Two weeks after two judges of this court entered the bail order herein, a judge who did not act on the bail motion and had no responsibility for doing so, has filed a 'dissenting' opinion. 4 I question whether he is entitled to do so and, while I disagree with most of what he says, it would probably serve no useful purpose to state why. Since the 'dissenting' judge invokes the ghost of Christmas past in suggesting a subjective motivation for the bail order, I will let the afterglow of the Yuletide spirit forestall my inclination to respond point by point. CHAMBERS, Circuit Judge (dissenting): 5 Five persons appearing before a grand jury of the United States District Court at Tucson were granted immunity from prosecution. Thereafter, each refused to testify. Seriatim, they were locked up in the jail: civil contempt. 6 Here is a table of the witnesses and events: 7 Date Specified Judge in Date Refused Date Duration Tucson Notice of to Ordered of Ordering Appeal Testify Committed Commitment Commitment Filed Volpin 11/ 3/70 11/ 3/70 Life of Grand Craig 12/18/70 Jury1 or 60 days or until purged Scheffler 11/18/70 11/19/70 Life of Grand Goodwin 12/18/70 11/19/70 Jury1 or until purged Weinberg 12/ 1/70 12/ 2/70 Life of Grand Powell 12/18/70 12/ 2/70 Jury1 or until purged Duncan 12/ 1/70 12/ 3/70 Life of Grand Powell 12/18/70 12/ 3/70 Jury1 or until purged Donaldson 12/ 3/70 12/ 3/70 Life of Grand Powell 12/18/70 Jury1 or until purged 8 On December 21, 1970, the several recalcitrant witnesses moved in this court for bail pending appeal. Many of the supporting papers were partially incomplete copies of official papers in the clerk's office at Tucson. 9 The motion papers went out on December 22 to the members of the panel. Two members of the panel, acting alone, as they may under our established procedures,2 proceeded on December 23, 1970, to grant release immediately as indicated in the foregoing order. Bail was not even required. 10 It should be pointed out that District Judges Craig, Powell and William Goodwin were given no opportunity by anyone to issue the certificates contemplated by Section 301(a) of the 1970 Organized Crime Control Act, P.L. 91-452, 84 Stat. 922 (new 18 U.S.C. 1826(b)). 11 And the United States Attorney for the District of Arizona was given no opportunity to respond before two judges acted within 24 hours after receiving the moving papers. I assume that it must have been thought that giving the United States Attorney until January 4, 1971, to move to set aside the order was a good substitute for notice to the United States Attorney. I think not. 12 It is true that in emergencies one or another judge here has acted without notice to a party's opponent to preserve the status quo, letting the opponent come in later and make his showing. Here the status quo, the parties in jail, was destroyed without the government having an opportunity to be heard. Now there is little chance of the old status quo being restored during the period of incarceration ordered. 13 To my knowledge, in the last fifteen years in this court there is no precedent for such precipitate action. 14 Whatever excuse there might be for the fast procedure, if the appellants had acted promptly in petitioning, surely it could not be found on December 23, 1970. After commitment, able counsel for the defiant witnesses waited 45, 29, 16, 15 and 15 days respectively to appear simultaneously in this court. Here they received 'room service' within 48 hours. Haste here was so great, once the witnesses petitioned, that Judges Craig, Powell and Goodwin, who made the orders, were not given any consideration to be permitted to make the determination under section 1826(b) mentioned above. One of our two judges who acted on December 23, acting alone as he may, has now supplied the deficiency. He has certified that the appeals present substantial questions. (On the point of substantiality, I shall not comment. I might be on the panel hearing the case on the merits.) 15 Could the explanation for the pell mell haste be that Christmas was only two days away? If so, I wonder under what headnote the West Publishing Company would put the case in the Federal Reporter. 16 If the foregoing be the explanation, thousands of other prisoners in the Ninth Circuit who would have liked to have gone home for Christmas have been denied equal protection. 17 The people, the public, to wit: the United States, should have had a longer opportunity to be heard after the filing of the applications for bail. 1 At the date of commitment, the Grand Jury was to expire on December 31, 1970. This was later extended to March 31, 1971 2 I do not complain that two judges acted alone. On motions here, two may act alone, if they are in agreement. But, as the third member of the panel, my right, ex post facto, to file a dissent, I believe, is equally clear, so I now dissent, futile as it is

243 P.3d 159 (2010) 237 Or. App. 690 STATE v. YARBROUGH. A140130 Court of Appeals of Oregon. October 6, 2010. Affirmed without opinion.

Filed 2/28/13 P. v. Goodman CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D061713 Plaintiff and Respondent, (Super. Ct. No. SCE316313) v. KEVEN M. GOODMAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Affirmed A jury convicted Keven M. Goodman of fleeing from police in a motor vehicle, with willful and wanton disregard for safety, in violation of Vehicle Code section 2800.2. (Undesignated statutory references are to the Vehicle Code.) Goodman later admitted eight prison priors and the prosecution dismissed three other prison priors. The trial court sentenced him to the upper term of three years, plus five years for five of his priors, with the court striking three of the priors.  Goodman filed a timely notice of appeal asking us to examine the record and determine if there are any issues deserving of further briefing. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We have done so, find none, and hence affirm the judgment. FACTS Very early in the morning on November 15, 2011, Deputy Sheriffs Thomas Fletcher and John Greene were driving separate marked patrol cars in an unincorporated area of El Cajon. From about one hundred to two hundred feet away, Fletcher heard the radio of an approaching green Mustang that he later learned was being driven by Goodman. Believing the loud music to constitute a noise violation, he followed the car for about a minute and then effected a traffic stop by turning on his lights. The vehicle stopped immediately. Fletcher had encountered Goodman before, and during the prior contact, Fletcher pulled his gun on Goodman when Goodman reached into a jacket pocket. Fletcher later found that Goodman had a knife concealed in that pocket. After Goodman admitted to being on parole, Fletcher decided to do a parole search. At some point, Greene arrived at the scene. Believing that Goodman had an unfavorable view of him, Fletcher asked Greene to do the search. As Fletcher stepped back to his patrol car to run a record check on Goodman, Greene stood by the passenger- side door and spoke with Goodman. Greene became nervous and told Goodman to keep his hands on the steering wheel when Goodman reached between the center console of the car and the passenger-side floorboard. Goodman complied, but then reached for his cell phone. Greene again told Goodman to put his hands on the wheel and Goodman complied. Greene motioned for Fletcher to approach. Greene told Fletcher that 2 Goodman made him uncomfortable because Goodman was possibly reaching for something. Goodman refused Greene's request to put his arms behind his back to be handcuffed. Goodman became argumentative and refused to comply. After about 10 to 15 seconds of back and forth between Greene and Goodman, Fletcher pepper-sprayed the inside of Goodman's car based on Goodman's "verbal noncompliance." After Goodman put his head outside the window, Greene pepper-sprayed Goodman's face. Goodman yelled and then started his car and quickly drove off. Fletcher and Greene pursued Goodman in their patrol cars with their lights and sirens activated. After pursuing Goodman for about 11 minutes and 26 miles, Fletcher lost sight of Goodman's vehicle on the freeway and discontinued the pursuit. During the pursuit, Fletcher observed around nine traffic violations, including three stop sign violations, red light violations, driving in oncoming traffic, driving over the double yellow line on a divided highway, and driving at speeds in excess of 100 miles per hour. Law enforcement later found Goodman's car in Lakeside, but Goodman could not be found and was not taken into custody on that day. Goodman testified that he passed two patrol cars as he drove his Mustang. He claimed that the car's radio did not have the capacity to play very loud. After the traffic stop, Goodman claimed that he shielded his eyes from the patrol cars' lights, but that he complied when the second officer asked him to put his hands on the steering wheel. He sat in that position for five minutes. 3  Goodman asked, "What happened?" after one of the deputies suddenly asked him to put his hands behind his back. The deputy repeated the request and explained that he wanted to handcuff Goodman. When Goodman looked to the passenger side, he was pepper-sprayed through that side of the car. He was then pepper-sprayed from the driver side as well. Believing he had been pepper-sprayed for no reason, Goodman became afraid for his life and thought he might be shot. Goodman denied that he had driven as fast as Fletcher had claimed, noting that his vision was impaired from the pepper spray. He did testify, however, to running several stop signs and going eighty miles per hour on the freeway. On cross-examination, he admitted that he ran two stop signs and sped twice, once on surface streets and once on the freeway, for a total of four violations. DISCUSSION On appeal, Goodman's appointed appellate counsel filed an opening brief pursuant to Wende, requesting that we conduct an independent review of the record to determine whether there are any arguable appellate issues. (Wende, supra, 25 Cal.3d 436.) Under Anders v. California (1967) 386 U.S. 738, he listed as possible but not arguable issues, whether (1) the trial court properly instructed the jury that the initial traffic stop was legal, (2) trial counsel was ineffective for not moving for a "wobbler" determination, (3) the trial court erred in imposing the upper term, (4) the trial court erred in excluding photos of Goodman's searched car, and (5) the prosecutor committed misconduct in referring repeatedly to the amount of force used as legal or justified. We granted Goodman permission to file a brief on his own behalf. He has not responded. 4  We have examined the record pursuant to Wende and considered the possible issues referred to by appointed counsel. We find no reasonably arguable appellate issue. Competent counsel has represented Goodman on this appeal. In a subsequently filed petition for writ of habeas corpus (In re Keven M. Goodman on Habeas Corpus, D062777), Goodman asserted through the same attorney that filed the Wende appeal that he received ineffective assistance of counsel. On December 13, 2012, we issued an order to show cause made returnable before the superior court on the petition for writ of habeas corpus. DISPOSITION The judgment is affirmed. MCINTYRE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J. 5 

NO. 07-02-0066-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 8, 2002 ______________________________ MICAH FLETCHER, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-435,591; HON. BRADLEY UNDERWOOD, PRESIDING _______________________________ Before QUINN, REAVIS and JOHNSON, JJ. Micah Fletcher (appellant) pled guilty to the offense of possession of a controlled substance. Before so pleading, he moved to suppress evidence obtained as a result of an allegedly improper search and seizure. The trial court denied the motion. It is that ruling which he now appeals. And, to secure reversal, he argues, through two issues, that there existed no evidence of specific articulable facts justifying the initial stop. We overrule the issues and affirm the judgment.  Background On or about January 16, 2001, Officer Pete Lara (Lara) of the Lubbock Police Department observed appellant in a vehicle stopped at a red light. The officer noticed that the trunk of appellant’s car was “wide open” and that an “evaporative air conditioner [was] protruding from” it. Finding this to be suspicious, Lara stopped appellant and advised him that he did so because of the air conditioner. The officer then asked for a driver’s license. Appellant replied that he did not have one and instead produced a “check cashing identification card.” Lara returned to his vehicle to determine whether appellant was the subject of any outstanding arrest warrants. He discovered that appellant was. Furthermore, the officer received information illustrating that appellant’s driver’s license had been suspended, and that the registration of the vehicle appellant drove belonged to a different vehicle. At that point, Lara arrested appellant and conducted an inventory search of the car. While conducting the latter, methamphetamine was found. While searching appellant himself, incident to the arrest, the officer found marijuana on appellant’s person. Appellant moved to suppress discovery of the contraband, contending that Lara did not possess sufficient articulable facts allowing him to reasonably suspect appellant’s involvement in criminal activity. At the conclusion of the hearing, the trial court denied appellant’s motion. Standard of Review 2  The standard of review applicable to issues like that at bar is well settled. Instead of reiterating it, we cite the parties to State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997); Benitez v. State, 5 S.W.3d 915 (Tex. App.—Amarillo 1999, pet. ref’d); and State v. Clemmer, 999 S.W.2d 903 (Tex. App.—Amarillo 1999, pet. ref’d) for an explanation of same. Analysis Though we question the legitimacy of the initial stop conducted by Lara, we need not address whether it rendered inadmissible the evidence subsequently discovered. Instead, we conclude that the contraband was nonetheless admissible since it was discovered during a search incident to appellant’s arrest on the outstanding warrants. That is, Lara’s discovery of the outstanding warrants, which served as the basis for the arrest and subsequent searches, removed any taint that may have arisen from the original stop. Simply put, [d]iscovery of an outstanding warrant during an illegal detention of an individual breaks the connection between the discovered evidence and the primary taint . . . [T]he independent probable cause evidenced by the valid arrest warrants demonstrates that the evidence found during the search of appellant's person was not discovered through exploitation of the initial illegal arrest. Reed v. State, 809 S.W.2d 940 (Tex. App.—Dallas 1991, no pet.); see Welcome v. State, 865 S.W.2d 128, 133-34 (Tex. App.—Dallas 1993, pet. ref’d); Brooks v. State, 830 S.W.2d 817, 821 (Tex. App.—Houston [1st Dist.] 1992, no pet.); accord, Johnson v. State, 496 S.W.2d 72, 74 (Tex. Crim. App. 1973) (holding that the photographs of appellant taken at 3 the police station after a purportedly illegal arrest were admissible since, at the time the photos were taken, the appellant was also the subject of a pre-existing and valid arrest warrant involving unrelated crimes).1 Here, while the initial detention may have been improper, Lara discovered that appellant was the subject of a valid arrest warrant. Furthermore, the contraband found on appellant and in the car was the fruit of two searches conducted once appellant was arrested via the outstanding warrant, not the initial stop. Thus, Reed, Welcome, Brooks, and Johnson control the outcome of this appeal and compel us to hold that discovery of the contraband was sufficiently attenuated from the initial detention so as to purge the contraband of any alleged taint. Furthermore, we disagree with appellant’s contention that Reed, Welcome and the other cases are distinguishable because the initial stop conducted in each was purportedly legitimate. First, no court expressly conditioned application of the rule upon the legitimacy of the initial stop. Rather, the rule, as expressed, denotes an improper stop coupled with the subsequent discovery of an arrest warrant, not a proper stop and then discovery of outstanding warrants. Furthermore, the Texas Court of Criminal Appeals in Johnson simply assumed that the initial stop (which was itself the supposedly unlawful arrest) was improper when it deigned to apply the rule. Second, much like the court in Reed, we too opt not to hold that officers must release those otherwise lawfully subject to a valid arrest pursuant to a valid arrest warrant merely because the initial detention was questionable. 1 We note that the Reed court relied on the opinion rendered by the Court of Criminal Appeals in Johnson to reach the conclusion it did. 4  To hold otherwise would place us on the horns of a dilemma. We would have to say that the police should have released a suspect who was in their custody illegally notwithstanding the existence of warrants for that suspect's arrest, or, alternatively, that the fruits of a search incident to a legal arrest are inadmissible because the arrest would not have occurred "but for" an illegal detention. Both possibilities have serious implications and entail line drawing that we are not prepared to do. For example, if the police illegally detain a suspect and discover arrest warrants, may they release the suspect and re-arrest him and then conduct a legal search? If not, is he forever immune from the consequences of a search incident to a subsequent arrest under those same warrants? If so, when can they re-arrest him? After he steps outside the door of the police station? A block away? The same day? And so forth. Reed v. State, 809 S.W.2d 948 n.3. So, we, like the court in Reed, act with some “trepidation,” but nonetheless concluded that the arrest warrant provided sufficient attenuation so as to insulate discovery of the contraband from taint. Id. However, our decision should not be read as implying that an officer may detain individuals for no other reason than his hope to later discover that they are subject to arrest via a pre-existing, valid warrant. Should that circumstance arise, then the outcome may differ as suggested in Reed.2 Nevertheless, given the precedent before us, including that by the Court of Criminal Appeals in Johnson, we have little choice. Possibly, it is time to re-pave dark roads already laid. But, it is up to those who initially laid the road to alter it. Accordingly, we affirm the judgment of the trial court. Brian Quinn 2 This invokes scenes from those old movies wherein mysterious individuals in trench coats walk the streets during foggy, dark nights, encounter individuals at random, and ask “do you have your papers?” If they do, they are allowed to leave; if they do not, then they are never seen again. 5  Justice Publish. 6 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-87,613-09 through -12 EX PARTE PEGGY SUE BUTLER, Applicant ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. A15412-3, A15473-3, A15474-3, AND A15475-3 IN THE 216th DISTRICT COURT FROM KERR COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of four separate delivery of a controlled substance in a drug free zone offenses. She was sentenced to twelve years’ imprisonment in Cause No. A15412 and twenty years’ imprisonment in the remaining cause numbers. The Fourth Court of Appeals dismissed her appeals. Butler v. State, Nos. 04-17-00497- CR through 04-17-00500-CR (Tex. App.—San Antonio Jan. 3, 2018) (not designated for publication).  2 Applicant contends, among other things, that her trial counsel rendered ineffective assistance because he recklessly advised Applicant to enter open pleas of guilty when the State lacked solid evidence of her guilt, failed to conduct an independent investigation, failed to file pre-trial motions including motions to suppress the evidence, failed to challenge the legality of the State’s evidence and pursue a valid defense, failed to argue that the State could not meet its burden of proof, failed to request an expert to challenge the State’s evidence, failed to challenge the drug free zone allegations, failed to object to the amending of the pre-sentence investigation report, failed to object to Applicant not being allowed to her withdraw her pleas of guilty, failed to interview Applicant’s co-defendants and other witnesses, and he allowed Applicant to waive her right to appeal. Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04. The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and  3 conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief. These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: December 12, 2018 Do not publish 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4911 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOHN SAADIQ HASAN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Mary G. Lewis, District Judge. (4:14-cr-00294-MGL-1) Submitted: June 16, 2015 Decided: June 19, 2015 Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael A. Meetze, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Saadiq Hasan was convicted of threatening a government official, 18 U.S.C. § 115(a)(1)(B) (2012), and was sentenced to 41 months in prison. Hasan now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising two issues but stating that there are no meritorious issues for appeal. Hasan was advised of his right to file a pro se supplemental brief, but has not filed such a brief. We affirm. Counsel first contends that the district court when it denied Hasan’s Fed. R. Crim. P. 29 motion for judgment of acquittal. We review a district court’s denial of a Rule 29 motion de novo. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). “Applying that standard, . . . the verdict . . . must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it.” Id. (internal quotation marks omitted). We have reviewed the trial transcript and conclude that there was ample evidence to support the guilty verdict. Two witnesses testified that they heard Hasan threaten to kill an employee at a social security office unless Hasan’s supplemental security income benefit was fully reinstated. Further, Hasan made one of the threats when he was outside the social security office, armed with a pitchfork. 2  We next review Hasan’s sentence. His properly calculated Guidelines range was 33-41 months. After considering the Guidelines range, the arguments of counsel, Hasan’s allocution, and the 18 U.S.C. § 3553(a) (2012) sentencing factors as they applied to Hasan, the district court sentenced him to 41 months in prison. We review the sentence for procedural and substantive reasonableness “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We must first “ensure that the district court committed no significant procedural error.” Id. at 51. If there is no such error, we then consider the sentence’s substantive reasonableness, taking into consideration “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. We may presume that a sentence within a properly calculated Guidelines range is reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). A defendant may rebut this presumption only “by showing that the sentence is unreasonable when measured against the § 3553(a) factors.” Id. After reviewing the presentence investigation report and the sentencing transcript, we conclude that the sentence is procedurally and substantively reasonable and that Hasan did not rebut the presumption of reasonableness afforded his within-Guidelines sentence. 3  In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We therefore affirm. This court requires that counsel inform Hasan, in writing, of his right to petition the Supreme Court of the United States for further review. If Hasan requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy of the motion was served on Hasan. 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 4 

708 N.E.2d 15 (1999) Mark ALBRIGHT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 80A02-9809-CR-737. Court of Appeals of Indiana. March 24, 1999. *16 Mark A. Ryan, P.C., Kokomo, Indiana, Attorney for Appellant. Jeffrey A. Modisett, Attorney General of Indiana, Rosemary Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. OPINION STATON, Judge. Mark Albright appeals from the sentence imposed after he pled guilty to two counts of operating while intoxicated,[1] both Class A misdemeanors. Albright presents one issue for our review, which we restate as: whether Albright's sentence exceeded the maximum sentence allowed by statute. We remand with instructions to reduce Albright's term of probation. At the time of his sentencing hearing, Albright had been incarcerated for 288 days while awaiting trial. At the sentencing hearing, the judge sentenced Albright to one year for each offense, to be served consecutively. However, the judge reduced the executed portion of Albright's sentence to time served, and placed him on probation for one full year for each offense. Albright appeals. Albright contends that his sentence exceeds the statutory maximum, because he was placed on probation for one year for each conviction. Operating while intoxicated is a Class A misdemeanor, for which the maximum sentence is one year. IND.CODE § 35-50-3-2 (1993). Our supreme court has held that "a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction for a misdemeanor." Smith v. State, 621 N.E.2d 325, 326 (Ind.1993). Thus, if the trial court's sentencing order imposed a term of probation that caused Albright to serve more than one year of combined probation and imprisonment for either of his convictions, the trial court erred. In ordering Albright's sentence, the trial judge stated that the executed portion of each of Albright's one-year sentences would be reduced to time served. Albright had served 288 days at the time of his sentencing.[2] In addition, Albright was entitled to "credit time," or good time credit, under IND.CODE § 35-50-6-3 (1993). Thus, Albright's time served equaled 576 days. "Where a defendant is confined during the same time period for multiple offenses for which he is convicted and sentenced to consecutive terms, credit is applied against the aggregate sentence." Ragon v. State, 654 N.E.2d 906, 907 (Ind.Ct.App.1995). Because he had served at least 365 days, Albright's first one-year sentence had been completed. Thus, no probationary period could be imposed for the first conviction. In addition, Albright had served 211 days, and had only 154 days left to serve on his second one-year sentence. Therefore, the trial court erred when it imposed a full year of probation for the second conviction. Because the trial court's sentencing order imposed a sentence that was greater than one year for each of the convictions, we remand to the trial court for the determination of a sentencing order that imposes terms of probation and imprisonment not in excess of one year for either of Albright's convictions. Remanded with instructions. RILEY, J., and BROOK, J., concur. NOTES [1] IND.CODE § 9-30-5-2 (1993). [2] The State contends that Albright had only served 274 days at the time of his sentencing. However, our calculation of time served is 288 days.

694 F.2d 281 224 U.S.App.D.C. 161 Tiger International, Inc.v.C. A. B. 82-1021, 82-1559 UNITED STATES COURT OF APPEALS District of Columbia Circuit 11/3/82 1 C.A.B. AFFIRMED

Case: 13-3100 Document: 12 Page: 1 Filed: 08/22/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ SYLVIA M. KITT, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent. __________________________ 2013-3100 __________________________ Petition for review of the Merit Systems Protection Board in No. AT0752110170-P-1. _____________________________ ON MOTION ______________________________ ORDER Sylvia M. Kitt moves for the court to rehear her case, which the court treats as a motion to reinstate her peti- tion for review. The court notes that her petition for review was dis- missed on July 17, 2013 for failure to file her brief. The court also notes that Ms. Kitt submitted her opening brief on August 12, 2013. Case: 13-3100 Document: 12 Page: 2 Filed: 08/22/2013 SYLVIA KITT v. NAVY 2 Upon consideration thereof, IT IS ORDERED THAT: (1) The motion is granted. The mandate is recalled, the court’s dismissal order is vacated, and the petition is reinstated. (2) Ms. Kitt’s opening brief is accepted for filing. The Navy should calculate the due date for its response brief from the date of filing of this order. FOR THE COURT /s/ Pamela J. Twiford Pamela J. Twiford Chief Deputy Clerk s21 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50324 Plaintiff-Appellee, D.C. No. 8:15-cr-00137-CJC-1 v. JOSE ANTONIO ACEVEDO-LEMUS, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted April 1, 2020** Pasadena, California Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges. Jose Antonio Acevedo-Lemus was sentenced to sixty months imprisonment and a lifetime term of supervised release following a conditional guilty plea for possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  In January 2015, the Federal Bureau of Investigation (“FBI”) seized the servers of “Playpen,” an online child pornography bulletin board hosted on servers located in North Carolina, and began operating the website after moving the servers to FBI facilities in Newington, Virginia. Then, in February 2015, the FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia authorizing use of a Network Investigative Technique (“NIT”) to identify users of Playpen (the “NIT Warrant”). Using the information gathered from the NIT Warrant, agents then obtained a local warrant to search Acevedo-Lemus’s residence. Acevedo-Lemus challenges the district court’s denial of his motion to suppress evidence, arguing that the NIT Warrant was issued in violation of Federal Rule of Criminal Procedure 41(b), and that the local warrant was not supported by probable cause. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. 1. Acevedo-Lemus acknowledges that his challenge to the NIT Warrant is foreclosed by our decision in United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018). Indeed, Henderson addressed the precise warrant at issue here. In Henderson, we held that the NIT Warrant violated Federal Rule of Criminal Procedure 41(b), but that suppression was not required under the good-faith exception to the exclusionary rule. Id. at 1113–15. We see no reason to depart from that holding here. 2. Acevedo-Lemus does not establish good cause for his failure to 2 challenge the local warrant in the district court and therefore waived his right to challenge it on appeal. Under Federal Rule of Criminal Procedure 12, a “‘theory for suppression not advanced in district court cannot be raised for the first time on appeal’ absent a showing of good cause.” United States v. Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019) (quoting United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004)); see also United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per curiam). Contrary to Acevedo-Lemus’s contention, the suppression motion’s passing reference to the local warrant in a section of the motion entitled “The NIT Warrant Violated the Warrant Clause’s Particularity Requirement” did not adequately raise the issue. See George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013) (“Although no bright line rule exists to determine whether a matter [has] been properly raised below, an issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it.” (quoting In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010))). “[J]ust as a failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground in support of a motion to suppress.” United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000) (quoting Restrepo-Rua, 815 F.2d at 1329). 3. But even if Acevedo-Lemus’s challenge to the local warrant were reviewable, substantial evidence supports a finding of probable cause. The local 3 warrant established that Acevedo-Lemus: (1) became a registered member of Playpen, which is accessible only if the user knows the exact web address and installs appropriate software to connect to the network; (2) accessed Playpen for over eight hours; (3) viewed at least 175 threads on the website, two of which contained images of child pornography; and (4) accessed an additional post entitled “Mona” in the forum “Toddlers,” which contained two embedded contact sheets with thumbnail images of a naked baby. Furthermore, the affidavit supporting the local warrant established that users had to take “numerous affirmative steps” to access Playpen, “making it extremely unlikely that any user could have simply stumbled upon [Playpen] without first understanding its content and knowing that its primary purpose was to advertise and distribute child pornography.” Because probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (emphasis added) (quoting Illinois v. Gates, 462 U.S. 213, 243–44 n.13 (1983)), we conclude that probable cause supported the local warrant. AFFIRMED. 4 

217 Pa. Superior Ct. 20 (1970) Commonwealth v. McDaniel, Appellant. Superior Court of Pennsylvania. Argued March 9, 1970. June 12, 1970. *21 Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ. Gerald E. Ruth, Public Defender, for appellant. Gary M. Gilbert, Assistant District Attorney, with him Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee. *22 OPINION BY HOFFMAN, J., June 12, 1970: Appellant was convicted by a jury of aggravated assault and battery with intent to ravish. Following the trial, one of the jurors brought to the attention of the judge that during deliberations in the above matter, another juror had displayed to the panel a copy of the trial list for that session prepared by the District Attorney. That list indicated that in addition to the case being tried before them, appellant was charged with two other unrelated crimes. The jurors were then called into a conference room and were deposed on this issue. As a result of the conference with the court, counsel questioned the jurors as to their awareness of the presence of the trial list. Several of the jurors admitted that they were aware that appellant was charged with other crimes during their deliberation as a result of this trial list. Nonetheless, the lower court denied appellant's motion for a new trial and entered judgment. This appeal followed. The question in this case, therefore, is whether the judge should have granted a new trial as a result of the potential prejudice of the trial list. It is clear that "[e]vidence which shows or tends to show that the accused is guilty of a commission of other crimes and offenses at other times is incompetent and inadmissible." Commonwealth v. Free, 214 Pa. Superior Ct. 492, 495, 259 A. 2d 195, 197 (1969). Cf. Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A. 2d 666 (1969); Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A. 2d 901 (1968); Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A. 2d 171 (1967). Our decision in Commonwealth v. Free, supra, is particularly relevant here. In Free, seven of the twelve jurors had earlier participated in a voir dire in another prosecution against Free. They had, possibly, informed *23 other members of the jury of this fact. We held that in such circumstances, where the potential prejudice was so great and the court was without opportunity to eliminate it, a new trial should be granted. Similarly here, the trial list which indicated that appellant was accused of committing other crimes might well have prejudiced him by predisposing the jurors to believe the accused guilty, thus, effectively stripping him of the presumption of innocence. The Commonwealth seeks to minimize the prejudice by arguing that the trial list was taken to the jury room without the knowledge or consent of court or counsel and that much of the information contained therein was available to the public generally. The argument has perhaps been best answered by the decision of the United States Supreme Court in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171 (1959). There, several jurors had seen newspaper accounts indicating that Marshall had been convicted of two other felonies. The Supreme Court stated that when information received by the jurors would have been ruled prejudicial and excluded, "[t]he prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is part of the prosecution's evidence. . . . It may indeed be greater for it is then not tempered by protective procedures." Id. at 312-313, 79 S. Ct. at 1173 [emphasis added]. Similarly here, that the material was received by the jurors without knowledge of counsel or court renders its effect more damaging as no opportunity arose to caution the jury to disregard such material. Had a juror received such information prior to the trial, this fact would have appropriately been the subject of questioning on voir dire and might well have justified a striking of such juror for cause. Here, however, defense counsel had no such opportunity to protect appellant. *24 Moreover, we seriously question the validity of any argument that the availability of certain inadmissible evidence to the jury should be disregarded merely because judge and counsel were unaware of it. In summary, the serious potential prejudice to appellant, coupled with the court's inability to cope with it, warrants the granting of a new trial. Judgment of sentence vacated and new trial is granted. WRIGHT, P.J., WATKINS and JACOBS, JJ., would affirm on the opinion of President Judge ATKINS.

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00007-CR ___________________________ CHRISTOPHER ARRON BOECKERS, Appellant V. THE STATE OF TEXAS On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1534440D Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion  MEMORANDUM OPINION Appellant Christopher Arron Boeckers appeals from the trial court’s judgment revoking his community supervision, adjudicating his guilt for possession of between one and four grams of methamphetamine, sentencing him to four years’ confinement, and ordering him to pay reparations in the amount of $375. See Tex. Health & Safety Code Ann. § 481.115(c). Because we are unable to determine the authority for the imposition of the portion of the reparations “DUE TO CSCD,” we modify the judgment to delete $15 of the total reparations assessed, and we affirm the judgment as modified. Pursuant to a charge bargain, Appellant pleaded guilty to the possession offense and the enhancement1 in exchange for the State’s dismissal of cause number 1534591, which involved a DWI offense. The trial court found the enhancement paragraph true, deferred adjudicating Appellant’s guilt, and placed him on community supervision for a period of four years. The trial court also ordered Appellant to pay attorney’s fees in the amount of $670 and court costs in the amount of $349. During the period of Appellant’s community supervision, the State filed a motion to proceed with an adjudication of guilt. The State alleged that Appellant had violated three conditions of his community supervision: (1) he failed to report at any time during August 2018 as instructed by the trial court or his supervision officer; The indictment included a repeat-offender notice stating that on October 10, 1 2014, Appellant was convicted of possession of methamphetamine in an amount between one and four grams. 2 (2) he failed to report on or about July 11, 2018; and (3) he failed to report for an assessment on or about July 3, 2018. Appellant pleaded “true” to the first alleged violation and “not true” to the second and third alleged violations. The trial court heard evidence regarding the State’s violation allegations, found all three allegations to be true, and adjudicated Appellant guilty of the underlying offense. The trial court sentenced Appellant to four years’ confinement. The trial court’s judgment adjudicating guilt ordered Appellant to pay $375 in reparations. Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. Counsel’s brief and motion meet the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified Appellant of the motion to withdraw, provided him a copy of the brief, informed him of his right to file a pro se response, informed him of his pro se right to seek discretionary review should this court hold that the appeal is frivolous, and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Appellant the opportunity to file a response on his own behalf, and he did so. As the reviewing court, we must conduct an independent evaluation of the record to determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. 3 State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). We have carefully reviewed counsel’s brief, Appellant’s response, and the record and have determined that the trial court’s judgment requires modification regarding the assessment of reparations in the amount of $375. We have previously held that when reparations are comparable to fees, and are therefore not punishment and not part of a defendant’s sentence, reparations do not have to be included in the trial court’s oral pronouncement of sentence to be properly included in the written judgment. See Brown v. State, No. 02-08-00063-CR, 2009 WL 1905231, at *2 (Tex. App.—Fort Worth July 2, 2009, no pet.) (mem. op., not designated for publication) (per curiam). But we have struck reparations when a balance sheet described them only as “Due to CSCD” because we were unable to determine the authority for the imposition. See Lewis v. State, 423 S.W.3d 451, 461 (Tex. App.—Fort Worth 2013, pet. ref’d); see also Lawson v. State, No. 02-18-00361-CR, 2019 WL 3244493, at *2 (Tex. App.—Fort Worth July 18, 2019, no pet.) (mem. op., not designated for publication); Gatewood v. State, No. 02-18-00021-CR, 2018 WL 4625780, at *2 (Tex. App.— Fort Worth Sept. 27, 2018, no pet.) (mem. op., not designated for publication) (per curiam). Here, a balance sheet in the clerk’s record confirms that of the $375 in total reparations that Appellant owes, $360 is for “PROBATION FEES” and $15 is “DUE 4 TO CSCD.” We are unable to determine the authority for the imposition of the latter. Consistent with our precedent above, we modify the judgment to reduce the amount of reparations Appellant owes by $15 for a total of $360, which must also be reflected in the incorporated order to withdraw funds from Appellant’s inmate trust account. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (holding that an appellate court has authority to modify a judgment in an Anders appeal); see also Lawson, 2019 WL 3244493, at *2 (modifying the judgment and the incorporated order to withdraw funds from appellant’s inmate trust account in an Anders appeal to delete reparations amount described only as “DUE TO CSCD”); Gatewood, 2018 WL 4625780, at *2 (same). Except for this necessary modification to the judgment and the incorporated order to withdraw funds from Appellant’s inmate trust account, we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw and affirm as modified the trial court’s judgment and the order to withdraw funds incorporated therein. Per Curiam Do Not Publish Tex. R. App. P. 47.2(b) Delivered: February 6, 2020 5 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5244 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus QUENTIN ORLANDO RUTLAND, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (CR-02-31) Submitted: September 27, 2006 Decided: October 17, 2006 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Quentin Orlando Rutland appeals his resentencing following this court’s remand. See United States v. Rutland, No. 04-4080, 2005 WL 1317297 (4th Cir. June 3, 2005) (unpublished). We affirm Rutland’s 235-month sentence. Rutland was convicted by a jury of conspiracy to possess with intent to distribute and aiding and abetting in the possession with intent to distribute fifty grams or more of cocaine base. Because the district court determined that Rutland was responsible for 240 grams of cocaine base and that he had obstructed justice, Rutland was assigned an offense level of thirty-six. He was placed in criminal history category III, which resulted in a guideline range of 235 to 298 months. Rutland was sentenced to 235 months’ imprisonment. We vacated Rutland’s sentence and remanded for resentencing because the district court’s findings regarding drug quantity and obstruction violated United States v. Booker, 543 U.S. 220 (2005). On remand, the district court resentenced Rutland to the same 235-month term of imprisonment. Rutland appealed, contending his sentence is procedurally unreasonable because the district court failed to make specific findings on the record. In post-Booker sentencing, district courts must calculate the appropriate guideline range, consider the range in conjunction with other relevant factors under the guidelines and 18 U.S.C. - 2 - § 3553(a) (2000), and impose a sentence. United States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). A sentence imposed within a properly calculated guideline range is presumptively reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). Rutland’s 235-month sentence, which was at the lowest end of the applicable guideline range, is presumptively reasonable. In imposing Rutland’s sentence, the district court determined that it did “not perceive a reasonable basis for a variance or departure.” The court further stated that there was “no reason” to alter its original finding that Rutland was responsible for 240 grams of cocaine base. Though the district court did not explicitly discuss § 3553(a) factors on the record, we conclude under the circumstances here that its disinclination to “robotically tick through § 3553(a)’s every subsection” does not render Rutland’s sentence unreasonable. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006); see United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition for cert. filed, __U.S.L.W.__ (U.S. June 20, 2006) (No. 05-11659). Accordingly, we affirm Rutland’s sentence. 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 - 3 - 

638 F.2d 270 7 Fed. R. Evid. Serv. 859 James A. McKINNON, Plaintiff, Appellant,v.SKIL CORPORATION, Defendant, Appellee. No. 80-1298. United States Court of Appeals,First Circuit. Argued Oct. 9, 1980.Decided Jan. 14, 1981.Rehearing Denied March 20, 1981. Edmund M. Pitts, Boston, Mass., with whom Pitts & Pitts, Boston, Mass., was on brief, for appellant. David A. Barry, Boston, Mass., with whom Kenneth L. Carson, Regina Roman, and Sugarman, Rogers, Barshak & Cohen, Boston, Mass., were on brief, for appellee. Before ALDRICH, PELL* and CAMPBELL, Circuit Judges. PELL, Circuit Judge. 1 The appellant, James McKinnon, sued Skil Corporation on negligence and breach of warranty theories for injuries he incurred while operating a portable electric saw manufactured by the defendant. The jury returned a verdict for Skil on April 4, 1980. McKinnon alleges that the trial judge committed numerous prejudicial errors by giving misleading or erroneous instructions, refusing to give an instruction requested by the plaintiff, and by the exclusion from evidence of certain documents and testimony offered by the plaintiff. The appellant also contests the admission of other evidence offered by the defendant. Federal jurisdiction is based upon diversity of citizenship. I. 2 McKinnon is a professional floor re-finisher and installer. He purchased a new Model 559 Type 5 circular saw manufactured by the defendant on October 31, 1975. On each of the several occasions that he used the saw prior to the date of his accident, he observed that the lower blade guard was sticking so that it did not return to cover the blade at all or returned slowly. He knew that the blade guard should be kept in good working order and also knew he could return the saw to the retailer if there was any problem with it. He, however, decided against taking the latter course, and made no complaint about the saw either to the retailer or the defendant prior to the accident. 3 On January 16, 1976, McKinnon was using the saw to cut boards laid out on a workbench. After making a cut, and without looking to see whether the lower blade guard had returned to cover the blade, he set the saw down on the floor and it cut his right foot, partially amputating a toe and lacerating another toe. His teenage son testified that the saw was set down about two feet from his father's right foot, and that the saw traveled in a semi-circle when the lower blade guard did not return to the safe position, and the momentum of the saw carried it against his father's right foot. There was also testimony that the saw blade will continue to rotate approximately ten seconds after the release of the trigger. 4 McKinnon was taken to a hospital after the accident and according to the entries in the hospital record, he told the clerk in the emergency room and the doctor who treated him that he had dropped the saw on his foot. Several months after the accident the plaintiff returned to work on a full-time basis. II. 5 The plaintiff first contends that the trial judge's instructions regarding the implied warranty of merchantability gave rise to the inappropriate implication that McKinnon had misused the saw.1 Because this objection is raised for the first time on appeal, Rule 51 of the Federal Rules of Civil Procedure precludes consideration of this issue. Roy v. Star Chopper Co., 584 F.2d 1124, 1132 (1st Cir. 1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979); Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976); Nimrod v. Sylvester, 369 F.2d 870, 872 (1st Cir. 1966). 6 The plaintiff's second objection to the trial judge's instructions contests the application of comparative negligence to the warranty claim. The judge instructed the jury that the plaintiff's negligence; if any, diminishes his right to recover on either negligence or warranty theories in proportion to his degree of fault unless he is found to be more than fifty percent negligent, in which case recovery is barred. The plaintiff contends that his objection on this ground was subsumed in his objection to the trial judge's failure to give the plaintiff's requested breach of warranty instruction, and therefore is not barred from review by Rule 51. 7 The plaintiff's objection to the trial judge's failure to give the requested instruction, however, concerned a different aspect of the warranty instruction, which will be discussed separately hereinafter. Even assuming it well-founded, but cf. Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir. 1979), the plaintiff never made an objection on the ground alleged here. Rule 51 requires that the subject matter and ground for objection to jury instructions be stated distinctly. Under Rule 51, "(o)bjection to one part of the charge does not permit ... (a party) to assert error as to a different part; nor may objection on one ground serve as a predicate to a challenge on another." Gillentine v. McKeand, 426 F.2d 717, 723 n.19 (1st Cir. 1970). 8 Rule 51 promotes judicial economy and integrity by serving a dual purpose. Compliance with the Rule provides an opportunity for the trial judge to correct errors while it eases the burden on appellate courts by reducing the potential number of reviewable court rulings. Harrington v. United States, 504 F.2d 1306, 1316-17 (1st Cir. 1974); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955). Consequently the Rule bars review of objections not presented to the trial court in all but the most exceptional cases.2 9 The only objection to the jury instructions which was preserved for appeal contested the court's refusal to give a proposed instruction tendered by the plaintiff which related to the breach of warranty claim. The instruction directed that "(t)he Skil Corporation has a duty under the law to anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting."3 10 Where the foreseeability of the plaintiff's particular use of a product is in dispute, an explicit instruction on foreseeability of use is appropriate. This case, however, is unlike Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (Mass.1978), upon which the plaintiff relies. A crucial disputed issue in Back was whether the manufacturer had a duty to minimize risks inherent in vehicular collisions. The court reasoned that although an accident is not a normal or ordinary function of a vehicle, nonetheless it is foreseeable. 11 In the instant case, the judge advised the jury at length on the aspects of warranty law and concluded that "the law implies a warranty ... that the article which has been purchased is reasonably fit for the purposes, the ordinary purposes for which such goods are used." The instruction adequately covered the law as applied to the facts of this case. The evidence at trial established, and the defendant did not contest, that the plaintiff was a foreseeable user and that cutting wood flooring was a normal use. 12 A special instruction on the duty to design in light of all "anticipated" or "reasonably foreseeable" uses would be mere surplusage in a case where the trial judge had already instructed the jury on the manufacturer's duty to make a product fit for ordinary use and where there is no claim that the plaintiff's use was other than "normal," "ordinary," "proper," or "intended" by the manufacturer. Such an instruction, given after the conclusion of the charge as a whole, might have wrongly suggested to the jury that there was in fact some dispute as to whether the plaintiff's use of the saw for cutting hardwood floors was ordinary, proper, or even reasonably foreseeable.4 13 Although all parties are entitled to adequate jury charges upon the controlling issues in the case, the court need not employ the precise language urged. Wolff v. Puerto Rico, 341 F.2d 945, 946 n.1 (1st Cir. 1965). As long as the judge's instruction properly apprises the jury of the applicable law, failure to give the exact instruction requested does not prejudice the objecting party. Sears, Roebuck & Co. v. Penn Central Co., 420 F.2d 560, 564 (1st Cir. 1970). Because the foreseeability of the particular use was not a disputed issue in the instant case, the court's refusal to give the instruction was appropriate. III. 14 The plaintiff contests numerous trial court rulings excluding evidence. The plaintiff sought to admit into evidence an Occupational Safety and Health Act (OSHA) safety regulation requiring circular saws to have properly functioning lower blade guards.5 This regulation was offered on the issue of Skil Corporation's negligence to show that the saw did not comply with minimum safety requirements. 15 Massachusetts permits, in the sound discretion of the trial court, the admission of safety standards for consumer products promulgated by government organizations to prove negligence in product liability cases. Torre v. Harris-Seybold Co., --- Mass.App. ---, 404 N.E.2d 96, 105 (Mass.App.1980). However, the standards must meet the threshold evidentiary showings of trustworthiness, relevancy, materiality, and necessity. 404 N.E.2d at 106 n.10. The trial court is accorded considerable discretion in determinations relating to the admissibility of evidence. Gilliam v. Omaha, 524 F.2d 1013, 1016 n.4 (8th Cir. 1975). In this case, the trial court did not abuse its discretion in refusing to admit the OSHA regulation when it ruled that OSHA workplace standards were not relevant in this consumer product liability action against a manufacturer.6 16 The plaintiff contends that OSHA standards are relevant as evidence of whether or not the defendant acted as would a reasonably prudent person under these circumstances. He contends that the regulation provides evidence of industry practice and standard of care. 17 The employment and consumer contexts are not that fungible. OSHA was enacted to assure safety in the workplace, 29 U.S.C. § 651(b), and therefore its terms apply only to employers. Id. at § 654. OSHA safety regulations are promulgated to ensure workplace, not consumer, safety. The law may not always require the same standard of care in the consumer context as it does in the employment context because each situation gives rise to its own peculiar set of problems.7 18 While compliance with OSHA safety regulations is judged by a "reasonably prudent man familiar with the circumstances of the industry" test, Cape and Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975), "OSHA is not precluded from promulgating, after notice and comment, new and specific regulations requiring safety precautions beyond those considered reasonable in the industry." American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38, 41 (2d Cir. 1978). An OSHA safety regulation, therefore, may impose a standard of conduct upon employers greater than that which would be considered reasonable in the industry. This comports with the intent of the Act. "The purpose of the Act is to require all employers to take all feasible steps to avoid industrial accidents." General Dynamics Corp. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979) (emphasis added). Consequently, OSHA regulations cannot automatically be used as evidence of industry practice or of the standard of care to be exercised by a reasonable person in a consumer product liability case.8 19 While we uphold the lower court's exclusion of the safety regulation on relevance grounds, we note that even had the ruling been erroneous, the error would have been harmless. Error in excluding evidence is harmless if exclusion of the evidence did not affect the complainant's substantial rights. Fed.R.Civ.P. 61; Fed.R.Evid. 103. See, e. g., Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980); International Merger & Acquisition Consultants, Inc. v. Armac Enterprises, 531 F.2d 821, 823 (7th Cir. 1976). Whether or not a party's substantial rights have been affected is determined from the context of the individual case. International Merger, supra, 531 F.2d at 823. "Where it appears that error in no way influenced the jurors, or had only a slight effect on them, the verdict and the judgment are to be affirmed." Id. 20 In this case, the safety regulation, even if arguably relevant, provided, at most, cumulative evidence. Prior to the exclusion of the regulation, the defendant had already admitted that "the defendant had knowledge of the fact that the lower guard must operate freely...." The Underwriter's Laboratory (UL) standard, which was subsequently admitted, contained a requirement similar to the excluded regulation; it stated that the guard must close in less than three-tenths of a second. 21 In reality, the speed at which the guard should return was not in dispute. The plaintiff did not contend that the lower blade guard was designed to operate too slowly in contravention of any industry standard. Rather, the plaintiff theorized that the saw was "improperly designed or manufactured because there was interference between the saw blade guard and the stop which prevented the guard from coming down as it should have at all times" and/or because the saw was not equipped with a brake which would have stopped the blade revolutions instantly. The plaintiff's assertion that the lower blade guard should close instantly was not disputed by Skil Corporation. 22 The plaintiff contends that, because the trial court excluded the OSHA regulation, the court's admission of a UL standard was erroneous.9 We know of no evidentiary rule which would preclude the admission of one party's relevant evidence on the basis that the opponent's inadmissible evidence, although it contained some similar material, was excluded. 23 Massachusetts allows, in the trial court's discretion, a plaintiff or defendant to introduce safety standards promulgated by industry groups or nongovernmental testing organizations in product liability cases. Torre v. Harris-Seybold, supra, 404 N.E.2d at 105. 24 The standards clearly are relevant. The saw which injured the plaintiff was UL approved. The defendant's expert witness, Frank Consoli, a product design engineer employed by Skil Corporation, testified to his familiarity with UL specifications and testing procedures which directly related to the operation of the lower blade guard. Evidence of the UL standards, and this particular model saw's compliance with the standards,10 was properly admitted as some evidence of the defendant's due care regarding the design and manufacture of the saw,11 Frummer & Friedman, 1 Products Liability § 5.04 at p. 70.43 (1980), and of industry custom and practice. Torre v. Harris-Seybold, supra, 404 N.E.2d at 105. 25 The UL standards were also admissible for the purpose of discrediting plaintiff's expert witness, Daniel Harwood, who was an engineering consultant. Harwood admitted on cross-examination that he had noticed that the plaintiff's saw bore a UL seal of approval, but stated that he was not familiar with UL specifications for portable circular saws. The defendant was able to show through his own witness that UL specifications dealt with the performance of the very mechanism which the plaintiff alleged was defective. This cast doubt upon the thoroughness of Harwood's investigation of the saw and upon the extent of his general knowledge of the design and manufacture of portable circular saws. 26 In light of the relevance of the UL standards to the above issues, and the limiting instructions to the jury, the trial judge did not abuse his discretion in admitting the standards. 27 The plaintiff also argues that the trial court's refusal to admit evidence of prior accidents involving Skil saws was erroneous. The evidence at issue was Skil Corporation's pretrial answers to the plaintiff's interrogatory which requested the defendant to furnish information on complaints it had received involving personal injuries associated with the use of Skil saws before October 17, 1975. The defendant's answers identified six complaints, the injuries allegedly received and, in some cases, the model saw used. The answers did not indicate how the injuries occurred or whether or not they resulted from defective lower blade guards. 28 The plaintiff contends that the interrogatory answers were admissible to show Skil's knowledge of prior accidents (relevant to the duty to warn), to establish evidence of the existence of the blade guard defect, causation, and negligent design and to attack the credibility of the defendant's expert witness. We disagree. 29 Evidence of prior accidents is admissible on the first four issues only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar. Mutrie Motor Transportation, Inc. v. Interchemical Corp., 378 F.2d 447, 450-51 (1st Cir. 1967) (notice); Melville v. American Home Assurance Co., 584 F.2d 1306, 1315 (3rd Cir. 1978) (causation); Julander v. Ford Motor Co., 488 F.2d 839, 846-47 (10th Cir. 1973) (negligent design). Even when substantial identity of the circumstances is proven, the admissibility of such evidence lies within the discretion of the trial judge who must weigh the dangers of unfairness, confusion, and undue expenditure of time in the trial of collateral issues against the factors favoring admissibility. Mutrie Motor, supra, 378 F.2d at 450-51. 30 In the instant case, the answers to the interrogatory indicated only that Skil Corporation had received six complaints of personal injuries allegedly involving saws manufactured by the defendant. The record is totally devoid of showing of the circumstances under which these accidents occurred.12 The plaintiff failed to make the requisite showing that any of these alleged incidents had involved a defective lower blade guard. The operators identified in the defendant's answers could have been injured as a result of their own negligence for all that appears in the response. 31 The answers also were inadmissible for the purpose of impeaching the defendant's expert witness, Frank Consoli. The plaintiff failed to show that Consoli signed the answers, assisted in their preparation, made any statements about the subject matter, or had any personal knowledge of the facts represented.13 32 The plaintiff's final claim of error challenges the trial judge's rulings excluding from evidence several Consumer Product Safety Commission (CPSC) reports and a portion of a deposition of the defendant's expert witness which related to his knowledge of CPSC reports.14 The plaintiff contends that this evidence should have been allowed for the same purposes for which he urged the admission of the interrogatory answers: to show Skil's knowledge of similar prior accidents, to establish evidence of the existence of the blade guard defect, causation, and negligent design and to attack the credibility of the defendant's expert witness, Frank Consoli. 33 The exclusion of the reports was appropriate. They constituted inadmissible hearsay on the issues of defect, causation, and negligent design. Fed.R.Evid. 801, 802. Even if the CPSC reports arguably could fit within Fed.R.Evid. 803(8)'s exception for public agency reports, the trial court did not abuse its discretion in excluding the reports in the instant case. Rule 803(8) indicates that such reports should be excluded if untrustworthy. The CPSC reports are untrustworthy because they contain double hearsay in many instances the CPSC investigator at one level, and the accident victim interviewee at yet another level removed. Most of the data contained in the reports is simply a paraphrasing of versions of accidents given by the victims themselves who surely cannot be regarded as disinterested observers. 34 In John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 635-36 (3d Cir. 1977), the Third Circuit upheld the exclusion of analogous National Transportation Safety Board accident reports which included statements by pilots, accident witnesses and reports of government investigators. The court held that the trial court did not abuse its discretion in refusing to admit the reports because 35 The Advisory Committee's Notes make clear that Federal Rule of Evidence 803(8) exempts from the hearsay rule only reports by officials; and of course the pilots and other witnesses are not officials for this purpose. Moreover, the memoranda submitted to the government by its investigators often contained statements from witnesses which would make such memoranda encompass double hearsay. 36 Similarly, the court in Melville v. American Home Assurance Co., 443 F.Supp. 1074, 1115 n.75 (E.D.Pa.1977), rev'd on other grounds, 584 F.2d 1306 (3d Cir. 1978), admitted several Federal Aviation Administration directives into evidence, but excluded one specifically because its compilation apparently relied upon hearsay which indicated a lack of trustworthiness. 37 The CPSC reports also were irrelevant, during the course of Frank Consoli's cross-examination, on the issue of Skil Corporation's notice of similar prior accidents. Consoli had just testified that he personally did not know whether Skil had received complaints of injuries from rotary saws before the date of McKinnon's injury by reason of the operation of the lower blade guard. While the plaintiff contends that Consoli admitted to having seen one of the CPSC accident reports shown to him at trial by the plaintiff's attorney, this assertion mischaracterizes the record. 38 Consoli testified generally that he had seen "some" CPSC reports during the course of his employment. But, when the plaintiff's attorney narrowed his inquiry from familiarity with CPSC reports generally to the question of knowledge of CPSC reports between the relevant dates and bearing upon the relevant issues, Consoli testified that he had seen none. The plaintiff's attorney showed Consoli numerous CPSC reports at trial. When asked if he had seen the particular report tendered, Consoli responded negatively each time. The portion of the transcript to which the plaintiff refers us to support his assertion that Consoli did identify one of the reports at trial indicates that Consoli there was testifying to having seen a CPSC report before, not the reports just shown to him.15 39 The trial court therefore properly foreclosed questions regarding CPSC reports at trial without preventing proper cross-examination of Consoli relating to other possible sources of his knowledge of prior injuries. In fact, the judge himself had already asked Consoli whether he knew of any such prior accidents. 40 The plaintiff next argues that the excluded deposition testimony is relevant to the issue of Consoli's credibility because, the plaintiff alleges, Consoli's trial testimony "severely contradict(ed)" his deposition testimony regarding Consoli's knowledge of prior accidents. The plaintiff, however, manufactures the contradiction he alleges when he states that "Mr. Consoli testified under oath on February 13, 1980 at his deposition that he routinely received and read Consumer Product Safety Commission Reports of prior accidents involving the product in issue." In fact Consoli testified that he generally did not read individual cases: 41 Question: Let me point out to you this reference to the Consumer Product Safety Commission inquiry investigation, Case No. 760408 PBEP008. Have you seen this type of report before in your work with Skil Corporation? 42 Answer: I think I have. I think I don't recall this particular one. I usually make notes and spend my time reading the summaries and the complete tabulations of the total data rather than getting into individual cases. (emphasis added). 43 At his deposition, Consoli was shown a report which was not among those later shown to him and marked for identification at trial. He stated at the deposition that he had not seen that particular report before. Even if Consoli had admitted to having seen that report before, however, his trial testimony that he recognized none of the reports there tendered would not have been contradictory. Consequently, the deposition evidence was irrelevant to the issue of Consoli's credibility, and therefore was properly excluded. 44 Because all of the plaintiff's assertions of error are either untimely or without merit, the judgment of the trial court is, in accordance with this opinion, affirmed. * Of the Seventh Circuit, sitting by designation 1 The instruction elaborated upon the elements of the warranty of merchantability and concluded with the single sentence at issue here: "If, however, the quality of the saw was such when properly used that it would perform the job for which it was intended, then there was no breach of the warranty of merchantability." The plaintiff's complaint is that "(t)he jury might readily conclude from this (sentence) ... that if there was an improper use of the saw they must find for the defendant.... However, ... there was no evidence of unforeseeable misuse in this case and therefore, such an instruction was erroneous." 2 While the First Circuit recognizes that exceptions will be made to prevent patent miscarriages of justice in cases of plain error, Roy v. Star Chopper Co., supra, 584 F.2d at 1132, this is not an appropriate case for application of the plain error exception. The court in Morris v. Travisono, supra, 528 F.2d at 859, limited the exception to a narrow class of cases: "(W)e also endorse the view of Professors Wright and Miller to the effect that 'If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.' " (Citation omitted) 3 The plaintiff admitted that the trial judge had sufficiently charged the jury on the manufacturer's duty to design the product in accordance with reasonably anticipated uses with respect to the negligence claim 4 The trial judge rejected the tendered instruction because he believed that further instructing the jury at that point would confuse the jurors rather than clarify the issues 5 The regulation, at 29 C.F.R. § 1910.243 (1979), reads, in pertinent part, "When the tool is withdrawn from the work, the lower guard shall automatically and instantly return to covering position." 6 The parties did not cite, and we have not found, any reported federal cases which directly pass upon the issue of the admissibility of OSHA regulations in a consumer product liability action against a manufacturer. The court in Jasper v. Skyhook Corp., 89 N.M. 98, 547 P.2d 1140 (N.M.App.1976), rev'd on other grounds, 90 N.M. 143, 560 P.2d 934 (1977), however, ruled OSHA regulations inadmissible because irrelevant in a wrongful death action against a manufacturer of industrial machines 7 Consumers may be confused by the sheer numbers of products available and may not possess enough technical expertise to assess and compare risks and values inherent in each product. Thus, the Consumer Product Safety Act, for example, is at least in part aimed at "assist(ing) consumers in evaluating the comparative safety of consumer products," 15 U.S.C. § 2051(b), and "to protect the public against unreasonable risks of injury associated with consumer products." Id. at 2051(b)(1). When informed, however, consumers exercise a substantial degree of choice in selecting a product; they can often avoid buying a product which is associated with undue risks On the other hand, employees may not be as easily able to implement a choice to forego risks inherent in a particular task which the employer has ordered to be performed. The court in Long Manufacturing Co. v. OSHRC, 554 F.2d 903, 905 (8th Cir. 1977), for example, recognized that "frequently workers are under an economic compulsion to continue to work without safeguards although the danger of serious and permanent injury is obvious to them" (footnote omitted). When promulgating regulations to enhance workplace safety, therefore, a government agency might seek to remove the coercion attendant in the employment context by imposing stringent mandatory standards which might not be appropriate when applied to consumers. Conversely, simple disclosure of risks to consumers may suffice in many instances. 8 Our ruling approving the exclusion of this OSHA regulation is explicitly limited to the particular facts of this case: admission on behalf of a consumer-plaintiff to establish the manufacturer-defendant's standard of care in a product liability case concerning a product designed for consumer, not industrial, use. We express no opinion as to whether OSHA regulations and compliance therewith would be admissible in an action where the defendant is a manufacturer of industrial machines. See Hagans v. Oliver Machinery Co., 576 F.2d 97 (5th Cir. 1978) (While the court did not pass upon the propriety of admitting evidence of compliance with OSHA regulations in this product liability case, it did note that the safety of the defendant's practices had always exceeded industry practice and national and associational standards. The court cited the defendant-manufacturer's compliance with OSHA safety regulations as some evidence of the manufacturer's due care. In this case, the plaintiff was injured in an industrial workplace setting.) 9 The plaintiff's attorney objected to the testimony regarding UL standards "on the same basis that the Court earlier in this case excluded the OSHA standards." The court, however, noted that the two sets of standards "are not the same. In my opinion, although conforming it to the standards set up by U.L. ... does not necessarily mean that one is free from negligence; nevertheless conforming it with them may be of some assistance to the jury, so I'll allow conforming it to be brought up." The OSHA regulation was excluded as irrelevant because OSHA regulations apply only in the context of the workplace. That reason for exclusion obviously has no application to standards set by Underwriter's Laboratory which establishes minimum industry-wide standards 10 The plaintiff, of course, could have cross-examined the defendant's expert on Skil Corporation's compliance with the UL standards. See Forbro Design Corp. v. Raytheon Co., 532 F.2d 758, 762 (1st Cir. 1976) 11 The trial judge carefully charged the jury that the UL standards were not determinative on the issue of the defendant's due care. He instructed the jury, in part, that (T)o conform it to the standard is obviously desirable. At the same time it is going to be up to you to decide whether or not the unit itself meets with having been manufactured under a procedure which well (sic) call comporting with reasonable care on the part of a manufacturer. 12 The trial court repeatedly warned the plaintiff's attorney that admission of evidence regarding prior accidents would be limited "to notice of injuries received prior to the date that this saw was manufactured and ... only with respect to injuries occasioned allegedly by defects in the lower blade guard. Otherwise, I think we are going to be trying a different case." 13 The trial court interceded to question Mr. Consoli in an effort to ascertain whether or not any prior accident evidence might be admissible: The Court: ... Mr. Consoli, we are interested in knowing up to the time this man was injured on January 16th, 1976 had Skil Corporation received complaints of injuries received while using one of its rotary saws by reason of operation of a lower blade guard. If you know, tell us; if you don't know, tell us that also. The Witness: I don't know. 14 The defendant objected to the admission of evidence relating to CPSC accident reports primarily on hearsay and relevancy grounds. Without articulating the precise basis for his ruling, the trial judge sustained the defendant's repeated objections to the plaintiff's continuing attempts to admit the evidence. The plaintiff's constant violations of the trial judge's ruling elicited frequent judicial admonitions: The Court: Again, you just identified that supposedly as a notice of accident. I think I am going to have to instruct the jury. Again, I remind you that questions are not evidence and there is an effort here, I think, Mr. Pitts I hate to say it, but I think a concerted effort on your part to get across to the jury that these were notices of accidents that were seen by this man.... The Court: I am going to sustain the objection. If it keeps up, Mr. Pitts, I am simply going to have to take steps. The Consumer Product Safety Commission plays absolutely no part in this case, except that this gentleman volunteered that he saw a report from one of them. So I am going to ask you gentlemen to stay away from that subject matter altogether in the future. 15 The plaintiff further contends that "(t)he excluded cross-examination of Consoli (regarding the CPSC reports) was also important of (sic) the subject of credibility of Skil Corporation which had untruthfully denied or given evasive responses to the Plaintiff's Request for Production of Documents relating to knowledge about prior injuries and lawsuits from defective lower blade guards...." Skil's negative response to the plaintiff's Request for Production, however, is not inconsistent with Consoli's trial statement that he had seen one CPSC report because there was nothing in evidence to indicate that the one report which Consoli had seen concerned either a Model 559 saw or any other Skil saw with similar lower blade safety guards, motors and operation controls, categories to which the Request for Production was explicitly limited

UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 5, 2005 Decided October 24, 2005 Before Hon. FRANK H. EASTERBROOK, Circuit Judge Hon. DIANE P. WOOD, Circuit Judge Hon. ANN CLAIRE WILLIAMS, Circuit Judge ABRAHAM V. SONII and RUFUS JONES, Appeal from the United States Plaintiffs-Appellants, District Court for the Northern District of Illinois, Eastern No. 05-2695 v. Division. GENERAL ELECTRIC COMPANY, No. 95 C 5370 Defendant-Appellee. Joan B. Gottschall, Judge. Order Our opinion dismissing a prior appeal held that the judgment would not be final until the district court resolved all questions about Rule 37 sanctions (which has now been done) and entered a final judgment. The terms of the judgment would control entitlement to attorneys' fees under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). We remarked that The district judge could have implemented the parties' [settlement] agreement in at least three ways: (1) a one-line order of dismissal; (2) a dismissal reserving jurisdiction to enforce the underlying contract; (3) a dismissal incorporating the settlement contract as a judgment of the court. These would have different consequences under Buckhannon and T.D. [v. LaGrange School District, 349 F.3d 469 (7th Cir. 2003)]: the first would not make the plaintiffs prevailing parties; the third would do so; and the second would be ambiguous, for neither Buckhannon nor T.D. definitively resolves the consequences of an order that suffices to preserve federal jurisdiction to enforce the pact, see Kokkonen v. No. 05-2695 Page 2 Guardian Life Insurance Co. of America, 511 U.S. 375 (1994), but still treats it as a private contract rather than a judgment. 359 F.3d 448, 449-50 (7th Cir. 2004). The district court received briefs from the parties and entertained argument. After considering these submissions, she chose Option No. 1: Straight dismissal. The judge allowed that this would disappoint plaintiff's expectation about attorneys' fees but believed that the form of the settlement agreement required this approach. General Electric had not agreed to submit the settlement to judicial approval, supervision, or enforcement; instead the settlement papers provided that plaintiff would dismiss the complaint outright. The straight dismissal led the district judge to deny plaintiff's request for an award of attorneys' fees other than those under Rule 37. On appeal, this time from a final decision, plaintiff contends that the district judge failed to follow our mandate. That contention is unpersuasive for two reasons. One is that we did not issue a traditional mandate; instead we dismissed the appeal for lack of appellate jurisdiction. The second reason is that even if our opinion were given the force of a mandate, it made it clear that the district judge had a choice to make. The outcome was not foreordained; otherwise we would have had jurisdiction. The judgment was non-final precisely because discretion had to be exercised. Now the question is whether the district judge abused her discretion. We think not. On the one hand, as plaintiff observes, straight dismissal disappoints plaintiff's pre-Buckhannon expectations about recovering attorneys' fees. But on the other hand the defendant did not agree either to pay attorneys' fees or to submit to continuing supervision by the federal judiciary. Under the circumstances, the district judge thought, the choice had to be between a straight dismissal and an order vacating the settlement and restoring the case to the docket for decision on the merits. Plaintiff did not seek vacatur, which would have required him to repay all benefits received under the settlement. That left dismissal, with the consequence that plaintiff keeps all of the relief that the settlement provides but must pay his own legal costs. Affirmed. 

297 F.Supp. 958 (1968) Rose VALLEY and Clayton T. Aiudi, Plaintiffs, v. John P. MAULE, George Paradis, the Sessions Clock Company, Harry A. Miller, and City of Bristol, Defendants. James INGALLS and Pauline Ingalls, Plaintiffs, v. John P. MAULE, George Paradis, Jon T. Minella, the Sessions Clock Company, Harry A. Miller, and City of Bristol, Defendants. Civ. A. Nos. 12554, 12556. United States District Court D. Connecticut. December 26, 1968. *959 Herbert Watstein, Watstein & Watstein, Bristol, Conn., for plaintiffs. Ralph G. Elliot, Alcorn, Bakewell & Smith, Hartford, Conn., for Sessions Clock Co. and Harry A. Miller, defendants. Louis F. Hanrahan, Corp. Counsel, Bristol, Conn., for all other defendants. RULING ON DEFENDANTS' MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT CLARIE, District Judge. The defendants, Sessions Clock and Harry A. Miller have moved for alternative relief to dismiss for failure to state a claim upon which relief can be granted, for lack of subject-matter jurisdiction, pursuant to Rules 12(b) (6) and 12(b) (1), Fed.R.Civ.P. and for summary judgment. These two suits were brought against certain members of the police department of the City of Bristol, the municipality itself, The Sessions Clock Company and its managing agent, Harry A. Miller, under 42 U.S.C. §§ 1983 and 1985. Jurisdiction is predicated on 28 U.S.C. § 1343, and they seek damages for alleged violations of their constitutionally guaranteed civil rights. While the motions concern separate actions, they involve the same parties, raise the same issues and have been treated together by the parties. The Court will rule upon them accordingly. Both complaints are dismissed without prejudice, for failure to state a claim upon which relief can be granted, with leave to amend. In the Third Count of each complaint, Sessions Clock and Harry A. Miller are charged with having conspired with certain named defendants to deprive the plaintiffs of the civil rights, privileges, and immunities guaranteed them under the United States Constitution. Such a deprivation of rights, if substantiated, may be redressed under either 42 U.S.C. § 1983 or § 1985. However, in order to state a cause of action for conspiracy under the Civil Rights Statutes, certain pleading requirements must be met. Birnbaum v. Trussell, 371 F.2d 672 (2d Cir.1966). "A complaint in a case like this must set forth facts showing some intentional and purposeful deprivation of constitutional rights. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). This complaint does contain some general allegations, *960 framed in broad language closely paralleling that used in Sections 1983 and 1985(3), that defendants successfully conspired to deprive plaintiff of his rights. But plaintiff was bound to do more than merely state vague and conclusionary allegations respecting the existence of a conspiracy. It was incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy." Powell v. Workmen's Compensation Bd. of State of New York, 327 F. 2d 131, 137 (2d Cir.1964). Powell was quoted and followed in Birnbaum v. Trussell, 347 F.2d 86, 89 (2d Cir.1965), where the plaintiff-doctor alleged that he had been dismissed from a New York City hospital for racial reasons. The Court held that although the District Court had subject-matter jurisdiction, the complaint failed to state a cause of action because it was improperly pleaded. See also, Spampinato v. M. Breger & Co., 270 F.2d 46 (2d Cir. 1959); Israel v. City Rent & Rehabilitation Admin., 285 F.Supp. 908 (S.D.N.Y. 1968); Lombardi v. Peace, 259 F.Supp. 222 (S.D.N.Y.1968); Negrich v. Hohn, 379 F.2d 213 (3d Cir.1967); Bargainer v. Michal, 233 F.Supp. 270 (N.D.Ohio 1964); Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968); Borchlewicz v. Partipilo, 44 F.R.D. 540 (E.D.Wis.1968); CORE v. Commissioner, Social Security Administration, 270 F.Supp. 537 (D. Md.1967); Sinchak v. Parente, 262 F.Supp. 79 (W.D.Pa.1966). On the importance of overt acts in a civil conspiracy, see Hoffman v. Halden, 268 F.2d 280, 295-296 (9th Cir.1959). To properly state a cause of action for conspiracy under the Civil Rights Acts, the plaintiff must satisfy two pleading requirements: (1) plaintiff must specify with "at least some degree of particularity" the overt acts which defendants allegedly engaged in; (2) plaintiff must set forth facts showing a purposeful discrimination in the deprivation of constitutional rights. This has traditionally been the rule under § 1985. Hoffman v. Halden, supra, 268 F.2d at 292; Tyree v. Smith, supra; Huey v. Barloga, 277 F.Supp. 864, 871 (N.D.Ill.1967); Bargainer v. Michal, supra, 233 F.Supp. 273-274. However, the rule in Powell was not so limited. It was made applicable to any complaint alleging conspiracy—whether under 1985 or 1983. This rule is not inconsistent with Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). For cases following Monroe, but which did not involve conspiracy, see Pierson v. Ray, 386 U.S. 547, 555, 558, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Selico v. Jackson, 201 F.Supp. 475 (S.D.Cal. 1962). While Monroe held actions could be maintained without allegations of specific intent, the essence of a conspiracy, as alleged here, must be purposeful conduct. See, Hornsby v. Allen, 326 F. 2d 605, 611 (5th Cir.1964); Huey v. Barloga, supra, 277 F.Supp. at 870-871. An examination of both complaints reveals that they are utterly devoid of any factual allegations which allege overt acts or a purposeful deprivation of rights. Plaintiffs argue that in federal practice a complaint need not set forth detailed facts, that the Federal Rules of Civil Procedure adopt the theory of "notice pleading". See e. g. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As a general rule notice pleading is sufficient, but an exception has been created for cases brought under the Civil Rights Acts. The reason for this exception is clear. In recent years there has been an increasingly large volume of cases brought under the Civil Rights Acts. A substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants—public officials, policemen and citizens alike—considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate *961 claims. Cf., Powell, supra, 327 F.2d at 137; Hoffman v. Halden, supra, 268 F. 2d at 295; Jemzura v. Belden, 281 F. Supp. 200, 205-207 (N.D.N.Y.1968); Bargainer v. Michal, supra, 233 F.Supp. at 274. Defendants' motions to dismiss pursuant to Rule 12(b) (6), Fed.R.Civ.P., are granted without prejudice and with leave to file an amended complaint within twenty (20) days from this date. Birnbaum v. Trussell, supra, 347 F.2d at 90. The Court does not at this time reach the question of whether it has subject-matter jurisdiction. Defendants' motions for summary judgment are denied as there are insufficient facts in the record to warrant the Court in making the requisite findings. So ordered.

444 S.W.2d 567 (1969) Emery Berryman BAGLEY, Appellant, v. The STATE of Arkansas, Appellee. No. 5424. Supreme Court of Arkansas. September 15, 1969. *568 Harold Sharpe and Henry Wilkinson, Forrest City, for appellant. Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee. BROWN, Justice. Appellant Emery Berryman Bagley was convicted of first degree murder and sentenced to death. Bagley and a companion hitchhiked a ride out of Memphis, Tennessee, and their benefactor was fatally shot as the three men drove through St. Francis County. Two written confessions of Bagley were introduced at his trial, both of which implicated him. The State's evidence was clearly sufficient to sustain a first degree murder conviction. However, there were errors committed by the trial court which call for reversal. We shall discuss those errors and, because of the probability of a new trial, comment on most of the other points advanced by appellant. The court examined the jury on voir dire but first explained the nature of the charge, the degrees of homicide, and the punishment. Comment was made on the nature of the punishment for first degree murder in these words: The law fixes the punishment at death by electrocution unless the jury finds that there are extenuating circumstances which would justify life imprisonment instead of the death penalty. If the jury does not find extenuating circumstances it simply returns a verdict of guilty of murder in the first degree, and then the law requires that the court pronounce the sentence. If the jury finds extenuating circumstances they will return a verdict of guilty and fix the punishment at life imprisonment in the State Penitentiary. *569 Bagley's counsel timely objected (in chambers) to the statement as being a prejudicial misstatement of the law and requested that the court correct it in the presence of the jury. The court, in denying the request, took the position that its formal instructions which would follow the testimony would leave no doubt with the jury that it could "certainly return any verdict they see fit." The court told the jury that if the defendant was guilty of first degree murder the punishment was death by electrocution unless the jury found extenuating circumstances which would justify the substitution of a penalty of life imprisonment. Ark.Stat.Ann. § 43-2153 (Repl.1964) says the jury "shall have the right" in all capital cases to fix punishment at life imprisonment instead of death. The statute contains no such words or phrases as "discretion" or "extenuating circumstances." When the Legislature created two forms of punishment for first degree murder it did not create two grades of the offense; it merely created a choice of punishment, that choice to be made by the jury. The only responsibility imposed on the court is that the jury is to be advised of its duty to select which of the punishments shall be imposed. When the court so advises the jury it "has exhausted its powers in the premises, and any attempt on its part to go further and inform the jury that under certain circumstances it might impose death and under others life imprisonment would in effect usurp the prerogatives of the jury and be wholly improper." Hernandez v. State, 43 Ariz. 424, 32 P.2d 18 (1934). The State argues that if the trial court's remarks were erroneous, it is not shown that those members of the panel who heard the remarks actually sat on the jury. We concede that it cannot be determined with certainty just which jurors heard the remarks but it is clear to us, after careful perusal of the record, that a majority of the jurors who tried the case heard the court's statement about extenuating circumstances. Additionally the State contends that any error was cured when the court explained the forms of verdicts and advised the jury to fill in the blanks as the jury saw fit. We cannot agree. The damage could have been removed only by an equally positive statement of correction. The court's statement that extenuating circumstances must be produced to avoid the death penalty was clear and unequivocal; only a corrected statement of equal stature could have erased it. Appellant contends that the court and prosecuting attorney, to appellant's prejudice, propounded an unnecessary number of inquiries to prospective jurors concerning their views on capital punishment. We cannot say the court abused its discretion. Some repetition was necessary because the first list of jurors was exhausted and additional jurors were necessarily called. Had the proper objection been made it is possible that the court would have reduced to some extent the number of repetitions. The attitude of the jurors toward capital punishment was needed for two purposes. First there were the challenges for cause, based on the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). On the basis of Witherspoon, those jurors who would not consider returning a verdict of death could be removed for cause. Secondly, there was the responsibility of the prosecuting attorney for wisely making peremptory challenges. To so act he would naturally need to identify those jurors who had conscientious or religious scruples against the death penalty. Although Witherspoon held that such general objections to the extreme penalty were not grounds for challenging for cause, it certainly did not restrict the prosecutor in considering those factors in evaluating his peremptory challenges. The widow of the victim testified that at the time of her husband's death she was pregnant and suffering from pneumonia. Appellant argues that the testimony was *570 irrelevant and prejudicial. Clearly that testimony would only serve to arouse the sympathy of the jury. We suggest that it be avoided on retrial. In one of the instructions the trial court read to the jury Ark.Stat.Ann. § 41-2246 (Repl.1964): Burden of Proof.—The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. The giving of that instruction is asserted as error which allegedly calls for a new trial. The statute has been held to be applicable only where there is a claim of self-defense. Where the instruction is given in other cases we have said it is only a statement of an abstract proposition of law and may be harmless error. Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916); Easter v. State, 96 Ark. 629, 132 S.W. 924 (1910). We have also held that when an instruction based on § 41-2246 is accompanied by an instruction on presumption of innocence which goes with the defendant throughout the trial unless overcome beyond a reasonable doubt, any error in the reading of § 41-2246 is harmless. Brown v. State, 231 Ark. 363, 329 S.W.2d 521 (1959). Yet, each case is governed by its own record and the law applicable to that record. The case before us is different in essential respects from the cited cases and the many other precedents concerning the application of § 41-2246. Here is the record upon which our disposition of appellant's challenge is based: It is important to note that Bagley was charged with a willful, premeditated, and deliberate killing, as opposed to a charge of murder while in the perpetration of robbery; had the latter charge been filed there could have been only the highest degree of homicide involved. No witnesses were called in Bagley's behalf. Before the court read § 41-2246 to the jury, Bagley's counsel objected (1) that the killing was admitted and there was no contention of mitigating circumstances, and (2) the instruction "amounts to a comment on the fact that the defendant has not testified in this case." Under further instructions of the court, the jury was privileged to find Bagley guilty of first degree murder, second degree murder, or manslaughter. Since Bagley called no witness the instruction could have discouraged the jury from considering a verdict less than that of first degree murder. That was because the jury was told the defendant had a duty to come forward with proof of mitigating circumstances. Since Bagley stood silent, as of course he had a right to do, the jury could have given damaging weight to his inaction. Appellant next attacks the constitutionality of two of our statutes, Ark.Stat. Ann. § 41-2227 and § 43-2154 (Repl.1964). Respectively those statutes fix the death penalty for first degree murder and establish an alternate penalty of life imprisonment. It is argued (a) that the death penalty is allowed to be imposed by the jury without any guidelines and (b) that the jury which fixes guilt determines the punishment at the same time. Identical challenges to Arkansas law were raised in Maxwell v. Bishop, 2 Cir., 398 F.2d 138 (1968). The arguments were rejected by a unanimous court and we agree. Also, see Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) for that court's comment on two-part jury trials. In his closing argument the prosecuting attorney discussed capital punishment as a deterrent to others similarly inclined. Defendant's attorney contends he was improperly denied appropriate rebuttal when he was told he could not refer to certain statistics which he contended proved the death penalty was not a deterrent. We cannot say the trial court abused its discretion in that respect in that the statistics *571 were not in the record nor were they asserted to be a matter of common knowledge. Furthermore, the defense attorney immediately argued the same point by a different approach and without objection. Other points for reversal which are argued are without merit and a discussion of them would serve no useful purpose. We have examined other objections made in the record but not argued and find no error. The record does reveal one incident which requires comment because of a probable new trial. In the course of its deliberations the jury inquired "as to the minimum time that a man would have to serve if he was sentenced to a life sentence in prison." The court explained that the question could not be answered because of the recent enactment of what was considered a complex new law difficult of interpretation; and because no statistics had yet been made available based on the new law. It would not have been improper for the trial court to respond to the question by an explanation of the law applicable to paroles; but the giving of statistics on the subject to the jury resulted in a reversal in Bell v. State, 223 Ark. 304, 265 S.W.2d 709 (1954). It is our conclusion that the case must be reversed and remanded for new trial. We are well aware of those many instances in homicide cases wherein error has been corrected either by reducing the punishment or by entering a conviction for a lesser degree of the charged offense; but there are two reasons which, when combined, preclude those alternatives. First, the evidence here would clearly support a conviction of first degree murder; and second, the error in giving an instruction based on § 41-2246 could well have influenced the jury to return the recorded verdict in lieu of a conviction for a lesser degree of homicide. Reversed and remanded. HOLT, J., not participating.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6497 TACARLOS ANTIGO MILLER, Plaintiff - Appellant, v. DON G. WOOD, ADMINISTRATOR #1 SCOTLAND CORRECTIONAL; DIRECTOR OF PRISONS BOYD BENNETT; THEODIS BECK, SECRETARY OF DEPARTMENT OF CORRECTIONS; HATTIE B. PIMPONG, CHIEF DISCIPLINARY HEARING OFFICER; PATRICIA CHAVIS, DIRECTOR OF SOUTH CENTRAL REGION OFFICE; MR. CRUTCHFIELD, ASST. SUPT. OF PROGRAMS SCOTLAND CORR. INST.; MR. BATTLE, DISCIPLINARY HEARING OFFICER, Defendants - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Paul Trevor Sharp, Magistrate Judge. (1:07-cv-00415-PTS) Submitted: July 31, 2008 Decided: August 8, 2008 Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Tacarlos Antigo Miller, Appellant Pro Se. James Philip Allen, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tacarlos Antigo Miller appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Miller’s motion for appointment of counsel and affirm for the reasons stated by the district court. Miller v. Wood, No. 1:07-cv- 00415-PTS (M.D.N.C. Mar. 4, 2008). 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 - 

321 B.R. 632 (2005) In re Emmerich HANDLER, a/k/a Isaac Handler and Rita Handler a/k/a/ Rifka Handler, Debtors. Israel Weinstock, Plaintiff, v. Emmerich Handler, Jack Walker, Kaminetzer Yeshiva of Jerusalem, and David J. Doyaga, as Trustee of the Estate of Emmerich and Rita Handler, Defendants. Bankruptcy No. 00-14960-CEC. Adversary No. 04-001174-CEC. United States Bankruptcy Court, E.D. New York. February 14, 2005. *634 Gary F. Herbst, LaMonica Herbst and Maniscalco, Wantagh, NY, for Chapter 7 Trustee. Wayne M. Greenwald, New York City, for Jack Walker. Emmerich Handler, Rita Handler, Brooklyn, NY, for Debtors. DECISION CARLA E. CRAIG, Bankruptcy Judge. Israel Weinstock ("Weinstock") brought this adversary proceeding against Emmerich Handler, Rita Handler, Jack Walker ("Walker"), Kamenitzer Yeshiva of Jerusalem Inc. ("KYJ") and David Doyaga, in his capacity as Chapter 7 Trustee for the Estate of the Debtors. Through this action, Weinstock seeks to have the decision of the New York Supreme Court in Walker v. Weinstock, 173 Misc.2d 1, 658 N.Y.S.2d 167 (Sup.Ct. Kings Cty.1997), set aside as void for lack of procedural due process and to obtain a judgment that he is the rightful owner of certain property that was the subject of that state court action. Weinstock also seeks damages by reason of the alleged violation of his due process rights pursuant to 42 U.S.C. § 1983. Walker filed a motion to dismiss this adversary proceeding, alleging, among other things, that this Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. The other defendants (except for KYJ) have separately moved or have joined in the motion. This decision constitutes the Court's findings of fact and conclusions of law to the extent required by Fed. R. Bankr.P. 7052. For the reasons set forth below, this adversary proceeding is dismissed. Facts The following is a summary of the relevant factual allegations of the complaint, together with certain other facts that appear in the record. It is well established that pro se pleadings must be construed more liberally than pleadings drafted by lawyers.[1]Platsky v. CIA 953 F.2d 26, 28-29 (2d Cir.1991) (dismissal of pro se complaint for failure to plead sufficient facts inappropriate, and leave to amend should have been given). That being said, Weinstock's complaint is 40 single spaced pages of prolix accusations together with 2 binders containing 38 exhibits. While it is often difficult to determine exactly what Weinstock is claiming, this Court has attempted to extract a comprehensible complaint through review of all of the materials Weinstock has provided.[2] During the 1970's, the Debtor was a part of an ownership group that purchased two buildings located at 4200 and 4211 Avenue K, Brooklyn, New York. Walker v. Weinstock, 173 Misc.2d at 2-3, 658 N.Y.S.2d 167. The ownership group took title to the buildings in the name of 4200 Avenue K Realty Corporation ("4200 Corp."), a closely-held *635 corporation. Id. at 3, 658 N.Y.S.2d 167. The New York Supreme Court found that, other than the filing of a certificate of incorporation with the New York Secretary of State, no corporate formalities were adhered to in the creation or operation of 4200 Corp. (i.e., no stock was ever issued, no bylaws were created, and no bank accounts were established.) Id. Walker was one of the primary investors in 4200 Corp. Id. Through two transactions, Walker assigned all of his stock in 4200 Corp. to Weinstock. (Complaint Doc. 12, ¶ 11; Walker, 173 Misc.2d at 5-6, 658 N.Y.S.2d 167).[3] In September of 1986, the Debtor, Walker and KYJ commenced a lawsuit against Weinstock to recover the stock that Walker had assigned to him, alleging, among other things, that Walker had been threatened and coerced by Weinstock and that Walker had transferred stock to Weinstock that belonged to the Debtor and KYJ. (Complaint App. No. 4).[4] In Walker v. Weinstock, the New York Supreme Court declared both transfers by Walker to Weinstock void. Walker, 173 Misc.2d at 7, 658 N.Y.S.2d 167. The court held, among other things, that the Debtor was, at all times, the rightful owner of 4200 Corp. and that Weinstock had no claim whatsoever to either of the buildings owned by 4200 Corp. Id. Weinstock appealed to the Appellate Division (255 A.D.2d 508, 680 N.Y.S.2d 177 (2nd Dept.1998)), which upheld the decision of the trial court, and to the New York Court of Appeals (93 N.Y.2d 812, 717 N.E.2d 700, 695 N.Y.S.2d 541 (1999)), which denied certiorari. In 1997, after the trial court rendered its decision in Walker v. Weinstock, Walker filed a complaint against Weinstock with the Disciplinary Committee of the Second and Eleventh Judicial Districts (the "Grievance Committee"). (Complaint App. No. 14). In his complaint, Walker drew the Grievance Committee's attention to the decision in Walker v. Weinstock, in which the trial judge found that Weinstock's actions in coercing Walker to transfer his interest in 4200 Corp. to Weinstock to be "violative of the spirit of the canons of ethics" and "the consequence of overreaching and undue influence by [Weinstock]." Id. As a result of this complaint, Weinstock was disbarred in 2002. In the Matter of Israel Weinstock, 292 A.D.2d 1, 740 N.Y.S.2d 128 (App. Div.2d Dep't 2002). Weinstock appealed this decision as well, and the New York Court of Appeals ultimately denied certiorari. In the Matter of Israel Weinstock, 98 N.Y.2d 604, 773 N.E.2d 1016, 746 N.Y.S.2d 278 (2002). In 2000, the Debtors filed a Chapter 11 petition, which was subsequently converted to this Chapter 7 case. In 2004, Weinstock filed this adversary proceeding against the Defendants. (Doc. No. 1; 12). Weinstock alleges in his Verified First Amended Complaint for Equitable Relief (the "Complaint") that the judgment of the Supreme Court in Walker v. Weinstock was a result of collusion among several judges in the New York State court system, the Debtors, Walker, KYJ and the law firm of Cleary, Gottlieb, Steen and Hamilton ("Cleary"). (Complaint ¶¶ 11-17). Weinstock asserts that the Debtor and Cleary worked together to strip him of his interest in 4200 Corp. (Complaint ¶¶ 11-17). Weinstock alleges that to prevent him from continuing his efforts to reclaim his interest in 4200 Corp., and to cover their tracks, Cleary *636 and the Debtor arranged to have Weinstock disbarred. (Complaint ¶¶ 18-20, 22, 26-27, 34-44). The Debtors did not list any ownership interest in 4200 Corp. on their petition. However, the Trustee has brought an adversary proceeding (Doyaga v. Samuel Roth, Morris Roth, Agnes Roth, Hanshe Liebowitz, Eleazer Handler and Chaim Tescher, XX-XXXXX-XXX) in which he seeks to set aside the transfer by the Debtors of their ownership interests in 4200 Corp. to Sam, Agnes and Morris Roth as a fraudulent conveyance. The Trustee asserts that the Roths subsequently refinanced and later sold the buildings owned by 4200 Corp. at the instruction of the Debtors and that a portion of the proceeds from this sale are being used to fund the Debtors' various litigations in connection with their bankruptcy. In a second adversary proceeding (Doyaga v. Handler, XX-XXXXX-XXX), the Trustee seeks to deny the Debtors' a discharge asserting, among other things, that the Debtors did have an interest in 4200 Corp. at the time of the filing of their petition and attempted to hide such interest from the Trustee and this Court. Weinstock's Request to Remove this Action to the District Court It is appropriate at the outset to address Weinstock's request that this Court "enter an order recommending to the United States District Court for the Eastern District of New York that.. .it withdraw the standing bankruptcy reference of this non-core proceeding." (Complaint, VI ¶ (a)). Fed. R. Bank. P. 5011(a) provides that "A motion for withdrawal of a case or proceeding shall be heard by a district judge." Thus, a request for a withdrawal of the reference must be made by motion to the district court. Weinstock previously made a motion for withdrawal of the reference to this Court, which was denied without prejudice to renewal before the district court. If Weinstock wishes to seek the withdrawal of the district court's reference, he should bring on a motion to the district court in accordance with the applicable rules. Weinstock's request in the Complaint that this Court enter an order recommending the withdrawal of the reference is therefore denied. Walker's Motion to Dismiss Walker has moved to dismiss the Complaint in this adversary proceeding on the grounds that this Court lacks subject matter jurisdiction, both under the Rooker-Feldman doctrine and pursuant to 28 U.S.C. § 1334; that principles of res judicata preclude Weinstock from pursuing the claims asserted in the Complaint; that Weinstock's § 1983 claims are timebarred; and that the Complaint fails to comply with pleading requirements of Fed. R.Civ.P. 8 and 9 and was not properly served. For the reasons discussed below, the Rooker-Feldman doctrine compels dismissal of the Complaint, and the other grounds for dismissal accordingly are not reached. Rooker-Feldman Doctrine Precludes this Court from Deciding this Matter "The Rooker-Feldman doctrine provides that `lower federal courts lack subject matter jurisdiction over a case if the exercise of jurisdiction over that case would result in the reversal or modification of a state court judgment'." In re Ivani, 308 B.R. 132, 136 (Bankr.E.D.N.Y.2004), citing Neshewat v. Salem (In re Salem), 290 B.R. 479, 482 (S.D.N.Y.2003), Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998). The doctrine was established by two Supreme Court cases, (Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia *637 Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)) and is predicated upon 28 U.S.C. § 1257, pursuant to which the United States Supreme Court is the only federal court which may hear appeals from determinations of state courts. The Rooker-Feldman doctrine applies even where the state court adjudication was erroneously decided. In re Ivani 308 B.R. at 137, n. 1, citing Bell, 2000 WL 1273637 at *4, 2000 U.S. Dist. LEXIS 12854 at *13 (an erroneous judgment must continue to be given effect until it is modified in an appropriate appellate proceeding in the appropriate forum). That is, "[the bankruptcy] court is precluded from acting as an appellate court to determine if the state court decision was appropriate." In re Ivani, 308 B.R. at 137, n. 1, citing Siskini v. Complete Aircraft Services, Inc. (In re Siskin), 258 B.R. 554, 565 (Bankr. E.D.N.Y.2001). The Rooker-Feldman doctrine requires that its applicability be determined before a court considers other defenses, including res judicata. Harris v. N.Y. State Dep't of Health, 202 F.Supp.2d 143, 160 (S.D.N.Y.2002), citing GASH Assocs. v. Village of Rosemont, Ill., 995 F.2d 726, 728-729 (7th Cir.1993) (holding that the district court erred by dismissing the case on the basis of res judicata because Rooker-Feldman applied and thus deprived the court of jurisdiction); Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 703 (7th Cir.1998) ("If Rooker-Feldman applies, a res judicata claim must not be reached."); Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996). Rooker-Feldman is therefore distinct from res judicata. However, the Rooker-Feldman doctrine and preclusion rules produce a similar outcome: the plaintiff is barred from bringing the case in federal court. "The Rooker-Feldman doctrine bars both direct and collateral attacks on state court final judgments, and for this reason the state and federal claims do not need to be identical in order for the doctrine to apply." Ivani 308 B.R. at 136. Where a federal claim is "inextricably intertwined" with a state court determination, Rooker-Feldman applies, and lower federal courts lack jurisdiction to hear the matter. Id.; Feldman, 460 U.S. at 482-84 n. 16,103 S.Ct. 1303. In Feldman, the Supreme Court stated that claims are inextricably intertwined with a state court judgment when either: (a) the case brought in federal court by the party unsuccessful in state court amounts merely to a recasting of losing claims under a semblance of federal law or causes of action not decided or interposed in the prior state proceeding, so that "in essence" the district court is being called upon to undertake appellate review of the state court decision, or (b) the federal proceeding represents not a "general challenge" to a state law or rule, but rather a more "particularized challenge" to a state court adjudication as it applies to or affects the federal plaintiff. Feldman, 460 U.S. at 485-86 n. 16 and n. 18, 103 S.Ct. 1303. The Second Circuit has held that, in determining whether a federal claim is inextricably intertwined with a previous state court determination, principles of preclusion may be consulted. Thus, "at a minimum, ... where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either plaintiff or defendant in that proceeding), subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir.1996) (citing Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 107 S.Ct. *638 1519, 95 L.Ed.2d 1 (1987)). Put differently, "a federal claim is `inextricably intertwined' with a state court judgment `if the federal claim succeeds only to the extent the state court wrongly decided the issues before it.'" Ivani 308 B.R. at 137, citing Bell, 2000 WL 1273637 at *4, 2000 U.S. Dist. LEXIS 12854 at *13. Although, as the Supreme Court has noted, it "may sometimes be difficult to answer" whether a claim is inextricably intertwined with a prior state court determination, Pennzoil, 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (Marshall, J. concurring), it is not difficult in this case. It is apparent that the claims Weinstock asserts are inextricably intertwined with the merits of the state court adjudication in Walker v. Weinstock. The complaint amounts to a request for an appellate review of that state court judgment and is therefore barred by the Rooker-Feldman doctrine. In his prayer for relief, Weinstock requests a judgment declaring the decision in Walker v. Weinstock to be void as the product of "extrinsic fraud and judicial collusion". (Complaint VI ¶ (b)). Weinstock also requests that the defendants be required to disgorge any gains traceable to the Walker v. Weinstock judgment. (Complaint VI ¶ (b)). The relief goes to the very essence of the state court's judgment. Weinstock's claim rests on the assertion that the judge in Walker v. Weinstock departed from "established modes of procedure" and suborned perjury of the Debtor and Walker. (Complaint ¶ 2). Weinstock's procedural due process claim does not reflect a "general challenge" to the sufficiency of New York state's judicial rules; rather, it is a particularized challenge that, as applied to him, the procedures followed by the court were deficient and that the decision in Walker v. Weinstock was not grounded on applicable law, and thereby violated his right to due process. Feldman, 460 U.S. at 485-86, 103 S.Ct. 1303. The Second Circuit has stated that to prevail under a procedural due process claim, a plaintiff must show that the procedural safeguards established by the state are insufficient to protect his rights. Moccio, 95 F.3d at 200. Weinstock makes no such assertion in his complaint. Furthermore, Weinstock has had a full and fair opportunity to litigate his federal claim in state court. Weinstock omits to mention in his complaint that he appealed the trial court's decision in Walker v. Weinstock. The record in that case shows that in upholding the trial court's judgment the Appellate Division, Second Department held that the trial evidence amply supports the Supreme Court's determination that the appellants Israel Weinstock and JB Trading International, Ltd., had no interest in 4200 Avenue K Realty Corporation or the property owned by the corporation. The terms of, and the circumstances surrounding, the assignments through which the appellants claim ownership rendered those assignments void as the products of coercion and overreaching. Walker v. Weinstock, 255 A.D.2d 508 (N.Y. App Term 1998). Weinstock could have raised his procedural due process claims in his appeal to the Appellate Division and in his subsequent motion for leave to appeal to the New York State Court of Appeals. Migra v. Warren City School District Board of Education, et al, 465 U.S. 75, 84-85, 104 S.Ct. 892, 898, 79 L.Ed.2d 56, 64 (1984) (by failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state court decision in any federal court); Moccio, 95 F.3d at 199 (holding the Rooker-Feldman doctrine may bar assertion in federal court not only *639 of issues and claims actually presented in state court but of those that could have been raised.) He could also have raised them in the proceeding that resulted in his disbarment, and in his appeal from the Appellate Division's determination. In essence, Weinstock is requesting that this Court reverse the determination by the New York State Supreme Court, Kings County and Appellate Division, Second Department that he has no interest in 4200 Corp. or any property owned by 4200 Corp. This outcome would require this Court to perform an appellate review of a state court's decision and grant Weinstock the relief he was denied in that state court proceeding. This is exactly what the Rooker-Feldman doctrine prohibits federal courts from doing. Feldman, 460 U.S. at 483 n. 16, 103 S.Ct. 1303. Weinstock's complaint will only succeed if this Court determines that the New York courts that considered this matter each made an incorrect determination and overrules those determinations. See Ivani 308 B.R. at 137; Harris, 202 F. Supp.2d at 163; Pennzoil, 481 U.S. at 25, 107 S.Ct. 1519. For all of these reasons, the claims asserted in this action are inextricably intertwined with the state court's determination. The same conclusion must be reached with respect to Weinstock's § 1983 claim. Weinstock's claim for damages resulting from the loss of his interest in 4200 Corp., like his request that the judgment awarding that interest to the Debtor in Walker v. Weinstock be set aside, can succeed only if the state court determinations in Walker v. Weinstock were wrong. Similarly, Weinstock's claim for damages resulting from his disbarment (which was based upon the findings of the trial court in Walker v. Weinstock) can succeed only if those findings were incorrect, and only if the Appellate Division's decision to disbar him (which was also appealed to New York's highest court) was also incorrect. Feldman, 460 U.S. at 483, 103 S.Ct. 1303 ("[Orders] of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court." quoting MacKay v. Nesbett, 412 F.2d 846 (9th Cir.1969)). In his opposition to the motion to dismiss Weinstock asserts that the Rooker-Feldman doctrine does not apply to a separate, independent and original action in the nature of a bill of equity. (Pl. Opp., Doc. 19, at 21)[5]. Citing the Sixth Circuit's decision in Catz v. Chalker, 142 F.3d 279 (6th Cir.1998), Weinstock contends that a federal court may entertain a collateral attack on a state court judgment which is alleged to have been procured through fraud, deception, accident or mistake. (PI. Opp. at 26). Weinstock misreads the Sixth Circuit's decision in Catz. There, the court held that the Rooker-Feldman doctrine did not bar a federal plaintiff's due process challenge to procedures established by a state in connection with obtaining a divorce decree because the challenged procedures were not inextricably intertwined with the merits of the divorce decree. Catz, 142 F.3d at 294. Courts in this Circuit have held that where Rooker-Feldman is applicable, a federal court is precluded from hearing the matter even when the plaintiff alleges that the state court determination was the product of fraud. Smith v. Weinberger, 994 F.Supp. 418, 424 (E.D.N.Y.1998) (holding that the fact that the plaintiff alleges that the state court *640 judgment was procured by fraud does not remove his claims from the ambit of Rooker-Feldman). For example, in Levitin v. Homburger, et at., the plaintiff claimed that his former partner and partnership's law firm fraudulently conspired to obtain a court order to sell the plaintiff's interest at a judicial sale without informing him. 932 F.Supp. 508, 513 (S.D.N.Y.1996). Citing the Rooker-Feldman doctrine, the court concluded that such a claim could not be entertained in district court. Id. at 517-19. This determination was affirmed by the Second Circuit in an unpublished decision. 107 F.3d 3 (2d Cir.1997). Similarly, in Zipper v. Todd, the plaintiffs, former directors of a company, filed suit in district court alleging that the various defendants had fraudulently obtained approval in a Kansas state court of an order liquidating the company. No. Civ. 96-5198, 1997 WL 181044 *1, 1997 U.S. Dist. LEXIS 4770 *l-3 (S.D.N.Y.1997). The district court concluded that "it is clear that this court lacks jurisdiction over plaintiffs present cause of actions pursuant to the Rooker-Feldman doctrine. Plaintiff's allegations of fraud ... are unavailing." Id., 1997 WL 181044 at *6, 1997 U.S. Dist. LEXIS 4770 at *19 (citations omitted). Pursuant to the Rooker-Feldman doctrine, therefore, Weinstock's complaint must be dismissed because a state court of competent jurisdiction has already reached a judgment on the merits with respect to Weinstock's claim to ownership interests in 4200 Corp., and in the buildings in question, and with respect to the appropriateness of Weinstock's disbarment. Both of those decisions have been appealed to the highest court in New York state. Weinstock's only remedy in federal court would have been to seek review by the United States Supreme Court. Centres, 148 F.3d 699, 701 ("Litigants who believe that a state judicial proceeding has violated their constitutional rights must appeal that decision through their state courts and then to the Supreme Court"). Walker's additional grounds for dismissal need not be considered. Because this Court lacks subject matter jurisdiction, Weinstock cannot cure deficiencies in the complaint by amendment. Walker is directed to settle an order consistent with the foregoing, dismissing the complaint as to all the defendants. NOTES [1] Weinstock is receiving the benefit of the more liberal standard set by the Second Circuit for pro se pleadings, even though he was an attorney for many years prior to his disbarment in 2002. [2] In considering a motion to dismiss, the Court may consider documents attached as an exhibit thereto or incorporated by reference, (see Federal Rule of Civil Procedure 10(c); De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir.1996)), and documents that are "integral" to plaintiff's claims, even if not explicitly incorporated by reference. Cortec Industries et at. v. Sum Holding, L.P., et al., 949 F.2d 42, 46-48 (2d Cir.1991). [3] "Doc." refers to documents listed on the bankruptcy court's docket, by docket number. [4] "Complaint App. No." refers to documents by appendix number that were submitted with Weinstock's complaint. [5] "Pl. Opp." refers to "Plaintiff Israel Weinstock's Response in Opposition [sic] to Defendant Jack Walker's Motion for Orders Dismissing Action".

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0220n.06 No. 08-5988 FILED Apr 08, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF TENNESSEE HAROLD NOEL, ) ) Defendant-Appellant. ) ) BEFORE: KEITH, BOGGS, and GRIFFIN, Circuit Judges. GRIFFIN, Circuit Judge. Defendant Harold Noel appeals his sentence of 120 months in prison for being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Noel argues that the district court failed to appreciate its authority to depart downward from the advisory Guidelines range based on a discharged sentence imposed in state court for conduct related to the federal offense or, alternatively, that the sentence imposed by the district court was unreasonable. We disagree and affirm. I. The Tennessee Court of Criminal Appeals accurately set forth the background facts of this case: No. 08-5988 United States v. Noel At approximately 8:15 a.m. on June 21, 2002, prominent Memphis attorney Robert Friedman was shot and killed in the parking garage of his office building. Witnesses reported seeing a well-dressed black male in his late twenties to early forties run from the crime scene to a blue Toyota Corolla. When [Noel] became a suspect during the course of the investigation, officers drove to his place of residence to question him. The defendant declined to cooperate with the officers and, for several hours, refused to open the door to his apartment. Eventually, the defendant opened the locked door and was immediately handcuffed and taken to the police station. After several hours of questioning, the defendant admitted his involvement in the shooting. *** The defendant had been represented by the victim in a divorce case that included a custody issue regarding his daughter. He admitted that he had waited in the parking garage for the victim and stated that his plan was “[t]o shoot him for the cruel way he betrayed me in representing me.” He described himself as in a state of despair because he had lost everything, including a place to live, in the divorce. The defendant acknowledged that he shot the victim four times with a .38 revolver from a distance of four feet. He also stated that he “wanted to kill Chancellor Alissandratos but I didn’t figure I had enough time . . . .” He told officers that he then drove to his apartment, changed clothes, and returned his rental car. State v. Noel, No. W2005-00160-CCA-R3-CD, 2006 WL 2729487, at *1, *6 (Tenn. Crim. App. Sept. 25, 2006) (second alteration in original). Noel was charged with first-degree murder and stood trial in Tennessee Criminal Court. The jury found Noel guilty of the lesser included offense of voluntary manslaughter. He was sentenced to six years in prison. On April 20, 2006, a federal grand jury in the Western District of Tennessee returned an indictment charging Noel with two counts: being a felon in possession of a firearm, and a felon in -2- No. 08-5988 United States v. Noel possession of ammunition. 18 U.S.C. § 922(g).1 Pursuant to a plea agreement, Noel pleaded guilty to having possessed ammunition in exchange for dismissal of the firearm count. The district court accepted Noel’s guilty plea and scheduled the case for sentencing. Prior to the sentencing hearing, the Probation Office prepared a presentence report (“PSR”).2 Based on Noel’s use of ammunition to commit murder, the PSR included a cross-reference to U.S.S.G. § 2A1.1(a) for first-degree murder leading to a base offense level of 43. Noel filed numerous objections to the presentence report, arguing that: (1) the Guideline provision cross- referencing first-degree murder was not applicable and the base offense level should be calculated as 14; (2) those portions of the PSR describing Noel’s purported mental illness or emotional problems were inaccurate; (3) Noel was not provided a copy of the psychological evaluation from the Federal Medical Center (“FMC”) located in Fort Worth, Texas; and (4) the government improperly elicited or offered victim-impact evidence at the sentencing hearing. In addition, Noel asked for a downward departure on the following grounds: (1) he entered a guilty plea as to the ammunition count, and the government moved to dismiss the firearm count; (2) he had a minimal criminal history; (3) he allegedly suffered from mental and emotional problems; (4) he was fifty-four years old; (5) the underlying state conviction was for voluntary manslaughter, not first-degree 1 The government was able to examine the ammunition recovered from Friedman’s body and determined that it was not manufactured in Tennessee. Noel had a prior conviction for a crime punishable by imprisonment for a period of more than one year. 2 The 2007 edition of the Guidelines Manual applied. -3- No. 08-5988 United States v. Noel murder, and he had served his sentence; and (6) the shooting resulted from his despair and desperation. Finally, Noel made a “Special Request.” He asked the district court to give him “credit for time served from his original [state] arrest date, June 21, 2002.” On July 31, 2008, the district court held a sentencing hearing. After hearing defense counsel’s arguments, the district court adopted the findings contained in the PSR. Noel was given a criminal history category of II because of two criminal history points. A base offense level of 43 was calculated, as authorized by § 2K2.1(c)(1), by cross-reference to § 2A1.1(a) of the Sentencing Guidelines based upon the offense of first-degree murder.3 The offense level was reduced to 40 because of Noel’s acceptance of responsibility. The resulting advisory Guidelines range was from 324 to 405 months, but the charged offense had a statutory maximum penalty of 120 months. After reviewing the PSR, hearing from witnesses, and addressing the 18 U.S.C. § 3553(a) factors, the district court sentenced Noel to 120 months of imprisonment, followed by three years of supervised release. Noel timely appealed. II. 3 On this point, the district court stated: And in your case because of the facts that are contained in your statement, those facts give rise to an appropriate application, an appropriate cross-reference to a first degree murder charge because it came about as a result of a lying in wait and an intentional act on your part. -4- No. 08-5988 United States v. Noel Noel argues that two pertinent Sentencing Guidelines, namely §§ 5G1.3 and 5K2.23, authorized the district court to grant a downward departure in his case. Although § 5G1.3 on its face does not address the present circumstances, in which a defendant’s state sentence has been discharged, application note 4 to § 5G1.3 states: 4. Downward Departure Provision. – In the case of a discharged term of imprisonment, a downward departure is not prohibited if the defendant (A) has completed serving a term of imprisonment; and (B) subsection (b) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. See § 5K2.23 (Discharged Terms of Imprisonment). Section 5K2.23 provides: 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. Section 5G1.3(b) applies when the “term of imprisonment resulted from another offense that is relevant conduct to the instant offense” under § 1B1.3(a)(1), (a)(2), or (a)(3). Noel meets the relevant conduct requirement of § 5G1.3(b) because his offense level was based upon the same actions that resulted in his conviction for voluntary manslaughter in state court. Noel argues that “[b]ecause the record does not show that the [district] court was aware of its discretion to depart [based on § 5G1.3 or § 5K2.23 of the Sentencing Guidelines], the case should be remanded . . . for resentencing.” However, Noel did not adequately raise this issue before the district court. While Noel’s counsel filed a motion for a downward departure and a “Special -5- No. 08-5988 United States v. Noel Request” seeking “credit” against his federal sentence for time served on a related state offense, he neither cited § 5G1.3 or § 5K2.23 of the Sentencing Guidelines nor argued at his sentencing hearing that the district court should grant a downward departure for a cross-referenced offense that had been fully served. Accordingly, we hold that Noel forfeited his appeal of this issue. See United States v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007) (stating that “[t]here is no appealable issue saved by [United States v. Bostic, 371 F.3d 865 (6th Cir. 2004)] when a defendant wishes to appeal a discretionary factor and does not request the judge to exercise such discretion during the sentencing hearing”); see also United States v. Ukomadu, 236 F.3d 333, 340 (6th Cir. 2001) (“A defendant waives the right to appeal an application of the Sentencing Guidelines when he fails to object in the trial court.”); United States v. Aponte, 19 F. App’x 213, 223 (6th Cir. 2001) (unpublished) (“[W]e hold that . . . a defendant has no right to appellate review (to the extent it can be called review) of a district court’s failure to depart downward when the defendant did not first seek a downward departure on the asserted basis in the district court.”). In the alternative, we reject Noel’s argument. “[W]e do not review a district court’s decision not to depart downward unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008).4 “[W]e presume that the district court understood its discretion, absent clear 4 “We review the transcript of the sentencing hearing de novo in determining whether the district court was aware of its authority to depart.” United States v. Young, 310 F. App’x 784, 794 (6th Cir. 2009) (unpublished) (citing United States v. Williams, 355 F.3d 893, 901 (6th Cir. 2003)). -6- No. 08-5988 United States v. Noel evidence to the contrary.” Id. Here, there is no clear evidence that the district court did not understand its discretion to make a downward departure. The district court indicated that it had considered all of Noel’s arguments: In an effort to keep everything focused and [streamlined], I said I would consider all of the requests made and the written documents, whether they are argued or not unless they are specifically withdrawn. Nothing has been withdrawn, so I will consider those. Moreover, the district court acknowledged Noel’s “Special Request” for jail credit and stated: “[T]he time served on the state sentence cannot be credited against this sentence because that is time that was credited to a sentence that has since been concluded. . . . The Bureau of Prisons obviously will calculate credit for the offense since the defendant has been in federal custody.” The district court’s understanding of the law was correct: “[T]he power to grant credit for time served lies solely with the Attorney General and the Bureau of Prisons[,]” and a district court is therefore not authorized to award credit at sentencing. United States v. Crozier, 259 F.3d 503, 520 (6th Cir. 2001) (citing United States v. Wilson, 503 U.S. 329, 333 (1992)); see also United States v. O’Non, 268 F. App’x 454, 458 (6th Cir. 2008) (unpublished) (“The statement by the district court that any credit for time served is properly calculated by the Federal Bureau of Prisons is a correct statement of law.”). The record does not establish, through clear evidence, that the district court thought it was without power to depart downward based on Noel’s discharged state sentence. To the contrary, the evidence shows that the district court was aware of its discretion but chose not to exercise it. See United States v. Askew, 108 F. App’x 341, 343 (6th Cir. 2004) (unpublished) (“In the absence of -7- No. 08-5988 United States v. Noel ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.”) (internal citation omitted); see also Young, 310 F. App’x at 795 (“Absent a specific request for a downward departure or variance due to a lost opportunity to run sentences concurrently, it is hard to see how the district court was somehow confused about its authority to do so, since that was not the issue it was asked to address.”). The district court’s failure to make an express ruling based on § 5G1.3 or § 5K2.23 or to mention the court’s discretion to depart downward on this basis “does not imply a lack of understanding of that discretion.” United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996). Accordingly, we hold that the district court’s decision not to depart downward is not reviewable. III. We review sentences for reasonableness under an abuse-of-discretion standard. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). “An abuse of discretion occurs when the district court relies on clearly erroneous findings of fact, . . . improperly applies the law, . . . or . . . employs an erroneous legal standard.” Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 748 (6th Cir. 2005) (citations and internal quotation marks omitted). When evaluating the reasonableness of a sentence, “we consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007) (citations -8- No. 08-5988 United States v. Noel and internal quotation marks omitted). Our reasonableness inquiry is therefore comprised of both substantive and procedural components. Id. “A sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (citations and internal quotation marks omitted). “A sentence is substantively unreasonable if the district court selects [the] sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (citation and internal quotation marks omitted). While the procedural and substantive components of the court’s analysis “appear to overlap[,]” Jones, 489 F.3d at 252 n.3, the substantive inquiry turns on “whether the length of the sentence is reasonable in light of the § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). In addition, we apply a rebuttable presumption of reasonableness to sentences that fall within a properly calculated Guidelines range. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). Where the district court imposes a sentence below the Guidelines range, “simple logic compels the conclusion that . . . defendant’s task of persuading [this court] that the more lenient sentence . . . is unreasonably long is even more demanding.” United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). Cf. United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (applying a -9- No. 08-5988 United States v. Noel presumption of reasonableness to “statutory maximum sentences where that maximum falls below the appropriate guidelines range”), cert. denied, 547 U.S. 1199 (2006). A. Noel challenges both the procedural and substantive reasonableness of his sentence. Regarding procedural reasonableness, the record shows that the district court: (1) properly calculated and considered the applicable Guidelines range, which was from 324 to 405 months; (2) applied the relevant factors listed in § 3553(a); and (3) considered Noel’s arguments for a lenient sentence. The district court then sentenced Noel to the statutory maximum of 120 months, which the district court indicated was “17 years lower than the guideline minimum [and] an appropriate sentence in this case.” The district court did not err in rejecting Noel’s legal objection to a cross-reference to § 2A1.1(a) for first-degree murder. “This circuit clearly allows district courts to consider acquitted conduct at sentencing. . . . under the theory that a determination of guilt requires proof beyond a reasonable doubt while sentencing considerations only require proof by a preponderance of the evidence.” United States v. Milton, 27 F.3d 203, 208-09 (6th Cir. 1994). In fact, “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court . . . may receive and consider for the purpose of imposing an - 10 - No. 08-5988 United States v. Noel appropriate sentence.” 18 U.S.C. § 3661. Here, the specific facts surrounding Friedman’s death support the district court’s decision to consider a cross-reference to § 2A1.1 for first-degree murder.5 Next, Noel contends that the district court committed reversible procedural error by failing to consider a lower sentence based on the application of either § 5G1.3 or § 5K2.23 of the Sentencing Guidelines. However, as noted above, Noel did not argue for a downward departure under § 5G1.3 or § 5K2.23. Thus, not surprisingly, the district court did not address this argument. That omission does not warrant a ruling by this court that Noel’s sentence was procedurally unreasonable or a determination that remand is appropriate. “When a district court adequately explains why it imposed a particular sentence . . . we do not further require that it exhaustively explain the obverse – why an alternative sentence was not selected – in every instance.” United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006); see also United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e will not conclude that a district judge shirked her obligation to consider the § 3553(a) factors simply because she did not discuss each one individually or did not expressly 5 The Tennessee state court judge stated at sentencing: I listened to the proof in the case same as the jury did and to be honest the facts of this case, if there was ever a case that was laid out for premeditated First Degree Murder, I don’t know that I’ve ever seen a better one. Mr. Noel planned this, Mr. Noel rented a car, Mr. Noel armed himself, Mr. Noel dressed as, per his statement, so that he would blend in. Mr. Noel laid in wait for Mr. Friedman. Mr. Noel shot him once in the chest and then put the gun up to his head and fired two more shots. And, after the killing Mr. Noel disposed of the gun, disposed of the clothes and went about his business. Then gave a very, very, detailed confession to the police, detailing not only what he did but why he did it and what his intentions were. So, I, again, I respect the jury system, I respect what a jury did but I don’t, I honestly don’t understand their verdict in this case. - 11 - No. 08-5988 United States v. Noel parse or address every argument relating to those factors that the defendant advanced.”). “A sentencing judge has no more duty than we appellate judges do to discuss every argument made by a litigant; arguments clearly without merit can, and for the sake of judicial economy should, be passed over in silence.” United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005). Furthermore, to the extent that Noel argued that he should receive credit for time served from his original arrest date, the district court adequately set forth its reasons for rejecting this “Special Request.” As discussed previously, it is the Attorney General, through the Bureau of Prisons, who is authorized to grant a prisoner credit for time spent in pre-sentence detention. 18 U.S.C. § 3585; Wilson, 503 U.S. at 333-35 (1992); United States v. Westmoreland, 974 F.2d 736, 737 (6th Cir. 1992). “[Section] 3585(b) does not authorize a district court to compute the credit at sentencing.” Wilson, 503 U.S. at 334. Accordingly, we hold that Noel’s sentence is procedurally reasonable. B. “Assuming that the district court’s sentencing decision is procedurally sound, [we] should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. Noel fails to articulate why his ten-year sentence was substantively unreasonable. However, a review of the record shows that the district court properly weighed the § 3553(a) factors, selected a punishment it believed fit Noel’s crimes, and explained the reasons for its sentence. - 12 - No. 08-5988 United States v. Noel After calculating the applicable offense level under the Guidelines, and hearing from witnesses and Noel himself, the district court conducted its § 3553(a)6 inquiry: I then have to go to the 3553 factors. And on those, first looking at whether or not the defendant has demonstrated a propensity for violence in the future, the factors that the court looks to on that prong point to an affirmative response. The information that the government produced relating to the activities in the penal institution point to that fact. *** The court has to look at the nature and the circumstances of the offense. And I stand repeatedly reminded that this is a 922(g)[] charge[,] it’s a charge that the defendant was a felon in [possession] of ammunition. But this ammunition was retrieved as a part of the crime scene wherein there was a violent homicide. So that, the circumstances of the offense are again very dire, very serious and they point in favor of the government and against the defendant. The court has to look at the history and the characteristics of the defendant. The defendant in this case has only two prior countable offenses which places him in a Criminal History Category II, which is really on the low end of the criminal scale when we look at the highest criminal history category is a VI. But the court has to look at the nature and history of those offenses. And there have been violent offenses, there have been offenses involving weapons. Those things point to a decided dangerousness with respect to Mr. Noel. And while Mr. Noel has exhibited incredible clarity of thought and of processing today, on June 21 of 2002, again about the statement Mr. Noel demonstrated clarity of action, but that clarity of action was a course of events that led to an event that changed the lives of a lot of people, including Mr. Noel, unalterably based on those actions. 6 Section 3553(a) mandates that a district court imposing a sentence consider the defendant’s Guidelines range; the nature of the offense; the characteristics of the defendant; the need to deter criminal conduct, protect the public, and provide the defendant with treatment; and the need to avoid sentencing disparities with defendants who have been found guilty of the same conduct and who have similar criminal histories. 18 U.S.C. § 3553(a). - 13 - No. 08-5988 United States v. Noel *** So I can only assume that because of the methodical nature of the activities that led up to this act on June 21 that Mr. Noel was an individual who believed that he didn’t have to abide by traditional norms of the community. And he set out and sat [sic] about to take some things into his own hands and he used a weapon and ammunition to facilitate that. He was a convicted felon at the time that he made those choices. And so again that factor weighs against him and in favor of the government. *** So in terms of the ammunition that is at issue here, as I said before, is the ammunition that was actually recovered from the body of the victim. And so that speaks to the seriousness of this offense. The court has to impose a sentence that promotes respect for the law. Mr. Noel, there is no getting around the fact that your actions demonstrate an utter lack of respect for the law. Your statement exemplified real frustration, but there can [] never be justification for allowing your frustration to drive unlawful acts. There are always consequences. There have to be. We live in an ordered society. *** There needs to be deterrence. There needs to be a strong statement to the public that [this] is not the way to go, and that calls for a serious, a serious sentence. In your case, Mr. Noel, because of the history of violence, the history of threats, the lack of respect for the rule of law, the lack of respect for the justice system, I find that a serious sentence is warranted. Regarding Noel’s request for a downward departure based on a mental impairment, the district court explained: You have insisted that you need treatment. The reports, and I’ve sent you, I suppose, some two or three times to different places for evaluations when you told me there were multiple voices, when you told there were things in your eye lids, when you told me all manner of things, when you told me you couldn’t sleep because there were - 14 - No. 08-5988 United States v. Noel people in five different voices talking to you all the time. We have evaluated all of that and it has all come back negative. So I don’t believe, given that you – that you have told me those things, I think, Mr. Noel, that argues against any kind of lower sentence and argues for a stronger sentence because if, in fact, there is something going on that with voices in your head that could cause you to, as you say, snap like you did before, then that makes you potentially dangerous. So, and it suggests to me that you need to be in an environment where you can, in fact, get treatment and monitoring for those conditions. Thus, “[i]t is clear that the district court considered all the evidence and was mindful of its obligation to impose a sentence that ‘fit the crime.’” United States v. Vowell, 516 F.3d 503, 514 (6th Cir. 2008) (citation omitted). Because Noel’s sentence is below the Guidelines range, it is entitled to a rebuttable presumption of reasonableness, and, on abuse-of-discretion review, this court gives due deference to the district court’s conclusion that the sentence was warranted by the § 3553(a) factors. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (citing Gall, 552 U.S. at 51). Considering the totality of the circumstances, id., including the Guidelines, the § 3553(a) factors, the nature of the offense, and Noel’s background, we hold that the ten-year sentence is substantively reasonable. IV. For these reasons, we affirm the judgment of the district court. - 15 - 

380 U.S. 194 (1965) DEPARTMENT OF MENTAL HYGIENE OF CALIFORNIA v. KIRCHNER, ADMINISTRATRIX. No. 111. Supreme Court of United States. Argued January 19, 1965. Decided March 8, 1965. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. Elizabeth Palmer, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General of California, Harold B. Haas, Assistant Attorney General, and John Carl Porter and Asher Rubin, Deputy Attorneys General. Alan A. Dougherty argued the cause for respondent. With him on the brief was John Walton Dinkelspiel. Briefs of amici curiae, urging reversal, were filed by William G. Clark, Attorney General of Illinois, Richard E. Friedman, First Assistant Attorney General, Richard A. Michael, Assistant Attorney General, and Jerome F. Goldberg and John E. Coons, Special Assistant Attorneys General, for the State of Illinois; by William B. Saxbe, Attorney General of Ohio, and Joanne Wharton, Assistant *195 Attorney General, for the State of Ohio; by Robert Y. Thornton, Attorney General of Oregon, and A. Duane Pinkerton and Neil C. Hoyez, Assistant Attorneys General, for the State of Oregon; and by John J. O'Connell, Attorney General of Washington, and Stephen C. Way, Assistant Attorney General, for the State of Washington. Briefs of amici curiae, urging affirmance, were filed by Robert W. Kenny for the National Federation of the Blind and the California League of Senior Citizens and by A. Kenneth Pye, John R. Schmertz, Jr., and Bernard D. Fischman for the National Association for Retarded Children, Inc., and the American Orthopsychiatric Association. MR. JUSTICE HARLAN delivered the opinion of the Court. Mrs. Auguste Schaeche was adjudged incompetent in 1953 and committed to a California state mental institution operated by petitioner. California Welfare and Institutions Code § 6650 provides in pertinent part: "The husband, wife, father, mother, or children of a mentally ill person or inebriate, and the administrators of their estates, and the estate of such mentally ill person or inebriate, shall be liable for his care, support, and maintenance in a state institution of which he is an inmate. The liability of such persons and estates shall be a joint and several liability . . . ." Ellinor Vance, the daughter of Mrs. Schaeche, died in 1960 and respondent was appointed administratrix of her estate. Petitioner filed a claim for $7,554.22 with respondent, that being the cost of support furnished to the incompetent from 1956 to 1960, which was rejected by respondent. Petitioner then filed suit for that amount and obtained judgment on the pleadings. The District *196 Court of Appeal affirmed, 29 Cal. Rptr. 312, but the Supreme Court of California reversed, finding that § 6650 "violates the basic constitutional guaranty of equal protection of the law . . . ." 60 Cal. 2d 716, 717, 388 P. 2d 720. We granted certiorari to consider the important questions involved, 379 U. S. 811. After plenary briefing and argument, however, we are unable to say with requisite assurance that this Court has jurisdiction in the premises. The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution,[1] or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with *197 any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case.[2] Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co., 309 U. S. 551. The first mention of any specific constitutional provision in this case appears to have been made in respondent's reply brief in the State District Court of Appeal, and it related solely to the State Constitution.[3] That court disposed of the constitutional claim in one paragraph,[4] citing Department of Mental Hygiene v. McGilvery, 50 Cal. 2d 742, 754-761, 329 P. 2d 689, 695-699. In McGilvery rehearing was granted by the California Supreme Court to consider the claim that "an absolute liability on a mother to pay for the care, support and maintenance of her mentally ill daughter in a state institution, *198 is a deprivation of property without equal protection of law and without just compensation in violation of the state and federal Constitutions." 50 Cal. 2d, at 747, 329 P. 2d, at 691. On the pages cited by the District Court of Appeal, the California Supreme Court in McGilvery had concluded: "Article I, section 11 of the California Constitution requires that all laws of a general nature have a uniform operation. This has been held generally to require a reasonable classification of persons upon whom the law is to operate. The classification must be one that is founded upon some natural or intrinsic or constitutional distinction. [Citations.] Likewise, those within the class, that is those persons similarly situated with respect to that law, must be subjected to equal burdens. [Citation.] The clause of the Fourteenth Amendment to the federal Constitution which prohibits a state from denying to `any person within its jurisdiction the equal protection of the laws' has been similarly construed."[5] An examination of the opinion of the California Supreme Court in the case before us does not indicate whether that court relied on the State Constitution alone, the Federal Constitution alone, or both; and we would have jurisdiction to review only if the federal ground had been the sole basis for the decision, or the State Constitution was interpreted under what the state court deemed the compulsion of the Federal Constitution.[6] The court first discussed Department of Mental Hygiene v. Hawley, 59 Cal. 2d 247, 379 P. 2d 22, a case decided under the Fourteenth Amendment, and then stated, *199 "This holding is dispositive of the issue before us." 60 Cal. 2d, at 720, 388 P. 2d, at 722. The court went on, however, to discuss other cases. After noting that in Department of Mental Hygiene v. Shane, 142 Cal. App. 2d 881, 299 P. 2d 747 (relied on in McGilvery), there was no "mention of either the United States or the California Constitutions," the court distinguished both Shane and McGilvery as cases in which the constitutional claims were not presented. 60 Cal. 2d. at 721, 388 P. 2d, at 723. It then discussed Hoeper v. Tax Comm'n, 284 U. S. 206, which dealt with reasonable classification, and compared a similar treatment in Estate of Tetsubumi Yano, 188 Cal. 645, 656-657 [14]. 206 P. 995. In Yano the California Supreme Court found an alien land law in violation of the Equal Protection Clause of the Fourteenth Amendment, the Privileges and Immunities Clause, and of the California Constitution. The court's discussion of the Equal Protection Clause, however, was confined to pp. 654-656 of the opinion, and in headnote [14] on page 656 (cited by the court in the present case) the court dealt principally with the state constitutional ground. After examining the statutory framework of the support statutes, the court in this case finally concluded with the following statement: "A statute obviously violates the equal protection clause if it selects one particular class of persons for a species of taxation and no rational basis supports such classification. (See Blumenthal v. Board of Medical Examiners (1962) 57 Cal. 2d 228, 237 [13] [18 Cal. Rptr. 501, 368 P. 2d 101]; Bilyeu v. State Employees' Retirement System (1962) 58 Cal. 2d 618, 623 [2] [25 Cal. Rptr. 562, 375 P. 2d 442].) Such a concept for the state's taking of a free man's *200 property manifestly denies him equal protection of the law." 60 Cal. 2d, at 722-723, 388 P. 2d, at 724. Blumenthal v. Board of Medical Examiners, 57 Cal. 2d 228, 368 P. 2d 101, involved an attack on a licensing statute under both the Fourteenth Amendment and §§ 11 and 21 of Article I of the California Constitution. See 57 Cal. 2d, at 232, 368 P. 2d, at 103. The court did not specifically rely on one constitutional provision, but merely held the statute unconstitutional. Bilyeu v. State Employees' Retirement System, 58 Cal. 2d 618, 375 P. 2d 442, involved an attack on a classification of state employees subject to retirement benefits. At headnote [2] of the opinion, cited by the court in Kirchner, appears the following language: "There is no constitutional requirement of uniform treatment, but only that there be a reasonable basis for each classification."[7] The use of such language suggests that the court may have been adverting to the California constitutional provision that "[a]ll laws of a general nature shall have a uniform operation." Calif. Const., Art. I, § 11. On the basis of the foregoing, it is clear that we cannot say with the requisite certainty that the California judgment rested solely on the Fourteenth Amendment, or, amounting to the same thing, that in striking the statute down under the State Constitution the court below acted under what it conceived to be the compulsion of the Federal Constitution (cf. Jankovich v. Indiana Toll Road Comm'n, 379 U. S. 487, 492); one or the other determination would be necessary to our exercising jurisdiction. While the ambiguity of the opinion might normally lead us to dismiss the writ of certiorari as improvidently granted, we think the preferable course is to leave the way *201 open for obtaining clarification from the California Supreme Court (Minnesota v. National Tea Co., supra), in view of the importance of and widespread interest in the case.[8] Unfortunately, because of California law, we cannot hold the case on our calendar until the parties submit a clarifying certificate from the California Supreme Court, see Dixon v. Duffy, 344 U. S. 143, 145, but we can obviate undue delay by vacating the judgment of the California Supreme Court, directing that our mandate issue forthwith, and giving leave to the parties to file a new petition for certiorari incorporating by reference the record and briefs now on file in this Court, supplemented by such additional papers as may be necessary or appropriate, if on further proceedings the California Supreme Court holds that its judgment does not rest on an adequate independent nonfederal ground. The judgment of the Supreme Court of California is vacated and the cause remanded to that court for such further proceedings as may be appropriate under state law. The judgment and mandate of this Court shall issue forthwith. Vacated and remanded. MR. JUSTICE DOUGLAS, believing it clear that the Supreme Court of California did not rest solely on the Fourteenth Amendment of the Constitution of the United States, would dismiss the writ. NOTES [1] California Constitution, Art. I, §§ 11, 21, provides in pertinent part: "Sec. 11. All laws of a general nature shall have a uniform operation. ..... "Sec. 21. No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature: nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens." These provisions have been interpreted by the California courts as being the equivalent of the Equal Protection Clause of the Fourteenth Amendment. See Department of Mental Hygiene v. McGilvery, 50 Cal. 2d 742, 754, 329 P. 2d 689, 695, quoted infra, p. 198; Lelande v. Lowery, 26 Cal. 2d 224, 157 P. 2d 639; San Bernardino v. Way, 18 Cal. 2d 647, 117 P. 2d 354; People v. Sullivan, 60 Cal. App. 2d 539, 141 P. 2d 230; People v. England, 140 Cal. App. 310, 35 P. 2d 565; 11 Cal. Jur. 2d § 272, and cases cited therein. See also Los Angeles v. Southern Cal. Tel. Co., 32 Cal. 2d 378, 196 P. 2d 773, appeal dismissed, 336 U. S. 929. [2] See Note, Supreme Court Treatment of State Court Cases Exhibiting Ambiguous Grounds of Decision, 62 Col. L. Rev. 822 (1962). [3] Appellant's Reply Brief, p. 2, presented the rhetorical question: "Is not the taking of money from a daughter, or her estate, for the support of a mother who has an estate of her own violative of the Constitution of the State of California?" (Emphasis added.) [4] 29 Cal. Rptr. 312, 317. [5] 50 Cal. 2d 742, 754, 329 P. 2d 689, 695. [6] State Tax Comm'n v. Van Cott, 306 U. S. 511; Fox Film Corp. v. Muller, 296 U. S. 207. [7] 58 Cal. 2d, at 623, 375 P. 2d, at 445. [8] Forty-two States, Puerto Rico, and the District of Columbia have similar statutes on their books, and eight States have filed amicus briefs in this Court, either supporting the petition for certiorari or the petitioner's position on the merits.

921 F.2d 335 UNITED STATES of America, Appellant,v.James Dean ANDERSON, Defendant, Appellee. No. 90-1620. United States Court of Appeals,First Circuit. Heard Nov. 8, 1990.Decided Dec. 13, 1990. Douglas Cannon, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for U.S. John Burwell Garvey, with whom Sulloway Hollis & Soden, Concord, N.H., was on brief, for defendant, appellee. Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE*, Senior District Judge. SELYA, Circuit Judge. 1 The government seeks to persuade us that the district court erred in refusing to sentence defendant-appellee James Dean Anderson under the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e) (1988). We are convinced and therefore vacate appellee's sentence. BACKGROUND 2 Anderson and a codefendant, Cox, were the subjects of a five count indictment preferred by a federal grand jury in New Hampshire. Anderson was charged with two "firearms possession" counts (i.e., being a convicted felon in possession of firearms which had travelled in interstate commerce, in violation of 18 U.S.C. Sec. 922(g)) and a single "firearms transportation" count (i.e., transporting stolen firearms in interstate commerce, in violation of 18 U.S.C. Sec. 922(i)). The government filed a notice that it would seek to have him sentenced under the ACCA's enhanced penalty provisions.1 3 About ten weeks later, Anderson and the government entered into a plea agreement (the Agreement) pursuant to Fed.R.Crim.P. 11(e)(1)(A) & (B). The Agreement provided, in fairly standard phraseology, that Anderson would plead guilty to the paired "firearms possession" counts and that, at the time of sentencing, the "firearms transportation" count would be dismissed. The government reaffirmed that it would urge the court to rule that the ACCA applied and, therefore, to impose a mandatory sentence of at least fifteen years on each firearms possession count. Anderson explicitly reserved the right to challenge the applicability of the ACCA both before the district court and on appeal. 4 In the Agreement, Anderson stipulated to three prior convictions: (1) a February 1981 North Carolina conviction for breaking and entering/larceny; (2) an April 1983 Massachusetts conviction for burglary; and (3) an October 1984 Massachusetts conviction for intent to rob while armed. At the time of sentencing, he maintained that, notwithstanding these prior convictions, he was not subject to the ACCA for two reasons. First, he claimed that the North Carolina conviction did not qualify as a "violent felony" within the meaning of 18 U.S.C. Sec. 924(e)(1). Second, he asserted that, because of the irregular sequence of the convictions and the offenses underlying them, the statute did not apply. Persuaded by this second asseveration, the district court sentenced Anderson to a 21-month prison term on each count (concurrent) in accordance with the sentencing guidelines, eschewing the 15-year mandatory minimum ordained by the ACCA. The government, displeased, prosecuted the instant appeal. APPELLATE JURISDICTION 5 Before turning to the substantive issues, we must first address the defendant's contention that we lack appellate jurisdiction. It is firmly settled that the government has no right of appeal whatsoever in criminal cases except to the extent that a statute expressly confers such a right. See United States v. Patterson, 882 F.2d 595, 597 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 737, 107 L.Ed.2d 755 (1989); United States v. Levasseur, 846 F.2d 786, 787 (1st Cir.), cert. denied, 488 U.S. 894, 109 S.Ct. 232, 102 L.Ed.2d 222 (1988); United States v. Kane, 646 F.2d 4, 5 (1st Cir.1981). Anderson argues that there is no statutory hook on which the government's appeal can be hung or, alternatively, that the government waived any right of appeal as part of the Agreement. We consider these points seriatim. 6 1. Statutory Basis. It is clear that "[t]he ACCA does not explicitly provide for an appeal by the government from a district court's refusal to impose an enhanced penalty." Patterson, 882 F.2d at 597. Thus, if the prosecution possesses a cognizable basis for an appeal of Anderson's sentence, that basis must lie within the confines of 18 U.S.C. Sec. 3742(b)(1), which allows the government to appeal from a sentence imposed "in violation of law." 7 Defendant argues that section 3742(b)(1) is inapposite since, even if the ACCA linguistically applies, a district judge nevertheless enjoys discretion over whether or not to utilize the sentence-enhancement mechanism. We disagree. The plain language of the ACCA does not admit of any such discretion.2 If the requisite preconditions are present, the district court must impose a sentence at or above the congressionally mandated minimum. Thus, if Anderson, an adult, was shown to have three previous convictions for violent felonies or drug offenses, committed on different occasions, the 21-month sentence imposed was unarguably contrary to the hortatory imperative of 18 U.S.C. Sec. 924(e)(1), ergo, "in violation of law" and appealable by the government under 18 U.S.C. Sec. 3742(b)(1). 8 2. Waiver. Defendant also argues that the government waived its right to appeal by not explicitly referencing that right in the Agreement. Defendant says that, whereas he insisted on including language in the Agreement reserving his right to appeal the sentence imposed, the government made no such reservation and, therefore, waived any recourse to a higher court. 9 It seems to us that this argument stands logic on its ear. It is black letter law that plea agreements, "though part and parcel of criminal jurisprudence, are subject to contract-law standards in certain respects." United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); see also United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) ("plea agreements are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him"). Consistent with contract-law principles, we look to the language of the document, focusing squarely within its four corners. See Hogan, 862 F.2d at 388. In this case, such scrutiny reveals an utter absence of any language conditioning defendant's plea on the government's waiver of appellate rights. To be sure, Anderson--citing the contract-law canon that any ambiguity will be construed against the drafter--contends that such a condition should be inferred from the absence of language anent the government's right to appeal. But this is a bootstrap argument, conjuring up an ambiguity where none legitimately exists. 10 On its face, the terms of the Agreement are clear enough: the government promises to drop the "firearms transportation" charge in exchange for defendant's admission of guilt on the two "firearms possession" charges. If defendant had wanted to condition his plea on the conferral of an incremental benefit--the prosecution's agreement to forgo its right to appeal any sentence imposed--he could have insisted that such a term be made part of the Agreement. He did not do so. Under the circumstances, we find no reason to grant him after the fact the benefit of a condition he failed to negotiate before the fact. To read the Agreement, ex silentio, to include a waiver by the government of its right of appeal would give defendant more than is reasonably due. See, e.g., United States v. Fentress, 792 F.2d 461, 464 (4th Cir.1986) ("While the government must be held to the promises it made [in a plea agreement], it will not be bound to those it did not make."). 11 We believe it would open Pandora's jar to adopt so free-form an interpretation of plea bargains as Anderson urges. The Court has cautioned in connection with plea agreements that it is error for an appellate court "to imply as a matter of law a term which the parties themselves did not agree upon." United States v. Benchimol, 471 U.S. 453, 456, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (per curiam). Under traditional contract principles, we should take an opposite tack, treating a plea agreement as a fully integrated contract and enforcing it according to its tenor, unfestooned with covenants the parties did not see fit to mention. Hence, we decline to read the Agreement to imply unspoken promises--especially in light of paragraph 14 thereof, which specifically relates that "[n]o agreements, representations, or understandings have been made between the parties in this case other than those which are explicitly set forth in this plea agreement, and none will be entered into unless executed in writing, signed by all the parties...." (emphasis supplied).3 12 The appellee has a final fall-back position on waiver. Citing United States v. Khoury, 755 F.2d 1071, 1073 (1st Cir.1985), he argues that the district court, not this court, should determine the scope of the Agreement. However, "any dispute over the terms of the [plea] agreement is to be resolved by objective standards." United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980). In this case, we think the matter is clear enough to present a question of law which may be entertained without resort to ancillary factfinding.4 PROCEDURAL DEFAULT 13 The appellee hypothesizes that, since the government failed to file its brief within 35 days after the date on which the record was filed as required under 1st Cir.Loc.R. 35, the appeal should have been dismissed for lack of prosecution. See 1st Cir.Loc.R. 45 ("When a cause is in default as to the filing of the brief for appellant ... the clerk is to enter an order dismissing the appeal for want of diligent prosecution."). The appellant's brief was concededly late--but the delay apparently stemmed from an administrative mix-up (neither the government nor the appellee received the scheduling notice issued by the clerk). Accordingly, the government was allowed to file its brief out of time. Such largesse with respect to nonjurisdictional deadlines is consistent both with our Local Rules, see, e.g., 1st Cir.Loc.R. 45 ("unusual circumstances" can justify setting aside a default for late filing) and with the Federal Rules of Appellate Procedure, see, e.g., Fed.R.App.P. 2 (requirements may be suspended in a particular case for "good cause"). There was no error in allowing the appeal to go forward in the normal course. Cf. In re Grand Jury (Douglas Gassiraro), 918 F.2d 1013, 1016 n. 5 (1st Cir.1990) (per curiam) (discussing court's discretion under 1st Cir.Loc.R. 9); United States v. Diaz-Villafane, 874 F.2d 43, 45-46 (1st Cir.) (discussing district court's discretion to suspend application of local rules), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). THE SENTENCE 14 Finding that we have jurisdiction over the government's appeal and that any tardiness in briefing was not fatal, we pass to meatier fare. Anderson pled guilty to two counts charging violations of 18 U.S.C. Sec. 922(g). If an adult who violates that statute has accumulated three predicate convictions for violent felonies committed on different occasions, and the appropriate notice has been filed, the mandatory minimum sentence attaches. See 18 U.S.C. Sec. 924(e)(1). Here, appellee admittedly amassed a trio of prior felony convictions. The lower court did not deem these convictions, despite their number, as fulfilling the statutory condition. The court erred. 15 1. Chronicity. Defendant's principal argument below was that each predicate offense, including conviction therefor, had to precede the next offense in the series if both were to be considered predicate crimes for purposes of sentence enhancement under the ACCA. Because Anderson's brush with the law in North Carolina (offense December 1980; conviction February 1981) and his first Massachusetts felony conviction (offense October 1980; conviction April 1983) did not fit this pattern, he took the position that there were not three predicate crimes in the ACCA sense. 16 We need not linger long on this point. First, we view the plain language of the statute--which contains no such requirement--as dispositive. Accord United States v. Schoolcraft, 879 F.2d 64, 74 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 546, 107 L.Ed.2d 543 (1990); see also United States v. Towne, 870 F.2d 880, 889-90 (2d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989); United States v. Wicks, 833 F.2d 192, 193 (9th Cir.1987), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988); cf. United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989). Second, the authority relied on by the district court in engrafting a chronicity requirement onto the statute, United States v. Balascsak, 873 F.2d 673 (3d Cir.1989) (en banc), cert. denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 138 (1990), has been effectively disowned by its natural parents. In Schoolcraft, 879 F.2d 64, the Third Circuit revisited the issue and held that Balascsak was wrong in interpreting the ACCA to require that a defendant had to be convicted of one crime before committing the crime underlying a subsequent conviction. The Schoolcraft court wrote: "We decline to read this [chronicity] requirement into the statute and hold, for the purposes of enhanced sentencing under the ACCA, that a defendant need not be convicted of one predicate offense before committing the next predicate offense." Id. at 74. 17 Last but not least, our own precedent plainly adumbrates the result which must obtain. In United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988), we read the language of section 924(e)(1) to require no more than that the three prior violent felony convictions involve separate criminal episodes. Id. at 497 (finding that two robberies occurring on consecutive days at different places, and for which defendant received concurrent sentences, were distinct episodes, thus counting as two of the three requisite predicate offenses for purposes of the ACCA). Accord Schoolcraft, 879 F.2d at 74; Towne, 870 F.2d at 891. Here, where there is no dispute that the appellee's three offenses occurred on three distinct occasions, the "separate episodes" test adopted in Gillies was satisfied. No more was needed. 18 We hold that for the purpose of enhanced sentencing under the ACCA, a defendant's conviction for one predicate offense need not precede the commission of the next predicate offense. The district court's contrary conclusion cannot stand. 19 2. Classification. Defendant's other basis for asserting that he was not subject to an enhanced sentence under the ACCA is even more tenuous. He contends that his North Carolina conviction for breaking and entering was not a violent felony and thus not a predicate offense for purposes of the statute.5 Under the precedent pertaining in this circuit when Anderson was sentenced, breaking and entering, at least under Massachusetts state law, qualified as a predicate offense for ACCA purposes. See United States v. Twomey, 884 F.2d 46, 53 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990); Patterson, 882 F.2d at 604. Since Anderson was sentenced, any vestige of a doubt about whether the North Carolina conviction represented a violent felony has been removed. See Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990) (regardless of nomenclature, "generic" burglaries, that is, offenses which "hav[e] the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime," comprise Sec. 924(e) predicates). Anderson's North Carolina conviction for breaking and entering clearly qualifies as a predicate offense under the Taylor definition. And since Anderson concedes that his other two convictions were appropriately counted, the statutory preconditions for sentence enhancement were present. CONCLUSION 20 We need go no further. For the reasons stated, we find that the defendant's sentence was imposed in violation of law. We therefore vacate the sentence and remand to the district court for resentencing. We see no reason why the further proceedings should not be handled by the district judge thus far presiding. 21 Vacated and remanded. * Of the District of Rhode Island, sitting by designation 1 The ACCA provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).... 18 U.S.C. Sec. 924(e)(1). 2 Defendant's citation to United States v. Jackson, 903 F.2d 1313 (10th Cir.1990), confuses judicial discretion with prosecutorial discretion. Cf., e.g., United States v. LaGuardia, 902 F.2d 1010, 1015 (1st Cir.1990) (acknowledging that "[t]he prosecutor has traditionally exercised a certain degree of control over a defendant's ultimate sentence"). While it is true that Jackson could apparently have been charged and sentenced as a career criminal under 18 U.S.C. Sec. 924(e)(1), and was not, that was part of a "very favorable plea arrangement" between the defendant and the prosecutor. Jackson, 903 F.2d at 1321. Here, where there was no such plea arrangement, and the prosecutor seasonably apprised the defendant and the district court of his intention to invoke the enhancement provisions, the language of the statute required the district judge to impose no less than the minimum mandatory sentence if the requisite preconditions were established 3 At the possible risk of painting the lily, we also note another fundamental flaw in Anderson's "waiver" thesis. Applying the hermeneutical principle which underlies the argument, the language of the reservation, which specifically saves only the defendant's right to appeal a sentence enhancement under the ACCA, would have to be read as a waiver of defendant's right to appeal a sentence on any other grounds, say, his right to appeal, under 18 U.S.C. Sec. 3742(a)(3), a sentence greater than specified in the applicable guideline range. The inclusion of the reservation in the Agreement clearly could not have been meant to produce so absurd a result, limiting a defendant's right of appeal in such a fundamental way. To the exact contrary, regardless of the Agreement's focus, defendant obviously remained in full possession of all his statutory rights to appeal his sentence. It follows, pari causa, that the same rule must apply to the government 4 In any event, the district court has already expressed its views; at the sentencing hearing, the judge stated unequivocally that the government could appeal the sentence 5 Having shelved the ACCA on a different ground, the district court never ruled on this initiative

RAY V. STATE COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-02-137-CR ANTHONY LEON RAY APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 16 TH DISTRICT COURT OF DENTON COUNTY ------------ MEMORANDUM OPINION (footnote: 1) ------------ In his sole point, appellant contends that the trial court erred by overruling his objection to improper comments made by the prosecutor during closing argument.  Appellant contends that the prosecutor’s comments urged the jury to “repunish” appellant for a prior conviction.  We affirm. The purpose of closing argument is to facilitate the jury's proper analysis of the evidence so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence.   Campbell v. State , 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980);   Faulkner v. State , 940 S.W.2d 308, 311 (Tex. App.—Fort Worth 1997, pet. ref'd) (en banc op. on reh'g).  To be permissible, the State's jury argument must fall within one of the following four general areas:  (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement.   Felder v. State , 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied , 510 U.S. 829 (1993);   Alejandro v. State , 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).  The reviewing court, however, should examine the remark in the context in which it appears.   Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Appellant contends that the prosecutor’s jury argument was improper because it encouraged the jury to “repunish” him for his prior conviction for aggravated sexual assault of a child.  We disagree.   In this case, the State charged appellant with possession of a controlled substance.  The evidence reveals that appellant was arrested in a drug-free zone.  At the punishment hearing, the prosecution introduced pen packets and judgments into evidence to establish appellant’s criminal history.  There was no testimony regarding the contents of the pen packets at the time they were admitted.  During closing argument, however, the prosecutor explained the documents, including appellant’s prior convictions for aggravated sexual assault of a child and indecency with a child.  The prosecution then made the following argument: This is a very, very important case.  It’s not an easy one, not an easy decision for you guys to go back and make, it never is, but it is a very important one.  But make no mistake about it, you are protecting the citizens of Denton County, specifically the children– The trial court overruled appellant’s objection, but granted him a running objection.  The prosecutor then concluded with the following statement: Make no mistake about it.  When you put a number in that little blank when you go back in this afternoon, you are protecting the children in Denton County.  It’s just up to you for how long.  [Defense counsel] said [appellant] will continue to make bad decisions in the future.  That’s something to think about. Taken in the context of the entire record, the prosecutor’s statements were clearly related to the crime charged.  Appellant was charged with possession of a large quantity of narcotics near a preschool.  It is common knowledge that the possession and sale of narcotics near a school threatens the health and safety of the children.   U.S. v. Crew , 916 F.2d 980, 983 (5 th  Cir. 1990) (recognizing that any drug-related activity in the vicinity of a school endangers children).  In her argument, the prosecutor was merely requesting that the jury take the safety of these children into account when assessing appellant’s punishment.   Therefore, the prosecutor’s argument constituted a proper plea for law enforcement.  Accordingly, we overrule appellant’s sole point and affirm the trial court’s judgment.        TERRIE LIVINGSTON JUSTICE PANEL A: DAY and LIVINGSTON, JJ.; and DAVID L. RICHARDS, J. (Sitting by Assignment). DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED:  March 27, 2003 FOOTNOTES 1:See Tex. R. App. P. 47.4 .

In the United States Court of Appeals For the Seventh Circuit ____________ No. 04-4344 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD BAKER, Defendant-Appellant. ____________ Appeal from the United States District Court for the Central District of Illinois. No. 03 CR 30049—Richard Mills, Judge. ____________ ARGUED SEPTEMBER 15, 2005—DECIDED FEBRUARY 17, 2006 ____________ Before FLAUM, Chief Judge, and RIPPLE and KANNE, Circuit Judges. KANNE, Circuit Judge. Richard Baker was charged in a third superseding indictment with three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was convicted on all counts after a jury trial, and he was sentenced to 234 months’ imprisonment for each count, to be served concurrently. Baker now challenges his convictions on appeal. For the reasons set forth below, we affirm in all respects. 2 No. 04-4344 I. BACKGROUND Prior to and during Baker’s trial, Baker sought to present two affirmative defenses—an entrapment by estoppel defense and a public authority defense. He also sought to make use of the statutory defense contained in 18 U.S.C. § 925(a)(1), arguing that when he possessed the firearms, he was acting under the authority of a law enforcement official. Prior to trial, the district court granted two motions in limine filed by the government, which resulted in orders that precluded Baker from presenting any evidence relating to these three defenses. It is the granting of these two motions in limine that comprise the bulk of Baker’s appeal. Initially, we recount the testimony adduced at the pretrial suppression hearing, as Baker and the government rely on a good portion of it in support of their arguments.1 A. The Government’s Evidence During the months of June 2002 and January 2003, a number of burglaries and thefts occurred throughout several neighboring counties in central Illinois. The bur- glars had targeted schools, businesses, municipal govern- ment offices, and police stations and vehicles, and had stolen laptop computers, audio-visual equipment, tools, office supplies and equipment, and construction equipment. The burglars had also stolen at least three shotguns from the police stations and police vehicles. State and local law enforcement agencies formed a joint task force to investigate the burglaries. They initially believed that all the burglaries were committed by the same persons, and ultimately began to suspect Jeffrey 1 Baker does not contest the district court’s rulings on the underlying motions to suppress. No. 04-4344 3 and Michael McCall of Clinton, Illinois. On January 16, 2003, DeWitt County Sheriff Roger Massey and Illinois State Police Investigator Greg Lindemulder, lead investiga- tors in the case, obtained and executed a search warrant for the McCalls’ residence. During the execution of the search warrant, Baker showed up at the residence. Massey ap- proached Baker, and after telling Baker he could not enter the house, asked if he would be willing to speak with Massey about the burglaries and stolen property. Baker agreed, and he voluntarily met with Massey and Lindemulder the next day at the DeWitt County sheriff’s department. According to Massey, at this meeting, Baker said Jeffrey McCall had brought several items, including laptop comput- ers, to his house, which McCall was offering for sale. Baker said he no longer had any of the laptops, as he resold one of the laptops and returned the rest to McCall. At the end of the meeting, Massey told Baker there was one more item they needed to discuss. Baker hung his head low, paused for 30 to 45 seconds, and stated, “You must mean about the shotguns.” Baker then recounted how McCall had also brought him three shotguns and how Baker had sold them to a man in Chicago for $100 each. After some encourage- ment from Massey, Baker agreed to attempt to retrieve the shotguns from the man in Chicago. The next day, January 18, 2003, Baker delivered to Massey and Lindemulder a shotgun, which had previously been stolen from the Mansfield police department, along with an air nailer and a calculator. According to Massey, Baker said he repurchased the shotgun from the man in Chicago for $600. Pursuant to Baker’s request, Massey reimbursed him. Baker then indicated he would attempt to retrieve the other two shotguns. Baker also agreed to maintain telephone contact with Massey, and keep Massey informed as to his whereabouts. 4 No. 04-4344 On January 19, 2003, Baker was found asleep in his car in Dyer, Indiana, by a local police officer. A consensual search of the car revealed several laptop computers in the trunk. At Baker’s insistence, the officer called Massey and described what he found. Baker was released; however, Massey obtained a search warrant for Baker’s car and residence the next day. Massey and Lindemulder suspected Baker had lied to them earlier when he had stated he no longer had any of the laptops. Massey was also suspicious because Baker had not maintained telephone contact with Massey as agreed. On January 20, 2003, Baker returned to the DeWitt County sheriff’s department. Massey searched Baker’s car pursuant to the search warrant. Massey found a stolen police shotgun (the second shotgun retrieved) and three laptop computers in the trunk. According to Massey, after Baker was confronted with the items and Massey’s suspicions, Baker admitted he lied at their previous meetings. Massey testified that Baker also admitted that he did not sell any of the shotguns to a man in Chicago; rather, Baker had retained possession of the shotguns and other property the entire time. In fact, Baker stated, the third shotgun was located at a junkyard in Farmer City. Massey sent a deputy with Baker to the junkyard, where Baker retrieved the third shotgun, along with two rifles. Baker was then arrested. B. Baker’s Versions of Events Upon taking the witness stand, Baker told a different story. Baker testified he possessed the shotguns because he was acting under Massey’s authority. Baker claimed that Massey showed him a deputy United States Marshal’s badge at their first meeting and stated there would be “no case” against Baker if he helped with the retrieval of the shotguns from the man in Chicago. No. 04-4344 5 However, during cross-examination, Baker revealed that he had testified earlier under oath in a state court case that he had acquired the shotguns from Jeffrey McCall, and further that Baker had, indeed, been in possession of the shotguns the entire time. Baker’s story changed once again after the start of the trial. On the stand again, Baker admitted he never sold the shotguns to a man in Chicago, despite his contrary state- ments to Massey. He also testified he was never in posses- sion of the shotguns, however, because he never actually touched them, as they were wrapped in a bag, and he only touched the bag. He also testified he did not tell Massey about the true location of the shotguns because he wanted to be able to obtain money from the sheriff for each one. II. ANALYSIS At the outset, we note Judge Mills was confronted with a situation where a defendant changed his story several times. When the judge decided to preclude Baker from presenting certain defenses, he was aware of some of Baker’s previous inconsistent stories. As a result, he found the testimony of three police officers “to be more credible than” Baker’s. Furthermore, the judge noted Baker testified in a previous state court hearing that he had been in possession of the guns the entire time, something that was inconsistent with Baker’s line of proposed defenses. In the end, it appears the judge decided Baker could not change his story at that point and present defenses that were contrary to this prior testimony. Additionally, there was a significant amount of contrary evidence before the court which made Baker’s most recent story all the more incredible. We are mindful and appreciative of the role of the district court judge in deciding issues of credibility. See United States v. Zambrana, 428 F.3d 670, 676 (7th Cir. 2005) 6 No. 04-4344 (noting “[a district court] has the institutional capacity to make findings of historical fact as well as all-important credibility judgments.”). However, we have explained that a court may preclude an affirmative defense by motion in limine only where the court accepts as true the evidence proffered by the defendant and finds that the evidence proffered by the defendant, even if believed, would be insufficient as a matter of law to support the affirmative defense. United States v. Tokash, 282 F.3d 962, 967 (7th Cir. 2002). In Baker’s case, the court simply did not believe his new story that allegedly supported his defenses. Although our own review of the record reveals this was understand- able, in light of Tokash, the court should not have relied on a credibility determination to preclude the presentation of Baker’s defenses. But, as will be seen, the mistaken exclu- sion based on credibility does not carry the day for Baker. Even if we assume Baker’s initial proffered facts at the suppression hearing were true, we find they were insuffi- cient as a matter of law to support the defenses, and, in the end, there was no error in their exclusion. A. Entrapment by Estoppel and Public Authority Defenses Both the government and Baker go to great lengths to explain the supposed difference between the entrapment by estoppel defense and the public authority defense. The parties rely heavily on cases from other circuits to argue there is indeed a difference between the two. A review of our own decisions does not reveal much in the way of useful analysis, although this is not surprising. See United States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994) (explaining how the entrapment by estoppel defense is rarely available); United States v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999) (explaining that published decisions pertaining to the defense of public authority are sparse, possibly because No. 04-4344 7 reliance on it is rare). In fact, what little discussion there is from our own circuit may indicate the defenses are not separate at all, but that the descriptions are merely synony- mous. Cf. United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996) (“ ‘[P]ublic authority[ ]’ [is] sometimes called ‘entrap- ment by estoppel’[.]”). The elements that comprise the two defenses are quite similar. The entrapment by estoppel defense applies “when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official.” Id. As for the public authority defense, other circuits have held the defense applies when a government official authorized the defendant to perform an act that would otherwise be a crime, and the official had the actual authority to grant such authorization. See, e.g., United States v. Fulcher, 250 F.3d 244, 254-55 (4th Cir. 2001); Pitt, 193 F.3d at 757-58; United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994); United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984). Most of these cases from other circuits generally limit the public authority defense to those situations in which the government official in fact had the authority to empower the defendant to perform the acts in question. This is despite the language of Federal Rule of Criminal Procedure 12.3(a)(1), which states, “If a defendant intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency . . . at the time of the alleged offense, the defendant [must notify the government and the court].”2 (emphasis added). 2 By pointing out the apparent inconsistency between the other circuits’ decisions and the language of Rule 12.3(a)(1), we do not intend to imply the other circuits were somehow incorrect. (continued...) 8 No. 04-4344 We have not explicitly stated whether the public author- ity defense is limited to those situations in which the government official had actual authority, as opposed to simply apparent authority, nor do we need to make such a statement today to resolve Baker’s case. As the parties argue it, the only difference between the entrapment by estoppel defense and the public authority defense is that the former requires either actual or apparent au- thority, while the latter requires only actual authority. We need only address Baker’s argument regarding the entrapment by estoppel defense, as that will cover both situations, i.e., a government official with actual author- ity and one with apparent authority. This does not dep- rive Baker of anything as far as his arguments go, and saves needlessly delving into an ancillary question that is best saved for another day. B. Actual Authority The first issue is whether Sheriff Massey had actual authority to assure Baker that Baker’s possession of the guns was legal. See Neville, 82 F.3d at 761; cf. Duggan, 743 F.2d at 83-84 (public authority defense requires government official to have actual authority to authorize violation of federal law). If true, and all the other requirements of the defense were met, then Baker should have been entitled to present the defense. Unfortunately for him, Baker points to no evidence whatsoever that Massey indeed had such actual authority. As an initial matter, we note local law enforcement officials, like Sheriff Massey, generally do not have the 2 (...continued) Rather, we highlight the difference merely to emphasize the issue is more complicated than it first appears. No. 04-4344 9 authority to exempt individuals from violations of federal firearm laws. United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995); see United States v. Spires, 79 F.3d 464, 466-67 (5th Cir. 1996); United States v. Hurst, 951 F.2d 1490, 1499 (6th Cir. 1991) (noting state officials could not exempt violations of federal gambling laws). Under normal circum- stances, our inquiry would end here, but Massey is not only a local law enforcement official, he is also a Special Deputy United States Marshal. According to Baker, he refused to assist Sheriff Massey in retrieving the guns until the “feds” were contacted. Appar- ently, Baker was concerned he would be committing a federal crime if he were to possess the guns, as he had previously been convicted of a felony. See 18 U.S.C. § 922(g). At this point, according to Baker, Massey pulled out a U.S. Marshal’s badge, showed it to Baker, and stated he (Massey) was acting on behalf of the U.S. Marshals so there would be “no case” against Baker if he helped with the retrieval of the guns. Of course, Baker testified it was only then that he began assisting Massey. Even if we were to believe this story (which the district court clearly did not), Baker proffered no evidence Massey had the actual author- ity to excuse Baker’s possession of the guns. What Baker did proffer was the affidavit of Bruce Harmening, a supervisory deputy U.S. Marshal. In the affidavit, Harmening stated Massey had been deputized as a Special Deputy U.S. Marshal in furtherance of the Great Lakes Regional Fugitive Task Force (GLRFTF). The mission of the GLRFTF is to pursue and apprehend fed- eral and state fugitives wanted for felonies. Massey’s authority “ ‘can only be exercised in furtherance of the mission for which he . . . has been specially deputized,’ and ‘as directed by an appropriate official of the United States Marshals Service.’ ” Furthermore, the GLRFTF supports Project Safe Neighborhoods, which authorized Massey to 10 No. 04-4344 seize and make arrests for illegal guns when “identified in connection with fugitive investigations.” Baker’s testimony and Harmening’s affidavit did not establish that Massey had the actual authority to assure Baker his possession of the guns would be legal. Massey’s authority under the GLRFTF extended only to its mis- sion, i.e., the pursuit and apprehension of fugitives. First, there were no fugitives involved in the case and Massey’s investigation did not relate to the apprehension of any fugitives. Rather, the investigation was focused on burglary and the theft of police firearms and other items. Second, Baker introduced no evidence that Massey had been “directed by an appropriate official of the United States Marshals Service” to approve Baker’s possession of the guns. As a result, the district court did not err in excluding the introduction of the entrapment by estoppel and public authority defenses, at least to the extent they relied on Massey’s actual authority. C. Apparent Authority Assuming for a moment Massey did display his U.S. Marshal’s badge to Baker, the second issue is whether Baker was entitled to present his entrapment by estoppel defense based upon Massey’s apparent authority. Massey had initiated his contact with Baker as a county sheriff, not as a deputy U.S. Marshal. Massey asked Baker to contact him in his capacity as sheriff. Massey asked Baker to meet with him at the local police department, which Baker did. Baker then met with Massey and a state law enforcement officer at the local police department. Baker was, in fact, known to local law enforcement, and he knew Massey was the county sheriff. It is also important to emphasize Baker had the weapons before the first meeting with Massey. First, we have held that the entrapment by estoppel defense does not apply when a defendant charged with a No. 04-4344 11 federal crime claims to have been misled by a state official. United States v. Rector, 111 F.3d 503, 506 (7th Cir. 1997) (“[T]his court would be going against the weight of authority if it ruled that statements by state law enforcement officials may constitute a defense of entrapment by estoppel to federal charges.”), overruled on other grounds by United States v. Wilson, 169 F.3d 418, 428 n.9 (7th Cir. 1999); see United States v. Funches, 135 F.3d 1405, 1407-08 (11th Cir. 1998); United States v. Caron, 64 F.3d 713, 714-17 (1st Cir. 1995). Utilizing the same reasoning from these cases, we reach a similar conclusion in that Baker could not use the entrapment by estoppel defense, as any alleged misrepre- sentations were made by a law enforcement official in a context in which it was clear the official was using authority bestowed upon him by the state, as opposed to the federal government. Second, as we have stated, the entrapment by estoppel defense requires that the government “actively mislead the defendant; and that the defendant’s reliance be actual and reasonable in light of the identity of the agent, the point of law represented, and the substance of the mis- representation.” Neville, 82 F.3d at 761 (quotations omit- ted). The defense is a narrow one, see Howell, 37 F.3d at 1204, and it requires the defendant to show his reliance on the alleged misrepresentations was reasonable and in good faith. Rector, 111 F.3d at 506-07. Baker must show the federal government clothed Massey with apparent authority to speak on its behalf. Overall, we do not find the defense was available under the facts of this case, nor do we find Baker’s alleged reliance on Massey’s apparent authority to have been reasonable. Baker’s purported reliance could not be based on the alleged misrepresentation of Massey. Baker’s testimony on direct examination at the motion to suppress hearing on this issue was sketchy at best. Because of the importance 12 No. 04-4344 of Baker’s version of events, we recount his complete direct examination: Q. You’ve heard the testimony of the officers today, right? A. Yes, sir. Q. Now, if I could call your attention to January 20th, do you recall—January 20th of 2003, did you have any conversations with the sheriff by telephone that day? A. Yes, I did. Q. And how many telephone conversations did you have? A. Three phone calls. Q. And what did you say in those calls? A. I told him—initially there was discussion about getting more money. Q. Okay. A. And then later on he said to come back—on back to Farmer City. And I came back to Farmer City and called him on his cell phone and told him I was en route from Farmer City to Clinton to the police station. Q. Did you tell him whether you had anything that he wanted in your car? A. Yes, I did. Q. You heard the two officers’ description of the inter- views that you had with them on January 18th and January 20th and they testified that they never told you that there—they never promised you that you wouldn’t be charged if you talked to them. Is that correct? No. 04-4344 13 A. That’s not true. Q. What did they promise you? A. Originally it started off with the State Police— I can’t hardly say his name—Lindemulder. THE COURT: I didn’t hear that. It started off with the State Police what? A. The State Police guy that was up here, he initially said, “We need you to start working for us.” That was on the original—first time I met with him. And we started from there on. Okay. But it wasn’t him. It was Roger Massey that told me if I’d help them—he told me that, “These guns, we need to get these things off the street.” He said, “We need to—however you can get them, we need them off there.” And I said I’d help him as long as there ain’t no case. He said, “There’s no case.” Q. What did you interpret that to mean? A. He showed me a badge, a U.S. Marshal’s badge. It was about this big around, has a top come up like that. I said, “Bring the Feds in.” I’m the one that—“You know, I want some Feds because I’ve been in federal prison before. You know, these guns is federal.” Q. Okay. Any did he tell you— A. I told him before— Q. Let me ask a question. Did he tell you that his federal authority was not in law enforcement investigative connected [sic]? A. No. He pulled—told me—I said I wouldn’t do anything unless I have the Feds to help because it’s too big. 14 No. 04-4344 [GOVERNMENT]: Say that again. I’m sorry, I object. I didn’t hear that. THE COURT: I didn’t hear that either. Q. Say it again. A. I said I wasn’t going to help unless the Feds was involved in it. Q. Then what did he say in response? A. He said he had no problems at all working with the Feds because – and he reached in his pocket and pulled out this round thing that has kind of a square top on it and says U.S. Marshal on it. Q. What did you understand that badge to mean? A. It said U.S. Marshal. My understanding is that that’s a Fed, you know. Q. And he never—did he ever tell you that that U.S. Marshal authority was limited or restricted in any way? A. There was no restrictions I ever heard of when on a marshal. I know such thing as they declare martial law. That’s the guy that runs everything, you know. You don’t stop a marshal. Q. Before you said anything about guns did either of the two law enforcement officers tell you that they had evidence against you for possession of stolen property? A. Not that I recall. THE COURT: Lean into that microphone there when you talk. Q. Sorry, Your Honor. Sheriff Massey testified that the first contact between you and him regarding this No. 04-4344 15 case was on January 16th in front of the McCalls’ residence. Do you recall that meeting? A. Yes, I do. Q. Do you recall who made the first invitation to a conversation between you and him? A. It was him. Yes. [End of direct examination] As a result of the assertions made in his testimony regarding Sheriff Massey, Baker claims that he became shielded from prosecution for violating any federal firearm laws. This entrapment by estoppel defense is based on Massey’s misrepresentation of his authority. But what was the misrepresentation? A fair reading of Baker’s characterization of his conversation with Massey cannot reasonably be understood to misrepresent to Baker that Massey had the requisite federal authority to authorize Baker to possess the firearms. Assuming, as we must, all of Baker’s facts are true, they fall far short of supporting the defenses. A careful review of the testimony reveals Massey did not say he was a U.S. Marshal. The testimony was Massey displayed a badge and said he “had no problems at all working with the Feds . . . .” The police officers previously testified at the suppres- sion hearing that Baker admitted to them that he had the guns the entire time, and that he lied when he said he sold them to a man in Chicago. There was also evidence before the court that Baker had previously testified in a state court hearing at which he admitted to having the guns the entire time. Baker does not deny any of this at the suppression hearing. In fact, he does not deny that he was in possession of the guns the entire time. This unrebutted evidence completely undermines Baker’s ability to use the defense, as his reliance could not have been reasonable or 16 No. 04-4344 in good faith if he was in possession of the guns, as opposed to in the possession of the supposed buyer in Chicago. In other words, even if there was indeed a misrepresentation by Massey, such representation would have been made based solely on what Baker had represented to Massey, which turned out to be a total lie. The end result is that the only unrebutted evidence before the court was Baker’s unreasonable reliance on Massey’s alleged representation that he authorized Baker to possess the firearms. D. Jury Instruction for the Public Authority Defense Baker next argues the district court erred in refusing to instruct the jury on the defense of public authority. We review de novo a district court’s decision not to instruct the jury on a theory of defense. United States v. Skoczen, 405 F.3d 537, 545 (7th Cir. 2005) (citing United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003)). A defendant is entitled to a theory of defense instruction if, inter alia, the theory is supported by the evidence. Howell, 37 F.3d at 1203. As discussed above, Baker was properly precluded from presenting this defense at trial. As a result, the district court was not required to give a jury instruction that was based entirely on facts that were not actually introduced at trial and thus not supported by the evidence. See United States v. Baker, 40 F.3d 154, 162 (7th Cir. 1994) (concluding district court did not err by refusing to legiti- mize a defendant’s theory in the form of a defense instruc- tion when there was nothing in the evidence to support the theory). E. The Statutory Defense of 18 U.S.C. § 925(a) Baker’s final argument is that the district court erred in refusing to instruct the jury on the statutory defense contained in 18 U.S.C. § 925(a)(1). Baker’s argument No. 04-4344 17 borders on frivolous. The relevant statute provides: “The provisions of this chapter . . . shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm . . . imported for, sold or shipped to, or issued for the use of, the United States . . . or any State or any department, agency, or political subdivision thereof.” The gist of Baker’s argument is that “[s]ince recovering the stolen police-owned shotguns was undoubt- edly an official police purpose, Mr. Baker’s trial testimony that this was his exclusive purpose would, if believed, put him squarely within the exception of § 925(a).” There is no legal analysis whatsoever to support this statement. Furthermore, contrary to Baker’s argument, there is nothing in the statute that addresses the motives of the possessor. Baker’s assertion that “recovering the stolen police-owned shotguns was undoubtedly an official police purpose” is utterly irrelevant under the statute. Rather, it is the government’s motivation that counts. Besides, the statute’s effect has been to allow “members of the armed services and law enforcement agencies [i.e., not civilians] who might otherwise be prohibited from carrying firearms to do so in connection with their public responsibilities.” Gillespie v. City of Indianapolis, 185 F.3d 693, 698 (7th Cir. 1999). Therefore, the district court did not err in refusing to instruct the jury on this defense. III. CONCLUSION We conclude the district court’s exclusion of the presenta- tion of the entrapment by estoppel and public author- ity defenses, as well as the statutory defense contained in 18 U.S.C. § 925(a), was not error. We further con- clude the district court properly refused to give the jury instruction for the public authority defense. The jury’s verdicts will not be disturbed, and the convictions are AFFIRMED. 18 No. 04-4344 A true Copy: Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—2-17-06 

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00414-CR John Bryan FINCH, Appellant v. The STATE of Texas, Appellee From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 16-07-0222-CRA Honorable Stella Saxon, Judge Presiding Opinion by: Beth Watkins, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice Delivered and Filed: January 15, 2020 AFFIRMED John Bryan Finch was convicted by a jury of murder. On appeal, Finch contends the trial court erred in admitting a surveillance video of a fist fight and hearsay statements. Finch also contends the trial court erred in reading testimony to the jury in response to a note sent by the jury during deliberations. Finally, Finch contends the cumulative effect of all errors deprived him of a fair trial. We affirm the trial court’s judgment.  04-18-00414-CR BACKGROUND On June 18, 2014, the body of Lindsey Wadkins was found on the side of a dirt road. She had been shot in the head, neck, and back. Earlier that evening, Wadkins was at a trailer owned by Naomi Delgado and Brandon Penny. In addition to Wadkins, Delgado, and Penny, also present were Finch, Matthew Garcia a/k/a Turk, 1 Tommy Caldillo, and Samantha Jones. Turk and Penny, who were not charged with any crime relating to Wadkins’s murder, testified at trial. Viewing the testimony of Turk and Penny in the light most favorable to the jury’s verdict, Wadkins, Finch, Delgado, and Jones were arguing about a fist fight in which Finch was involved earlier that evening with Adam Ochoa. Wadkins was present during the fist fight, is also seen on the video, and was instrumental in having a third person intervene to end the fight. During the subsequent argument at the trailer, Wadkins threatened to call the police on Finch or to “take him down.” While Wadkins was either in the restroom or outside, Finch, Delgado, Jones, and Caldillo discussed beating her up and leaving her on the side of the road. At some point, Caldillo passed a handgun to Finch, and Finch, Delgado, Jones, and Caldillo talked about “tak[ing] [Wadkins] out” because she “might squeal or something.” Wadkins, Finch, Delgado, and Jones then drove away together. When Finch, Delgado, and Jones returned without Wadkins, Finch told Turk he shot her. Sometime later, Delgado also told Penny that Finch shot Wadkins. Finally, Finch told Billy Martinez, a fellow inmate also referred to as BJ, that he shot Wadkins and provided details of the offense that were not reported to the public. After hearing all of the evidence, the jury found Finch guilty of murder. Finch appeals. 1 Because future quotes from the record refer to Garcia as Turk, we also will refer to him as Turk. -2-  04-18-00414-CR SURVEILLANCE VIDEO In his first issue, Finch asserts the trial court erred in admitting a surveillance video showing a part of the fist fight between Finch and Ochoa which was the subject of the subsequent argument between Wadkins, Finch, Delgado, and Jones. In his brief, Finch contends the trial court erred in admitting the video because it should have been excluded under Rules 404(b) and 403 of the Texas Rules of Evidence. The State responds Finch did not object to the admissibility of the video under Rule 403; therefore, that complaint is not preserved for our review. The State also responds the video was properly admitted as evidence of motive and relationship under Rule 404(b). Rule 404(b) provides that evidence of other crimes, wrongs, or acts “is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” TEX. R. EVID. 404(b). A trial court’s ruling on the admissibility of evidence under Rule 404(b) is reviewed under an abuse of discretion standard. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Id. Here, the evidence at trial established Wadkins threatened Finch during an argument over the fight depicted in the surveillance video. Immediately following the argument over the fight, Finch, Delgado, Jones, and Caldillo discussed a plan to “take [Wadkins] out,” and Caldillo handed Finch a gun. Accordingly, the fight depicted in the surveillance video was evidence relevant to Finch’s motive to murder Wadkins. Because the video was evidence of Finch’s motive, the trial court did not abuse its discretion in overruling Finch’s Rule 404(b) objection. After a trial court rules on whether evidence is admissible under Rule 404(b), the trial court “has ruled on the full extent of the opponent’s Rule 404(b) objection. The opponent must then make a further objection based on Rule 403, in order for the trial judge to weigh the probative and -3-  04-18-00414-CR prejudicial value of the evidence.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (internal citation omitted); see also Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.— Houston [14th Dist.] 2006, pet. ref’d); TEX. R. APP. P. 33.1(a). When the State sought to have the video admitted at trial, Finch only objected to its admissibility under Rule 404(b). 2 He therefore did not preserve a complaint that the trial court should have excluded the video under Rule 403 for our review. Finch’s first issue is overruled. HEARSAY STATEMENTS During Penny’s testimony, Finch objected to the admission of statements Delgado made to Penny following Wadkins’s murder. On appeal, Finch contends the trial court erred in admitting the statements because they were inadmissible hearsay and their admission violated his Confrontation Clause rights. The State responds the trial court properly admitted the statements as excited utterances. The State further responds the statements were not testimonial and, therefore, not subject to Finch’s Confrontation Clause rights. A. Standard of Review We review a trial court’s ruling on the admissibility of evidence under the excited utterance exception to the hearsay rule for an abuse of discretion. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). We review whether a statement is testimonial or non-testimonial de novo. Id. at 742. “[T]he distinctive standards of review for hearsay objections and Confrontation Clause 2 After the trial court watched the video outside the presence of the jury, the following exchange occurred: THE COURT: Okay. And you’re seeking to offer this for what purpose? [PROSECUTOR]: Proof to show relationship between the parties prior to the homicide and motive, Your Honor. THE COURT: And you’re seeking to keep it out why? [DEFENSE COUNSEL]: Your Honor, because I don’t believe it shows motive, and I don’t believe it has anything to do with the relationship between John Finch and Lindsey, at least this video doesn’t. -4-  04-18-00414-CR objections to the admission of excited utterances arise because the hearsay exception depends largely upon the subjective state of mind of the declarant at the time of the statement, whereas the issue of whether an out-of-court statement (excited or otherwise) is ‘testimonial’ under Crawford depends upon the perceptions of an objectively reasonable declarant.” Id. at 743 B. Applicable Law An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” TEX. R. EVID. 803(2). “The basis for the excited utterance exception is a psychological one, namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will come out.’” Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (internal quotation marks omitted) (emphasis in original). “In determining whether a hearsay statement is admissible as an excited utterance, the court may consider the time elapsed and whether the statement was in response to a question.” Id. “However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception.” Id. at 596. “The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement.” Id. (internal quotation marks omitted). Under the Confrontation Clause, a “testimonial” statement is inadmissible at trial unless the declarant either takes the stand and is subject to cross-examination, or is unavailable and the defendant had a prior opportunity for cross-examination. Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). Testimonial statements are those “‘made under circumstances which -5-  04-18-00414-CR would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id. (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)). The Texas Court of Criminal Appeals has rejected any per se or categorical approach to excited utterance and testimonial hearsay inquiries. Wall, 184 S.W.3d at 742. As the court explained: [T]he excited utterance and testimonial hearsay inquiries are separate, but related. While both inquiries look to the surrounding circumstances to make determinations about the declarant’s mindset at the time of the statement, their focal points are different. The excited utterance inquiry focuses on whether the declarant was under the stress of a startling event. The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated (that is, excited by the stress of a startling event), would have had the capacity to appreciate the legal ramifications of her statement. These parallel inquiries require an ad hoc, case-by-case approach. An inquiring court first should determine whether a particular hearsay statement qualifies as an excited utterance. If not, the inquiry ends. If, however, the statement so qualifies, the court then must look to the attendant circumstances and assess the likelihood that a reasonable person would have either retained or regained the capacity to make a testimonial statement at the time of the utterance. Id. at 742 (quoting United States v. Brito, 427 F.3d 53, 61–62 (1st Cir. 2005)). C. Analysis At trial, Penny testified Delgado was “freaking out” upon returning without Wadkins, and Delgado said Wadkins was dead. No objection was made to Penny’s testimony about this statement by Delgado. Penny then testified he made everyone leave and tried to talk to Delgado about what happened, but she was still “freaked out.” After everyone left, Delgado burned her shoes and buried them because Jones called to tell her shoe marks would be at the crime scene. Penny and Delgado then each took a shower and went to bed. After they were in bed, Penny testified he again tried to talk to Delgado about what happened. He described Delgado as “real skittish” and “incoherent, like, you know, you talk to somebody, they can’t answer you right away, real out there, kind of.” Penny testified this was not Delgado’s normal behavior, and she was still -6-  04-18-00414-CR upset. When the prosecutor asked Penny what Delgado told him, defense counsel objected on the basis of hearsay, asserting the prosecutor had not established the excited utterance exception. After the trial court overruled the objection, Penny testified Finch shot Wadkins three times and, after Jones expressed concern about whether she was dead, Finch shot her four more times. On cross- examination, Penny testified Delgado was “scared and stirred up” while they were talking in bed. In arguing Delgado’s statements to Finch were not excited utterances, Finch points to Penny’s testimony that an hour had elapsed from the time Delgado returned home and when she told Penny that Finch shot Wadkins. Finch also points to the testimony that Delgado had burned and buried her shoes and taken a shower in that time period. The Texas Court of Criminal Appeals held in Zuliani, however, that the period of time from the startling event to the declarant’s statements is not dispositive. 97 S.W.3d at 596. The court also held the declarant’s statements were admissible as excited utterances in that case despite the fact that twenty hours had elapsed between the event and the statements. Id.; see also Ricketts v. State, 89 S.W.3d 312, 320 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding declarant’s statement to fiancé upon arriving home that defendant shot the victim was admissible as an excited utterance even though shooting occurred two hours earlier where fiancé testified declarant “got . . . excited” when she asked him what happened). As previously noted, the question is whether the trial court was within the zone of reasonable disagreement in determining Delgado was still dominated by the emotions of the event. Zuliani, 97 S.W.3d at 596. Based on Penny’s testimony, we hold the trial court was within the zone of reasonable disagreement and did not abuse its discretion in ruling Delgado’s statement was admissible as an excited utterance. Focusing on whether a reasonable declarant under the circumstances facing Delgado would believe her statements would be used at a subsequent murder trial, we agree with the State that Delgado did not comprehend the legal significance of her words. An objective witness telling her -7-  04-18-00414-CR then-husband what happened for the first time would not reasonably believe the statement would be available for use at a later trial. Burch, 401 S.W.3d at 636. Accordingly, we hold the trial court did not violate Finch’s Confrontation Clause rights in admitting the statements. Finch’s second issue is overruled. RESPONSE TO JURY QUESTIONS In his third issue, Finch contends the trial court erred in allowing testimony to be read to the jury during deliberations. Finch argues the trial court did not make a sufficient inquiry into the jury’s dispute to “identify the specific witness or portion which [the jury] found to be in conflict.” Finch also argues the portions of testimony the trial court allowed to be read bolstered the State’s case by focusing the jury “only on the of the [sic] portions of testimony which were damaging to John Finch, and completely ignored the portions elicited through cross-examination which discredited the subject testimony excerpts.” The State responds the trial court identified the specific portions of testimony over which the jury had a dispute, and Finch did not preserve his complaint regarding the failure to read responsive cross-examination for our review. A. Jury Questions and Responses In his brief, Finch only complains about the trial court’s ruling on his objection regarding the response to Juror Note No. 5. However, that question and the trial court’s response must be read in the context of the jury’s prior questions requesting testimony, and the trial court’s responses to those questions. Juror Note No. 1 stated: Turk[’]s – Testimony BJ’s Testimony Date of Finch’s arrest Date of [sic] Police received gun as evidence The trial court sent the following response to the jury without objection: -8-  04-18-00414-CR Members of the jury, the jury may have testimony about a disputed point in a witness’ testimony read back to them. Please state exactly what your disagreement as to the testimony is, and the court reporter will search her notes and read that particular testimony back to you. Juror Note No. 2 stated: Turk[’]s testimony of Finch being threatened by Lindsy [sic] to call cops on Him. The trial judge noted the jury “didn’t say it was a point in dispute,” but the trial judge was “going to assume it is since I told [them].” Testimony was then read to the jury. Finch does not challenge the trial court’s overruling of his objection to Juror Note No. 2 in his brief. Juror Note No. 3 requested: Can we have Turk[’]s and BJ’s complete testimony to compare them to each other. The trial court sent the following response without objection: Members of the jury, you may have read back the testimony about a particular point in dispute and no other. Please certify that you disagree as to certain specific testimony, and I will order the court reporter to search her notes to find the testimony to be read back to you. Juror Note No. 4 requested permission for the jurors to take a break. In response, the trial court gave the jury a fifteen-minute break. Juror Note No. 5 requested: 3 We want to hear Turk[’]s testimony on what was said when John, Naomi and Sam returned home after the incident without Lydsey [sic]. Want to hear BJ testimony about Finch shooting Lyndsy [sic]. Want to [hear] BJ’s testimony that Finch told him about disposing of the body after she was shot. 3 The record does not show how much time elapsed between the jury returning from its break and its sending of Juror Note No. 5. -9-  04-18-00414-CR Defense counsel objected that the jury was essentially asking for all the testimony to be read back and that the jury did not say they had a conflict. The trial judge proposed to respond with the following: Ladies and Gentlemen[,] Are you in conflict as to this testimony? Defense counsel did not object to the trial judge’s proposed response. Instead, defense counsel stated he did not “mind asking them whether they have a conflict in the testimony, but they need to tell us what their conflict is.” Defense counsel further argued, “There needs to be some specificity as to what they’re asking us for.” The trial judge responded: The Court is of the opinion that this will identify whether or not there is a conflict. The Court has already instructed that I cannot have testimony read back unless there is a conflict, and I think that the jury has just failed to note that for the Court. But this will make it abundantly clear, depending on what their answer is. The jury answered the question “yes.” The trial judge then instructed the court reporter to search her notes. After a brief recess, defense counsel argued the jury’s request regarding Turk’s testimony was vague and “didn’t say what the dispute was about.” Defense counsel further argued the jury should just be told to deliberate, asserting: They’re going to come back time and time again with more questions because we keep giving them those answers when all they have to say is we have a dispute about so and so’s testimony and they get it read back. The trial judge responded: The Court finds that the testimony the court reporter has read back is responsive to the question — to the request by the jury for testimony of Turk on what was said when John, Naomi, and Sam returned home after the incident. And the jurors have certified they’re in conflict about that testimony. The court reporter then located the testimony responsive to the request for “BJ testimony about Finch shooting Lindsey.” Defense counsel again objected asserting the jury was “not asking anything specific” and the proper instruction was for them to continue to deliberate. Defense - 10 -  04-18-00414-CR counsel made the “same objection” to the proposed testimony to be read regarding “BJ’s testimony that Finch told him about disposing of the body after she was shot.” The trial court overruled the objections, and the following testimony was read to the jury: THE COURT: Be seated, please. Ladies and gentlemen of the jury, the court reporter has located the testimony about which you indicated you were in dispute, and she will now read to you the testimony that she found. The first testimony is testimony of Matthew Garcia [Turk]. (Requested portion read back by the court reporter.) Q. “Okay. And so you stayed there, and at some point I guess someone comes back. A. Uh-huh. Q. Who comes back? A. Sam, Naomi, and Finch. Q. Okay. Lindsey never came back? A. No. Q. So do they come in the house, or what happens? A. Yes. They came inside. Q. Okay. So all three came inside? A. Yes. Q. And when they come back inside, what are they saying? A. Naomi had -- was cussing and saying, like, “I hit that girl one time in the mouth and she fell.” Q. How are they acting at that point? What’s their mood? A. Shocked. Like shocked. Q. Okay. Who’s shocked? A. Actually all three of them. Q. Okay. So how do you describe that? How did you know they were shocked? How are they acting? A. You could tell by their eyes, the way Naomi was moving, the way Sam was moving. Q. Okay. What was Sam doing? A. Saying, “I got to go home. I got to go home.” Q. Okay. How was she acting? A. Like nervous. Q. And how about Naomi? How was she acting? A. She didn’t seem nervous. She was just hyper and jittery. Q. Okay. And how about the defendant, John Finch? How was he acting? A. Like normal. Q. Okay. And what did he say when they came back in? A. That he shot her three times and then four more times. - 11 -  04-18-00414-CR Q. He told y’all that? A. Yes, ma’am.” THE COURT: The reporter will now read to you the requested testimony of Billy Martinez [BJ]. (Requested portion read back by the court reporter.) A. “And I remember trying to think, you know, if I had seen it. Because I was [sic] watch the news a lot. But now — And I didn’t remember. And then he just — He said he took — He even said he [sic] her name. He said he took her down the road with two girls, and he said they got out — he told her to get out of the car and took her to the back. And then he said he pushed her down and he pulled out a gun. He said he shot her four times and then she looked up at him and said, “Oh, my God,” and he said he shot her — he said he got back in the car. As they started to drive away, he told them to stop, that he didn’t want the family to have an open casket, and so he got out, when he shot her in the head. He didn’t say how many times, but he said he shot her. And, you know, I can go into detail because I remember, but —” THE COURT: And there was additional testimony on that issue. (Requested portion read back by the court reporter.) THE REPORTER: This is the question. Q. “So he said he got out, took her to the back, and what did he do next after he took her to the back? A. He said he pushed her down and he pulled his gun out. She seen the barrel of the gun. She said, “Oh, my God,” and he said he shot her. Q. Did he say what he did next? A. He said he got back in the car and they started to drive off. And he said, “I don’t want her family to have a fucking closed casket. Stop.” And he got out and he said he went and shot her in the head.” THE COURT: And then the last issue that you had for the reporter to search has been found in Mr. Martinez’s testimony. (Requested portion read back by the court reporter.) Q. “Did he say where did they go after that? A. Oh, yeah. He did said [sic] say that they wanted to go get a carpet or something to roll her up in and — you know, so they could get rid of the body. Q. And did they do that and try to come back? - 12 -  04-18-00414-CR A. They tried to. Q. And what happened? A. But he said when they came back, the cops were there and stuff, lights, so they just kept on going.” THE COURT: That completes the readback of the testimony. Please continue your deliberations in the jury room. We will be in recess. B. Applicable Law and Standard of Review Article 36.28 of the Texas Code of Criminal Procedure provides: In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other . . . . TEX. CODE CRIM. PRO. ANN. art. 36.28. “When the jury asks the trial court to read back certain disputed testimony, the trial court judge must first determine if the jury’s inquiry is proper under Article 36.28.” Thomas v. State, 505 S.W.3d 916, 923 (Tex. Crim. App. 2016). “If it is proper, the trial court must then interpret the communication and decide what sections of the testimony will best answer the inquiry.” Id. “The trial court has discretion to decide what sections of the testimony will best answer the query, and limit the testimony accordingly.” Id. (internal quotation marks omitted). “However, if a trial court reads too much or too little testimony to the jury, such a response may serve to bolster the State’s case unnecessarily.” Id. “An appellate court should not disturb a trial court judge’s decision under Article 36.28 unless a clear abuse of discretion and harm are shown.” Id. “Complaints about error in the reading of trial testimony must be preserved by objection at the time of the reading.” Id. at 924. “To preserve error, a party must object and state the grounds for the objection with enough specificity to make the trial judge aware of the complaint, unless the specific grounds were apparent from the context.” Id. “The objection must be sufficiently clear to give the judge and opposing counsel an opportunity to address and, if necessary, correct the - 13 -  04-18-00414-CR purported error.” Id. “If a trial objection does not comport with arguments on appeal, error has not been preserved.” Id. C. Analysis First, the record does not reflect Finch made any objection to the trial court’s failure to include portions of the testimony elicited through cross-examination. Accordingly, this complaint is not preserved for our review. Id. With regard to whether the jury disagreed regarding the testimony requested in Juror Note No. 5, the trial court sent numerous instructions to the jury in response to prior notes informing the jurors they needed to disagree as to the testimony of the witness before any testimony could be read back. In response to those instructions and in response to an additional question regarding whether they were in dispute over the testimony requested in Juror Note No. 5, the jury responded they were in dispute. Article 36.28 requires only that the jury disagree about a witness’s testimony. It does not require the jury to state the nature of their disagreement in a particular manner. Howell v. State, 175 S.W.3d 786, 793 (Tex. Crim. App. 2005) (“The statute requires that the jury disagree; it does not require that the jury use any particular words to express that disagreement.”). Accordingly, we cannot hold the trial court abused its discretion in determining the jurors disagreed as to the testimony they were requesting. See Thomas v. State, 505 S.W.3d at 923. With regard to the trial court’s interpretation of the jury’s notes and its selection of the testimony that best answered the jury’s inquiry, we again hold the trial court did not abuse its discretion. See id. From our review of the record, the trial court selected the sections of testimony that were directly responsive to the discrete facts about which the jury was in dispute. Finch’s third issue is overruled. - 14 -  04-18-00414-CR CUMULATIVE ERROR In his fourth issue, Finch alludes to other error occurring at trial; however, he fails to provide argument and authority regarding those errors. 4 TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). Therefore, he has waived any complaints about those errors. See Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011) (holding that point of error inadequately briefed presented nothing for review). And, we have overruled the issues Finch adequately briefed. Accordingly, Finch’s fourth issue is overruled. CONCLUSION The trial court’s judgment is affirmed. Beth Watkins, Justice DO NOT PUBLISH 4 Finch does provide citations to authorities to support the following assertion, “In closing the State also improperly argued that acquitting John Finch would allow him to ‘walk[] down the stairs with you and become[] a member of this community again.” We hold, however, that this one sentence is not an adequate argument to challenge the State’s closing argument. - 15 - 

144 B.R. 903 (1992) In re David Emory CRONK, Denise Erickson Cronk p/k/a Denise Rene Erickson, Debtors. FIRST CARD SERVICES, INC., Plaintiff, v. David Emory CRONK, Defendant. Bankruptcy No. 91-07207-8P7, Adv. No. 91-577. United States Bankruptcy Court, M.D. Florida, Tampa Division. August 7, 1992. *904 Scott W. Spradley, for plaintiff. Thomas Joel Chawk, for defendant. FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION ALEXANDER L. PASKAY, Chief Judge. THIS IS a Chapter 7 liquidation case and the matter under consideration is the dischargeability vel non of a debt admittedly due and owing by David Emory Cronk (Debtor) to First Card Services, Inc., (Plaintiff). The Plaintiff's claim of nondischargeability is brought in a one-count Complaint which is based on § 523(a)(2)(A) of the Bankruptcy Code. It is the claim of the Plaintiff that the Debtor is indebted to the Plaintiff in the amount of $2,976.61; that this debt was incurred by the Debtor by use of a credit card issued by the Plaintiff; that the charges involved several cash advances and purchases when the Debtor knew that he could not meet these obligations; and the Debtor had no intentions to meet his obligations. The facts relevant to the claim of nondischargeability as established at the final evidentiary hearing are as follows: When the Debtor received a credit card with a pre-approved credit limit of $4,000.00, he was employed by Mid-State Scale Company as a scale technician and earned $21,000.00 per year. His wife, Denise R. Cronk, also a Debtor but not involved in this adversary proceeding, held two jobs: a full-time job with Master Merchant earning $14,000.00 per year and a part-time job with Gordon Jewelers earning $7,900.00 per year. Thus in early 1991, the Debtor and his wife had a combined annual gross income in excess of $42,000.00. In early 1991, Mrs. Cronk learned that she was pregnant and that she tested HIV positive. Mrs. Cronk's physician then advised her to work only part-time. Because she had extensive financial obligations incurred primarily before she married the Debtor and because she was both pregnant and tested HIV positive, and would therefore be required to quit her full-time job, she soon realized she needed financial guidance. On February 11, 1991, Mrs. Cronk consulted the Consumer Credit Service in order to obtain financial guidance. Due to the amount of her debts, Mrs. Cronk was told that the Service had no solution for her problems. About the same time, she was retested to verify her HIV status; however the test results were "indeterminative as to positive." On March 15, 1991, on the advice of her physician, Mrs. Cronk quit her full-time job and then worked only part-time. Having realized that she could not meet the fixed monthly payments on her debts, Mrs. Cronk contacted an attorney initially to be advised about bankruptcy relief only for herself on April 16, 1991. Mrs. Cronk ultimately learned that she was not HIV positive. The charges involved in this controversy were incurred between February 2, 1991, and April 6, 1991 by the husband Debtor through the use of the credit card issued by the Plaintiff. According to the first statement issued by the Plaintiff dated March 9, 1991, the charges totalled $477.96, requiring a minimum payment of $18.00, which payment was made. The next statement included charges and cash advances between February 21 and March 12, 1991 totalling $1,632.00, requiring $74.00 minimum payment which was also made. The bulk of these charges were used to pay Mr. Cronk's debts and the second mortgage on the marital home. The last statement dated May 7, 1991 reveals additional charges and cash advances, the last of which was *905 obtained on April 6, 1991, totalling $1,500.00. On May 30, 1991, Mr. Cronk lost his job and it became evident that he too was unable to meet his obligations, and he decided to seek relief by filing a Chapter 7 Petition for Relief for him and his wife. This joint petition was filed on June 3, 1991. These are the facts on which the Plaintiff's claim of nondischargeability under § 523(a)(2)(A) is based. Section 523(a)(2)(A) of the Bankruptcy Code provides in pertinent part as follows: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by (A) false pretenses, false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition; The standard of proof required to prove actual fraud under 11 U.S.C. § 523(a)(2)(A) is proof by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 872, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). To prove actual fraud under this section, the Plaintiff must prove by a preponderance of the evidence that Mr. Cronk took out the cash advances and used the charge card while knowing that he had no ability or no intention of repaying the debts he incurred. A classic case of cardholder fraud was involved in the case of In re Dorsey, 120 B.R. 592 (Bankr.M.D.Fla.1991). In Dorsey, the debtor was an unemployed widow with two children who had seven American Express cards and over 20 other credit cards, with which she accumulated charges in excess of $100,000.00. Dorsey charged over $13,000 on her American Express credit cards by taking a whirlwind trip to Europe with her children on credit and by charging souvenirs including over $700.00 in perfume, and by purchasing other similarly outrageous luxuries. Clearly, the debtor in that case had absolutely no means to repay these debts, nor did she have any intention of doing so at the time she made the purchases. In contrast to Dorsey, the Plaintiff in this case not only failed to prove actual fraud on the part of David Cronk by a preponderance of the evidence, but the Plaintiff fell woefully short of doing so. This Court finds that there was no evidence in this record to indicate that David Cronk obtained the cash advances in contemplation of filing bankruptcy. The record also includes no evidence that David Cronk knew he would not repay the charges when they were incurred. In sum, the Plaintiff has failed to prove its case under § 523(a)(2)(A) of the Bankruptcy Code, and the Plaintiff's Complaint should be dismissed. A separate Final Judgment will be entered in accordance with the foregoing. DONE AND ORDERED.

160 Ariz. 329 (1989) 773 P.2d 227 The STATE of Arizona, Appellee, v. Charles Lee GRIMES, Appellant. No. 2 CA-CR 88-0340. Court of Appeals of Arizona, Division 2, Department A. January 17, 1989. Review Denied May 31, 1989. Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gerald R. Grant, Phoenix, for appellee. Harold L. Higgins, Jr., Pima County Public Defender by Wayne E. Yehling, Tucson, for appellant. OPINION LIVERMORE, Presiding Judge. Following a jury trial, appellant was convicted of one count each of 1) driving under the influence of intoxicating liquor, 2) driving under the influence of intoxicating liquor while his license was suspended, and 3) driving under the influence of intoxicating liquor while never having reapplied for or obtained a license after suspension. Appellant admitted a prior DUI conviction. He was placed on probation for three years, subject to the condition that he be incarcerated for six months, and ordered to pay a fine of $274, a surcharge of $70 and $100 to the Victim Compensation Fund. On appeal, appellant contends that the trial court erred in refusing the following instruction: You are instructed that if you find the defendant's control of his vehicle was affected to a degree that rendered him incapable of safely driving his vehicle due to the alcohol he consumed, then the defendant is guilty of driving while under the influence. Instead, the trial court instructed the jury: [I]f you find that the defendant's control of his automobile (or other vehicle) was affected to the slightest degree by intoxicating liquor, the defendant is guilty of driving while under the influence of intoxicating liquors. Appellant acknowledges that the "slightest degree" instruction has been approved by the Arizona courts, see Noland v. Wootan, 102 Ariz. 192, 427 P.2d 143 (1967); State v. Askren, 147 Ariz. 436, 710 P.2d 1091 (App. 1985), but argues that we should follow the lead of the Montana Supreme Court in mandating an instruction which requires the jury to find that a defendant's driving ability has been impaired to the point that he is incapable of driving safely. City of Helena v. Davis, 723 P.2d 224 (Mont. 1986). Appellant further argues that the adoption of the statutory presumptions set forth in *330 A.R.S. § 28-692(E), together with the legislature's treatment of driving under the influence of drugs, warrants the inference that the legislature intended a higher standard of proof to apply to DUI cases. We disagree. First, the "slightest degree" instruction has been approved by our supreme court, and it is not our prerogative to adopt a different standard. Second, the enactment of the statutory presumptions are not inconsistent with the "slightest degree" standard, particularly where, as here, there is no evidence presented as to blood alcohol content. Finally, we believe a rational basis exists for the disparate treatment accorded by the legislature to persons driving under the influence of drugs, who may be convicted only upon proof that they were influenced "to a degree which renders [them] incapable of safely driving a vehicle...." A.R.S. § 28-692(L). The properties of alcohol and its negative effect on one's ability to drive are well known. There are a wide variety of drugs, however, both legal and illegal, with an equally wide variation in effect on the human body. The term "drug," as used in § 28-692(L), includes both prescription and over-the-counter medications, the effects of which may not be known to the consumer. It was reasonable for the legislature to conclude that the state should be put to a higher burden of proof in such cases before a defendant charged with driving under the influence of a drug could be convicted under this subsection. We have reviewed the entire record for fundmental error and, finding none, affirm. HATHAWAY and HOWARD, JJ., concur.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-61025 Summary Calendar FEDERICO JARVIS, Petitioner, versus JOHN ASHCROFT, U.S. ATTORNEY GENERAL, Respondent. -------------------- Petition for Review of an Order of the Board of Immigration Appeals BIA No. A79-344-032 -------------------- Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges. PER CURIAM:* Federico Jarvis, a native and citizen of Colombia, petitions for review of a Board of Immigration Appeals (BIA) order denying his application for asylum and withholding of deportation. Jarvis argues that, because the BIA adopted the Immigration Judge’s (IJ) decision without opinion, this court should not give the BIA decision any deference. Jarvis’s argument for non- deferential review is foreclosed; this court’s review of the * 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. 02-61025 -2- factual determinations of the BIA is for substantial evidence. See Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003). Jarvis also argues that he was a credible witness. This court may not review the IJ’s credibility determination or the decision to deny Jarvis asylum based upon such a determination. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Jarvis also argues that he should have been granted asylum because asylum is available to those, whose persecutors have some pecuniary or other non-political agenda so long as he provides some evidence that he has a well-founded fear that he will be persecuted because of his political opinion. Substantial evidence exists to support the IJ’s finding that Jarvis was not a refugee and did not suffer persecution on any recognized ground. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002); United States v. Girma, 283 F.3d 664, 667 (5th Cir. 2002). The petition for review is DENIED. 

688 N.W.2d 491 (2004) In the Interest of D.H., a Minor Child, M.H., Father, Appellant. No. 04-0743. Court of Appeals of Iowa. July 28, 2004. *492 Amanda M. DeMichelis, of the Bull Law Office, P.C., Des Moines, for appellant-father. Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John P. Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee-State. Cynthia Tofflemire, Des Moines, for the mother. Christine Bisignano, Des Moines, for the child. Considered by VOGEL, P.J., and HECHT and VAITHESWARAN, JJ., but decided en banc. VAITHESWARAN, J. Mike is the father of Danae, born in 1990. Danae was adjudicated a child in need of assistance in 1995 based on physical abuse by her mother. She remained a child in need of assistance due to ongoing drug abuse by her mother and a repetition of the physical abuse. As a teenager, Danae disclosed that she had also been abused sexually by her father. Mike's parental rights to Danae were terminated in 2004. On appeal, Mike does not challenge the grounds for termination. Instead, he contends: 1) the Federal and State Indian Child Welfare Acts apply but were not followed, 2) the State did not properly serve him with the petition for termination of parental rights, and 3) termination was not in the child's best interests. I. Mike raises the Indian Child Welfare Acts for the first time on appeal. *493 He states that the juvenile court did not determine whether Danae was an "Indian child" within the meaning of the two Acts. As to the Federal Act (25 U.S.C. §§ 1901-63), Mike failed to preserve this issue for appellate review. In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App.1998). Regarding the Iowa Indian Child Welfare Act (Iowa Code ch. 232B (Supp. 2003)), we will assume without deciding that the challenge may be raised for the first time on appeal. Mike correctly notes that Iowa Code section 232B.4(2) requires a party seeking termination of parental rights over an Indian child to determine whether the child is an Indian child. The required inquiry is necessary when a child could be, but is not known to be, an Indian child. We are not convinced this provision creates a broad duty to inquire of every child's status as an "Indian child" in every proceeding that may theoretically be covered by chapter 232B. The duty of inquiry is qualified by section 232B.5(3), which provides that the court or a party is "deemed to know or have reason to know that an Indian child" is the subject of an action where 1) the court or party "has been informed ... that the child is or may be an Indian child," 2) the child "gives the court reason to believe that the child is an Indian child," or 3) the court or party "has reason to believe" that the child resides or is domiciled in "a predominantly Indian community." Reading sections 232B.4(2) and 232B.5(3) together, as we must, we conclude that the section 232B.4(2) duty of inquiry concerning a potential Indian child's status is triggered only by the circumstances set forth in Iowa Code section 232B.5(3). Applying Iowa Code section 232B.5(3) to the record and argument before us, we find no evidence that 1) Mike or anyone else informed the court Danae is or may be an Indian child, 2) would have given the court reason to believe she was an Indian child, or 3) Danae resides in a predominately Indian community. Therefore, there is no need for an inquiry into her status as a potential Indian child. II. Mike next contends the record only discloses that he was served with the original notice and not with the petition for termination of parental rights. See In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (noting order void as to parent who has no notice of proceeding). The record reveals that the Tazewell County Sheriff in Illinois file stamped an original notice and personally served Mike with a "notice." Included with the return of service was the file stamped original notice, which made explicit reference to "a petition in the above entitled action, a copy of which is attached hereto." Cf. Chader v. Wilkins, 226 Iowa 417, 420, 284 N.W. 183, 185 (1939) (citation omitted) (stating, absent "clear and satisfactory proof" to the contrary, we presume that a return of service correctly states the manner of service"). We conclude Mike was properly served with the termination petition. III. Mike finally argues that termination is not in Danae's best interests because her maternal grandmother is willing and able to care for the child as she has in the past. See Iowa Code § 232.116(3)(a) (stating court need not terminate parental rights if "relative has legal custody of child"). He also argues "the child should have been called upon to state her views on the termination." Id. § 232.116(3)(b) (stating court need not terminate if "child is over ten years old and objects to the termination"). It is true that Danae's grandmother was her caretaker for much of the nine-year period preceding termination. However, Danae was removed from the grandmother's home in early 2003 when an investigation revealed that she failed to protect Danae from recurring physical abuse by *494 her mother. Following that removal, Danae was placed in foster care, then in a shelter, and finally at a facility providing residential treatment services. Meanwhile, Mike was sentenced to a 180 month prison term for conspiring to sell methamphetamine. Even before his incarceration, he was only seeing his daughter once a year. His prospects for renewing contact with her were faint, given a confirmed report that he sexually abused her as well as recent revelations by Danae that the abuse was more extensive than she first disclosed. At the time of the termination hearing, Danae suffered from conduct disorder, post-traumatic stress disorder, and depressive disorder. Her move to a restrictive setting was precipitated by "out of control" behaviors which included setting a fire in a school bathroom, running away from home, using crack cocaine, sexually abusing two children, and attempting suicide. As for Danae's views concerning termination of her father's parental rights, there is no evidence that Mike asked to have her testify at the termination hearing. There is also no evidence to suggest Danae wished to maintain a relationship with her father. On our de novo review, we conclude termination of Mike's parental rights to Danae was in her best interests. AFFIRMED. All judges concur except SACKETT, C.J., who partially dissents. SACKETT, C.J. (concurs in part and dissents in part). I concur in part and dissent in part. I would order a limited remand. An allegation has been made for the first time on appeal that no inquiry was made as to D.H.'s possible Indian heritage, as required under Iowa Code section 232B.4 (Supp.2003), and that the termination should be reversed because of the failure of an inquiry. I agree strongly with the State and the majority that this alone is not grounds for reversal. But I would not end our inquiry on this issue there. Rather, I would remand by order to the juvenile court to hold a hearing to determine the Indian status, if any, of this child. I recognize, as the majority found, there is no real evidence that the child would qualify as an Indian child. Yet the State has failed to state in its petition that either there is evidence the child qualified under the federal or state Indian Child Welfare Act[1] or there is not evidence the child qualified under either act.[2] Furthermore, there is no real evidence the child does not qualify under either act. If, as the allegation for reversal suggests, the father's current attorney has evidence that the child would qualify, that evidence can only be entered in the record with a remand.[3] Consequently, if this challenge can first be *495 made on appeal as this court is doing,[4] the only way to intelligently address the issue is to remand for further proceedings, an alternative suggested by the State. The majority has held that the need for the court to inquire as to the child's status is only triggered by the circumstances set forth in Iowa Code section 232B.5(3) and apparently only at the trial court level, yet they address it without the juvenile court having had an opportunity to do so. The whole Iowa statutory scheme of chapter 232B has wide-open definitions of an Indian child[5] and places substantial burdens on both the court and the State to make inquiry.[6] Additionally, the failure to correctly identify a child as an Indian child could result in a termination being set aside in an action filed under the federal Indian Child Welfare Act. 25 U.S.C. § 1914 (2002) provides: Any Indian child who is the subject to any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912 and 1913 of this act.[7] Section 1912 provides for a state court[8] that knows or has reason to know the child may be subject to the federal act to notify certain persons in a certain manner and to do certain other things that did not happen in this case. A failure to comply with these provisions could invalidate this termination procedure. See Doe v. Mann, 285 F.Supp.2d 1229, 1233 (N.D.Cal.2003) (noting a tribal member is not precluded from bringing a federal court action challenging the state court's child custody determination as a violation of the Indian Child Welfare Act, the issue not having been raised or adjudicated in state court). I understand that we have a responsibility to see parental termination cases are handled expeditiously. But the short time necessary to remand for a hearing is insignificant when compared with the time that the termination order could be held in limbo by further litigation challenging the termination should the child qualify under either or both the federal and state acts. The better practice, it would appear, is for the State that has responsibility for determining the child's status to include an allegation in its petitions that a basic inquiry has been made and there is or is not evidence the child qualifies under the Act. The better practice for us is to take those precautions necessary to strictly comply with both acts making further litigation less likely and to assure that termination *496 orders from Iowa courts shall withstand challenges under the federal act. NOTES [1] Iowa Code chapter 232B contains the Iowa Indian Child Welfare Act. The federal Indian Child Welfare Act is found in 25 U.S.C. §§ 1901-63 (2002). [2] By the time of a termination hearing, the State has gathered substantial evidence on the child and his or her family and I would suggest that the better practice would be for the State to make such an allegation. In saying this, I do not suggest that the failure to do so in and of itself is grounds for a reversal, as I have agreed with the State and the majority it does not. [3] Any attorney raising this issue at the appellate level should have evidence that the child qualifies or evidence that raises a debatable question as to whether the child qualifies. Any attorney representing a party in juvenile court who has evidence the child may qualify would have an obligation to make that evidence known to the court and not wait to raise the issue for the first time on appeal. [4] In saying this I recognize the majority has elected not to raise the preservation issue raised by the State. [5] Iowa Code § 232B.3(6). [6] Iowa Code § 232B.5. [7] Iowa Code 232B.5(2) provides: The federal Indian child Welfare Act and this chapter are applicable without exception in any child custody proceedings. A state court does not have the discretion to determine the applicability of the federal Indian Child Welfare Act or this chapter to a child custody proceeding based upon whether an Indian child is part of an existing Indian family. Iowa Code § 232B.5(2). [8] Whether this statute also puts these requirements on an appellate court when it is the first to be advised there may be a question of the child's eligibility is not clear.

978 So.2d 78 (2006) LELAS ALVIN DAY v. TOWN OF RAGLAND. No. CR-05-0344. Court of Criminal Appeals of Alabama. June 16, 2006. Decision of the Alabama Court of Criminal Appeal Without Opinion. Reh. denied.

Filed 4/24/15 P. v. Cangas CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B249124 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA057939) v. RAMIRO DANIEL CANGAS et al., Defendants and Appellants. APPEAL from judgments of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed as to appellants, with directions as to Ozuna. Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant Ramiro Daniel Cangas. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant Raymond Zavala Ozuna. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. _____________________  Appellant Ramiro Daniel Cangas appeals from the judgment entered following his convictions by jury on count 1 – possession of a controlled substance for sale, count 5 – possession of a controlled substance with a firearm, and count 6 – false compartment activity, with each offense committed for the benefit of a criminal street gang. (Health & Saf. Code, §§ 11366.8, subd. (a), 11370.1, subd. (a), & 11378; Pen. Code, § 186.22, subd. (b)(1)). The court sentenced Cangas to prison for six years. Appellant Raymond Zavala Ozuna appeals from the judgment entered following his convictions by jury on count 1 – possession of a controlled substance for sale, count 3 – possession of a firearm by a felon, and count 6 – false compartment activity, with the jury, having found Ozuna guilty on each of counts 1 and 6 on a conspiracy theory, finding as to each of counts 1 and 6 he conspired to commit specified crimes1 and finding as to each of counts 1, 3, and 6 he committed the offense for the benefit of a criminal street gang. (Health & Saf. Code, §§ 11366.8, subd. (a) & 11378; Pen. Code, § 29800, subd. (a)(1); Pen. Code, § 186.22, subd. (b)(1)). The court found Ozuna suffered two prior felony convictions and sentenced him to prison for 28 years to life. (Pen. Code, § 667, subd. (d).) We affirm the judgments but direct the trial court to correct Ozuna’s abstract of judgment. FACTUAL SUMMARY Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the evidence established that in 2012, Los Angeles County Sheriff’s deputies investigated possible narcotics activity at a house on East Cobb in Lancaster. In October 2012, deputies searched the house. It had been recently vacated, but evidence of narcotics activity was present, such as wiring for surveillance 1 The specified crimes were “1. Transporting, selling or furnishing methamphetamine, in violation of Health and Safety Code Section 11379 [¶] 2. Possessing methamphetamine for sale, in violation of Health and Safety Code Section 11378 [¶] 3. Maintaining a place for controlled substance sale, in violation of Health and Safety Code Section 11366.” 2 cameras and paraphernalia for growing marijuana. The occupants had moved to a house at 2833 West Milling in Lancaster. About 5:30 a.m. on November 9, 2012, deputies, executing a search warrant at the Milling house, demanded entry. The deputies, hearing voices inside and hearing people running through the house, opened the front door. Appellants ran through the living room and around a corner. Los Angeles County Sheriff’s Deputy Curtis Foster pursued them into the kitchen and detained them. Cangas’s front pants pocket contained a set of keys, including a key to the front door of the house. Silvia Brizuela exited the master bedroom, and Loriano Ruiz2 and Betsy Pinto were in that bedroom. When detained, Ruiz removed a key to a black Honda from his pocket and tossed the key. Guestavo Omeido was hiding in a downstairs bedroom.3 Between about 5:30 a.m. to 5:45 a.m., a deputy searched Brizuela. About 30 minutes later, Ozuna and Brizuela were in the back of a patrol car. The two were communicating excitedly. Both turned so their hands were close. Brizuela took something from Ozuna and put it in her pants. When searched at the Lancaster station, Brizuela removed from her pants a small plastic bag and gave it to the jailer. The bag contained 3.77 grams net weight of methamphetamine. Deputies searched the Milling property. The master bedroom closet contained three plastic bags inside a man’s tennis shoe. One of the three contained methamphetamine. Another of the three contained seven smaller plastic bags inside of which was methamphetamine. The third bag contained several smaller plastic bags. A folder was near the tennis shoe. The folder bore gang writings and had pockets labeled Dope, Profit, and Saving. The master bedroom contained three cell phones, at least two of which had text messages related to drug sales. That bedroom also contained a rental agreement bearing the names Sylvia Brizuela and Loriano Ruiz. 2 Ruiz’s first name is sometimes referred to in the record as Lauriano; in this opinion we refer to his first name as Loriano. 3 Brizuela, Ruiz, Pinto, and Omeido, codefendants, are not parties to this appeal. 3  A downstairs bedroom (bedroom No. 5) contained a wallet inside of which was Omeido’s driver’s license. Two televisions were in said bedroom and a third television was in the bedroom’s closet. Photographs depicted items recovered from bedroom No. 5 and other locations. The photographs included a photograph of a jacket. One of the jacket’s pockets contained a plastic bag, inside of which were jewelry, rings, and necklaces. A closet in an upstairs bedroom (bedroom No. 2) contained a pair of jeans. The jeans contained an Iphone and a wallet inside of which was Ruiz’s Nevada identification card. The right coin pocket in the jeans contained methamphetamine. The bedroom also contained a spoon and push rods, a Samsung phone, and memory cards. The bedroom further contained numerous papers bearing the letters VNE (discussed post) and the name Shadow. Artwork bearing Ozuna’s signature and the letters “P.C.P.” (discussed post) were in the bedroom. The bedroom also contained 12 shotgun shells. Two Hondas, including the previously mentioned black Honda, were in the garage. Brizuela was the registered owner of the black Honda, and Los Angeles County Sheriff’s Deputy Scott Woods, the investigating officer in this case, testified he believed Brizuela was the registered owner of the second Honda, although Woods was uncertain. An envelope bearing the name Loriano was on top of the center console of the black Honda. The envelope contained a card stating, “to Shadow from Silvia.” A small plastic bag was inside the card, and the bag contained $100, in $20 bills, and methamphetamine. A cell phone with a home screen that said Betsy was under the front passenger seat. Several messages on the cell phone were indicative of street-level narcotics sales. A hidden compartment containing a safe was inside the front passenger seat of the black Honda. The safe held three plastic bags containing methamphetamine, and also held a digital scale, pay/owe sheets, and empty Ziploc bags. The driver’s seat contained a secret compartment, and a leather bag was in the compartment. A shotgun containing “seven rifle slug shotgun rounds” was “sitting” on the garage wall. During booking, 4 appellants and Pinto indicated they were unemployed, Ozuna and Pinto said their address was the Milling address, and Cangas said he stayed there. Cangas had a Nevada driver’s license. A criminalist determined the substances recovered from the Milling house were 49.07 grams of methamphetamine and .76 grams of cocaine base. Woods, an expert in possession of narcotics for sale, opined the above methamphetamine in the Milling house was possessed for sale.4 Based on information in the phones recovered from the Milling house, Woods determined the owners of the phones were Cangas, Brizuela, Ruiz, and Pinto. Text messages on phones were consistent with narcotics sales. Woods also testified as follows. Brizuela and Ruiz were running the operation, appellants and Pinto were helpers, and Cangas and Pinto were being recruited to deliver narcotics. Cangas and Pinto were each 19 years old and, in a gang environment, each would be eager to prove his or her name. Cangas, in contrast with Pinto, was less likely to be robbed. According to Woods, the pay/owe sheets referred to Raymond paying $40 for 1/32 ounce of methamphetamine. Woods assumed Raymond was Ozuna. Another entry on a pay/owe sheet referred to “Danny aka Shadow” and “Varrio Nueva, Danny aka Shadow.” The entry showed this person bought $20 worth of drugs. Woods believed this person was Cangas. Los Angeles County Sheriff’s Detective Daniel Welle, a gang expert, testified at the 2013 trial, inter alia, as follows. Welle had been a deputy for over 13 years. After working four years in the jail system, he was assigned to patrol in East Los Angeles for six months, to the Palmdale station for about a year, to the Lancaster station for three years, then, in 2008, to his current gang unit. 4 Woods based his opinion on numerous facts, including the facts there was a fairly large amount of recovered narcotics, the majority of the narcotics were packaged in individual bags, deputies recovered several scales with white residue as well as several pay/owe sheets, and a vehicle had two secret compartments, one containing methamphetamine, and both containing pay/owe sheets. His opinion was also based on the facts there were several text messages involving narcotics sales, deputies recovered a loaded shotgun, and deputies recovered a VNE folder with the words Profit and Drugs on the folder. 5  According to Welle, Lancaster and Palmdale did not have an entrenched gang culture and instead were a “transit gang area.” Gangs in the area primarily originated elsewhere. Welle was familiar with the Varrio Nueva Estrada gang (VNE). (We italicize below some of the facts pertaining to Cangas’s claim, discussed post, that there was insufficient evidence VNE was an “ongoing organization, association, or group of three or more persons” for purposes of the gang enhancements.) Welle contacted the gang when he was working in the jail. Moreover, when Welle was on patrol in East Los Angeles, his training officer made it a point to go to Varrio Estrada projects and give Welle “a history on them because we frequently dealt with them.” (Italics added.) During direct examination, the prosecutor asked if Welle had a sense of how many members were currently in the gang. Welle testified VNE was a multigenerational gang that had been around since the 1970’s, and it was hard to provide an exact number. Welle had read probably about 100 to 200 reports involving VNE. He had written 20 to 30 reports specifically involving VNE members. Welle testified, “In East L.A., I contacted them more frequently. Over my career in patrol, I’ve probably contacted around 50 different members.” (Italics added.) Welle really began dealing with VNE members when he went to the Lancaster station and, when he started working in Lancaster, he encountered the Primeros clique. The Primeros clique was a Lancaster clique that also had members who lived in Rosamond. The gang previously, and at the time of Welle’s testimony, was under a gang injunction and could not congregate in the East Los Angeles projects. The prosecutor asked Welle to describe, in his opinion, “the primary activities of . . . the VNE gang.” Welle replied, “It would be assaults, starting off with just basic assaults on the street; be it a street robbery, just a fight with rivals, all the way up to murder and narcotics sales.” Later during direct examination, the prosecutor asked if Welle could provide “some sort of estimate of the subset of VNE.” Welle replied, “in Lancaster –in the Palmdale area, over the last five year period, there are about 25, I believe, field identification cards filled out for different VNE gang members.” The 6 following then occurred: “Q So your number would be a minimum of 25? [¶] A Yes; that have been either living here or passed through here from different – that lived in different areas that could have lived back in East L.A. or Montebello.” (Italics added.) Welle indicated Cangas had multiple VNE-related tattoos and was known as Little Shadow. Deputies recovered, from the Milling house, artwork done by Ozuna, and Welle testified it had “lots of tagging on it indicating P.C.P.” The initials “P.C.P.” stood for the Pure Chicano Pride gang. Welle opined Ruiz was Shadow. Rudy Escargega committed robbery in May 2010, Roger Gutierrez committed robbery in August 2010, and both were VNE members. The possession of methamphetamine in this case was done for the benefit of, at the direction of, or in association with, VNE. A person could not stay at a gang house where drugs were being sold without “putting in . . . work” because security was important to the gang members selling drugs. Appellants presented no defense witnesses. We will present additional facts below where pertinent. ISSUES Cangas claims (1) insufficient evidence supports his convictions, (2) insufficient evidence supports the gang enhancements, (3) the court committed instructional error as to the gang allegations, (4) he was denied effective assistance of counsel, (5) cumulative error occurred, and (6) his sentence constituted cruel and unusual punishment. Cangas also asks this court to review the sealed Hobbs5 attachment to a search warrant issued in this case. Ozuna claims (1) the court committed instructional error as to counts 1 and 6, (2) the court committed instructional error as to count 3, (3) insufficient evidence supports the gang enhancements, (4) the court abused its discretion by failing to dismiss one of his strikes, (5) his abstract of judgment must be corrected, and (6) cumulative error occurred. 5 People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). 7  DISCUSSION 1. Sufficient Evidence Supports Cangas’s Convictions. Cangas claims insufficient evidence supports his convictions. We disagree. Cangas concedes as to all of his convictions, “[t]he jury might have found [Cangas] guilty of those charge [sic] based on the conspiracy theory, . . . As part of a conspiracy, Cangas could be vicariously liable on the basis of Brizuela’s and Ruiz’s possession and use.” We need not reach the issue of Cangas’s liability under a conspiracy theory. However, we accept, as to counts 1, 5, and 6, his concession concerning “Brizuela’s and Ruiz’s possession and use.” Indeed, in light of the facts set forth in our Factual Summary, there was substantial evidence Brizuela and/or Ruiz possessed and/or used the methamphetamine in the house and garage, and that Brizuela possessed methamphetamine in the back of the patrol car, and we will not repeat that evidence here. Accordingly, we consider below whether there was substantial evidence Cangas, as a direct perpetrator of, and/or aider and abettor to, the possession and/or use of methamphetamine by Brizuela and/or Ruiz, committed the offenses at issue in counts 1, 5, and 6. The court, using CALJIC Nos. 12.01, 12.52, and 12.38, instructed the jury as to counts 1, 5, and 6, respectively, that possession was an element of those counts. The court, using CALJIC Nos. 12.01 and 12.52 as to counts 1 and 5, respectively, told the jury possession included constructive possession. Each of those two instructions stated constructive possession required a person “knowingly exercise control over or right to control a thing, either directly or through another person or persons.” There is no dispute this is a correct statement of the law. Those instructions also indicated persons could share constructive possession. In the present case, there was ample evidence Brizuela and/or Ruiz were engaged in a methamphetamine sales operation at the Milling house. Moreover, there was substantial evidence as follows. About 5:30 a.m. on November 9, 2012, after deputies demanded entry into the Milling house, people were heard running inside. Deputies 8 entered and Cangas ran through the living room, around a corner, and into the kitchen. This was evidence of Cangas’s access to locations in the house. Indeed, Cangas physically possessed a key to the entire house. During booking, Cangas said he stayed at the house. Welle testified a person could not stay at a gang house where drugs were being sold without “putting in . . . work,” because security was important to the gang members selling drugs. Cangas’s cell phone, found in the Milling house, contained text messages consistent with narcotics sales. This was evidence of Cangas’s participation in the methamphetamine sales and smuggling operation. In the case of In re Z.A. (2012) 207 Cal.App.4th 1401, the court stated, “By presenting evidence that Z.A. participated in a drug-smuggling operation . . . , the People presented sufficient evidence from which a reasonable fact finder could find that Z.A. exercised, at a minimum, constructive possession of the marijuana.” (Id. at p. 1427.) In light of all the evidence in this case, we conclude there was sufficient evidence Cangas constructively possessed all of the methamphetamine in this case. Possession of narcotics constitutes substantial evidence the possessor knew of its narcotic nature. (People v. White (1969) 71 Cal.2d 80, 83; People v. Eckstrom (1986) 187 Cal.App.3d 323, 331 (Eckstrom).) Knowledge of the presence of contraband and its narcotic content may also be inferred from a defendant’s conduct and statements at or near the time of the defendant’s arrest. (Eckstrom, at p. 331.) Woods testified Brizuela and Ruiz were in charge of the operation, Cangas was a helper, and he was being recruited to deliver narcotics. Further, there was ample evidence, including Woods’s testimony (see fn. 4, ante), that any possession of methamphetamine was for sale. Cangas’s flight when deputies were executing the search warrant provided evidence of consciousness of guilt as to all of his alleged crimes. 9  Further still, there was ample evidence the crimes committed in this case involved the VNE gang, of which Cangas was a member, and that he was participating as such. Woods testified Cangas was 19 years old and, in a gang environment, would be eager to prove his name. Welle’s opinion concerning Cangas’s affiliation with VNE was based in part on photographs depicting Cangas with Ozuna and Ruiz. Welle opined Ruiz sponsored or brought Cangas into VNE. A photograph depicted Cangas making a “VN” hand sign, Ruiz making an “E” hand sign, and Ozuna making a hand sign simulating a gun pointed to his head. Welle opined the methamphetamine possession in this case was done for the benefit of, at the direction of, or in association with, VNE. He also opined to the effect the activity in this case promoted or furthered VNE’s activity because narcotics sales were the number one producer of income for gangs. We hold there was sufficient evidence supporting Cangas’s convictions for possessing methamphetamine for sale (count 1), possessing a controlled substance with a firearm (count 5), and false compartment activity (count 6), as a direct perpetrator in constructive possession of the respective contraband, and/or as an aider and abettor. (Ochoa, supra, 6 Cal.4th at p. 1206.) 2. Sufficient Evidence Supported the Gang Enhancements as to Cangas. Cangas claims insufficient evidence supports the Penal Code section 186.22, subdivision (b) gang enhancements because there was insufficient evidence (1) of the “ongoing organization, association, or group of three or more persons” element of subdivision (f), (2) of the “primary activities” element of subdivision (f), and (3) “the drug operation was gang-related.” As to his above “ongoing organization” argument, he maintains the evidence “showed that VNE, or the Primeros-Newtown clique, had at most two active members [Cangas and Ruiz] during the time period of the alleged drug conspiracy.” We reject Cangas’s claim. 10  First, in our Factual Summary, we italicized some of the pertinent facts which, we conclude, establish VNE was an “ongoing organization, association, or group of three or more persons.” Second, “[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. . . . [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony[.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324, last italics added.) There was sufficient evidence of the “primary activities” element of Penal Code section 186.22, subdivision (f). (Pen. Code, § 186.22, subds. (e)(2) [robbery], (3) [unlawful homicide], & (4) [narcotics sales] & (f).) Third, Welle opined the possession of methamphetamine in this case was done for the benefit of, at the direction of, or in association with, VNE, and the activity in this case promoted or furthered VNE’s activity because narcotics sales were the primary source of income for gangs. There was ample evidence supporting his opinion. When a crime is committed for the benefit of, at the direction of, or in association with, a criminal street gang (as Welle effectively testified these crimes were) the crime is gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 60.) There was sufficient evidence supporting the gang enhancements.6 3. No Instructional Error Occurred as to Cangas Regarding Gang Enhancements. Cangas claims the trial court erred by giving, on the one hand, CALJIC No. 2.51 on motive and, on the other, CALJIC Nos. 17.24.2 and 17.24.3. First, he argues CALJIC No. 2.51 instructs “[m]otive is not an element of the crime charged and need not be shown,” while CALJIC Nos. 17.24.2 and 17.24.3 teach motive is an element. Citing 6 In part III of the argument in Ozuna’s opening brief, Ozuna, like Cangas, argues there was insufficient evidence establishing VNE was an “ongoing organization, association, or group of three or more persons.” Our analysis above applies to Ozuna as well. 11 People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer), he maintains CALJIC Nos. 17.24.2 and 17.24.3 teach motive is an element because CALJIC No. 17.24.2 states an essential element of the gang allegation is the crime was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members” and CALJIC No. 17.24.3 required the jury to consider specified evidence for the limited purpose of determining whether crimes were committed with the above quoted specific intent. We reject Cangas’s argument. Motive and intent are separate and disparate mental states, and the words are not synonyms. Motive describes the reason a person chooses to commit a crime. That reason, however, is different from a required mental state such as intent. Maurer does not compel a contrary conclusion. (People v. Hillhouse (2002) 27 Cal.4th 469, 504; People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140.) Moreover, CALJIC No. 2.51 pertains to motive and the crime charged. CALJIC Nos. 17.24.2 and 17.24.3 pertain to gang enhancements. An enhancement is not a crime. (People v. Vorbach (1984) 151 Cal.App.3d 425, 430.) Finally, in light of our analysis in part 1 of our Discussion, we conclude there was overwhelming evidence Cangas had the specific intent required for the gang enhancements; therefore, any instructional error was harmless. (Cf. Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Cangas argues the trial court erred by failing to instruct he could not vicariously have the specific intent required for the gang enhancements. That is, Canvas argues he cannot, as a conspirator, be liable for the gang enhancements unless he subjectively harbored the “specific intent to promote, further, or assist in any criminal conduct by gang members” within the meaning of Penal Code section 186.22, subdivision (b)(1), and he maintains it is irrelevant that a coconspirator’s harboring of that specific intent was a natural and probable consequence of the conspiracy. We reject the argument. 12  In part 1 of our Discussion, we concluded there was sufficient evidence Cangas was guilty on counts 1, 5, and 6 as a direct perpetrator and/or as an aider and abettor, i.e., apart from any conspiracy theory. That analysis also demonstrates there was overwhelming evidence Cangas personally harbored the requisite specific intent for purposes of the gang enhancements. Accordingly, even if the trial court erred by failing to instruct that Cangas could not vicariously have the specific intent required for the gang enhancements, the instructional error was harmless under any conceivable standard. (Cf. Chapman, supra, 386 U.S. at p. 24.) Ozuna makes similar arguments in part I.B. of his opening brief, and we reject them as well. 4. Cangas Was Not Deprived of Effective Assistance of Counsel. On March 19, 2013, voir dire of prospective jurors began during the trial of appellants and Pinto. The court questioned prospective jurors that day, and the examination, which sought standard information, comprises about 179 pages of the reporter’s transcript. On the morning of March 20, 2013, the trial court began proceedings by advising Cangas as follows outside the presence of the prospective jurors. Cangas’s trial counsel, Attorney Martin Crumblish, had called and informed the court that morning Crumblish could not appear that day due to illness. Crumblish talked to Attorney Wayne Redmond, Ozuna’s trial counsel. There were 75 prospective jurors. The court stated, “we obviously would like to get the jury picked rather than make them come back.” The court also advised as follows. Crumblish and Redmond agreed that, if it was acceptable to Cangas, Redmond would stand in for Crumblish that day, merely for purposes of jury selection. Redmond would represent appellants that day. Crumblish expected he would return at the start of trial, but did not want to delay jury selection. The court asked if that was acceptable to Cangas, and he replied yes. 13  Jury selection resumed that morning. Attorney Charles Anderson, Pinto’s counsel, conducted voir dire, and his examination comprises three pages of the reporter’s transcript. Redmond then conducted voir dire, and began by stating, “for purposes of today I’m two people. Mr. Crumblish is unable to be here, so I’m standing in for Mr. [Cangas’s] attorney as well.” Redmond’s examination comprises 30 pages of the reporter’s transcript. The prosecutor’s subsequent voir dire comprises 30 pages of the reporter’s transcript. All parties later passed for cause, and appellants and Pinto exercised joint and individual peremptories. On March 20, 2013, the parties accepted the panel and the jury was sworn. From March 21, 2013, through March 29, 2013, inclusive, the parties presented evidence at trial and Crumblish represented Cangas. On March 26, 2013, the prosecutor filed a motion seeking clarification. The motion noted Redmond’s joint representation of appellants during voir dire on March 20, 2013, and asked that the court secure a written waiver of both Cangas’s right to his own counsel, and appellants’ rights to unconflicted counsel. On March 29, 2013, the court indicated it did not know why the prosecutor had filed the motion, and the prosecutor lacked standing. The court recounted what had happened on March 20, 2013, then indicated as follows. The entire matter had been on the record and had been resolved. The court took a personal waiver from Cangas. Cangas had been quite happy to have jury selection proceed, as opposed to making 75 prospective jurors return the next day. The court asked Crumblish if he was satisfied, and Crumblish replied yes. Crumblish added, “In fact, the Court -- through the court officer -- outlined the procedure that was going to be followed. I agreed with it to the letter and I later determined that, in fact, it had been done; yes.” The court asked Redmond if he was satisfied, and he replied yes. The court asked Cangas if he was “still okay that . . . all that happened,” and he replied yes. The court stated, “Thank you. We’re all okay.” On April 3, 2013, the jury began deliberating and, on April 4, 2013, the jury reached its verdicts. 14  Cangas claims he was denied his right to unconflicted counsel; therefore, he was denied effective assistance of counsel. Sixth Amendment violations based on conflicts of interest are ineffective assistance of counsel claims, and they generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been different. (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).)7 “In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest ‘that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.’ [Citations.] ‘[I]nquiry into actual conflict [does not require] something separate and apart from adverse effect.’ [Citation.] ‘An “actual conflict,” for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.’ (Ibid.)” (Doolin, supra, 45 Cal.4th at pp. 417-418.)8 7 In People v. Mroczko (1983) 35 Cal.3d 86 (Mroczko), our Supreme Court stated, “While the right to conflict-free counsel may generally be waived [citations], waivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.] No particular form of inquiry is required, but, at a minimum, the trial court must assure itself that (1) the defendant has discussed the potential drawbacks of joint representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of joint representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right.” (Mroczko, at p. 110.) We need not reach the issues of whether the trial court complied with Mroczko and obtained from Cangas a valid waiver of his right to unconflicted counsel. Even if Cangas did not waive his right to unconflicted counsel, we conclude post that no ineffective assistance of counsel occurred. That is, we conclude the record fails to demonstrate (1) Redmond labored under an actual conflict of interest that affected his performance and (2) any such actual conflict was prejudicial. 8 Conflict of interest claims under our state Constitution are resolved under the Sixth Amendment standard. (Doolin, supra, 45 Cal.4th at pp. 419-421.) 15  In Doolin, our Supreme Court stated, “This court has suggested that a determination of whether counsel’s performance was ‘adversely affected’ under the [Sixth Amendment] ‘requires an inquiry into whether counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. . . . But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must . . . examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” (Doolin, supra, 45 Cal.4th at p. 418.) Cangas claims a conflict of interest existed because (1) there was evidence a cell phone linked to Cangas contained messages indicating he was selling drugs but there was no such evidence as to Ozuna, (2) Ozuna had a serious criminal record but Cangas had no criminal record, (3) joint representation of appellants by Redmond signaled a connection between appellants and that their interests were aligned, and (4) Crumblish’s absence during jury voir dire precluded him from hearing prospective juror’s responses to questioning, and from using peremptory challenges to “get a feel for the jury.” However, we have examined the record of jury voir dire. We have found no actual conflict of interest that affected counsel’s performance, and Cangas fails to point to any specific instance of such a conflict in the jury voir dire. Cangas has failed to demonstrate that actions omitted (e.g., questions not asked, peremptory challenges not exercised) would likely have been made by counsel who did not have a conflict of interest. Refraining from questioning during jury voir dire can be an informed tactical decision. (People v. Freeman (1994) 8 Cal.4th 450, 485-486.) Moreover, “[b]ecause the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process.” (People v. Montiel (1993) 5 Cal.4th 877, 911.) 16  Cangas has similarly failed to demonstrate joint representation of appellants by Redmond signaled a connection between appellants, and signaled their interests were aligned, with the result Cangas received ineffective assistance. A signaling of connection and alignment of interests occurs in some sense every time one attorney represents multiple defendants. However, “[m]ultiple representation of criminal defendants is not per se violative of constitutional guarantees of effective assistance of counsel.” (Mroczko, supra, 35 Cal.3d at p. 103.) Crumblish’s absence would have resulted in his not hearing prospective juror’s responses, and not getting a feel for the jury, whether or not Cangas had been represented by Redmond or another attorney. This point is really a right to counsel claim. However, Cangas was not completely denied the right to counsel during jury voir dire; Redmond represented him. Cangas neither contends nor demonstrates Redmond entirely failed to subject the prosecution’s case to meaningful adversarial testing. Cangas has failed to demonstrate actual prejudice. (Cf. People v. Streeter (2012) 54 Cal.4th 205, 231-233; People v. Benavides (2005) 35 Cal.4th 69, 87.) Redmond’s joint representation of appellants for one day during jury voir dire did not deny Cangas his right to counsel or constitute constitutionally-deficient representation. Finally, any constitutionally-deficient representation of Cangas was not prejudicial in light of the facts jury voir dire occurred during a single day, Crumblish represented Cangas during the subsequent proceedings, there was overwhelming evidence of Cangas’s guilt, and the jury, by its verdicts, clearly gave individualized focus to the charges of each appellant.9 9 In light of our previous discussion, we reject Cangas’s claim cumulative prejudicial error occurred. 17 5. Cangas’s Sentence Was Neither Cruel nor Unusual Punishment. At the May 20, 2013 sentencing hearing, the court indicated it had read the probation report and the parties’ sentencing memoranda. The court sentenced Cangas to prison for an unstayed term of six years. This consisted of a three-year middle term for possession of a controlled substance for sale (count 5), plus three years for its gang enhancement. The court stayed sentences on counts 1 and 6 pursuant to Penal Code section 654. Cangas claims his prison sentence was cruel and/or unusual punishment for purposes of the federal and state Constitutions. He waived the issue by failing to object to his sentence on either of those grounds below. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Moreover, as to the merits, Cangas “has failed to show that this case and this defendant is that ‘exquisite rarity’ [citation], an instance of punishment which offends fundamental notions of human dignity or which shocks the conscience.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) No constitutional violation occurred. 6. The Trial Court Properly Denied Cangas’s Motion to Quash and/or Traverse the Search Warrant. The nonconfidential record reflects as follows. On January 10, 2013, Brizuela filed a “motion to quash and/or traverse search warrant.” The motion pertained to a search warrant issued on November 8, 2012, by Los Angeles County Superior Court Judge Thomas R. White and commanding the search of the Milling property, Brizuela, a male Hispanic named Shadow, and various vehicles including a black Honda. The warrant indicated, “Hobbs sealing approved.” On January 30, 2013, the People filed a memorandum opposing the motion. A copy of a search warrant is attached to the memorandum and there is no dispute said search warrant is the one at issue. 18  The warrant was supported by an affidavit that we summarize as follows. The affiant, Woods, an expert in narcotics sales, received information in October and November 2012 from confidential informants that they were routinely purchasing methamphetamine from Brizuela at her house at 552 East Cobb, and she was storing methamphetamine there. Brizuela employed a male Hispanic driver, whose moniker was Shadow, to deliver methamphetamine. Vehicles used included a black Honda and gold Infinity, and Brizuela stored methamphetamine in the vehicles. In October 2012, deputies conducted surveillance of the Cobb address and saw a person, matching the description of the above male Hispanic, leave and return to the Cobb address several times in a gold Infinity. This behavior was indicative of street level narcotics transactions. On one occasion the male Hispanic engaged in countersurveillance driving and he drove to a Walmart parking lot. He engaged in a hand-to-hand transaction with someone, and the two never entered the store. The male Hispanic returned to the Cobb address and engaged in countersurveillance driving and conduct. The above black Honda, registered to Brizuela, was at the Cobb address. Brizuela had felony arrests, including a 2009 Kern County arrest for selling methamphetamine. During surveillance at the Cobb address, a second male Hispanic was seen with the previously mentioned male Hispanic. On October 22, 2012, the Milling house was rented. On October 23, 2012, deputies executed a search warrant at the Cobb address. The black Honda was parked in front of the Cobb address. The Cobb address had been recently vacated, but video cameras had been installed there and there was evidence marijuana had been cultivated there. During November 2012, the black Honda was parked in an open garage at the Milling address. Another vehicle was parked in the driveway and Brizuela was standing near the garage with the previously mentioned second male Hispanic. Based on the information in the affidavit, Woods believed Brizuela resided at the Milling address and was possessing, trafficking in, and/or manufacturing, narcotics. Woods opined Brizuela 19 was selling methamphetamine from her residence and opined she was storing additional methamphetamine, and proceeds from methamphetamine sales, at the Milling address. Woods asked that a search warrant be issued commanding a search of the Milling address. On February 1, 2013, Cangas joined in Brizuela’s motion. The trial court indicated it would read the sealed Hobbs attachment to the search warrant. On February 20, 2013, the court indicated it had read the moving papers, search warrant, and the Hobbs sealed attachment. The court denied the motion to quash and/or traverse the search warrant. Cangas asks this court to review the sealed Hobbs attachment to the supporting affidavit and determine if the entire affidavit sets forth probable cause to issue the warrant. We have reviewed the nonconfidential portions of the warrant and supporting affidavit, as well as any and all sealed material pertaining thereto, including the Hobbs attachment. We are satisfied the trial court acted within its sound discretion by denying the motion to quash and/or traverse the warrant, because it was not reasonably probable Cangas could prevail on said motion. (Cf. Hobbs, supra, 7 Cal.4th at pp. 974-977.) 7. No Instructional Error Occurred as to Count 1, 3, or 6 as to Ozuna. The jury convicted Ozuna of the substantive offenses of possession of a controlled substance for sale (count 1), possession of a firearm by a felon (count 3), and false compartment activity (count 6). The jury made special findings as to each of counts 1 and 6, that Ozuna was guilty under a conspiracy theory (see fn. 1, ante) and, inter alia, he conspired to sell methamphetamine in violation of Health and Safety Code section 11379. As to count 3, the court gave the jury a general verdict form that did not permit the jury to make special findings concerning guilt under a conspiracy theory, and the jury convicted Ozuna on count 3 pursuant to a general verdict. 20  Ozuna claims his convictions on counts 1 and 6 must be reversed because the trial court erroneously failed to instruct Wharton’s rule rendered the theory he conspired to sell methamphetamine legally invalid, thereby precluding his vicarious liability for any coconspirator’s possession of a controlled substance for sale (count 1) and for any coconspirator’s false compartment activity (count 6). We reject the claim. Wharton’s rule states: “ ‘Where the cooperation of two or more persons is necessary to the commission of the substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the substantive crime itself.’ ” (People v. Johnson (2013) 57 Cal.4th 250, 265 (Johnson).) “ ‘The classic Wharton’s Rule offenses—adultery, incest, bigamy, duelling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense.’ ” (Ibid.) Wharton’s rule “ ‘is considered in modern legal thinking as an aid in construction of statutes, a presumption that the Legislature intended the general conspiracy section be merged with the more specific substantive offense. [Citation.]’ [Citations.] ” (People v. Lee (2006) 136 Cal.App.4th 522, 530 (Lee), italics added.) The general conspiracy section is Penal Code section 182, subd. (a)(1). (Id. at pp. 526, 530; People v. Tatman (1993) 20 Cal.App.4th 1, 5, 7, 9.) Section 182, subdivision (a)(1) pertains to conspiracies to commit any crime. Wharton’s rule is founded on the notion “legislative intent is paramount in determining whether a party can be prosecuted for conspiracy in a given situation.” (Lee, at p. 530.) Wharton’s rule is inapplicable in the present case. The rule applies, if at all, only when a defendant is charged with (1) conspiracy as a crime (e.g., under the general conspiracy section of Penal Code section 182, subdivision (a)(1)) and (2) the substantive offense that was the target of that conspiracy. However, first, Ozuna was neither charged with, prosecuted for, nor convicted of, conspiracy as a crime. He was neither charged with, nor convicted of, conspiracy to sell methamphetamine. The conspiracy language in 21 the jury instructions as to counts 1 and 6 did not pertain to a separate crime of conspiracy but to a theory of conspiratorial liability for the crimes of possession of a controlled substance for sale (count 1) and false compartment activity (count 6), the crimes of which Ozuna was convicted. Second, the substantive offense that was the target of the conspiracy referred to in the conspiracy language of the instructions pertaining to counts 1 and 6 was selling methamphetamine. However, Ozuna was neither charged with, nor convicted of, the substantive offense of selling methamphetamine. Third, even if Wharton’s rule was otherwise applicable in this case, the rule is inapplicable where, as here, the conspiracy under review is likely to generate additional conspiracies. (Johnson, supra, 57 Cal.4th at pp. 265-266.) For example, in the context of the narcotics sales operation presented in the instant case, a conspiracy to sell methamphetamine would likely generate additional conspiracies to possess methamphetamine for sale, to possess methamphetamine with a firearm, and/or to engage in false compartment activity. A similar analysis applies to Ozuna’s claim his conviction on count 3 must be reversed because the trial court erroneously failed to instruct Wharton’s rule rendered the theory he conspired to sell methamphetamine legally invalid, thereby precluding his vicarious liability for any coconspirator’s possession of a firearm. The trial court did not err by failing to instruct on Wharton’s rule as to count 1, 3, or 6, because the rule was inapplicable to those counts. 22 8. The Trial Court Properly Denied Ozuna’s Romero Motion. Ozuna’s probation report reflects he was born in 1974 and committed various juvenile offenses.10 Ozuna suffered the following adult convictions: 1990 convictions for second degree robbery and a violation of Penal Code section 273.5, subdivision (a) (matters as to which he was arrested as a juvenile, but charged and convicted as an adult); two June 30, 1998 convictions (based on December 11, 1997 arrests) for violations of Penal Code section 245, subdivision (a)(1) (case No. MA012826), resulting in a nine- year prison sentence; and 2008 convictions for corporal injury (Pen. Code, § 273.5, subd. (a)) and drunk driving (Veh. Code, § 23152, subd. (b)), resulting in a four-year prison sentence and a misdemeanor jail sentence, respectively. On July 12, 2013, Ozuna asked the court to strike both of his strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The strikes were the two 1998 convictions for violations of Penal Code section 245, subdivision (a)(1) (case No. MA012826). He argued the strikes were a little over 15 years old, his contact with the justice system was not the most serious, and the current case was a drug case. The People opposed the request, noting the current case was gang-related and involved a gun, Ozuna had not led a crime-free life, including after the strikes, and the current offenses were strikes. The court denied Ozuna’s request. The court sentenced Ozuna to a total prison term of 28 years to life, consisting of, as to count 1, 25 years to life pursuant to the Three Strikes law, plus three years for the gang enhancement. The court also imposed prison sentences of 28 years to life on each of counts 3 and 6, and stayed those sentences pursuant to Penal Code section 654. 10 Ozuna committed the following juvenile offenses: (1) in 1990, throwing a substance at a vehicle (Veh. Code, § 23110) and vehicle theft (Veh. Code, § 10851); (2) in 1991, vandalism (Pen. Code, § 594, subd. (b)); and (3) in April 1991, two separate burglaries. Each of the above three enumerated offenses (except one of the burglaries) resulted in camp placement. In 1992, Ozuna committed grand theft (Pen. Code, § 487h, subd. (a)), vehicle theft (Veh. Code, § 10851), receiving stolen property (Pen. Code, § 496), and possession of burglar tools (Pen. Code, § 466), resulting in placement in the California Youth Authority. 23  Ozuna claims the trial court abused its discretion by denying his Romero motion as to one of his strikes. We disagree. The court presided at Ozuna’s jury trial on the present offenses and at his court trial on the prior conviction allegations. The court heard argument of counsel on the Romero motion. In light of the nature and circumstances of Ozuna’s current offenses and the strikes, and the particulars of his background, character, and prospects, we hold the trial court properly exercised its discretion by denying Ozuna’s Romero motion. (Cf. People v. Williams (1998) 17 Cal.4th 148, 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 388.)11 We note Ozuna concedes the assaults underlying the strikes were committed against different victims; the fact, if true, Ozuna committed those assaults during a single incident does not affect our holding. 11 Respondent concedes Ozuna’s abstract of judgment must be corrected to reflect his conviction on count 6 was for false compartment activity and not, as the abstract currently and erroneously reflects, for conspiracy to commit a crime. We accept the concession and will direct the trial court to correct Ozuna’s abstract of judgment accordingly. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.) 24  DISPOSITION The judgments of appellants are affirmed. The trial court is directed to forward to the Department of Corrections and Rehabilitation an amended abstract of judgment as to Ozuna reflecting his conviction on count 6 was for false compartment activity. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KITCHING, J. We concur: EDMON, P. J. ALDRICH, J. 25 

746 F.2d 1482 U.S.v.Passman (Jay) NO. 83-3281 United States Court of Appeals,Seventh Circuit. OCT 01, 1984 1 Appeal From: S.D.Ind. 2 AFFIRMED.

240 F.2d 387 56-2 USTC P 10,056 LOCAL 174, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICAand Nugent La Poma, Appellants,v.UNITED STATES of America, Appellee. No. 14746. United States Court of Appeals Ninth Circuit. Nov. 8, 1956. Bassett, Geisness & Vance, Samuel B. Bassett, Seattle, Wash., for appellants. Charles P. Moriarty, U.S. Atty., William A. Helsell, Asst. U.S. Atty., Seattle, Wash., for appellee. Before HEALY, POPE and JAMES ALGER FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 This is a proceeding to obtain discovery as to certain transactions between Local 174 and one Frank Brewster, which are claimed to be pertinent to an examination into the liability of Brewster and his wife for income tax during the years 1943 to 1953, inclusive. Since results obtained by administrative subpoena were unsatisfactory, this case was initiated in the District Court. 2 Frank Brewster has been for many years an employee and officer of Local 174, having acted as secretary-treasurer from 1947 through 1953 and subsequently as president. During the years 1943 to 1947, Brewster filed separate income tax returns. In 1948 he was married to Dorothy Brewster, and in the years 1948 through 1952 husband and wife filed joint income tax returns. 3 In January, 1954, a special agent of the Bureau of Internal Revenue was assigned to audit all such returns. A summons was issued by him to the Local and Nugent La Poma pursuant to § 7602 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7602, directing them to bring all records and books of account of the Local 'which in any way refer or relate to transactions between the said Local 174 and Frank W. Brewster, Dorothy Brewster or any other person acting for Frank W. Bewster and Dorothy Brewster or either of them.' At the time required in the summons, Bassett, attorney for Local 174, Nugent La Poma, alias George Cavano, secretary-treasurer, and Laurite Thayer Agapoff, bookkeeper and accountant for the Local, together with two other officials of the Local, appeared and produced what was claimed to be an abstract from the records together with certain original records of the Local. The Local, through its officials and employees, apparently claiming a right to be the judges of what was relevant to the inquiry then being made by the special agent, refused to produce any other records. No examination of individuals under oath as to materiality or relevancy of all the books in the possession of the Union was held either by the administrative agency or at the proceedings in the District Court. In any event, the results were not deemed to be in accordance with the subpoena, and thereupon on February 8, 1955, a complaint was filed in the United States District Court, alleging that the records were necessary to ascertain the correctness of the returns of Frank W. Brewster which were being examined. It was alleged there was reason to believe that certain disbursements by the Local to or for the benefit of Brewster were not reported on these returns and that, after examination of the books and records, additional taxes might be found to be owed by Brewster and his wife. This complaint was supported by an affidavit of the special agent, which showed that Brewster, during the years 1943 to 1950, had received $35,500.00 in addition to salary designated on the summary of account furnished by the Local as loans which were unsecured. Since the returns do not show any payments of interest on these returns, it is claimed that the records of the Local should be investigated. Another claim was that disbursements were made to Brewster by check for expenses in December, 1952, totalling $1,748.65, and $1,500.00 to Dorothy Brewster in November, 1952, for the purchase of an automobile. The tax returns and the financial report of the Union brought to the administrative officials do not reflect these transactions. From the salary records produced, Brewster apparently received from the Local 'other comp' as follows: 4 1951 $780.00 1952 810.00 1953 780.00 5 These were not reflected in the tax returns. There are other items claimed by the petition as follows: On July 10, 1953, a 1948 GMC horse van was repaired by a Seattle garage and paid for by the Local. In 1951, a Chrysler automobile was repaired by a Seattle garage and paid for by the Local. Brewster purchased a home in California, on which $4,000.00 was paid from funds of the Local. Brewster's personal bill at a club was paid for by the Local in 1952 and 1953. An affidavit shows that the records produced by the Union and the income tax returns do not reflect these transactions. 6 The District Court issued an order as follows: 7 'It is hereby ordered that the defendants shall produce for inspection and copying or photographing at Room 224, 905 Second Avenue Building, Seattle, Washington, on Wednesday, March 30, 1955, and for so long thereafter as may be necessary to afford full and complete inspection to the agents of the plaintiff, the following described books, records and papers which may now be in their possession or control for the years 1943-1953: 8 '(a) Any and all cash books. 9 '(b) Any and all day books. 10 '(c) Any and all bank deposit slips. 11 '(d) Any and all cancelled checks. 12 '(e) Any and all check stubs. 13 '(f) Any and all loan ledger cards. 14 '(g) Any and all individual payroll records. 15 '(h) Any and all retained copies of financial statements filed annually with the Secretary of Labor pursuant to the Labor Management Relations Act of 1947. 16 '(i) Any and all retained copies of tax returns or reports rendered annually to the Collector or Director of Internal Rervenue. 17 '(j) Any and all bookkeeper's work sheets used in the preparation of the above-mentioned financial statements and tax returns.' (Emphasis supplied.) 18 In order that jurisdiction of a United States court to hear and decide a particular proceeding be established, there must be a 'case or controversy.' In attempting to gain access to papers and documents by judicial process, the secretary or his delegate must first summon a person 'having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax.'1 The purpose of this section of the statute was to confer authority upon the tax officials to summon such persons and to conduct such an inquiry. The impact of the enactment is specifically on the taxpayer and not on an independent third party such as the Local. Only through the taxpayer can the Local or its employees be summoned. Access to Local depended upon proof of the factors set up therein connecting it with the taxpayer. 19 Since such a proceeding is in the nature of a search and seizure which has constitutional overtones, especially when directed to a third person, enforcement is not placed in the hands of the executive. It is obvious that the third person has rights of his own. Here a union which has aspects of a secret order may have economic secrets or plans which it does not wish to disclose to agents of the federal government. Such a demand, to be constitutional, must constitute a reasonable exercise of the power granted. A third party is within his rights to refuse such a demand and test the matter in court. 20 Where the response to the administrative officials is unsatisfactory, then the federal court 'shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.'2 The Internal Revenue agent, as delegate of the Secretary, is required to file a case in the federal court. In this manner, in the course of a justiciable controversy, issues are presented as to whether the demand is reasonable and within the scope of the authority granted by Congress to the executive agent and whether there is a violation of the fundamental right of a third party to privacy. 21 The burden is upon the revenue agents in the first instance at such a judicial hearing to show that the demand is reasonable under all the circumstances and to prove that the books and records which they demand are relevant or material to the tax liability of the person liable therefor and the third party is possessed of books or records which contain items relating to the business of the person liable to the tax. 22 'Neither the revenue agent nor the Court has authority under the statute to require the production of memoranda, books, etc., of third parties unless they have a bearing upon the return or returns under investigation. 23 'In Martin, Internal Revenue Agent v. Chandis Securities Co., D.C., 33 F.Supp. 478, 480, the Court, in discussing § 3614, I.R.C., said: 24 "The agents are not the sole judges as to the scope of the examination. 25 "They must satisfy the Court that what they seek may be actually needed. Otherwise, they would be assuming inquisitorial powers beyond the scope of the statute.' 26 'The foregoing case was affirmed by the 9th Circuit in Martin, Internal Revenue Agent, v. Chandis Securities Co., 128 F.2d 731. The sixth and ninth headnotes of the decision are as follows, respectively: 27 "The rights of an internal revenue agent to require production of papers and records for examination are statutory, and in order to obtain the relief granted by statute, he must bring himself within the terms thereof. 26 U.S.C.A.Int.Rev.Code, §§ 3614(a), 3615(a), 3631, 3633.' 28 "Under statute providing that no taxpayer shall be subjected to unnecessary examination or investigation, Bureau of Internal Revenue has no power to make an unnecessary examination or investigation of the books of a third person. 26 U.S.C.A.Int.Rev.Code, § 3631." First National Bank of Mobile v. United States, 5 Cir., 160 F.2d 532, 534-535,3 on petition for rehearing. 29 The fundamental error here affected both parties. Neither seems to have conceived that this proceeding is just another lawsuit. The tax officials assumed that all that was required upon their part was to show that they did not have sufficient data to satisfy them of the correctness of the tax returns of the Brewsters, to suggest the probability that there must be some items or papers relating thereto in the possession of the Local, and to show that possession of all of the books and documents assumed to be under control of the Local was denied them. This demand was simply that a court place the imprimatur of approval as a rubber stamp upon the administrative subpoena without further investigation. This approval would constitute the administrative enforcement officials the judges of relevance and in the meantime deprive the Local of its right of privacy. 30 The subpoena on its face asked for a general search of the papers and documents of the Local. There was obviously no attempt to confine the demand to items which might be relevant or material to the taxes of the Brewsters. The Union was not itself subject to this investigation. It was not here a taxpayer whose books and records were within the jurisdiction of the agency. The distinction often drawn between the rights of a corporation and an individual as to the extent of protection of privacy is not valid here.4 The Local was in the position of a third party and consisted of an association of individuals. Of course, any of these individuals, as officers of the Local or custodians of its records, were subject to such a subpoena. But, as third parties, none was required to produce any item or document unless it was (1) in his possession, (2) relevant to the tax liability of the Brewsters of either of them, or (3) material to the inquiry.5 31 As the record before us indicates, there was a hearing on affidavits and an oral argument. It is not intended to hold that any civil case cannot be submitted in such a manner or in any other way to which the parties can agree with the consent of the trial judge. But here, because of the breadth of the demand of the administrative subpoena and the misconception of the government agents as to scope of the trial, there was no examination of the books and documents by the trial judge. The affidavits submitted were inadequate to support propositions which the agency was required to prove, such as the materiality and relevancy of any document or item specifically described to the tax liability of either of the Brewsters. It was not proved by affidavit or otherwise that Local or any individual had possession, care or custody of any books, documents or papers of any kind containing entries relative to the business of the Brewsters. The propositions here suggested were by-passed. The government agents failed to sustain the burden upon the issues. 32 The defense that the private papers belonging to Local or in custody of some individual were thus subjected to unlawful search, in that many books and papers which were not pertinent to the tax inquiry of the Brewsters but were entirely private, was not passed upon. Neither Local nor any other individual was charged with a crime. Furthermore, the tax liability of neither Local nor any individual except the Brewsters was subject to examination. If it be claimed this defense was considered and adjudicated, the answer is that the final order contains no limitation designed for such protection and therefore is erroneous as matter of law. 33 While this Court does not attempt to dictate procedure, the trial court unquestionably had the right to subpoena the papers of Local, if they were properly designated and proved to be in its possession. By scrutiny, the pertinent, relevant and material part could have been segregated. An appropriate order could then have been made. It is not intended to intimate that the Internal Revenue Bureau would have any right to inspect any book or paper so produced until after hearing and adjudication as to the matters above suggested by the trial judge. But witnesses could have been examined as to all these points under the usual guaranty and, if necessary, inspection could have been made by the trial judge of any document brought into court for these purposes. 34 Although the judge was confronted with an administrative subpoena of unlimited breadth addressed to third parties to the controversy over which the Special Agent had jurisdiction, there was no discrimination in the final order. The trial court apparently assumed it could not do otherwise than to accept the determination of the Special Agent as to relevancy and materiality, and enforce the subpoena. 35 On the other hand, the Local was apparently under the impression that a refusal was all that was necessary. The reliance upon technicalities and its evasive conduct apparently convinced the trial court that there was an attempt to conceal. There was a strong suspicion created that there were relevant records to which the government was entitled. The conduct of the Local with respect to the accountant who was produced on the administrative summons and then had conveniently departed from its employ at the time of the trial seems to indicate an attempt at concealment. 36 It is often stated that the revenue agents cannot be the 'sole judges as to the scope of the examination.' Equally, it is obvious the third party cannot be the unquestioned arbiter of relevancy. Illustrative of the evil which would arise from such a rule is the position of the Union here where there is grave doubt whether the attempt is to guard its own privacy or to throw a veil of protection about its president. And, of course, the third party cannot set up defenses peculiar to the person liable to the tax. These are of no concern to him. However, it may be demonstrated by appropriate proof that there are items or documents in the possession of the Local or some individual of the association which had a real bearing upon the matter under investigation. It is undeniably a matter of the utmost importance that collection of the revenue be not frustrated. 37 These questions are not for arbitrary resolvement by either party, but are justiciable by the Court in the case here presented. Nor is the Court performing an unaccustomed function. The courts determine under the Federal Rules of Civil Procedure, 28 U.S.C.A., what testimony must be given on deposition, whether oral or by interrogatory, and what documents must be produced in response to a judicial subpoena duces tecum. A party summoned before a grand jury has the right to the ruling of the court as to what testimony may be compelled and as to what records may be required to be produced. 38 But, unfortunately, the final order tendered to the court and entered in the proceeding does not show that the court passed upon any of the cardinal questions. It is not found that any specific item or document is relevant to an investigation of the tax liability of the Brewsters. It is not found that any such item or document is material to the inquiry. There is no finding that any specific document or record is in possession of Local or any individual. With exceptions in the record as it stands, any such finding would be clearly erroneous. 39 There was no finding as to the defense of the right of privacy as to items or documents not relevant or material to the tax liability of the Brewsters or either of them. Unless such findings were made, it could not be concluded the demand was reasonable. The direction of the order that all of these records be turned over to the Special Agent for an unlimited time is arbitrary and unreasonable. 40 'He is not entitled in this case to have the Bank produce all its records merely in order for him to go through them for the purpose of ascertaining whether or not the Bank possesses any records which may or may not be relevant to the tax returns under investigation.' First National Bank of Mobile v. United States, 5 Cir., 160 F.2d 532, 534. 41 If the order had required production in court so that testimony could be heard and the judge could exercise an independent judgment as to what documents or entries were relevant, it might have been upheld. The judge could have also determined whether the rights of the Local to privacy were protected and whether it could not be shielded from absurd inconveniences arising from lengthy withholding of its essential records, and other possible unreasonable consequences. 42 It is not the purpose to circumscribe the discretion of the court or attempt to lay down rigid rules of procedure.6 It is only pointed out that the order was not the result of a hearing where judgment was exercised; there was no specification of the items and documents which were relevant and could be examined; and finally there was a blanket turnover to the government agents for an unlimited time. 43 Remanded for further proceedings. 44 POPE, Circuit Judge (dissenting). 45 I dissent. In my view the majority opinion indicates a misapprehension of the nature and character of this proceeding and it arrives at a conclusion which disregards all of the recent decisions both of the Supreme Court and of this court upon this subject. In United States v. Morton Salt Co., 338 U.S. 632, 642, 70 S.Ct. 357, 363, 94 L.Ed. 401, the Supreme Court frankly recognized that it had turned a corner in dealing with cases of this kind and that in adjudging of the propriety of a court order enforcing an administrative subpoena, many of the old concepts had fallen by the wayside. The Court said: 46 'We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan 'no fishing expeditions'. It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions. Compare Jones v. Securities & Exchange Comm., 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015; with United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. 47 'The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it too, may take steps to inform itself as to whether there is probable violation of the law.' (Emphasis mine.) 48 In my view the majority have completely missed this point which is that the right to issue the subpoena and to have it enforced stems from the right of the tax officials to carry on an investigation 'merely on suspicion that the law is being violated, or even just because (they) want assurance that it is not.' Good evidence that the court's opinion belongs to the past is furnished by the circumstance that its main reliance is upon Martin v. Chandis Securities Co., 9 Cir., 128 F.2d 731, and upon First Nat. Bank of Mobile v. United States, 5 Cir., 160 F.2d 532, which itself relies on the Chandis case. (On its facts a very different case than the one now before us.) 49 Further demonstration of the court's error here is furnished by its apparent insistence upon treating the administrative action as though it were an adversary proceeding to which there were named parties. Proceeding along this line, they make it plain that they are treating the union as though it were some third party in no manner affected by the main case. Thus the opinion says: 'The union was not itself subject to this investigation. It was not here a taxpayer whose books and records were within the jurisdiction of the agency'; and, in footnote 4, in referring to the Morton case, they say: 'The defendant company was not a third party to the main inquiry, as was Local 174, here, but was itself the principal party.' 50 It is readily demonstrable that this concept which runs through the majority opinion not only flies in the face of what was said in the Morton Salt case, supra, but fails to take account of what was said in Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 506, 90 L.Ed. 614, to the effect that all that is required to be demonstrated to the court in a case of this character is 'that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.' 51 Even if the union were, as the majority mistakenly assume, in the position of a disinterested bystander, yet it is perfectly well settled that a third person may be required, in connection with administrative proceedings of this character, to produce books and records even though such person is not charged with any improper conduct, or, if it be a tax case, is not under investigation for nonpayment of taxes. 52 In First National Bank of Mobile v. United States 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796, the court summarily affirmed the decision in United States v. First Nat. Bank, D.C., 295 F. 142, 143, in which a bank was required to produce the registers and other books of the bank containing the accounts of certain taxpayers who were under investigation in respect to their income tax returns, and in which the court said: 'This is not a question of a search and seizure of a party's books and papers, but of whether a witness who has information as to a party's dealings may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony.' That case was followed by Falsone v. United States, 5 Cir., 205 F.2d 734, where the summons was addressed not to the taxpayer but to a certified public accountant. In accord are United States v. Peoples Deposit Bank & Trust Co., D.C.Ky., 112 F.Supp. 720, affirmed, 6 Cir., 212 F.2d 86; and In re Albert Lindley Lee Memorial Hospital, 2 Cir., 209 F.2d 122. § 7602 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7602, which expressly authorizes the issuance of summons to produce books, is not limited to the taxpayer but extends to 'any person having possession, custody, or care of books * * * relating to the business of the person liable for tax'. 53 It is obvious, however, that the union here is just as much the subject of investigation and potentially as liable to penalties as is its officer taxpayer. The union was the employer, and under the familiar provisions relating to the withholding of a portion of wages or salary and the payment of the amount deducted from salary, (Title 26 §§ 1621 to 1626 added to the Code in 1943), the union is in this investigation almost as deeply as Brewster himself. § 1623 makes the union liable for the payment of the tax required to be deducted. Title 26 § 145, as amended in 1944, would make the union or its officials liable for criminal penalties, and § 291 provides for civil penalties. So do §§ 147, 1625 and 1626. In short, the proceedings are just as apt to turn up claims and penalties against the union. that is only one reason why I must protest against the use of such loose expressions to the effect that 'such a proceeding is in the nature of a search and seizure which has constitutional overtones, especially when directed to a third person'.1 Here we have neither third person, in that sense, nor any 'constitutional overtones.' Such a reference ignores United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542. 54 Not only does the majority opinion overlook the presently recognized view which the Supreme Court takes of these proceedings, a view which throws into the discard the antiquated views which my brethren distill out of the language of Martin, Internal Revenue Agent v. Chandis, supra, which with other earlier decisions went down the drain after United States v. Morton Salt Co., supra, and Oklahoma Press Pub. Co. v. Walling, supra, but they overlook the special and particular facts presented by this case. No decision, whether among the old discarded opinions, or lining up with more recent decisions of the Supreme Court, is worth anything here unless it fits the facts of this case. 55 The circumstance which is present here is that in order to verify the taxpayer's claim of income and the union's claim that it was withheld and paid over an appropriate deduction from Brewster's compensation, the Bureau investigator was required to rule out and negative the possibility of there being book entries somewhere in the union's books making disclosure of repayments of loans and of numerous other transactions which were proper subjects of the investigation. 56 The showing made before the district court was that Brewster, an officer of Local 174, had numerous financial dealings with the Union, indicating many transactions which were not reflected in his income tax returns. Loans of approximately $35,000 had been made by the Local to Brewster, but his returns showed no payments of interest or deductions for interest expense on such loans, and the annual financial report of the Local showed no such loans. The investigating officers found notes to the Local signed by Brewster in the name of Clearbrook Stock Farm which provided for no payment of interest, and the records available to the investigating officers indicated that these substantial so-called 'loans' from the Local to Brewster were never paid. The evidence abundantly indicated probable cause for a belief that the so-called 'loans' to Brewster were payments of income to him disguised as loans. Under those circumstances it was clearly the duty of the investigating officers to find out whether the loans were ever paid, and to verify their suspicions that they were never paid. In the event of an action to collect the taxes or of a proceeding for redetermination of an asserted deficiency, it would be material and relevant to furnish testimony that the books of the Union failed to disclose, anywhere, the receipt of any repayment. The investigative officer should be able to testify that he had examined the books of the Local and ascertained that they disclosed no such repayments. He cannot give this testimony without having access to the books listed in the court's order.2 That all these books were necessary for this and other purposes indicated by the showing, was a determination of fact which was primarily and peculiarly for the determination of the trial judge. As stated in United States v. United Distillers Product Corp., 2 Cir., 156 F.2d 872, 875, 'In matters so largely of administrative detail, our function should only be to correct abuses of discretion and of power by the trial judge.' 57 The case of First National Bank of Mobile v. United States, supra, upon which the majority rely, and which in turn relied upon Martin, Internal Revenue Agent v. Chandis Securities Co., supra, one of those cases 'early in the history of federal administrative tribunals' whose authority was undercut in Morton Salt Company, supra, is so different upon its facts that it cannot with propriety be cited here. The order there related to a bank which was, differing from the case here, a truly third person. As the opinion of the district court points out, it called for the production by the bank of more than 6,000,000 items covering a five year period, all commingled and relating to all of its customers. Such a case has no resemblance to this. 58 The record before the district court showed the existence of many other details of dealings between Brewster and the Local union which also made an inspection of the records in question necessary to a determination of Brewster's tax liability. Large sums were paid by the Local for car and transportation expenses, and the affidavits showed that the Government had cause to believe that Brewster received amounts in the form of expense allowances. Whether these were supplementary income to him could only be ascertained through an examination of the books. Brewster's wife was shown to have been paid $1500 for the purchase of an automobile. In connection with Brewster's substantial financial investments in race horses and race horse enterprises, it was shown that repair bills on a 1948 GMC horse van were paid by union check; automobile repairs were likewise paid; payments on a home purchased by Brewster and his wife were also paid with union checks; and numerous personal bills to the Horsebreeders Club were paid in the same manner. On the whole the facts shown in the affidavits filed on behalf of the Government bristled with suggestions of irregularities and the trial judge was warranted in holding that there was probable cause to believe that further investigation of the books in question was reasonable and necessary. 59 As stated in United States v. Morton Salt Co., supra, the administrative agency 'has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative doby, it, too, may take steps to inform itself as to whether there is probable violation of the law.' 338 U.S. at page 642, 70 S.Ct. at page 364. All that the trial court was authorized to do was to make the same sort of determination mentioned in Endicott Johnson Corp. v. Perkins, 317 U.S. 501, at page 509, 63 S.Ct. 339, 343, 87 L.Ed. 424: 'The evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary in the discharge of her duties under the Act, and it was the duty of the District Court to order its production for the Secretary's consideration.'3 60 What I have said here sufficiently shows that access to the books listed in the court's order was necessary and that those books and records were relevant and material for the purpose of permitting an investigator to demonstrate, if he could, that entries such as those disclosing repayment of a loan, were missing and not to be found anywhere within the books or records of the union. No further showing of necessity and relevancy than that made here should be required. As stated in United States v. United Distillers Products Corp., supra, 156 F.2d at page 874: 'Nor should it be required to prove the grounds of its belief prior to examination of the only records which provide that ultimate proof.' All that need be established, as stated in the Endicott Johnson case, supra, is that the records sought are not plainly incompetent. 61 In McMann v. Securities and Exchange Commission, 2 Cir., 87 F.2d 377, 379, 109 A.L.R. 1445, it was said: 'Unless such subpoenas are valid, it is impossible to see how the statutes can be enforced at all, or how any wrongdoer can be brought to book.' Until the inspection of the books is ordered and has been completed it is obviously impossible finally to determine whether the material thus uncovered would be relevant or material. This problem was dealt with at length in Westside Ford v. United States, 9 Cir., 206 F.2d 627, at page 632, where we affirmed an order of the same judge. We said: "The standards of materiality or relevancy are far less rigid in an ex parte inquiry to determine the existence of a violation of a statute, than those applied in a trial or adversary proceedings." The reason for this was discussed by Mr. Justice Jackson for the Court in the Morton Salt case, supra. If the investigation produces something which the Government later undertakes to offer in evidence in a proceeding to collect the taxes, it will then be appropriate for the court to rule upon the admissibility of the offered evidence and in that connection determine its materiality and relevancy. As said in Re Albert Lindley Lee Memorial Hospital, 2 Cir., 209 F.2d 123, "It is strictly inquisitorial, justifiable because all the facts are in the taxpayer's hands." 62 What convinces me of the majority's complete misapprehension of the scope of the proposed investigation here involved is the comment, apparently by way of an aside, that 'there was no examination of the books and documents by the trial judge', and the remark-- 'by scrutiny, the pertinent, relevant and material part could have been segregated'; and again, 'Inspection could have been made by the trial judge of any document brought into court for these purposes.' I respectfully suggest that none of these comments have any relation to this case where the legitimate and proper purpose of the Bureau included its preparation to make proof of a negative, namely, that nowhere in any book of the union is there any entry showing that Brewster ever repaid these loans which the Government properly suspects were not loans but disguised modes of compensation. 63 Do my associates suggest that these books must be brought into Judge Bowen's court and that Judge Bowen should read them all for the purpose of satisfying himself that they contained no entry showing repayment of these loans? My associates' opinion now rejects most of the principles cited by this court in Westside Ford v. United State, supra. If I were a member of the legal staff of the Bureau I would now have to conclude that Westside Ford has been overruled, and that whatever validity the principles laid down in United States v. Morton Salt, supra, Oklahoma Press Co. v. Walling, supra, United States v. White, supra, and Endicott Johnson Corp. v. Perkins, supra, may have elsewhere, they can no longer be counted upon in the Ninth Circuit. I believe that before any such thing as that is permitted to happen, this case should be reargued and submitted to the court sitting en banc. 64 This is the second opinion to be filed in this case. The first one, in which I originally concurred, reversed mainly on the ground that the hearing in the court below was based upon proof furnished by affidavits. This reversal was ordered notwithstanding no party had objected to that method of procedure. Thereafter a petition for rehearing was filed which so clearly demonstrated that the former opinion was wrong in the respect mentioned, that it had to be withdrawn. This was because such cases as Endicott Johnson Corp. v. Perkins, supra, Oklahoma Press Co. v. Walling, supra, and Westside Ford v. United States, supra, demonstrated that hearings upon affidavits in such cases, are the almost universal rule. 65 I think that the present effort of the majority to reach the same result by a different route is untenable. The majority ignore the public interest which lies behind the statute here sought to be enforced. Cf. In re Albert Lindley Lee Memorial Hospital, supra. 66 There is one respect in which I think it would be appropriate to modify the trial court's order. It has placed no definite time limitation upon the ordered examination. I would agree to a modification to provide for an appropriate time limit. 1 Internal Revenue Code of 1954, § 7602(2), 26 U.S.C.A. § 7602(2) 2 Internal Revenue Code of 1954, § 7604(a), 26 U.S.C.A. § 7604(a) 3 The language of this Court in Martin v. Chandis Securities Co., 128 F.2d 731, as it appears in the body of the opinion is as follows: 'The (Commissioner's) rights, if any, are statutory, and to obtain the relief granted by the statute he must bring himself within the terms thereof.' At page 735. '* * * such statutes, however, authorize only a 'necessary' examination or investigation. Therefore (Commissioner) appellant has no right to make the examination or investigation here involved, and unless he can show he has a right he is not entitled to relief.' At pages 735-736 4 Such a distinction was drawn in United States v. Morton Salt Co., 338 U.S. 632, 651-652, 70 S.Ct. 357, 94 L.Ed. 401, where, however, the defendant company was not a third party to the main inquiry, as was Local 174 here, but was itself the principal party 5 Internal Revenue Code of 1954, § 7602, 26 U.S.C.A. 7602 6 Compare with the situation reflected in Chapman v. Goodman, 9 Cir., 219 F.2d 802 1 That the majority opinion is not really facing the facts of this case, is manifest from the numerous references to the Local as a 'third party'. The opinion says: 'The impact of the enactment is specifically on the taxpayer and not on an independent third party such as the Local. Only through the taxpayer can the Local or its employees be summoned.' Again the opinion refers to the 'fundamental right of a third party to privacy.' To my mind, all this is as lacking in reason as would be the assertion that when a grand jury's investigation of the conduct of a supposed thief turns up evidence that stolen property had been disposed of to a receiver who knew it was stolen, the receiver was a 'third person' with rights of privacy, and that the grand jury's pursuit of information of his affairs had 'constitutional overtones' 2 One purpose for an inspection of this kind is to permit the investigative officer to ascertain the condition of the books at an early date before they can be altered to meet a later claim of deficiency. If the inspection were limited to some of these books there would be nothing to prevent an evading taxpayer or his controlled union from inserting a notation of payment or of some off-setting item in some other book. The law dows not contemplate that the Government should have to take this chance 3 Cf. Oklahoma Press Pub. Co. v. Walling, supra, 327 U.S. at page 201, 66 S.Ct. at page 501: 'The very purpose of the subpoena and of the order, as of the authorized investigation, is to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one if, in the Administrator's judgment, the facts thus discovered should justify doing so.'

Opinions of the United 2000 Decisions States Court of Appeals for the Third Circuit 3-21-2000 United States v Beckett Precedential or Non-Precedential: Docket 99-1135 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000 Recommended Citation "United States v Beckett" (2000). 2000 Decisions. Paper 62. http://digitalcommons.law.villanova.edu/thirdcircuit_2000/62 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 2000 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Filed March 21, 2000 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 99-1135 UNITED STATES OF AMERICA v. JAMES CARROLL BECKETT, Appellant ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 91-cr-00121-01) District Judge: Honorable Thomas N. O'Neill, Jr. Submitted Under Third Circuit LAR 34.1(a) February 1, 2000 Before: BEFORE: MANSMANN, NYGAARD, and RENDELL, Circuit Judges. (Filed: March 21, 2000) Michael P. Gottlieb, Esq. Vangrossi & Recchuiti 319 Swede Street Norristown, PA 19401 Attorney for Appellant Christopher R. Hall, Esq. Suite 1250 Office of United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Attorney for Appellee OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant James C. Beckett was found guilty of two counts each of robbery and armed robbery, in violation of 18 U.S.C. SS 2113(a) & (d), and then sentenced by the District Court. Because Beckett's trial counsel failed to file a timely notice of appeal on his behalf, the District Court agreed to re-sentence him so he could file a notice of appeal. Becket now argues that the District Court erred by (1) determining that he was a career offender; (2) failing to provide him with his rights of allocution; (3) imposing restitution without determining his ability to pay, and delegating the restitution issue to the Bureau of Corrections to be dealt with at a later date; (4) sentencing him on both charges of armed bank robbery under 18 U.S.C. S 2113(d), and robbery under 18 U.S.C. S 2113(a); (5) permitting ineffective assistance of counsel and allowing reversible error to go uncorrected, when the Assistant United States Attorney referred to Beckett as a "repeat offender" at trial and Beckett's counsel did not object; (6) giving the jury an erroneous and confusing instruction; (7) violating his speedy trial rights; (8) allowing the guilty verdicts on the charges of robbery and bank robbery to stand when they were not supported by the evidence; and (9) allowing the guilty verdict to 18 U.S.C. S 2113(d) to stand when it was not supported by the evidence. The government admits that the District Court erred by failing to make specific findings of fact concerning Beckett's ability to pay restitution, and by sentencing Beckett for both his convictions for armed bank robbery, and the lesser 2 included offense of bank robbery. We will reverse and remand for factual findings on the question of Beckett's ability to pay restitution. We will vacate the sentence imposed for the lesser included offenses of bank robbery, charged in Counts One and Three of indictment of March 26, 1991. We will affirm the District Court as to all other issues. I. FACTS In June, 1990, a man entered the Home Unity Bank branch located in Bensalem, Pennsylvania. He placed a box on the counter before teller Bea Ludwig. This box had an antenna and a lighted button on it. A co-worker, Cassandra Waters, saw the man place the box on the counter. She described him as wearing glasses, and an out of style, uncoordinated suit that caught her attention. She estimated that he was between 5'6" and 5'7" tall. Another bank employee, Anne McCauley, noticed that the man was wearing surgical gloves. The man handed Ludwig a note that stated: Stay calm. Say nothing. Do not look around nor at me  and nothing will happen. Highly-sophisticated remote control bomb receiver facing you. I have a transmitter in my pocket with a gun. Put all of the money in a brown envelope with this note. No red dye. Do not be a fool. Hurry. Wait two minutes after we leave before moving. Ludwig gave the man all of the money in her drawer, $1,093. The man left the box on the counter, and exited the bank. Ludwig then told a co-worker that she had been robbed, and began to cry. Ludwig and the other people in the bank retreated into the vault, and then to a neighboring building to escape what they thought was a bomb. The Bomb Squad used a robot to remove the box from the Home Unity Bank. The robot carried the suspected bomb outside to the parking lot, and broke it apart with a single shotgun shell. The police then gathered all the debris from the bomb as evidence, including a piece of antenna. 3 Cassandra Waters later picked Beckett's photograph out of a photographic line-up, and also identified Beckett as the robber from the witness stand at trial. At the time of this robbery, Beckett lived with his wife, Patricia Fuller, and a son, at the Creekside Apartments on Knights Road in Bensalem, a short distance from the Home Unity Branch that was robbed. The day after the robbery Beckett paid $475 in cash for a 1980 blue Ford Granada. Three months later, a man wearing glasses, a tie, and a trench coat entered the Bensalem branch of Fidelity Bank. He approached teller Maria Sanchez. She described him as approximately 5'4" tall. The man handed Sanchez a note and an envelope. The note instructed her not to look around. It explained that there was a bomb which had been activated. It warned her not to place a dye pack with the money. Sanchez gave the man all the money she had, including a night deposit she had been working on, totaling $9,988. Coincidently, a local resident was out for a walk near the Fidelity Bank and saw a man wearing a trench coat run by. The man was trying to get his right arm out of the coat without using his left hand, as though he was holding something with his left hand. The man then got into a blue car, spun his wheels, and drove away. When the police arrived, a teller reported that the robber had used a bomb. A detective noticed a shoe box with wrapping paper around it near one of the teller windows. The detective evacuated the customers and employees, sealed off the area, and called the Philadelphia Bomb Disposal Unit. The Bomb Squad used a robot to remove the box and transport it to a remote area of the parking lot. It then shot the box with compressed air and water. Detectives collected the debris from the hoax bomb, including gift wrapping paper and the business section from the September 9, 1990 edition of the Philadelphia Inquirer. A detective located gift wrapping paper that was identical to that used in the hoax bomb from the Fidelity Bank robbery in a Pathmark store just opposite Beckett's Creekside apartment. 4 On the day of the Fidelity Bank robbery, Beckett traded in his blue Granada and paid $3,320 in cash for a 1986 Buick Electra. An employee from the used car dealership that sold Beckett the Buick found a glove in the back seat of the Ford Granada that Beckett had traded in. An FBI agent later recovered a brown bag from behind the front seat that contained a broken pair of eyeglasses. Also on the same day, Beckett paid $1,300 to rent a new apartment at 10103 Northeast Avenue in Philadelphia. The next day, he paid $210.94 in cash for a TV. On the following day, he paid $2,314.97 in cash for furniture, a VCR, a stereo, and telephones. These expenditures totaled $7,145.91. His girlfriend, Debra McCole, testified that she dated Beckett during the summer and fall of 1990. Beckett told her that he had rented the apartment at 10103 Northeast Avenue for her, and that he was going to furnish it for her, her son, and the baby she was expecting. He took her to see it after he bought his new car. He also gave McCole between $50 and $100. McCole identified the gift wrapping paper located by detectives at the Pathmark store, and identical to that used in the hoax bomb, as the same gift wrapping paper she had used for her son's birthday on September 30, 1990, the day before the Fidelity Bank robbery. Beckett's wife, Patricia Fuller, told an FBI agent that she had never seen any pay stubs for Beckett around the house, and had not seen him with any cash. In the spring of 1989, Beckett told her that he was paying the rent. In fact, he had not, and they were almost evicted. Fuller took responsibility for the rent, telephone, and utilities in the summer of 1989. Beckett did not provide money towards these bills, although he did promise Fuller he would move her and her son to a new apartment at 10103 Northeast Avenue. Police went to Beckett's new 10103 Northeast Avenue address on October 8, 1990. They found a sock containing $60 behind a vent on the second floor. Later that day, police went to Beckett's old apartment at Creekside and recovered a trench coat from the living room closet that belonged to him. 5 Detective Robert Schutter interviewed Beckett at his Creekside apartment. Beckett stated that he worked for a carpet installer named Joe Regan, earned $80 a day, was paid by check, but had not worked for two or three weeks. Detective Schutter found small pieces of a broken silver metallic antenna in a closet, and a September 9, 1990 edition of the Philadelphia Inquirer that had only one page from the Business Section. Joe Regan later testified that Beckett had worked for him last in September of 1989, not September of 1990 as Beckett had represented to the police. Although Beckett was arrested by local authorities for the Fidelity Bank robbery, the evidence was presented to a federal grand jury, which returned a four-count indictment against Beckett. Counts One and Two charged robbery and armed robbery of the Home Unity Savings Bank in Bensalem, Pennsylvania. Counts Three and Four charged robbery and armed robbery of the Fidelity Bank in Bensalem, Pennsylvania. The armed robbery charges in Counts Two and Four stemmed from Beckett's use of the hoax bombs to secure monies from the tellers. Beckett filed a Motion to Dismiss the Indictment, on the basis of the delay between his state arrest and his federal indictment, which the District Court denied. At trial, an FBI fingerprint specialist testified that she had identified one of Beckett's fingerprints on the newspaper recovered from the hoax bomb used in the Fidelity Bank robbery. An FBI bomb expert examined the remnants of the hoax bombs and opined at trial that they were built either by the same person, or by persons having intimate knowledge of one another's activities. The expert noted that (1) both devices used a small cardboard box as a container; (2) both boxes were reinforced with 3/4 inch masking tape that was manufactured with the same paper; (3) both devices lacked a dummy explosive charge, meaning that there was no simulated switch or simulated explosive that represented a popular concept of what explosives looked like, such as flares, modeling clay, or PVC pipe; and (4) both devices were gift wrapped, an "extremely unusual" characteristic. The agent testified that the FBI laboratory reviews 6 approximately 70 hoax bombs a year, and since 1983, only one other was gift wrapped. At the close of the trial, counsel moved for a directed verdict of acquittal on the ground that the evidence failed to establish the elements of aggravated robbery under 18 U.S.C. S 2113(d). This section provides for a maximum five year sentencing enhancement if the defendant either assaulted any person or put their life in jeopardy by use of a dangerous weapon. The District Court granted this motion to the extent that the government intended to proceed on the "jeopardy" prong of Section 2113(d), but denied the motion as to the "assault" prong. The District Court then instructed the jury on the elements of both bank robbery and assault during the course of bank robbery by use of a dangerous weapon. The jury returned verdicts of guilty on all counts. At the sentencing hearing, the District Court heard arguments on the question of whether the career offender provisions of the Sentencing Guidelines applied in light of Beckett's two prior convictions for bank robbery in 1982. The District Court found that the two prior convictions were not part of a single common plan or scheme, and that the career offender provisions applied. The District Court provided Beckett with the right of allocution at the first sentencing hearing. Beckett addressed the court, asserted his innocence, and argued the evidence from trial. The District Court sentenced Beckett to 262 months of imprisonment on Counts Two and Four -- the armed robbery counts -- and to concurrent terms of 240 months each on Counts One and Three, the statutory maximum sentence for the lesser included offenses of bank robbery. The District Court also directed the Bureau of Prisons to calculate Beckett's release date using the date he was first taken into state custody under a state arrest warrant, six months before his federal arrest. The District Court also ordered that Beckett make restitution in the amount of $9,988 to Fidelity Bank and $1,093 to Home Unity Bank, for a total of $11,081 to be 7 paid on a schedule that would be established by the probation office. Beckett filed a motion pursuant to 28 U.S.C. S 2255, requesting that the District Court vacate his sentence because his counsel failed to file a notice of appeal. The District Court appointed new counsel, granted Beckett's motion, and scheduled a re-sentencing so that Beckett could file a timely appeal from that hearing. At the second sentencing, newly appointed counsel again raised the question of whether the career offender provisions applied, and argued that the sentencing court could depart downward even if those provisions did apply. Beckett testified regarding his planning of the two 1982 robberies. The District Court found Beckett not credible, held that the career offender provisions applied, and reaffirmed its prior ruling that the guidelines range was 262-327 months. The District Court then departed downward because the career offender provisions overstated the defendant's criminal history and risk of recidivism, and imposed concurrent sentences of 180 months on all counts. The District Court also reiterated its instruction to the Bureau of Prisons that the date of Beckett's state arrest shall be used to calculate his release date. Finally, the District Court reinstated the restitution order, but did not make findings of fact regarding the defendant's ability to pay, reasoning that it could adjust the amount at a later date if necessary. II. DISCUSSION A. Section 4B1.1 of the Sentencing Guidelines directs the sentencing court to impose enhanced terms of imprisonment upon defendants who have been convicted of violent or controlled substances offenses, and who previously incurred two or more felony convictions for either crimes of violence or drug trafficking. Beckett argues that the District Court erred by declaring him a career 8 offender, claiming that his two prior bank robbery convictions were part of a common scheme.1 Therefore, he argues, they should have been counted as a single prior conviction, and the career offender enhancement should not have been applied to him. Section 4B1.2(c)(2) states that to be counted towards Section 4B1.1's requirement of two prior felony convictions, each prior felony conviction must be separate from any other prior convictions. Section 4A1.2(a)(2) provides that "[p]rior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence." Therefore, if a defendant has two prior felony convictions, but they stem from related cases, they are treated as a single conviction for purposes of applying the career offender enhancement of Section 4B1.1. The question is when do two felony convictions stem from "related" cases. Application Note 3 to Section 4A1.2 explains: Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing. Beckett's convictions stemmed from (1) the robbery of the Western Savings Bank; and (2) the robbery of the Benjamin Franklin Federal Savings and Loan. Beckett was arrested on April 2, 1982 for both robberies. Beckett's two prior convictions for bank robbery were thus not separated by an _________________________________________________________________ 1. Beckett also challenges his career offender status on the ground that his guilty plea colloquy to one of his prior convictions was defective. However, Beckett failed to raise this argument below or in any collateral attack on that judgment. He has therefore waived that argument. See Curtis v. United States, 511 U.S. 485, 497 (1994) (defendant must challenge prior conviction in separate collateral proceeding). 9 intervening arrest. However, they did not result from offenses that occurred on the same occasion, nor from offenses that were consolidated for trial or sentencing. He was charged by separate federal indictments, the cases were assigned to different federal judges, and the proceedings were never consolidated. The only question is whether they were part of a single common scheme or plan. The Guidelines do not define this term, nor have we addressed the issue.2 However, the United States Court of Appeals for the Seventh Circuit has, and it held that the terms " `scheme' and`plan' are words of intention, implying that [the two offenses] have been jointly planned, or at least that it would have been evident that the commission of one would entail the commission of the other as well." United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992). Similarly, the United States Court of Appeals for the Second Circuit has held that two prior attempted robbery convictions were not related when they occurred four days apart, at different locations, and had separate victims. See United States v. Keller, 58 F.3d 884, 894 (2d Cir. 1995). The Court there rejected the defendant's arguments that because the robberies were part of a "robbery spree," the "two crimes had robbery as their common purpose." Id. The court stressed that temporal proximity does not suffice to show the "close factual relationship" between the two crimes that is needed to prove "relatedness." Id. Once the government has established the existence of two prior violent or drug convictions, the burden for establishing that the prior convictions were part of a _________________________________________________________________ 2. Beckett argues that the Sentencing Guidelines do define "common scheme" in the relevant conduct provisions set forth in Section 1B1.3, and that this definition should apply in the career offender context as well. We reject this argument, as the two provisions are designed to take different considerations into account and have different goals. See United States v. Cowart, 90 F.3d 154, 158 (6th Cir. 1996) (relevant conduct definition of "common scheme or plan" is not binding on career offender determination); United States v. Butler, 970 F.2d 1017, 1024 (2d Cir.), cert. denied, 506 U.S. 980 (1992) (Guidelines do not define "common scheme or plan" as it relates to application note 3 to Section 4A1.2). 10 common scheme or plan lies, logically enough, with the defendant who has access to that information. See United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996). Here, the District Court afforded Beckett the opportunity to produce evidence that his prior robberies were part of a common scheme. This comes down to a question of fact, and we review the District Court's findings on this subject for clear error. See United States v. Butler, 970 F.2d 1017, 1024 (2d Cir.), cert. denied, 506 U.S. 980 (1992). Beckett testified at his second sentencing hearing that he had planned the 1982 robberies and had made hoax bombs to carry them out at the same time. The District Court found that Beckett was not credible on this issue. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though  convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573- 74 (1985) (citations omitted). Moreover, where the District Court's findings are based on credibility determinations, the rule "demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Id. at 575. The District Court's findings were not clearly erroneous. Beckett offered only sparse details regarding his common plan, to the effect that he made two hoax bombs at the same time. Moreover, even assuming the truth of Beckett's assertions, "evidence of a plan simply to commit robberies when and as money is desired or needed cannot be enough by itself to permit the repeat robber to avoid being considered a career offender." Butler, 970 F.2d at 1024-25 (citation omitted). If we discount or disregard Beckett's assertion of a common plan, there is no evidence of a single plan or scheme; the fact that the device and victim were 11 similar does not transmute two offenses into conduct undertaken pursuant to a common plan or scheme. We are satisfied that Beckett's two prior convictions were properly considered as separate felony convictions.3 The District Court therefore did not err by applying the career offender enhancement to Beckett. B. Next, Beckett argues that the District Court erred by failing to provide him with his rights of allocution. The District Court did afford Beckett the right of allocution at his first sentencing hearing. Beckett asserted his innocence, and argued the evidence from trial. The District Court only scheduled a second sentencing hearing because Beckett's first counsel had deprived him of the right to appeal by failing to file a notice of appeal within ten days of the first sentencing. Moreover, Beckett took the stand during the second sentencing hearing, where he was represented by new counsel, and he had every opportunity to address the District Court. Importantly, even were we to assume that Beckett was denied the right of allocution, we conclude that he was not prejudiced because the District Court departed downward from the Sentencing Guidelines range of 262-327 months, imposing a sentence of 180 months. In so holding we follow the Court of Appeals for the Fourth Circuit, which held in United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993), that although it was error to deny a defendant his right of allocution at sentencing, he suffered no prejudice because he was sentenced to the Guidelines minimum. _________________________________________________________________ 3. Our decision in United States v. Hallman , 23 F.3d 821 (3d Cir. 1994), cert. denied, 513 U.S. 881 (1994), is not to the contrary. That case applied Section 4A1.2(a)(1), not (a)(2), to determine whether a prior conviction was part of the same offense for which the defendant was being sentenced. We held that the intent of the defendant at the time of the prior offense governed. Id. at 826 (citing United States v. Ali, 951 F.2d 827, 828 (7th Cir. 1992)). That reasoning supports our decision here. 12 C. Beckett, the government, and we agree that the District Court erred by imposing restitution without determining Beckett's ability to pay. At the close of Beckett's second sentencing hearing, his new counsel requested that the District Court make specific findings concerning Beckett's ability to pay approximately $11,000 in restitution. The District Court declined, on the ground that it could adjust the restitution order after Beckett began to serve his term of supervised release, if necessary. The provisions of 18 U.S.C. S 3663 in effect at the time of Beckett's offenses required sentencing courts to make findings concerning a defendant's present and future ability to pay restitution. The District Court should have followed Section 3663 when it ordered restitution in this case, despite changes made to the law after Beckett committed the robberies. See United States v. Edwards, 162 F.3d 87, 92 (3d Cir. 1998) (ex post facto clause applies to Mandatory Victims Restitution Act of 1996). We therefore remand for findings of fact and re-sentencing on this issue. D. Beckett, the government, and we also agree that the District Court erred by sentencing him concurrently on both the charge of armed bank robbery under 18 U.S.C. S 2113(d), and on the lesser included offense of robbery under 18 U.S.C. S 2113(a). The District Court sentenced Beckett to 180 months on Counts One through Four. Count One charged the robbery of Home Unity Bank, in violation of 18 U.S.C. S 2113(a); Count Two concerned the armed robbery of the same bank, in violation of 18 U.S.C. S 2113(d); Count Three involved the robbery of Fidelity Bank, in violation of 18 U.S.C. S 2113(a); and Count Four referred to the armed robbery of Fidelity Bank in violation of 18 U.S.C. S 2113(d). The concurrent sentences imposed on Counts One and Three for the lesser included offenses of bank robbery violated the Double Jeopardy Clause. See Gov't of Virgin Islands v. Dowling, 633 F.2d 660, 668 (3d Cir.), cert. denied, 449 U.S. 960 (1980). We will vacate the sentence 13 imposed on Counts One and Three, the lesser included offenses of bank robbery. Beckett's sentences for the remaining counts stand. E. Beckett's next argument is that the District Court committed reversible error by allowing the Assistant United States Attorney to refer to Beckett as a "repeat offender." Beckett also argues that his counsel's failure to object to this characterization demonstrates that he received ineffective assistance of counsel. Beckett claims that this reference was made in "blatant disregard" of a pre-trial ruling by which the District Court excluded Beckett's 1982 bank robbery convictions from trial evidence. This misconstrues the record. The Assistant United States Attorney said the following at the start of his opening statement: This case is about a deja vu bank robber, a repeat offender, a man who, within the span of three months, robbed two banks in the same town, Bensalem, using the exact same method, the exact same means. . . . The only question before you, ladies and gentlemen, is whether that man is the defendant, James Carroll Beckett. This statement is not improper. The term "repeat offender" referred solely to the crimes under indictment. At trial, the government never mentioned Beckett's 1982 bank robbery convictions, either directly or indirectly. F. Beckett contends that the District Court gave the jury an erroneous and confusing instruction that warrants reversal. He challenges the following instruction by the District Court to the jury: Now, I wanted to talk to counsel because I think something I said previously may have misled you, and I didn't certainly intend to mislead you. You'll recall I said that your verdict on any count doesn't control 14 your verdict on any other count. In the context of this case, that's not true. And, the reason is that I've just told you that as to the armed robbery counts, Counts 2 and Count 4 -- Count 2 and 4, that in Count 2 the Government must prove beyond a reasonable doubt, first of all, that there was a robbery. All the elements of that [are] charged in Count 1. So, obviously, in Count 1 if you find that the defendant did not commit the robbery alleged in Count 1 in the Home Unity Bank, then, obviously, you're not called upon to determine whether he committed that robbery as an armed robbery. And, in like manner, in Count 3, if you should find that he did not commit the robbery at the Fidelity Bank, well, then obviously in Count 4, he didn't commit an armed robbery of Fidelity Bank. So, on the other hand, if you find that he did commit the robbery in Count 1 at the Unity Bank, then you've got to go on and decide did he also commit an armed robbery at that bank in accordance with the law as I've outlined to you. And, in like manner, if you find in Count 3 that he committed the robbery at the Fidelity Bank, then you must also go on and consider whether he committed an armed robbery at the Fidelity Bank as defined in my instructions to you. Is that satisfactory, counsel? Counsel for Beckett: Yes, Your Honor. Because Beckett did not object to this instruction at trial, we review it only for plain error. See United States v. Tobin, 155 F.3d 636, 641 n.4 (3d Cir. 1998), cert. denied, 525 U.S. 1171 (1999). We hold that the District Court's instruction clearly instructed the jury that (1) it should acquit the defendant of armed robbery if it acquitted him of robbery; and (2) that it had to consider separately the evidence on armed robbery -- and determine whether the government had met all of the required elements -- even if it found Beckett guilty of the lesser included offense of robbery. This is not error. 15 G. Next, Beckett believes his right to a speedy trial was violated because of the nine month delay between his arrest by local authorities for the Fidelity Bank robbery and his federal trial for both the Fidelity Bank and Home Unity Bank robberies. We disagree. The five year statute of limitations for non-capital federal offenses governs the time limit within which the federal government must bring an indictment for an offense. See 18 U.S.C. S 3282. Here, the government brought the Home Unity Bank charges within one year of the robbery, and the Fidelity Bank charges within nine months. The federal Speedy Trial Act governs post-accusation periods of delay. See 18 U.S.C. S 3161. It requires the government to bring defendants to trial within 70 days of their indictment or first appearance before a judicial officer of the court in which the charge is pending, whichever date last occurs. See 18 U.S.C. S 3161(c)(1). The delay between Beckett's federal arraignment on April 11, 1991, and the commencement of his jury trial on June 10, 1991, was 60 days. This period is reduced to 35 days when permissible delay for the disposition of pre-trial motions is excluded. Beckett argues that the federal government nonetheless violated his Due Process rights by intentionally delaying its indictment for a period of six months after the Fidelity Bank robbery and his local arrest. He fails, however, to specify how he was prejudiced. Beckett can make out a claim under the Due Process Clause only if he can show both (1) that the delay between the crime and the federal indictment actually prejudiced his defense; and (2) that the government deliberately delayed bringing the indictment in order to obtain an improper tactical advantage or to harass him. See United States v. Lovasco, 431 U.S. 783, 789-90, 795-96 (1977); United States v. Ismaili, 828 F.2d 153, 168 (3d Cir. 1987), cert. denied, 485 U.S. 935 (1988). Beckett has not shown either actual prejudice or improper delay. He does not, for instance, claim that items of evidence or documents were lost, witnesses became 16 unavailable, or that memories faded as the result of the six month delay. See United States v. Marion, 404 U.S. 307, 325-26 (1971) (appellee failed to demonstrate that 38 month delay actually dimmed memories, made witnesses inaccessible, or caused evidence to be lost). Nor has he shown that the federal government delayed the indictment deliberately to harass him or to gain some improper advantage. The Due Process Clause does not require prosecutors to file charges as soon as probable cause exists, or even at the point where the government's investigation, though incomplete, has assembled sufficient evidence to prove guilt beyond a reasonable doubt. See Lovasco, 431 U.S. at 791-95. We see no evidence of improper delay while the federal government was building its case against Beckett regarding the robbery of the Home Unity Bank, an armed robbery not charged by the state authorities. H. Beckett challenges the sufficiency of the evidence against him regarding the charges of robbery and bank robbery, and believes that the District Court erred as a matter of law by allowing these verdicts to stand. We must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's decision. See United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992) (citing Burks v. United States , 437 U.S. 1, 17 (1978)). We do not weigh evidence or determine the credibility of witnesses in making this determination. See Casper, 956 F.2d at 421. The evidence presented at trial, and described in our summary of the facts above, amply established that Beckett was the individual who robbed the Home Unity and Fidelity Banks. The evidence was both circumstantial and direct. There was clearly sufficient evidence on which a reasonable jury could rely to reach its verdicts. I. Finally, Beckett argues that the District Court erred by allowing the guilty verdict for armed robbery under 18 17 U.S.C. S 2113(d) to stand, when it was also allegedly not supported by the evidence. In this regard, Beckett argues that the government failed to establish that the hoax bombs were dangerous weapons. We disagree. Subsection 2113(a) of the bank robbery statute provides in pertinent part that: Whoever, by force or violence, or by intimidation, takes  . . . from the person or presence of another . . . money . . . belonging to . . . any bank . . . shall be . .. imprisoned not more than twenty years. Subsection 2113(d) provides a five year increase in the maximum sentence for any person who, in committing . . . any offense defined in subsections (a) or (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device. . . . The District Court precluded the government from arguing that the "jeopardy" prong of Section 2113 applied in its closing. It instructed the jury only on the"assault" provision: In order to sustain its burden of proof for the crime of armed bank robbery as charged in Count 2 of the indictment, the Government must first prove the three elements to be proved for bank robbery, as already stated. In addition, the Government must also prove that the defendant deliberately assaulted the Home Unity Savings Bank employees by the use of a dangerous weapon or device while taking the money. . . . The term dangerous weapon or device means any object that can be used by one person to inflict severe bodily harm or injury upon another person. The weapon or device need not actually be capable of inflicting severe bodily harm or injury upon another to be dangerous, rather, a weapon or device may be considered to be dangerous if it instills fear in the average citizen creating an immediate danger that a violent response will follow. 18 The District Court's instructions accurately explained the elements of the assault prong of Section 2113(d). See Simpson v. United States, 435 U.S. 6, 11-12 n.6 (1978) (phrase "by the use of a dangerous weapon or device" modifies both "assault" and "jeopardy" provisions of subsection (d) regardless of the comma that followed the term "assaults any person"). The instructions also accurately explained that"[t]he weapon or device need not actually be capable of inflicting severe bodily harm or injury upon another to be dangerous, rather, a weapon or device may be considered to be dangerous if it instills fear in the average citizen creating an immediate danger that a violent response will follow." In McLaughlin v. United States, 476 U.S. 16 (1986), the Supreme Court held that an unloaded gun is a "dangerous weapon" as that term is used in Section 2113(d). The Court rested its holding on three conclusions, each of which, the Court held, was independently sufficient: First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon. Id. at 17. The bombs, although they turned out to be fakes, would reasonably have instilled fear in an average citizen, thereby creating an immediate danger that a violent response would ensue. They did instill such fear in this case. The Home Unity hoax bomb had an antenna and a light. The victim teller cried after the robber left. Detectives responding to both robberies called the Bomb Squad, causing the evacuation of numerous people from the buildings. The Bomb Squad used a robot to remove and destroy both hoax bombs. Clearly, they instilled fear in all those who saw them, and provoked a police response. They therefore 19 qualify as dangerous weapons under Section 2113(d). See United States v. Hamrick, 43 F.3d 877, 882-83 (4th Cir.) (en banc), cert. denied, 516 U.S. 825 (1995) (a"fake bomb, as a matter of law, may constitute a dangerous weapon[under S 2113(d)], regardless of its actual capabilities, when a victim confronted with it is placed in reasonable expectation of danger") (quoting United States v. Spedalieri, 910 F.2d 707, 709 (10th Cir. 1990)). III. CONCLUSION In summary, we will reverse and remand for factual findings on the question of Beckett's ability to pay restitution. We will vacate the sentence imposed as to the lesser included offenses of bank robbery, in violation of 18 U.S.C. S 2113(a), charged in Counts One and Three of the indictment of March 26, 1991. We will affirm the District Court as to all other issues. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 20 

537 U.S. 1208 CERVANTES-LLAMAS, AKA CARRASOv.UNITED STATES. No. 02-8139. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari denied. Reported below: 46 Fed. Appx. 539.

230 F.3d 6 (1st Cir. 2000) KEVIN WEEKS, Plaintiff, Appellant,v.SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant, Appellee. No. 00-1356 Uniteed States Court of Appeals For the First Circuit Submitted June 22, 2000Decided October 17, 2000 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Francis M. Jackson and Jackson & MacNichol on brief for appellant. Jay P. McCloskey, United States Attorney, Arthur J. Fried, General Counsel, Charlotte J. Hardnett, Principal Deputy General Counsel, John M. Sacchetti, Associate General Counsel for Litigation, and Etzion Brand, Supervisory Attorney, on brief for appellee. Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Boudin, Circuit Judge. Per Curiam. 1 Claimant Kevin Weeks applied for social security disability benefits and supplemental security income in March 1998, claiming to have become recently disabled. An administrative law judge ("ALJ") ruled in his favor. The Appeals Council, acting on its own motion, vacated the recommended decision and remanded for further proceedings. See 20 C.F.R. 404.977(a) ("The Appeals Council may ... remand a case in which additional evidence is needed or additional action by the [ALJ] is required."). The remand order, explaining that the ALJ's findings were not supported by substantial evidence, identified four issues that needed further development and enumerated six specific actions for the ALJ to undertake. Claimant sought judicial review, but the district court dismissed for lack of jurisdiction, finding that the remand order was not a "final decision of the Commissioner" within the meaning of 42 U.S.C. 405(g). Claimant now challenges this ruling on appeal. 2 Claimant states that there is no case law on point. In fact, various courts have held that an Appeals Council order remanding a case to the ALJ for further proceedings is not an appealable final decision. See, e.g., Culbertson v. Shalala, 30 F.3d 934, 937 n.3 (8th Cir. 1994); Duda v. Secretary of Health & Human Servs., 834 F.2d 554, 555 (6th Cir. 1987) (per curiam); Dawson v. Sullivan, 136 F.R.D. 621, 623 (S.D. Ohio 1991); accord 4 Social Security Law & Practice 55:28 (Matthew J. Canavan et al. eds., Supp. 1994); cf. Director, O.W.C.P. v. Bath Iron Works Corp., 853 F.2d 11, 12-16 (1st Cir. 1998) (holding that order of Benefits Review Board remanding case to ALJ was not appealable "final order" under 33 U.S.C. 921(c)). 3 Claimant provides no reason to reach a different result. Contrary to his assertion, the agency regulations draw a clear distinction between a "decision" and a "remand" in this context. See, e.g., 20 C.F.R. 404.979 ("the Appeals Council will make a decision or remand the case to an [ALJ]"); id. 404.901 (defining the two terms separately); accord Carolyn A. Kubitschek, Social Security Disability 6:43, at 401-02 (1994) ("When the Appeals Council has granted review of a claim, it has several dispositional options. First, it may remand the claim to the ALJ for a new hearing or for further consideration.... The second option of the Appeals Council is to issue a final decision on the claim.") (footnote omitted). 4 Nor does claimant derive any support from Forney v. Apfel, 524 U.S. 266(1998). The issue there--whether a remand order entered by a district court is appealable under 28 U.S.C. 1291--implicates entirely separate concerns. Indeed, the Court cited Director, O.W.C.P. and related cases and, rather than casting doubt on their validity, distinguished them on the ground that they "arose in less closely analogous circumstances." 524 U.S. at 272. Forney is thus inapplicable. 5 For these reasons, which were set forth at greater length by the magistrate judge, we conclude that an order of the Appeals Council vacating an ALJ's recommended decision and remanding for further proceedings is ordinarily not an appealable final decision.1 6 Appeal dismissed. NOTES: 1 Whether a different result might obtain where the Appeals Council's action is challenged on constitutional or related procedural grounds, see Thomas v. Bowen, 693 F. Supp. 950, 953-54 (W.D. Wash. 1988), or whether such a challenge might give rise to some other form of relief, see Pierce v. Heckler, 620 F. Supp. 320 (D. Ariz. 1985), are matters that need not be determined here. Similarly, we need not decide whether other exceptions may exist (e.g., based on a showing of grave hardship). Cf. Director, O.W.C.P., 853 F.2d at 14.

303 So.2d 334 (1974) UNITED FILIGREE CORPORATION et al., Petitioners, v. FONTAINEBLEAU HOTEL, CORP., Respondents. No. 46226. Supreme Court of Florida. November 7, 1974. Certiorari denied. 298 So.2d 455.

222 B.R. 178 (1998) In re Linda M. CARVELL, Debtor. Linda M. CARVELL, Plaintiff/Appellee, v. BANK ONE, LAFAYETTE, N.A., et al., Defendant/Appellant. BAP No. EP 97-114. United States Bankruptcy Appellate Panel of the First Circuit. June 1, 1998. Stanley Greenberg, Esq., Portland, ME, on brief for Appellant. Gerald S. Cope, Esq., Portland, ME, on brief for Appellee. Before QUEENAN, HILLMAN and VAUGHN, Bankruptcy Judges. QUEENAN, Bankruptcy Judge. Section 551 of the Bankruptcy Code states that there is "preserved for the benefit of the estate" any transfer avoided under the estate representative's various avoidance powers, including the representative's powers under section 544(a), the so-called "strong arm clause." 11 U.S.C. § 551 (1994). This appeal presents the question whether such preservation grants the estate priority over other liens even though under state law the other liens have priority over the avoided lien. We hold it does not. Linda M. Carvell (the "Debtor"), as debtor in possession, has commenced this action seeking (i) to avoid and preserve for the bankruptcy estate the judicial lien of Jack Keenan Marsh ("Marsh") and (ii) to have the Marsh lien declared senior to other judicial liens. Bank One, Lafayette, N.A. (the "Bank") appeals from the order of the Bankruptcy Court for the District of Maine which (i) avoided and preserved the Marsh lien and (ii) denied the Bank's motion for summary judgment on its cross-claims and counterclaim. The facts are stipulated. At the time of her 1996 chapter 11 filing, the Debtor owned jointly with her mother a *179 heavily encumbered home at 75 Garfield Street, Saco, York County, Maine. The home, whose fair market value is $110,000, is subject to a valid first mortgage with a balance of $83,344.76. Junior to the first mortgage are the following asserted judicial liens, each of which were timely recorded with the York County Registry of Deeds in the year indicated: (i) 1991 Marsh execution lien in the sum of $19,105.89; (ii) 1992 execution lien of Paul P.Columbo, d/b/a PC2 & Associates ("Columbo") in the sum of $2,060.85; (iii) 1993 execution lien of the Bank in the sum of $13,016.22; (iv) 1994 execution lien of J.W.P. Telecom, Inc. ("J.W.P.") in the sum of $1,572.75; (v) 1995 execution lien of 267 Foreside Associates ("Foreside") in the sum of $15,679.65. The parties agree that the Marsh execution lien, although timely recorded, is defective. Under Maine law, unless within twenty days after the recording of its execution a creditor gives its debtor a statutorily prescribed notice of the lien, the lien "becomes void and loses its status as a perfected security interest with respect to the right, title and interest of any particular judgment debtor and with respect to any other creditors of the judgment debtor. . . ." Me.Rev.Stat. Ann. tit. 14, § 4651-A (West 1997).[1] Marsh did not give the Debtor the required notice. The other lienors, including the Bank, did give the notice. The Debtor's complaint joined as defendants all the recorded lienors. The Bank filed cross-claims and a counterclaim requesting a declaration that its lien enjoys priority over the Marsh lien and the liens asserted by J.W.P. and Foreside.[2] The Bank concedes it is junior to the Columbo lien. The Debtor moved for summary judgment, requesting avoidance of the Marsh lien, preservation of that lien for the benefit of the bankruptcy estate, and a declaration that the other asserted liens are void. In its response the Bank requested summary judgment on its cross-claims and counterclaim. The bankruptcy court denied the Bank's motion, declaring the Marsh lien avoided and preserved for the benefit of the bankruptcy estate. Although its order contains no express declaration that the Marsh lien has priority over the other liens, the court's denial of the Bank's motion is an implied declaration of such priority. In both her complaint and summary judgment motion the Debtor asks only in a general way for avoidance of the Marsh lien, without specifying whether she is relying upon either or both of sections 541 or 544(a) of the Bankruptcy Code. Because title 14, section 4651-A of the Maine Revised Statutes gives rights to both a debtor and other creditors for failure of a creditor to give the notice, the Debtor as debtor in possession may proceed under either section. Her prepetition rights under the Maine statute are intangible property interests passing to the bankruptcy estate as "interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1) (1994). And as debtor in possession the Debtor enjoys the powers of a judicial lien creditor (as well as a bona fide purchaser of real property). 11 U.S.C. § 544(a) (1994). But if the Debtor seeks to preserve the lien for the benefit of the bankruptcy estate, the exercise of her section 541 prerogatives are not sufficient. In preserving avoided liens, section 551 refers to liens avoided under section 544, with no mention of section 541.[3] Under principles of notice *180 pleading we treat the complaint as an exercise of the Debtor's section 544(a) rights, as did the bankruptcy judge. The Debtor contends the other liens are junior to the Marsh lien because the Marsh lien was on record when they were recorded. We disagree. Section 4651-A declares the Marsh execution lien void in the absence of the prescribed notice. True, the version of the statute in effect at the relevant time states that lack of notice makes the lien "void . . . with respect to the right, title and interest of any particular judgment debtor," without the language of the 1997 amendment adding "and with respect to any other creditors of the judgment debtor. . . ." But if the lien is void as to the debtor, other lienors necessarily have priority over it. And, as mentioned, legislative history indicates the amendment was not intended to effect any substantive change. In short, the Marsh lien is junior to the liens of the Bank and the other creditors. Section 551 does not change this. It merely states that a lien avoided under section 544 (and the other enumerated sections) is "preserved for the benefit of the estate. . . ." Preservation is just that. It simply puts the estate in the shoes of the creditor whose lien is avoided. It does nothing to enhance (or detract from) the rights of that creditor viz-a-viz other creditors. This is the holding of all decisions to which we have been directed. See, e.g., C & C Co. v. Seattle-First Nat'l Bank (In re Coal-X Ltd., "76"), 103 B.R. 276 (D.Utah 1986) (avoided and preserved landlord's lien retains its relative priority), rev'd on other grounds, 881 F.2d 865 (10th Cir.1989); Connelly v. Marine Midland Bank, N.A., 61 B.R. 748 (W.D.N.Y. 1986) (in avoiding and preserving creditor's unperfected security interest trustee steps into shoes of that creditor and is junior to later perfected security interest); In re DeLancey, 94 B.R. 311 (Bankr.S.D.N.Y.1988) (avoidance under section 544 and preservation of unperfected attachment lien gives trustee no priority over later perfected lien); Tennessee Mach. Co. v. Appalachian Energy Indus., Inc. (In re Appalachian Energy Indus., Inc.), 25 B.R. 515 (Bankr.M.D.Tenn. 1982) (unperfected and preserved lien remains junior to later perfected lien). See also Retail Clerks Welfare Trust v. McCarty (In re Van De Kamp's Dutch Bakeries), 908 F.2d 517 (9th Cir.1990) (security interest avoided as a fraudulent transfer and preserved by trustee remains senior to later perfected lien even though later lienholder might also have been successful in avoiding security interest as a fraudulent transfer). The bankruptcy judge's reasoning does not appear to be inconsistent with this. His decision accompanying the order states only that the avoided lien is preserved for the estate pursuant to section 551. As authority he cites his prior decision in Foley v. Peoples Heritage Bank (In re Foley), 1994 WL 178150 (Bankr.D.Me.1994), aff'd, No. 94-178-P-C (D.Me. Jan. 19, 1995). Foley involved no question of priority, only lien preservation. Section 551 therefore accomplishes nothing for the bankruptcy estate in circumstances such as those here. This case is quite different from, for example, the case where a perfected lien is avoided as a preference and there are other perfected liens which are junior to the avoided lien. In that situation, without preservation of the avoided lien, avoidance benefits only the junior lienors. That would be a windfall for them because it gives them a benefit they could not obtain outside of bankruptcy. See H.R.Rep. No. 95-595, at 376 (1977) (section 551 "prevents junior lienors from improving their position at the expense of the estate when a senior lien is avoided."); S.Rep. No. 95-989, at 91 (1978) (same). The judgment of the bankruptcy court is vacated. The bankruptcy court shall enter judgment declaring the Marsh lien void and the other liens (except the lien of J.W.P.) valid with a priority in accordance with their chronology. The default of J.W.P. remains unaffected by this appeal. NOTES [1] This is the statute's wording as it was amended by Chapter 20 of Public Law 1997, effective June 26, 1997. The amendment added the phrases "and loses its status as a perfected security interest" and "and with respect to any other creditors of the judgment debtor." Thus neither phrase appeared in the statute prior to the Debtor's bankruptcy filing. However, the statement of fact accompanying the amendment states it is a "clarification" of existing law rather than a change. We therefore treat the amendment as a clarification. The Debtor does not contend otherwise. [2] J.W.P. failed to answer and was defaulted. [3] Section 551 reads as follows: "Any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or any lien void under section 506(d) of this title, is preserved for the benefit of the estate but only with respect to property of the estate." 11 U.S.C. § 551 (1994).

142 B.R. 528 (1991) In re TOBAGO BAY TRADING COMPANY, f/k/a World Bazaar, Inc., a/k/a World Bazaar and a/k/a Curious Cargo, Debtor. WB, LTD., successor in interest to JMB Income Properties, Ltd.-X, d/b/a Pasadena Town Square and d/b/a Collin Creek Mall, Plaintiff, v. TOBAGO BAY TRADING COMPANY, Defendant. Bankruptcy No. A90-02195-SWC, Adv. No. 90-0252A. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. December 20, 1991. *529 S. Jarvin Levison, Arnall, Golden & Gregory, Macon, Ga., for plaintiff. Robert A. Bartlett, Darren K. Hensley, Hicks, Maloof & Campbell, Atlanta, Ga., for debtor/defendant. ORDER STACEY W. COTTON, Bankruptcy Judge. Before the court are cross motions for summary judgment of plaintiff, WB, Ltd., successor in interest to JMB Income Properties, Ltd.-X ("JMB") (referred to collectively as "lessor"), and of defendant debtor, Tobago Bay Trading Company, ("debtor"). Plaintiff seeks an order requiring debtor to pay postpetition rent during the first 60 days of this case. In the alternative, plaintiff seeks allowance of such postpetition rent as an administrative expense. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). The cross motions are granted in part and denied in part based on the findings and conclusions set forth hereinafter. FACTS The parties have stipulated the following facts. In 1988 debtor became lessee of certain nonresidential premises located in Pasadena, Texas pursuant to an assignment of a lease agreement (the "Pasadena Lease"). The Pasadena Lease provided that it would expire on July 31, 1994. Lessor received a letter from debtor dated June 27, 1989, which stated that debtor wished to terminate the Pasadena Lease on July 31, 1989. Debtor offered to pay lessor base rent for a twelve month period as compensation for the termination. On July 10, 1989, lessor informed debtor that a termination of the Pasadena Lease would not be possible until a replacement tenant was located. On or about January 5, 1990, debtor vacated the premises, removed all of its personal property, cancelled all utility services, and returned the keys to lessor. On January 9, 1990, lessor acknowledged by letter its receipt of the keys and stated that debtor's surrender of possession did not constitute a termination of the Pasadena Lease. Lessor did not relet the premises within 60 days after debtor filed its Chapter 11 petition. In 1988 debtor became lessee of certain nonresidential premises located in Plano, Texas pursuant to an assignment of a lease *530 agreement (the "Collin Creek Lease"). The Collin Creek Lease provided that it would expire on October 31, 1993. On January 9, 1990 debtor vacated the premises, removed all of its personal property, cancelled all utility services and returned the keys to lessor. Lessor was aware of debtor's abandonment at the time it occurred. Lessor accepted the keys, reentered the premises and placed a sign in the window inviting rental inquiries. Lessor never notified debtor that it would not accept the termination of the lease or that debtor would continue to be liable on the lease. Subsequently, lessor entered into a new lease with another tenant for a term which commenced on April 1, 1990. On February 16, 1990, debtor filed its Chapter 11 petition. Thereafter, on March 12, 1990, debtor filed a motion to reject a number of unexpired leases, including the Pasadena and Collin Creek leases. At the hearing debtor agreed to withdraw its motion as to this lessor and to resolve their dispute in a separate adversary proceeding. The parties agreed that even though debtor was withdrawing its motion as to plaintiff, the debtor could still assert in this adversary that the motion to reject was effective at the earlier of the date the debtor communicated its intent to reject or the date that it filed its motion to reject. Transcript of hearing held May 3, 1990 at p. 14, In re Tobago Bay Trading Co. (No. 90-02195). Therefore, no determination of the legal effect of debtor's prepetition abandonment and surrender of either of these leases was made prior to or within 60 days after the order for relief in this Chapter 11 case. Likewise, neither of the leases were assumed by debtor. On May 1, 1990, this adversary proceeding was commenced and WB, Ltd. was thereafter substituted as plaintiff in this proceeding by consent order entered January 4, 1991. DISCUSSION Federal Rule of Civil Procedure 56, made applicable herein pursuant to Bankruptcy Rule 7056, provides for the granting of summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The local rules require that a motion for summary judgment be accompanied by a statement of material facts not in dispute. L.R. 220-5, N.D.Ga. The stipulation of facts submitted by the parties shows that no material facts are in dispute. Therefore, this matter may be resolved on the cross motions for summary judgment. Lessor asserts claims for postpetition rents under the leases for 60 days postpetition as an administrative expense pursuant to 11 U.S.C. § 365(d)(3). Debtor alleges that its prepetition abandonment and surrender of these leased premises terminated the leases, the leases never became property of the estate, and debtor is, therefore, not liable for any postpetition rent. In the alternative, debtor asserts that it rejected the leases postpetition either by conduct which demonstrated an unequivocal intent to reject or the filing of its motion to reject. In order to resolve these issues, the court must determine when the leases were rejected and the priority, if any, to be accorded to lessor's claim. A debtor's estate is comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). If debtor's abandonment and surrender of the leased premises terminated the leases, then the leases never became property of the estate. Under such circumstances, the estate would not be obligated to make any rental payments to the lessor. The court must look to applicable state law to determine whether debtor's abandonment and surrender terminated the leases prepetition. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). Generally, a federal court must apply the law that would be applied by the courts of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While these leases relate to Texas property, neither the lessor nor debtor has raised the choice of law issue or provided the court with any state statutes or case law relevant to the issue of debtor's *531 prepetition termination. Therefore, the court will apply Georgia law. See Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir.1985). However, even if the court applied Texas law, its resolution of this issue would be the same. Under Georgia law when a lessee abandons leased property without cause the lessor can either accept the lessee's offer to terminate the lease, in which case a rescission of the lease occurs, or the lessor can refuse to accept the offer to terminate and hold the lessee liable for its obligations under the lease. See Vaswani v. Wohletz, 196 Ga.App. 676, 677 (1990); Noble v. Kerr, 123 Ga.App. 319, 319-20 (1971). If by their communication and conduct both the lessee and lessor express a mutual desire to terminate the lease then, even in the absence of an express agreement to rescind, "a cancellation or rescission of the contract is effected by [the implied] agreement of the parties. . . ." Vineyard Village-Georgia, Inc. v. Crum, 136 Ga.App. 335, 337, 221 S.E.2d 208 (1975) (quoting Wright v. Kilgo, 212 Ga. 712, 713, 95 S.E.2d 7 (1956)). An implied agreement to terminate was found where, after the lessee's abandonment, the lessor solicited the return of the keys from the lessee and, without notifying the lessee that it would be liable for rent for the remainder of the lease term, attempted to relet the premises. Ledsinger v. Burke, 113 Ga. 74, 76-77, 38 S.E. 313 (1901); see also Vineyard Village-Georgia, Inc. v. Crum, 136 Ga.App. 335, 337-38, 221 S.E.2d 208 (1975). The court found that the lessor's actions and lack of notice to the lessee demonstrated an intent to terminate the lease. Ledsinger, 113 Ga. at 76-77, 38 S.E. 313. However, in similar cases where the lessor notified the lessee that he intended to hold the lessee responsible for rent, the courts have consistently held that the lessor did not accept the lessee's surrender of possession even though the lessor retook possession of the property and ultimately relet it. Crolley, et al. v. Crow-Childress-Mobley # 2, 190 Ga.App. 496, 497, 379 S.E.2d 202 (1989); Kimber, et al. v. Towne Hills Dev. Co., 156 Ga.App. 401, 402, 274 S.E.2d 620 (1980) (citations omitted); Schachter v. Tuggle, Co., 8 Ga. App. 561, 562, 70 S.E. 93 (1911). Application of Texas law to this issue would not lead to a different result because Texas case law also provides that a lease may be terminated by the mutual agreement or conduct of the parties. Whitman v. Cearley, 251 S.W.2d 960, 961 (Tex.Civ.App.—Galveston 1952); see also Blakeway v. General Electric Credit Corp., 429 S.W.2d 925, 928-29 (Tex.Civ. App.—Austin 1968); Walter E. Heller & Co., Inc. v. Allen, 412 S.W.2d 712, 720 (Tex.Civ.App.—Corpus Christi 1967). "A surrender by operation of law occurs (under Texas law) where the parties without express surrender do some act or acts from which it is necessarily implied that they have both agreed to consider the surrender as made-acts which are necessarily inconsistent with the continued relation of landlord and tenant." Barret v. Heartfield, 140 S.W.2d 942, 945 (Tex.Civ.App.—Beaumont 1940) (quoting 35 C.J. 1086). Thus, under both Georgia and Texas case law, an agreement to terminate a lease may be implied by acts of the lessor where surrender of the premises is accepted and the lessor thereafter acts inconsistent with the lessee's rights. Therefore, the court's determination of this issue is the same under either Georgia or Texas law. In the present case, it is undisputed that the parties did not execute a written agreement to terminate the Pasadena Lease. The correspondence between the parties shows that lessor did not actually or impliedly accept debtor's offer to terminate. Upon being informed of debtor's desire to terminate, lessor responded that it would release debtor from liability under the lease only if a replacement tenant was found. After debtor abandoned and surrendered the premises on January 5, 1990, lessor reiterated this position. It is undisputed that lessor did not relet the premises before the expiration of the 60 day period after which the lease was deemed automatically rejected. There simply is no evidence in this record to support debtor's contention of a prepetition termination. Therefore, the court finds that the Pasadena *532 Lease was not terminated by debtor prior to filing its Chapter 11 petition. On January 9, 1990 debtor surrendered and abandoned the Collin Creek Mall premises by removing its property and signs and turning over the keys. The lessor accepted the surrender of the keys, took possession of the premises, placed a sign in the window inviting rental inquiries, and thereafter leased the premises to a new tenant. The undisputed facts show that lessor made no attempt to enforce the lease or ever informed debtor that it would continue to be liable for rent for the remainder of the lease term. Thus, contrary to its actions in connection with the Pasadena Lease, lessor never indicated that it intended to hold the debtor liable for future rent under the Collin Creek Lease. No notice of default was given to the debtor as a result of its surrender of these premises. Rather, lessor accepted the surrender and exercised exclusive dominion and control over the Collin Creek premises which was inconsistent with debtor's right of occupation. As a result of reentry and placing a sign in the window inviting leasing inquiries, lessor obtained a new tenant who took possession on March 18, 1990 and began paying rent on April 1, 1990. Lessor's conduct evidenced an acceptance of debtor's offer to terminate the Collin Creek Lease, from which an agreement to terminate may be implied. Therefore, the court finds and concludes that the Collin Creek Lease was terminated prepetition upon debtor's surrender of the premises. Next, the court will consider whether debtor rejected the Pasadena Lease postpetition. Section 365(a) provides that "the trustee, subject to the court's approval, may assume or reject any . . . unexpired lease of the debtor." 11 U.S.C. § 365(a). The Code does not expressly state what a debtor must do to reject a lease. Debtor contends that by abandoning and surrendering the premises, and thereby demonstrating an unequivocal intent to reject this lease prepetition, it made a valid rejection which became effective upon the filing of its Chapter 11 petition. In the alternative, debtor contends that the filing of its motion to reject effected a rejection of the Pasadena Lease on the day the motion was filed. Lessor asserts that rejection cannot occur until the court grants a debtor's motion to reject. Consequently, lessor contends that debtor never rejected this lease and that it was in effect until deemed automatically rejected 60 days after the order for relief. There is a split of authority concerning what is necessary to reject a lease. The minority view is that, despite the qualifying phrase "subject to the court's approval" in § 365(a), conduct showing an unequivocal intent to reject is sufficient. See In re 1 Potato 2, Inc., 58 B.R. 752, 754-55 (Bankr. D.Minn.1986); In re By-Rite Distrib., Inc., 55 B.R. 740, 742-43 (Bankr.D.Utah 1985). These courts reason that the quoted language does not require court approval as a condition precedent to rejection. Rather, the debtor may reject a lease unilaterally, subject to review and reversal by the court. Id. The weight of authority, however, holds that a lease is not rejected until the court grants a debtor's motion to reject. See In re D'Lites of America, Inc., 86 B.R. 299 at 302 (Bank.N.D.Ga.1988); In re Revco D.S., Inc., 109 B.R. 264, 267 (Bankr. N.D.Ohio 1989); In re Guardian Equip. Corp., 18 B.R. 864, 867 (Bankr.S.D.Fla. 1982); In re National Oil Co., 80 B.R. 525, 526 (Bankr.D.Colo.1987). "The plain, unequivocal language of Section 365(a) indicates that court approval is required before a lease can be rejected." In re National Oil, 80 B.R. at 526. This court agrees with the majority view. Section 365 is designed in part to ensure greater factual certainty as to the date of rejection of a lease. Id.; In re Swiss Hot Dog Co., 72 B.R. 569, 573 (Bankr.D.Colo. 1987). The minority interpretation of § 365(a) discourages a lessor from reletting property vacated by a debtor until after the court has approved the debtor's rejection because the lessor might become obligated to rent the premises to two lessees if the debtor's motion is denied. See In re Revco, 109 B.R. at 269. This interpretation places the burden created by the debtor's indecision on the lessor and contravenes clear Congressional intent that the debtor timely perform all of its obligations under a lease until the lease is assumed or rejected. Therefore, the court concludes that neither *533 debtor's prepetition abandonment and surrender nor the postpetition filing of its motion to reject effected a rejection of the Pasadena Lease. Under § 365(d)(4) "if the trustee does not assume or reject an unexpired lease of nonresidential real property . . . within 60 days after the date of the order for relief . . . then such lease is deemed rejected. . . ." 11 U.S.C. § 365(d)(4). No order was entered approving debtor's rejection of the Pasadena Lease, or extending the time for assumption or rejection. Thus, the Pasadena Lease continued in effect until it was deemed rejected sixty days after the order for relief on April 17, 1991. The court will next consider the appropriate treatment and priority to be accorded to the lessor's claim. Section 365(d)(3) states that "[t]he trustee shall timely perform all the obligations of the debtor . . . arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is . . . rejected, notwithstanding section 503(b)(1) of this title. . . ." 11 U.S.C. § 365(d)(3) (emphasis added). Again, there is a split of authority on this issue. Some courts have held that although § 365(d)(3) requires the court to order the payment of rent as it becomes due under a lease, it does not abrogate the court's duty under 11 U.S.C. § 503 to determine whether those payments qualify for administrative expense status. See In re Orvco, Inc., 95 B.R. 724, 727-28 (9th Cir. BAP 1989); In re Patella, 102 B.R. 223, 225-26 (Bankr. D.N.M.1989). This view holds that the debtor is required to pay rent under an unrejected lease as it comes due. However, if the debtor does not fulfill this obligation, the lessor must establish, pursuant to § 503(b)(1)(A), that the rent is reasonable and necessary to preserve the estate in order to receive administrative expense priority for its claim. If the lease is ultimately rejected, it would seem unlikely that a lessor could make this showing. This view only serves to discourage debtor compliance with § 365(d)(3) and encourage defaults. The majority of courts hold, however, that the plain meaning of the provision "notwithstanding section 503(b)(1) of this title" obviates the requirement that administrative expense status be proven. These courts have found "that rents which come due during the first 60 days of a Chapter 11 case are allowable as administrative expenses without necessity for the prior notice and hearing otherwise required by 11 U.S.C. § 503(b)(1)." In re Cardinal Indus., Inc., 109 B.R. 738, 740 (Bankr. S.D.Ohio 1989); In re Wingspread Corp., 116 B.R. 915 (Bankr.S.D.N.Y.1990); see also Cobb Place Associates v. C.T. Crew, Ltd.; (In re C.T. Crew, Ltd.), No. 90-07368 (Bankr.N.D.Ga. January 22, 1991); In re Cardian Mortgage Corp., 127 B.R. 14, 21 B.C.D. 1131, 1132 (Bankr.E.D.Va.1991); In re Granada, Inc., 88 B.R. 369, 371-72 (Bankr.D.Utah 1988); In re Dieckhaus Stationers of King of Prussia, Inc., 73 B.R. 969, 971-72 (Bankr.E.D.Pa.1987); In re Longua, 58 B.R. 503, 504-05 (Bankr. W.D.Wis.1986). This court finds this to be the better view because it comports with the plain language of § 365(d)(3). As stated by the Supreme Court, where "the statute's language is plain, `the sole function of the courts is to enforce it according to its terms.'" United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). Therefore, the court concludes that lessor's claim for rent that came due under the Pasadena Lease during the first 60 days postpetition is entitled to treatment as an administrative expense priority. Consistent with the requirement that obligations be performed timely, rent obligations should ordinarily be paid concurrently with other administrative expenses. However, if it appears that the estate will be unable to pay all administrative claims in full, payment may be deferred as the lessor is entitled only to its pro rata share of available funds. In re Dieckhaus, 73 B.R. at 973; In re Cardinal, 109 B.R. at 742. The debtor's ability to pay has not been raised as an issue in this case. The parties have stipulated that debtor was obligated by the Pasadena Lease to pay rent of $5,660.55 per month. Two *534 rental payments came due during the 60 days after the order for relief. Therefore, lessor's Chapter 11 administrative expense claim for the postpetition rent under the Pasadena Lease is allowed in the sum of $11,321.10. Because the Collin Creek Lease was terminated prepetition, lessor's claim for postpetition rent under the Collin Creek Lease is denied. Thus, the cross motions for summary judgment are allowed in part and denied in part. Accordingly, WB, Ltd., as successor in interest to JMB Income Properties, Ltd.-X, d/b/a Pasadena Town Square, is granted summary judgment against the debtor in the sum of $11,321.10, for two monthly rental payments under the Pasadena Lease which amount is allowed as a Chapter 11 administrative expense. The debtor is granted summary judgment against plaintiff WB, Ltd., and WB, Ltd.'s claim for Chapter 11 administrative expense priority for two monthly rental payments under the Collin Creek Lease is denied. Judgment shall be entered accordingly. IT IS SO ORDERED.

31 F.Supp.2d 403 (1999) Gibbon W. FARQUHARSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. Civ.A. 98-4000(MTB). United States District Court, D. New Jersey. January 6, 1999. *404 Gibbon W. Farquharson, Newton, NJ, pro se. Daniel J. Gibbons, Assistant U.S. Attorney, United States Attorney's Office, Newark, NJ, for Respondent. OPINION BARRY, District Judge. Petitioner, Gibbon W. Farquharson, is presently detained at the Sussex County Correctional Center in Newton, New Jersey awaiting deportation. On August 25, 1998, he filed a petition with this court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Immigration and Naturalization Service ("INS" or "respondent") opposed the petition asserting, among other things, that this court does not have jurisdiction because of the recently enacted Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. XXXXX-XXX, (collectively as "1996 amendments"). For the reasons which follow, the petition will be granted and the case will be remanded for action consistent with this opinion. I. Factual Background Originally from Jamaica, petitioner has resided in the United States as a legal permanent resident for twenty-seven years. Petitioner has four children each of whom was born in the United States. In 1990, petitioner pled guilty in the Superior Court of New Jersey, Passaic County, to possession of a controlled substance with intent to distribute within 1000 feet of school property, and to resisting arrest. He was sentenced on April 19, 1990 to a term of incarceration of five years with a minimum period of eighteen months before being eligible for parole. On July 12, 1994, the INS issued an order to show cause why petitioner should not be deported under what were then § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i), and § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii), of the Immigration and Naturalization Act ("INA"). INA § 241(a)(2)(B)(i) provided in pertinent part that: [a]ny alien who at any time after entry has been convicted of a violation of ... any law or regulation ... relating to a controlled substance ... is deportable. INA § 241(a)(2)(A)(iii) provided that "[a]ny alien who is convicted of an aggravated felony at any time after entry is deportable."[1] Petitioner contested deportability but the Immigration Judge found petitioner deportable under both sections. In July 1995, petitioner filed a request for a waiver of deportability under § 212(c) of the INA. See 8 U.S.C. § 1182(c) (1994). At that time, INA § 212(c) vested the Attorney General with discretion to waive the deportation of an otherwise deportable resident alien.[2]See Katsis v. INS, 997 F.2d 1067, *405 1070 (3d Cir.1993) (holding that, despite its plain language, INA § 212(c) applies to deportable aliens as well as excludable aliens), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994). When presented with an application for a waiver pursuant to INA § 212(c), an immigration judge was "required to balance the positive and adverse factors in determining whether a waiver was warranted, and to justify his or her decision, whether in favor or against granting a waiver...." Goncalves v. Reno, 144 F.3d 110, 114 (1st Cir.1998), petition for cert. filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) (No. 98-835). The factors to be considered included length of prior residence in the United States, family and personal ties to the United States, positive employment history, community service involvement, evidence of good character, and proof of genuine rehabilitation for those who committed crimes. See, e.g., Katsis, 997 F.2d at 1074 (listing factors); Henderson v. Immigration and Naturalization Service, 157 F.3d 106, 109 (2d Cir.1998) (same), petition for cert. filed Dec. 17, 1998 (No. 98-996); Wallace v. Reno, 24 F.Supp.2d 104, 106 (D.Mass.1998) (same); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978) (same). According to the Immigration Judge, petitioner's request for a waiver was not acted upon because at some point he was moved out of the custody of the New Jersey Department of Corrections and placed in a county jail whereupon his case was administratively closed. When petitioner reentered the state prison system, the case was recalendered and resumed. On April 24, 1996, with petitioner's § 212(c) waiver application pending, the AEDPA was signed into law. The AEDPA effected significant changes to the INA. As relevant here, section 440(d) of the AEDPA rendered aliens who were deportable by reason of having committed offenses relating to controlled substances ineligible for discretionary waivers.[3]See AEDPA § 440(d) (amending INA § 212(c), 8 U.S.C. § 1182(c) (1996)).[4] In June of 1996, the BIA held that AEDPA § 440(b) could not be applied retroactively to aliens who had requested waivers before the AEDPA was enacted. See In re Soriano, Int. Dec. No. 3289, 1996 WL 426888 (BIA June 27, 1996). Shortly thereafter, however, the Attorney General overruled the BIA and determined that AEDPA § 440(d) was to be applied retroactively to all pending cases regardless of the date of the waiver application. See Matter of Soriano, Int. Dec. No. 3289 (Op.Att'y Gen. Feb. 21, 1997) (beginning at 38). Constrained by AEDPA § 440(d) and Matter of Soriano, the Immigration Judge found petitioner ineligible for a § 212(c) waiver and, on September 12, 1997, denied his application. On March 30, 1998, the BIA dismissed petitioner's appeal, noting that it was bound by the opinion of the Attorney General absent a contrary decision by the Court of *406 Appeals of the Third Circuit.[5] This petition followed. II. Discussion Petitioner argues that (1) AEDPA § 440(d) should not have been applied retroactively to deny him a hearing on the merits of his § 212(c) waiver application, and (2) the INS should not be able to use his plea of guilty as the basis for deporting him because he was unaware that he could be deported if he pled guilty to a drug-related crime. The INS responds, first, that this court does not have jurisdiction to consider petitioner's habeas petition given the 1996 amendments to the INA. It contends, as well, that the Immigration Judge did not err in applying AEDPA § 440(d) to petitioner and that petitioner cannot attempt to avoid deportation by collaterally attacking his guilty plea. Whether this court has jurisdiction is, of course, the first issue to be decided. If this court finds that jurisdiction exists, it must then determine whether petitioner's claims fall within the scope of review permissible under § 2241. These apparently clear-cut issues are neither clear-cut nor simple. This court, however, concludes that one of petitioner's claims — whether AEDPA § 440(d) should have been applied to prohibit consideration of petitioner's application for a waiver even though that application was filed before the AEDPA was enacted — is properly before it, and will be addressed. A. Jurisdiction under 28 U.S.C. § 2241 The INS argues that this court does not have jurisdiction because the AEDPA and the IIRIRA amended the INA such that habeas jurisdiction was abolished leaving only review in the courts of appeals pursuant to 8 U.S.C. § 1252 (1996). Before addressing the jurisdictional argument, however, and to place that argument in some context, it is appropriate to review the applicable statutory framework for review of orders of removal together with the changes made to the INA by the AEDPA and the IIRIRA. Parenthetically, this review has convinced this court, and should convince the reader, of the accuracy of one judge's bemoaning of the wording of the INA as "an excellent example of Congress's penchant for hastening the aging process of judges." 1. Statutory Framework for Judicial Review Under § 106(a) of the INA, as amended in 1961, "the sole and exclusive procedure for ... the judicial review of all final orders of deportation" was by filing a petition for review with the appropriate court of appeals. INA § 106(a), 8 U.S.C. § 1105a(a) (1994); see also Massieu v. Reno, 91 F.3d 416, 421 (3d Cir.1996). The INA also contained a habeas provision which provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1994). Everything changed when, on April 24, 1996, the AEDPA was signed into law. For starters, AEDPA § 401(e) expressly repealed the habeas provision of the INA and replaced it with AEDPA § 440(a), which provides in pertinent part: any final order of deportation against an alien who is deportable by reason of having committed [certain enumerated criminal offenses including offenses related to controlled substances], ... shall not be subject to review by any court. 8 U.S.C. § 1105a(a)(10) (1996). Although no effective date was set forth, the Court of Appeals for the Third Circuit, along with numerous other circuits, has held that AEDPA § 440(a) became effective on the date on which the AEDPA was enacted. See Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir. 1996) (noting similar decisions by the Second, Fifth and Ninth Circuits), cert. denied, ____ U.S. ____, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997). In addition, the Third Circuit has held that AEDPA § 440(a) applied to all petitions for review pending on the date of *407 enactment. Id.; Morel v. INS, 144 F.3d 248, 250-51 (3d Cir.1998). On September 30, 1996, only five months after the AEDPA was signed into law, Congress further amended the INA by enacting the IIRIRA. The IIRIRA provided that its amendments to the INA would become effective "the first day of the first month beginning more than 180 days after the date of enactment," or April 1, 1997. See IIRIRA § 309(a). The IIRIRA contained two sets of provisions: the transitional provisions and the permanent provisions. The transitional provisions, which are not codified in the United States Code, provide that the permanent IIRIRA provisions do not generally apply to aliens who are involved in exclusion or deportation proceedings commenced prior to April 1, 1997. See IIRIRA § 309(c)(1).[6] The transitional provisions also contain a section similar to AEDPA § 440(a). Transitional IIRIRA § 309(c)(1) provides that in cases in which the final order of deportation or exclusion was entered more than thirty days after the effective date of the IIRIRA, or after October 30, 1996, there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed [certain enumerated criminal offense including offenses related to controlled substances] .... IIRIRA § 309(c)(4)(G). The permanent provisions of the IIRIRA repealed, in its entirety, the former section of the INA that governed judicial review, 8 U.S.C. § 1105a, and the judicial review provisions were relocated to 8 U.S.C. § 1252. Under the IIRIRA permanent provisions, venue still primarily resides in the courts of appeals for review of orders of removal. See 8 U.S.C. § 1252(b)(2) (1996). However, following the lead of AEDPA § 440(a) and transitional IIRIRA § 309(c)(4)(G), section 306(a)(2)(C) of the permanent IIRIRA provisions provides that [n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [certain enumerated offenses including offenses related to controlled substances].... IIRIRA § 306(a)(2)(C), codified as 8 U.S.C. § 1252(a)(2)(C) (1996). The statutory scheme governing judicial review is further complicated by permanent provision § 306(a) of the IIRIRA which added section 242(g) to the INA (codified as 8 U.S.C. § 1252(g) (1996)). Section 242(g) of the INA is an expansive provision stating that: [e]xcept as provided in this section [8 U.S.C. § 1252] and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. INA § 242(g), 8 U.S.C. § 1252(g). Although, as noted above, the permanent IIRIRA provisions do not generally apply to aliens whose deportation proceedings were initiated prior to April 1, 1997, INA § 242(g) is unique and "shall apply without limitation to claims arising from all past, pending or future exclusion, deportation, or removal proceedings...." See IIRIRA § 306(c)(1). As an initial matter, it must be determined whether § 242(g) applies to petitioner, thereby restricting him to judicial review — or lack thereof — under 8 U.S.C. § 1252, or whether petitioner comes within the IIRIRA transitional provisions governing judicial review.[7]*408 Petitioner's deportation proceeding was commenced on July 12, 1994 and, thus, under IIRIRA § 309(c), the transitional provisions should apply to him "without regard to [the IIRIRA permanent] amendments." See IIRIRA § 309(c)(1)(B). On the other hand, however, petitioner filed his petition with this court on August 25, 1998, well after INA § 242(g) became effective[8] and presumably applied retroactively to his petition. See IIRIRA § 306(c)(1) (stating that INA § 242(g) "shall apply without limitation to claims arising from all past, pending or future exclusion, deportation, or removal proceedings"). Some courts have concluded that INA § 242(g) is not applicable to criminal aliens such as petitioner whose deportation proceedings were pending before the effective date of the statute for if it were it would render meaningless the transitional provisions of the IIRIRA governing judicial review, such as IIRIRA §§ 309(a)(2)(C) and 306(c)(4)(G). Noting, explicitly or implicitly, the maxims that whenever possible all statutory provisions should be given effect and that the specific takes precedence over the general, those courts have given full effect to those transitional provisions. See, e.g., Perez v. Reno, 18 F.Supp.2d 674, 680 (W.D.Tex. 1998); Sabino v. Reno, 8 F.Supp.2d 622, 633-34 (S.D.Tex.1998); Avelar Cruz v. Reno, 6 F.Supp.2d 744, 749-50 (N.D.Ill.1998). Other courts have simply applied INA § 242(g) to aliens in petitioner's circumstances. See, e.g., Goncalves, 144 F.3d at 118; Jean-Baptiste v. Reno, 144 F.3d 212, 218 (2d Cir.1998); Magana-Pizano v. INS, 152 F.3d 1213, 1221-22 (9th Cir.1998) (applying § 242(g) because bound by Hose v. INS, 141 F.3d 932 (9th Cir.1998), withdrawn and reh'g en banc granted, 161 F.3d 1225, 1998 WL 848048 (9th Cir. Dec.2, 1998)), opinion amended by 159 F.3d 1217 (9th Cir.1998), petition for cert. filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) (No. 98-836); Pak v. Reno, 8 F.Supp.2d 1001, 1003 (N.D.Ohio 1998). The Court of Appeals for the Third Circuit has not addressed this issue. This court will not attempt to untangle what has been termed a "statutory Gordian knot," see Marriott v. Ingham, 990 F.Supp. 209, 212 (W.D.N.Y.1998), but for the following reason will instead assume that § 242(g) applies to petitioner. Transitional provision IIRIRA § 309(c)(4)(G) provides, in relevant part, that "there shall be no appeal in the case of an alien who is inadmissible or deportable by reason of having committed [an enumerated criminal offense]...." This section was replaced by permanent IIRIRA provision § 306(a)(2)(C), made applicable by § 242(g), which provides that "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an enumerated criminal offense]...." 8 U.S.C. § 1252(a)(2)(C), IIRIRA § 306(a)(2)(C). Both provisions, therefore, albeit in somewhat different language, bar petitioner, as an alien deportable for having committed one or more specified criminal offenses, from obtaining judicial review of his final order of deportation. Section 1252(a)(2)(C), however, contains seemingly more restrictive language — "no court shall have jurisdiction." — when compared to the transitional provision which provides that "no appeal" may be taken. Therefore, if habeas jurisdiction still exists under INA § 242(g), jurisdiction most certainly exists under the arguably less stringent transitional provision. See Avelar Cruz, 6 F.Supp.2d at 751 (noting that the use of the narrow term "appeal" shows that transitional provision IIRIRA § 309(c)(4)(G) does not foreclose § 2241 review). *409 2. Jurisdiction under 28 U.S.C. § 2241 Informed by the statutory framework detailed above, this court will return to where it began and reach the question of whether it has jurisdiction to consider petitioner's habeas petition. The INS, as noted earlier, argues that habeas review has been eliminated by the 1996 amendments which substantially changed judicial review under the INA. The INS points, first, to AEDPA § 401(e) which expressly repealed the section of the INA that formerly authorized habeas review, namely 8 U.S.C. § 1105a(a)(10). Moreover, it argues that INA § 242(g) states in no uncertain terms that "notwithstanding any other provision of law[,]" "no court shall have jurisdiction" to review any immigration decision "[e]xcept as provided in this section [8 U.S.C. § 1252]." 8 U.S.C. § 1252(g). Because 8 U.S.C. § 1252(a)(2)(C) explicitly provides that "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [a criminal offense dealing with controlled substances,]" the INS asserts that this court lacks jurisdiction over this petition. Id. at 406-407. The INS, this court concludes, is wrong. Despite the seemingly stringent language of the IIRIRA and the AEDPA with respect to judicial review, not all review over final removal orders against criminal aliens has been extinguished by the 1996 amendments. Certainly, there is little dispute that in 1996 Congress withdrew jurisdiction from the courts of appeals to review such orders. Certainly, too, however, most courts which have considered the issue of whether any avenue of review remains have found that it does. Parenthetically, while not directly addressing the issue, the Court of Appeals for the Third Circuit dismissed the petition for review in Salazar v. Haro because jurisdiction had been withdrawn by AEDPA § 440(a), but stated that "[t]o the extent ... that constitutional rights applicable to aliens may be at stake, judicial review may not be withdrawn by statute." See Salazar-Haro, 95 F.3d at 311. The court then cited to Felker and Hincapie-Nieto, thereby suggesting the availability of habeas corpus review even after the 1996 amendments. Id. at 311 (citing to Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) and Hincapie-Nieto v. INS, 92 F.3d 27, 29-31 (2d Cir.1996)). Similarly, in Morel, the Third Circuit dismissed the petition for review because of AEDPA § 440(a) but commented that petitioner had not asserted an unconstitutional deprivation of his rights, noting the INS's concession that "§ 440(a) does not preclude Article III court review of claims of `substantial Constitutional error.'" Morel, 144 F.3d at 251. Following the lead of numerous courts, including the First, Second, and Ninth Circuits, this court holds that it has jurisdiction over this petition brought pursuant to 28 U.S.C. § 2241.[9]See, e.g., Henderson, 157 F.3d at 130 ("aliens convicted of specified criminal offenses — who are precluded by the AEDPA and the IIRIRA from seeking direct review of their deportation, exclusion, or removal orders in the courts of appeals — may file habeas petitions in the district courts pursuant to 28 U.S.C. § 2241[ ]"); Jean-Baptiste, 144 F.3d at 219 ("in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241[ ]"); Goncalves, 144 F.3d at 126 (holding that after the enactment of the AEDPA and the IIRIRA, the proper forum for a criminal alien to challenge his or her final deportation order is in the district court through a petition for habeas corpus pursuant to § 2241); Magana-Pizano, 152 *410 F.3d at 1222 (same); Billett v. Reno, 2 F.Supp.2d 368, 372 (W.D.N.Y.1998) (finding jurisdiction under § 2241 after 1996 amendments); Pak, 8 F.Supp.2d at 1007 (same); Sandoval v. Reno, 1997 WL 839465 at *6 (E.D.Pa. Dec.30, 1997) (same); Jurado-Gutierrez v. Greene, 977 F.Supp. 1089, 1091 (D.Colo.1997) (same); Gutierrez-Martinez v. Reno, 989 F.Supp. 1205, 1208-09 (N.D.Ga. 1998) (collecting cases and stating that "[t]his court agrees with the majority in concluding that § 2241 preserves the writ of habeas corpus for aliens subject to deportation, such as the Petitioner [a criminal alien]"); Wallace v. Reno, 24 F.Supp.2d 104 (D.Mass.1998) (entertaining § 2241 petition for criminal alien without jurisdictional discussion); see also Lee v. Reno, 15 F.Supp.2d 26, 39-40 (D.D.C.1998) (finding that district court has jurisdiction pursuant to § 2241 or, alternatively, under "constitutionally-required habeas"); but see Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) (finding that INA § 242(g) divests district court of jurisdiction over § 2241 petitions). The availability of habeas corpus under 28 U.S.C. § 2241 to challenge removal orders has long been recognized. See Jean-Baptiste, 144 F.3d at 218; Goncalves, 144 F.3d at 120. Prior to 1961, habeas corpus was the primary remedy in immigration cases. See Magana-Pizano, 152 F.3d at 1220. Indeed, "the primary historical use of the writ of habeas corpus was precisely against executive detentions." See Henderson, 157 F.3d at 121 (also citing to Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), which stated that "the historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). Even after the INA habeas provision, i.e. INA § 106(a)(10), was enacted, traditional habeas review existed and the "two provisions ... work[ed] hand-in-hand." Lee, 15 F.Supp.2d at 34; see also Magana-Pizano, 152 F.3d at 1217 n. 6; Trevor Morrison, Note, Removed from the Constitution? Deportable Aliens' Access to Habeas Corpus Under the New Immigration Legislation, 35 Colum.J.Transnat'l L. 697, 698-99 n. 10 (1997). This court will not read INA § 242(g), which states that 8 U.S.C. § 1252 shall govern judicial review "notwithstanding any other provision of law[,]," 8 U.S.C. § 1252(g), and 8 U.S.C. § 1252(a)(2)(C), which provides that no court shall have jurisdiction over a final removal order against a criminal alien "notwithstanding any other provision of law[,]" as repealing habeas relief under § 2241. However broad this language appears to be, it is clear that if Congress wished to repeal traditional habeas jurisdiction under § 2241, it must have done so expressly. See Lee, 15 F.Supp.2d at 39 ("notwithstanding" language of INA § 242(g) does not expressly repeal § 2241 jurisdiction as required by Supreme Court). The Supreme Court was recently confronted with the issue of whether the AEDPA amendments to 28 U.S.C. § 2244(b), which eliminated the Court's authority to consider appeals of successive habeas petitions found to be without merit by a circuit court, were also meant to eliminate the Court's original habeas jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. See Felker v. Turpin, 518 U.S. 651, 656-58, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). The Court concluded, as it had in Ex parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868), that Congress must make explicit reference to the statute granting jurisdiction if it wished to repeal habeas jurisdiction. Id. at 658-61, 116 S.Ct. 2333. Because Congress did not expressly state that it was either eliminating or restricting the Court's jurisdiction under §§ 2241 and 2254, the Court would not find a repeal by implication and the traditional habeas avenues for review remained intact. Id. Likewise, here, the 1996 amendments do not expressly state that they repealed habeas jurisdiction under 28 U.S.C. § 2241. Moreover, it is important to note, the IIRIRA was enacted after Felker, with Congress presumably well aware that if it wished to restrict or repeal the traditional habeas remedy, it must use specific language to do so. See Goncalves, 144 F.3d at 122; Lee, 15 F.Supp.2d at 39. The INS argues that Felker and Ex parte Yerger do not apply in the immigration context because Congress has constructed a statutory review scheme that deals comprehensively with the subject matter at issue. *411 In such cases, it continues, the "repeal by implication" argument is inappropriate because Congress has demonstrated a "fairly discernable" intent under that scheme requiring deportable aliens to bring any and all claims to the courts of appeals. This court does not agree. First, the INA, as amended, does not indicate that any and all claims of deportable aliens must now be before the courts of appeals on petitions for review. Indeed, the amended INA specifically provides that, in some instances, matters may be brought before the district courts. For example, judicial review of determinations made under 8 U.S.C. § 1225(b)(1) is available in habeas proceedings albeit only as to limited issues, such as whether a petitioner is an alien. See 8 U.S.C. § 1252(e)(2). Another section of the amended INA designates the United States District Court for the District of Columbia as the exclusive forum for a limited category of cases. See 8 U.S.C. § 1252(e)(3)(A). Second, the cases which the INS cites in support of its contention that a repeal by implication argument is inappropriate are inapposite because the schemes of statutory review addressed in those cases did not impinge on traditional habeas concerns and, thus, the cases do not address repeals of habeas jurisdiction. The INS cites, for example, to Argentine Republic v. Amerada Hess Shipping, 488 U.S. 428, 438, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989), in which Congress's decision to comprehensively deal with the area of foreign sovereign immunity was found to preclude review under the Alien Tort Statute even without clear language of repeal. It points, as well, to United States v. Fausto, 484 U.S. 439, 453-55, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), in which the Civil Service Reform Act repealed the "Back Pay Act's implication" permitting review. In the context of immigration, however, the Supreme Court concluded that although the Immigration Act of 1917 precluded judicial intervention "except insofar as it was required by the Constitution," habeas jurisdiction remained. See Heikkila v. Barber, 345 U.S. 229, 235, 73 S.Ct. 603, 97 L.Ed. 972 (1953). Here, "as was the case in Yerger and Felker, there is no indication that Congress intended to take the dramatic — and arguably unconstitutional — step of repealing the habeas statute with roots traceable to our nation's beginnings." Mojica v. Reno, 970 F.Supp. 130, 160 (E.D.N.Y.1997). The INS also points to AEDPA § 401(e), which explicitly repealed the INA habeas provision, § 106(a)(10), in support of its contention that in 1996 Congress clearly intended to, and did in fact, repeal all habeas review. Again, this court disagrees. AEDPA § 401(e) repeals, by its very language, INA § 106(a)(10) and that section only. Congress was undoubtedly aware that, after 1961, habeas review was available under either 28 U.S.C. § 2241 or INA § 106(a)(10). See Magana-Pizano, 152 F.3d at 1217 n. 6 ("[e]nactment of the INA § 106(a)(10) habeas remedy did not supplant the district court's general habeas corpus jurisdiction under 28 U.S.C. § 2241[ ]") (citing to Mondragon v. Ilchert, 653 F.2d 1254, 1255 (9th Cir.1980)); Lee, 15 F.Supp.2d at 34 ("[n]o case ... holds that the 1961 Act repealed § 2241 jurisdiction"); Billett, 2 F.Supp.2d at 370 (noting availability of habeas under either INA or § 2241 from at least 1961 to 1996). Congress, clearly capable of designating precisely which provisions it intends to affect by its amendments, elected only to repeal the INS habeas provision. AEDPA § 401(e) made no mention of the traditional § 2241 review that had been "peacefully coexist[ing]" with INA § 106(a)(10) since 1961. See Lee, 15 F.Supp.2d at 34 (stating that the two habeas avenues "can, did, and were intended to peacefully coexist[ ]"). As the First Circuit observed, "[h]ad Congress wished to eliminate any possible habeas jurisdiction under 28 U.S.C. § 2241, it could easily have inserted an explicit reference, but it did not." Goncalves, 144 F.3d at 121. Finally, and perhaps most importantly, this court will not read the 1996 amendments as repealing § 2241 review for criminal aliens because to do so could — and probably would — raise serious constitutional concerns, among them the Suspension Clause of the Constitution. See Magana-Pizano, 152 F.3d at 1221-22 (finding that § 2241 must exist for criminal aliens in order to avoid running afoul of the Suspension Clause); Goncalves, *412 144 F.3d at 122 (same); but see Richardson v. Reno, 162 F.3d 1338, 1374-75 (11th Cir. 1998). The INS argues that the Suspension Clause is not implicated by what it asserts was the complete repeal of habeas jurisdiction by the 1996 amendments because review still exists in the courts of appeals. In other words, it contends, there has been no "suspension" of the writ, only a limitation. This argument inexplicably fails to take into account the crucial fact that criminal aliens are expressly precluded by the 1996 amendments from seeking review in the courts of appeals under the amended INA. See 8 U.S.C. § 1252(a)(2)(C). "Congress cannot eliminate habeas corpus review over final deportation orders unless there is some alternative avenue for review." Yesil v. Reno, 958 F.Supp. 828, 838 (S.D.N.Y.1997) (citing to Heikkila, 345 U.S. at 234, 73 S.Ct. 603). Therefore, because by virtue of 8 U.S.C. § 1252(a)(2)(C) judicial review in the courts of appeals is foreclosed for criminal aliens such as petitioner, the habeas door must remain open.[10] Because this case involves the petition of a criminal alien, this court need not reach the question of what habeas relief, if any, remains for a non-criminal alien. The court recognizes that it will be awkward, to say the least, if courts were to find that constitutional concerns require that criminal aliens be allowed to seek habeas relief pursuant to § 2241 but that non-criminal aliens who, of course, may still file petitions for review with the courts of appeals, are foreclosed from seeking such relief.[11] Criminal aliens must, however, have a forum in which to raise constitutional concerns and that forum is the district court on habeas review.[12] B. Scope of Review under 28 U.S.C. § 2241 Having established that this court has jurisdiction over the petition under 28 U.S.C. § 2241, the next issue is whether one or both *413 of petitioner's claims fall within that limited scope of review. One claim does. Petitioner seeks habeas relief primarily on the ground that he was allegedly denied due process by the retroactive application of the AEDPA to his case, depriving him of a hearing on the merits of his waiver application. See Pet. at 5. Whether that claim is deemed to be a constitutional claim or one of statutory right, it falls within the scope of this court's jurisdiction under § 2241.[13] If petitioner's claim is, in fact, that he was denied due process, this court clearly has jurisdiction to review it under § 2241. The Court of Appeals for the Third Circuit has not directly addressed the bounds of judicial review available under § 2241 after the AEDPA or the IIRIRA except by indicating that constitutional issues must be reviewable. See Salazar-Haro, 95 F.3d at 311 ("[t]o the extent ... that constitutional rights applicable to aliens may be at stake, judicial review may not be withdrawn by statute."); Morel, 144 F.3d at 251 (noting INS's concession that review of removal orders for "substantial constitutional error" remained after the 1996 amendments).[14] Even were petitioner's claim one of statutory right not cloaked in constitutional garb, this court would have jurisdiction. Indeed, 28 U.S.C. § 2241 by its terms contemplates challenging a detention that is illegal under either "the Constitution or laws of the United States...." 28 U.S.C. § 2241(c)(1) (emphasis added). Presumably for that reason, claims of statutory right have traditionally been considered in immigration cases under § 2241. See Goncalves, 144 F.3d at 124 (citing numerous Supreme Court cases which have considered, on habeas, the executive branch's construction of statutory terms in the immigration context); Henderson, 157 F.3d at 121 (noting that "in the immigration context, review of statutory questions was deemed essential to ensuring due process"). Nothing in the language of either the AEDPA or the IIRIRA expressly limits the scope of traditional review under § 2241. See Lee, 15 F.Supp.2d at 41 (finding that 1996 amendments do not limit § 2241 review over statutory question of the retroactivity of AEDPA § 440(d)). This court will, therefore, follow the lead of those courts which have held that a claim regarding the retroactive application of AEDPA § 440(d) falls within the permissible scope of review of § 2241. A majority of the courts which have considered the issue have so held. See Goncalves, 144 F.3d at 123-25 (finding that the scope of review under § 2241 includes reviewing the retroactive application of AEDPA § 440(d)); Henderson, 157 F.3d at 120 (same); Sandoval, 1997 WL 839465 at *8-9 (same); Wallace, 24 F.Supp.2d 104 (D.Mass.1998) (reviewing retroactivity of AEDPA § 440(d) pursuant to § 2241); see also Perez, 18 F.Supp.2d at 681-82 (finding that scope of habeas review under *414 Suspension Clause includes question of whether AEDPA § 440(d) is retroactive); but see Avelar Cruz, 6 F.Supp.2d at 753-55. It goes without saying, of course, that review under § 2241 of a claim regarding the retroactivity of AEDPA § 440(d) does not mean that "every statutory claim that an alien might raise is cognizable on habeas." Henderson, 157 F.3d at 122; see also Morel, 144 F.3d at 251-52. However, "[i]n the face of statutes [such as the AEDPA and the IIRIRA] seeking to limit jurisdiction to the fullest extent constitutionally possible," Henderson, 157 F.3d at 122, whether the Attorney General erred in assessing Congressional intent with respect to retroactivity is certainly reviewable. Id. C. Retroactivity of AEDPA § 440(d) This court having managed to traverse a minefield of issues to arrive at this point, the merits of petitioner's primary claim can, at long last, be addressed. Petitioner claims that AEDPA § 440(d) should not have been applied retroactively to him and, therefore, that he is entitled to a hearing on his waiver application. It is unclear whether petitioner is claiming that AEDPA § 440(d) should not have been applied to him because the AEDPA was enacted after he committed or was convicted of his crimes or because it was enacted after he applied for a waiver. Given that it is possible to decide this case on the ground that AEDPA § 440(d) was not intended to apply to aliens with pending waiver applications, this court need not reach the broader issue of whether § 440(d) should apply to aliens who committed criminal conduct or were convicted prior to the enactment of the AEDPA.[15]See Henderson, 157 F.3d at 128 n. 28. The Court of Appeals for the Third Circuit has not yet addressed the issue of whether the AEDPA § 440(d) should apply to a petitioner who applied for a waiver prior to the enactment of the AEDPA. Numerous other courts, however, have had occasion to address that issue. This court finds, as have the bulk of those courts, that the Attorney General's opinion in Matter of Soriano to the contrary, AEDPA § 440(d) should not be applied to criminal aliens who filed applications for waivers before the statute was enacted. See, e.g., Henderson, 157 F.3d at 130; Goncalves, 144 F.3d at 134; Perez, 18 F.Supp.2d at 682-83; Billett, 2 F.Supp.2d at 372-73; but see Gutierrez-Martinez, 989 F.Supp. at 1209-10. This court, in reaching this conclusion, has considered whether, under a Chevron analysis, it was bound to defer to the Attorney General's opinion. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, in examining an agency's construction of a statute, a court must first ask "whether `the intent of Congress is clear' as to the `precise question at issue.'" Regions Hosp. v. Shalala, 522 U.S. 448, ____, 118 S.Ct. 909, 915, 139 L.Ed.2d 895 (1998) (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). If the court decides, "by `employing traditional tools of statutory construction,'" that Congress's intent is clear, "that is the end of the matter." Id. (quoting Chevron, 467 U.S. at 842, 843 n. 9, 104 S.Ct. 2778). If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). *415 The Chevron Court pointed out that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. It is clear to this court that Congress did not intend AEDPA § 440(d) to be applied retroactively to an alien in petitioner's circumstances. Id. ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."). Therefore, "that is the end of the matter." Id. at 842, 104 S.Ct. 2778. In Landgraf, the Supreme Court set forth the requisite analysis in determining Congressional intent with reference to retroactively applying a newly-enacted federal statute to a pending matter. Acknowledging the deeply rooted "presumption against retroactive legislation," the Court stated that a court must first apply the "express command" of Congress concerning the statute's proper reach. Landgraf v. USI Film Prod., 511 U.S. 244, 265, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Absent such a command, the court then must apply the default rules regarding retroactivity. Id. at 280, 114 S.Ct. 1483. The default rules inquire as to whether the application of the statute to pending matters would have a "retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. If application of the statute would have a retroactive effect, the presumption against retroactivity bars its application "absent clear congressional intent favoring such a result." Id. If application of the statute would not have a retroactive effect — for example, if the statute affects only procedural or jurisdictional issues — the statute is to be applied to pending matters "unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 277, 114 S.Ct. 1483. The Landgraf analysis was modified in Lindh with the Court utilizing the "negative implication" doctrine to assess Congress's command concerning the reach of a statute. The Lindh Court rejected the argument that absent an express statement by Congress as to the statute's proper temporal reach, the default rules must be applied. See Lindh v. Murphy, 521 U.S. 320, 325, 117 S.Ct. 2059, 138 L.Ed.2d 481, (1997) (rejecting argument that "there are only two alternative sources of rules to determine [a new statute's] ultimate temporal reach: either an `express command' from Congress or application of our Landgraf default rule"). Instead, the Lindh Court held that Congress could express its intent regarding the reach of a statute by "negative implication." Id. at 320, 117 S.Ct. 2059. More specifically, the Court found that Congress did not intend AEDPA §§ 101-06 to be applied retroactively not because the statute expressly so stated, but because Congress deliberately omitted retroactive language from those sections while including it in other sections, such as AEDPA § 107. Id. at 329-30, 117 S.Ct. 2059. The Court explained that "[n]othing, indeed, but a different intent explains the different treatment." Id. at 329, 117 S.Ct. 2059. The Court, therefore, did not look to the default rules because it found, by negative implication, an expression of congressional intent that dictated the reach of the relevant AEDPA sections. The Court of Appeals for the Third Circuit has also applied the negative implication doctrine to ascertain congressional intent regarding the application of newly enacted statutes to pending matters. See United States v. Skandier, 125 F.3d 178 (3d Cir. 1997); see also Mathews v. Kidder, Peabody & Co., Inc., 161 F.3d 156, 163 (3d Cir.1998) (examining whether "the negative inference at work in Lindh" showed that Congress expressed "an intent to apply the RICO Amendment only to new cases"). In Skandier, the Court, applying Lindh, found, by negative implication, that Congress intended certain AEDPA amendments to 28 U.S.C. § 153 to apply only prospectively. The Court then noted that [b]ecause we dispose of this case on the grounds of Congressional intent, as the Supreme Court itself has found it, we need *416 not address matters that would be predicate to determining applicability of the [Landgraf] default rules. Id. at 182. Following Chevron, Landgraf and Lindh, the First and Second Circuits — the only circuits to have spoken precisely on this issue — have held that Congress did not intend AEDPA § 440(d) to be applied retroactively to criminal aliens with pending waiver applications. See Henderson, 157 F.3d at 128-30; Goncalves, 144 F.3d at 126-33. Those circuits found that the text of Title IV of the AEDPA revealed that while similar provisions such as AEDPA §§ 413 and 421 contained express statements that they were to be applied to pending applications, it was notable that AEDPA § 440(d) contained no such language. See Henderson, 157 F.3d at 129-30; Goncalves, 144 F.3d at 128-31. In addition, the legislative history of AEDPA § 440(d) supports the conclusion that Congress did not intend AEDPA § 440(d) to apply retroactively because, among other things, Congress considered a draft of AEDPA § 440(d) which included a retroactive subsection, but chose not to enact it. See Henderson, 157 F.3d at 130 (noting that the compromise bill that was ultimately signed did not contain the retroactive language explicitly contained in the Senate's proposed bill); Goncalves, 144 F.3d at 132-33 ("Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.") (citations and internal quotations omitted). Because congressional intent was clear and unambiguous, the default rules regarding retroactive effect were not addressed. In light of that clear congressional intent to the contrary, the First and Second Circuits did not defer to the Attorney General's opinion in Matter of Soriano and held that AEDPA § 440(d) does not apply retroactively. See Henderson, 157 F.3d at 130; Goncalves, 144 F.3d at 134. Adopting the comprehensive and detailed analyses of the First and Second Circuits, this court holds that Congress did not intend AEDPA § 440(d) to be applied retroactively to criminal aliens such as petitioner with pending waiver applications. Moreover, the Third Circuit's application of the negative implication doctrine in Skandier and Mathews leads this court to conclude that when that Court addresses the issue, it will agree.[16] *417 III. Conclusion In sum, this court holds that it has jurisdiction over this petition pursuant to 28 U.S.C. § 2241 even after and in spite of the enactment of the AEDPA and the IIRIRA in 1996. Because the scope of review under § 2241 encompasses review of detentions that are in violation of the Constitution or laws of the United States, this court has considered petitioner's claim that AEDPA 440(d) should not have been applied to deprive him of a waiver hearing pursuant to pre-AEDPA § 212(c) of the INA and has concluded that Congress did not intend AEDPA § 440(d) to foreclose consideration of an application for a waiver filed prior to the enactment of the AEDPA. Because petitioner's detention is based—perhaps exclusively —on the Attorney General's erroneous determination that Congress intended the AEDPA § 440(d) to apply to aliens with pending waiver applications, petitioner's § 2241 petition is granted, and the matter is remanded for a determination on the merits of his application for a § 212(c) waiver under the standards in place prior to the enactment of the AEDPA. This court expresses no opinion, of course, as to whether such a waiver should be granted. An appropriate order will issue.[17] NOTES [1] Aliens who are either deportable or excludable because they have been convicted of certain criminal offenses enumerated in the INA have been referred to in the statute and throughout the case law as "criminal aliens." See, e.g., 8 U.S.C. § 1252(a)(2)(c) (1996) (entitled "Orders against criminal aliens"). This court will similarly use the phrase "criminal aliens." [2] INA § 212(c), 8 U.S.C. § 1182(c), provided in relevant part: [a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions [enumerating classes of aliens who may be denied admission to the United States] ... [3] The full text of INA § 212(c), as amended by § 440(d), provides that: [a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and 9(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under § 1181(b) of this title. This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 1251(a)(2)(A)(iii),(B),(C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1251(a)(2)(A)(i) of this title. [4] The fact that the IIRIRA, enacted shortly thereafter on September 30, 1996, repealed 8 U.S.C. § 1182(c) is not relevant here because that IIRIRA section applies only to aliens whose deportation proceedings were commenced after April 1, 1997. See IIRIRA § 309(c). [5] In addition, the BIA rejected petitioner's argument that AEDPA § 440(d) violated the Constitution because it applied on its face only to deportation proceedings and not to exclusion proceedings. Citing to Matter of C, 20 I. & N. Dec. 529 (BIA 1992) and Matter of Lazarte, Int. Dec. No. 3264 (BIA 1996), the BIA observed that even if it were to perceive a constitutional infirmity in an unambiguous statute, it lacked jurisdiction to remedy that infirmity. [6] IIRIRA § 309(c)(1) provides that: (c) TRANSITION FOR ALIENS IN PROCEEDINGS — (1) GENERAL RULE THAT NEW RULES DO NOT APPLY — Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before [April 1, 1997] — (A) the amendments made by this subtitle shall not apply, and (B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments. [7] Respondent simply ignores this issue and presumes that § 242(g) applies to petitioner. [8] Courts have disagreed as to whether INA § 242(g) became effective on the general effective date of the IIRIRA, April 1, 1997, or if it was meant to take effect on the date of the IIRIRA's enactment, September 30, 1996. Compare Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir.1997) (INA § 242(g) does not take effect until April 1, 1997); with Charan v. Schiltgen, 1997 WL 135938 (N.D.Cal. Mar.18, 1997) (INA § 242(g) takes effect on September 30, 1996). This court need not address this issue because, under either view, INA § 242(g) was in effect when petitioner filed his habeas petition on August 25, 1998. See Marriott v. Ingham, 990 F.Supp. 209, 211-12 (W.D.N.Y.1998). [9] The Ninth Circuit's position regarding habeas review after the 1996 amendments is somewhat unclear. Up until December 2, 1998, the Ninth Circuit had adopted a two track approach to whether INA § 242(g) repealed § 2241 habeas jurisdiction. In Hose, the Ninth Circuit interpreted § 242(g) as repealing § 2241 jurisdiction. See Hose, 141 F.3d at 936. However, the Ninth Circuit later concluded in Magana-Pizano that because the INA eliminated judicial review for final orders of removal against criminal aliens, see INA § 242(a)(2)(C), INA § 242(g) could not constitutionally repeal § 2241 habeas jurisdiction in those cases. See Magana-Pizano, 152 F.3d at 1220. On December 2, 1998, the Ninth Circuit withdrew its published opinion in Hose and granted a rehearing en banc. See Hose v. INS, 161 F.3d 1225, 1998 WL 848048 (9th Cir. Dec.2, 1998). [10] A few courts have held that the IIRIRA abolished jurisdiction under § 2241, leaving available only a "constitutional writ, unaided by statute." Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.), cert. denied sub nom., ___ U.S. ____, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997); Rusu v. Reno, 999 F.Supp. 1204, 1210 (N.D.Ill.1998) (district court retains habeas jurisdiction, not pursuant to § 2241, but within the narrow jurisdictional scope of the Suspension Clause); Zisimopoulos v. Reno, 1998 WL 437266 at *1-2 (E.D.Pa. July 15, 1998) (holding that INA § 242(g) divests district court of jurisdiction to hear habeas petitions pursuant to § 2241 but finding jurisdiction over "constitutional habeas claims" if petitioner alleges a "colorable, substantial constitutional violation"). Because this court finds that jurisdiction still exists under § 2241, it need not grapple with the difficult question of whether the Suspension Clause alone, unaided by § 2241, could provide a vehicle for habeas review and what types of claims would fall under this "novel jurisdiction." Goncalves, 144 F.3d at 123; Magana-Pizano, 152 F.3d at 1221 (finding that because Congress did not expressly repeal statutory habeas, there was no need to address the "thorny problem of defining the contours of the `free standing' constitutional writ"); Lee, 15 F.Supp.2d at 39 (noting that without § 2241 jurisdiction, court would be required to "imply some residual habeas jurisdiction as required by the Constitution"). [11] Two district courts within this circuit have recently dismissed habeas petitions brought by non-criminal aliens holding that the 1996 amendments divested the district courts of jurisdiction to hear the petitions. See Cabrera v. Reno, 5 F.Supp.2d 244, 245-46 (D.N.J.1998) (dismissing habeas petition for lack of subject matter jurisdiction because 8 U.S.C. § 1252(g) divests district courts of jurisdiction to hear claims by noncriminal aliens arising from immigration decisions except as provided in 8 U.S.C. § 1252); Abbate v. Reno, 1998 WL 195653 (E.D.Pa. March 30, 1998) (holding that 8 U.S.C. § 1252(g) abrogates district court's power to entertain non-criminal aliens' petitions for writs of habeas corpus). [12] Addressing the question of forum, the Second Circuit suggested in a footnote in Henderson that were it not bound by a prior Second Circuit case, Jean-Baptiste, it would be inclined to find that the proper mechanism for review of final orders of removal against criminal aliens is by petition for review in the courts of appeals, instead of by § 2241 petition. See Henderson, 157 F.3d at 119 n. 9. Despite the newly amended INA's clear statement that final orders vis-a-vis criminal aliens cannot be reviewed under 8 U.S.C. § 1252, see 1252(a)(2)(C), the Henderson court stated that review of an agency decision may be implied if serious constitutional issues would be implicated if review were denied. Id. (citing Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)); see also Richardson, 162 F.3d at 1374-75. Because the Third Circuit has specifically mentioned the habeas remedy as a remedy available after the AEDPA, albeit somewhat in passing, see Salazar-Haro, 95 F.3d at 311, this court will not hold that criminal aliens should proceed in the courts of appeals even though, in terms of consistency, requiring them to do so would make sense. [13] Petitioner's subsidiary claim that he was not informed at the time he pled guilty that deportation was a possible consequence is not cognizable on habeas review for there is no right, constitutional or otherwise, to be advised of that potential collateral consequence. [14] This court is unpersuaded by cases holding that the scope of review of final removal orders available for criminal aliens under § 2241 is limited to "grave constitutional error or a fundamental miscarriage of justice." See, e.g., Gutierrez-Martinez, 989 F.Supp. at 1209; Mbiya v. INS, 930 F.Supp. 609, 612 (N.D.Ga.1996). This heightened standard stems from habeas review of state or federal convictions and is not analogous to situations in which petitioners have been afforded only a single level of administrative review. See Goncalves, 144 F.3d at 119 n. 8, 124. Unlike § 2254 or § 2255 habeas petitioners who have received the benefits of full judicial process at the trial level along with direct appeal and possible review in the Supreme Court on certiorari, petitioners bringing habeas petitions arising from executive detention have likely "never had their claims reviewed by any court, state or federal." Henderson, 157 F.3d at 120; see also Magana-Pizano, 152 F.3d at 1221-22 (rejecting "fundamental miscarriage of justice" standard because it refers to review in a dissimilar context, namely in cases of successive habeas petitions); Perez, 18 F.Supp.2d at 682 n. 9 (refusing to import narrow standard of review from §§ 2254 and 2255 into habeas within the immigration context because there has been no judicial review of alien's claims); Lee, 15 F.Supp.2d at 43 (rejecting "miscarriage of justice" standard for constitutional habeas review in immigration context because, unlike in the post-conviction context where "the issues raised on habeas have been, or could have been, raised previously in a court of law," there has been no prior judicial inquiry). [15] The Court of Appeals for the Third Circuit rejected an analogous argument in support of this broader issue in the context of an earlier INA amendment. In Scheidemann v. INS, 83 F.3d 1517 (3d Cir.1996), the Third Circuit evaluated an amendment to INA § 212(c) which barred waivers for aliens who had served more than five years in prison as a result of being convicted of one or more aggravated felonies ("1990 amendment"). Id. at 1519. The Court, along with numerous other circuits, held that the 1990 amendment could be applied to aliens who had been convicted of the enumerated offenses prior to the amendment's enactment. Id. at 1526. The Court. also explicitly rejected the petitioner's ex post facto argument. Id. at 1520 n. 4. As pertinent here, however, the Court limited its holding to cases "where the alien applied for discretionary relief after the effective date of the 1990 amendment." Id. at 1526. As for the 1996 amendments to the INA, at least one court has cited to Scheidemann in rejecting the argument that AEDPA § 440(d) should not be applied retroactively to criminal conduct predating the enactment of the AEDPA. See Avelar Cruz, 6 F.Supp.2d at 753-55. [16] Although not raising it before this court, petitioner contended before the BIA that the application of AEDPA § 440(d) to deportable aliens such as himself, as opposed to excludable aliens, denied him equal protection of the laws as guaranteed by the Due Process Clause of the Fifth Amendment. This claim appears to have some merit. When INA § 212(c) was originally enacted, it applied differently to excludable and deportable aliens. Deportable aliens were those who lived in the United States but were subject to deportation, while excludable aliens were those who were trying to enter the United States and whom the Attorney General had reason to exclude. On its face, INA § 212(c) allowed excludable aliens to apply for discretionary waivers but made no mention of deportable aliens. In 1976, the Court of Appeals for the Second Circuit held that the difference in the application of INA § 212(c) to excludable aliens and deportable aliens raised equal protection concerns. See Francis v. INS, 532 F.2d 268, 269 (2d Cir.1976). The Court found that there was no rational basis for distinguishing between allowing a waiver hearing for a legal resident alien who had temporarily left the United States and one who had not, observing that "[r]eason and fairness could suggest that an alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time." Id. at 273. Other courts of appeals, including the Third Circuit in Katsis, 997 F.2d at 1070, as well as the BIA, see Matter of Silva, Int. Dec. No. 2532 (BIA 1976) (adopting Francis nationwide), followed suit and adopted the reasoning of Francis. As has been discussed, the AEDPA amended the INA on April 24, 1996 and abolished INA § 212(c) discretionary waivers for legal permanent residents who had been convicted of certain crimes, such as those related to controlled substances. See AEDPA § 440(d). More specifically, AEDPA § 440(d) amended INA § 212(c), 8 U.S.C. § 1182(c) (1994), in part, by adding the language "[t]his subsection shall not apply to an alien who is deportable by reason of having committed [a crime related to a controlled substance] ...." At first, immigration judges held that AEDPA § 440(d) barred waivers for both excludable and deportable aliens who had committed the enumerated criminal offenses. However, on May 14, 1997, the BIA held that the restriction on INA § 212(c) waivers applied only to deportable aliens because AEDPA § 440(d) used the word "deportable." See In re Fuentes Campos, Int. Dec. No. 3318, 1997 WL 269368 (BIA May 14, 1997). Courts have held, and this court would be inclined to agree, that, for the same reasons enunciated in Francis and adopted by the Third Circuit in Kastis, applying AEDPA § 440(d) only to deportable aliens, barring them, but not excludable aliens, from consideration for discretionary waivers violates the equal protection clause. There appears to be no rational basis for the distinction. Only a limited group of deportable aliens denied waiver hearings would be in a position to bring an equal protection challenge, however, because the problem was solved by the IIRIRA amendments to the INA, the permanent provisions of which apply to all aliens who began removal proceedings after April 1, 1997. See IIRIRA § 309(c). Furthermore, AEDPA § 440(d) was only interpreted by the BIA in a manner violative of the Constitution after it released its decision in Fuentes-Campos on May 14, 1997. Therefore, the only aliens who could complain of an equal protection violation are those criminal aliens who were in deportation proceedings prior to April 1, 1997 and were denied waivers after the May 14, 1997 BIA decision in Fuentes-Campos. See Avelar Cruz v. Reno, 6 F.Supp.2d 744, 756 (N.D.Ill.1998). Petitioner falls within this group of aliens. His deportation proceeding was initiated on July 12, 1994, well before the IIRIRA effectively eliminated the disparate treatment between deportable and excludable aliens with respect to waiver. Moreover, the Immigration Judge and the BIA denied petitioner a waiver in accordance with AEDPA § 440(d) on September 10, 1997 and March 30, 1998, respectively, after the BIA had issued its arguably unconstitutional interpretation of AEDPA § 440(d) in Fuentes-Campos. Indeed, the BIA specifically cited to Fuentes-Campos in response to petitioner's equal protection argument and stated that "even if we were to perceive a constitutional infirmity [INA § 212(c) as amended by AEDPA § 440(d)], we would be without authority to remedy it." Resp. Br., Exh. 5 at 2. Because, as noted above, petitioner does not raise this issue before this court, the court need not determine whether he has been denied equal protection of the laws. In any event, petitioner has prevailed on another ground. [17] Given this disposition, petitioner's motion for appointment of counsel is denied as moot. Because petitioner is without counsel, the court anticipates and, indeed, expects, that the United States Attorney will move this case on remand.

735 N.E.2d 569 (2000) 192 Ill.2d 189 248 Ill.Dec. 918 The PEOPLE of the State of Illinois, Appellee, v. Derrick KING, Appellant. No. 84261. Supreme Court of Illinois. August 10, 2000. *572 Alison J. Norwood, of Streamwood, for appellant. James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State's Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People. Justice MILLER delivered the opinion of the court: The defendant, Derrick King, initiated this action for post-conviction relief in the circuit court of Cook County. The circuit court denied the defendant's amended petition without an evidentiary hearing. Because the defendant received the death penalty for his underlying murder conviction, the present appeal lies directly to this court. 134 Ill.2d R. 651(a). In 1981 the defendant was convicted of murder and armed robbery and was sentenced to death for the murder conviction. The offenses occurred when the defendant shot and killed the cashier at a small store in Chicago during a robbery. On direct appeal, this court affirmed the defendant's convictions and death sentence. People v. King, 109 Ill.2d 514, 94 Ill.Dec. 702, 488 N.E.2d 949 (1986). The United States Supreme Court denied the defendant's petition for a writ of certiorari. King v. Illinois, 479 U.S. 872, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). The defendant then filed, pro se, a petition for post-conviction relief in the circuit court of Cook County. Counsel was appointed to represent the defendant in the proceedings. After a period of delay, the defendant received the appointment of new counsel, who later filed an amended post-conviction petition. Another period of delay ensued, and a different lawyer was then appointed to represent the defendant in the present proceedings. The circuit court later granted the State's motion for dismissal of the defendant's amended post-conviction petition. The defendant brings this appeal from the order of the circuit court dismissing the amended petition. 134 Ill.2d R. 651(a). The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1996)) provides a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). An action seeking *573 post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999); People v. Mahaffey, 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174 (1995). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that resulted in the conviction or sentence being challenged. People v. Morgan, 187 Ill.2d 500, 528, 241 Ill.Dec. 552, 719 N.E.2d 681 (1999). Considerations of res judicata and waiver limit the scope of post-conviction review "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill.2d 335, 346, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992). As a general matter, then, issues that were raised on appeal from the underlying judgment of conviction, or that could have been raised but were not, will not be considered in a post-conviction proceeding. People v. West, 187 Ill.2d 418, 425, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999); People v. Coleman, 168 Ill.2d 509, 522, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995). Guided by principles of fundamental fairness, however, a court will relax the customary doctrines of waiver and res judicata when appropriate. People v. Neal, 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808 (1990). The defendant raised numerous claims in the post-conviction proceedings below; defense counsel has culled through these matters and has selected five questions for our consideration here. The defendant first argues that the post-conviction judge erred in refusing to allow counsel to file an addendum to the amended post-conviction petition. The defendant's second set of lawyers had submitted an amended petition, omitting some issues originally raised by the defendant in the pro se petition while adding several other issues. The addendum drafted by the defendant's new lawyer sought to reintroduce issues that had been contained in the defendant's original, pro se petition but had been left out of the amended petition. It was well within the post-conviction court's discretion to decide whether or not to grant leave to counsel to file the addendum to the amended post-conviction petition. See People v. Sanchez, 169 Ill.2d 472, 502-03, 215 Ill.Dec. 59, 662 N.E.2d 1199 (1996) (denial of motion to file additional documentation in support of post-conviction petition; motion made several weeks after parties presented arguments on State's motion to dismiss petition). We recognize that the defendant's current lawyer came into the case at a relatively late stage in the proceedings below, and that she is the third lawyer or set of lawyers to represent the defendant in this matter. The post-conviction court was concerned, however, that allowing counsel to file the addendum would only add further delay to these already lengthy proceedings. Counsel filed the motion to submit the addendum two years after the amended petition was filed and one year after the motion to dismiss was filed. On this record, we cannot say that the post-conviction judge abused his discretion in declining to permit counsel to file the addendum to the amended post-conviction petition. The defendant next raises an issue relating to his fitness at the post-conviction proceedings. The defendant argues that the post-conviction court erred in dismissing the amended post-conviction petition without having conducted a hearing on the defendant's fitness or having found the defendant competent to assist counsel. In an order entered May 14, 1993, the circuit court granted the defendant's motion for a stay of the proceedings pending a determination of the defendant's mental status and a psychiatric examination of the defendant. The record does not contain any indication that the court later found the defendant fit in the matter, and the defendant now argues that he was denied both due process and the reasonable assistance of counsel in the post-conviction proceedings because there was no formal judicial determination *574 of his fitness. The defendant further contends that, in the absence of a fitness examination and a judicial determination of fitness, the prejudicial effect of the court's denial of leave to file the addendum to the amended post-conviction petition was manifest; the defendant asserts that he might not have been able to assist his second set of lawyers in the preparation of the amended petition. The record, however, shows that the examination ordered by the court was conducted, and that the psychiatrist who examined the defendant found him to be fit. While this case was pending before this court, we allowed a motion by the State to supplement the record with a copy of the report made by a psychiatrist at Pontiac Correctional Center, where the defendant was incarcerated. In the report, dated August 21, 1993, the examining psychiatrist concluded that the defendant was fit and competent. Although there is nothing of record to show whether or in what manner the post-conviction court disposed of this question, we believe that the report provides persuasive evidence of the defendant's fitness. Too, there was no showing before the post-conviction court, in denying counsel's motion to file the addendum, that the defendant had been unable to assist counsel in the preparation of the amended petition. Together, these circumstances demonstrate to us that the omission of a fitness order from the record fails to suggest either that the defendant was denied due process or that he was impeded in the assistance he could provide to counsel. We note, moreover, that the defendant's current lawyer apparently did not perceive any problem with the defendant's level of functioning during the period she represented him in the proceedings below; significantly, counsel raised no question on her own regarding the defendant's competency, and, as she states in her brief, she was not aware of the prior request for a fitness hearing until she reviewed the record while preparing for this appeal. As we explain later in this opinion, the cause must be remanded to the circuit court for further proceeding on other issues; if counsel believes that there then exists a further question regarding the defendant's fitness, counsel is free to raise the question at that time. The defendant next argues that the cause must be remanded for an evidentiary hearing on his contention challenging the State's use of peremptory challenges to exclude blacks during jury selection. The defendant's trial took place in 1981. This court issued its opinion in the case in January 1986, and rehearing was denied in April 1986. The United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), several weeks later, and before the defendant's petition for certiorari came before that court for consideration. The present case was therefore pending on direct review when Batson was decided, and Batson would be applicable to this case. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In support of this contention, the defendant relies on an affidavit that was prepared by one of his trial lawyers. In the affidavit, dated August 12, 1985, some four years after trial, counsel stated that the defendant's jury consisted of 11 whites and one black, that the prosecution exercised seven peremptory challenges in the case, and that all seven challenges used by the State were to black jurors. The affidavit does not describe the ethnicity of the alternate jurors or the composition of the jury pool. The substantive issue has been waived by counsel's failure to raise an appropriate objection during jury selection, either under the reasoning later adopted in Batson, or under the then-existing law expressed in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Both Batson and Swain required the defense to make timely objections to the prosecutor's exclusion *575 of jurors (see Batson, 476 U.S. at 99, 106 S.Ct. at 1724-25, 90 L.Ed.2d at 89-90; People v. Richardson, 189 Ill.2d 401, 409-10, 245 Ill.Dec. 109, 727 N.E.2d 362 (2000)), and no objection was raised in this case. Accordingly, trial counsel waived the issue by failing to make an objection and establish a record on which the issue could be resolved. The defendant makes the further argument, however, that trial counsel and appellate counsel were ineffective for failing to preserve the issue for purposes of appeal. To establish ineffective assistance of counsel, the defendant must show both a deficiency in counsel's performance and prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). We must reject this contention as well. First, appellate counsel cannot be faulted for failing to argue on appeal an issue that trial counsel had already waived. Richardson, 189 Ill.2d at 412-13, 245 Ill.Dec. 109, 727 N.E.2d 362. Moreover, on this record, trial counsel also cannot be deemed ineffective for failing to preserve the issue. Under the law in effect at the time of counsel's affidavit, it was the defendant's burden to show the systematic exclusion of jurors in case after case. Swain, 380 U.S. at 226, 85 S.Ct. at 839, 13 L.Ed.2d at 776. Counsel's affidavit pertains only to the present proceeding, and does not provide any basis on which one could conclude that the prosecution had acted in violation of Swain. Nor do we believe that trial counsel may be considered ineffective for failing to anticipate the ruling in Batson. Conduct of a lawyer will not be deemed deficient for his or her failure to make an argument that has no basis in the law. See People v. Hobley, 159 Ill.2d 272, 305, 202 Ill.Dec. 256, 637 N.E.2d 992 (1994). The defendant notes, however, that counsel on direct appeal had taken an active role in challenging race-based jury selection processes in a number of cases, and the defendant maintains that counsel therefore should have been particularly sensitive to the preservation of this issue. We do not believe that appellate counsel's special expertise in this area of the law affords the defendant any help here, for counsel's familiarity with the issue actually argues against the defendant's position. Counsel could have simply believed that the present case did not give rise to a valid question regarding the prosecution's use of peremptory challenges during jury selection, especially in view of trial counsel's failure to preserve the issue. The defendant next presents an argument relating to allegations that the defendant was mistreated while undergoing questioning by police in this case. The defendant in this case was interrogated at Area 2 headquarters by Detective Robert Dwyer, while Sergeant Jon Burge was also present. On direct review, this court upheld the trial court's determination that the defendant's confession was given voluntarily and was not the product of physical coercion. People v. King, 109 Ill.2d 514, 523-26, 94 Ill.Dec. 702, 488 N.E.2d 949 (1986). In his brief before this court, the defendant argues that trial counsel was ineffective for failing to introduce at trial testimony by a witness who would have supported the defense theory that the defendant's confession was coerced. The issue is broader than that, however, for what the defendant really seeks is a fresh examination of the circumstances in which he gave a confession statement to authorities. Attached as exhibits to the defendant's amended post-conviction petition are a number of documents purporting to establish a history of police misconduct at Area 2 headquarters. These include a report from the Federal Bureau of Investigation regarding mistreatment by a defendant in another case, a report by the Chicago police department's office of professional standards (OPS), the complaint in a federal action against Burge and others, and the decision by the Chicago police board dismissing Burge from his employment as a Chicago police officer. *576 This court has addressed a similar issue in People v. Patterson, 192 Ill.2d 93, 249 Ill.Dec. 12, 735 N.E.2d 616 (2000). In that case, defendant also raised a number of arguments regarding counsel's failure to present evidence that the confession in that case was the product of coercion. The defendant in Patterson also argued that new evidence supported the defense theory of coercion. The new evidence presented by the defendant in that case consisted of the OPS report cited by the present defendant, appellate court decisions holding that Burge had tortured another suspect and was fired for that misconduct, the discovery of 60 additional incidents of torture occurring at Area 2, and a report by an expert concluding that the defendant in Patterson had been tortured. This court concluded that an evidentiary hearing was warranted on the defendant's allegations. Patterson, 192 Ill.2d at 138-45, 249 Ill.Dec. 12, 735 N.E.2d 616. We believe that a similar hearing should be conducted in this case on the defendant's allegations of police misconduct. In light of the new evidence included in the amended post-conviction petition, most notably the report by the OPS, we believe that an evidentiary hearing should be conducted on this portion of the defendant's post-conviction petition. After the parties filed their briefs, but before oral argument was held in this case, the defendant submitted a motion seeking a remand to the circuit court for purposes of conducting a new suppression hearing in this case. Given our decision to remand the cause for an evidentiary hearing, we deny the defendant's motion. In his final post-conviction challenge, the defendant argues that trial counsel was ineffective for failing to investigate and present certain mitigating evidence at the capital sentencing hearing conducted in this case. At the second stage of the defendant's sentencing hearing, the State presented evidence regarding the defendant's prior offenses. In mitigation, defense counsel presented only two witnesses, and their testimony spans fewer than 16 pages of the transcript. The first defense witness was one of the defendant's aunts, Geneva Jackson, who testified in general terms about the defendant's childhood. Jackson was one of the defendant's mother's sisters, and she stated that the defendant, while a youth, lived with her and other relatives for varying periods of time. The witness explained that the defendant was not able to live at home because the defendant's mother was not stable. The witness said further that the defendant's mother used drugs and alcohol. The second defense witness was the defendant's mother, whose testimony was even briefer than her sister's. She stated that she loved her son, that the defendant's biological father was dead, that she was divorced from her second husband, and that the defendant had lived with a number of her sisters for extended periods of time. In closing argument, counsel argued that three mitigating circumstances had been established in this case: that the defendant was young when he committed the offense, that he did not have a substantial criminal record, and that he came from a troubled background. Defense counsel also devoted a substantial part of his closing argument to an attack on the death penalty law, questioning its deterrent value and challenging its morality. The amended post-conviction petition alleges that trial counsel was ineffective for failing to investigate and present substantial evidence in mitigation that would have supported the defense theory at the sentencing hearing. Accompanying the defendant's amended post-conviction petition were a number of affidavits describing additional evidence in mitigation that defense counsel could have presented at sentencing. These witnesses included a mitigation specialist, Cynthia Hines, who submitted a report documenting the defendant's troubled childhood. Other witnesses included a number of family members and other relatives, who further *577 described the defendant's troubled childhood, his close relationship with his grandmother, who died when the defendant was 13, and his history of drug and alcohol abuse. These witnesses stated in their affidavits that defense counsel did not contact them prior to sentencing or ask them whether they would testify in the defendant's behalf at the hearing. The defendant's former stepfather, Clifford Rhymes, stated in his affidavit that he asked defense counsel whether he could testify for the defendant at the hearing, and counsel replied that his testimony would not be necessary. We note that the defendant's trial concluded on June 12, 1981; the sentencing hearing did not begin until July 28, 1981. Thus, defense counsel still had more than month after trial to complete their preparations for the sentencing hearing. Our cases have previously recognized that evidence of a difficult childhood is not inherently mitigating. People v. Madej, 177 Ill.2d 116, 140, 226 Ill.Dec. 453, 685 N.E.2d 908 (1997); People v. Sanchez, 169 Ill.2d 472, 491-92, 215 Ill.Dec. 59, 662 N.E.2d 1199 (1996). Similarly, there is nothing inherently mitigating about evidence regarding a defendant's history of drug and alcohol abuse. Madej, 177 Ill.2d at 138-39, 226 Ill.Dec. 453, 685 N.E.2d 908; People v. Shatner, 174 Ill.2d 133, 160, 220 Ill.Dec. 346, 673 N.E.2d 258 (1996). Accordingly, counsel is not automatically ineffective for failing to present evidence of that nature. In this case, however, defense counsel presented evidence about the defendant's background and argued to the sentencing judge that the defendant's difficult and tumultuous upbringing was a mitigating circumstance. Counsel apparently neglected, however, to investigate and present evidence that would have added substance to that argument and would have provided greater detail about the defendant's childhood and upbringing. The evidence presented by counsel showed only the broad outlines of this theory of mitigation, and counsel apparently presented only a small amount of the available evidence in support of this contention. Given the allegations raised in the defendant's amended post-conviction petition and the information accompanying the petition, we believe that an evidentiary hearing is warranted on this issue. People v. Ruiz, 132 Ill.2d 1, 24-28, 138 Ill.Dec. 201, 547 N.E.2d 170 (1989); see People v. Morgan, 187 Ill.2d 500, 241 Ill.Dec. 552, 719 N.E.2d 681 (1999) (ordering new sentencing hearing, following evidentiary hearing on allegations); People v. Perez, 148 Ill.2d 168, 170 Ill.Dec. 304, 592 N.E.2d 984 (1992) (same). For the reasons stated, the judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded to that court for further proceedings. Affirmed in part and reversed in part; cause remanded.