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73 B.R. 552 (1987) In re JET FLORIDA SYSTEM, INC., f/k/a Air Florida System, Inc., Debtor. In re AIRPORT SYSTEMS, INC., f/k/a Air Florida, Inc., Debtor. JET FLORIDA, INC., Plaintiff, v. AMERICAN AIRLINES, INC., Defendant. Bankruptcy No. 84-01223-BKC-SMW, Adv. No. 87-0105-BKC-SMW-A. United States Bankruptcy Court, S.D. Florida. May 14, 1987. *553 John K. Olson, Miami, Fla., for Jet Florida, Inc. Joseph A. Gassen, Stroock & Stroock & Lavan, Miami, Fla., for American Airlines, Inc. FINDINGS OF FACT AND CONCLUSIONS OF LAW SIDNEY M. WEAVER, Bankruptcy Judge. This adversary proceeding was tried by the Court on March 31, 1987. The Court having heard the testimony, examined the evidence, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law. This is a preference action brought by Jet Florida, Inc. ("Jet Florida"), the reorganized successor to the debtor Air Florida, Inc. ("Air Florida") under 11 U.S.C. § 547 to avoid, and under 11 U.S.C. § 550 to recover, a transfer made by Air Florida, to or for the benefit of American Airlines, Inc. ("American") on June 26, 1984, in the amount of $375,297.00, less an amount of $153,378.00 paid by American to Air Florida on June 28, 1984, for a net preferential transfer of $221,919.00. I. JET FLORIDA'S PRIMA FACIE CASE The transfers at issue here were made as part of a settlement process under which Air Florida and American cleared their mutual debts against one another through the Airlines Clearing House, Inc. ("ACH"). Under ACH agreements to which Air Florida and American were parties, ACH acted as agent for both airlines in reconciling and settling debts. During March 1984, Air Florida incurred aggregate net debt to other airlines clearing through ACH which was due to be paid under ACH rules on April 30, 1984 as part of Air Florida's routine transfer of claims against other airlines and cash. That debt was not timely paid because Air Florida did not have the money. During April 1984, Air Florida incurred additional aggregate net debt to other airlines clearing through ACH which was due to be paid under ACH rules on May 28, 1984 as part of Air Florida's routine transfer of claims against other *554 airlines and cash. That debt was likewise not timely paid because Air Florida did not have the money. As a result of its second successive default in transfers and payments to other airlines through ACH, Air Florida was expelled from ACH on May 29, 1984. After negotiating a loan from General Electric Credit Corporation over the Memorial Day weekend, Air Florida entered into a new special agreement with ACH on May 31, 1984, and paid sufficient funds into ACH on May 31, 1984 to pay in full all amounts due for the March and April 1984 transactions. During May 1984, Air Florida incurred $375,297.00 in debt to American. Under normal ACH rules, that amount was due to be paid to American as part of Air Florida's routine transfer of claims against other airlines and cash, including a net payment into ACH of $1,572,450.00, due June 28, 1984. However, because of the special restrictions imposed by ACH on Air Florida under the May 31, 1984 agreement, Air Florida was obliged to transfer its claims and pay the $1,572,450.00 into ACH on June 26, 1984, and it did so on that date. The Air Florida bankruptcy petition was filed one week later. In the aggregate, Air Florida satisfied antecedent obligations to American of $375,297.00 as a result of the transfer and payment made to ACH on June 26, 1984. The transfer of accounts receivable or choses in action as was undertaken by Air Florida here has long been recognized as giving rise to a recoverable preference. National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 635, 56 L.Ed. 1042 (1912). The transfers made here were all on account of antecedent debt. No evidence was presented to rebut the statutory presumption under 11 U.S.C. § 547(f) that Air Florida was insolvent throughout the 90 day period prior to its July 3, 1984 filing under Chapter 11. Jet Florida established through unrebutted testimony that American would have received nothing in a chapter 7 liquidation of Air Florida had (a) such a proceeding been filed on July 3, 1984, (b) the transfer of June 26, 1984 not been made and (c) American been obliged to look to payment under Title 11 distribution schemes. Accordingly, each of the affirmative elements of 11 U.S.C. § 547(b) was established by Jet Florida at trial. II. THE ROLE OF ACH Both Air Florida and American agreed contractually to settle their interline debts through ACH. ACH was an agent in the settlement process. In paying ACH and agreeing to settle its claims against American, Air Florida "transferred" property to ACH for the benefit of American. It is clear under 11 U.S.C. § 101(41) of the Bankruptcy Code in effect with respect to the Air Florida bankruptcy, now 11 U.S.C. § 101(48), that "transfers" include indirect dispositions of property and interest in property. This is consistent with well-established law. As stated in National Bank of Newport vs. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 635, 56 L.Ed. 1042 (1912): "To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another, for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it." Simply stated, transfers made by Air Florida for the benefit of American through their mutual agent, ACH, are avoidable under 11 U.S.C. § 547 and recoverable under 11 U.S.C. § 550(a) just as if they had been made directly to American. In re Blanton Smith Corp., 37 B.R. 303 (Bkcy.M.D.Tenn.1984). American has asserted as a defense that the indebtedness paid here was in fact indebtedness of Air Florida to ACH. ACH's role in the settlement of interline accounts among airlines has been determined to be that of a "mere conduit," Jet Florida, Inc. v. Airlines Clearing House, Inc., 69 B.R. 83 (Bkcy.S.D. Fla.1987), akin to the roles of a bank *555 receiving funds for its customer, In re Colombian Coffee Co., Inc., 59 B.R. 643, CCH Bankr.L.Rep. ¶ 71, 121 (Bkcy.S.D.Fla.1986), or a lawyer receiving funds for his client, In re Fabric Buys of Jericho, Inc., 33 B.R. 334 (Bkcy.S.D.N.Y.1983). American introduced no evidence which would show that ACH's role in the settlement process was other than that of a mere conduit. Accordingly, American was, in fact, the initial transferee of the preferential transfer under 11 U.S.C. § 550(a). III. AMERICAN'S CONTEMPORANEOUS EXCHANGE FOR NEW VALUE DEFENSE American claims, because its debt to Air Florida was settled at the same time as Air Florida's debt to American, that the contemporaneous settlements constituted a "contemporaneous exchange for new value" within the meaning of 11 U.S.C. § 547(c)(1). Jet Florida has conceded throughout this litigation that American is able to offset as new value (either contemporaneous or subsequent) the $153,378.00 it paid Air Florida against the $375,297.00 Air Florida paid American, leaving a net balance of $221,919.00. American introduced no evidence of any additional amounts paid as new value. American has also argued that Air Florida's readmission to ACH on May 31, 1984 and its continuity of membership in ACH constituted "new value." However, American offered no evidence which supports its assertion that continued membership in ACH was of value to Air Florida in the seven days between June 26, 1984, the payment date, and July 3, 1984, the day Air Florida filed its bankruptcy petition. American established that participation by an airline in the Airline Reporting Corporation ("ARC") was important to travel agents, but presented no evidence of the relationship, if any, between ARC and ACH. American further presented no credible evidence as to the benefit to Air Florida in economic terms of its membership in ACH during the relevant seven-day period. Had Air Florida not made the payment to ACH for the benefit of American and other airlines, it would have had more than $1,500,000.00 in additional cash on hand, an amount which would have been of enormously greater value to Air Florida than the illusory value of another week's membership in ACH. IV. AMERICAN'S ORDINARY COURSE OF BUSINESS DEFENSE American has asserted a defense under 11 U.S.C. § 547(c)(2), which requires it to establish, inter alia, that the transfers from Air Florida to American were "(B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms." Under the ACH rules, payments due ACH as agent for the various airlines are due on the 28th of each month, or on the first business day thereafter. The "ordinary course of business" thus contemplated a payment by Air Florida to American through ACH on June 28, 1984. Air Florida in fact paid on June 26, 1984 under the terms of its special and unique agreement of May 31, 1984. This difference in payment dates is significant given the amounts involved and Air Florida's financial condition. American contends that the May 31, 1984 agreement gave rise to a new "ordinary course of business" applicable to Air Florida. For that proposition, it introduced in evidence amended ACH rules adopted after the relevant period, almost all of the pages of which bear an effective date of December 1, 1986, some two and one-half years after the fact. It can hardly be said that rules adopted two and one-half years later demonstrate that a new "ordinary course of business" came into being in May and June of 1984. Moreover, American presented no evidence whatever as to what portion of Air Florida's May 1984 debt to American of *556 $375,297.00 was incurred within 45 days of the late June 1984 transfer of cash and claims by Air Florida to ACH. Thus on a purely factual basis American has failed to carry its burden under 11 U.S.C. § 547(c)(2). V. AMERICAN FAILED TO ESTABLISH THAT IT GAVE NEW VALUE American asserts that it gave new value to Air Florida after June 26, 1984 in the form of providing ground handling and other services. American failed to introduce any evidence as to the value of services it provided to Air Florida subsequent to June 26, 1984, and failed to introduce any evidence that it has not been paid for those services. American has therefore failed to meet its burden under 11 U.S.C. § 547(c)(4). VI. AMERICAN FAILED TO ESTABLISH THAT JET FLORIDA IS NOT A PROPER PARTY American contends that Jet Florida, "a reorganized entity which is solvent and pays its obligations as they become due, does not have the right to pursue preference actions which comprised property of the Debtor's estate." The confirmation order entered herein on August 7, 1986, Jet Florida's Exhibit 6, specifically retained the jurisdiction of this Court for the bringing and determination of preference actions such as this one. Eighty percent of the proceeds of such actions go to former creditors of Air Florida under the reorganization plan and the confirmation order. Even the twenty percent remaining in the hands of the reorganized company beneficially goes to Air Florida's former creditors, who owned all of the stock of Jet Florida after confirmation. This preference cause of action was specifically dealt with in the plan and in the confirmation order, and the proceeds of this cause of action directly and indirectly benefit Air Florida's creditors. Jet Florida is clearly a proper party plaintiff. VII. NO STATUTE OF LIMITATIONS BARS THIS CLAIM American contends that this action is barred by the statute of limitations set forth in 11 U.S.C. § 546(a)(1). That statute bars preference actions unless they are brought before the earlier of two years from the appointment of a trustee under 11 U.S.C. § 1104 and the closing or dismissal of the case. The case has not been closed or dismissed. No trustee was appointed herein under 11 U.S.C. § 1104. The statute of limitations under 11 U.S.C. § 546(a) does not begin to run against a debtor in possession until and unless a trustee is actually appointed. In re One Marketing, Inc., 8 B.C.D. 917 (Bkcy.S.D.Tex.1982); Matter of Silver Mill Frozen Foods, Inc., 23 B.R. 179 (Bkcy.W.D.Mich.1982); In re Alithochrome Corp., 53 B.R. 906 (Bkcy.S.D.N.Y. 1985); 4 Collier on Bankruptcy ¶ 546.02[2] (15th ed.). CONCLUSION Based upon the foregoing findings of fact and conclusions of law, Jet Florida has successfully established that American received a preference in the amount $375,297.00, against which American has a setoff defense in the amount of $153,378.00, leaving a net recoverable preference for Jet Florida of $221,919.00. A separate final judgment of even date will be entered in conformity herewith.

T.C. Memo. 2005-165 UNITED STATES TAX COURT GREGORY CHARLES CARLO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 9750-04. Filed July 5, 2005. Gregory Charles Carlo, pro se. Cynthia A. Berry, for respondent. MEMORANDUM OPINION WELLS, Judge: This matter is before the Court on respondent’s motion to dismiss for lack of prosecution pursuant to Rule 123(b). All section references are to the Internal Revenue Code, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.  - 2 - Background Petitioner did not file a 1999 Federal income tax return. Consequently, on March 12, 2004, respondent mailed a notice of deficiency for 1999 to petitioner’s last known address. In the notice of deficiency, respondent determined a deficiency in petitioner’s 1999 Federal income tax of $46,434, a section 6651(a)(1) failure-to-file addition to tax of $10,354.50, a section 6651(a)(2) failure to pay addition to tax,1 and a section 6654 estimated tax addition to tax of $2,229.95. Petitioner timely petitioned this Court for a redetermination of the deficiency. At the time of filing the petition, petitioner resided in North Chatham, Massachusetts. The petition made the following contentions: I would like to have a redetermination because the forms I was sent have me as single with no dependents, I am married with 2 children. In 1999 I sent all my deductions & tax information to my accountant. I am willing to pay my share, but the amount listed is more than I make in a year. Enclosed is a payment towards my 1999 taxes, so I can begin to pay something. The Court’s notice setting case for trial and standing pretrial order were served on October 1, 2004, and this case was calendared for trial on March 7, 2005. In pertinent part, the notice states: The calendar for that Session will be called at 10:00 A.M. on that date and both parties are expected 1 The amount of any addition to tax under sec. 6651(a)(2) shall be determined pursuant to sec. 6651(a)(2), (b), and (c).  - 3 - to be present at that time and be prepared to try the case. YOUR FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST YOU. Your attention is called to the Court’s requirement that, if the case cannot be settled on a mutually satisfactory basis, the parties, before trial, must agree in writing to all facts and all documents about which there should be no disagreement. Therefore, the parties should contact each other promptly and cooperate fully so that the necessary steps can be taken to comply with this requirement. YOUR FAILURE TO COOPERATE MAY ALSO RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST YOU. The standing pretrial order states further: The parties shall begin discussions as soon as practicable for purposes of settlement and/or preparation of a stipulation of facts. * * * * * * * The Court may impose appropriate sanctions, including dismissal, for any unexcused failure to comply with this Order. * * * * * * * ORDERED that all parties shall be prepared for trial at any time during the term of the trial session unless a specific date has been previously set by the court. The instant case was referred for possible settlement to Appeals Officer Timothy M. Harrigan. Petitioner neither attended a scheduled settlement conference nor contacted the Appeals Office to reschedule. In a letter dated December 20, 2004, respondent requested information from petitioner and advised petitioner that, if he failed to respond or appear at trial, respondent would file a  - 4 - motion to dismiss, which could result in the Court’s holding petitioner liable for the full amount of the deficiency plus applicable additions to tax and interest. Receiving no response to the letter of December 20, 2004, respondent subsequently called petitioner at the number petitioner provided and left a voice message requesting that petitioner contact respondent. Petitioner did not respond. On January 26, 2005, respondent mailed petitioner a Branerton letter, see Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), requesting specific documents from petitioner and a conference on February 1, 2005. The letter again advised petitioner of the possibility of a dismissal, making petitioner liable for the full deficiency plus additions and interest. Petitioner neither attended the scheduled conference nor contacted respondent to reschedule. When the instant case was called for trial, there was no appearance by or on behalf of petitioner. Counsel for respondent appeared and presented oral arguments in support of the instant motion to dismiss. Discussion The Court may dismiss a case at any time and enter a decision against the taxpayer for failure properly to prosecute, failure to comply with the Rules of the Court or any order of the Court, or any cause the Court deems sufficient. Rule 123(b).  - 5 - The Court may dismiss a case for lack of prosecution if the taxpayer inexcusably fails to appear at trial and does not otherwise participate in the resolution of his claim. Id.; Rollercade, Inc. v. Commissioner, 97 T.C. 113, 116-117 (1991). We conclude that petitioner has failed to comply with this Court’s Rules and orders and has failed properly to prosecute the instant case. Petitioner failed to appear at trial. Petitioner did not participate in the stipulation process. Petitioner has not submitted any evidence in support of his petition. Neither this Court nor respondent has had any contact with petitioner since the petition was filed. Consequently, we will grant respondent’s motion to dismiss for failure to prosecute. Rule 34(b)(4) requires that a petition in a deficiency action shall contain “clear and concise assignments of each and every error” that the taxpayer alleges the Commissioner committed in the determination of the deficiency and the additions to tax in dispute. Rule 34(b)(5) further requires that the petition shall contain clear and concise lettered statements of the facts upon which the taxpayer bases the assignments of error. Funk v. Commissioner, 123 T.C. 213, 215 (2004); Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). This Court deems the parties to concede any issue, including additions to tax, not raised in the pleadings. Rule 34(b)(4); Funk v. Commissioner, supra at 215; Jarvis v. Commissioner, supra at 658 n.19.  - 6 - The petition in the instant case did not contain any specific allegations regarding any of the three additions to tax or facts to support any such allegations. Therefore, these issues are all deemed conceded by petitioner, and respondent has no burden of production under section 7491(c). See Funk v. Commissioner, supra; Swain v. Commissioner, 118 T.C. 358, 363-364 (2002). Accordingly, respondent’s motion to dismiss for failure properly to prosecute will be granted. To reflect the foregoing, Decision will be entered under Rule 155. 

541 U.S. 1077 STEWARTv.ASHCROFT, ATTORNEY GENERAL, ET AL. No. 03-9668. Supreme Court of United States. June 1, 2004. 1 C. A. 5th Cir. Certiorari denied.

401 N.W.2d 662 (1987) Beverly DORN, Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner, Appellant. No. C3-86-250. Supreme Court of Minnesota. March 6, 1987. Michael S. Kreidler, Minneapolis, for appellant. Douglas E. Schmidt, Minneapolis, for respondent. Heard, considered, and decided by the court en banc. YETKA, Justice. This case comes on appeal from the court of appeals' decision based on its reading of the relevant statute that appellant's insurance policy covered injuries suffered by respondent in an automobile accident. We affirm in part, but reverse the award of $60,000 and remand to the trial court for entry of judgment for $25,000. The facts giving rise to this lawsuit have been stipulated to by the two parties. Beverly Dorn was involved in a motor vehicle accident on June 19, 1978, while riding as a passenger in an automobile operated by her daughter, Wanda Lucius. There was a second motor vehicle involved in this accident which was owned and operated by Diane Kay Onken. There was no automobile liability insurance in effect on the Onken automobile at the time of the subject accident *663 and Onken was uninsured. At the time of the accident, there was in effect a policy of automobile liability insurance issued by appellant Liberty Mutual Fire Insurance Company (Liberty Mutual) to Walter Lucius, the husband of Wanda Lucius. This policy of insurance provided coverage for two motor vehicles owned by Walter Lucius and included uninsured motorist coverage which provided $60,000 in uninsured motorist coverage for each person/each accident. The injuries and damages sustained by Wanda Lucius were of a serious and permanent nature and she subsequently applied to Liberty Mutual for payment of the limits of the uninsured motorist coverage provided by its policy. On May 21, 1982, Wanda Lucius accepted the sum of $120,000 in uninsured motorist benefits, the limits of such coverage under the policy. Respondent Dorn admits that the settlement of the uninsured motorist claim of Wanda Lucius in the amount of $120,000 was reasonable and provident. Dorn subsequently notified Liberty Mutual on March 27, 1984, nearly 2 years later, of her intent to present a claim for uninsured motorist benefits. The parties arbitrated the uninsured motorist claim of Dorn against Liberty Mutual for the purpose of determining the value of that claim. The arbitrator decided that the uninsured motorists claim of Beverly Dorn was worth in excess of $60,000. On January 17, 1985, the present lawsuit was commenced in district court. The court found that Liberty Mutual's policy did cover Dorn's injuries, and the court of appeals affirmed that decision. Both awarded Dorn $60,000. The issues raised on appeal are: I. Does the insurance policy provide a single limit to recovery from an accident regardless of the number injured? II. What are the policy limits if the policy is found statutorily invalid? The face sheet of the policy limits under-insured motorists insurance to $60,000 for "ea. person/ea. acc." The language of this policy is, thus, not ambiguous. It offers coverage of $60,000 for each person, but the maximum for each accident is also $60,000. The same law firm represented both Wanda Lucius and Beverly Dorn, Lucius being the daughter of Dorn. Thus, counsel for both sides in this case were well aware when they settled the Wanda Lucius case that the policy limits had been exhausted. Respondent's attorney admitted at oral argument that, at the time of Lucius' settlement, Dorn's objective was to see her daughter compensated to the fullest. Her own claims were secondary to her at that time. Almost 2 years later, Dorn filed a separate claim alleging that the policy also covered her for $60,000. Since the policy language, as noted, unambiguously limits recovery to $60,000 per accident, the basis for this claim can only be that applicable statutes prevent the first claimant from exhausting the policy limits. Minn.Stat. § 65B.49, subd. 4(1) (1978), effective at the date of this accident, stated in part as follows: No plan of reparation security may be renewed, delivered or issued * * * unless coverage is provided therein or supplemental thereto, in the amounts of $25,000 because of injury to or the death of one person in any accident, and subject to the said limit for one person, $50,000 because of bodily injury to or the death of two or more persons in any one accident * * *. Id. (emphasis added). There would be no reason to differentiate the limits of $25,000 for each person and $50,000 for each accident if the legislature intended that a single insured could collect the total policy limits and thus preclude all others from recovering. A 1985 statutory amendment clarifies this section further to make it clear that that was the legislative intent. In 1985, the subdivision above quoted was amended to read: The coverages combined, at a minimum, must provide limits of $25,000 because of injury to or the death of one person in *664 any accident and $50,000 because of injury to or the death of two or more persons in any accident. In the case of injury to, or the death of, two or more persons in any accident, the amount available to any one person must not exceed the coverage limit provided for injury to, or the death of, one person in any accident. For purposes of this subdivision, uninsured motorist coverage and under-insured motorist coverage shall be a single coverage. Minn.Stat. § 65B.49, subd. 3a(1) (1986) (emphasis added) (Act of May 21, 1985, ch. 168, § 11, 1985 Minn.Laws 455, 458). We agree with both lower courts that Wanda Lucius could not exhaust the policy limits, but that leaves open the question of what amount Dorn is entitled to collect. The trial court and the court of appeals, 392 N.W.2d 277, both held that she could collect $60,000, the amount specified in the policy as the limit for each person. Respondent's counsel cites our case of Burgraff v. Aetna Life & Casualty Co., 346 N.W.2d 627 (Minn.1984), as authority. However, that case dealt with the determination of whether an insurance policy exclusion complied with the statute. It did not decide the question presented in this case: how an insurance policy is to be rewritten once it is found to violate the statute. The court finds that the policy should be rewritten to require a $25,000 statutory coverage available to Dorn, not the $60,000 allowed by the trial court. The court of appeals is thus affirmed in finding coverage, but reversed on awarding $60,000. The case is remanded to the trial court to allow Dorn to recover $25,000.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 821 KA 09-00152 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER WILLIE J. PRUITT, DEFENDANT-APPELLANT. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LORETTA S. COURTNEY OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered December 3, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in or near school grounds. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44 [2]). Contrary to defendant’s contention, the sentence is not unduly harsh or severe. We note however, that the certificate of conviction incorrectly recites that defendant was convicted of criminal sale of a controlled substance in the third degree under Penal Law § 220.39 (1), and it must therefore be amended to reflect that he was convicted of criminal sale of a controlled substance in or near school grounds under Penal Law § 220.44 (2) (see People v Saxton, 32 AD3d 1286). Entered: July 1, 2011 Patricia L. Morgan Clerk of the Court 

878 F.2d 1433 Thompsonv.Bowen* NO. 88-1782 United States Court of Appeals,Fifth Circuit. JUN 29, 1989 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

154 B.R. 682 (1993) In re ABACUS BROADCASTING CORP., Debtor. Bankruptcy No. 92-31540-C. United States Bankruptcy Court, W.D. Texas, El Paso Division. April 30, 1993. William R. Davis, Jr., Stryker & Davis, San Antonio, TX, for debtor. E.P. Bud Kirk, El Paso, TX, for David Gladwell, Chapter 7 Trustee. DECISION AND ORDER DENYING MOTION TO RECONSIDER ORDER TRANSFERRING VENUE LEIF M. CLARK, Bankruptcy Judge. CAME ON for consideration the motion of Abacus Broadcasting Corp. to reconsider this court's bench ruling and order transferring venue of this case to the District of Utah. Upon consideration thereof, it is the ruling of the court that the motion is not well taken and should be denied. BACKGROUND FACTS Abacus Broadcasting is a Texas corporation which owns radio stations in Salt Lake City and Ogden, Utah. It purchased the stations from bankruptcy estates in cases pending in Salt Lake City — Utah Broadcasting *683 Corp. and Sherman-Greenleigh-Sanchez Broadcasting of Utah, Inc. These cases were consolidated and are currently being administered by a chapter 7 trustee, David Gladwell. Mr. Gladwell, in essence, sold the stations to Abacus on credit, taking back a security interest and note. As such, Mr. Gladwell, as trustee, is the largest secured creditor of Abacus, to the tune of more than $7 million. After a default by Abacus, a Utah bankruptcy judge ordered that foreclosure proceedings could be instituted against Abacus. This bankruptcy followed not long after — not in Salt Lake City but in El Paso. The principal of Abacus is one Garrett Haston, a resident of El Paso who has been involved in the broadcasting business for some time. In fact, he was the former owner of KEZB, Inc., an El Paso radio station itself in bankruptcy. Mr. Haston had sold KEZB to one Mr. Rich, who filed bankruptcy. As part of a plan, the station was sold to Heritage Broadcasting. Obligations due Mr. Rich's estate were not paid by the new purchasers. The creditor's committee (which had been the plan proponent), sued Heritage and KEZB. KEZB filed its own bankruptcy after suffering a judgment. Mr. Haston asserts a claim against KEZB for various items, including tower rental. Abacus entered bankruptcy without the benefit of active counsel. The Utah attorney who filed the case in El Paso quickly withdrew. The debtor was still trying to find substitute counsel when Mr. Gladwell sought protection of his cash collateral. Only after an order was entered restricting the debtor's use of cash collateral did the debtor (through Mr. Haston) find counsel to handle the case — a lawyer from San Antonio. Gladwell filed a motion to transfer venue. After an evidentiary hearing, the court ruled from the bench that venue should be transferred to Salt Lake City. The court acknowledged that venue was permissible in El Paso, but concluded that it was more appropriately placed in Salt Lake City, given that that is the location of the radio stations and their employees. The court specifically noted that, for an operation such as a radio station, it made much more sense to locate the bankruptcy in a venue where the judge presiding would more likely have active familiarity with the community and the milieu in which the station operated, for such a judge would be in a much better position to gauge the likelihood of an effective reorganization.[1] In addition, the bankruptcy judges in Salt Lake City are already specifically familiar with the players in this case, having dealt with them already in the prior cases over which Mr. Gladwell currently functions as trustee. Abacus now seeks reconsideration of this court's decision, arguing that (1) a debtor's selection of venue is entitled to some deference,[2] (2) most of the estate's creditors, along with its principal, are located outside Utah anyway, (3) a radio station, unlike a department store, is more generic and so special contacts with the community are not as relevant, and (4) Mr. Haston already has a claim in the KEZB bankruptcy case, *684 pending in El Paso, and this claim (says Haston) belongs to Abacus. Objections to the motion for reconsideration were filed by Mr. Gladwell and by Bechtel & Cole, the latter a Washington, D.C.-based law firm which specializes in FCC work. B & C is owed over $85,000, according to its objection. ANALYSIS The case law on venue selection is relatively well-developed. This case warrants a written decision for its resolution primarily because its facts underscore a concern not often expressly addressed in these cases, namely the importance of having a judge preside over a case who is sufficiently familiar with the milieu in which the enterprise operates to be able to test with good judgment and common sense the contentions of the parties during the reorganization process. In addition, the court writes to underscore the danger of forum shopping (or, more insidiously, judge shopping) in the placement of venue in reorganization proceedings. In 1979, this circuit set out the factors which ought to figure into the determination of permissive venue in a bankruptcy case. Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co., Inc. (In re Commonwealth Oil Refining Company, Inc.), 596 F.2d 1239, 1247 (5th Cir.1979, cert. den., 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980). The factors include (1) the proximity to the court of the estate's creditors, assets, and the debtor, as well as the witnesses and evidence that might have to be adduced for hearings, (2) the relative economic harm to debtors and creditors if the case were transferred, (3) the economics of administering the estate, (4) the effect of a transfer on the willingness or ability of parties to participate in the case, and (5) the availability of compulsory process and the cost associated with obtaining the testimony of witnesses unwilling to testify voluntarily. CORCO has been followed by numerous other courts. See, e.g., Hadar Leasing Int'l Co., Inc. v. D.H. Overmyer Telecasting Co., Inc. (In re Hadar Leasing Int'l Co., Inc.), 14 B.R. 819, 820 (S.D.N.Y.1981); In re Boca Development Assoc., 18 B.R. 648, 652 (Bankr.S.D.N.Y.1982); Baltimore Food Systems, Inc., 71 B.R. 795, 802 (Bankr.D.S.C.1986). In weighing these factors, most courts give the most deference to whether a transfer of venue would promote economic and efficient administration of the estate. See In re Lakeside Utilities, 18 B.R. 115, 118 (Bankr.D.Neb.1982); In re Willows Ltd. Partnership, 87 B.R. 684, 686 (Bankr.S.D.Ala.1988); In re Pickwick Place Ltd. Partnership, 63 B.R. 290, 291 (Bankr.N.D.Ill.1986); In re Eleven Oak Towers, Ltd. Partnership, 59 B.R. 626, 629 (Bankr.N.D.Ga.1985); In re Old Delmar Corp., 45 B.R. 883, 884 (Bankr.S.D.N.Y. 1985). In this case, economic and efficient administration easily overwhelm whatever deference Abacus believes its venue decision should be accorded. The estate's employees are all in Salt Lake City, Utah. They cannot be expected to appear at a first meeting of creditors in El Paso, Texas, nor can they easily assert and defend their wage claims if claims objections are filed. They cannot easily appear in court to testify for cash collateral budgets or confirmation feasibility. At least in this court's experience with radio station bankruptcy cases,[3] employees are vitally interested in and integral to the station's reorganization. Were it necessary to convert this case to chapter 7, the U.S. Trustee would routinely appoint a panel trustee in El Paso, but the trustee would then have to administer assets in a city 1000 miles away. The largest and most active creditor in the case, Mr. Gladwell, would have to exhaust estate assets in another bankruptcy case just to appear at hearings were venue to be maintained in El Paso.[4] Mr. Haston of *685 course offices in El Paso, and maintains many of the radio station's records here. He also arranged for Abacus to borrow money from a local El Paso bank. On balance, however, the facts weigh more heavily toward transfer than to retention.[5] As earlier mentioned, the facts of this case highlight two specific features that ought not to be overlooked when venue is raised. One of these has to do with the ability of the presiding judge to evaluate the merits of the case in the milieu in which the debtor operates. The other has to do with forum shopping. As with so many items left to the discretion of the trial judge, venue does not easily submit to hard and fast rules. Certainly there are many cases filed in venues far distant from the debtor's operations which nonetheless succeed, some because the judge's familiarity with the environment in which operations are conducted ends up being relatively unimportant to the reorganization effort. But just as certainly, there are cases that have foundered in no small part due to the bankruptcy judge's lack of familiarity with that environment and his or her consequent inability to evaluate the enterprise's real chances for success in chapter 11. In bankruptcy, more than in most other kinds of federal proceedings, judges tend to draw on their experience to test the promises and platitudes floated up to the bench. The rules of evidence have long recognized the propriety of courts' drawing on common experience, as they recognize the propriety of "taking judicial notice" of matters within the ready and common experience of the judge presiding *686 over the case. FED.R.EVID. 201; see, e.g., United States v. Ceballos, 719 F.Supp. 119 (E.D.N.Y.1989) (judicial notice taken of drug dealers' use of beepers and public telephones in their trade); Rutherford v. Sea-Land Service, Inc., 575 F.Supp. 1365 (D.Cal.1983) (judicial notice taken that $8 per day insufficient to obtain a room and three meals daily); Southern Arizona York Refrigeration Co. v. Bush Mfg., Co., 331 F.2d 1 (9th Cir.1964) (judicial notice taken that gas does not escape from properly installed coil). In bankruptcy especially, judicial notice is a jurisprudentially sound thing to do. We do not evaluate cases in splendid isolation from the outside world, nor should we. The enterprise that seeks reorganization must satisfy the court that it is a likely candidate for reorganization, that it has a fighting chance of surviving, even prospering, in the economic community in which it operates. How much more difficult it is for a judge to make such an evaluation without any personal experience with at least the general tenor of that economic community. What, for example, does a judge in Chicago, or Detroit, or Los Angeles, really know about the survivability of a restaurant on the Riverwalk in San Antonio? What do I know of the prospects of a small manufacturing enterprise in South Los Angeles? Can a judge in Pittsburgh have any real sense of the likelihood of reorganization of an oil drilling venture whose most valuable prospects are horizontal wells to be drilled in the Austin Chalk? What do I really know about the market for commercial boats operating out of Miami harbor? Granted a court cannot premise its decisions just on its "gut feel" for the community (nor should it). It still requires hard evidence, in the form of testimony and the like. But that is not to say that the court's familiarity with milieu is not highly relevant, for it is. Better, then, that in evaluating a request for transfer of venue, the court take into account the extent to which a judge "on the ground" as it were might more effectively and efficiently (and perhaps even more fairly) administer the case than might a judge far removed from the debtor's operations.[6] Then there is the issue of forum shopping. How much deference should be given to a forum selected primarily by the lawyers, for their own convenience or concern for remuneration? How much deference should be given to a debtor's concern that it get what it perceives to be a "debtor's judge?" Whenever a creditor raises the venue question, none at all.[7] Forum shopping has never been favored by federal courts, and courts are quick to discern the evil in all its disguises. See, e.g., Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984); Intern. Rectifyer Corp. v. American Cyanamid Co., 520 F.Supp. 635, 639 (D.Minn.1981); In re Heritage Wood'N Lakes Estates, Inc., 73 B.R. 511, 514 (Bankr.M.D.Fla.1987). In bankruptcy, too often the tactic is masked by pious pronouncements about the debtor's "right" to select the most advantageous of several possible forums, in order to advance the prospects for reorganization. *687 That rationale, however, should in the usual instance, be taken with several grains of salt. Too many corporations with familiar household names are operating in bankruptcy under the name of some obscure subsidiary whose venue happens to coincide with either the debtor's or the debtor's lawyers' perception of the most favorable judicial forum in which to operate.[8] This tactic is not simply unfair to the creditors of these estates. It is also unfair to the judges. In this case, the smell of forum shopping is strong indeed. Pursued by a chapter 7 trustee with obvious limitations on his resources, and having fared badly in the Utah bankruptcy courts, the debtor settles on El Paso, Texas, where its principal, Mr. Haston has enjoyed some (though not unalloyed) success, and is at least a known quantity. Never mind that the station's employees will never be able to attend a hearing (they were not even listed in the debtor's schedules as creditors), and never mind that the court has no earthly idea what the Salt Lake City market is like. Indeed, the lawyer that filed the case for Abacus was from Salt Lake City. The attempt at forum shopping is obvious. It is also impermissible. For all the foregoing reasons, the court here affirms its bench ruling and order that venue of this case should be transferred to the District of Utah. The clerk of the court is directed to assemble and transfer the file with all deliberate speed. Until such time as the transfer is formally accomplished, creditors and parties in interest shall continue to have access to this court in order to protect their rights. So ORDERED. NOTES [1] The court specifically adverted in its oral ruling to the unfortunate outcome in the Frost Brothers bankruptcy, a case involving a well-known upscale department store native to San Antonio, with stores in Houston, Austin, and Dallas. The case was filed in the Southern District of New York. Efforts by interested parties to work out a reorganization were unsuccessful, and the department stores were liquidated, leaving empty anchor tenant space in shopping centers that took years to fill (some are still empty). The bankruptcy judge in New York City had no personal familiarity with the department store or its place in the local community, and hence no way to gauge the stores' place in the local economy (and no way to know the reputation the stores enjoyed in the community). While reorganization might have been no more assured had the cases been filed in Texas, at least the decision would have been made with all the relevant information at the judge's disposal, including information of which the local bankruptcy judge could reasonably take judicial notice. [2] Abacus cites for this proposition In re Pinehaven Associates, 132 B.R. 982 (Bankr.E.D.N.Y. 1991) and In re Legend Industries, Inc., 49 B.R. 935 (Bankr.E.D.N.Y.1985). In the latter case, the court observed that, where transfer of venue would merely shift the inconvenience from one party to the other, or where after balancing all factors, the equities lean only slightly in favor of the movant, the debtor's choice of forum should not be disturbed. [3] There have been three such cases in this judge's tenure since 1988. [4] Mr. Haston retorts that, if the case is moved to Salt Lake City, it will be he who has to exhaust resources in order to actively participate in the case. The point is certainly relevant, but then Mr. Haston volunteered for inconvenience when he made the decision to purchase a radio station so far distant from his home. Interestingly enough, the largest shareholder of Corco, Tesoro Petroleum, moved the company's corporate headquarters to San Antonio, Texas, where its own offices were located, even though the refinery itself and all its employees were located in Puerto Rico. That the facts in that case justified leaving venue in San Antonio do not mean that the owner's locus should dictate venue in every case. Indeed, the locus of the refinery in Corco, as it turned out, was relatively unimportant to the reorganization of the refinery, as national and international oil prices and markets were far more important to the company's future than was the physical location of the refinery. Virtually all of the witnesses important to the reorganization effort (and virtually all of the company's voluminous records) were located in San Antonio. Access to San Antonio, while not so convenient as other major cities, was at least easier than was access to San Juan. [5] Strictly applying the CORCO factors, we come up with the following: 1. Creditors are either in El Paso, or Salt Lake City, or scattered about the country. The largest creditor, and the one with a security interest in the assets, is located in Salt Lake City. 2. The debtor is located in El Paso and Salt Lake City, given that the corporate office was moved to El Paso, along with records and files, but management and operations are located in Salt Lake City. 3. The assets are located in Utah. 4. All of the witnesses to the debtor's operations, as well as the witnesses likely to be called by the largest secured creditor, are located in Salt Lake City. The principal witness for plan purposes (other than feasibility and best interests analysis) is in El Paso, in the person of Garrett Haston. 5. The relative economic harm to the debtor in transferring the case to Salt Lake City is minimal. The debtor's owner, Mr. Haston, would suffer economic harm, however. The economic harm to the secured creditor, by contrast, would be severe, as the trustee must look to the limited assets of another bankruptcy estate just to fund his protecting that estate's interest in this estate. 6. The economics of administering the estate auger for Salt Lake City, as the court there is better familiar with the environment in which the station operates, employees are more readily available to the court for contested matters, the court there is already administering the estate in which Mr. Gladwell serves as trustee, the court is familiar with the parties, Salt Lake City is a more easily accessible city for most out-of-town creditors (including B & C), a trustee, should one need to be appointed, should be from Salt Lake City, for ease of access to the assets, and the estate's bank account can be located in the same city as the estate's operations, making monitoring by the U.S. Trustee easier (should that prove to be necessary). 7. In terms of willingness of parties to participate in the case, the only recalcitrant voice to be heard were the case transferred would be that of Mr. Haston. However, his unwillingness should not figure into the process, as any debtor that files bankruptcy has a duty to cooperate in the administration of the case, overriding any "unwillingness" the debtor or its principals might have. See 11 U.S.C. § 521. 8. The availability of compulsory process is not highly relevant in this case — at least not at this stage. See In re Commonwealth Oil Refining Co., Inc., supra. [6] This position is not inconsistent with this court's prior ruling in In re Lazaro, 128 B.R. 168 (Bankr.W.D.Tex.1992), in which this court elected to retain rather than dismiss a case even though the venue selected was improper. There, the principle question resolved was whether Rule 1014 compelled transfer or dismissal upon a finding that venue was improper. There was never any real question there about whether the judge had sufficient familiarity with the community in which the debtor lived and worked to handle the case efficiently and fairly; the issue was never raised, and in any event, Las Cruces, though in a different judicial district, is geographically close to El Paso. [7] If no creditor or party in interest (including the U.S. Trustee) raises the question, however, then in the usual instance, the court will not raise it sua sponte. Bankruptcy judges do have significant responsibility to affirmatively manage their case load, to be sure, but they are first and foremost judicial officers, not case administrators. See Matter of Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363, 373-74 & n. 18 (5th Cir.1987); aff'd 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (acknowledging the changes wrought by the 1978 Code, and analogizing the judicial management duties of the bankruptcy judge to those routinely exercised by district judges pursuant to Rule 16 of the Federal Rules of Civil Procedure). [8] Eastern Airlines' bankruptcy case, for example, was filed in New York, under the name of one of its subsidiaries, Ionospere Clubs. So was LTV, under the name of one of its affiliated corporations, Chateaugay.

431 F.2d 642 UNITED STATES of America, Plaintiff-Appellee,v.William Franklin SECKLER, Defendant-Appellant. No. 29241 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 10, 1970. Julia A. Gorcia, Laredo, Tex., (Ct. apptd.), for appellant. Anthony J. P. Farris, U. S. Atty., Malcolm R. Dimmitt, James R. Gough, Asst. U. S. Attys., Houston, Tex., for appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. PER CURIAM. 1 Seckler appeals following his conviction under 18 U.S.C.A. § 922(g) (1).1 Appellant's sole contention is that the district court erred in refusing to grant his motion for a directed verdict of acquittal, which was entered at the close of the Government's case and renewed after presentation of all the evidence. We affirm. 2 The parties do not dispute the facts in this case. On September 27, 1969, at approximately 5:00 a.m., Seckler drove from Mexico to the United States Customs Station in Laredo, Texas. There Customs Inspector Biamonte asked Seckler and his passenger, Ludlow, whether either had anything to declare. After both had replied in the negative, Inspector Biamonte searched the car. He discovered a pistol under the driver's seat. At Biamonte's request the two men then accompanied him into the customs station. Special Agent Anderson questioned Seckler, who admitted having taken the gun from a drinking companion and having placed it under the driver's seat of the car in Waco, Texas, several days earlier. 3 At Seckler's trial Inspector Biamonte and Agent Anderson testified concerning the events delineated above. Moreover, the Government produced evidence of Seckler's previous criminal convictions. Taking the stand on his own behalf, Seckler denied that he had placed the pistol in his automobile and claimed ignorance as to how it had become lodged under the driver's seat. Subsequently he moved that the charges against him be dismissed because of insufficient evidence corroborating his prior admission. The trial court denied his motion. 4 Smith v. United States, 1954, 348 U.S. 147, 151-157, 75 S.Ct. 194, 99 L.Ed. 192, and Opper v. United States, 1954, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101, clearly indicate that corroborative evidence need not be sufficient, independent of a confession or admission of an accused, to establish all elements of a crime allegedly committed. Indeed, the Government fulfills its duty when it introduces substantial independent evidence which tends to establish the trustworthiness of an accused's admissions. Of course, an admission coupled with independent corroborating evidence must ultimately be sufficient to justify a jury verdict of guilty beyond a reasonable doubt. Opper v. United States, supra, at 93, 75 S. Ct. 158. In other words, all elements of an offense must be established by independent evidence or corroborated admissions. However, one available mode of corroboration is utilized when independent evidence bolsters an admission and thereby proves the offense "through" the accused's own statements. Smith v. United States, supra, at 156, 75 S.Ct. 194.2 5 Here the testimony of Inspector Biamonte and Agent Anderson, as well as the exhibits introduced by the Government, independently buttressed Seckler's admission that he had knowingly transported the pistol from Texas to Mexico. The trial court correctly denied Seckler's request for a directed verdict of acquittal. 6 Affirmed. Notes: * Rule 18, 5th Cir., See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir., 1970, 431 F.2d 409, Part I 1 18 U.S.C.A. § 922(g) (1) provides: It shall be unlawful for any person — (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to ship or transport any firearm or ammunition in interstate or foreign commerce. 2 This and other circuits have consistently followed theOpper-Smith rule in similar cases. E. g., Moll v. United States, 5 Cir. 1969, 413 F.2d 1233, 1238-1239; Mapys v. United States, 10 Cir. 1969, 409 F.2d 964, 967; Mossbrook v. United States, 9 Cir. 1969, 409 F.2d 503, 504-505; Mills v. United States, 5 Cir. 1967, 380 F.2d 335; Landsdown v. United States, 5 Cir. 1965, 348 F.2d 405, 409, 411; Caster v. United States, 5 Cir. 1963, 319 F.2d 850, 852, cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973; French v. United States, 5 Cir. 1956, 232 F.2d 736, 738, cert. denied, 352 U.S. 851, 77 S.Ct. 73, 1 L.Ed.2d 62.

145 F.Supp. 23 (1956) Kenneth H. WILSON v. Anne F. HAZARD. Civ. A. No. 55-829. United States District Court D. Massachusetts. October 9, 1956. *24 Joseph Blumsack, Somerville, Mass., Leo P. Doherty, Boston, Mass., for plaintiff. Kenneth C. Parker, Parker, Coulter, Daley & White, Boston, Mass., George C. Caner, Jr., Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., for defendant. FORD, District Judge. This is an action for personal injuries arising out of an alleged accident on a Massachusetts highway involving a motor vehicle owned by defendant and operated by her son, Oliver C. Hazard, against whom a companion case, C.A.No. 55-828-F, is pending in this court. Service of process was made on the Registrar of Motor Vehicles under the provisions of Mass.G.L. Ch. 90, § 3A, as amended. Defendant moves to dismiss the action or to quash service on the grounds that service was insufficient. The facts relied upon by defendant appear from uncontroverted affidavits of defendant and her son. It appears that defendant is a resident of Rhode Island and the owner of the automobile in question. Prior to the accident she had loaned it to her son, who was temporarily living in Massachusetts, without restriction as to its use. At the time of the accident it was being operated by the son solely for his own social purposes. Under the provisions of Mass. G.L. Ch. 90, § 3A, substituted service upon the Registrar may be made only where a motor vehicle has been operated within the Commonwealth by the defendant either by himself or by his agent. Defendant here did not personally operate her automobile in Massachusetts, and on the facts as shown in the uncontradicted affidavits, her son, who was operating it here at the time of the accident was not then operating it as her agent. Consequently, § 3A is inapplicable and the attempted service is ineffective. Since there seems to be no reasonable possibility of service on the defendant by any other method, the action should be dismissed. Plaintiff is not helped by the provisions of Mass.G.L. Ch. 231, § 85A, making evidence that a motor vehicle at the time of an accident was registered in the name of defendant as owner prima facie *25 evidence it was being operated by a person for whose conduct defendant was legally responsible. This section is clearly intended only to be a rule of evidence applicable to the trial of cases already properly before the court, and not to extend the scope of the provisions for service of process under § 3A of Ch. 90. In any event, § 85A makes the registration prima facie evidence, not that it was being operated by the agent of the defendant, but that it was being operated by a person "for whose conduct the defendant was legally responsible". This is an expression of broader scope which would not establish that the driver was defendant's agent, as required by § 3A. Defendant's motion to dismiss is allowed.

974 F.Supp. 302 (1997) HAVANA CLUB HOLDING, S.A. and Havana Club International, S.A., Plaintiffs, v. GALLEON S.A., Bacardi-Martini USA, Inc., Gallo Wine Distributors, Inc., G.W.D. Holdings, Inc. and Premier Wine and Spirits, Defendants. No. 96 CIV. 9655(SAS). United States District Court, S.D. New York. August 12, 1997. *303 *304 Michael Krinsky, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, Charles Sims, Proskauer, Rose, LLP, New York City, for Plaintiffs. William R. Golden, Jr., Margaret E. Ferguson, Kelley, Drye & Warren, LLP, New York City, for Defendants. OPINION AND ORDER SCHEINDLIN, District Judge: Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on their counterclaim for cancellation of the "Havana Club" trademark and design registration in the United States Patent and Trademark Office ("PTO"). Defendants first contend that Plaintiffs' attempt to secure their rights to the mark without approval of the Office of Foreign Assets Control ("OFAC") stripped Plaintiffs of any rights to the mark and thus caused the mark to be abandoned. In opposition, Plaintiffs contend that their acquisition of rights to the mark was valid under the Cuban Assets Control Regulations ("CACR"), as well as the General Inter-American Convention for Trade Mark and Commercial Protection ("Inter-American Convention"). Plaintiffs claim, in the alternative, that there was no requirement that OFAC approve the assignment. Defendants additionally seek cancellation of Plaintiffs' registration of the mark based on the theory that Plaintiffs have no right to use the mark. Plaintiffs move to amend their complaint to include two additional causes of action against Defendants. Plaintiffs also move to dismiss certain counterclaims raised by Defendants. For the reasons set forth below, Defendants' motion is granted, in part, and denied, in part. Plaintiffs' motion to amend their complaint is granted, in part, and denied, in part. Plaintiffs' motion to dismiss certain of Defendants' counterclaims is denied without prejudice. I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Legal Standard A party is entitled to summary judgment when there is "no genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. See Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of demonstrating the absence of a material factual dispute rests on the moving party. See Gallo v. Prudential Residential Svcs., Ltd., 22 F.3d 1219, 1223 (2d Cir.1994). Once that burden is met, the non-moving party must present "significant probative supporting evidence" that a factual dispute exists. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. The court's role is not to try issues of fact, but rather to determine whether issues exist to be tried. See Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987). All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14; *305 Donahue, 834 F.2d at 57, 60. If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994). B. Factual Background 1. The Cuban Assets Control Regulations The CACR were implemented in 1963 under Section 5(b) of the Trading with the Enemy Act of 1917 ("TWEA"), as amended, 50 U.S.C.App. 1-44. Section 5(b) of the Act affords the President "broad authority to impose comprehensive embargoes on foreign countries as one means of dealing with both peacetime emergencies and times of war." Regan v. Wald, 468 U.S. 222, 225-26, 104 S.Ct. 3026, 3029, 82 L.Ed.2d 171 (1984). The CACR, one such embargo, were adopted in response to Cuban efforts to destabilize Latin American governments. Id. at 226, 104 S.Ct. at 3029-30 (citing Presidential Proclamation No. 3447, 3 C.F.R. § 157 (1959-1963 Comp.)). The President had delegated his powers under the TWEA to the Secretary of the Treasury in 1942. In 1962, the Secretary delegated the administration of foreign assets control regulation to OFAC. See Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 109 n. 2 (2d Cir.1966). OFAC remains responsible for executing and enforcing economic embargoes and sanctions programs against several countries. See Free Trade with Cuba Act, Hearings on H.R. 2229 Before the Subcomms. on Select Revenue Measures and Trade of the House Comm. on Ways and Means, 103rd Congress 99 (1994) (statement of R. Richard Newcomb, Director of OFAC). In that capacity, OFAC administers the embargo against Cuba pursuant to the CACR. The CACR prohibit transfers of property, including trademarks, in which a Cuban entity has an interest, except when specifically authorized by the Secretary of the Treasury. See 31 C.F.R. §§ 515.201(b), 515.311. OFAC, acting on behalf of the President, enjoys considerable discretion to authorize otherwise prohibited transactions by way of licenses. See id. § 515.801(b)(6). Moreover, OFAC has the same discretion to amend, modify or revoke both the licensing provisions of the CACR, as well as individual licenses, at any time. Id. § 515.805. 2. The Current Controversy Havana Club rum, produced in Cuba and distributed under the Havana Club trademark, has been exported to over twenty countries since 1973. See Declaration of Luis Francisco Perdomo Hernandez ("Perdomo Decl."), Vice Chairman of the Board of Havana Club Holding, S.A., dated June 6, 1997, ¶ 5. According to Plaintiffs, the sole reason Havana Club rum is not currently sold in this country is that the embargo prohibits its importation, except as accompanying baggage of a returning United States visitor to Cuba. See 31 C.F.R. § 515.560(c)(3); Complaint ¶ 27. Plaintiffs assert that since 1973, the owners of Havana Club rum have intended to sell their rum in the United States as soon as it is legally possible to do so. Complaint ¶ 27. At present, the principal markets for Havana Club rum are Western Europe, Canada, and Mexico, although Havana Club is also sold in Central and South America, and in other markets. Id. at ¶ 25. Under Section 44 of the Lanham Act, foreign entities are permitted to register trademarks in the United States. 15 U.S.C. § 1126. Pursuant to Section 44, the Havana Club mark was registered in the United States in 1976 by Cubaexport, a Cuban state enterprise, based on Cubaexport's registration of the mark in Cuba. Complaint ¶ 17; 15 U.S.C. § 1126(c). Cubaexport continued to market Havana Club rum internationally from 1972 until 1993. Perdomo Decl. ¶ 5. In 1993, Cubaexport's Havana Club rum business was reorganized to incorporate a foreign partner. See Perdomo Decl. ¶ 11. Cubaexport reached an agreement with Pernod Richard, S.A. ("Pernod"), an international distributor of liquor, to form two companies: (1) Havana Club Holding ("HC Holding"), of which 50% equity and board representation was to be held by a newly formed Cuban company, Havana Rum & Liquors, S.A., and 50% by Pernod; and (2) *306 Havana Club International ("HCI"), which has a 50-50 equity split between Havana Rum & Liquors and Pernod, both through direct holdings and through holdings in HC Holding. See Perdomo Dec. ¶ 12. Plaintiffs allege that all of the assets associated with the Havana Club trademark were transferred as part of this reorganization by Cubaexport to Havana Rum & Liquors, which then transferred them to HC Holding. Id. HC Holding then granted HCI an exclusive license to sell Havana Club rum and to use the Havana Club trademark. Id. The transfer of the trademark in the 1993 reorganization of Cubaexport's Havana Club business was governed by the CACR. On October 5, 1995, Plaintiffs applied to OFAC for a specific license[1] authorizing the assignment of the Havana Club trademark, Registration No. 1,031,651, from Cubaexport to Havana Rum & Liquors, S.A. to Havana Club Holdings, S.A. See Affidavit of Margaret Ferguson ("Ferg.Aff."), attorney for Defendants, May 23, 1997, Ex. E. On November 13, 1995, OFAC issued License No. C-18147, which approved the assignment and authorized all necessary transactions incident to the assignment of the mark. Id. However, on April 17, 1997, OFAC issued a Notice of Revocation stating that "as a result of facts and circumstances that have come to the attention of this Office which were not included in the application of October 5, 1995, License No. C-18147 ... is hereby revoked retroactive to the date of issuance." Id., Ex. G. OFAC did not further explain the grounds for the revocation but did state that any action taken under the license is null and void as to matters under its jurisdiction. See id. OFAC enjoys considerable discretion in granting or revoking licenses, and the CACR permit OFAC to amend, modify, or revoke a license at any time, on its own initiative. See Havana Club Holding, S.A. v. Galleon S.A., 961 F.Supp. 498, 505 (S.D.N.Y. 1997). Moreover, the CACR grant OFAC the authority to take such action sua sponte. Id. Because the issuance or revocation of licenses by OFAC is committed to OFAC's discretion, OFAC's decisions are not reviewable by this Court. Id. at 503, 505. Consequently, Defendants contend that because Plaintiffs have failed to obtain a specific license and are unable to challenge OFAC's decision, Plaintiffs cannot validly transfer the United States registration of the Havana Club mark. See Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment ("Def.Mem.") at 8. Plaintiffs advance four arguments in response to Defendants' assertion: (1) the general license for United States intellectual property, provided for in the CACR, permitted the assignment of the mark, see 31 C.F.R. § 515.527(a); (2) the Inter-American Convention requires this Court to construe the general license to authorize the assignment of the mark; (3) the Fifth Amendment of the Constitution similarly requires that the general license is sufficient to authorize the assignment; and, in the alternative, (4) the Havana Club mark is not covered by the TWEA and CACR. Each of these arguments is offered to support Plaintiffs' contention that Cubaexport effectively transferred the rights to the mark to Plaintiffs. I turn now to each of these arguments. C. Discussion 1. Plaintiffs' Application Under the CACR Plaintiffs argue that although they applied for a specific license to transfer the trademark, the general license provided in the CACR is sufficient for this purpose. See Plaintiffs' Memorandum of Law in Opposition to Motion for Partial Summary Judgment ("Pl.Mem.") at 4. The CACR creates both general licenses, which permit classes or categories of transactions with Cuban nationals, See, e.g., 31 C.F.R. § 515.542 (authorizing "[a]ll transactions of common carriers incident to the receipt of mail between the United States and Cuba"), and specific licenses, which require individualized determinations and approval by OFAC. See id. § 515.801. A general license, furthermore, "is any license or authorization the terms of which are set *307 forth [in the CACR]." 31 C.F.R. § 515.318. The general license pertaining to United States intellectual property authorizes "[t]ransactions related to the registration and renewal in the United States Patent and Trademark Office or the United States Copyright Office of patents, trademarks, and copyrights in which the Government of Cuba or a Cuban national has an interest...." 31 C.F.R. § 515.527(a) (emphasis added). By the express terms set forth in this section, the general license allows for the registration and renewal of trademarks. It does not, however, address the question of whether a registration may be assigned to an individual or corporation. Because the terms of the general license do not contain express authorization for the transfer of rights to trademarks, an individual or company seeking to assign a trademark is therefore required to obtain a specific license. A specific license "is any license or authorization issued pursuant to [the CACR] but not set forth in [the CACR]." 31 C.F.R. § 515.318. Here, the participation of Cuban entities in a transaction involving United States property triggers the CACR. The particular transaction at issue — the assignment of the United States trademark — is not expressly permitted by the general license governing intellectual property. Thus, because Plaintiffs seek to engage in a transaction covered by the CACR but not expressly permitted therein, Plaintiffs' transfer of the mark is only permitted by OFAC's issuance of a specific license. Moreover, on December 19, 1996, the Director of OFAC, R. Richard Newcomb, informed Defendants' counsel that the general license allows only for the registration and renewal of intellectual property; § 515.527 does not convey to the registrant the authority to assign the registrant's interest in a patent, trademark or copyright registered in the United States to another person. Such an assignment would require authorization by OFAC in the form of a specific license. Ferg. Aff., Ex. F.[2] Because Congress has not "directly spoken to the precise question at issue," the court must sustain the Director's interpretation so long as it is "based on a permissible construction of the statute." Auer v. Robbins, ___ U.S. ___, ___, 117 S.Ct. 905, 909, 137 L.Ed.2d 79 (1997) (quoting Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984)). The Supreme Court has long recognized "that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. at 844, 104 S.Ct. at 2782. Both the express terms of the general license and my analysis of the relevant CACR provisions compel the conclusion that OFAC has properly construed the statute to preclude a transfer under the general license. Accordingly, a specific license was required for the assignment of the Havana Club trademark. Plaintiffs' use of the general license was insufficient for this purpose.[3] 2. The Inter-American Convention Plaintiffs next argue that the Inter-American Convention requires that the general license be construed to permit the assignment of trademarks. The Inter-American Convention, a multi-lateral regional trademark treaty between the United States and several Latin American nations, compels signatory nations to grant to the nationals of other signatory nations the same rights and remedies which their laws extend to their own nationals. See Inter-American Convention, ch. I, art. 1, 46 Stat. at 2912. The United States and Cuba are both signatory *308 nations to the Convention. Treaties In Force: A List of Treaties and Other International Agreements of the United States In Force on January 1, 1996, 373 (June 1996). Article 11 of the Inter-American Convention provides that the transfer of the ownership of a registered or deposited mark in the country of its original registration shall be effective and shall be recognized in the other Contracting States, provided that reliable proof be furnished that such transfer has been executed and registered in accordance with the internal law of the State in which such transfer took place. Such transfer shall be recorded in accordance with the legislation of the country in which it is to be effective. Inter-American Convention, ch. II, art. 11, 46 Stat. at 2922-2924. In the spirit of according reciprocal rights between signatory nations, Article 11 binds the United States and all other member nations[4] to give effect to and record upon its registry a valid transfer of a trademark that has occurred in another member nation. Accordingly, Plaintiffs argue, the transfer of a trademark in Cuba has the effect of transferring the trademark in the United States, and the United States is obligated to record this transfer on its registry. See Pl. Mem. at 6. Plaintiffs further argue that an irreconcilable conflict between the CACR and the Inter-American Convention arises if the general license does not allow for the transfer in the United States of a transfer that was valid in Cuba. Plaintiffs correctly invoke the principle that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 178 n. 35, 113 S.Ct. 2549, 2562 n. 35, 125 L.Ed.2d 128 (1993) (quoting Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804)). See Pl. Mem. at 6. However, construing the Inter-American Convention as Plaintiffs suggest would circumvent the CACR's provisions regarding general and specific licenses and OFAC's unreviewable interpretation of the CACR. The issue then is whether the CACR supersedes the Inter-American Convention. Under our constitutional system, statutes and treaties are both the supreme law of the land, and the Constitution establishes no order of precedence between them. U.S. Const. art. VI, cl. 2. The Supreme Court has "repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null." Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1231, 1 L.Ed.2d 1148 (1957). The classic enunciation of the principle governing conflicting treaties and statutes is that in Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888): By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other.... See also Blanco v. United States, 775 F.2d 53, 61 (2d Cir.1985) (quoting Whitney in a discussion of the conflicting Public Vessels Act of 1925 and the 1928 Honduras Act). Although repeals by implication are not favored, the Supreme Court has articulated two well-settled categories of implied repeals: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. *309 Posadas v. National City Bank of New York, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). In either case, the intention of the legislature must be clear and manifest; otherwise, the later act is to be construed as a continuation of, and not a substitute for, the first act. See id. The CACR, enacted in 1963, were issued 32 years after the ratification of the 1931 Inter-American Convention. Moreover, they were meant to be temporary. Thus, construing the CACR presents a unique scenario. The CACR were issued by President Kennedy, pursuant to § 5(b) of the TWEA. As a result, there is no legislative history. The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 ("Cuban Liberty Act"), 22 U.S.C. §§ 6021-6091, in which the CACR are now codified, declares that it is United States policy "[t]o take steps to remove the economic embargo of Cuba when the President determines that a transition to a democratic elected government in Cuba has begun."[5] 22 U.S.C. § 6061(14). The Cuban Liberty Act, moreover, was enacted 65 years after the Inter-American Convention. Both OFAC's construction of the CACR and their temporary nature lead to the conclusion that the CACR are not to be understood "as a continuation of" the Inter-American Convention. OFAC's determination that the general license does not allow for the transfer of the trademark, which would be permitted under the Inter-American Convention, strongly suggests that the CACR constitutes an implied repeal of this earlier convention. The CACR appear to be a temporary substitute for the Inter-American Convention, among other treaties and conventions.[6] Once the CACR are lifted, transactions pursuant to the Inter-American Convention and other treaties will be recognized once again. The passage in 1996 of the Cuban Liberty Act also supports this conclusion. One purpose of the Act is to "strengthen international sanctions against the Castro government." 22 U.S.C. § 6022(2). The Act also states that the President shall instruct the Secretary of the Treasury and Attorney General to fully enforce the provisions of the CACR. 22 U.S.C. § 6032(c). Moreover, it is the policy of the United States, upon the President's determination that a democratically elected government exists in Cuba, to "support the reintegration of the Cuban Government into Inter-American organizations ...." 22 U.S.C. § 6061(13). Plaintiffs' argument runs counter to the underlying policies of the CACR. The interests advanced by the CACR are (1) to limit funds which Cuba may use to promote activities that may be harmful to the United States; (2) to use blocked funds for leverage for negotiations with the Cuban Government; and (3) to retain control over blocked funds for possible use or vesting in settlement of American claims. See De Cuellar v. Brady, 881 F.2d 1561, 1569 (11th Cir.1989); Capital Cities/ABC, Inc. v. Brady, 740 F.Supp. 1007, 1013 n. 13 (S.D.N.Y.1990); see also Cheng Yih-Chun v. Federal Reserve Bank of New York, 442 F.2d 460, 465 (2d Cir.1971). The inclusion of Pernod as a partner in the reorganization of Havana Rum & Liquors allowed hard currency to flow into Cuba. See Reply Affidavit of Margaret Ferguson ("Reply Ferg. Aff."), June 16, 1997, Ex. D. (Perdomo's deposition describes Pernod's payment of an unspecified price to Havana Rum & Liquors in exchange for the mark). Although the facts are not entirely clear, Pernod engaged in a transaction with Havana Rum & Liquors in order to gain a 50% percent interest in both HC Holding, the intended assignee of the trademark, and HCI, the intended licensee of the mark. Such a transaction, in which Pernod exchanged currency for rights to the mark, *310 flies in the face of the CACR's aim to limit the flow of funds into Cuba.[7] As a result, Article 11 of the Inter-American Convention cannot survive the CACR or provide a means of transferring the registration. 3. Due Process Plaintiffs argue that under the due process standards applicable to the CACR, the distinction between an assignment and a new registration would neither be "the product of a deliberate and rational choice" nor "have a reasonable basis." See Pl. Mem. at 7 (quoting Richardson v. Simon, 560 F.2d 500, 505 (2d Cir.1977)). "[D]ue process requires that government officials refrain from acting in an irrational, arbitrary or capricious manner." Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir.1985). Plaintiffs, however, fail to consider the basic principles of the CACR. As noted above, the CACR are designed, in part, to prevent the flow of hard currency into Cuba which may be used to promote activities adverse to the interests of the United States. Capital Cities/ABC, Inc. v. Brady, 740 F.Supp. at 1013 n. 13. The registration or renewal of a trademark, as authorized by the general license, will generally not promote the flow of funds into Cuba. In such a transaction, an individual or corporation simply seeks to gain protection or renew protection of a trademark. However, the transfer of a registration creates the opportunity for an individual or corporation to purchase the registration from a Cuban entity, thereby allowing hard currency to enter Cuba. The effort to thwart the flow of funds into Cuba provides a rational basis for OFACs distinction between registrations and assignments. 4. The Scope of "Property" Under the CACR Finally, Plaintiffs contend that no OFAC license, general or specific, was needed to transfer the mark because the registration is not property within the scope of the TWEA or the CACR. See Pl. Mem. at 11. The CACR covers, [a]ll dealings in, including, without limitation, transfers, withdrawals, or exportations of, any property or evidences of indebtedness or evidences of ownership of property by any person subject to the jurisdiction of the United States. 31 C.F.R. § 515.201(b)(1). Section 515.311 provides that the terms "property" and "property interest" or "property interests" shall include "trademarks." See 31 C.F.R. § 515.311. Plaintiffs contend that the federal registration does not create the trademark right; it only recognizes the right acquired through use. See Pl. Mem. at 8 (quoting La Societe Anonyme des Parfums le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1270, n. 5 (2d Cir.1974)). Plaintiffs note that neither HC Holding nor its predecessors have used the trademark within the United States, see Pl. Mem. at 8. Thus, Plaintiffs argue, the trademark has never become common law property nor are there any common law rights in it. Id. Plaintiffs acknowledge that their registration of the mark evidences alleged rights in the future use of the mark. See Pl. Mem. at 10 ("... an intended future use may confer rights evidenced by a registration."). The CACR unambiguously prohibits all transfers of "evidences of ownership of property by any person subject to the jurisdiction of the United States." 31 C.F.R. § 515.201(b)(1). This section includes the registration of trademarks and prohibits any transaction in which Cuban nationals "at any time ... had any interest of any nature whatsoever, direct or indirect" in the property involved. Id. Plaintiffs' registration of the Havana Club trademark is not only evidence of alleged rights in the mark, but must also be considered "any interest of any nature whatsoever, direct or indirect" in the Havana Club trademark. *311 Plaintiffs have also satisfied the jurisdictional requirement of § 515.201(b)(1). The Lanham Act compels foreign registrants such as Plaintiffs to designate an agent subject to the jurisdiction of the United States. The Act provides that "if the applicant is not domiciled in the United States he shall designate ... the name and address of some person resident in the United States on whom may be served notices or process in proceedings affecting the mark." 15 U.S.C. § 1051(e). Plaintiff HC Holding designated H. John Campaign, Keith E. Danish and John M. Keene, of Graham, Campaign & McCarthy P.C., in New York, New York for service of notices or process. See Reply. Ferg Aff., Ex. B. Therefore, in reliance on Plaintiffs' concession that the registration indicates rights to the use of the mark and Plaintiffs' designation of an agent subject to United States jurisdiction, Plaintiffs' attempted transfer of the Havana Club registration fell under the provisions of § 515.201(b)(1) and thus within the scope of the CACR. Plaintiffs' only claim to ownership of the mark is by assignment. Accordingly, Plaintiffs have no rights to the Havana Club trademark. 5. Cancellation of the Mark Defendants next seek cancellation of the registration because of Plaintiffs' inability to claim rights to the mark. Cancelling the registration under these circumstances, however, would lead to an inequitable adjudication of the matter and neglect the substantial rights of Cubaexport, a party not before this court. Cubaexport's rights arise out of the invalid transfer of the rights to the mark. The abortive transfer between Cubaexport, Havana Rum & Liquors, and Plaintiffs voids those provisions of the contract relating to the mark, rendering them invalid and of no effect. Cubaexport, Havana Rum & Liquors, and Plaintiffs, as the original parties to the transaction, are returned to the status quo ante.[8] Cubaexport, restored as the owner of the registration, inevitably has an interest in the outcome of the registration issue. Thus, Cubaexport is a necessary party to this action. Plaintiffs cannot assert Cubaexport's rights due to the well-established prohibition on jus tertii defenses in trademark cases. See Marshak v. Sheppard, 666 F.Supp. 590, 599 (S.D.N.Y.1987) ("jus tertii should not be allowed as a defense in any trademark case"). However, when a court believes that an absentee may be needed for a just adjudication, it may raise compulsory party joinder on its own motion. See, e.g., Gonzalez v. Cruz, 926 F.2d 1, 5 n. 6 (1st Cir.1991); 4 Richard R. Freer, Moore's Federal Practice, § 19.02[4][a] (3d ed.1997). Federal Rule of Civil Procedure 19 provides the legal standards for the joinder of necessary parties. Rule 19(a) states, in relevant part that [A] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may ... as a practical matter impair or impede the persons's ability to protect that interest. See Fed.R.Civ.P. 19. Here, Cubaexport is subject to service of process by service on its United States representative. Joining Cubaexport as a party will not affect this Court's jurisdiction. [S]everal courts have ruled that "the concept of indispensability does not concern the Court's subject matter jurisdiction as much as it deals with the ability or right of the Court to make an adjudication[:] The major question is whether the court can render a decision which will not impair the rights of the absent party." *312 6247 Atlas Corporation v. Marine Insurance Co., Ltd., 155 F.R.D. 454, 459 (S.D.N.Y.1994) (quoting Ente Nazionale Idrocarburi v. Prudential Sec. Group, 744 F.Supp. 450, 456 (S.D.N.Y.1990)); see also Lipton v. Nature Co., 781 F.Supp. 1032, 1034 (S.D.N.Y.1992) ("Rule 19 motion regarding indispensable parties ... [is] addressed to the court's equitable discretion. Necessary and indispensable parties can only be determined in the context of the particular litigation; the inquiry must be a fact-based one."). Cubaexport has a significant business interest in maintaining the registration of its mark. It may reform its agreement with Plaintiffs so that it is once again the company entitled to export the rum under the Havana Club mark after the embargo is lifted. Or, it may seek to renegotiate the assignment of the mark to Plaintiffs after Plaintiffs restructure their corporate organization to comply with the provisions of the CACR. Such opportunities would clearly be impaired if this Court granted Defendants' petition to cancel Cubaexport's registration. Accordingly, Defendants' petition to cancel the registration is denied, and all rights to the registration revert to Cubaexport. However, Plaintiffs rights to the registration are canceled.[9] II. PLAINTIFFS' MOTION TO AMEND THEIR COMPLAINT A. Factual Background Plaintiffs filed their original complaint on December 24, 1996, seeking to enjoin Defendants from using the words "Havana Club" as part of any trademark, service mark, brand name, trade name or other business or commercial designation in connection with the sale, distribution, advertising or promotion of rum or rum products in the United States. Plaintiffs alleged that such use violates their respective rights under §§ 32 and 43 of the Lanham Act, 15 U.S.C. §§ 1114 and 1125 and have moved for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. Plaintiffs now seek leave to file a First Amended Complaint to include two causes of action alleging violations of the Inter-American Convention and additional violations of the Lanham Act. In their third proposed claim for relief, Plaintiffs assert that Defendants used the Havana Club trademark in the United States notwithstanding their knowledge of the prior protection, existence and use of the trademark in other countries that are signatories to the Inter-American Convention, including Cuba. Plaintiffs allege such use violates Article 7 and Chapter IV of the Inter-American Convention and § 44(h) of the Lanham Act.[10] In their fourth proposed claim for relief, Plaintiffs assert Defendants used Havana Club as a trademark for rum in the United States notwithstanding that its distinguishing elements consist of a part of Plaintiffs' commercial names, which were previously used by them in Cuba. Plaintiffs allege such use violates Chapter III of the Inter-American Convention and §§ 44(g) and 44(h) of the Lanham Act, 15 U.S.C. §§ 1126(g) and 1126(h). B. Legal Standard Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend a complaint *313 is generally given freely. However, a court may exercise its discretion to deny leave in a number of circumstances. For example, prior to granting leave to amend, a court must examine a proposed claim to determine if it is futile on its face. See Town of New Windsor v. Tesa Tuck, Inc., 919 F.Supp. 662, 678 (S.D.N.Y.1996); Barrett v. U.S. Banknote Corp., 806 F.Supp. 1094, 1098 (S.D.N.Y.1992). If a claim would be futile, leave to amend should not be granted. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Development Fund Co., Inc., 608 F.2d 28, 42 (2d Cir.1979); Chan v. Reno, 916 F.Supp. 1289, 1302 (S.D.N.Y.1996). In deciding a motion to dismiss, the moving party must demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The court must assume the truth of the allegations contained in the complaint and must construe all reasonable inferences in favor of the plaintiff. See Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986). C. Discussion 1. The Lanham Act and Inter American Convention Under § 44(b) of the Lanham Act, any person whose country of origin is a party to any trademark convention or treaty to which the United States is also a party shall be entitled to the benefits of this section under the conditions expressed herein to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of a mark is otherwise entitled by this Act. 15 U.S.C. § 1126(b). Individuals or companies that meet the requirements of this section may also seek protection of trade names or commercial names "without the obligation of filing or registration whether or not they form parts of marks." 15 U.S.C. § 1126. Furthermore, such individuals or companies shall be entitled to protection against unfair competition, and the remedies provided herein for infringement of marks shall be available so far as they may be appropriate in repressing acts of unfair competition. 15 U.S.C. § 1126(h). Plaintiffs assert that the Lanham Act incorporates and implements the provisions of the Inter-American Convention. Chapter 1, Article 1 of the Convention states, in relevant part, that [t]he Contracting States bind themselves to grant to the nationals of the other Contracting States and to domiciled foreigners who own a manufacturing or commercial establishment ... in any of the States which have ratified or adhered to the present Convention the same rights and remedies which their laws extend to their own nationals or domiciled persons with respect to trade marks, trade names and the repression of unfair competition.... Inter-American Convention, ch. I, art. 1, 46 Stat. at 2912. Chapter II, Article 7 further provides that the owner of a trademark protected in the United States has the right to oppose the use of an infringing mark by proving that the person using the mark knew of the existence and continuous use of the mark in any member nation in connection with goods of the same class. See Inter-American Convention, ch. II, art. 7, 46 Stat. at 2918. Under Chapter III, "[t]rade names or commercial names of persons entitled to the benefits of this Convention shall be protected in all contracting States." Inter-American Convention, ch. III, art. 14, 46 Stat. at 2926. 2. Plaintiffs' Proposed Third Claim In order to prevail on a claim of trademark infringement in violation of the Lanham Act, a plaintiff must show (1) that it has a valid mark that is entitled to protection under the Act, and (2) that use of the defendant's mark infringes plaintiff's mark. Estee Lauder, Inc. v. The Gap, Inc., 108 F.3d 1503, 1508 (2d Cir.1997). See generally Sports Authority, Inc. v. Prime Hospitality Corp., 89 *314 F.3d 955, 960 (2d Cir.1996); Gruner + Jahr USA Publishing v. Meredith Corp., 991 F.2d 1072 (2d Cir.1993). As discussed above, Plaintiffs fail to meet the threshold requirement of possessing a valid mark. As a result, Plaintiffs cannot seek protection of that mark under the Lanham Act. Plaintiffs are also unable to advance a claim based on Article 7 of the Inter-American Convention.[11] Under Article 7, a party opposing another's use of the mark may claim for [it]self the preferential right to use such mark in the country where the opposition is made ... upon compliance with the requirements established by the domestic legislation in such country and by this Convention. Inter-American Convention, ch. II, art. 7, 46 Stat. at 2918. (emphasis added). Here, Plaintiffs have not complied with United States law because they have no rights to the mark. As discussed above, Plaintiffs have no rights to the registered mark. Thus, Plaintiffs have no standing to assert a preferential right to use the mark. Plaintiffs, therefore, cannot advance a claim under Article 7. 3. Plaintiffs' Proposed Fourth Claim Plaintiffs seek to protect the "Havana Club" trade name under §§ 44(g) and (h) of the Lanham Act as well as Chapter III of the Inter-American Convention. A trade name as defined by federal law cannot be registered under the Lanham Act. See Application of Walker Process Equipment, Inc., 43 C.C.P.A. 913, 915, 233 F.2d 329, 331 (1956); 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 9.13 (3d ed.1997). The rationale behind this rule is that "a trade name is usually adopted for the purpose of identifying the company and distinguishing it from other producers, rather than for the trademark purpose of identifying goods, and distinguishing them from those produced by other producers." Id. Use of the trade name is the basis for obtaining exclusionary rights; under the Lanham Act, a trade name is "used by a person to identify his or her business or vocation." 15 U.S.C. § 1127. As with trademarks, the test of infringement of trade names is "likelihood of confusion." See Lang v. Retirement Living Publishing Co., 949 F.2d 576, 579-80 (2d Cir.1991). As noted above, Plaintiffs acknowledge their inability to sell rum in the United States due to the CACR. However, Plaintiffs argue that they have used their trade name in a manner which identifies their business. See First Amend. Compl. ¶ 36. Plaintiffs' use of the trade name abroad, id. ¶ 25; the importation of Havana Club rum into the United States as accompanying baggage, id. at ¶ 28; and the "repeated, extensive, continuous and widespread mention and discussion" of Havana Club rum in United States newspapers and periodicals have all helped to establish in the public mind that Plaintiffs are the producers of Havana Club rum, id. at ¶ 38. Even if Plaintiffs' established use of their trade name were not sufficient to identify them as producers of the rum, the CACR is a temporary suspension of Plaintiffs' ability to use the trade name. See Cuban Cigar Brands N.V. v. Upmann Int'l., Inc., 457 F.Supp. 1090, 1101 (S.D.N.Y.1978) (plaintiff found not to have abandoned mark when prevented from exporting cigars into the United States due to intervention by Cuban government). Without the obstacles of the CACR, Plaintiffs would, as they claim, be able to establish a greater presence in the United States as producers of Havana Club rum. Plaintiffs therefore allege that the use of the Havana Club mark by Defendants will lead to consumer confusion and error. Plaintiffs are permitted to amend their complaint to assert this claim. Plaintiffs also seek to assert a claim under Chapter III of the Inter-American Convention. Chapter III plainly allows nationals of signatory nations to oppose another's use of an infringing mark. Article 18 of Chapter III states that any owner of a trade name in a signatory nation "may, in accordance with the law and procedure of the country where the proceeding is brought, apply for and obtain an injunction against the use of any commercial name" by proving (a) *315 the infringing mark or commercial name is identical with or deceptively similar to Plaintiffs' commercial name and (b) that prior to Defendants' use, Plaintiffs adopted and used the name. See Inter-American Convention, ch. III, art. 18. Plaintiffs allege Defendants' infringing mark is identical with or deceptively similar to theirs. Plaintiffs also satisfy the use requirement of Chapter III through the use of their trade name in Cuba. Accordingly, Plaintiffs may bring a claim to protect their trade name under the Inter-American Convention. III. PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIMS Plaintiffs move to dismiss the following counterclaims: (1) a declaratory judgment that Defendants have "the prior, superior and exclusive right" to use the mark on the basis of the alleged rights of a former Cuban corporation, Jose Arechabala, S.A.; (2) the cancellation of the registration on the belief that Plaintiffs have used the mark to misrepresent the source of the goods in violation of the Lanham Act, 15 U.S.C. § 1064(3); and (3) three separate claims of fraud arising from Cubaexport's original application to register the mark and filing of a declaration of continuing use pursuant to § 8 of the Lanham Act, 15 U.S.C. § 1058. It is too early to decide these motions. As discussed above, Cubaexport should now be a participant in this action. Cubaexport may seek to raise its own defenses to Defendants' counterclaims and should be given the opportunity to do so. In light of the decision to restore Cubaexport's rights to the mark, Defendants may want to reconsider their counterclaims. Because Plaintiffs' motion is premature, that motion is denied without prejudice to renew at a later date. IV. CONCLUSION For the reasons set forth above, Plaintiffs have obtained no rights to the Havana Club trademark via the CACR or the Inter-American Convention. As a result of the invalid transfer, however, Cubaexport's rights to the mark are restored and Defendants' motion for cancellation of Registration No. 1,031,651 is denied. Plaintiffs' motion to amend their complaint is granted, in part, and denied, in part. Plaintiffs' motion to dismiss certain of Defendants' counterclaims is denied without prejudice. A status conference is scheduled for August 14, 1997 at 10 a.m. SO ORDERED. NOTES [1] For an explanation of the difference between a specific license and a general license see pp. 306-307 infra. [2] Although Newcomb's interpretation is found in an affidavit from Defendants' counsel, the form of Newcomb's comments does not render them unreliable. The communication is consistent with statements OFAC has made to Plaintiffs. There is no reason to suspect that the interpretation made by OFAC does not reflect the agency's fair and considered judgment on the matter. See Auer v. Robbins, ___ U.S. ___, ___, 117 S.Ct. 905, 912, 137 L.Ed.2d 79 (1997) (finding that the court may rely upon an interpretation of a federal statute by the Secretary of Labor in an amicus brief). [3] Plaintiffs own October 19, 1995 application to OFAC to obtain a specific license suggests that, prior to OFAC's revocation, Plaintiffs would have agreed with this conclusion. [4] The signatory nations to the Inter-American Convention are Columbia, Cuba, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, and the United States. Treaties in Force, 373, 1996. [5] 22 U.S.C. § 6065 states the conditions constituting "a transition government in Cuba," which include, for example, the legalization of all political activity, 22 U.S.C. § 6065(a)(1); and a public commitment to the organization of free and fair elections for a new government, 22 U.S.C. § 6065(a)(3). [6] The Paris Convention, as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights, incorporated in the Uruguay Round Agreement Act, may have also allowed for the transfer of the registration in the absence of the CACR. [7] Although OFAC failed to elaborate on its decision to revoke Plaintiffs' specific license, the "facts and circumstances" which later came to the attention of OFAC apparently concerned the incorporation of Pernod into the ownership of HC Holding and HCI. Plaintiffs' October 19, 1995 application, filed by Plaintiffs' counsel, stated that "each of the assignors and assignees are nationals of Cuba." Plaintiffs' own papers indicate that Pernod, one of the parties involved in the reorganization, is not a national of Cuba. See Perdomo Dec. ¶ 11 (noting that Pernod is a "French liquor distributor"). [8] Cubaexport registered the mark with the PTO on January 27, 1976 pursuant to 31 C.F.R. § 515.527. See Declaration of Caroline Rule (attorney for Plaintiffs) in support of Motion for Preliminary Injunction, dated December 30, 1996, Ex. B, incorporated by reference in Perdomo Decl. ¶ 6. Cubaexport transferred the mark to Havana Rum & Liquors on October 29, 1993, who transferred the mark to Plaintiff HC Holding on November 23, 1993. HC Holding proceeded to register it on January 12, 1996. See Perdomo Decl. ¶ 1 8, 12, 13, 21 [9] Defendants additionally argue that the separation of the trademark from the appurtenant business, the hard assets in Cuba, resulted in an assignment in gross. See Def. Mem. at 15. As a general matter, Defendants are correct in asserting that such a situation may lead to an assignment in gross. However, the principle is inapplicable to the unique circumstances of this matter. Cubaexport and Plaintiffs never had assets in the United States. While the Havana Club trademark may be recognizable by U.S. consumers, the embargo has prevented Plaintiffs and Cubaexport from importing, distributing, selling, or maintaining any assets in this country. Thus, it was impossible for the Plaintiffs and Cubaexport to have separated the mark from the business assets when no assets existed in the United States. [10] Plaintiffs allege in the Preliminary Statement of their First Amended Complaint that Defendants violated Chapter IV of the Inter-American Convention. Plaintiffs, however, fail to assert this allegation in their statement of their third proposed cause of action. Plaintiffs only make passing reference in a footnote to two remedies supplied by Chapter IV in their Memorandum of Law in Support of Motion for Leave to Amend Complaint and fail to refer to Chapter IV in any sense their reply brief. Consequently, Plaintiffs may not amend to assert a claim based on Chapter IV. [11] It is highly unlikely that Plaintiffs can assert a claim under the Inter-American Convention without satisfying the requirements of the Lanham Act.

139 B.R. 468 (1992) In re Shannon E. BAKER, and Connie B. Baker, Debtors. Bankruptcy No. 92-50010-SJ. United States Bankruptcy Court, W.D. Missouri. April 21, 1992. *469 Shannon E. Baker and Connie B. Baker, pro se. Leslie K. Rosenfeld, Leon G. Kusnetzky, P.C., Kansas City, Mo., for St. Joseph Postal Employees' Credit Union. MEMORANDUM OPINION ARTHUR B. FEDERMAN, Bankruptcy Judge. Debtors in this case are seeking to avoid the St. Joseph Postal Employees' Credit Union's ("the Credit Union") lien under 11 U.S.C. § 522(f)(2)(B), claiming that the 1986 Chevrolet Astro Van is a tool of Debtors' trade, and that the Credit Union's lien has lost its purchase money security interest status. Trial was held on April 17, 1992, at which Debtors represented themselves, and the Credit Union was represented by Leslie K. Rosenfeld. For the reasons to be stated, I find in favor of Debtors. On or about July 29, 1986, Debtors obtained a loan from the Credit Union for the purchase of a 1986 Chevrolet Astro Van ("the Van"). The amount loaned was $11,878, payable over five years with an interest rate of 10%. The Credit Union was granted a valid security interest in such vehicle. On or about April 11, 1990, Debtors contacted the Credit Union and requested an advance of an additional $2,000, to be used to purchase a used Oldsmobile. Rather than having Debtors execute a separate note, the credit officer suggested that the original obligation, and the new one, be rolled into one note with one monthly payment. At that point, the 1986 note had been paid down to $3,928.34, so the total amount of the April 1990 note was $5,928.34. In the process, the interest rate charged Debtors was raised to 12%. This rewritten note was to be paid over a period of 36 months. In October 1990, Debtors requested an additional advance, this time to begin a business in Jamesport, Missouri. Debtors were advanced $1,200, and once again that obligation, together with the balance of the April 1990 note, was rolled into a new note, this time with interest at a rate of 11.75%, payable over 48 months. The amount of such note was $6,380. The Credit Union took no additional collateral for either of the rewritten notes. It should be noted that at certain times since 1986, Debtors also had a separate line of credit obligation to the Credit Union.[1] *470 On or about January 3, 1992, the Van was repossessed by the Credit Union for payment defaults. In response, Debtors filed a Chapter 7 petition on January 8, 1992. The bankruptcy schedules filed with the petition show an obligation of $6,380.06 to the Credit Union, secured by the Van, with a value of $2,000-$2,800. On February 6, 1992, Debtors filed an amendment to their schedules claiming the van as an exempt tool of trade, pursuant to Mo.Rev. Stat. § 513.430(4) (1986). Apparently, since the filing of the case, they had received legal advice concerning their exemption rights. On February 7, 1992, Debtors appeared at their section 341 Meeting of Creditors. The minute sheet of such meeting shows that the trustee approved the claimed exemptions, and that an attorney appeared on behalf of the Credit Union. In any event, no timely objection was filed to such claim of exemption, so the exemption claimed by Debtors in the Van is valid. See Fed.R.Bankr.P. 4003(b)). On March 30, 1992, Debtors filed a pleading entitled "Debtor's Motion for Return of 1986 Chevrolet Astro Van". With the agreement of the Credit Union's counsel, such pleading is being treated as a motion to avoid lien under section 522(f) of the Bankruptcy Code. 11 U.S.C. § 522(f)[2]. In their motion, Debtors contend that the Van is a tool of Mr. Baker's trade, and that the lien held by the Credit Union is a nonpossessory, nonpurchase-money security interest. Each of these issues will be considered in turn. ISSUES AND DISCUSSION I. Whether Debtors' Van is a tool of the trade for purposes of section 522(f)(2)(B). Mr. Baker offered into evidence documentation sufficient to show that, at the time of its repossession, the Van was being used predominantly in his business of transporting passengers. For example, his 1991 tax return stated that 78% of the Van's use in that year was for business purposes. His detailed log shows that he started the business in June 1990, and began actually transporting passengers in September of that year. Primarily, the business consists of transporting nondriving members of the Amish community, who pay him whatever they considered appropriate for the services rendered. Mr. Baker has a chauffeur's license, which is all he states is required to conduct a business of this nature. The chauffeur business was conducted out of the Country Peddler, a store in Jamesport, Missouri operated by Mrs. Baker. The 1991 tax return shows total gross receipts of $26,248.90 at the Country Peddler, with a deduction of $8,455.98 for car and truck expenses based on 30,749 miles driven. The business had a net loss of $1,604.96 in that year. The Eighth Circuit has not decided the precise issue whether an automobile may be classified as a tool of the trade for lien avoidance purposes under section 522(f)(2)(B). However, in In re LaFond, 791 F.2d 623, 627 (8th Cir.1986), the court addressed this issue with respect to farm equipment and concluded that for an item to be regarded as a tool of the trade of the debtor for section 522(f)(2)(B) lien avoidance purposes, the test to be applied is "the reasonable necessity of the item to debtor's trade or business." See In re Graettinger, 95 B.R. 632, 635 (Bankr.N.D.Iowa 1988) (debtor's pick-up truck found to be tool of trade, and bank's lien avoided pursuant to section 522(f)(2)(B)). In In re Seacord, 7 B.R. 121 (Bankr. W.D.Mo.1980), the debtor was described as a "wagon jobber" who was engaged in the *471 business of selling low cost, high volume automotive parts to service stations, automotive repair shops, and used car lot operators in the greater Kansas City metropolitan area. The debtor attempted to avoid one of the Bank's liens against a specially equipped 1977 Chevy van under section 522(f)(2)(B). The court held "that indispensability is not the test of a `tool of the trade' exemption; but rather the test is the reasonable necessity of the item to the debtor's trade or business." Id. at 123. The court concluded that nothing in the Missouri "tool of the trade" exemption indicates that the exemption is to be restricted to simple hand tools, etc.; "especially since no dollar limitation was placed on this provision." Id. at 124. Thus, the debtor was allowed to use section 522(f)(2)(B) to avoid the bank's non-possessory, non-purchase money lien on the van. Based on the cited cases, and based on the extensive use of the Van in Mr. Baker's business of transporting passengers, I find that the Van does constitute a tool of the trade. II. Whether the Credit Union's lien in the Van has lost its original purchase money security interest status because the original loan was subsequently rewritten. The next issue is whether the original loan retained its purchase money character through the two refinancings of such obligation. In each refinancing the Credit Union retained a lien in the Van only, but advanced additional funds to be used for other purposes. In In re Faughn, 69 B.R. 18 (Bankr. E.D.Mo.1986), the debtor had made three separate purchases from Anderson's Home Furnishings ("Anderson's"). Each purchase was financed by Anderson's, and each transaction was evidenced by a properly filed financing statement. However, each successive financing arrangement simply added the balance of the amount owed under the prior transactions to the new amount of financing. The debtor argued that the only collateral in which Anderson's held a purchase money security interest were those items purchased in connection with the last transaction. The court agreed with the debtor and followed In re Matthews, 724 F.2d 798 (9th Cir. 1984).[3] Boatmen's Bank of Cape Girardeau v. Evans, 715 F.Supp. 942 (E.D.Mo.1988), involved a security interest priority dispute between two secured creditors, Boatmen's Bank and FmHA. Boatmen's had loaned the borrower enough money to pay off the purchase money security holder of certain collateral. Boatmen's contended that it was equitably subrogated to the rights of the PMSI holder, and therefore, was itself a PMSI holder with priority in the collateral. FmHA was the secured party to a security agreement that contained an after-acquired property clause, which covered the collateral in which Boatmen's staked its claim. In concluding that FmHA held the superior security interest in the subject collateral, the court stated "[i]f the debt secured by a PMSI is refinanced, the purchase money nature of security interest is destroyed." Id. at 944. According to the court, Boatmen's extension of credit, in effect, refinanced the obligation and thereby extinguished its purchase money nature. The same is true here. While the original loan proceeds were used to purchase the Van, the proceeds of the second loan were used to both purchase another vehicle and to pay off the first loan. And the proceeds of the third loan were used to start a business and to pay off the second loan. Since the original obligation was refinanced, its purchase money nature was destroyed. One commentator indicates that the burden is on the creditor to take steps to *472 preserve the purchase money character of a loan which is refinanced: Where the entire loan is consolidated or rewritten, the problem is . . . complex. In such case there is not merely a formal, but also a substantive change. The total indebtedness changes, the interest rate may change, and other terms of the contract may change. In such cases it may be appropriate to treat no part of the debt as a purchase money debt any longer. If, on the other hand, the new creditor is careful to take an assignment of the old debt (or if it is the same creditor, to have a careful proration clause) it may be appropriate to conclude that there is no novation, but merely a continuation of the purchase money status. In all cases it will be the creditor's burden to show what part of the consolidated debt is purchase money debt and what debt has been liquidated by an undifferentiated payment. 2 James J. White and Robert S. Summers, Uniform Commercial Code § 24-9, at 331-32 (3d ed. 1988). The Credit Union relies on In re Baugh, 19 B.R. 227 (Bankr.W.D.Mo.1982), for the proposition that a loan retains its purchase money character through a refinancing. That case, which was decided earlier than those cited supra, explains that the purchase money character is retained upon refinancing, except to the extent that the debtor had paid down the original obligation, or otherwise had equity, at the time of the refinancing. The opinion does not state whether there was any substantive change in the loan terms as a result of the refinancing. Here, those changes are critical. With each refinancing the interest rate, term, and monthly payment were changed significantly. In addition, new advances were made for other purposes but secured by the same collateral for which the original purchase money loan was made. These factors make it appropriate to treat no part of the debt as purchase money. CONCLUSION For the reasons stated, the lien claimed by the St. Joseph Postal Employees' Credit Union in the 1986 Chevrolet Astro Van will be avoided pursuant to 11 U.S.C. § 522(f)(2)(B), and the Credit Union will be directed to return the Van to Debtors. An Order consistent with this opinion will be issued this date. NOTES [1] Since the first refinancing in April 1990, Debtors have paid the Credit Union a total of approximately $2,359.39 on the various obligations. The Credit Union chose to apply certain of such payments to the notes secured by the Van, while others were applied to the line of credit. Mr. Baker testified that on more than one occasion he asked the Credit Union to apply such payments on the note secured by the Van. [2] Section 522(f) states in relevant part as follows: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled . . . if such lien is . . . (2) a nonpossessory, nonpurchase-money security interest if any * * * * * * (B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor. . . . [3] The Matthews court stated: The vast majority of courts that have considered the issue we face here have held that refinancing or consolidating loans by paying off the old loan and extending a new one extinguishes the purchase money character of the original loan because the proceeds of the new loan are not used to acquire rights in the collateral. . . . Matthews, 724 F.2d at 800-01.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ BENZENA M. BROWN Petitioner, v. DEPARTMENT OF DEFENSE, Respondent. __________________________ 2009-3191 __________________________ Petition for review of the Merit Systems Protection Board in SF0752070771-B-1. ____________________________ Decided: October 13, 2010 ____________________________ BENZENA M. BROWN, of Las Vegas, Nevada, pro se. PATRYK J. DRESCHER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depart- ment of Justice, of Washington, DC, for respondent. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and DONALD E. KINNER, Assistant Director. __________________________ BROWN v. DEFENSE 2 Before LOURIE, LINN, and PROST, Circuit Judges. PER CURIAM. DECISION Benzena Brown appeals from the decision of the Merit Systems Protection Board (“the Board”) denying her petition for review and adopting the initial decision of the administrative judge (“AJ”) as the Board’s final decision. Brown v. Dep’t of Defense, MSPB Docket No. SF0752070771-B-1 (March 17, 2009). Because the Board correctly found that it lacked jurisdiction based on Brown’s failure to make a nonfrivolous allegation that her disability retirement from the Department of Defense (“the Agency”) was involuntary, we affirm. BACKGROUND Brown was an accounting technician with the Defense Finance and Accounting Service (DFAS) in San Bernar- dino, California. In May 2004, Brown submitted an application for disability retirement, based on loss of eyesight in her right eye, major depression, chest pains, severe headaches, hypertension, stomach problems, and a blood deficiency, in addition to being at risk for complete blindness due to being a kidney donor. Separately, the Agency began removal proceedings shortly thereafter, which were cut short by the Office of Personnel Manage- ment’s (“OPM’s”) approval of Brown’s application for disability retirement. Brown retired in August 2004. Separate from this litigation, Brown commenced two, later-consolidated actions at the Equal Employment Opportunity Commission (“EEOC”) alleging that she was subject to a hostile work environment. Those actions 3 BROWN v. DEFENSE were dismissed on summary judgment, following which Brown filed an action in district court on her equal em- ployment opportunity complaints. During the pendency of that action, Brown went through bankruptcy. Her bankruptcy trustee was substituted in the suit as the real party in interest, after which the parties stipulated to a dismissal with prejudice in March 2007. In addition, Brown filed a complaint in October 2002 at the Depart- ment of Labor, alleging an occupational injury due to harassment and retaliation by her employer. The denial of that claim was affirmed by the Department of Labor’s Employees’ Compensation Appeals Board. In August 2007, Brown brought this action, seeking Board review of her disability retirement, which she alleges was involuntary. The AJ dismissed the claim for lack of jurisdiction. The Board reopened the appeal and remanded the case with instructions to provide Brown with information and an opportunity to establish Board jurisdiction. On remand, the AJ again found that Brown had failed to put forth a nonfrivolous allegation of jurisdiction. Specifically, the AJ found that Brown did not make non- frivolous allegations that, if proven, would show that (1) an accommodation was available between the time the medical condition arose and the date of Brown’s separa- tion that would have allowed her to continue her employ- ment, (2) Brown communicated her desire to continue working with those accommodations, and (3) that the Agency failed to provide her those accommodations. The AJ found that Brown had made allegations of harassment and retaliation, creation of a hostile working environment, failure to provide a safe working environ- ment, disparate treatment in disciplinary actions, failure to adhere to performance policies, false accusations, and BROWN v. DEFENSE 4 abuse of authority by imposing a suspension and counsel- ing and threatening her for carelessness in duties, thus causing her health to suffer and forcing her into retire- ment. However, the AJ found that these allegations were inapplicable to an involuntary disability retirement (as opposed to other involuntary retirements) because even if proven, these allegations would not satisfy the jurisdic- tional requirements of the Board. Thus, the AJ focused on Brown’s allegation that the Agency failed to accommo- date a “known disability.” After discussing the submitted evidence, the AJ found that Brown made nonfrivolous allegations that when she applied for disability retirement, she communicated a desire to continue working, with a modification of her working conditions to accommodate her depression and anxiety disorders, episodic hypertension, and vision loss in her right eye. However, the AJ found that the Agency had accommodated Brown’s request regarding her vision by enlarging the font on her computer, as suggested by her optometrist, and that no further request for accom- modation—such as the use of a magnifier—had been made. In addition, because of Brown’s absences from work due to her psychiatric conditions, the AJ found that Brown did not make a nonfrivolous allegation that any further accommodation of her vision impairment would have enabled her to continue working in her position. With regard to Brown’s hypertension, depression, and anxiety, the AJ found that the evidence showed that one of Brown’s specific requests was accommodated by being physically separated from Torres (a supervisor whom she believed had threatened her) and his team members. The AJ also found that the Agency had informed Brown that her other specific request for reassignment to another position so that she would not be in the chain of command of five specific individuals was not a reasonable accommo- 5 BROWN v. DEFENSE dation under the circumstances, that the Agency had asked her to submit further medical information and suggestions for a reasonable accommodation, and that she had submitted no further suggestions. The AJ therefore concluded that Brown made two specific accommodation requests regarding Brown’s psychiatric disabilities, one of which was met and the other of which was found to be an unreasonable accom- modation. These were the only specific accommodation requests Brown made. Therefore, the AJ found that Brown had not made a nonfrivolous allegation that the Agency failed to provide Brown with a reasonable accom- modation that would have allowed her to continue her employment. The AJ thereupon dismissed the case for lack of jurisdiction. Brown petitioned the Board for review. The Board denied Brown’s petition and the AJ’s initial decision became the final decision of the Board. Brown timely appealed. DISCUSSION The scope of our review in an appeal from a Board de- cision is generally limited. We can only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsup- ported by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). Whether the Board has jurisdiction over an appeal is a question of law, which we review de novo. Delalat v. Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed. Cir. 2009). BROWN v. DEFENSE 6 Brown argues that the Agency did not give a reason for not accommodating her disability. Brown also alleges that OPM found the Agency was not justified in not accommodating her. Brown argues that the Agency erred in failing to apply “Disability and Rehabilitation” laws to her action. In addition, Brown argues that the Board failed to consider that providing her with a magnifying screen for her computer would have assisted her. Brown argues that she made numerous requests for reasonable accommodation that were continuously denied despite medical documentation. She clarifies that her request was for a reassignment, not a change in supervisor. Lastly, Brown argues that the Agency considered only one of her two disabilities, though she does not specify which. The government argues that the Agency considered Brown’s requests for accommodation and gave reasons for its responses. In terms of the psychiatric disabilities, the government notes that the Agency moved Torres away from Brown to ensure Brown’s comfort in the workplace. The government argues that Brown failed to make non- frivolous allegations that further accommodations with regard to Torres would have allowed her to continue working. The government further argues that reassign- ment to a different supervisor is not an accommodation required of an agency. The government further responds that Brown’s challenge to the Board’s application of law does not specify which laws were misapplied or which “Disability and Rehabilitation Laws” should have been applied. Regarding Brown’s vision, the government argues that the Agency provided the suggested accommo- dation and was asked for no further accommodation. The government argues that the Agency considered Brown’s psychiatric as well as her physical disabilities in making its determination. 7 BROWN v. DEFENSE We conclude that the Board correctly determined that it lacked jurisdiction. The Board derives its jurisdiction by law, rule, or regulation. 5 U.S.C. § 7701(a). The Board has no jurisdiction over voluntary acts, which, absent evidence to the contrary, retirement is presumed to be. Covington v. Dep’t of Health & Human Services, 750 F.2d 937, 941 (Fed. Cir. 1984). A hearing regarding jurisdic- tion is required only if the employee makes a nonfrivolous allegation that, if proved, would establish Board jurisdic- tion. Coradeschi v. Dep’t Homeland Security, 439 F.3d 1329, 1332 (Fed. Cir. 2006). If the appellant fails to make such allegations, the appeal will be dismissed without hearing for lack of jurisdiction. Id. Brown failed to make nonfrivolous allegations that, if proved, would establish Board jurisdiction. The record supports the Board’s characterization of Brown’s requests for reasonable accommodation, and Brown does not appear to dispute that she made two specific requests for accommodation, in addition to numerous other requests of a general nature, stating simply that she requested “reasonable accommodation,” without specifying what that accommodation might be. Brown’s request for accommodation regarding her physical disability was accompanied by documentation from a medical professional. Her specific request was that the font on her computer screen be enlarged. Al- though Brown switched the font back to normal and complained that she was unable to see multiple pages at once on her monitor when the font was enlarged, she did not request any further, specific accommodations. Thus, Brown’s allegation that the Agency failed to accommodate her by installing a magnifying screen does not give rise to jurisdiction where she failed to request that specific accommodation from the Agency. Although Brown may be correct that a magnifying screen would have allowed BROWN v. DEFENSE 8 her to continue her employment, there are no communica- tions in the record reflecting a request for that accommo- dation and her desire to continue her employment with that accommodation. Brown’s request for accommodation regarding her psychiatric disabilities included two elements and was also accompanied by documentation from a medical professional. She requested that she not be physically near Torres and also that she be removed from any posi- tion in the chain of command of five different supervisors. Torres and his team were removed from her area as an accommodation, thus satisfying that part of Brown’s requested accommodation. The Agency informed Brown that her request to change her supervisor was not consid- ered a reasonable accommodation and that because she had not responded to the Agency’s requests for additional medical information and other possible accommodations, the Agency could not make an informed decision on what might be a reasonable accommodation. Thus, the Agency responded to Brown’s specific requests for accommodation regarding her psychiatric disabilities. As a result, there were no outstanding, specific requests for accommodation for Brown’s psychiatric disabilities. Brown’s clarification that she was requesting reas- signment, rather than assignment to other supervisors, does not change the fact that her specific request was based on a desire to be in a position out of the chain of command of any of the five identified supervisors. Thus, there was no error in the Board’s analysis of that request. In any case, a request for wholesale reassignment is different in nature from a request for an accommodation that would allow an employee to continue her current employment. Because the record contains no other com- munications that could constitute a request for a specific accommodation that would have allowed Brown to con- 9 BROWN v. DEFENSE tinue her employment, there is no basis for Board juris- diction in this case. Accordingly, we affirm the Board’s decision dismiss- ing the appeal for lack of jurisdiction. AFFIRMED COSTS No costs. 

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,536 10 BEVERLY ROMERO, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Stan Whitaker, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, District Public Defender 18 Vicki W. Zelle, Assistant Appellate Defender 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 VIGIL, Judge. 23 Defendant appeals from the district court’s judgment on on-record metropolitan 24 court appeal, which affirmed the metropolitan court’s sentencing order convicting  1 Defendant, after a bench trial, of DWI (first offense), speeding, no proof of insurance, 2 and failure to maintain lane. RP 101] Defendant raises three issues on appeal, 3 contending that: (1) Defendant’s arrest was illegal, having been made without 4 probable cause; (2) the district court abused its discretion in admitting the breath card 5 upon insufficient evidence to establish compliance with the SLD regulation requiring 6 proof of air blanks between samples tested–a regulation relating to the accuracy of the 7 breath machine; and (3) the trial court erred in convicting Defendant when there was 8 insufficient evidence to establish beyond a reasonable doubt that her driving was 9 impaired. [DS 23] 10 This Court’s calendar notice proposed summary affirmance. Defendant has 11 filed a memorandum in opposition that we have duly considered. We affirm. 12 Issue 1 - Probable Cause to Arrest Defendant 13 “When we apply the] probable cause test on appeal, we review the district 14 court’s determination as a question of law, and as such, de novo.” State v. Sales, 15 1999-NCA-099, ¶ 11, 127 N.M. 686, 986 P.2d 482. “However, we defer to the fact 16 finder for the factual determination of conflicting facts and use those facts to address 17 the legal issues.” Id. 18 In the memorandum, Defendant continues to argue that the State failed to 19 establish probable cause to arrest her because the State cannot show that Defendant’s 20 faulty performances on the field sobriety tests (FST) were the result of Defendant’s 2  1 being under the influence of alcohol rather than her medical conditions. [MIO 23] 2 Defendant contends that her various medical conditions made the FST inappropriate 3 for her. [MIO 24-25] She argues that the totality of the evidence does not lead to an 4 objectively reasonable belief that Defendant was impaired by alcohol. [MIO 25] We 5 are not persuaded. 6 In the memorandum, Defendant confirms the facts this Court relied upon in 7 affirming the metropolitan court’s determination that the investigating officer had 8 probable cause to arrest Defendant. [MIO 2, 3-18] The officer testified that while 9 traveling south on I-25 at about 12:37 a.m. on December 15, 2006, he observed 10 Defendant, who was driving a Ford Escort in the center lane, weave back and forth, 11 crossing into the other lanes on both sides. [DS 3; MIO 2] At the San Mateo exit, 12 Defendant’s vehicle cut over multiple lanes of traffic to get into the far right lane at 13 the last second. [Id.] The vehicle was speeding, going 80 miles per hour in a 65 mile- 14 per-hour zone, as evidenced by the officer’s radar. [DS 3; MIO 2; RP 7, 9] When the 15 officer approached Defendant, he told her why he stopped her and requested her 16 driver’s license and other paper work. [DS 3; MIO 2] Defendant did not have proof 17 of insurance. [Id.] As he spoke to Defendant, the officer noticed a strong odor of 18 alcohol, and Defendant’s eyes were obviously watery and quite bloodshot. [Id.] 19 Defendant admitted to drinking alcohol. [MIO 3] 20 With regard to Defendant’s performance on the FST, the officer testified that 3  1 there was no inclement weather, the tests were performed at an intersection with 2 overhead lighting, Defendant did not have the type of shoes that would impede her 3 performance, and the tests were performed on flat pavement without obstacles. [DS 4 5, 10; MIO 4] The officer testified that he noticed a distinct and strong odor of 5 alcohol while he was administering the horizontal gaze nystagmus test; and 6 Defendant’s eyes were obviously watery, similar to being glassed over, and she had 7 a slight sway. [MIO 4-5] Prior to administering the walk and turn test, the officer 8 asked Defendant if she had any physical injuries that would hinder her and if she had 9 any problem with her legs, and he testified that she said that she did not. [MIO 5] 10 During these test, Defendant stepped off the line and raised her arms, swayed, and put 11 her foot down. [MIO 6] The officer also administered alternative tests due to 12 Defendant’s short stature and weight. [DS 7, 10, MIO 6] During the finger dexterity 13 test, Defendant was unable to follow directions; she also had difficulty counting and 14 reciting the alphabet as instructed. [MIO 6-7] The metropolitan court judge viewed 15 the video recording of Defendant performing the FST and the alternate FST. [DS 22, 16 MIO 7-8] The metropolitan court judge noted that the video recording shows that 17 Defendant stumbled and swayed throughout, and that she had distinct and noticeable 18 difficulties following directions in a way that indicated impairment by alcohol. [DS 19 22] 20 Defendant testified that she was going 70, not 85 when she was stopped, and 4  1 the she was not straddling the divider lines. [MIO 13] While Defendant testified that 2 her performance on the FST should be discounted because of her medical conditions, 3 including Turner and Silver Syndromes, Defendant did not reveal impeding medical 4 conditions to the officer at the time of the FST, other than that she had diabetes. [DS 5 5, 8, 11; MIO 14-15] On cross-examination, Defendant acknowledged that she did not 6 tell the officer that she had a headache, felt groggy or unwell, and she did not tell him 7 that she had Turner Syndrome or Silver Syndrome. [DS 15; MIO 15] 8 Under the circumstances of this case, we hold that the metropolitan court could 9 reasonably conclude that, based on the evidence available to the officer at the time of 10 Defendant’s arrest, there was probable cause to support Defendant’s arrest for DWI. 11 [MIO 16] State v. Hernandez, 1997-NCA-006, ¶ 27, 122 N.M. 809, 932 P.2d 499 12 (“‘Probable cause exists when the facts and circumstances within the officers [sic] 13 knowledge and of which they had reasonably trustworthy information are sufficient 14 in themselves to warrant a man of reasonable caution to believe that an offense has 15 been or is being committed.’”) (quoting State v. Blea, 88 N.M. 538, 540, 543 P.2d 16 831, 833 (Ct. App. 1975)). In addition, we note that the metropolitan judge indicated 17 that he did give some weight to Defendant’s testimony concerning her medical 18 conditions as having diminished Defendant’s physical capabilities on the FST. [DS 19 21] The metropolitan court judge also indicated that what he saw on the video 20 indicated that Defendant was impaired by alcohol. [DS 22] While Defendant 5  1 swayed and stumbled throughout, she also had distinct and noticeable difficulties 2 following directions in a way that indicated impairment by alcohol. [Id.] Defendant 3 was found guilty under the impaired-to-the-slightest-degree DWI standard rather than 4 under the per se DWI standard. [Id.] 5 Issue 2 - Admission of the Breath Card 6 “We review rulings upon the admission or exclusion of evidence under an abuse 7 of discretion standard, . . . but when there is no evidence that necessary foundational 8 requirements are met, an abuse of discretion occurs.” State v. Gardner, 9 1998-NCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465 (citation omitted). 10 In the memorandum, Defendant confirms the facts this Court relied upon in the 11 calendar notice on this issue. [MIO 17-19] The arresting officer testified that the 12 Breathalyzer test was performed approximately an hour after Defendant’s arrest; the 13 officer inspected Defendant’s mouth to make sure it was clear; he handcuffed 14 Defendant and placed her in the back of his police vehicle for the 20-minute waiting 15 period. [DS 18-19; MIO 17-19] After the 20-minute period, at the station, the officer 16 read Defendant the New Mexico Complied Consent Advisory, and he testified that 17 Defendant seemed to understand the advisory and did not ask for an independent test. 18 [DS 18; MIO 17] The officer testified to using an IR 8000 breath test machine. [Id.] 19 The officer testified that he is a key operator and certified to use it. [DS 19; MIO 17, 20 18] The officer also testified that the machine was working on that night; he 6  1 regularly checks its calibration; the SLD certificate was up-to-date; and Defendant’s 2 test fell within the validity dates on the SLD certificate. [DS 18; MIO 17-18] The 3 officer further testified to using a clean mouthpiece, and he identified the breath card 4 test results with his signature on it from the date of Defendant’s test. [DS 18-19; 5 MIO 18] Finally, the officer testified that Defendant was able to provide two valid 6 samples, after which Defendant was booked into jail. [DS 19] 7 On appeal, Defendant contends that the foundation requirement for admission 8 of the breath card was deficient because testimony about the performance of air 9 blanks, as crucial to the accuracy of the breath test, was necessary. The memorandum 10 states that Defendant objected that there was no testimony about air blanks, nozzles, 11 or clean mouth pieces. [MIO 19] Assuming this was sufficient to preserve the issue 12 for appeal, the officer’s testimony that he is the key operator and that the IR 8000 was 13 properly working was sufficient to establish proof of air blanks between the samples 14 tested. See 7.33.2.10(B)(2)(a) (stating that a minimum requirement for operation of 15 a breath alcohol testing instrument is a system blank analysis preceding each breath 16 sample). We therefore conclude that there was not abuse of discretion by the 17 metropolitan court in admitting the breath alcohol test result into evidence in the 18 bench trial, and that the district court correctly affirmed the metropolitan court under 19 this claim of error. 20 Issue 3 - Sufficiency of the Evidence to Show Impairment 7  1 “Substantial evidence review requires analysis of whether direct or 2 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 3 reasonable doubt with respect to every element essential for conviction. We 4 determine whether a rational factfinder could have found that each element of the 5 crime was established beyond a reasonable doubt.” State v. Kent, 2006-NCA-134, 6 ¶10, 140 N.M. 606, 145 P.3d 86 (citations omitted). Substantial evidence is “such 7 relevant evidence as a reasonable mind might accept as adequate to support a 8 conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 9 (quoting State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776). The 10 appellate court views the evidence in the light most favorable to the verdict, resolving 11 all conflicts and indulging all reasonable inferences in favor of the verdict. State v. 12 Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). 13 In order for the metropolitan court judge to find Defendant guilty of driving 14 while under the influence of intoxicating liquor, the State was required to prove to the 15 satisfaction of the metropolitan court judge beyond a reasonable doubt that Defendant 16 “operated a motor vehicle” and that, 17 [a]t the time, [D]efendant was under the influence of intoxicating 18 liquor[;] that is, as a result of drinking liquor[, D]efendant was less able 19 to the slightest degree, either mentally or physically, or both, to exercise 20 the clear judgment and steady hand necessary to handle a vehicle with 21 safety to the person and the public. 22 UJI 14-4501 NMRA. 8  1 In the memorandum, Defendant continues to argue that there was insufficient 2 evidence to establish that she was impaired by alcohol. [MIO 30] She points out that 3 the odor of alcohol alone is not enough to establish impairment, and that her faulty 4 performance on the FST is explained by her medical conditions. [Id.] Defendant 5 continues to argue that substantial evidence does not support a finding, beyond a 6 reasonable doubt, that Defendant’s ability to operate a vehicle was impaired “to the 7 slightest degree” by alcohol. [MIO 33] We are not persuaded. 8 In this case, the officer’s observations of (a) Defendant’s erratic driving, 9 including weaving and crossing in and out of the center lane, speeding, and crossing 10 multiple lanes to exit; (b) Defendant’s physical signs of intoxication; (c) Defendant’s 11 admission to drinking; and (d) Defendant’s failure to perform the FST and the 12 alternate FST in accordance with the officer’s instructions as indicated in the officers 13 testimony and observed by the metropolitan court judge in the video, together provide 14 substantial evidence to support Defendant’s conviction for DWI. See, e.g., State v. 15 Notah-Hunter, 2005-NCA-074, ¶ 23, 137 N.M. 597, 113 P.3d 867 (recognizing that 16 “DWI can be proven either through a defendant’s alcohol concentration or his/her 17 behavior”); see also id. ¶ 24 (holding that substantial evidence supported the 18 defendant’s conviction under Section 66-8-102(A) where the defendant “smelled of 19 alcohol, had slurred speech, admitted to drinking alcohol, failed field sobriety tests, 20 and was speeding while driving down the middle of the road”). 9  1 Defendant’s testimony contradicted the officer’s observations. She offered 2 contrary explanations for her performance on the FST and the alternate FST. In fact, 3 as discussed above, the metropolitan court judge indicated that he took Defendant’s 4 medical conditions into account in deciding to convict Defendant of “slightest degree” 5 DWI rather than per se DWI. Under the circumstances, however, it is well-established 6 that “[t]he reviewing court does not weigh the evidence or substitute its judgment for 7 that of the fact finder as long as there is sufficient evidence to support the verdict.” 8 State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. Moreover, 9 “[c]ontrary evidence supporting acquittal does not provide a basis for reversal because 10 the [fact finder] is free to reject Defendant’s version of the facts.” State v. Rojo, 1999- 11 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 10 1 We affirm Defendant’s conviction for DWI as supported by substantial 2 evidence. 3 IT IS SO ORDERED. 4 _______________________________ 5 MICHAEL E. VIGIL, Judge 6 WE CONCUR: 7 ________________________________ 8 CYNTHIA A. FRY, Chief Judge 9 ________________________________ 10 RODERICK T. KENNEDY, Judge 11 

608 P.2d 27 (1980) Patrick RILEY and Terry Miller, Petitioners, v. STATE of Alaska, Respondent. No. 4672. Supreme Court of Alaska. March 14, 1980. Peter F. Mysing, Asst. Public Defender, Brian C. Shortell, Public Defender, Anchorage, for petitioners. Thomas M. Wardell, Dist. Atty., Kenai, for respondent. Before RABINOWITZ, C.J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. OPINION MATTHEWS, Justice. Petitioners Patrick Riley and Terry Miller were separately arraigned before Magistrate *28 George Peck in the district court on the Kenai Peninsula.[1] Petitioners were informed of their rights at that time, including the right of peremptory challenge for any judge assigned to their case. In keeping with the practice of the Kenai district court, trial judge assignments were also made at the arraignment.[2] Neither petitioner had the benefit of counsel at his arraignment. The court appointed the Public Defender Agency to represent petitioners. Notice of appointment was delivered to the public defender office in Kenai approximately one month after the arraignments. Upon receipt of appointment notice, petitioners' counsel moved immediately for a change of judge under Alaska Rule of Criminal Procedure 25(d).[3] Judge Hornaday, the judge assigned to petitioners' cases, denied both motions as untimely. Consolidated review of his decision was subsequently obtained in superior court and Judge Carlson affirmed Judge Hornaday's orders. Petitioners now seek our review of Judge Carlson's decision. We have granted review in this case because we think the question raised is of sufficient substance and importance to warrant our review.[4] We also believe that a controlling question whose resolution will hasten the ultimate termination of the lawsuit is present,[5] and a postponement of review will result in unnecessary delay and injustice.[6] The order of the district court denying petitioners' requests was based on the provision of Criminal Rule 25 which requires a request for a change of judge to be made "[a]t the time required for filing the omnibus hearing form, or within five days after a judge is assigned the case for the first time." Alaska Rule of Criminal Procedure 25(d)(2). Because petitioners failed to move to peremptorily challenge Judge Hornaday until after the five-day limitation had expired, their right to change of judge under Rule 25 was determined to have been waived.[7] The right to challenge a judge peremptorily has been granted by the legislature.[8]*29 It is designed to further the substantive right of a litigant to a fair trial before an unbiased judge. See, e.g., Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976). The time limit for the exercise of the peremptory challenge is imposed to avoid the delay, calendaring disruption and "waste of judicial time which would result if [the notice] were not filed until the date of trial." McCracken v. State, 521 P.2d 499, 511 (Alaska 1974), quoting Pope v. State, 478 P.2d 801, 804 (Alaska 1970). The decision whether or not to peremptorily excuse an assigned judge is a strategic one which should ordinarily be made by a lawyer after consultation with his client.[9] Typically a non-lawyer will not have sufficient information concerning the assigned judge to make an intelligent decision as to whether the judge should be excused. It is true that the procedure for the exercise of the right to peremptorily challenge a judge is governed solely by Alaska Rule of Criminal Procedure 25(d), Gieffels v. State, 552 P.2d at 667, and the rule, read literally, allows the time for exercise of the right to run independent of the appearance of counsel.[10] However, we believe that in these cases the court abused its discretion in failing to waive, under Alaska Rule of Criminal Procedure 53,[11] the strict requirements of the rule. We reach this conclusion because it was obvious that neither petitioner had the opportunity to consult counsel before the time to exercise his challenge had expired, and neither could intelligently decide whether or not a challenge should be made without counsel. The right to peremptorily challenge a judge is sufficiently important so that it should not be lost by inaction before there is an opportunity to confer with an attorney. And, in this case, since counsel exercised the right *30 promptly upon receiving the notice of appointment, ordering a change of judge would not have caused more disruption or delay than if the challenge had been made within five days after arraignment. The order of the Superior Court affirming the orders of the District Court is reversed. NOTES [1] Mr. Riley was arraigned on January 17, 1979 in Seward. Mr. Miller was arraigned on January 11, 1979 in Kenai. [2] As far as we have been made aware, the Kenai Peninsula is the only area where judges are assigned at the time of arraignment. [3] Alaska R.Crim.P. 25(d) provides: (d) Change of Judge as a Matter of Right. In all courts of the state, a judge may be peremptorily challenged as follows: (1) Entitlement. In any criminal case in superior or district court, the prosecution and the defense shall each be entitled as a matter of right to one change of judge. When multiple defendants are unable to agree upon the judge to hear the case, the trial judge may, in the interest of justice, give them more than one change as a matter of right; the prosecutor shall be entitled to the same number of changes as all the defendants combined. (2) Procedure. At the time required for filing the omnibus hearing form, or within five days after a judge is assigned the case for the first time, a party may exercise his right to change of judge by noting the request on the omnibus hearing form or by filing a "Notice of Change of Judge" signed by counsel, if any, stating the name of the judge to be changed. A judge may honor a timely informal request for a change of judge, entering upon the record the date of the request and the name of the party requesting it. (3) Re-Assignment. When a request for change of judge is timely filed under this rule, the judge shall proceed no further in the action, except to make such temporary orders as may be absolutely necessary to prevent immediate and irreparable injury before the action can be transferred to another judge. However, if the named judge is the presiding judge, he shall continue to perform the functions of the presiding judge. (4) Timeliness. Failure to file a timely request precludes a change of judge under this rule as a matter of right. (5) Waiver. A party loses his rights under this rule to change a judge when he agrees to the assignment of the case to a particular judge or participates before him in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 11, or the commencement of trial. No provision of this rule shall bar a stipulation as to the judge before whom a plea of guilty or nolo contendere shall be taken under Rule 11. [4] Alaska R.App.P. 24(a)(1). [5] Alaska R.App.P. 23(d). [6] Alaska R.App.P. 23(e). [7] Alaska R.Crim.P. 25(d)(4). See note 3 supra. [8] AS 22.20.022 provides: Peremptory disqualification of a superior court judge. (a) If a party or his attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay. (b) No judge or court may punish a person for contempt for making, filing or presenting the affidavit provided for in this section, or a motion founded on the affidavit. (c) The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time. (d) No party or his attorney may file more than one affidavit under this section in an action and no more than two affidavits in an action. [9] See ABA Standards Relating to the Prosecution Function and the Defense Function: The Defense Function. Section 5.2 (Approved Draft 1971) states: 5.2 Control and direction of the case. (a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf. (b) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. [10] That is not the only defect in the rule. It sets out alternate times for the exercise of the right, "[a]t the time required for filing the omnibus hearing form, or within five days after a judge is assigned the case for the first time" but does not specify which alternative controls. We are requesting our standing committee on criminal rules to suggest a revision of Rule 25(d) which covers the situation here presented. [11] Alaska R.Crim.P. 53 provides: Relaxation of Rules. These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.

744 F.Supp.2d 1036 (2010) Barbara SILVA, et al., Plaintiffs, v. CITY OF SAN LEANDRO, et al., Defendants. Case No. C-09-03649 JCS. United States District Court, N.D. California. September 29, 2010. *1040 John L. Burris, Law Offices of John L. Burris, Steven Robert Yourke, Law Offices of Steven R. Yourke, Oakland, CA, for Plaintiffs. Tricia L. Hynes, Kimberly M. Drake, Matthew Alois Lavrinets, Meyers Nave Riback Silver & Wilson, Oakland, CA, for Defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Docket No. 47] JOSEPH C. SPERO, United States Magistrate Judge. I. INTRODUCTION This civil rights action involves allegations that officers of the City of San Leandro Police Department and the City of San Leandro violated Plaintiffs' constitutional rights when they entered a residence occupied by Plaintiffs to perform a "welfare check" and shot and killed Plaintiff Silva's dog. Defendants bring a Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("the Motion") seeking dismissal of all of Plaintiffs' claims. All parties have consented to the jurisdiction of a United States magistrate judge, pursuant to 28 U.S.C. § 636(c). The Court finds that the Motion is suitable for determination without oral argument, pursuant to Civil Local Rule 7-1(b). Accordingly, the motion hearing scheduled for October 8, 2010 at 1:30 p.m. is vacated. The case management conference set for the same time shall remain on calendar. For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part. II. BACKGROUND A. Facts This action arises out of events that occurred on May 24, 2009 at a residence ("the Residence") located at 632 Beatrice Street in San Leandro, California. Joint Statement of Undisputed Material Facts Related to Defendants' Motion for Summary Judgment or, in the Alternative, for Partial Summary Adjudication ("Joint Statement"), No. 1. Plaintiff Bruce Hemphill's grandmother had owned the Residence, but had passed away, and the Residence was in probate. Id., No. 3. Hemphill lived at the Residence pursuant to an agreement with his family that he would maintain the Residence during the probate. Id., No 4. At the time of the relevant events, the Residence was occupied by Bruce Hemphill, Barbara Silva and Matthew Hoy. Id., Nos. 2, 7. Silva lived at the Residence pursuant to an oral lease agreement with Hemphill. Id., No. 5. Matthew Hoy was Silva's boyfriend and also lived at the Residence, in the room occupied by Silva. Id., No. 7. In addition, Silva kept a 60-pound pit-bull mix, named Boo Boo, at the Residence with her. Id., No. 8. On May 24, 2009, at approximately 4:18 a.m., the Alameda County Sheriff's Department received an anonymous 911 call in which the caller stated that a female was overdosing on drugs and turning blue at the Residence. Id., Nos. 9-10. The Alameda County Sheriff's Department immediately notified the San Leandro Police Department ("SLPD") of the 911 call. Id., No. 11. In response, the SLPD dispatch relayed the substance of the call to SLPD officers on patrol and emergency medical *1041 personnel and requested that they respond. Id., No. 12. Responding Officers Jason Bryan and Brian Buss, who were both on patrol at the time, in separate patrol vehicles, were the first to arrive at the Residence. Id., Nos. 13-14. Both were wearing their police uniforms. Id., No. 15. Upon their arrival, Officers Bryan and Buss proceeded to the front door of the Residence. Id., No. 16. The front door of the Residence is protected by a locking, metal security gate. Id., No. 17. Officer Bryan knocked and identified himself several times. Id., No. 19. At that point, Hemphill was in his bedroom and Silva and Hoy were in Silva's bedroom. Id., No. 20. Upon hearing the Officers' knocking, Hemphill came to the front door. Id., No. 21. The metal security gate obscured the Officers' view into the Residence. Id., No. 22. The account of Officer Bryan about the events that followed differs from Plaintiffs' accounts. Officer Bryan testified at his deposition that he told Hemphill that the officers were there because they had received an anonymous 911 call stating that someone was overdosing on drugs inside. Declaration of Matthew A. Lavrinets in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("Lavrinets SJ Decl."), Ex. D (Bryan Depo.) at 15. Officer Bryan testified that Hemphill told him that everybody was fine. Id. Officer Bryan told Hemphill that the officers needed to come inside to check nonetheless. Id. at 15-17. According to Bryan, Hemphill refused to let the officers in and appeared "agitated.". Id. at 16, 22. Officer Bryan then asked Hemphill if there was anyone in the house with him; Hemphill said there was and called out the name "Matt." Id. at 17. At that point a male appeared behind Hemphill. Id. at 16-17. Officer Bryan explained that although he could not see through the security door, even with his flashlight, he heard male voices. Id. at 18. According to Bryan, he heard the men saying that everything was fine and mentioning that the second man's girlfriend was also in the house. Id. Bryan testified that Matt's girlfriend never came out, or at least, he never saw her. Id. at 18. According to Bryan, while this exchange was occurring, there was a dog inside the house near the door barking and growling and pushing on the screen door. Id. at 18, 20. Bryan testified that: [a]t that point I was trying to reason with Mr. Hemphill to just allow us to go in and just make sure everybody was ok. And like I said, he was agitated. He basically told me that he was not going to let me in and he shut the door. Id. at 21-22. Hemphill testified at his deposition that when he opened the door, he saw two men on the front porch and two men on the grass near the sidewalk, and that one of the men on the grass yelled out that there had been a 911 call placed from Hemphill's residence and they needed access to the home. Declaration of Steven R. Yourke, Esq. in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment ("Yourke Decl."), Ex. 3 (Hemphill Depo.) at 34. Hemphill stated that he was "confused" by this "because of the fact that there was no home phone in my grandmother's house because we had it turned off within a week or so after she had passed." Id. He testified that he responded as follows: My response was ... you must have the wrong house. Because for one, there is no phone here at this house, which you—the officers or whatever it was— because I didn't know who it was—because I didn't know who it was. I just heard them say it out loud—was that the 911 call was placed from my residence. And I told them you guys must *1042 have the wrong address or something because there's no one here in need of medical attention. And then I said that if you'd like I can get the people that are here to come to the front door so they could verify that everybody in the house is safe. Would that be okay. And I heard somebody say, yes, that would be fine. So I turned back towards the— towards their bedroom direction and yelled out loud, "Matt and Barbie, can you please come to the front door?" which they did. They both ... stated that they were ... fine. And I turned to the front door and I said, well, is that all? ... [and] the officers didn't say anything. Nobody said anything. So I assumed everything was fine and I closed the front door. Id. at 35-36. Hemphill further that "Matt came out first, but Barbie was a few feet behind him" and that both said out loud that they were fine. Id. at 36. According to Hemphill, Boo Boo was barking and so he asked Hoy to put the dog away. Id. Hemphill stated that Hoy then took Boo Boo to Silva's bedroom and closed the door. Id. Silva testified at her deposition that after she heard her dog barking and the doorbell ring, Hemphill knocked on the bedroom door and asked Silva and Hemphill to come to the door because the police were there. Yourke Decl., Ex. 1 (Silva Depo.) at 57. She said that Hoy went with Hemphill, that Boo Boo also left the room and that she followed, about two minutes later, after putting her pants on. Id. According to Silva, she spoke to the officers and assured them that she was fine and only went back to bed after she asked the officers if she could do so, and they replied that she could. Id. at 57-61. It is undisputed that Hemphill did not open or unlock the front door security gate and that Officer Bryan felt that Hemphill's refusal to admit the officers to conduct a welfare check was suspicious. Joint Statement, Nos. 33-34. In Officer Bryan's experience, acquaintances of a person overdosing on drugs will often assume a person's life is not at risk and will prefer to not involve police or emergency personnel for fear that they will be held criminally liable for their own use of drugs. Id., No. 36. Therefore, Officer Bryan determined that the officers needed to enter the Residence. Id., Nos. 37-38. Officer Bryan contacted dispatch and requested assistance from additional SLPD officers and the following officers responded: Liaquat Khan, Matthew Costa, Daniel Sellers, Robert McManus, Michael Benz, Dennis Mally, Jason Fletcher and Suzanne Huckaby. Id., Nos. 39-40. As additional officers began to arrive on the scene, Officer Bryan and other officers conferred regarding the safest method to gain entry into the home, and conducted related investigation into other routes of entry besides the front door, which was blocked by a security gate. Id., No. 41. The officers felt that time was of the essence and that they needed to gain entry into the Residence as soon as possible due to the emergency nature of the situation. Id., No. 42. As part of the efforts to gain entry to the Residence, Officer Costa looked over a side fence of the Residence and saw a side door to the garage of the Residence that was ajar. Id., No. 43. Officer Costa proceeded over the fence with the intent of securing the side door so that the officers could use it as an entry point to gain access to the Residence to perform a welfare check. Id., No. 44. When Officer Costa arrived at the side door, he was met by Hemphill, who attempted to shut the side door. Id., No. 45. However, Officer prevented Hemphill from closing the door by placing his foot in the door. Id., No. 46. Officer Costa then ordered Hemphill *1043 to come out of the Residence. Id., No. 47. Hemphill complied and Officer placed Hemphill in handcuffs, with his arms behind his back. Id., No. 48. Officer Costa then called for assistance in continuing to detain Hemphill so that Officer Costa could remain at the side door and prevent anyone else inside the Residence from closing it. Id., No. 49. Officer Khan heard Officer Costa's request for assistance and proceeded to where Officer Costa and Hemphill were standing. Id., No. 50. Officer Kahan took hold of Hemphill's arm and led him to the front of the Residence, where multiple police cars were parked. Id., No. 51. As Officer Khan was leading Mr. Hemphill to the front of the Residence, Officer Khan felt Hemphill begin to resist his grip on Hemphill's arm. Id., No. 52. Officer Khan felt that Hemphill was about to attempt to run away from him, so Officer Khan intensified his grip on Hemphill's arm and forcefully directed him to the hood of a nearby police car. Id., No. 53. Officer Khan perceived Hemphill as being much larger than him; Hemphill is five foot eleven inches tall and weighs 185 pounds, while Office Khan is five foot four inches tall and weighs 150 pounds. Id., No. 54; Reply at 6 n. 2 (clarifying that Hemphill is not five foot four inches, as stated in the Joint Statement but rather, five foot eleven, citing Hemphill's own deposition testimony). Upon reaching the hood of the police car, Officer Khan placed the front of Hemphill's upper body on the hood of the police car. Id., No. 55. Officer Fletcher assisted Officer Khan in placing Hemphill over the hood of the car. Id., No. 56. Officer Khan then placed Hemphill in the rear seat of the police car. Id., No. 57. The evidence is disputed as to whether Hemphill resisted Officer Khan as he led him from the side of the Residence to the hood of the patrol car and then into the back seat of the car. Officer Khan stated in a sworn declaration that Hemphill attempted to resist his grip and later "struggl[ed] [w]ith him as he moved him away from the side of the house." Declaration of Officer Liaquat Khan in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication ("Khan Decl."), ¶¶ 8-9. Hemphill, on the other hand, testified at his deposition that he complied with the Officers order and did not flex his muscles as Khan stated. Yourke Decl., Ex. 3 (Hemphill Depo.) at 71. Subsequently, a group of officers entered the Residence through the side door. Lavrinets Decl., Ex. D (Bryan Depo.) at 28. There is conflicting evidence in the record as to how the decision was made to enter in this manner. According to Officer Bryan, Sergeant McManus—one of the officers who had responded to Officer Bryan's call for additional back-up—was the officer who made the decision for a "stack"[1] of officer to enter through the side garage door. Id. at 28. Officer McManus, on the other hand, testified that he did not authorize or coordinate the stack and did not know who gave the order to form a stack. Id., Ex. G (McManus Depo.) at 20. Rather, he testified that he was still in the front of the house coordinating other emergency personnel when he saw five or six officers, 40 or 50 feet away from him, begin entry into the house through the side of the garage. Id. at 21. Hemphill offered yet another account, testifying at his deposition that Sergeant McManus instructed his officers to enter through the *1044 side garage door after asking Hemphill the easiest way to get into the house. Yourke Decl., Ex. 3 (Hemphill Depo.) at 55. According to Hemphill, he told Sergeant McManus to enter through the garage side door, which was open, so that it would not be necessary to kick down the front door, which was still locked. Id. Although it is unclear who made the initial decision to enter through the side garage door, it is undisputed that the decision to form a stack was made at approximately 4:34 a.m. Joint Statement, No. 59. The stack included Officers Costa, Sellers, McManus, Bryan, Buss, Fletcher and Mally. Id., No. 60. There is conflicting evidence about the events that followed. Officers Bryan, Costa and McManus testified that when they entered the garage, they loudly identified themselves as San Leandro Police officers and called for everyone in the house to come out with their hands up. See Lavrinets Decl., Ex. D (Bryan Depo.) at 29-30, Ex. F (Costa Depo.) at 45-46, Ex. G (McManus Depo.) at 26. The officers further testified that they entered the kitchen after they received no response and then ordered the occupants to come out again, calling Hoy by name. Id. (Plaintiffs do not dispute that Officer Bryan called Hoy by name. See Lavrinets Decl., Ex. C (Hoy Depo.) at 46.) According to the officers, they again received no response and they proceeded to the living room. Lavrinets Decl., Ex. D (Bryan Depo.) at 29-31, Ex. F (Costa Depo.) at 49-50, Ex. G (McManus Depo.) at 50-51. Officer Bryan testified that he could not recall whether any order was given prior to entering the Residence to secure Silva's dog. Lavrinets Decl., Ex. D (Bryan Depo.) at 30. Officers Costa and Sellers, however, testified that no instruction was given to secure the dog. Lavrinets Decl., Ex. F (Costa Depo.) at 67; Yourke Decl., Ex. 4 (Sellers Depo.) at 89. Similarly, Sergeant McManus testified that he did not recall Officer Bryan informing him that there was an aggressive pit bull inside the residence. Lavrinets Decl., Ex. G at 50. Officer Bryan testified that after he and Officer Sellers arrived in the living room, Hoy came into the living room and Officer Sellers ordered him to put his hands up, and then to get down on the ground. Lavrinets Decl., Ex. D (Bryan Depo.) at 32. Officer Bryan further testified that Hoy complied with those orders. Id. Officer Sellers testified that at the same time, he had his gun and flashlight trained on the hallway and that he could hear a grunt or growl coming from that direction. Lavrinets Decl., Ex. I (Sellers Depo.) at 75. According to Officer Sellers, a dog came around the corner at that point, "sprinting" straight at him, with its ears back and its teeth bared. Id. Officer Sellers concluded that the dog posed an "immediate threat" to him and was attacking him. Id. At this point, Officer Sellers testified, Hoy was already on the floor. Id. at 77. Officer Sellers was reluctant to shoot, however, for fear of hitting Hoy or another officer. Id. When the dog was five feet away, Officer Sellers said, he fired one round at it. Id. Hoy offered a different account, testifying that when the officers were outside the garage, he "heard somebody from way on the other side of the house yell, `Matt ... come out. I just need to talk to you. You're not in any trouble. Just come out. I got to ask you a couple questions.'" Yourke Decl., Ex. 2 (Hoy Depo.) at 46. According to Hoy, in response he put his pants on and came out of the bedroom to find five officers in the living room, guns drawn, yelling, "[p]ut your fucking hands in the air. Put your hands in the air." Id. at 47-48. Hoy further testified that Boo Boo followed him out of the bedroom, at which point Barbara said "Matt, Boo Boo's *1045 following you" and Hoy gestured to the officer to wait while he restrained the dog. Id. at 56-57. According to Hoy, just as he reached down to do so, an officer shot Boo Boo. Id. at 57. Hoy testified that prior to being shot, Boo Boo was not barking and that he was just coming around the corner from the hallway when he was shot. Id. The shot fired by Officer Sellers hit Boo Boo, who stopped in his tracks and retreated to Silva's bedroom. Joint Statement, No. 76. The officers then continued to perform their welfare check but did not find any female overdosing, as had been reported. Id., Nos. 78, 83. Both Hoy and Silva were placed in handcuffs and escorted to separate patrol cars. Id., Nos. 79-82. Boo Boo was placed in a "comealong" by Officer Costa and led to Officer Huckaby's car. Joint Statement, No. 84. At 4:45 a.m., Officer Huckaby drove Boo Boo to the 24-hour emergency vet for treatment but Boo Boo ultimately died. Id., Nos. 85, 87. Silva and Hoy were released after they had signed statements that were prepared by Officers Costa (Hoy's statement) and Buss (Silva's statement). Id., No. 88. The statement for Silva was signed by Silva and states as follows: Officer Buss is writing this statement for me. Tonight I was at home with my boyfriend Matthew. About 4:00 AM I heard somebody call Matt's name and he walked out of the bedroom. My dog Boo Boo followed Matt to the door. I saw a bunch of lights come on and I heard somebody tell Matt to show his hands and to get on the ground. I had no idea what was going on. I didn't know BJ [and Matt][2] didn't answer the door when the cops were at it. I sat up from bed and saw Boo Boo run out of the bedroom door. I stayed in the bedroom because I didn't know what to do. I froze for a minute. I heard a loud pop, and Boo Boo ran back into the bedroom. Right before Matt was called out of the bedroom I was sleeping. I woke up as he jumped up out of bed. I know the police had to shoot Boo Boo because they didn't know Boo Boo is a sweet dog. I understand why they did what they did because he came running out and he's a big dog. [When I heard the police tell Matt to put his hands on his][3] head When I heard you guys tell Matt to put his hands on his head I knew it was the police. I told Boo Boo no, don't run out but I spoil him and he doesn't listen very well. Boo Boo ran out of the bedroom. I know you guys did the right thing and not go over your boundaries. I know Boo Boo isn't trained well enough to stay or sit when I tell him to. This is a true statement. Lavrinets Decl., Ex. L (Silva Statement). Officer Buss testified that the statement accurately reflects the account that Silva gave him of what had occurred that night. Lavrinets Decl., Ex. E (Buss Depo.) at 47. Silva testified at her deposition, however, that the statement is false and moreover, that she signed it without reading it because she was in a hurry to get out of the car and make sure her dog was okay. Yourke Decl., Ex. 1 (Silva Depo.) at 146-157. The statement for Hoy was written by Officer Costa and signed by Hoy. Lavrinets Decl., Ex. K (Hoy Statement). It states as follows: *1046 On 05-24-09 at 0415 AM I was at home in bed with my girlfriend Barbara. I heard the doorbell ring and my roommate "BJ" called my name. I went to the door and saw a police officer there. BJ was at the door with me and my dog was there too. The police asked if someone had been arguing. I didn't know what they were talking about so I closed the door and went back to bed. A few minutes later, I heard someone calling my name. They said they were the police. I thought the police had left and BJ was messing around with me. I stayed in bed with Barbara and the dog. Again I heard my name and I was told to come out of my room. As I came out of the room, I turned the corner and saw a bunch of uniformed police in the living room. I was told to get on the ground and I did. Then my dog ran out of the bedroom at the officers. I heard a gunshot and saw the dog run back. I stayed on the ground in the living room. The police handcuffed me and took me outside to a police car. This is the truth to the best of my knowledge. Id. Officer Costa testified that he read the statement accurately to Hoy before Hoy signed it. Lavrinets Decl., Ex. F (Costa Decl.) at 15. However, Hoy testified at his deposition that although he had some memory of an officer reading a statement to him, it could not have been the statement quoted above because that statement is false. Yourke Decl., Ex. 2 at 99-103. Hoy also testified that he signed the statement without reading it and that at the time, it didn't really matter to him because he had been told that he would be free to go once he signed the statement and he wanted to check on the dog. Id. at 99-100. In the meantime, Hemphill had been taken by Officer Khan to the SLPD station for booking. Joint Statement, No. 90. Officer Khan interviewed Hemphill about the events of that night. Id., No. 91. He prepared the following statement, which carries Hemphill's signature: Today, 5/24/09 around 4:00 A.M., I was at my house, in my bedroom, going over some paperwork. I have been under some stress over some family matters. At this time I heard a knock at my front door. I answered the front door [ ][4] and saw [ ][5] two police officers. One of the officers said they were there because they got a medical call of someone overdosing at the house. I knew as a fact my two roommates at the house were okay and not overdosing. I told the officers no one was in need of help. The officers asked if they could come in and I told them no. I told them no because there was no medical emergency. When I closed the door, I heard the officers knocking at the door. I also heard people in my back yard. A short while (I don't remember the time frame) I opened the side door. I was met by some offices again. I was [taken][6] detained in hand cuffs. I was then escorted by another officer away from my house. As I was leaving I tightened my muscle because I didn't know what was going on and because of my stress. *1047 I had no intention of delaying the officers in any way. This is a true statement. Lavrinets Decl., Ex. J (Hemphill Statement). Officer Khan states in his declaration that this statement is based on what Hemphill told him during the interview at the station and that Hemphill reviewed the statement before signing it. Khan Decl., ¶¶ 11-13. At his deposition, however, Hemphill testified that a number of the statements in the written account were false and that he had not actually read the statement. Yourke Decl., Ex. 3 (Hemphill Depo.) at 73. Rather, Hemphill stated that he had signed the statement after Officer Khan read something to him that he represented to be the written statement. Id. Hemphill noted that "he could have told me a total different story than what he wrote." Id. B. The Complaint In the Complaint, Plaintiffs assert claims under 42 U.S.C. § 1983 against the following Defendants: 1) City of San Leandro; 2) San Leandro Chief of Police Ian Willis, in his official capacity; 3) Sergeant Robert McManus; 4) Officer Brian Buss; 5) Officer Daniel Sellers; 6) Officer Michael Benz; 7) Officer Matthew Costa; 8) Officer Liaquat Khan; 9) Officer Dennis Mally; 10) Officer Jason Fletcher; and 11) Officer Suzanne Huckaby. Plaintiffs assert three claims. In Claim One, Plaintiffs assert that their Fourth and Fourteenth Amendment rights to be free of unreasonable searches and seizures were violated. Within this claim, Plaintiffs assert that: 1) each of the Defendant police officers arrested or detained each of the Plaintiffs without probable cause; 2) Officer Khan used excessive force against Plaintiff Hemphill when he arrested Hemphill; and 3) each of the Defendant police officers, including Sergeant McManus, violated Plaintiffs' Fourth Amendment rights by entering the Residence without a warrant or lawful justification. In Claim Two, Plaintiff Silva asserts that Officer Sellers violated her Fifth and Fourteenth Amendment rights to due process when he deliberately shot and killed Boo Boo without due process or lawful excuse or justification. In Claim Three, Plaintiffs assert claims against the City of San Leandro and the Police Chief, Ian Willis, on the basis that these defendants were the proximate cause of Plaintiffs' injury because they failed to adequately train and supervise their officers. C. The Motion In the Motion, Defendants seek summary judgment on the following grounds: 1) Plaintiffs' claims under the Fourteenth Amendment, based on their alleged deprivation of substantive due process, fail as to all Defendants because the applicable amendment is the Fourth Amendment, not the Fourteenth Amendment. 2) Defendants' entry into the Residence and arrest of Plaintiffs did not violate Plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures because of the existence of exigent circumstances, which allows officers to enter a residence without a search warrant in emergency situations and to briefly detain residents while a search is being performed. Defendants further assert that even if the search was unreasonable, the Defendant officers are entitled to qualified immunity because the officers had a reasonable belief that they were acting lawfully. 3) Defendants' arrest of Plaintiff Hemphill, as a matter of law, did not violate *1048 the Fourth Amendment because the minimal use of force by Officer Khan was reasonable and, in any event, Officer Khan is entitled to qualified immunity as to this claim. 4) Defendants' detention of Plaintiffs Hoy and Silva, as a matter of law, did not violate the Fourth Amendment because exigent circumstances permitted the Officers to enter the house and briefly detain Hoy and Silva in order to conduct the search. 5) Defendant Sellers' shooting of Plaintiff Silva's dog, as a matter of law, did not violate the Fifth Amendment because none of the defendants are federal actors; nor did it violate the Fourteenth Amendments because a deprivation of property does not violate the Fourteenth Amendment's procedural due process right. 6) Plaintiffs, as a matter of law, cannot establish the liability of the City of San Leandro and Police Chief Ian Willis because there is no evidence of a widespread custom or practice, as required to establish municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In their Opposition, Plaintiffs assert that there are four issues that must go to trial because there are of disputed questions of material fact: 1) Whether Defendants' entry into the home was reasonable; Plaintiffs point to evidence which, indicating that after Hemphill was arrested, Silva and Hoy were not warned that the police were entering the house, were not warned to secure the dog and were never asked to simply open the front door and allow the police to enter. 2) Whether the shooting of the dog was reasonable; Plaintiffs point to evidence that Boo Boo did not attack the police and posed no serious threat to them 3) Whether the arrest and use of force against Hemphill by Officers Khan and Fletcher was reasonable; Plaintiffs point to evidence that Officers Khan and Fletcher "body-slammed" Hemphill to the hood of the car even though he was not resisting arrest; 4) whether the detention of Hoy was reasonable; Plaintiffs point to evidence that Hoy did not resist arrest or obstruct the police in conducting their search in any way. Plaintiffs concede that the claim based on the shooting of Boo Boo should have been pleaded under the Fourth Amendment rather than the Fifth and Fourteenth Amendments and request leave to amend the Complaint to assert the claim under the Fourth Amendment. Plaintiffs cite to San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir.2005) in support of their assertion that the shooting of a pet dog by police may violate the Fourth Amendment. In their Reply brief, Defendants reiterate the arguments in the Motion. With respect to the Fourth Amendment claim that Plaintiffs seek to assert against Officer Sellers based on the shooting of Boo Boo, Defendants argue that the claim should be dismissed because the facts here are distinguishable from those in the Hells Angels decision and therefore, that Defendants are entitled to qualified immunity on this claim. III. ANALYSIS A. Legal Standard under Rule 56(c) Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues as to any material fact *1049 and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A "genuine" issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir.2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to "designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To establish a "genuine" issue of fact when opposing summary judgment, a plaintiff must "produce at least some significant probative evidence tending to support" the allegations in the complaint. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990). B. Claims Dismissed on the Basis that Plaintiffs Have Not Opposed Summary Judgment and/or Cited to Evidence in Support of Them 1. Monell Claims In the Motion, Defendants argued that the claims against Chief Ian Willis and the City of San Leandro should be dismissed because Plaintiffs have pointed to no evidence of a policy or practice on the part of the City that would allow for the imposition of municipal liability. The Court agrees. Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by its employees on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. 2018. A plaintiff seeking to establish municipal liability under section 1983 may do so in one of three ways: 1) the plaintiff may demonstrate that a municipal employee committed the alleged constitutional violation "pursuant to a formal governmental policy or longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity;" 2) the plaintiff may demonstrate that the individual who committed the constitutional violation was an official with "final policy-making authority and that the challenged action itself thus constituted an act of official government policy;" or 3) the plaintiff may demonstrate that "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). Here, Plaintiffs did not address in their Opposition brief Defendants' assertion that the claims against the City of San Leandro and the police chief fail as a matter of law. Further, there is no evidence in the record that the alleged violations were either committed by an individual with final policy-making authority or ratified by such an individual. Nor is there any evidence of a policy or custom to which the relevant conduct of the Defendant officers can be attributed. Therefore, Defendants' request for entry of summary judgment on the claims against the City of San Leandro and the police chief is granted. *1050 2. Officer Huckaby Defendants assert that Plaintiffs' claims as to Officer Huckaby should be dismissed because the only evidence of her involvement in the relevant events is that she drove Boo Boo to the emergency veterinarian after he was shot. The Court agrees. The undisputed evidence shows that Huckaby was not involved in the entry into the Residence or the arrest or detention of any of its residents. Accordingly, all of Plaintiffs' claims fail as to Officer Huckaby. 3. Fourteenth Amendment Claims Defendants seek summary judgment as to all of Plaintiffs' claims under the Fourteenth Amendment on the basis that the Fourteenth Amendment due process clause applies only to federal actors and none of the named defendants is a federal actor. Plaintiffs do not address this argument in their Opposition brief, implicitly conceding that these claims fail. Accordingly, the Court grants Defendants' request for summary judgment as to all of Plaintiffs' Fourteenth Amendment claims. C. Fourth Amendment Claim Based on Allegedly Illegal Entry Defendants argue that the Court should enter summary judgment in their favor on all of Plaintiffs' Fourth Amendment claims based on the Defendant Officers' allegedly unreasonable entry into the Residence, asserting that the undisputed evidence establishes, as a matter of law, that exigent circumstances justified the Officers' conduct. Defendants further assert that even if it cannot be determined as a matter of law whether the Officers acted reasonably, they are nonetheless entitled to qualified immunity as to this claim because their conduct did not violate a clearly established right. The Court concludes that there are factual disputes that preclude summary judgment on both grounds. 1. Whether Exigent Circumstances Justified the Warrantless Entry The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The purpose of this amendment is to "safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, it is well-established that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant.'" Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (quoting Camara v. City and County of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). An exception to the search warrant requirement arises in the case of exigent or emergency circumstances in which police officers reasonably believe "that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Ninth Circuit has adopted a two-part test for determining whether the emergency exception applies, which asks "whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need." U.S. *1051 v. Snipe, 515 F.3d 947, 951 (9th Cir.2008). "When a government agent enters a home without a warrant, `the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.'" U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir.2002) (quoting Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). There is no bright-line rule as to whether a 911 call reporting that an occupant of a residence is in danger is sufficient to give rise to exigent circumstances. See, e.g., U.S. v. Brooks, 367 F.3d 1128, 1136 (9th Cir.2004); U.S. v. Davis, 290 F.3d 1239, 1242 (10th Cir.2002). For example, in Brooks, the court of appeals affirmed the district court's holding, on a motion to suppress, that an officer who entered the defendant's hotel room without a warrant did not violate the Fourth Amendment because the officer reasonably believed that a woman inside was in serious danger. Id. The court explained its holding as follows: The issue before us is whether the 911 call alerting police to a perceived domestic abuse and the corroborating facts known to Perez disclosed dangers creating an exigency that justified entry into Brooks's hotel room without a warrant. Many of the same facts that showed probable cause to suspect evidence of crime are also relevant to show Perez's exigent need to enter. Police received an emergency call for aid. Perez talked to the hotel guest who feared an assault was occurring in Brooks's room, and Perez confirmed by Brooks' statement that a woman was in the room. When Brooks opened the door, he admitted that the woman had been "loud." Perez saw the hotel room in disarray. No woman was in sight. Perez's entering the room was justified by an objectively reasonable belief that a woman might be injured and entry was "necessary to prevent physical harm" to her. Id. at 1135-1136. The Court went on to reject the defendant's argument that the officer could have simply asked the woman to come out into the hall to be interviewed, noting that "[t]he Supreme Court has `repeatedly refused to declare that only the "least intrusive" search practicable can be reasonable under the Fourth Amendment.'" Id. (citations omitted). In contrast, in U.S. v. Davis, the Tenth Circuit affirmed the district court's order granting a motion to suppress evidence that had been seized during a warrantless search, rejecting the government's assertion that the officers had not violated the defendant's Fourth Amendment rights when they entered his home without a search warrant because of exigent circumstances. 290 F.3d at 1244. In that case, the officers had received a dispatcher's report of a possible domestic disturbance at a residence that was known to the officers to be the home of Jason Davis and Desiree Coleman. Id. at 1240. When the officers arrived at the residence, they heard no noise and saw no sign of a disturbance. Id. Subsequently, Davis appeared at the door, with bloodshot eyes and alcohol on his breath. Id. He told the officers that he had been disciplining his child and that Ms. Coleman was out of town. Id. At this point, however, Ms. Coleman appeared. Id. at 1241. She wrapped her arms around Davis's waist and said that the two had been arguing. Id. Davis, however, was obstructing the officers' view of Coleman and preventing them from talking to her, while at the same time he was attempting to close the door. Id. At that point, the officers told Davis that they were coming in to check on Ms. Coleman. Id. Davis then quickly retreated to the back of the house and returned with a child in his arms. Id. The officers entered the house and observed signs of marijuana use, which they cited in support of a subsequent *1052 application for a search warrant. Id. The defendant in Davis brought a motion to suppress the evidence that was uncovered in the subsequent search and the government opposed it, asserting that exigent circumstances justified the first (warrantless) entry. Id. In rejecting the government's argument, the court stated as follows: There was no evidence introduced that indicated the officers believed Mr. Davis had a reputation for violence. Nor had he displayed a threatening or aggressive manner when he initially contacted the officers. It is true he lied about Ms. Coleman's whereabouts, but any concern that lie might have effected was allayed when she appeared without any signs of harm. Moreover, the only manifestation of resistance displayed by Mr. Davis was his insistence upon keeping the officers outside. As the district court noted, even Ms. Coleman, "the suspected victim[,] was trying to prevent" the officers from entering Mr. Davis' residence. United States v. Davis, No. 01-40036-01-RDR, 2001 WL 1013313, at *4 (D.Kan. Aug. 7, 2001). The court therefore logically concluded the officers "[o]bviously ... could [have] check[ed] her condition without entering the home." Id. Moreover, as stated in Mr. Davis' brief, "Parsons knew Davis had children, so his withdrawal from police presence should have been wholly unthreatening." Id. at 1243. For these reasons, the court granted the motion to suppress. Id. In this case, the Court concludes that the evidence in the record does not provide a sufficient basis to conclude that exigent circumstances existed as a matter of law. See Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997) (holding that the district court had erred in holding, on summary judgment, that exigent circumstances justified warrantless entry because there were disputed questions of fact relating to circumstances). While it is undisputed that a 911 call had been received reporting that an individual was overdosing inside, it is also undisputed that the call was anonymous, in contrast with the facts of Brooks, in which the officer actually spoke with the individual who had placed the emergency call. Further, while Defendants cite to Hemphill's conduct when he answered the door as a separate basis for concern, the accounts of what occurred when the Officers first spoke to Hemphill are widely divergent. Hemphill testified that he offered to call all of the occupants to the front door so that the officers could see that no one was in danger and that in fact, he did call his roommates, who came to the front door while he was talking to the officers. He further testified that he closed the front door because he believed that the matter had been resolved, not because he was refusing the police entry. In contrast, the officers testified that Silva did not come to the door, that they could not see through the security grate, that Hemphill acted suspiciously and that he slammed the door on the officers, refusing to permit them to enter the house. In short, in light of the factual disputes relating to the circumstances under which the officers entered the Residence, the Court finds that the question of whether there were exigent circumstances cannot be resolved on summary judgment. 2. Whether Defendants Are Entitled to Qualified Immunity on this Claim Under the doctrine of qualified immunity, even if a constitutional violation occurred, governmental officials are immune if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, *1053 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether a defendant is entitled to qualified immunity, courts must first ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If not, the qualified immunity analysis ends here. Id. at 201, 121 S.Ct. 2151. On the other hand, "if a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Id.[7] The inquiry as to this second question must be "particularized." Id. It is not enough that the general rule is established. Id. Rather, "[t]he relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151 (emphasis added). The Supreme Court has cautioned that courts should afford "deference to the judgment of reasonable officers on the scene" and should not use "20/20 hindsight vision." Id. at 205, 121 S.Ct. 2151. Applying the law of qualified immunity to the facts here, it is well-established that absent exigent circumstances, the Fourth Amendment requires that a search warrant be obtained to enter a private residence, as discussed above. Further, there are many disputed facts relating to the question of whether exigent circumstances existed when the Officers entered the Residence without a warrant. These disputed facts must be decided by a jury. Therefore, the final step of qualified immunity analysis must await the determination of issues of fact. Accordingly, the Court denies summary judgment on the basis of qualified immunity as to this claim. D. Fourth Amendment Claim Based on Alleged Use of Excessive Force Against Hemphill Defendants assert that Plaintiff Hemphill's excessive force claims against Officers Fletcher and Khan fail as a matter of law because the force used was "clearly reasonable and the minimal amount of force necessary in the face of Mr. Hemphill's resistance." Motion at 16. In any event, Defendants assert, Officers Fletcher and Khan are entitled to qualified immunity on these claims because they did not violate a clearly established right. The Court rejects both contentions. "A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard." Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 921 (9th Cir.2001). Determining whether the force used was reasonable "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Moreover, *1054 "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Id. There are disputed issues of material fact as to whether Officers Fletcher and Khan used excessive force. According to Hemphill, he was slammed onto the hood of a car during the course of his arrest even though he was fully complying with the officers' orders and was not resisting arrest. According to Defendants, Hemphill was pushed against the hood of a car after he appeared to be resisting arrest by flexing his arm muscles. Whether the force used by the officers was reasonable depends on whose account is to be believed—a question that the jury must decide. Further, if the jury accepts Hemphill's account as true, the officers also are not entitled to qualified immunity because it is clearly established that officers may not use more force than is reasonable under the circumstances. See Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir.2007) ("In assessing the state of the law at the time of [plaintiff's] arrest, we need look no further than Graham's holding that force is only justified when there is a need for force"). The Court denies Defendants' request for summary judgment on the excessive force claim. E. Fourth Amendment Claims Based on Detention of Hoy and Silva Defendants assert that they are entitled to summary judgment as to Plaintiffs' claims that the detention of Hoy and Silva violated their Fourth Amendment rights. In the alternative, Defendants assert that the Court should grant summary judgment on the basis that the Officers were entitled to qualified immunity on these claims. The Court concludes that Defendants are not entitled to summary judgment on these claims on either ground. As discussed above, the "Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Further, an emergency situation may justify a warrantless seizure in the home. See Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Walker, 474 F.3d 1249, 1252-53 (10th Cir.2007)). However, "a warrantless search must be `strictly circumscribed by the exigencies which justify its initiation.'" Mincey, 437 U.S. at 393, 98 S.Ct. 2408 (citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In this case, it is undisputed that after Boo Boo was shot, Hoy was placed in handcuffs and taken outside, where he was put in the back seat of a patrol car. It is also undisputed that the officers found Silva in her bedroom, where they placed her in handcuffs as well, and that she was then taken outside to a separate patrol car, where she also was put in the back seat. According to Defendants, this detention was reasonable because of the officers' "inability to gain cooperation from the Residence's occupants." Motion at 16. Yet according to the accounts of the Plaintiffs, both Hoy and Silva were fully cooperative with the commands of the police officers. Indeed, it is undisputed that Hoy immediately dropped to the ground when ordered to do so by the officers. Further, Defendants have not cited to any testimony by the officers suggesting that they believed that Hoy or Silva posed a threat to the officers or would interfere with the officers' welfare check. Nor do they cite any evidence indicating that Hoy and Silva were released as soon as the officers completed *1055 the welfare check of the house. To the contrary, the undisputed evidence in the record indicates that Hoy and Silva were not released until sometime later, when each agreed to sign a statement drafted by the officers. Under these circumstances, and drawing all reasonable inferences in favor of Plaintiffs, there is no basis for the Court to find, as a matter of law, that the detention of Hoy and Silva did not violate the Fourth Amendment. Similarly, to the extent that it is well established that in an emergency situation detention of an individual in her residence without a search warrant is strictly circumscribed by the nature of the exigent circumstances—a question as to which the material facts are in dispute—Defendants also are not entitled to summary judgment on the basis of qualified immunity.[8] F. Fourth Amendment Claim Based on Shooting of Boo Boo[9] Defendants assert that they are entitled to summary judgment on Plaintiff Silva's claim that the shooting of Boo Boo by Officer Sellers violated her Fourth Amendment rights because Officer Sellers' conduct was reasonable, as a matter *1056 of law. Because key facts concerning the circumstances under which Officer Sellers shot Boo Boo are disputed, Defendants are not entitled to summary judgment on this claim. Similarly, the Court is unable to determine whether Defendants are entitled to qualified immunity in light of these factual disputes. In San Jose Charter of the Hell's Angels Motorcycle Club v. City of San Jose, the Ninth Circuit set forth the legal standard that applies where a dog has been killed in the course of a search or seizure: "[T]he destruction of property by state officials poses as much of a threat, if not more, to people's right to be `secure... in their effects' as does the physical taking of them." Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.1994), overruled on other grounds, Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir.2002) (citation omitted). "The killing of [a] dog is a destruction recognized as a seizure under the Fourth Amendment" and can constitute a cognizable claim under § 1983. Id. Reasonableness is the touchstone of any seizure under the Fourth Amendment.... We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer's duties. See Deorle [v. Rutherford], 272 F.3d [1272] at 1279 [(9th Cir.2001)]. "A seizure becomes unlawful when it is `more intrusive than necessary.'" Ganwich [v. Knapp], 319 F.3d [1115] at 1122 [(9th Cir.2003)] (quoting Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). To determine whether the shooting of the dogs was reasonable, we balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation and internal quotation marks omitted). 402 F.3d 962, 974 (9th Cir.2005). In Hells Angels, search warrants had been obtained to search the residences of Hell's Angels members suspected of possessing evidence relevant to a murder. Id. at 966-967. For each residence, an entry team and a search team was created. Id. The entry teams were given a week's notice to plan the entries. Id. at 967. During that time, the entry teams gathered information and conducted surveillance of the residences and on that basis, knew at the time of the searches that two of the residences had or might have dogs on the premises. Id. at 968. The officers planned to either isolate or kill the dogs upon entering the properties, but they made no specific plans to isolate the dogs or to allow the residents to do so. Id. Nor did they consider using any form of non-lethal force to subdue the dogs. Id. When the searches were conducted, the officers shot and killed dogs at both residences—at one, a Rottweiler who was allegedly growling and advancing on the officers and at another, two large Bullmastiffs who were barking loudly and would not retreat. Id. at 969. The owners of the dogs in Hells Angels asserted claims under 42 U.S.C. § 1983, including a claim under the Fourth Amendment, based on the shooting of the dogs. Id. at 965. Defendants sought summary judgment on the claim on the basis of qualified immunity, which the was denied by the district court. The Ninth Circuit affirmed, explaining its reasoning as follows: Here, the intrusion was severe. The officers shot and killed one of Souza's dogs, and two of the Vieiras' dogs. We have recognized that dogs are more than just a personal effect.... The emotional attachment to a family's dog is not comparable *1057 to a possessory interest in furniture. As noted in Lori Vieira's journal, the effect of her being handcuffed just yards from where her dog Sam lay dead and bleeding was extremely traumatic....Viewing the facts in the light most favorable to the Vieiras and Souza, the seizures were unreasonable, in violation of the Fourth Amendment. Most important, both entry teams had a week to plan the execution of the entry. At the Souza residence, despite advance knowledge of the presence of two guard dogs, the full extent of the plan to protect the entry team from the dogs was to either "isolate" or shoot the dogs. The officers had no specific plan for isolating the dogs. At the Vieira residence, Officer Nieves was in charge of handling the dogs. According to Officer Messier's declaration, "Officer Nieves was assigned to deal with dogs if there were any, which is why he had a shotgun and was first in the stacking order. However, I did not give Officer Nieves any specific instructions as to how to deal with any dogs." (emphasis added). Officer Nieves's "little plan" consisted of first hoping that the dogs would not appear at the gate. If they did, he planned to poke them through the fence with his shotgun to try and scare them. If that did not work, he planned to "engage" ... the dogs to ensure the safety of the entry team. In short, as the district court concluded, despite a week to plan for the entry, the officers developed no realistic plan other than shooting the dogs while serving the search warrants. Id. at 975. The Court went on to reject the defendants' arguments that killing the dogs advanced important governmental interests, namely, 1) allowing the officers to carry out the searches; 2) protecting the officers' ability to enter with stealth and speed; and 3) ensuring the safety of the officers. Id. at 976. The Court noted that none of the individuals whose houses were being searched were suspects in the murder that was being investigated, that the need for stealth was not persuasive because it was the officers' own gunshots that woke residents, and that concern for the officers' safety did not make the conduct reasonable, given that the officers knew well in advance that they were likely to encounter the dogs and yet made no plan to protect themselves. Id. at 977. The court noted, however, that the concern for officer safety might have been more persuasive if the officers had been unaware of the dogs at the time they entered the residences. Id. Defendants assert that the facts of Hells Angels are distinguishable from the facts here and therefore, that Officer Sellers could not "conceivably be liable" to Silva under the Fourth Amendment for shooting her dog. Reply at 2. In particular, Defendants point out that the entry in this case was in response to an emergency 911 call, in stark contrast to the facts in Hells Angels, in which the officers had an entire week to plan the entry and knew that they were likely to encounter large dogs that might pose a threat to the officers. This distinction, however, does not persuade the court that the Officers' actions in this case were reasonable as a matter of law, or that they are entitled to qualified immunity on this claim. There are conflicting accounts as to whether Boo Boo acted in a threatening manner. If the jury credits Hoy's account that when he entered the living room Boo Boo was walking behind him in a manner that was not aggressive, and that he signaled to the officers to wait so that he could retrain Boo Boo, it may reasonably conclude that the Fourth Amendment was violated, especially in light of the undisputed facts that the officers did not ask Hoy or Silva at any time to restrain Boo Boo and that they were aware that there was a dog inside the *1058 house. In any event, the existence of disputed material facts regarding the events that led up to Boo Boo's shooting preclude summary judgment, either as to whether Defendants violated Silva's Fourth Amendment rights or as to the question of qualified immunity on that claim. IV. CONCLUSION For the reasons stated above, Defendants' Motion is GRANTED in part and DENIED in part. In particular, the Motion is GRANTED as to all of Plaintiffs' claims against the City of San Leandro, Police Chief Ian Willis and Officer Huckaby, as well as Plaintiffs' claims based on the Fourteenth and Fifth Amendments. The Motion is DENIED as to Plaintiffs' Fourth Amendment claims based on the alleged unreasonable entry into the Residence, the alleged use of excessive force against Hemphill, the alleged unreasonable detention of Hoy and Silva and the alleged unreasonable shooting of Boo Boo, which shall proceed to trial. IT IS SO ORDERED. NOTES [1] According to Officer Bryan, a "stack" of officers is a single-file line of officers. Lavrinets Decl., Ex. D (Bryan Depo.) at 28. [2] These words are crossed out; next to the crossed out words are what appear to be the initials "BJS." Silva testified at her deposition that she did not cross anything out in the statement, though she might have initialed the cross-outs "to get out of there." Yourke Decl., Ex. 1 (Silva Depo.) at 155. [3] These words are crossed out; next to the crossed out words are what appear to be the initials "BJS." [4] A letter or letters are crossed out here; next to the cross-out are initials that are not legible. [5] A letter or letters are crossed out here; next to the cross-out are initials that are not legible. [6] This word is crossed out; next to the cross-out are initials that are not legible. [7] In Pearson v. Callahan, the Supreme Court clarified that the order of the two-step inquiry is not mandatory. Rather, courts should "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). [8] The Court notes that Defendants cite Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) in support of the proposition that so long as a warrantless search is proper, in light of exigent circumstances, the police have "limited authority to detain the occupants of the premises while a proper search is conducted." Motion at 13. That case, however, is distinguishable from the facts here. There, the Court addressed whether a pre-arrest detention of an individual in his residence, while officers were conducting a search at the individual's residence pursuant to a valid search warrant, violated the individual's Fourth Amendment rights. The Court found that it did not, placing "prime importance" on the fact that a neutral magistrate had already found that there was probable cause to search the premises for suspected contraband. Id. at 701-702, 101 S.Ct. 2587. Under these circumstances, the Court concluded, the intrusion was not unreasonable when balanced against the law enforcement interests of preventing flight if incriminating evidence was found and ensuring the safety of the officers conducting the search. Id. Rather, the Court found that such a detention was within the exception articulated in Terry v. Ohio, 392 U.S. 1, 17 n. 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), allowing an officer to stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. See Terry, 392 U.S. at 30, 88 S.Ct. 1868. Even assuming that the holding of Michigan v. Summers applies to a detention within in a residence where the associated search was conducted without a warrant, Defendants have not argued, much less cited to any evidence suggesting that the officers suspected Hoy or Silva of committing any crime. Moreover, as discussed above, Defendants have not pointed to any evidence that the officers were concerned that either Hoy or Silva would harm the officers or flee the scene as a result of anything found during the "search." Therefore, the rule articulated in Michigan v. Summers does not support Defendants' request for summary judgment on this claim. [9] In their Opposition brief, Plaintiffs conceded that the claim asserted on the basis of Officer Sellers' shooting of Boo Boo was improperly asserted under the Fifth and Fourteenth Amendments and requested leave to amend the complaint to assert the claim under the Fourth Amendment. Plaintiffs' request is GRANTED. Although as a general rule, plaintiffs are not permitted to amend their complaints simply to evade summary judgment, that rule is not applicable here because Defendants have long been on notice that this claim is the "heart and soul" of this case. In addition, Defendants were expressly instructed by the Court at the recent hearing on the Order to Show Case to address the Plaintiffs' claim under the Fourth Amendment in their Reply brief. As result, Defendants are not prejudiced by allowing Plaintiffs to assert this claim under the Fourth Amendment. Therefore, the Court concludes that it is in the interest of justice to permit Plaintiffs' to amend their complaint to add a Fourth Amendment claim based on the shooting of Boo Boo. See Fed.R.Civ.P. 15(a)(2).

686 S.E.2d 262 (2009) BUTTS v. THOMAS. No. A09A1046. Court of Appeals of Georgia. September 22, 2009. Reconsideration Denied October 28, 2009. Leitner, Williams, Dooley & Napolitan, Sean W. Martin, for appellant. Davis & Melton, John W. Davis Jr., F. Gregory Melton, Dalton, for appellee. ADAMS, Judge. Coca-Cola Bottling Company United, Inc. brought suit in the name of its employee Bobby Wayne Butts to recover workers' compensation benefits paid pursuant to Tennessee law arising out of a car accident involving Butts and Janet Rosser Thomas that occurred in Catoosa County, Georgia. The Superior Court of Catoosa County granted Thomas's motion for summary judgment, in which Thomas argued that the claim was barred by the statute of limitation. Coca-Cola appeals. The complaint alleges that Butts, a Coca-Cola employee, was injured on August 18, 2005 while acting within the course and scope of his employment and that he received workers' compensation benefits from Coca-Cola under the Tennessee Workers' Compensation Act. Coca-Cola alleges that Tennessee law governs its right to maintain this suit. Under Tennessee law, even after receiving benefits, Butts was authorized to sue Thomas in tort. Tenn. Code Ann. § 50-6-112(a). The same law provides, however, that if the employee fails to bring an action against the tortfeasor for a period of one year, the claim is assigned by operation of law to the employer who then has six months to file suit against the tortfeasor. Tenn. Code Ann. § 50-6-112(d)(2). In this case, Butts did not sue Thomas, so Coca-Cola brought suit against Thomas in Georgia on February 13, 2008. Although over two years had passed since the accident, Coca-Cola relies on another provision of the same Tennessee Code section that provides that if the cause of action arises in another state, in this case Georgia, that state's statute of limitation applies to the *263 employee's tort claim. Coca-Cola argues, accordingly, that the correct limitation period is calculated by taking the Georgia two-year limitation period for torts and adding the six-month period authorized by the Tennessee Code for the employer to file suit after the employee declines to do so. The record shows that Coca-Cola brought a personal injury action in a Georgia court arising out of an accident that occurred in Georgia. The general rule in Georgia is that statutes of limitation are procedural in nature and are therefore governed by the law of the forum state. Hunter v. Johnson, 259 Ga. 21, 376 S.E.2d 371 (1989); Taylor v. Murray, 231 Ga. 852, 853, 204 S.E.2d 747 (1974) ("the lex fori determines the time within which a cause of action may be enforced"). Under Georgia law, Coca-Cola's claim is barred by the two-year statute of limitation for personal injury. See OCGA § 9-3-33. The Supreme Court of Georgia has held that a foreign state's law cannot extend the Georgia limitation period. See, e.g., Taylor, 231 Ga. at 853-854, 204 S.E.2d 747. See also Indon Indus. v. Charles S. Martin Distrib. Co., 234 Ga. 845, 848, 218 S.E.2d 562 (1975) (following Taylor). The cases cited by Coca-Cola are not controlling. Coca-Cola cites Griffin v. Hunt Refining Co., 292 Ga.App. 451, 664 S.E.2d 823 (2008), and Gray v. Armstrong, 222 Ga. App. 392(1), 474 S.E.2d 280 (1996), for the proposition that an exception to the rule of lex fori applies "where the limitation [period of the foreign state] is established as a condition precedent to the action by the statute which creates the cause of action." Gray, 222 Ga.App. at 392(1), 474 S.E.2d 280. But regardless of whether the present case falls in that category, Gray merely quotes Taylor, which makes clear that the exception discussed therein only results in application of a foreign statute of limitation when the foreign limitation period is shorter than the applicable Georgia period. Taylor, 231 Ga. at 853, 204 S.E.2d 747 (exception applies "where the foreign statute creating a cause of action not known to the common law prescribes a shorter period in which action may be commenced than that prescribed by the law of the place where the action is brought"). And Griffin noted that the rule in Taylor applied in that case. See Griffin, 292 Ga.App. at 454, n. 5, 664 S.E.2d 823 (noting "that it appears that Alabama's personal injury statute of limitation in toxic exposure cases is generally more restrictive than Georgia's statute. See Taylor, 231 Ga. at 853, 204 S.E.2d 747.... See also Indon Indus. v. Charles S. Martin Distributing Co., [234 Ga. at 848, 218 S.E.2d 562]"). Accordingly, the trial court did not err by dismissing Coca-Cola's case on the ground that it was barred by the applicable limitation period. Coca-Cola's remaining enumeration is moot. Judgment affirmed. BLACKBURN, P.J., concurs. DOYLE, J., concurs in judgment only.

FILED NOT FOR PUBLICATION AUG 23 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FELIPE SEGUNDO-LUCAS, AKA No. 15-71871 Andres Perez, Agency No. A095-789-779 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 7, 2019** Before: THOMAS, Chief Judge, HAWKINS and MCKEOWN, Circuit Judges. Felipe Segundo-Lucas, a native and citizen of Mexico, petitions for review of the Board of Immigrations Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have * 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). jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency’s factual findings, Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019), and we deny the petition. Regarding his claims for asylum and withholding of removal, substantial evidence supports the BIA’s determination that Segundo-Lucas did not establish a fear of persecution based on his status in a protected social group on the basis of his family ties. See INS v. Elias-Zacarias, 502 U.S. 478, 481–84 (1992) (noting requirement of a nexus between alleged fear of persecution and membership in a particular social group); 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.”). Segundo-Lucas did not present evidence that he would personally be targeted by any individuals upon his return to Mexico. Giving deference to the BIA, see Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), we determine that Segundo-Lucas did not establish a nexus between his fear of 2 persecution and his family ties so as to be eligible for withholding of removal or asylum. The BIA did not err in determining that Segundo-Lucas did not establish membership in a cognizable social group, as we have held that Mexican returnees from the United States do not constitute a particular social group. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010). Segundo-Lucas presents no evidence warranting a departure from such precedent. Moreover, substantial evidence supports the BIA’s determination that Segundo-Lucas is not eligible for CAT relief. Segundo-Lucas testified that he did not explicitly fear harm upon his return to Mexico, and that he was not sure that his sister’s kidnappers would continue to target him, rendering any fear of harm too speculative to afford relief. Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011). PETITION FOR REVIEW DENIED. 3 

14 F.3d 55 U.S.v.Holcombe** NO. 93-08317 United States Court of Appeals,Fifth Circuit. Jan 06, 1994 1 Appeal From: W.D.Tex. 2 AFFIRMED. ** Conference Calendar

818 F.Supp. 21 (1993) UNITED STATES of America, Plaintiff, v. Alan GRISHMAN, Defendant. Civ. No. 92-314-P-H. United States District Court, D. Maine. April 7, 1993. *22 David R. Collins, Asst. U.S. Atty., Portland, ME, Mary Planty, and Kimberly L. Hallman, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., for plaintiff. Alan Grishman, pro se. ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT HORNBY, District Judge. Alan Grishman owned a three-bedroom, single family home in South Harpswell, Maine. It is situated on ocean waterfront with a cliff overhanging rocky shore and has an exposed deck about ten feet above the ground. The house contains valuable furnishings, including a Steinway grand piano. Mr. and Mrs. Grishman spend two and one-half months in the house every summer and rent it the remainder of the year. The United States has brought this action to enforce the Fair Housing Act, 42 U.S.C. § 3601 et seq., asserting that, in renting the house, Mr. Grishman has discriminated on the basis of familial status, specifically, with respect to the family of Kyle Davidson, a would-be tenant. The Davidsons had a four-year-old and an eight-month-old at the time in question. The United States has now moved for summary judgment on the issue of liability. For the reasons that follow, I GRANT the motion. It is undisputed that Mr. Grishman's house, now owned by his wife, is covered by the Fair Housing Act and that no exemptions apply. The Fair Housing Act makes it illegal to refuse to rent a dwelling to any person because of familial status. Familial status is defined as "one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent...." 42 U.S.C. § 3602(k)(1). The Act also makes it illegal to make any statement in connection with renting a dwelling "that indicates any preference ... based on ... familial status...." 42 U.S.C. § 3604(c). Mr. Grishman asserts that he has never absolutely precluded renting the house to people with children and advances a number of reasons why he declined to rent to the Davidson family. Specifically: It is clear that both Mr. and Mrs. Grishman were both deeply concerned about the type of tenant who would reside at their furnished home for nine and one-half months each year because the Grishmans would be living there the remaining two and one-half months. For example, Mrs. Grishman, who is a concert pianist, had her Steinway grand piano in the house. The house itself was designed and built by the Grishmans and was a prized possession. So, they had to be convinced that a prospective tenant would appreciate what they were getting, respect and take care of it. Their meeting with the Davidsons convinced them that they were not the right tenants for the house for a myriad of reasons: [1] a perceived lack of interest, appreciation and concern for their house by Mr. Davidson; [2] a perception that Mr. Davidson was litigious; [3] a perception that their treasured personal possessions in the house would be in danger because the Davidsons' small children would not be properly restricted by the Davidson parents from access to these possessions; and [4] a perception that both the natural and man-made features of the property would *23 be a serious and real danger to the Davidson children, and that there were neither other children in the neighborhood or the proper rooms in their house to distract the Davidson children from these dangers or from doing destruction to the Grishmans' prized possessions. Memorandum of Law p. 7 (emphasis supplied). Reasons [1] and [2], if proved, do not involve discrimination. With respect to reason [3], I will assume without deciding that a landlord can have concerns about particular children's behavior or particular parents' inability to control such behavior without being guilty of discrimination based on familial status so long as there is some standard of reasonableness (i.e., a recognition that there are no perfect children or perfect parental control). Reason [4], however, — although it may make sense to Mr. Grishman — clearly amounts to illegal discrimination under the Fair Housing Act. Nothing in the statute permits the owner to determine that risks and circumstances of his dwelling and the neighborhood make it inappropriate for children. That decision is for the tenant.[1] Mr. Grishman admits that the fact that the Davidsons had children was a factor in declining to rent to them. Mr. Grishman also admits that he "informed Mr. Davidson that the property was less suitable for tenants with small children than those with older children or no children ...", and that he has told his rental agents that, although they were not to exclude families with suitable children, "the property [was] more suited to people without children." These are statements indicating a "preference" based on familial status. Under Fair Housing law, the Government has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See HUD v. Blackwell, 908 F.2d 864, 870 (11th Cir.1990). Here, I conclude that on the undisputed facts the Government has done so. Familial status was an uncontroverted factor in the decision not to rent and in preference statements. Under Blackwell, the next stage shifts the burden to the defendant to articulate some legitimate non-discriminatory reason for his action. Accord Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 269 n. 20 (1st Cir.1993). Although Mr. Grishman has articulated a number of additional reasons why he declined to rent to the Davidsons, there is no suggestion anywhere that he would have declined to rent them the property if the Davidsons had been childless. It is therefore unnecessary to reach the third stage where the Government has the opportunity to show that legitimate reasons asserted by the defendant are in fact mere pretext, Blackwell, or where a balancing process is used that depends on the relief sought, Casa Marie, Inc. I conclude that on the undisputed facts the Government has made out a violation of both section 3604(a) and section 3604(c). Accordingly, summary judgment is hereby entered for the Government so far as liability is concerned. The parties shall confer and notify the Court at the final pretrial conference whether they have been able to resolve the matter or whether a hearing is required on the issue of relief. This case is currently 4th on the Court's May Nonjury Trial List. SO ORDERED. NOTES [1] See, e.g., HUD ex rel. Kirschenbaum v. DiBari, 1992 WL 406529 (HUD ALJ Sept. 23, 1992) (lead paint not a ground to reject families with children). In that respect, I disagree with the Second Circuit's suggestion that a landlord might take into account "[c]onditions in the neighborhood known to be ... inherently dangerous to occupancy by families with children...." Soules v. HUD, 967 F.2d 817, 824 (2nd Cir.1992). On that reasoning, landlords could exclude certain racial or ethnic groups because of a hostile neighborhood.

774 N.W.2d 900 (2009) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Cargil WALLS, Defendant-Appellant. Docket No. 138924. COA No. 290108. Supreme Court of Michigan. November 23, 2009. Order On order of the Court, the application for leave to appeal the April 15, 2009 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

56 Cal.Rptr.3d 92 (2007) 148 Cal.App.4th 682 CALIFORNIA HOUSING FINANCE AGENCY, Plaintiff and Appellant, v. HANOVER/CALIFORNIA MANAGEMENT AND ACCOUNTING CENTER, INC., et al., Defendants and Appellants. No. G034968. Court of Appeal of California, Fourth District, Division Three. March 15, 2007. *93 Bergman & Dacey, Gregory M. Bergman, Robert M. Mason III and Matthew R. Hicks, Los Angeles, for Defendants and Appellants. O'Melveny & Meyers, Paul B. Salvaty, Richard W. Buckner, Kristina M. Hersey, Los Angeles; and Thomas C. Hughes, San Diego, for Plaintiff and Appellants. Certified for Partial Publication.[*] OPINION ARONSON, J. California Housing Finance Agency (CHFA) sued John G. Schienle, Robert L. McWhirk,[1] and Hanover/California Management and Accounting Center, Inc. (HC), for various torts including fraud, negligent misrepresentation and breach of fiduciary duty. CHFA also accused Schienle and McWhirk of having a financial interest in a government contract they made while in their official capacity as CHFA employees, a violation of Government Code section 1090 (all statutory references are to the Government Code, unless otherwise noted). A jury found for CHFA, awarding it compensatory and punitive damages against each defendant. *94 The trial court awarded CHFA prejudgment interest and attorney fees. Defendants contend the trial court should have granted their summary judgment motion because all of plaintiffs claims were time-barred. Defendants also complain the trial court improperly instructed the jury (a) on the discovery rule for statutes of limitations, (b) on liability under section 1090, and (c) that McWhirk owed CHFA fiduciary duties as a matter of law. Defendants further contend CHFA's attorney fee motion should have been denied because it was untimely, based on a void contract, and sought fees for noncompensable work. Finally, defendants argue CHFA's motion for prejudgment interest should have been denied because it was untimely and sought a double recovery. We reject each of defendants' contentions. In the published portion of the opinion, we conclude any potential error in denying defendants' summary judgment motion was harmless because all factual disputes were fully and fairly litigated at trial. We also conclude the trial court did not err in instructing the jury liability may attach under section 1090 for a person designated an independent contractor. In the unpublished portion of the opinion, we conclude the trial court correctly instructed the jury on the limitations defense, and defendants' failure to offer clarifying instructions for any perceived instructional ambiguity forecloses further consideration of the issue. The trial court properly rejected defendants' contention that civil liability under section 1090 requires the jury to find defendants acted "knowingly." Defendants' argument that McWhirk, CHFA's attorney, did not owe CHFA fiduciary duties is patently meritless, and the trial court correctly instructed the jury that McWhirk was CHFA's fiduciary. CHFA timely filed its attorney fee motion, and sought only compensable fees based on its contract. Finally, we conclude CHFA timely requested prejudgment interest, and the award did nol constitute a double recovery. Accordingly, we affirm. I Factual and Procedural Background CHFA is a component unit of the State of California, created under the Zenovich-Montrose-Chicon Housing and Home Finance Act, codified as Health and Safety Code section 50000 et seq. CHFA's mission is to provide affordable housing in the state. (See Health & Saf.Code, § 50003.) To accomplish this, CHFA acts as direct lender, loan purchaser, and mortgage insurer of both its own loans and those of other lenders. (See Health & Saf.Code, §§ 50000, 51611.) CHFA's mortgage insurance programs are conducted with funds held in the California Housing Loan Insurance Fund (Insurance Fund) under Health and Safety Code section 51611. Schienle served as CHFA's director of insurance from 1986 through 2001, reporting directly to CHFA's highest officer, the executive director. McWhirk served as CHFA's general counsel from 1984 until 1990. From 1991 though 2000, McWhirk became CHFA's outside counsel under a series of written agreements. During the first half of Schienle's tenure, the Insurance Fund collected mortgage insurance premiums exclusively on an annual basis. In 1994 or 1995, Schienle took steps to have the Insurance Fund offer mortgage insurance programs in which the lenders and loan servicers could pay premiums monthly. In late 1995 and early 1996, Schienle and McWhirk created HC to provide CHFA insurance premium processing services. McWhirk incorporated HC, acted as its legal counsel, and served as president and chief executive *95 officer during the time he also served as CHFA's outside counsel. McWhirk operated HC from his residence, and arranged for his domestic partner, Michael Misita— who had no; mortgage insurance or accounting experience—to manage its day-to-day activities. To hide their interest in HC, Schienle and McWhirk brought in Roger Formisano to pose as HC's sole owner, promising Formisano $100,000 if he would participate in the scheme. Formisano never owned any interest in HC, but held the company's stock for McWhirk and Misita with directions to relinquish the stock to them when McWhirk no longer represented CHFA. In early 1996, Schienle and McWhirk influenced CHFA to enter into a contract with HC (HC contract), whereby HC would collect monthly premiums from lenders and loan servicers and forward the premiums to CHFA, after deducting HC's "operating costs." Schienle drafted the HC contract, which was the only agreement he drafted during his CHFA tenure. The agreement failed to describe HC's services, continued in perpetuity with no termination date, included no audit provisions, and failed to define the amount of HC's compensation. Neither Schienle nor McWhirk ever disclosed their interest in HC to anyone at CHFA. Under the HC contract, the amount deducted from the premiums for operating costs increased dramatically after four years into the policy period, and after year five, HC could keep all of the premiums it collected. In other words, after five years into any particular policy HC would cease remitting to CHFA any part of the premiums it collected, even though CHFA would continue to provide mortgage insurance. In 1996, the first year of operation, HC collected approximately $59,000 in premiums, kept $35,000, and forwarded $24,000 to CHFA. During the last two and one-half years of operation, from 2000 through the first six months of 2002, HC skimmed approximately $6 million from the premiums it received. As the volume of HC's business grew, defendants hired Misita's nephew and McWhirk's sister to assist in processing the insurance premiums. In 1999, HC paid Formisano the $100,000 initially promised. At the end of 2000, McWhirk ceased acting as CHFA's outside counsel. In early 2001, Formisano surrendered his stock to HC without receiving further consideration, and HC reissued stock to McWhirk and Misita, making them the sole owners of the company. During the scheme, HC paid McWhirk substantial legal fees, leased space in his residence, and paid numerous personal expenses, including the lease on a new Mercedes automobile. HC funds were also used to fund two other companies, Stars and Stripes (California) and Stars and Stripes (Nevada), also owned by McWhirk and Misita. Schienle served as an officer and director in both Stars and Stripes companies, and received substantial financial benefits from them and through HC. Schienle retired from CHFA in December 2001. Shortly thereafter, Schienle's replacement discovered the HC contract in a stack of papers Schienle had left behind. Concerned about the agreement, CHFA launched an investigation into the contract and HC. After hiring the accounting firm of PriceWaterhouseCoopers, CHFA discovered Schienle and McWhirk's involvement in the matter, and terminated the HC contract. On June 14, 2002, CHFA filed suit against Schienle, McWhirk, and HC. CHFA's third amended complaint sought damages for fraud; negligent misrepresentation; breach of fiduciary duty; violation of section 1090; legal malpractice; negligence; and breach of contract. The complaint also sought a declaration that *96 the HC contract was void; restitution and injunctive relief based on Business and Professions Code section 17200 et seq.; and an accounting. HC filed a cross-complaint against CHFA for breach of the HC contract. Defendants moved for summary judgment, arguing that CHFA's action was barred under the applicable statutes of limitations. The court denied the motion, finding a triable issue of fact on whether defendants fraudulently concealed the facts upon which the causes of action were based, and on whether CHFA should have known about defendants' wrongdoing more than three years before it filed the action. McWhirk also filed a separate summary adjudication motion asserting he owed no duty to CHFA because he acted as an independent conlractor for the Insurance Fund. The court denied the motion, finding a triable issue of fact on whether McWhirk was CHFA's fiduciary. Following a seven-week trial, the jury returned its verdict finding (a) each defendant liable for fraud and negligent misrepresentation; (b) Schienle and McWhirk liable for breach of fiduciary duty and violation of section 1090; and (c) McWhirk liable for legal malpractice and breach of contract. The jury awarded CHFA compensatory damages of $6,744,602 and $375,000 in punitive damages against each defendant, and Etwarded prejudgment interest from the date the action was filed. The jury found in CHFA's favor on HC's cross-complaint. Following the jury verdict, the trial court determined that defendants violated Elusiness and Professions Code section 17200 et seq., and ordered restitution in the amount of $6,744,602. Following the verdict, the trial court awarded prejudgment interest of $1,149,903.72 or. CHFA's tort claims against all defendants, and an additional $492,817.15 against McWhirk based on CHFA's contract claims. II Discussion A. Defendants May Not Challenge the Denial of Their Summary Judgment Motion Because the Parties Litigated the Same Issues at Trial Defendants contend the trial court erred when it denied their summary judgment motion, which sought dismissal of CHFA's claims based on statutes of limitations. CHFA contends that orders denying summary judgment based on triable issues of fact are not reviewable as a matter of law after a full trial covering the same issues. We agree with CHFA. In Waller v. TJD, Inc. (1993) 12 Cal. App.4th 830, 16 Cal.Rptr.2d 38 (Waller), the trial court denied the defendants' summary judgment motion. A jury later decided the same issues at trial in the plaintiffs favor. The Court of Appeal declined to review the summary judgment denial, reasoning that the defendants suffered no prejudice because they received a jury trial on the merits. (Id. at p. 836, 16 Cal. Rptr.2d 38.) Waller explained: "When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial. [California Constitution] Article VI, section 13, admonishes us that error may lead to reversal only if we are persuaded `upon an examination of the entire cause' that there has been a miscarriage of justice. In o ther words, we are not to look to the particular ruling complained of in isolation, but frather must consider the full record in deciding whether a judgment should be set aside. Since *97 we are enjoined to presume that the trial itself was fair and that the verdict in plaintiffs' favor was supported by the evidence, we cannot find that an erroneous pretrial ruling based on declarations and exhibits renders the ultimate result unjust." (Id at p. 833, 16 Cal.Rptr.2d 38.) Defendants rely on the recent case of Gackstetter v. Frawley (2006) 135 Cal. App.4th 1257, 38 Cal.Rptr.3d 333 (Gackstetter), which distinguished Waller. In Gackstetter, the defendants unsuccessfully raised a defense of good faith settlement under Code of Civil Procedure section 877.6 in their summary judgment motion. On appeal, defendants argued the trial court erred in denying its summary judgment motion. Gackstetter accepted Waller's conclusion that a reviewing court will not consider whether a trial court erred in denying a summary judgment motion based on triable issues of fact following a full trial of those same issues. (Gackstetter, at p. 1268, 38 Cal.Rptr.3d 333.) The court explained: "`A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial).'" (Id at p. 1269, 38 Cal.Rptr.3d 333, citing Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (2004) ¶ 8:168.10, p. 8-114.) Gackstetter nonetheless reviewed the trial court's denial of summary judgment because the good faith issue was not based on disputed facts which were resolved at a subsequent trial. The court recognized the good faith settlement issue could have been raised in a number of different ways, and defendants had not forfeited review merely because they chose summary judgment as the procedural device to assert their good faith settlement defense. (Gackstetter, at p. 1269, 38 Cal.Rptr.3d 333.) Defendants also cite Sturm, Ruger & Co. v. Superior Court (1985) 164 Cal. App.3d 579, 210 Cal.Rptr. 573 and Coy v. County of Los Angeles (1991) 235 Cal. App.3d 1077, 1 Cal.Rptr.2d 215 (Coy) to support the notion that a reviewing court could consider whether the trial court erred in denying summary judgment despite a full trial on the same issues. Sturm does not support defendants' argument. There, the trial court simply recognized that a party's failure to timely seek writ review of an order denying summary judgment did not prevent that party from raising the same issues at trial, or from appealing the resulting judgment. (Sturm, at p. 582, 210 Cal.Rptr. 573.) Nothing in Sturm suggested the moving party could obtain reversal based on the trial court's erroneous summary judgment denial where the same issue was adversely decided against the moving party following a fair trial. Coy, supra, 235 Cal.App.3d 1077, 1 Cal. Rptr.2d 215 reversed a judgment following a jury trial based on the trial court's erroneous summary judgment denial. But there, the court expressly noted the plaintiff had not contested the defendant's ability to challenge the pretrial summary judgment ruling on appeal after trial. (Id at p. 1082, fn. 2, 1 Cal.Rptr.2d 215.) Because the issue was never addressed, Coy offers no support for defendants' argument. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10, 17 Cal.Rptr.3d 302, 95 P.3d 523 ["It is axiomatic that cases are not authority for propositions not considered"].) Here, the trial court denied defendants' summary judgment motion because it found triable issues of fact whether defendants fraudulently concealed facts upon which the causes of action were based, and whether CHFA should have known about defendants' wrongdoing more than three *98 years before it filed the action. These factual issues were fully litigated at trial and determined adversely to defendants. For that reason, no miscarriage of justice occurred when trie trial court denied defendants' summary judgment motion. B.-C.[**] D. The Trial Court Properly Instructed the Jury on Section 1090 1. The Trial Court Did Not Err in Instructing the Jury that Section 1090 May Apply to Independent Contractors Section 10130 provides, in relevant part: "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity." The trial court instructed the jury that "[t]he `officer or employee' language of Section 1090 must be interpreted broadly. The fact that someone is designated an independent contractor is not determinative; the statute applies to independent contractors who perform a public function." Defendants contend the trial court erred in giving this instruction because section 1090 applies only to a public agency's "officers or employees," and therefore could not apply to McWhirk, an independent contractor. We disagree. The common law distinction between an employee and independent contractor developed as the courts attempted to establish the parameters for imposing tort liability on the master for the acts of the servant. The Supreme Court in Boswell v. Laird (Cal.1857) 8 Cal. 469, 489 explained: "The responsibility is placed where the power exists. Having power to control, the superior or master is bound to exercise it to the prevention of injuries to third parties, or he will be held liable." The common law, however, does not always govern a reference to employment in a particular statute. (S.G. Borello & Sons, Inc. v. Department of Industrial' Relations (1989) 48 Cal.3d 341, 351, 256 Cal.Rptr. 543, 769 P.2d 399.) Rather, employment "must be construed with particular reference to the `history and fundamental purposes' of the statute." (Ibid.) In contrast to the common law, section 1090 is not concerned with holding a public entity liable for harm to third parties based on its agent's acts. Rather, it places responsibility for acts of self-dealing on the public servant where he or she exercises sufficient control over the public entity, i.e., where the agent is in a position to contract in his or her "official capacity." Thus, the common-law employee/independent contractor analysis is not helpful in construing the term "employee" in section 1090. Section 1090, like all conflict of interest statutes, "cannot be given a narrow and technical interpretation that would limit [its] scope and defeat the legislative purpose." (People v. Honig (1996) 48 Cal. App.4th 289, 314, 55 Cal.Rptr.2d 555 (Honig ).) Thus, in Honig, the court construed the "financially interested" element in section 1090 to include not only financial benefits the official personally received, but also those accruing to a nonprofit organization employing the official's spouse. Similarly, *99 in Stigall v. City of Toft (1962) 58 Cal.2d 565, 569, 25 Cal.Rptr. 441, 375 P.2d 289, the California Supreme Court interpreted section 1090's imposition of liability for "any contract made" by financially interested officials to cover preliminary matters, such as "negotiations, discussions, reasoning, [and] planning." (Ibid; see also Thomson v. Call (1985) 38 Cal.3d 633, 644-645, 214 Cal.Rptr. 139, 699 P.2d 316 (Thomson) [successive, related agreements considered a single "contract" under section 1090].) The court explained that applying the general rule that a contract is not "made" until the parties mutually agree would frustrate section 1090's purposes. Accordingly, in construing section 1090 in any particular situation, "[w]e must disregard the technical relationship of the parties and look behind the veil which enshrouds their activities in order to discern the vital facts. [Citation.] ...'" (Honig, at p. 315, 55 Cal.Rptr.2d 555.) Courts have recognized that liability under section 1090 may apply to an outside attorney in a position of influence over the public agency. For example, in People v. Gnass (2002) 101 Cal.App.4th 1271, 125 Cal.Rptr.2d 225 (Gnass), the defendant was a partner in a private law firm acting as city attorney under a contract which paid the firm a monthly retainer based on a set number of hours per month, and an hourly rate thereafter. (Id at p. 1279, 125 Cal.Rptr.2d 225.) The city and its redevelopment agency formed a public financing authority, for which the defendant also acted as counsel. The public financing authority then joined with other local pubhe agencies to form a number of joint power authorities which issued a series of bonds. The defendant earned fees from the bond issues either for services rendered as disclosure counsel or for services rendered to another attorney who acted as disclosure counsel. The Court of Appeal determined the grand jury had probable cause to believe defendant violated section 1090 based on the fees earned in connection with the bond issues. (Id. at pp. 1278-1279, 125 Cal.Rptr.2d 225.) The court recognized that neither the city nor the defendant was a party to the contracts for the bond issues, but nonetheless concluded the defendant had acted in an official capacity because he "was in a position to exert considerable influence over the decisions" of the public financing authority to enter into joint powers agreements and issue the bonds. (Id at p. 1298, 125 Cal. Rptr.2d 225.)[2] Similarly, in Campagna v. City of Sanger (1996) 42 Cal.App.4th 533, 49 Cal. Rptr.2d 676, the defendant was an associate, and later a partner, of a law firm acting as city attorney. Under a written agreement, the city paid the firm a flat monthly amount for general consulting, and agreed to pay for other services, such as litigation, "`on a reasonable legal fee basis, depending upon the type of service rendered.'" (Id. at p. 535, 49 Cal.Rptr.2d 676.) The city asked the defendant to retain an outside law firm to file a claim against several chemical companies. The defendant negotiated, and the city approved, a written contingency fee agreement with his own firm in association with another firm. The agreement disclosed the total contingency fee, but failed to reveal the associated firm had agreed to pay defendant a referral fee of 35 percent of the total fee. The court recognized the defendant acted as a private attorney in *100 negotiating the contingency fee between his firm and the city, but concluded he acted in an official capacity in choosing the associated firm and negotiating with it, rendering him liable under section 1090. (Id. at pp. 541-542, 49 Cal.Rptr.2d 676.) In Schaefer v. Berinstein (1956) 140 Cal. App.2d 278, 295 P.2d 113 (Schaefer), the city had contracted with an attorney to rehabilitate tax-deeded and "special assessment frozen" properties within the city. (Id. at p. 291, 295 P.2d 113.) The attorney had purchased many of these properties from the city through third parties at prices far below their fair market value, while assuring the city the price paid was fair. The court ruled the attorney violated a city charter provision similar to the current version of section 1090, which prohibited an "`officer or employee' " of the city from having a financial interest in a transaction with the city. (Schaefer, at p. 287, fn. 2, 295 P.2d 113.) The court in Schaefer observed that even without the city's conflict of interest charter provision, the attorney's actions would have violated section 1090, even though the statute at that time did not expressly include "employees." (Schaefer, supra, 140 Cal.App.2d at p. 291, 295 P.2d 113.) The court observed: "Statutes prohibiting personal interests of public officers in public contracts are strictly enforced. [Citation.] ... [¶] A person merely in an advisory position to a city is affected by the conflicts of interest rule. [Citation.] ... [The retained attorney] was an officer and agent of the city and as such was in a position to advise the city council as to what action should be taken relative to the property involved." (Ibid; see also Terry v. Bender (1956) 143 Cal. App.2d 198, 300 P.2d 119 (Terry) [involving the same attorney and scheme].) The California Attorney General has opined that a financial consultant retained on a temporary basis to provide advice in connection with a bond issue is an "employee" under section 1090 despite being an independent contractor. (46 Ops. Cal.Atty.Gen. 74 (1965).)[3] Relying in part on Schaefer and Terry, supra, the Attorney General observed: "It seems clear that the Legislature in later amending section 1090 to include `employees' intended to apply the policy of the conflicts of interest law, as set out in the Schaefer and Terry cases, to independent contractors who perform a public function and to require of those who serve the public temporarily the same fealty expected from permanent officers and employees." (Id at p. 79.) Consistent with the above authorities, we conclude that an attorney whose official capacity carries the potential to exert "considerable" influence over the contracting decisions of a public agency is an "employee" under section 1090, regardless of whether he or she would be considered an independent contractor under common-law tort principles. (See Gnass, supra, 101 Cal.App.4th at p. 1298, 125 Cal.Rptr.2d 225.) Otherwise, the attorney could manipulate the employment relationship to retain "official capacity" influence, yet avoid liability under section 1090. Indeed, the evidence presented here suggests such a situation. McWhirk was CHFA's inhouse counsel for six years, becoming its outside counsel before commencing the insurance slamming scheme with Schienle. Nothing in the record demonstrates McWhirk's change in title diminished his influence over the agency. *101 The authority defendants rely on does not contradict our conclusion. Specifically, defendants misconstrue a footnote in Gnass to support the argument section 1090 does not apply to independent contractors. (See Gnass, supra, 101 Cal. App.4th at p. 1302, fn. 10, 125 Cal.Rptr.2d 225.) But the opinion merely described the trial court's response to the prosecutor's argument that the lawyer's independent contractor status deprived him of the defense in section 1091.5, subdivision (a)(9), which exempts "[a]n officer or employee" from liability from certain transactions where a full disclosure has been made.[4] Recognizing the apparent incongruity of asserting section 1090 applied to the defendant, but the similarly-worded section 1091.5 did not, the appellate court remarked: "Of course, if Gnass was not an 'employee' for purposes of section 1091.5, neither was he for purposes of section 1090, in which case the conflict-of-interest statutes would not apply at all. We see no reason why one could be an employee for one and not the other." (Gnass, at p. 1302, fn. 10, 125 Cal.Rptr.2d 225.) The Gnass court already had determined the attorney fell within the scope of section 1090. Thus, the court simply questioned the prosecutor's argument that section 1091.5 did not cover the defendant's conduct, but did not suggest independent contractors are exempt from liability under section 1090. Also unavailing is" the defendants' reliance on Pacific Finance Corp. v. Lynwood (1931) 114 Cal.App. 509, 300 P. 50 (Pacific-Finance). There, the city attempted to prevent payment to the assignee of an engineer retained by the city, arguing that public policy prohibited assignment of a public officer's unearned salary. The court rejected the city's argument that the engineer was a public officer, observing: "There is not a word in the contract between [the engineer] and appellant city which indicates that the parties were endeavoring to insert [the engineer] into the office of city engineer ... or to create for him any public office. His is not, by virtue of the contract, a public officer." (Id. at p. 514-515, 300 P. 50.) Pacific Finance does not aid defendants for two reasons. First, the case never addressed when a contracting party could be considered an employee of a public agency. Thus, even if McWhirk was not an "officer" under the holding of Pacific Finance, he still could be an "employee" under section 1090. Second, defendants have not demonstrated any parallel between section 1090 and the policy against assignment of a public officer's unearned salary. As we have discussed, conflict of interest provisions "cannot be given a narrow and technical interpretation that would limit their scope and defeat the legislative purpose." (Honig, supra, 48 Cal. App.4th at p. 314, 55 Cal.Rptr.2d 555.) Absent some showing that the public policy at issue in Pacific Finance has a scope and purpose similar to the conflict of interest statutes, we decline to engraft the court's "public officer" analysis onto section 1090. In sum, we reject defendants' challenge to the trial court's jury instruction that section 1090 may never apply to independent contractors. *102 2.-3.[***] E.-G.[***] III DISPOSITION The judgment and orders are affirmed. CHFA is entitled to its costs of this appeal. RYLAARSDAM, Acting P.J., and FYBEL, J., concur. NOTES [*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II.B, II.C, II.D.2, II.D.3, II.E, II.F, and II.G. [1] McWhirk was sued both as an individual and as Robert L. McWhirk, a professional corporation. [**] See footnote *, ante. [2] The Gnass court, however, upheld the trial court's dismissal of the indictment due to the prosecutor's failure to properly instruct the jury. [3] "Although we are not bound by the Attorney Generals' opinions, they are entitled to `considerable weight.'" (Gnass, supra, 101 Cal. App.4th at p. 1304, 125 Cal.Rptr.2d 225.) [4] This section provides: "(a) An officer or employee shall not be deemed to be interested in a contract if his or her interest is any of the following: [¶] ... [¶] (9) That of a person receiving salary, per diem, or reimbursement for expenses from a government entity, unless the contract directly involves the department of the government entity that employs the officer or employee, provided that the interest is disclosed to the body or board at the time of consideration of the contract, and provided further that the interest is noted in its official record." [***] See footnote *, ante.

11 Ariz. App. 568 (1970) 466 P.2d 787 The STATE of Arizona, Appellee, v. Raymond Thomas PARUSZEWSKI, Appellant. No. 2 CA-CR 194. Court of Appeals of Arizona, Division 2. March 23, 1970. Rehearing Denied April 30, 1970. Review Denied June 2, 1970. *569 Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee. Miller & Haggerty, by Philip M. Haggerty, Phoenix, for appellant. KRUCKER, Judge. Defendant-appellant, Raymond T. Paruszewski, was informed against for three counts: (1) taking prohibited articles, to wit, brass knuckles, into a prison, A.R.S. § 31-230; (2) taking marijuana into prison; and (3) illegal possession of marijuana, A.R.S. § 36-1002.05. The jury found defendant guilty on all three counts and judgment was so entered. Defendant appeals from this judgment and sentence so entered. Construing the facts in a light most favorable to sustaining the judgment, they are as follows. Defendant, at the time of his arrest, was a guard at the Arizona State Prison. He had reported to work and was on duty when he was ordered to report to the "gate office." He conversed with his superior who asked if he would consent to a body search. He said no and then was told it was a fairly regular procedure. He was asked if he carried any contraband. After some more interchange, defendant produced a pair of brass knuckles from his trousers. The other guards still continued to insist he reveal any contraband until finally he produced a Marlboro cigarette package, which subsequently proved to contain marijuana. Following this, some conversation took place and the defendant was officially placed under arrest. He was then read his Miranda rights for the first time. Prior to trial, defendant moved to suppress the evidence because the search and seizure was illegal and because the Miranda rights were not given earlier. The trial court apparently believed the search and seizure would have been illegal except that defendant, by taking employment as a prison guard, consented to such searches. On appeal the defendant made the following allegations of error: (1) Can the court find waiver of defendant's Fourth Amendment Rights in the fact of his employment? (2) On the charges of bringing the items into the prison, the jury should have been instructed that when evidence is wholly circumstantial they must exclude every other hypothesis before finding guilt. (3) The court failed to prove marijuana is a "narcotic" under A.R.S. § 31-320. (4) It is error to not dismiss the charge of bringing in marijuana because it did not fit the statutory prohibition as a "narcotic". We believe allegation number two requires a reversal of the conviction under counts one and two. Defendant contends *570 that the two counts of violating A.R.S. § 31-230 as to taking weapons and marijuana into prison were not proved. Specifically he contends that there was no direct evidence that defendant had taken the items into the prison. The only evidence was that which could be inferred from the possession of the items, and it was circumstantial only. Consequently, concludes defendant, there should have been an instruction that if the evidence is entirely circumstantial, the jury must exclude every other reasonable hypothesis except that of guilt. We must agree with the defendant's contentions. The statute creating the crime in question, A.R.S. § 31-230, is as follows: "A person not authorized by law who takes into a prison, or the grounds belonging or adjacent thereto, any opium, morphine, cocaine or other narcotic, or intoxicating liquor of any kind, or firearms, weapons or explosives of any kind, is guilty of a felony." In the instant case there was indeed no direct evidence that defendant had taken the items into the prison. The only direct evidence was that he had possession of the items within the prison. Counsel for the State appears to concede that the gravamen of the crime here was circumstantially based and that the usual role in such a case in Arizona under State v. Tigue, 95 Ariz. 45, 386 P.2d 402 (1963) is that the court must, on its own initiative, if necessary, see that the circumstantial instruction is given. To fail to do so is reversible error. The State's brief, however, impliedly rejects the rule and seeks to change it. It suggests that since numerous cases affirm that the quality of circumstantial evidence is as good as direct evidence, there should not be an instruction which sets a somewhat lower and different standard, when a case is entirely circumstantial. It cites legal works which tend to show that circumstantial evidence may even ultimately be more reliable than supposedly direct eye witness evidence. It concludes by citing some federal cases which have come to reject the said instruction. We do not believe this court is in a position to change the rule for Arizona. Our Supreme Court has reaffirmed the essentiality of this instruction. See, State v. Maynard, 101 Ariz. 239, 418 P.2d 576 (1966); Tigue, supra; State v. Cox, 93 Ariz. 73, 378 P.2d 750 (1963). These two counts must be retired. However, since the legal question of whether or not defendant is deemed to have consented to the "search" of his person is primary to the retrial, we will answer it also. The Fourth Amendment to the United States Constitution provides: "The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." We have found no cases specifically testing the constitutionality of searches of prison guards,[1] but are nevertheless compelled to the following conclusion. The essential maintenance and purpose of a penitentiary is directed at achieving a level of internal physical security so as to effect its various functions. Basic to the maintenance of this physical security is the requirement that weapons and drugs be kept out. We believe this security can only be achieved by enforcing continuous checks on all persons and places within the prison walls, including employees. We therefore believe that under prison circumstances, this search was reasonable and did not violate the Constitution. Judgment reversed on Counts One and Two and affirmed as to Count Three. HOWARD, C.J., and HATHAWAY, J., concur. NOTES [1] We note that there apparently is a Rule of the Prison, Rule 14, which states that an employee must sign a document authorizing these searches. However, it was not presented at trial so we reject it for consideration here.

fILED JUL ~3 2009 UNITED STATES DISTRICT COURT Clerk, U.S. District and FOR THE DISTRICT OF COLUMBIA Bankruptcy courts KEVIN RONDEAU, ) ) Plaintiff, ) ) v. ) Civil Action No. 02 1360 ) INTERNAL REVENUE SERVICE, et al., ) ) Defendants. ) MEMORANDUM OPINION This matter is before the Court on plaintiffs pro se complaint and application to proceed in forma pauperis. It appears that plaintiff s causes of action arise from decisions rendered by the state courts in New Hampshire regarding legal custody of plaintiffs minor child after he and the child's mother divorced. Generally, plaintiff alleges that defendants have interfered with the parent- child relationship, have infringed upon his ability to claim his child as a dependent for income tax purposes, and otherwise have caused him harm and have violated his rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. His efforts to obtain relief in the state and federal courts have been unsuccessful. Plaintiff demands compensatory damages totalling $33 million. "[I]t is well-settled that, since the field of domestic relations involves local problems peculiarly suited to state regulation and control, a suit whose substance involves domestic relations cannot ordinarily be maintained in a federal court." Malachowski v. City ofKeene, 787 F.2d 704, 709 (1st Cir.), cert. denied, 479 U.S. 828 (1986) see also Rondeau V. State, No. CIY. 94-289-SD, 1994 WL 262930, at *1 (D.N.H. May 31, 1994) (dismissing for lack of subject matter jurisdiction plaintiffs motion for ex parte preliminary injunction where "the issues he raises pertain exclusively to issues of child custody and visitation rights"). Insofar as plaintiff is challenging any matter pertaining to child custody and support, a federal district court lacks subject matter jurisdiction. To the extent that plaintiff raises any other viable claim, in the interest of justice, the Court will transfer this matter to the United States District Court for the District of New Hampshire. See 28 U.S.C. § 1404(a); SEC v. Page Airways, 464 F. Supp. 461, 463 (D.D.C. 1978). With the exception of the Internal Revenue Service and its Commissioner, plaintiff brings this action against individuals and government entities in New Hampshire for acts which occurred in New Hampshire. The District of Columbia has no apparent connection to this case aside from being the location of the headquarters of the Internal Revenue Service, and this connection is not sufficient to warrant proceeding here. See Boers v. United States, 133 F. Supp. 2d 64,66 (D.D.C. 2001) (transferring case to the district where "all the operative facts occurred" and where "the land that was the subject of the foreclosure is also located" because "the District of Columbia ha[ d] no apparent connection to this case, aside from the fact that it is the capital of the United States."). "District Courts have a 'local interest in deciding local controversies at home.'" Boers, 133 F. Supp. 2d at 66 (quoting Trout Unlimited v. United States Dep't ofAgric., 944 F. Supp. 13, 16 (D.D.C. 1996)). It appears that this action could have been brought in the District of New Hampshire and that that is forum is more convenient for the parties and potential witnesses. Accordingly, the Court will transfer this action to the United States District Court for the District of New Hampshire. Resolution of the plaintiffs application to proceed informa pauperis is left for the transferee court to decide. An Order consistent with this Memorandum Opinion will be issued separately. DATE: 1 ,.(~ ~ United States District Judge 

106 B.R. 204 (1989) In re Edward S. HONDA and LaVern H. Honda, Debtors. Bankruptcy No. 87-00165. United States Bankruptcy Court, D. Hawaii. October 4, 1989. Ted Pettit, Honolulu, Hawaii, for debtors. Wayne K.T. Mau, Honolulu, Hawaii, for respondent. MEMORANDUM DECISION RE: OBJECTION TO ALLOWANCE OF CLAIMS BY BANK OF HAWAII JON J. CHINEN, Bankruptcy Judge. On May 18, 1989, Edward S. Honda and LaVern H. Honda (jointly known as "Debtors") filed an Objection to Allowance of Claims by Bank of Hawaii ("Objection") based upon the untimely filing of Bank of Hawaii's ("BOH") proof of claim. After considering the various memoranda filed by both parties to the Objection, the Court orally ruled at the continued hearing conducted on July 19, 1989 that the Objection would be taken under advisement and proposed memorandum decisions would be entertained by the Court. Based upon the records in the file, including the parties' proposed memorandum decisions, and arguments of counsel, the Court now renders this memorandum decision. A review of the facts is helpful: The Debtors are indebted to BOH on certain personal guaranties made in conjunction with the obligations of Builders' Products Corporation ("Builders' Products"). BOH made several loans to Builders' Products and held as security several mortgages and personal guaranties of the Debtors. Builders' Products, a materials and construction company owned by Edward S. Honda, filed a Voluntary Petition Under Chapter Eleven on September 9, 1986. Builders' Products Corporation, Case No. 86-00623, U.S. Bankruptcy Court, District of Hawaii ("Builders' Bankruptcy"). BOH actively participated in the Builders' Bankruptcy and filed its Motion to Lift Stay and *205 for Adequate Protection on November 5, 1986. BOH's motion was subsequently denied on December 5, 1986. Debtors filed their Voluntary Petition Under Chapter Eleven on March 2, 1987 with a list of creditors. BOH was not listed as a creditor. On March 3, 1987, an Order for Meeting of Creditors was entered herein. The Order for Meeting of Creditors in addition to scheduling the meeting of creditors also established the claim bar date. The order stated in its customary manner: Creditors: File your claims NOW. Disputed claims not filed by bar date generally are not allowed. Bar date is July 8, 1987. (emphasis added). On March 11, 1987, the Certificate of Service Re: Order for Meeting of Creditors filed herein evidenced the service of the Order for Meeting of Creditors upon BOH. Therefore, there is no dispute as to BOH having received actual notice of the claim bar date. The Debtors filed their Statement of Financial Affairs for Debtors Engaged in Business and Schedules of Assets and Liabilities ("Schedule") on July 30, 1987. The Schedules did not reflect BOH's claims. On August 5, 1987, BOH's attorney requested by letter to the attorney for the Debtors that the Schedules should be amended to reflect the third and fourth mortgage liens held by BOH on the Debtors' residential property and to amend the Schedules to show an unsecured claim owing to BOH for an Executive Visa account in the amount of $7,909.96. BOH's letter did not refer to the unsecured claims for deficiencies arising from BOH's secured claims or an unsecured claim based on the Debtors' personal guaranties for BOH's loans to Builders' Products. Debtors filed Amended Schedules on September 8, 1987 showing the amendments requested by BOH. BOH renewed its Motion for Relief from Automatic Stay or in the Alternative, for Adequate Protection and filed it on October 28, 1987 in this case and in the Builders' Bankruptcy. Subsequently on January 11, 1988, the Order Granting Motion for Relief from Automatic Stay was entered in both cases. BOH foreclosed on its collateral and ultimately experienced a deficiency. On February 16, 1989, BOH filed Proof of Claim No. 12 in this case for the amount of $793,598.93 plus other accrued interest and attorney's fees and costs based on the Debtors' personal guaranties for BOH loans to Builders' Products. The instant controversy centers on the filing of this proof of claim. Under a Chapter 11 case, "[T]he court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed." Bankruptcy Rule 3003(c)(3). In this case, the Court did establish the claim bar date as July 8, 1987 in the Order for Meeting of Creditors. BOH filed a tardy proof of claim for its unsecured interest on February 19, 1989, approximately 1½ years after the claim bar date. The general rule regarding an unsecured creditor is "[A]n unsecured creditor . . . must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed,. . . ." Bankruptcy Rule 3002(a). "Unless a claim is filed or an extension obtained within the original claim period, an unsecured claim is time barred regardless of its merits." Matter of Burrell, 85 B.R. 799, 801 (Bankr.N.D.Ill.1988); Wilkens v. Simon Brothers, Inc., 731 F.2d 462 (7th Cir.1984). Pursuant to Bankruptcy Rule 3003(c)(3), an extension for time to file a proof of claim may be granted when cause is shown. BOH concedes that it did not obtain an extension for time in which to file its proof of claim. However, BOH argues that it has filed an informal proof of claim, and the effect of the filing of the proof of claim for the deficiency was to amend its informal proof of claim. The question is whether BOH had established a timely informal proof of claim which can be amended. The Ninth Circuit has promulgated a "long-established liberal policy towards amendment of proofs of claim". In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1381 (9th Cir.1985); In re Sambo's Restaurants, *206 Inc., 754 F.2d 811, 816 (9th Cir.1985); In re Franciscan Vineyards, Inc., 597 F.2d 181, 182 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980); In re Hotel St. James Co., 65 F.2d 82 (9th Cir.1933). Section 501 of the Bankruptcy Code provides for the filing of a formal proof of claim. However, in addition to a formal proof of claim, an informal proof of claim may be created by written documentation, including correspondence and pleading, which is amendable. Pizza of Hawaii, 761 F.2d at 1381; Sambo's Restaurants, 754 F.2d at 815; Charter Co. v. Dioxin Claimants, 876 F.2d 861 (11th Cir.1989). Requirements for establishing an informal proof of claim are three-fold. The document which acts as an informal proof of claim must evidence the nature and amount of the claim, and must show the clear intent of the claimant to hold the debtor liable. Pizza of Hawaii, 761 F.2d at 1381; Sambo's Restaurants, 754 F.2d at 815; In the Matter of Evanston Motor Co., 26 B.R. 998, 1001 (N.D.Ill.1983). Finally, the document in order to be considered an informal proof of claim must be directed to the proper party prior to the claim bar date. Burrell, 85 B.R. at 801; In re Stern, 70 B.R. 472, 476 (E.D.Pa.1987). Mere knowledge of a claim alone is insufficient to constitute an informal proof of claim against the debtor. United States v. International Horizons, Inc., 751 F.2d 1213 (11th Cir.1985); Evanston Motor, 26 B.R. at 1000. In following the requirements for establishing an informal proof of claim, this Court has reviewed its files and record of the Debtors' case in order to find any written documentation, including correspondences or pleadings, which could be construed as an informal proof of claim. As a result of the Court's exhaustive search, it was unable to uncover any instrument in this case which could be interpreted as an informal proof of claim made on behalf of BOH. Furthermore, counsel for BOH has failed to produce any written document which possibly could be interpreted in this case as an informal proof of claim. Accordingly, this Court finds that no informal proof of claim created by BOH exists in the Debtors' case prior to the claim bar date of July 8, 1987. BOH cites Sambo's Restaurants, supra and argues that certain pleadings it has filed in the Builders' Bankruptcy could be characterized as a valid informal proof of claim in the Debtors' case. However, BOH's reliance of Sambo's Restaurants is misplaced. In Sambo's Restaurants, a creditor filed a wrongful death complaint against the debtor in a United States District Court, which was subsequently dismissed without prejudice since it was made in violation of the automatic stay. Five months after the claim bar date had passed, the creditor moved the bankruptcy court for leave to amend the wrongful death complaint by characterizing it as an informal proof of claim. On appeal, the United States Court of Appeals, Ninth Circuit, affirmed the district court's reversal of the bankruptcy court's order denying the creditor's motion for leave to amend. The Ninth Circuit recognized the general rule that informal proof of claim need not appear on the bankruptcy court's records or its files. Sambo's Restaurants, 754 F.2d at 814. In addition, the Ninth Circuit noted that "we are liberal in what kind of documentation we will treat as a sufficient informal proof of claim" and held that the wrongful death action filed in the district court did set forth the nature, amount and the creditor's intent to hold the debtor liable, thereby establishing an informal proof of claim. Sambo's Restaurants, 754 F.2d at 816. Pursuant to the holding in Sambo's Restaurants, BOH asserts that the Motion to Lift Stay and for Adequate Protection filed on November 5, 1986 and the Request for Oral Hearing on Motion to Amend Order Denying Motion for Relief from Automatic Stay filed on March 4, 1987 in the Builders' Bankruptcy can be considered as informal proofs of claim in this case. This Court would take judicial notice of the aforementioned pleadings made in the Builders' Bankruptcy as informal proofs of *207 claim in the instant case only if they satisfy the deeply rooted requirements of an informal proof of claim long espoused in the Ninth Circuit. The motion to lift stay and the request for oral hearing arguably could satisfy the requirement that they state the nature and amount of BOH's claim and its intent to hold Debtors liable for the deficiency. However, the fact that neither pleading was directed to the Debtors nor served upon the Debtors avoids such determination. Both pleadings fail to satisfy the requirement that it be directed to the proper party, which in this case are the Debtors. The certificates of service for both pleadings represent that service was made upon Builders' Products and its attorney and other parties-of-interest. There is no record which indicates that Debtors, Edward S. Honda and LaVern H. Honda, jointly or severally received copies of the aforementioned pleadings from BOH. The failure on BOH's part to satisfy the requirement that the document be directed to the proper party prior to the claim bar date prevents this Court from finding that either pleading constitutes an informal proof of claim. Furthermore, the motion for relief from stay was filed before the inception of the Debtor's estate. This Court will not allow the creation of an informal proof of claim by a writing made prior to the existence of the debtor estate. To take judicial notice of a pleading filed prior to the existence of the debtor estate would prejudice the debtor and those creditors who have filed timely proofs of claim. To endorse the characterization of pre-petition documents as informal proofs of claim would contravene the policy for filing formal proofs of claim. Therefore, the Motion to Lift Stay and for Adequate Protection filed in the Builders' Bankruptcy cannot be considered as an informal proof of claim. A creditor must take the necessary action to protect his interest. Failure to protect his interest will be considered as a waiver. As an undersecured creditor, BOH should have known of the possible deficiency resulting from the foreclosure and should have taken the appropriate action to protect that interest. BOH is not a naive participant in the area of bankruptcy law. As one of the largest financial institutions in Hawaii, BOH is well aware of its interests and the method of utilizing the bankruptcy laws to protect them. BOH had the opportunity to do so. Proper notice of the claim bar date was given and received by BOH. Also, BOH was an active participant in this case and the related Builders' Bankruptcy. But it failed to file a proof of claim within the bar date. It also failed to file an informal proof of claim which could be amended. Based upon the foregoing reasons, IT IS HEREBY ORDERED, DECREED AND ADJUDGED that Debtors' Objection to Allowance of Claims by Bank of Hawaii be granted and Proof of Claim No. 12 filed herein on February 16, 1989 is disallowed.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-06-00628-CV Brent Warner, Appellant v. Stephanie Warner, Appellee FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY NO. C-1-CV-06-004092, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Appellant Brent Warner has filed a motion to dismiss his appeal. We grant the motion and dismiss the appeal. Tex. R. App. P. 42.1(a)(2). ___________________________________________ David Puryear, Justice Before Justices Patterson, Puryear and Pemberton Dismissed on Appellant's Motion Filed: July 26, 2007

50 P.3d 825 (2002) 203 Ariz. 75 STATE of Arizona, Appellee, v. Bernard SMITH, Appellant. No. CR-01-0272-AP. Supreme Court of Arizona, En Banc. July 29, 2002. *827 John W. Rood, III, Phoenix, Attorney for Bernard Smith. Janet Napolitano, Attorney General by Kent Cattani, Chief Counsel, Capital Litigation Section, and J.D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona. OPINION McGREGOR, Vice Chief Justice. I. ¶ 1 Shortly before midnight on August 21, 1983, appellant Bernard Smith backed his car into a parking space and entered the Low Cost Market in Yuma. At the counter, he requested a pack of Player cigarettes and paid for them with a five dollar bill. Once cashier Charles Pray opened the cash register, Smith pulled back the hammer of the .22 caliber, single-action revolver he carried so that it would make a clicking sound and told Pray, "Give me all of the money or I will blow your fucking head off." Pray did not immediately comply with Smith's demand; instead he twice called out the name of the market's manager. Smith then discharged the gun, shooting Pray in the neck. Smith went around the counter to remove the currency from the cash register and left the store. ¶ 2 Approximately fifteen minutes later, a Yuma County Sheriff's Deputy stopped Smith's vehicle, and an officer of the Yuma Police Department took Smith into custody. In Smith's car, the police found blood-stained currency and a .22 caliber pistol. ¶ 3 The State charged Smith with armed robbery. Nearly two weeks later Charles Pray died from his wounds, and the Grand Jury issued an additional indictment charging Smith with first degree murder. While Smith was in custody for the incident at the Low Cost Market, the State also charged him with armed robberies of three Yuma Circle K stores occurring on July 23, August 14, and August 15, 1983. Prior to his trial for the Low Cost Market robbery and Pray's murder, a jury convicted Smith of the Circle K robberies, and the court sentenced him to three life sentences. ¶ 4 At his trial for the Low Cost Market incident, Smith maintained his innocence and blamed the robbery and shooting on one Al Johnson, who was never located. The jury did not believe Smith's defense and convicted him of both robbery and first degree murder. The trial judge sentenced Smith to death. On direct appeal, we affirmed Smith's conviction and sentence. State v. Smith, 146 Ariz. 491, 707 P.2d 289 (1985). ¶ 5 In 1998, on appeal of the district court's denial of Smith's petition for habeas corpus, the Ninth Circuit Court of Appeals held that he did not receive effective assistance of counsel during the sentencing phase of his trial because his attorney failed to develop and present "any mitigation evidence at all for the purpose of defending Smith against the death penalty." Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir.1998). The court remanded the case to the district court "with directions that it issue a writ releasing Smith from the sentence of death and directing that he be resentenced." Id. at 1274. ¶ 6 In April 2001, Judge John N. Nelson of the Yuma County Superior Court held a sentencing hearing at which he found that the State proved three aggravating circumstances: previous convictions for which under *828 Arizona law a life sentence could be imposed; prior convictions involving the use or threat of violence; and pecuniary gain. Arizona Revised Statutes (A.R.S.) §§ 13-703.F.1, 5 (2001), 13-703.F.2 (1992).[1] In addition, the judge found that Smith did not prove any statutory mitigating factors and that the non-statutory mitigating circumstance he proved did not weigh heavily enough to call for leniency. On May 31, 2001, the court again sentenced Smith to death. ¶ 7 Appeal to this court is automatic and direct when the court imposes a sentence of death. A.R.S. § 13-703.01.A (2001); Ariz. R. Crim P. 31.2.b. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution, A.R.S. section 13-4031, and Arizona Rule of Criminal Procedure 31.2.b. II. ¶ 8 Prior to the sentencing hearing, Judge Nelson informed the parties that the victim's son and daughter-in-law, Terry and Jane Pray, were longtime employees of the Yuma County Superior Court and that he had some professional contact with them in the past. Terry Pray had worked as a juvenile probation officer since 1977. Mr. Pray did not work in the superior court building and had no professional contact with Judge Nelson after he became a sitting judge in 1998, but the two occasionally crossed paths in the court building. In 1974 or 1975, Jane Pray worked as a secretary in the county attorney's office for a few months while Judge Nelson was a deputy county attorney. Beginning in 1975, she served as a judicial assistant to superior court Judges Keddie and Hall. In September 1999, Ms. Pray became the superior court's case flow manager. In that capacity, she occasionally attended meetings with the judges and also dealt with them on criminal case flow issues. Ms. Pray rarely dealt directly with Judge Nelson, who was assigned to a civil calendar; when her job required contact with his chambers, she usually spoke with his judicial assistant. In addition, Ms. Pray's office is situated on the floor above Judge Nelson's, and they have little casual contact in the building. ¶ 9 After Judge Nelson revealed his acquaintance with the Prays at a status hearing on January 24, 2000, defense counsel indicated that he would file a motion for change of venue. Judge Nelson transferred the case to the Yuma County presiding judge, who then transferred the case to the presiding judge in Pinal County to set a hearing on the motion for change of venue. On April 21, 2000, Pinal County Judge Boyd T. Johnson conducted a hearing on the motion. ¶ 10 Smith asserted that his motion was a "hybrid" between a Rule 10.3 motion for change of venue and a Rule 10.1 motion for change of judge and that, although the written motion referred only to Judge Nelson, its aim was to disqualify all the Yuma County Superior Court judges. See Ariz. R.Crim. P. 10.1, 10.3. The State argued that the motion could not be treated as a Rule 10.3 motion because that rule refers only to trials and specifically excludes motions based on "the interest or prejudice of the trial judge." Ariz. R.Crim. P. 10.3.a. The State further argued that if the motion were treated as one under Rule 10.1, it was barred as untimely. See Ariz. R.Crim. P. 10.1.b. Judge Johnson concluded that the motion should be treated as a Rule 10.1 motion and that it was not timely filed. We review Judge Johnson's ruling on the motion for abuse of discretion. State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315, 334 (1997). ¶ 11 We first consider whether Smith waived any objection to Judge Nelson acting as the sentencing judge. We agree with Judge Johnson that Smith's hybrid motion was properly treated as a motion for change of judge for cause. A motion for change of judge must be filed within ten days after discovery that grounds for a change of judge exist. Ariz. R.Crim. P. 10.1.b. When Judge Nelson disclosed his professional relationship with the Prays, Smith's attorney had already planned to file a motion for change of venue based on the Prays' employment by the *829 court. In fact, the record indicates that Smith knew of the professional relationship at least six months prior to Judge Nelson's disclosure. Therefore, Smith failed to timely file his Rule 10.1 motion. ¶ 12 Smith now argues that he based his motion on an ethical conflict, to which objection cannot be waived. See State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979). At the hearing, however, Smith expressly disclaimed any reliance on the Code of Judicial Conduct as a basis for Judge Nelson's recusal. He then argued only that Canon 2, which directs judges to avoid the appearance of impropriety, provided the context in which Judge Johnson should decide the motion. See Ariz. R. Sup.Ct. 81, Canon 2. Smith did not argue that Canon 3.E, which mandates a judge disqualify himself when his impartiality may reasonably be questioned, provided a basis for Judge Nelson's disqualification. See Ariz. R. Sup.Ct. 81, Canon 3.E. We further note that, although nearly a year passed between Judge Johnson's order denying Smith's motion and the sentencing hearing before Judge Nelson, Smith never availed himself of the opportunity to bring a special action to challenge Judge Johnson's decision. Although Smith arguably waived the arguments on which he now relies, we exercise our discretion and address the merits of the motion. ¶ 13 Rule 10.1 provides that "any defendant shall be entitled to a change of judge if a fair and impartial hearing ... cannot be had by reason of the interest or prejudice of the assigned judge." Ariz. R.Crim. P. 10.1.a. Judges are presumed to be impartial, and the party moving for change of judge must prove a judge's bias or prejudice by a preponderance of the evidence. State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989). Smith never alleged, and in fact disavowed, that Judge Nelson held any actual bias, and nothing presented at the hearing shows any bias. Therefore, Smith did not meet his burden of proof under Rule 10.1. ¶ 14 Having expressly avoided relying on the Code of Judicial Conduct as a basis for Judge Nelson's disqualification at the hearing, Smith now argues that the appearance of impropriety created by the Prays' professional contacts with Judge Nelson required his recusal. See Ariz. R. Sup.Ct. 81, Canon 2. Although Smith does not rely upon it, Canon 3.E, which states that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," also arguably applies to his present contention. Ariz. R. Sup.Ct. 81, Canon 3.E(1). ¶ 15 Canon 3.E lists several instances in which a judge must disqualify himself or herself.[2] Judge Nelson's relationship with the Prays does not fit into any of the situations delineated in Canon 3.E for which disqualification is required. The closest analog involves those instances in which "the judge has a personal bias or prejudice concerning a party." Ariz. R. Sup.Ct. 81, Canon 3.E(1)(a). However, because Smith made no allegation or showing that Judge Nelson had any bias, Canon 3.E did not expressly require Judge Nelson's disqualification. ¶ 16 If a situation is not one of those outlined in Canon 3.E, but nonetheless implicates impartiality, a judge should consider "[w]hether an objective, disinterested observer fully informed of the facts underlying the grounds on which ... disqualification [was] contemplated would entertain a significant doubt that justice would be done in the case." Ariz. Jud. Ethics Adv. Comm. Op. 96-14 at 1 (1996). We find it significant that not even Smith, who scarcely qualifies as an objective, disinterested observer, entertained any doubt as to Judge Nelson's freedom from bias or prejudice, and thus could not have entertained any significant doubt that Judge Nelson would do justice in this matter. We conclude that Judge Nelson's limited professional relationships with the victim's son and daughter-in-law were sufficiently attenuated that an informed, disinterested observer *830 would not entertain significant doubt that justice would be done in Smith's sentencing. Prior decisions and judicial ethics opinions concerning similar situations support that conclusion. ¶ 17 In Valencia, we remanded for resentencing because the trial judge met with the victim's brother ex parte and discussed sentencing prior to sentencing the defendant to death. 124 Ariz. at 140, 602 P.2d at 808; see also State v. Leslie, 136 Ariz. 463, 463-64, 666 P.2d 1072, 1072-73 (1983) (remanding for a new trial after judge had telephone conversations with the victim's relatives prior to capital sentencing). In contrast, nothing here suggests that Judge Nelson ever spoke with either Terry or Jane Pray about Charles Pray's murder or the upcoming sentencing hearing. ¶ 18 Judicial Ethics Advisory Opinion 00-01, in which the Committee considered whether various situations required disqualification, provides additional guidance. See Ariz. Jud. Ethics Adv. Comm. Op. 00-01 (2001). Opinion 00-01 and the opinions and cases cited therein considered instances in which a judge's spouse or child worked for a law firm or government agency that appeared before the judge although the judge's relative did not personally appear.[3]Id. at 1-2. The Committee concluded that the particular facts presented controlled the outcome in each situation, but then determined that none of the cases called for disqualification. Id. ¶ 19 Judge Nelson has a far more attenuated relationship with the Prays than the familial relationships discussed in Opinion 00-01. In addition, although our constitution considers Terry Pray a victim of Smith's crime and entitles him to attend any proceedings against Smith related to his father's murder, Mr. Pray did not participate in the sentencing hearing. See Ariz. Const. art. II, § 2.1.A.3. We conclude that the Code of Judicial Conduct did not require Judge Nelson's disqualification and find no error.[4] III. ¶ 20 Judge Nelson denied Smith's request that a jury be impaneled to find aggravating factors. Smith argues that this denial violated his right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. ¶ 21 Smith was sentenced pursuant to A.R.S. section 13-703, which sets the procedure for sentencing in a case in which the State seeks the death penalty. That procedure requires the sentencing judge to find the statutory factors that, if found to exist, qualify a defendant for capital punishment. The procedure was declared constitutional in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), but placed in doubt by the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We recently described the procedure in detail, pointing out that Apprendi had not overruled Walton and that we therefore were required by the Supremacy Clause to uphold the Arizona sentencing procedure. State v. Ring, 200 Ariz. 267, 279-80 ¶ 44, 25 P.3d 1139, 1151-52 ¶ 44 (2001). ¶ 22 The Supreme Court has now vacated our opinion in Ring. Ring v. Arizona,___ U.S.___,___, 122 S.Ct. 2428, 2443,___ L.Ed.2d___,___(2002). The Court held section 13-703 unconstitutional, insofar as it permits a judge to find the aggravating factors that permit imposition of the death penalty. Ring v. Arizona,___U.S. at___, 122 S.Ct. at 2443. We must therefore hold that *831 the sentencing judge in the present case erred in applying section 13-703. ¶ 23 The Court remanded Ring to us, and we must decide what is to be done on remand. See Ariz. R.Crim. P. 31.23.c. Given the Ring decision, Smith and all other defendants whose cases are pending on direct appeal must either be resentenced or their death sentences reduced to life with or without parole. In some cases, there may be other issues, such as the possibility that the jury found the aggravating circumstance[5] or the State's contention of harmless error. The decision is difficult because Arizona law now prescribes no procedure for sentencing or resentencing in capital cases. It is therefore necessary to ask for briefing and argument on remand questions. ¶ 24 This case, however, is but one of many affected by the holding in Ring v. Arizona. We therefore believe it best to consolidate this case and all others not yet final on direct appeal[6] for supplemental briefing and argument on the issues involving capital sentencing procedures. We recently filed an order to that effect. State v. Ring, Order, No. CR-97-0428-AP (June 27, 2002). ¶ 25 In the interim, before the final decision of the Ring issue, we have decided it would be in the best interests of all—the justice system, defendants, and victims—to issue opinions on all issues not arising out of application of A.R.S. section 13-703 in all cases that have been argued and submitted to the court for decision, including those in which we have concluded the verdict and judgment of guilt should be affirmed. ¶ 26 Thus, we end the discussion of sentencing issues at this point. If Smith is to be resentenced again or his sentence reduced, all other sentencing issues are moot and need not be decided. If it later appears that the other issues are not moot, they may be raised and considered when appropriate. This opinion is therefore not a final disposition of this case and the time for filing a motion for reconsideration or for post-conviction relief has thus not begun to run. In our discretion, however, suspending all contrary rules, any motion for reconsideration appropriately directed to the issues decided in this opinion should be filed as provided by the existing rules. See Ariz. R.Crim. P. 31.18. IV. ¶ 27 We reject the following arguments, which Smith raises to avoid procedural default and to preserve for further review. ¶ 28 The prosecutor's discretion to seek the death penalty has no standards and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Sections 1, 4, and 15 of the Arizona Constitution. See State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 ¶ 46 (2001); State v. Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 (1985). ¶ 29 Arizona's death penalty is applied so as to discriminate against poor, young, and male defendants in violation of Article II, Sections 1, 4, and 13 of the Arizona Constitution. See Sansing, 200 Ariz. at 361 ¶ 46, 26 P.3d at 1132 ¶ 46. ¶ 30 The death penalty is cruel and unusual under any circumstances and violates the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See State v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 ¶ 59 (2001); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983). ¶ 31 The especially heinous, cruel, or depraved aggravating circumstance, A.R.S. section 13-703.F.6, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See State v. Gretzler, 135 Ariz. 42, 50, 659 P.2d 1, 9 (1983). Furthermore, upon resentencing, the State did not attempt to prove the existence of this aggravating factor, nor did the sentencing judge find it. *832 ¶ 32 The absence of proportionality review of death sentences by Arizona courts denies capital defendants due process of law and equal protection and amounts to cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See Harrod, 200 Ariz. at 320 ¶ 65, 26 P.3d at 503 ¶ 65; State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992). ¶ 33 Arizona's capital sentencing scheme is unconstitutional because it does not require that the State prove that the death penalty is appropriate. Failure to require this proof violates the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See State v. Ring, 200 Ariz. at 284 ¶ 64, 25 P.3d at 1156 ¶ 64, rev'd on other grounds by Ring v. Arizona, ___U.S. at___, 122 S.Ct. at 2443. ¶ 34 The pecuniary gain aggravating circumstance found in section 13-703.F.5 does not sufficiently narrow the class eligible for the death penalty, nor does it reasonably justify the imposition of a death sentence. The court's interpretation of the scope of the F.5 factor is so broad that it cannot narrow the class of death eligible individuals. Furthermore, pecuniary gain is such a frequent motive for murder that such a killing is not above the norm. Therefore, the use of the pecuniary gain aggravating factor violates the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See State v. Poyson, 198 Ariz. 70, 82 ¶ 51, 7 P.3d 79, 91 ¶ 51 (2000). ¶ 35 Smith also raises the following issues to avoid procedural default. Although we have previously rejected these arguments, because they relate to the issues posed by the Ring decision, we withhold our rulings on them. ¶ 36 The death penalty is cruel and unusual because it is irrationally and arbitrarily imposed. The statute requires imposition of a death sentence if the sentencing court finds one or more aggravating circumstances and no mitigating circumstances substantial enough to call for life imprisonment. Furthermore, the death penalty serves no purpose that is not adequately addressed by life in prison. Therefore, it violates a defendant's right to due process under the Fourteenth Amendment of the United States Constitution and Article II, Sections 1 and 4 of the Arizona Constitution. See State v. Pandeli, 200 Ariz. 365, 382 ¶ 88, 26 P.3d 1136, 1153 ¶ 88 (2001); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988). ¶ 37 Arizona's death penalty scheme does not provide a defendant convicted of a capital crime the opportunity to death-qualify the sentencing judge, in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See Pandeli, 200 Ariz. at 382 ¶ 89, 26 P.3d at 1153 ¶ 89. ¶ 38 Section 13-703 provides no objective standards to guide the sentencing judge in weighing the aggravating and mitigating circumstances and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See Pandeli, 200 Ariz. at 382 ¶ 90, 26 P.3d at 1153 ¶ 90. ¶ 39 Arizona's death penalty scheme is unconstitutional because it does not require the sentencing judge to find beyond a reasonable doubt that the aggravating circumstances outweigh the accumulated mitigating circumstances, violating the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article II, Sections 4 and 15 of the Arizona Constitution. See Poyson, 198 Ariz. at 83 ¶ 59, 7 P.3d at 92 ¶ 59. ¶ 40 Section 13-703 does not sufficiently channel the sentencing judge's discretion. Aggravating circumstances should narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a harsher penalty. The broad scope of Arizona's aggravating factors encompasses nearly anyone involved in a murder, violating the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 of the Arizona Constitution. See Pandeli, 200 Ariz. at 382 ¶ 90, 26 P.3d at 1153 ¶ 90. *833 V. ¶ 41 For the foregoing reasons, we approve Judge Johnson's denial of Smith's motion for change of judge and reserve decision regarding Smith's sentence. CONCURRING: CHARLES E. JONES, Chief Justice, STANLEY G. FELDMAN, Justice, REBECCA WHITE BERCH, Justice, and WILLIAM J. O'NEIL, Judge.[*] NOTES [1] The legislature recently amended Ariz.Rev.Stat. (A.R.S.) § 13-703, so that the aggravating factors are now found in subsection G and the mitigating factors in subsection H. See A.R.S. § 13-703 (Supp.2001). When the court resentenced Smith this change had not yet taken effect. [2] Canon 3.E(1) contains a non-exclusive list of situations that call for a judge's disqualification, including instances in which (1) a judge has a personal bias or knowledge of disputed facts in a proceeding, (2) a judge previously served as an attorney or is a material witness in the proceeding, (3) a judge has a financial interest in the proceeding, or (4) a judge has a family relationship with someone involved in the proceeding. Ariz. R. Sup.Ct. 81, Canon 3.E(1)(a)-(d). [3] These situations are not specifically addressed by Canon 3.E, but resemble ones in which a judge's close relative acts as a lawyer in a proceeding before the judge, or when the judge knows that a relative has an interest that could be substantially affected by the proceeding. See Ariz. R. Sup.Ct. 81, Canon 3.E(1)(d)(ii-iii). [4] Although we conclude that Judge Nelson's participation in the sentencing hearing did not constitute error, the better practice, particularly in a capital case, would have been to assign a judge from another county to conduct the resentencing hearing. Doing so apparently would have caused no difficulty in this matter. Rather than ask a judge from another county to hear only the motion for change of judge, the presiding judge could have assigned the action to a judge from another county for purposes of conducting the sentencing hearing. [5] A case, for example, in which the aggravating factor was multiple homicides and the defendant was found guilty by jury verdict of each of the homicides. See A.R.S. § 13-703.F.8. [6] The possible application of Ring to cases that are final and that come before our courts on post-conviction matters will be considered separately. [*] Pursuant to Arizona Constitution Article VI, Section 3, the Honorable William J. O'Neil, Presiding Judge of the Arizona Superior Court, Pinal County, was designated to sit on this case.

Case: 14-10806 Date Filed: 06/26/2015 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-10806 Non-Argument Calendar ________________________ D.C. Docket No. 4:11-cv-00350-MW-CAS MOSI WILLIAMS, Plaintiff-Appellant, versus BETSY BECKER, Dr, Defendant, FLORIDA STATE UNIVERSITY, Board of Trustees, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (June 26, 2015)  Case: 14-10806 Date Filed: 06/26/2015 Page: 2 of 5 Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Mosi Williams appeals pro se the summary judgment in favor of Florida State University and against Williams’s complaint about breach of contract, misleading advertising, deceptive and unfair trade practices, and negligence in violation of state law. Williams alleged that the University advertised a doctorate program in sports psychology with an option to “respecialize” in counseling; after he completed two years of the sports psychology program, he learned that the University had “terminated” the “respecialization” program and he had to apply to the “combined counseling and school psychology program”; and, after the University refused “several times” to admit him to the combined program, he enrolled elsewhere to “pursue licensure as a psychologist.” The University moved for summary judgment based on state sovereign immunity. The district court ruled that the University was immune from liability for Williams’s claim of breach of contract and that Williams failed timely to notify the University of his claims in tort as required for a waiver of state sovereign immunity. We affirm. We review de novo a summary judgment based on sovereign immunity and view the evidence in the light most favorable to the nonmovant. Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992). Summary judgment should be entered when 2  Case: 14-10806 Date Filed: 06/26/2015 Page: 3 of 5 the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The district court did not err when it entered summary judgment in favor of the University and against Williams’s claim of breach of contract. Williams alleged that the University breached its contract to provide an “opportunity to pursue a doctoral degree in Sports Psychology with the respecialization in Counseling and School Psychology” and to “be accepted to the Combined PhD program.” The University, as part of the public university system of Florida, enjoys state sovereign immunity from contractual liability unless the action is based on an “express, written contract[] into which the state agency has statutory authority to enter,” Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 6 (Fla. 1984). See Cnty. of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1051 (Fla. 1997) (concluding that sovereign immunity barred recovery for work not mentioned in a written contract); S. Roadbuilders, Inc. v. Lee Cnty., 495 So. 2d 189, 190 (Fla. Dist. Ct. App. 1986) (same). Williams failed to produce an “express, written contract” between himself and the University. Williams argues that his “Program of Study” constituted a contract, but the document does not require the University to admit Williams to a “respecialization” program or a combined doctorate program. Williams’s claim for breach of contract is barred by the doctrine of sovereign immunity. 3  Case: 14-10806 Date Filed: 06/26/2015 Page: 4 of 5 The district court also did not err when it entered summary judgment in favor of the University and against Williams’s claims in tort. The State of Florida, “for itself and for its agencies or subdivisions, . . . waives sovereign immunity for liability for [certain] torts,” Fla. Stat. § 768.28(1), but “[a]n action may not be instituted on a claim . . . unless the claimant presents the claim in writing to the appropriate agency, and . . . to the Department of Financial Services within 3 years after such claim accrues,” id. § 768.28(6)(a). Compliance with the notice requirement is a “condition[] precedent to maintaining an action.” Id. § 768.28(6)(b); see Pub. Health Trust of Miami-Dade Cnty. v. Acanda, 71 So. 3d 782, 784–85 (Fla. 2011). Williams’s claims about misleading advertising, deceptive trade practices, and negligence concerned his inability to respecialize and the refusal of the University to admit him to the combined psychology program. Those claims accrued on November 2, 2009, when Williams received a letter stating that the University had denied his request for reconsideration for admission to the combined program and that the decision was “final and there shall be no further appeals.” Williams submitted an affidavit stating that he provided notice to the University in 2013, several months after the statutory deadline expired. Williams argues that his claims accrued in December 2010 when the University dismissed him from the sports psychology doctoral program, but that event is unrelated to his ability to respecialize or obtain a combined degree from 4  Case: 14-10806 Date Filed: 06/26/2015 Page: 5 of 5 the University. Williams failed to comply with the condition prerequisite to give timely notice to obtain a waiver by the State of its sovereign immunity from damages allegedly attributable to officials of the University. We AFFIRM the summary judgment in favor of the University. 5 

Order Michigan Supreme Court Lansing, Michigan December 26, 2012 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Marilyn Kelly 145905 Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 145905 COA: 304973 Wayne CC: 10-010429-FC KEVIN MAURICE GREGORY, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the August 21, 2012 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 26, 2012 _________________________________________ s1217 Clerk 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 03-30171 Plaintiff-Appellee, v.  D.C. No. CR-02-00089-SEH VIOLET BRUCE, OPINION Defendant-Appellant.  Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted March 4, 2004—Seattle, Washington Filed January 13, 2005 Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee; Dissent by Judge Rymer 513 516 UNITED STATES v. BRUCE COUNSEL John Rhodes and Anthony R. Gallagher, Federal Public Defender’s Office, Missoula, Montana, Michael Donahoe, Federal Defenders of Montana, Helena, Montana, for the defendant-appellant. Marcia Hurd, William W. Mercer and Klaus P. Richter, United States Attorney’s Office, Billings, Montana, for the plaintiff-appellee. OPINION BYBEE, Circuit Judge: Violet Bruce appeals her conviction for simple assault on an Indian child less than 16 years of age on a reservation in violation of 18 U.S.C. §§ 1152 and 113(a)(5). In her sole claim of error, Bruce asserts that the case against her was brought under the wrong statute. The government charged  UNITED STATES v. BRUCE 517 Bruce under § 1152, which covers offenses committed in Indian country, but excepts crimes committed by an Indian against another Indian. Bruce contends that she is an Indian, and the government should have charged her under 18 U.S.C. § 1153, which covers certain offenses committed by an Indian in Indian country. The district court denied her motion to dis- miss on this ground. We conclude that Bruce presented suffi- cient evidence that, if believed, established her Indian status. We further hold that the court’s error was not harmless. We therefore reverse. FACTS AND PROCEEDINGS In March 2002, Bruce, a resident of the Fort Peck Indian Reservation in northeast Montana, choked her five-year-old son, Cylus, and in so doing, bruised his face and neck. On September 23, 2002, a grand jury indicted Bruce for assault on a child less than 16 years of age on an Indian reservation, in violation of 18 U.S.C. §§ 1152 and 113(a)(5). The indict- ment stated, “That on or about March 25, 2002, at or near Wolf Point, in the State and District of Montana, and within the exterior boundaries of the Fort Peck Indian Reservation, being Indian country, the defendant, VIOLET BRUCE, did assault another, an Indian person who had not attained the age of 16 years . . . , all in violation of 18 U.S.C. §§ 1152 and 113(a)(5).” The indictment, thus, alleged that the victim was an Indian person, but said nothing about Bruce’s status. Bruce admitted that she choked Cylus but, on her attorney’s advice, she pled not guilty. During the district court proceed- ings, Bruce repeatedly argued that she was Indian. Before trial, she moved to dismiss the indictment on the ground that it should have been brought under 18 U.S.C. § 1153, which applies to certain crimes by Indians, rather than § 1152, which excepts crimes by Indians against Indians. The court denied the motion. At trial, Bruce’s only defense was her claim of Indian sta- tus. At the close of the government’s case, Bruce again raised 518 UNITED STATES v. BRUCE the argument in a motion for judgment of acquittal under Fed. R. Crim. P. 29, which the district court also denied. At the close of all of the evidence, the court considered her Indian status defense at length. Bruce introduced evidence that she is one-eighth Chippewa; that her mother is an enrolled mem- ber of the Turtle Mountain Tribe of Oklahoma; that she was born on an Indian Reservation; that she currently lives on the Fort Peck Indian Reservation; that two of her children are enrolled members of an Indian tribe; that she has been treated by Poplar Indian Health Services and the Spotted Bull Treat- ment Center; that whenever she was arrested it “had to have been [by] a tribal person”; and that she has been arrested by tribal authorities “all her life.” The district court concluded that, under § 1152, Bruce’s Indian status was an affirmative defense on which Bruce had the burden of production and that she had not borne this burden. Accordingly, the court declined to submit the issue to the jury. A jury convicted Bruce of violating § 1152 and the district court sentenced her to three years’ probation. Following her conviction, Bruce unsuccessfully moved to arrest the judg- ment under Fed. R. Crim. P. 34 on the basis of her claimed Indian status. In support of her motion, Bruce introduced additional evidence showing that in 1991 she was treated as an Indian child by the Fort Peck Tribal Court, exercising jurisdiction pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901 (2004). After her motion was denied, Bruce took this appeal. STANDARD OF REVIEW We review de novo the district court’s determination of Indian status under 18 U.S.C. § 1152 because it is a mixed question of law and fact. United States v. Eric B., 86 F.3d 869, 877 (9th Cir. 1996); United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (reviewing Indian status de novo). Mixed questions of law and fact are those in which “the historical facts are admitted or established, the rule of law is undisputed,  UNITED STATES v. BRUCE 519 and the issue is whether the facts satisfy the statutory stan- dard.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). DISCUSSION A. Federal Criminal Jurisdiction in Indian Country The exercise of criminal jurisdiction over Indians and Indian country is a “complex patchwork of federal, state, and tribal law,” which is better explained by history than by logic. Duro v. Reina, 495 U.S. 676, 680 n.1 (1990). The historical background of federal criminal jurisdiction in Indian country can be traced to colonial times, when Indian territory was entirely the province of the tribes and the tribes were under- stood to possess jurisdiction over all persons and subjects present on Indian lands. See WILLIAM C. CANBY, JR., AMERI- CAN INDIAN LAW IN A NUTSHELL 133 (2004). This policy con- tinued until shortly after the ratification of the Constitution, when Congress extended federal jurisdiction to non-Indians committing crimes against Indians in Indian territory. 1 Stat. 138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802). Congress further extended criminal jurisdiction in 1817 to cover crimes committed by Indians and non-Indians in Indian Country; notably, Congress excepted intra-Indian offenses, or crimes in which both the victim and perpetrator were Indian. 3 Stat. 383 (1817). The 1817 Act served as the predecessor to 18 U.S.C. § 1152, which is sometimes called the Indian General Crimes Act (“IGCA”). Section 1152 makes federal enclave criminal law—a concrete body of law governing areas within the sole and exclusive jurisdiction of the United States—generally applicable to crimes committed in “Indian country.” See 18 U.S.C. § 1151 (defining “Indian country”). Section 1152 pro- vides in full: Except as otherwise expressly provided by law, the general laws of the United States as to the pun- 520 UNITED STATES v. BRUCE ishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses commit- ted by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. In its original form, the IGCA ensured that federal criminal laws reached non-Indians committing crimes in Indian coun- try, while at the same time preserving the right of the tribes to punish their own. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 201 (1978). The IGCA excepts from federal criminal jurisdiction three categories of offenses that might otherwise be thought to be within the jurisdiction of the tribes: “offenses committed by one Indian against the person or property of another Indian,” offenses committed by an Indian who has been punished by the tribe, and cases secured by treaty to the exclusive jurisdic- tion of a tribe. 18 U.S.C. § 1152. Although the “plain lan- guage” of § 1152 covers crimes in Indian country committed by non-Indians against non-Indians, Mull v. United States, 402 F.2d 571, 573 (9th Cir. 1968), the Supreme Court has held that states retain exclusive jurisdiction over general crimes committed by non-Indians against non-Indians in Indian country. Organized Vill. of Kake v. Egan, 369 U.S. 60, 68 (1962); New York ex rel. Ray v. Martin, 326 U.S. 496 (1946); Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881). Thus, under the IGCA, the criminal laws of the United States apply to offenses committed in Indian country by non-Indians against  UNITED STATES v. BRUCE 521 Indians and by Indians against non-Indians; “[section] 1152 establishes federal jurisdiction over interracial crimes only.” United States v. Prentiss, 256 F.3d 971, 974 (10th Cir. 2001) (per curiam) (en banc). The exception in the IGCA preserves the right of tribal courts to try offenses committed in Indian country by Indians against Indians, while recognizing that Indian tribes generally do not have jurisdiction over non-Indians. See Oliphant, 435 U.S. at 195-206 & n.8; see also 25 U.S.C. § 1302(2) (recog- nizing “the inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians”). The Supreme Court has interpreted the exception as manifesting a broad congres- sional respect for tribal sovereignty in matters affecting only Indians. See United States v. Quiver, 241 U.S. 602 (1916) (broadly interpreting the intra-Indian offense exception to extend to adultery involving an Indian participant). Following the Supreme Court’s decision in Ex Parte Crow Dog, 109 U.S. 556 (1883), which held that neither federal nor tribal courts had jurisdiction to try an Indian for the murder of another Indian on a reservation, Congress revisited this pol- icy. Congressional displeasure with the Crow Dog decision led to the passage of a second statute, 18 U.S.C. § 1153, designed to establish as federal crimes, fourteen named offenses committed by Indians in Indian country. See United States v. Broncheau, 597 F.2d 1260, 1265 (9th Cir. 1979), cert. denied, 444 U.S. 859 (1979). As relevant for our pur- poses, § 1153 provides: Any Indian who commits against the person or prop- erty of another Indian or other person any of the fol- lowing offenses, namely . . . an assault against an individual who has not attained the age of 16 years . . . shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. 522 UNITED STATES v. BRUCE 18 U.S.C. § 1153(a) (2004). Enacted in 1885, the Indian Major Crimes Act (“IMCA”) guaranteed that Indians commit- ting major crimes against other Indians would be treated with the same rigor as non-Indian offenders. See Oliphant, 435 U.S. at 203 & n.4. The IMCA, the Court has recognized, is a “ ‘carefully limited intrusion of federal power into the other- wise exclusive jurisdiction of the Indian tribes to punish Indi- ans for crimes committed on Indian land.’ ” United States v. Antelope, 430 U.S. 641, 642-43 n.1 (1977) (quoting Keeble v. United States, 412 U.S. 200, 209 (1973)).1 Assault against an individual who has not attained the age of 16 years is one of the enumerated crimes that the IMCA covers. We have recognized that the “limited intrusion” on Indian sovereignty in the IMCA is itself confined to federal enclave law. In United States v. Begay, 42 F.3d 486, 498 (9th Cir. 1994), we rejected the claim “that Indians may not be charged for any criminal conduct beyond those crimes enumerated in [the Indian Major Crimes Act].” We concluded that the IMCA only concerns “the application of federal enclave law to Indi- ans and has no bearing on federal laws of nationwide applica- bility that make actions criminal wherever committed.” Id. (citing United States v. Top Sky, 547 F.2d 483, 484 (9th Cir. 1976)). Thus, we held that federal criminal laws of general, nationwide applicability—such as the federal conspiracy stat- ute, 18 U.S.C. § 371—apply to Indians unless a treaty specifi- cally exempts them. Id. at 499 (citing United States v. Burns, 529 F.2d 114, 117 (9th Cir. 1975)). 1 The scope of the statute was expanded significantly by the Supreme Court’s decision in Keeble, which held that an Indian charged pursuant to the IMCA was entitled to request and receive instructions as to lesser and included offenses if the evidence would permit the jury rationally to find him guilty of the lesser offense and acquit him of the greater. Id. at 208- 09; see also United States v. John, 587 F.2d 683 (5th Cir. 1979) (uphold- ing conviction on lesser and included offense); accord Felicia v. United States, 495 F.2d 353 (8th Cir. 1974).  UNITED STATES v. BRUCE 523 Despite these intrusions, tribal courts retain jurisdiction to punish certain crimes occurring in Indian country. However, under the Indian Civil Rights Act, 25 U.S.C. § 1301 et al. (“ICRA”), tribal courts may not impose punishment greater than a year’s imprisonment or a $5,000 fine, or both. Id. § 1302(7). Tribal courts may generally punish offenses com- mitted by members of the tribe and may prosecute misdemea- nors against Indians who are not members of that tribe. 25 U.S.C. § 1301(2); see also United States v. Lara, 124 S.Ct. 1628, 1636, 1639 (2004) (rejecting a challenge to the ICRA Amendment and upholding the authority of Congress to “per- mit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians,” but declining to reach the question of “whether the Constitution’s Due Process or Equal Protection Clauses prohibit tribes from prosecuting a non- member citizen of the United States.”). Because the tribe’s jurisdiction stems from its inherent authority, rather than fed- eral delegation, successive prosecution by a tribe and the fed- eral government does not run afoul of the Double Jeopardy Clause, as the two are dual sovereigns. Id. at 1639. Nonethe- less, Congress has statutorily forbidden a successive prosecu- tion in federal court brought pursuant to § 1152 after the tribe has imposed punishment for the offense. 18 U.S.C. § 1152. In addition to federal and tribal jurisdiction, there are stat- utes in which Congress has “unambiguously confer[red] juris- diction on the State over major offenses committed by or against Indians on Indian reservations.” Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (construing The Kansas Act, 18 U.S.C. § 3243). Aside from statutory grants, the effect of the Supreme Court’s decision in McBratney, 104 U.S. at 624, is to recognize state jurisdiction for crimes committed by non- Indians against non-Indians on Indian territory. We can summarize these rules concerning criminal juris- diction in Indian country as follows: 1. Crimes in which both the perpetrator and victim are Indian are subject to (a) federal jurisdiction under 524 UNITED STATES v. BRUCE § 1153 if the crime charged is one of the fourteen enumerated crimes (and conviction may extend to lesser included offenses), or if the federal statute is one of general applicability; (b) state jurisdiction where authorized by Congress; and (c) tribal juris- diction, perhaps running concurrent with either fed- eral or state jurisdiction, although punishment is limited to no more than one year and $5,000. 2. Crimes in which the perpetrator, but not the vic- tim, is Indian are subject to (a) federal jurisdiction under § 1152 (except where the tribe has already imposed punishment or the tribe has exclusive juris- diction through treaty), or § 1153 (if the crime is one of the fourteen enumerated crimes, with conviction perhaps extending to lesser included offenses), and pursuant to federal criminal laws of general applica- bility; (b) state jurisdiction where authorized by Congress; and (c) tribal jurisdiction, perhaps running concurrently with either federal or state jurisdiction, although punishment is limited to no more than one year and $5,000.2 3. Crimes in which the victim, but not the perpetra- tor, is Indian are subject to (a) federal jurisdiction under § 1152, as well as pursuant to federal criminal laws of general applicability, and (b) state jurisdic- tion where authorized by Congress. 4. Crimes in which both the perpetrator and victim 2 Offenses committed by Indians against multiple victims, including both Indians and others, would fall subject to competing, and perhaps con- current, claims of federal, state and tribal jurisdiction, although presum- ably a federal court could not impose punishment for an offense covered by § 1152 after a tribal court had done so.  UNITED STATES v. BRUCE 525 are non-Indian are subject to state jurisdiction or fed- eral criminal laws of general applicability.3 See United States v. Johnson, 637 F.2d 1224, 1231 n.11 (9th Cir. 1980); JULIE WREND & CLAY SMITH, AMERICAN INDIAN LAW DESKBOOK 99-100 (1998). We note that the complex scheme established by Congress creates obvious gaps in federal jurisdiction to punish crimes in Indian country. For example, a non-Indian may be charged under § 1152 when the victim is an Indian; if his victim is a non-Indian, he generally must be charged under state law. An Indian may be charged with a host of federal crimes under § 1152 if his victim is a non-Indian, but generally only with major crimes under § 1153 if his victim is an Indian. See Antelope, 430 U.S. at 646-47 (rejecting an Equal Protection challenge to § 1153). The one point that emerges with clarity from this otherwise bewildering maze of rules is that the question of who is an Indian bears significant legal consequences. Importantly, from a defendant’s perspective, unless state jurisdiction is specifi- cally authorized by Congress, or he is charged pursuant to a generally applicable federal criminal statute, an Indian person charged with committing a crime against another Indian per- son that is not listed in § 1153 is subject only to the jurisdic- tion of the tribe; the offender may only be punished for up to one year or fined $5,000, or both. 25 U.S.C. § 1302(7). Once an Indian person is punished by a tribe for an offense covered by § 1152, federal courts may no longer impose any punish- ment for that offense. Thus, Indian status carries certain bene- fits in the context of federal criminal adjudications. Indian status also bears significance independent of crimi- 3 Offenses committed by non-Indians against multiple victims, including both Indians and others, would fall subject to competing, and perhaps con- current, claims of federal and state court jurisdiction. 526 UNITED STATES v. BRUCE nal jurisdiction. The host of federal statutes and service pro- grams designed to benefit Indians are rife with status-based classifications used to designate the special position of a for- merly sovereign people. See Antelope, 430 U.S. at 646; FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 19 (1982 ed.). These include, to name a few, the Indian Civil Rights Act, 25 U.S.C. § 1301; the Indian Health Care Improvement Act, id. § 1601; the Indian Education Act, id. § 1001; the Indian Alco- hol Substance Abuse Act, id. § 2403(3); and the Indian Child Welfare Act, id. § 1901. See Morton v. Mancari, 417 U.S. 535, 552 (1974) (“Literally every piece of legislation dealing with Indian tribes and reservations . . . single[s] out for special treatment a constituency of tribal Indians living on or near reservations.”). Accordingly, some commentators have even gone so far as to characterize Indian status as a “property interest.” See GAIL K. SHEFFIELD, THE ARBITRARY INDIAN: THE INDIAN ARTS AND CRAFTS ACT OF 1990, at 138 (1997). Although the requirements may vary depending upon the pur- pose for which Indian status is claimed, courts cannot be ignorant of the collateral consequences their rulings might have in future proceedings. It is against the backdrop of these formal and functional considerations that we must discern the precise relationship between §§ 1152 and 1153—the two bifurcated statutory remnants of a complicated jurisdictional history. B. Indian Status as a Defense to § 1152 Bruce contends that, because she and her victim are both Indians, her indictment should have been brought pursuant to § 1153, rather than § 1152. In order to resolve this contention, we must first determine what effect one’s claimed Indian sta- tus has in a prosecution brought pursuant to § 1152. [1] In United States v. Hester, 719 F.2d 1041 (9th Cir. 1983), we held that “the Government need not allege the non- Indian status of the defendant in an indictment under section 1152, nor does it have the burden of going forward on that  UNITED STATES v. BRUCE 527 issue.” Id. at 1043. Rather, “[o]nce the defendant properly raises the issue of his Indian status, then the ultimate burden of proof remains . . . upon the Government.” Id. (citing United States v. Guess, 629 F.2d 573, 577 n.4 (9th Cir. 1980)). Sec- tion 1152 thus requires that Bruce not only raise her Indian status but also that she carry the burden of production for that issue; Indian status, after Hester, is in the nature of an affir- mative defense. To satisfy her burden, Bruce must come for- ward with enough evidence of her Indian status to permit a fact-finder to decide the issue in her favor. No court has yet specified the quantum of evidence that must be offered in order to satisfy this production burden. Nonetheless, once she meets this burden, the government retains the ultimate burden of persuasion—or “the obligation to persuade the trier of fact of the truth of [the] proposition,” Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 268 (1994)—that the exception she claims is inapplicable. See Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting) (noting that “when an affirmative defense does negate an element of the crime . . . the state [must] prove the nonexistence of the defense beyond a rea- sonable doubt”) (emphasis in original) (citing In re Winship, 397 U.S. 358 (1970)); Patterson v. New York, 432 U.S. 197, 207-09 & nn. 10-11 (1977) (noting that “the trend over the years appears to have been to require the prosecution to dis- prove affirmative defenses beyond a reasonable doubt”); Guess, 629 F.2d at 577 n.4 (explaining the general rule that “once a criminal defendant satisfies his burden of production with respect to an affirmative defense, the prosecution must prove the inapplicability of this defense beyond a reasonable doubt”). Bruce argues that the district court erred by refusing to sub- mit the issue of her Indian status to the jury because she pre- sented enough evidence to meet her burden of production. The government responds that Bruce did not meet her burden, or alternately, that, assuming Bruce is Indian, the prosecution 528 UNITED STATES v. BRUCE under § 1152 was harmless because her conduct was equally illegal under § 1153. C. Determining Who Is an “Indian” [2] The term “Indian” is not statutorily defined, but courts have “judicially explicated” its meaning. Broncheau, 597 F.2d at 1263. The generally accepted test for Indian status consid- ers “ ‘(1) the degree of Indian blood; and (2) tribal or govern- ment recognition as an Indian.’ ” United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (quoting Broncheau, 597 F.2d at 1263); see also United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846) (interpreting the meaning of “Indian” under the Trade and Intercourse Act of 1834, the precursor of the Major Crimes Act, not to apply to a white man who had been adopted into the Cherokee tribe).4 A person claiming Indian status must satisfy both prongs. The first prong requires ancestry living in America before the Europeans arrived, but this fact is obviously rarely provable as such. See CANBY, supra, at 9. Because the general requirement is only of “some” blood, evidence of a parent, grandparent, or great- grandparent who is clearly identified as an Indian is generally sufficient to satisfy this prong. Id.; see also Vezina v. United States, 245 F. 411 (8th Cir. 1917) (women 1/4 to 3/8 Chip- pewa Indian held to be Indian); Sully v. United States, 195 F. 113 (8th Cir. 1912) (1/8 Indian blood held sufficient to be Indian); St. Cloud v. United States, 702 F. Supp. 1456, 1460 (D.S.D. 1988) (15/32 of Yankton Sioux blood sufficient to satisfy the first requirement of having a degree of Indian blood); Goforth v. State, 644 P.2d 114, 116 (Okla. Crim. App. 1982) (requirement of Indian blood satisfied by testimony that 4 The Indian Civil Rights Act does not define “Indian” but begs the question by defining an Indian as “any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, [United States Code] if that person were to commit an offense listed in that section in Indian country to which that section applies.” 25 U.S.C. § 1301(4) (2004).  UNITED STATES v. BRUCE 529 person was slightly less than one-quarter Cherokee Indian); Makah Indian Tribe v. Clallam County, 440 P.2d 442 (Wash. 1968) (1/4 Makah blood sufficient to satisfy Indian blood requirement). [3] The second prong of the test—tribal or federal govern- ment recognition as an Indian—“probes whether the Native American has a sufficient non-racial link to a formerly sover- eign people.” St. Cloud, 702 F. Supp. at 1461. When analyz- ing this prong, courts have considered, in declining order of importance, evidence of the following: “1) tribal enrollment; 2) government recognition formally and informally through receipt of assistance reserved only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as an Indian through residence on a reservation and participation in Indian social life.” United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995) (citing St. Cloud, 702 F. Supp. at 1461). Bruce presented evidence to establish both her Indian blood and recognition. With respect to Indian blood, she offered evi- dence that she is one-eighth Chippewa Indian and introduced a certificate of Indian blood confirming this fact. She also offered evidence that her mother is an enrolled member of the Turtle Mountain Tribe of Oklahoma, and that two of Bruce’s children are enrolled members of an Indian tribe.5 With respect to recognition, she presented evidence that she was born on an Indian reservation and currently lives on one; that she participates in Indian religious ceremonies; that she has, on several occasions, been treated at Indian hospitals; and that she was “arrested tribal” all her life. The district court, applying the two-part test for determin- ing Indian status, concluded that Bruce had provided evidence to establish the first prong, her Indian blood. Her status, there- fore, turned on whether a tribe or the federal government had 5 The presentence report, perhaps accepting her vouching uncritically, listed her race as “American Indian.” 530 UNITED STATES v. BRUCE recognized her as an Indian. The district court cited the fact that she was not enrolled in a tribe and failed to present evi- dence that the federal government had recognized her to be an Indian. On the basis of this evidence, it found that Bruce had not met her burden on this prong and concluded that she had not satisfied her burden of production as to the affirmative defense. [4] We disagree. Tribal enrollment is “the common eviden- tiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.” Broncheau, 597 F.2d at 1263; accord Antelope, 430 U.S. at 646 n.7 (“[E]nrollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction . . . .”) (citations omitted); Keys, 103 F.3d at 761 (“While tribal enrollment is one means of establishing status as an ‘Indian’ under 18 U.S.C. § 1152, it is not the sole means of proving such sta- tus.”) (citation omitted); Ex parte Pero, 99 F.2d 28, 31 (7th Cir. 1938) (“The lack of enrollment . . . is not determinative of status. . . . [T]he refusal of the Department of Interior to enroll a certain Indian as a member of a certain tribe is not necessarily an administrative determination that the person is not an Indian.”); St. Cloud, 702 F. Supp. at 1461 (“[A] person may still be an Indian though not enrolled with a recognized tribe.”). Nor have we required evidence of federal recogni- tion. Rather, we have emphasized that there must be some evidence of government or tribal recognition. See Keys, 103 F.3d at 761 (concluding that where child was shown to have Indian blood and was treated by tribe as a member of the tribe, district court properly found that she was an Indian); accord Ex parte Pero, 99 F.2d at 31; Lewis v. State, 55 P.3d 875, 878 (Idaho Ct. App. 2001). This stems from the recogni- tion that one of an Indian tribe’s most basic powers is the authority to determine questions of its own membership. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978); United States v. Wheeler, 435 U.S. 313, 322 n.18 (1978); Cherokee Intermarriage Cases, 203 U.S. 76 (1906); Roff v. Burney, 168 U.S. 218 (1897).  UNITED STATES v. BRUCE 531 Motivated in part by equal protection concerns, the dissent proposes a new test for determining Indian status; one that would conflate our two-pronged Rogers inquiry and multi- faceted “recognition” guidelines into a single question: whether the individual is enrolled or eligible for enrollment in a federally recognized tribe. From a purely conceptual stand- point, we agree that eligibility for enrollment provides a sim- pler framework within which we might judge Indian status as a political affiliation with a formerly sovereign people. None- theless, it is not the test that we have adopted, and until either Congress acts or the Supreme Court or an en banc panel of our court revises the “recognition” prong of the Rogers test, we are bound by our prior jurisprudence. In particular, we are bound by the body of case law which holds that enrollment, and, indeed, even eligibility therefor, is not dispositive of Indian status. Broncheau, 597 F.2d at 1263; Keys, 103 F.3d at 761. In sum, we are not permitted to hold that these cases do not mean what they say.6 6 We note, in addition, that unenrolled Indians are eligible for a wide range of federal benefits directed to persons recognized by the Secretary of Interior as Indians without statutory reference to enrollment. For exam- ple, The Native American Programs Act of 1974, creating the Administra- tion for Native Americans, operates under regulations with a very broad definition of Indian: “any individual who claims to be an Indian and who is regarded as such by the Indian community in which he or she lives or by the Indian community of which he or she claims to be a part.” 45 C.F.R. § 1336.1 (1989); see also Indian Health Care Improvement Act of 1976, 25 U.S.C. § 1603(c) (member of a tribe including those terminated and those recognized in the future; descendent in first or second degree of a member; and anyone “determined to be an Indian under regulations pro- mulgated by the Secretary”); Indian Arts and Crafts Act of 1990, 18 U.S.C. § 1159(c)(1) (1994), 25 U.S.C. § 305e(d)(2) (1994) (defining “In- dian” as “any individual who is a member of an Indian tribe; or for the purposes of this section is certified as an Indian artisan by an Indian tribe”) (emphasis added); ROBERT N. CLINTON, ET AL., AMERICAN INDIAN LAW: CASES AND MATERIALS 84 (3d ed. 1991) (“Beginning with the Non- Intercourse Acts of the late 1700s and through enactment of the 1934 Indian Reorganization Act, federal law has treated ‘Indians’ as a class without regard to proof of tribal enrollment”). 532 UNITED STATES v. BRUCE Consequently, we find United States v. Keys, 103 F.3d 758, particularly instructive. Keys, a non-Indian, was charged under § 1152 with assault of his daughter, who possessed one- fourth Indian blood. Keys argued that the government had failed to prove that his daughter, who was not enrolled, was an Indian (presumably on the theory that after McBratney, 104 U.S. at 624, assault committed by a non-Indian against a non-Indian victim could be charged under state law, but not under § 1152). The magistrate found that the tribal court had exercised jurisdiction over Keys’s daughter, and that she had been provided medical services by an Indian hospital. The magistrate concluded “beyond a reasonable doubt” that, under such circumstances, she was a “de facto member” of the tribe. Id. at 760. Without considering whether she was eligible for enrollment, we concluded that her Indian status was “amply demonstrated.” Id. at 761.7 [5] Because of the procedural posture of the case with which we are presented, we are not required to decide whether Bruce conclusively established that she was an Indian. Rather, we must merely determine whether she brought forward enough evidence of tribal recognition to per- mit her defense to be heard by the jury. We conclude that she did. [6] Bruce produced evidence that she had participated in sacred tribal rituals, including at least one sweat lodge ritual; 7 See also United States v. Dodge, 538 F.2d 770, 787 (8th Cir. 1976) (concluding that defendant, Manuel M. Alvarado, was an Indian for pur- poses of § 1153, based merely on evidence that he possessed one-fourth Yurok Indian blood and, at one time, he filed an application to be recog- nized as a member of the Yurok Tribe on the California State Judgment Rolls; the court stated: Alvarado possessed “Indian blood and [ ] held [himself] out to be [an] Indian[ ]”); St. Cloud, 702 F. Supp. at 1460 (con- cluding that because the defendant resided on a reservation, benefitted from tribal programs, and was socially recognized as an Indian, he met the Rogers test for Indian status, notwithstanding the fact that he was no lon- ger enrolled or eligible for enrollment in any federally recognized tribe).  UNITED STATES v. BRUCE 533 that she was born on an Indian Reservation and continues to reside on one; that two of her children are enrolled members of an Indian tribe; and that she has been treated by Poplar Indian Health Services and the Spotted Bull Treatment Cen- ter. More significantly, her mother testified that whenever she was arrested it “had to have been [by] a tribal person” and that she has been arrested by tribal authorities “all her life.” The precise testimony was as follows: Q. When Violet was young, did she have issues or problems with the tribal authorities? A. Not really. But she was arrested tribal all her life. Q. Well, that’s what I want to talk about. What does that mean that she was “arrested tribal”? A. She got out of hand and someone had to come and get her, arrest her. And it had to have been a tribal person. Q. And that would be drinking behavior and such? A. Yeah. Fighting with her sister. Q. Now, the tribal authorities would step in and take charge of the situation? A. Yes. Q. And did that involve dealing with the tribal authorities? A. Yes. Q. And was Violet treated as an Indian person during those times? 534 UNITED STATES v. BRUCE A. Yes. Q. By the tribe? A. Yes.8 This testimony is significant because, as we have discussed, the tribe has no jurisdiction to punish anyone but an Indian. 25 U.S.C. § 1302(7); Oliphant, 435 U.S. at 191. [7] In sum, Bruce brought forward testimony to establish that she was “arrested tribal” her entire life and that whenever she had a brush with the law it had to be with tribal authori- ties. Although not introduced as artfully by her counsel as it could have been, Bruce has put the question of tribal criminal jurisdiction on the table, and, in so doing, raised strong evi- dence of tribal recognition. The assumption and exercise of a tribe’s criminal jurisdiction, while not conclusive evidence of Indian status, significantly bolsters the argument that Bruce met her burden of producing sufficient evidence upon which a jury might rationally conclude that she was an Indian. We caution that Bruce was only required to meet a produc- tion burden. When combined with the testimony as to her one-eighth Chippewa blood line, the cumulative effect of the 8 While we decline to rest our decision on information contained in the presentence investigation report, we note that the report corroborates her mother’s testimony by listing two adult convictions in the Fort Peck Tribal Court for disorderly conduct. Additionally, a reply brief filed in support of her Rule 34 Motion to Arrest the Judgment charged that the government “failed [its obligations under Brady v. Maryland] to disclose during the discovery process that the defendant had been adjudicated in the Fort Peck Tribal Court as an Indian.” 373 U.S. 83 (1963). Indeed, the record reflects that the government’s case agent and BIA investigator was the Tribal Court judge who adjudicated Bruce as an Indian. This very same investi- gator sat with counsel for the government during the entire trial, quietly watching Bruce attempt to bring forward evidence of her tribal recogni- tion, without disclosing that the defendant had been twice treated as an Indian in an Indian Tribal Court.  UNITED STATES v. BRUCE 535 additional evidence of tribal recognition does at least that. To decline to find sufficient evidence of Indian status on these facts is to shift the burden to the defense. Bruce’s burden is one of mere production. [8] Accordingly, we hold that Bruce brought forward suffi- cient evidence that, if believed, would permit a jury rationally to conclude that Bruce was Indian.9 D. Harmless Error [9] Having determined that the court erred in declining to submit the issue of Bruce’s Indian status to the jury, we must now determine whether that error was harmless. See FED. R. CRIM. P. 52(a) (“Any error . . . that does not affect substantial rights must be disregarded.”). The government argues that it makes no difference whether a jury could have concluded that Bruce was Indian because that would only mean that her con- duct violated § 1153, rather than § 1152. Effectively, the gov- ernment argues that because her victim was an Indian, her crime must be chargeable under either § 1152 or § 1153, and Bruce’s Indian status is therefore irrelevant. Although the government’s argument finds some support in the cases exam- ining this issue, we find these cases distinguishable and the argument unpersuasive. In Henry v. United States, 432 F.2d 114 (9th Cir. 1970), modified, 434 F.2d 1283 (9th Cir. 1971), we concluded that when an indictment charged a violation of § 1152 but the gov- ernment actually prosecuted the case under § 1153, the error was harmless. In Henry, the indictment listed § 1152 but 9 Bruce also presented evidence in a post-trial motion for arrest of judg- ment brought pursuant to FED. R. CRIM. P. 34 that she was adjudicated as an Indian child by a tribal court exercising jurisdiction pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901 (2004). Because we conclude that the evidence Bruce introduced at trial was sufficient to meet her bur- den of production, we need not decide whether the additional evidence that Bruce presented in her post-trial motions merits consideration. 536 UNITED STATES v. BRUCE alleged that the defendant was Indian. See Henry, 432 F.2d at 117-18. The court instructed the jury that the defendant’s Indian status was an element of the offense, and the jury found that the government had proven that the defendant was Indian beyond a reasonable doubt. See id. Although the indictment read § 1152, the defendant was in all other respects prosecuted under § 1153, and not § 1152. Thus, Henry dealt with little more than a scrivener’s error. In United States v. Heath, 509 F.2d 16 (9th Cir. 1974), we concluded that an indictment under § 1153, alleging that both the victim and the defendant were Indian, was sufficient to support a conviction under § 1152. The facts in Heath were quite unusual. Heath had initially stipulated that she was an Indian (which would have subjected her to § 1153); however, on appeal she argued that, by act of Congress, the Klamath tribe was dissolved, and she was no longer entitled to claim Indian status at the time of her offense. See 25 U.S.C. § 564q (2004). We agreed that she was no longer an Indian, but held that the error in the indictment was harmless beyond a reason- able doubt. Id. at 20. In reaching this conclusion, considerable emphasis was placed on Heath’s pre-trial stipulation that she was an Indian, id. at 20 n.4, as well as the indictment’s proper reference to the victim’s Indian status, which, given the termi- nation of Heath’s Indian status, was a pre-requisite for her conviction under § 1152. Id. at 20. Moreover, as Heath clearly implies, a denial of Indian status operates as a jurisdictional element under § 1153, which is generally resolved by a judge, rather than an affirmative defense, which must be submitted to the jury after the defendant carries his production burden.10 Importantly, however, in neither Henry nor Heath was the question of Indian status contested at trial. 10 In addition, we note that harmless error analysis may find greater jus- tification when the prosecution has already met the more difficult task of proving guilt beyond a reasonable doubt under § 1153, which requires proof of Indian status, rather than choosing to indict under § 1152, which effectively shifts the burden and cost of producing evidence of Indian sta- tus to the defendant.  UNITED STATES v. BRUCE 537 While other circuits have reached the same conclusion under similar circumstances, only one case involved an objec- tion timely filed. In United States v. White Horse, 316 F.3d 769 (8th Cir. 2003), the Eighth Circuit held that a charge brought under § 1152 rather than § 1153 was not plainly erro- neous because “[b]etween them, the statutes apply to all defendants whatever their race or ethnicity.” Id. at 772-73; see also id. at 772 (noting that objection was not raised at trial). The Tenth Circuit in Prentiss, 256 F.3d 971, concluded that, although the Indian/non-Indian status of the victim and defen- dant are essential elements of § 1152 crimes which must be alleged in the indictment, the failure of the indictment to allege those elements was harmless error. See also id. at 983 (reasoning that the indictment should be construed liberally because the defendant’s challenge was belated). In United States v. John, 587 F.2d 683, 688 (5th Cir. 1979), the Fifth Circuit, without commenting on the timeliness of the motion, concluded that an indictment’s erroneous reliance on § 1153, rather than § 1152, was harmless where the applicable federal enclave law was also referenced such that it was “clear that the indictment asserted jurisdiction under § 1152 as an unstated premise.” Close examination demonstrates that none of these cases involves a timely challenge to a prosecution both instituted and actually conducted pursuant to the wrong statute. Yet, their reasoning is alluring because Bruce—who does not dis- pute that she committed the underlying act of choking her child—is guilty under either § 1152 or § 1153; either she is an Indian or she is not. See White Horse, 316 F.3d at 773. Given all of the evidence offered at trial, the conclusion that the dis- trict court reached the “correct result” despite its error seems almost inescapable. See, e.g., United States v. Rubenstein, 151 F.2d 915, 920 (2d Cir. 1945) (Frank, J., dissenting) (famously characterizing this approach to harmless error review as fol- lows: “If we, sitting on a reviewing court, believe, from merely reading the record, that a defendant is guilty, then we . . . hold that an error . . . even if it may seriously have preju- 538 UNITED STATES v. BRUCE diced the jury against the defendant, is to be regarded as ‘harmless.’ ”). Nonetheless, this logic belies harmless error scrutiny. In reviewing nonconstitutional error on direct appeal under Rule 52(a), we adhere to the analysis first provided by the Supreme Court in Kotteakos v. United States, 328 U.S. 750 (1946); see also Brecht v. Abramson, 507 U.S. 619, 637-38 (1993) (reaf- firming the Kotteakos standard); United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir. 1993) (stating that the standard for nonconstitutional error on direct review is governed by Kot- teakos). In rejecting the premise underlying the “correct result” approach—namely, that a defendant has not been harmed by error if he should have been convicted in any event —Kotteakos reaffirmed a touchstone principle of appellate review: “[I]t is not the appellate court’s function to determine guilt or innocence. Nor is it to speculate upon probable recon- viction and decide according to how the speculation comes out. . . . Those judgments are exclusively for the jury.” Kot- teakos, 328 U.S. at 763 (citations omitted). Instead, Kotteakos offered the following standard: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Id. at 764-65. The Court emphasized that whether “conviction would, or might probably, have resulted in properly con- ducted trial is not the criterion”; rather, we are merely to inquire whether “the error had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 776 (emphasis added).  UNITED STATES v. BRUCE 539 [10] Using this framework, it is clear that our answer to the question of what would have happened without the error should not be based on our own satisfaction with the verdict, or even whether the evidence was sufficient for the jury to have reached the same verdict absent the error. The issue, rather, is what the jury actually would have done without the error. See WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 27.6(b) (2d ed. 1999). It is against this backdrop that we judge the harm caused to Bruce by the trial court’s erroneous decision to prevent Bruce from reaching the jury on the question of her Indian status. [11] We note that Congress has set forth, in §§ 1152 and 1153, two different mechanisms for asserting federal criminal jurisdiction. We have previously concluded that the defen- dant’s Indian status is an essential element of a § 1153 offense which the government must allege in the indictment and prove beyond a reasonable doubt. See United States v. James, 980 F.2d 1314, 1317-19 (9th Cir. 1992) (concluding that where the defendant challenges the indictment before trial, the failure to allege Indian status is fatal to an indictment under § 1153); Broncheau, 597 F.2d at 1262 (implying that the defendant’s Indian status is one of the “necessary elements” to be proven by the government in a § 1153 prosecution). Our conclusion that Bruce met her burden of production under § 1152 implies a finding that the jury could rationally acquit on the basis that the government failed to disprove her claimed Indian status. This does not equate to a finding that the government has proven beyond a reasonable doubt that Bruce is Indian, as required by § 1153. By prosecuting Bruce under § 1152, rather than § 1153, the government did not have to prove that Bruce was an Indian. In so doing, the gov- ernment released itself of its obligation to prove an element of the offense beyond a reasonable doubt. The trial court’s error was, thus, not anymore harmless than a failure to prove that the victim was indeed a child under the age of 16. Absent proof of Bruce’s Indian status, there is no federal crime under § 1153. 540 UNITED STATES v. BRUCE Moreover, were we to find harmless error in this case— where the defendant has objected from the outset that she could not be charged under § 1152—we would have merged the two statutes into one. We would be inviting the govern- ment to charge under either statute, calculating that one of the provisions is likely to apply. This is not without conse- quences. Because § 1152 requires proof of fewer elements, the government would always have an incentive to indict under that section, thereby shifting the costs of producing evi- dence of Indian status to the defendant. [12] Furthermore, as we have discussed, Bruce’s status as an Indian vel non has consequences for any future prosecu- tions, and may also have collateral consequences in future non-criminal hearings where Indian status is at issue. To offer a single example, prior tribal punishment, as noted previously, is an affirmative defense to a prosecution instituted pursuant to § 1152. See 18 U.S.C. § 1152 (stating that “[t]his section shall not extend to . . . any Indian committing any offense in the Indian country who has been punished by the local law of the tribe . . .”). Were we to find harmless error in this case, it is not clear on what basis this affirmative defense could ever be raised in a prosecution brought against an Indian per- son under § 1152, so long as the crime could have been charged under § 1153. In sum, we simply cannot conclude, based upon the record, that the district court’s error did not have a prejudicial effect on the outcome of the proceeding. See Kotteakos, 328 U.S. at 776. We note, however, that this statutory framework creates an obvious and troubling conundrum. It is entirely probable that the government may be simultaneously unable either to prove or disprove a claim of Indian status, effectively foreclosing conviction under either statute. This is especially likely given that the burden of proof required for a defendant to place Indian status at issue in a § 1152 case may be as low as a pre- ponderance, whereas the burden of proof required for the gov- ernment to both disprove Indian status under § 1152 and to  UNITED STATES v. BRUCE 541 prove Indian status under § 1153 is proof beyond a reasonable doubt. We are also aware of the additional expenditure of government resources required to reindict Bruce under a dif- ferent provision and to retry her with the same evidence, but we decline to challenge the government’s charging decision. See Prentiss, 256 F.3d at 986 n.14. Judicial correction of indictments that erroneously misrepresent a defendant’s Indian status presents the possibility of future adverse collat- eral consequences outside the criminal context, and improp- erly shifts the burden of proof otherwise applicable to the parties within the criminal arena. In addition, where indictment is required, judicial correc- tion of this sort serves to usurp the uniquely protective role of the grand jury.11 The Fifth Amendment vests the grand jury with responsibility for determining “whether there is probable cause to believe a crime has been committed and [for] . . . protect[ing] . . . citizens against unfounded criminal prosecu- tions.” United States v. Calandra, 414 U.S. 338, 343 (1974). The grand jury is part of the prosecutorial process, Butz v. Economou, 438 U.S. 478, 510 (1978), and we may not direct its activities. See United States v. Dionisio, 410 U.S. 1, 17 11 While the Fifth Amendment requires presentment or indictment by a grand jury in felony cases, assault on a child under the age of sixteen, the crime for which Bruce is charged, is a Class A misdemeanor punishable by one year’s imprisonment and/or a $100,000 fine, and, thus, does not implicate this concern. We note, however, that of the remaining 13 crimes enumerated in § 1153, at least 10 require indictment by a grand jury unless waiver is obtained. Where indictment is required, the concern for avoiding judicial usurpation by retroactively modifying indictments to conform to the evidence established at trial is directly implicated. In the present case, although Bruce did not have to be indicted by a grand jury, the government nonetheless opted to proceed by grand jury indictment. While the prosecution’s choice to indict—because it was merely optional—does not trigger our concern for safeguarding the protec- tive role of the grand jury, it does demonstrate that the error in the indict- ment was easily correctable. Once her Indian status was established, Bruce could have been recharged by Bill of Information, without undue burden on the prosecution. 542 UNITED STATES v. BRUCE (1973). Accordingly, we may not presume to correct the deci- sions of the grand jury by altering the sections charged under the United States Code, except through our judgments, any more than we can, except through our judgments, correct the prosecutorial decisions of the executive. See United States v. Williams, 504 U.S. 36, 47-50 (1992); United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868). While we are not ignorant of the troublesome nature of our judgment, we remain bound by the language and structure of these two statutes. The federal crimes at issue here “are solely creatures of statute,” Staples v. United States, 511 U.S. 600, 604 (1994). Subject to constitutional limitations not impli- cated here, Congress—not a federal appellate court—is autho- rized to define the elements of a federal criminal offense. Whalen v. United States, 445 U.S. 684, 689 & n.3 (1980). It is likewise up to Congress to correct any awkwardness in the interrelation of the acts it promulgates. [13] Accordingly, the judgment of the district court is REVERSED, and the case is REMANDED to the district court for proceedings consistent with this decision. RYMER, Circuit Judge, dissenting: I part company because until now, no one has ever held that an adult may be an Indian (for purposes of legal status, not for purposes of ethnicity) when she is neither enrolled as a mem- ber of a tribe nor eligible for membership, nor entitled to tribal or government benefits to which only Indians are enti- tled; our law does not require us to allow Bruce to put her legal status as an Indian into play — and thus to shift the bur- den to the government to prove beyond a reasonable doubt that she is not an Indian — in the absence of any evidence that she is at least eligible for tribal membership or recogni-  UNITED STATES v. BRUCE 543 tion; and it makes no sense to do so, for the majority’s con- trary rule allows Bruce, on the same set of facts, to be both an Indian (who cannot be prosecuted under 18 U.S.C. § 1152) and not an Indian (who cannot be prosecuted under 18 U.S.C. § 1153). The facts are undisputed. The evidence shows that: • Bruce’s mother, who is enrolled in the Turtle Mountain Tribe, is Indian • Bruce is one-eighth Chippewa • Bruce currently lives on the reservation of the Fort Peck Tribe • Bruce associates with Indian persons • Bruce has three children, two of whom are Indian and are enrolled in a tribe • Bruce engaged in one sweat lodge (a ceremony that has religious significance) • Bruce was “arrested tribal all her life”1 1 This is the only evidence in the record about Bruce’s involvement with tribal authorities. Bruce (quite properly) does not rely on anything else. While the majority disclaims reliance on two arrests reported in the Pre- sentence Investigation Report, it nevertheless uses these incidents (both for disorderly conduct for which the disposition was “forfeit bail”) and an argument made in a reply brief to bolster its position. Of course, neither was in evidence before the district court when it found that Bruce had not met her burden of production on the affirmative defense of her Indian sta- tus, and should not be considered for any purpose on appeal. Even so, these offenses show nothing pertinent because, for all we know, they are not even Bruce’s and we have no way of knowing whether tribal jurisdic- tion was contested or conceded. 544 UNITED STATES v. BRUCE There is no evidence: • that Bruce is an enrolled member of any tribe • that Bruce is recognized as a tribe member by any tribe or the federal government • that Bruce enjoys any benefits of tribal affiliation • that Bruce is eligible for tribal membership • that Bruce has voted in tribal elections, that she has held tribal office, that she has served on tribal juries, that she has received payments or allot- ments made only to Indians, or that she is employed by a tribal organization. I agree with the district court that, as a matter of law, this evi- dence does not permit a jury to find that Bruce has legal status as an Indian. The Federal Enclave Act, 18 U.S.C. § 1152, provides for the prosecution of crimes committed in Indian country by non-Indians against Indians, but its coverage does not extend to offenses committed by one Indian against the person or property of another Indian; § 1153, in turn, provides that an Indian who commits certain major crimes against the person or property of another Indian may be prosecuted under the general laws of the United States. Neither section defines “In- dian.” However, courts generally follow the Rogers test,2 which considers “(1) the degree of Indian blood; and (2) tribal or government recognition as an Indian.” United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996). We have held that the defendant’s legal status as a non-Indian is not an element or an essential jurisdictional fact that must be charged in an indictment under § 1152. United States v. Hester, 719 F.2d 2 United States v. Rogers, 45 U.S. 567 (1846).  UNITED STATES v. BRUCE 545 1041, 1043 (9th Cir. 1983). Rather, as we explained in adopt- ing the burden-shifting framework that controls § 1152 prose- cutions and this case, [i]t is far more manageable for the defendant to shoulder the burden of producing evidence that he is a member of a federally recognized tribe than it is for the Government to produce evidence that he is not a member of any one of the hundreds of such tribes. We accordingly hold that the Government need not allege the non-Indian status of the defen- dant in an indictment under section 1152, nor does it have the burden of going forward on that issue. Once the defendant properly raises the issue of his Indian status, then the ultimate burden of proof remains, of course, upon the Government. Id. at 1043 (emphasis added). While we have stated in different contexts that enrollment is not the exclusive way to show that one is Indian,3 we have 3 See Keys, 103 F.3d at 761 (stating that lack of enrollment of two-year old who had been treated as member of the tribe by the tribe and her par- ents does not control determination of her Indian status); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (upholding § 1153 indict- ment that charged defendant as an Indian against challenge that it was deficient for failing also to charge that he was enrolled as enrollment is not an “absolute requirement,” nor necessarily determinative, when the indict- ment adequately put the defendant on notice of his classification as an Indian); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 516 (1976). The Eighth Circuit, which considers the determination of Indian or non- Indian status a conclusion of law, has broken the test into four factors which are, in declining order of importance: “1) tribal enrollment; 2) gov- ernment recognition formally and informally through receipt of assistance reserved only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as an Indian through residence on a reservation and participation in Indian social life.” United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995); see also United States v. Torres, 733 F.2d 449, 456 (7th Cir. 1984) (approving consideration of whether a person is recog- nized as an Indian by an Indian tribe, or by the federal government, and whether a person resides on an Indian reservation and holds himself out as an Indian). 546 UNITED STATES v. BRUCE recognized that tribal membership is the common thread and evidentiary means of establishing Indian status. See Bron- cheau, 597 F.2d at 1263 (observing this, and noting that the defendant admitted he was enrolled and never suggested he did not understand the term “Indian” as it applied to him). So far as I can tell, no court has ever held that an adult could have Indian legal status who was neither enrolled or eligible for enrollment, nor entitled to tribal or government benefits due only to Indians.4 Indeed, enrollment — or at a minimum, 4 See, e.g., United States v. Antelope, 430 U.S. 641 (1977) (noting that because § 1153 does not apply to many individuals who are racially to be classified as Indians, the government offered proof that the defendants are enrolled members of the Coeur d’Alene Tribe and thus not emancipated from tribal relations; declining to reach question whether nonenrolled Indians may ever be subject to § 1153); Lawrence, 51 F.3d at 152-54 (holding that alleged victim was non-Indian given that she was not an enrolled member of the Oglala Sioux Tribe or any other tribe and wasn’t eligible for enrollment because she had not completed the requirements for tribal enrollment; the medical services she had received from the Indian Health Service were not in her own right; the fact that the Oglala Sioux Tribe had taken custody and placed the victim under the care of her grand- mother (an enrolled member) was too insignificant an involvement to show tribal recognition as the victim was not enrolled or eligible for enrollment; and she did not attend pow-wows, Indian dances or other Indian cultural events and lived off-reservation except for a brief period before she was abused); United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992) (holding that facts conclusively proved that the defendant and victim were enrolled Indians within the meaning of § 1153); United States v. Dodge, 538 F.2d 770, 786-87 (8th Cir. 1976) (holding that evidence of having filed an application for enrollment in the Yurok Tribe and previous entry on the Pawnee tribal roll, and the fact that defendants had held them- selves out to be Indians within the meaning of § 1153, established Indian status under § 1153); United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974) (refusing to uphold federal jurisdiction over an individual who was anthropologically a Klamath Indian after the Termination Act ended his tribal affiliation); United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974) (stating, in dicta, that enrollment or lack of it is not determinative of status as an Indian; the defendant had asked that his name be removed from the rolls of the Colville Tribe but it was not done); Ex parte Pero, 99 F.2d 28, 30-32 (7th Cir. 1938) (holding on habeas review of a state court convic- tion that petitioner was Indian even though the enrolling agent for the Bad River Reservation had refused to enroll him because he belonged to the  UNITED STATES v. BRUCE 547 eligibility for enrollment — may be constitutionally required to avoid equal protection problems because otherwise, enforcement of federal criminal laws would arguably be based on an impermissible racial classification. See Antelope, 430 U.S. at 646 (holding that there was no constitutional problem because defendants were not subjected to federal criminal jurisdiction under § 1153 on account of their Indian race, but because they are enrolled members of the Coeur d’Alene Tribe); Keys, 103 F.3d at 761 (noting that Antelope had upheld prosecution on equal protection grounds because “the term ‘Indian’ describes a political group or membership, not a racial group”). It is difficult to fathom what the “recognition” prong of Rogers means if not enrollment or eligibility for enrollment in a tribe, or receipt of tribal or federal benefits to which only Indians are entitled. Indian ties cannot be enough, because one can have ties without legal status. As the Supreme Court observed in Duro v. Reina, “[m]any non-Indians reside on reservations, and have close ties to tribes through marriage or Lost Band of St. Croix Chippewas — an action which didn’t show that the petitioner was not Indian but rather, was evidence that he was — and not- ing that he was the child of a full-blooded Indian of the St. Croix Band of Lake Superior Chippewas and a father who was a half-blood, had always resided on a reservation that was set aside by treaty for the LaPointe Band and other Indians who might settle with them, he main- tained tribal relations with the Indians on the reservation and was recog- nized as a Chippewa Indian by other Indians); Petition of Carmen, 165 F. Supp. 942, 948 (N.D. Cal. 1958) (finding no doubt that petitioner is an Indian subject to the Major Crimes Act as he is an Indian by blood and enrolled as a member of the Mono tribe), aff’d sub nom. Dickson v. Car- men, 270 F.2d 809 (9th Cir. 1959); see also Halbert v. United States, 283 U.S. 753, 762-63 (1931) (noting the general rule that the right of individ- ual Indians to share in tribal property depends on tribal membership); Vez- ina v. United States, 245 F. 411 (8th Cir. 1917) (holding that person who was by blood of the Fond du Lac band of the Chippewas of Lake Superior who moved to the reservation, was recognized, enrolled, and secured allot- ments upon the reservation were members). 548 UNITED STATES v. BRUCE long employment. Indeed, the population of non-Indians on reservations generally is greater than the population of all Indians, . . .” 495 U.S. 676, 695 (1990). But if — as the majority holds — ties are enough for pur- poses of § 1152, no reason of logic, linguistics, or grammar suggests that ties should not also be enough for purposes of § 1153.5 Yet clearly they are not. To the contrary, we have held for purposes of § 1153 that a terminated Klamath Indian is no longer an Indian because she lost her Indian legal status upon termination. United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974); Hester, 719 F.2d at 1043 n.2 (so noting). If that is so, then it makes no sense for an Indian who has never had tribal membership and is ineligible for it to have legal sta- tus as an Indian. A court cannot rationally hold that both things are true. United States v. Keys, 103 F.3d 758 (9th Cir. 1996), which the majority points to as “instructive,” op. at 532, is different. There, the question of Indian status arose with respect to a two-year old girl who was not enrolled in the Tribe. However, we decided that her lack of enrollment did not control the determination of her Indian status because she could not have enrolled herself, her mother was an enrolled member of the Colorado River Indian Tribe, the girl had one-quarter Colo- rado River Indian blood, the girl’s custody was litigated in the Colorado River Indian Tribal Court which exercised jurisdic- 5 As we observed in United States v. Jackson, 600 F.2d 1283, 1285-86 (9th Cir. 1979): Section 1153 should be read in conjunction with § 1152, which extends “the general laws of the United States as to the punish- ment of offenses . . . to the Indian country” with certain excep- tions. . . . Thus, the general rule is that “except for the offenses enumerated in (section 1153), all crimes committed by enrolled Indians against other Indians within Indian country are subject to the jurisdiction of tribal courts.” United States v. Antelope, 430 U.S. 641, 643 n.2 (1977).  UNITED STATES v. BRUCE 549 tion over her and continued to do so at the time of the federal action, and the allegations that formed the gravamen of the federal prosecution were investigated by Colorado River Indian police. Id. at 761. Bruce’s situation differs because she is an adult who could have enrolled herself (if she were eligi- ble), she has one-eighth Chippewa blood (which is not the bloodline of the Ford Peck tribes), and she was not under the jurisdiction of any tribal court at the time of the federal action. In sum, the district court got the test right, correctly con- strued the facts in the light most favorable to Bruce, and con- cluded that, as a matter of law, the evidence adduced by Bruce does not permit a reasonable inference that she has Indian legal status. Applying the Rogers test, the district court acknowledged evidence of some Indian blood possessed by Bruce. This evidence shows that she is one-eighth Chippewa, but there is no evidence that this meets the quantum of blood requirement for recognition by that tribe. As Judge Canby notes in his Nutshell, tribes have different blood requirements for enrollment; many require one-fourth tribal blood, and at least one requires five-eighths.6 William C. Canby, Jr., Ameri- can Indian Law in a Nutshell 10 (4th ed. 2003). Regardless, there is no evidence that Bruce is enrolled as a member of the Turtle Mountain Tribe — where her mother is enrolled — or of the Sioux or Assiniboine tribes which are the two tribes at Ford Peck, where Bruce now lives, or of any Chippewa tribe. There is no evidence that she is eligible for membership. There is no evidence that Bruce holds herself out as Indian; although she enrolled two of her three children, she has not enrolled (or for all that appears, ever tried to enroll) herself. 6 One circuit court (functioning as a trial court) found based on evidence of custom and prior enrollment that one-eighth blood was sufficient to be enrolled as a member of a particular tribe that the persons involved (who were of mixed Indian blood) had chosen to identify themselves with, and to be entitled to tribal benefits. Sully v. United States, 195 F. 113 (C.C.D.S.D. 1912). Whether or not one-eighth blood is sufficient in some cases, there is no evidence in this case that it would suffice for purposes of membership in, or identification with, any relevant tribe. 550 UNITED STATES v. BRUCE This indicates that she either knows that she cannot be a tribal member, or does not wish to identify herself as one. There is no evidence that she has received benefits, payments, or allot- ments to which only an Indian is entitled. Nor is there any evidence that Bruce has taken part in tribal affairs by voting, serving on juries, or holding office. There is no evidence that Fort Peck has been involved in her life in a significant enough way to constitute recognition; and conversely, visiting a sweat lodge with her mother on one occasion does not manifest par- ticipation in Indian life or heritage to any substantial extent. The only evidence of Bruce’s legal status as an Indian comes from the fact that her mother is an enrolled member of the Turtle Mountain Tribe, Bruce was “arrested tribal,” was mar- ried for a time to an Indian, has two enrolled children, lives on the Fort Peck reservation (which is home to tribes with which she has no blood relationship), and socializes with oth- ers on the reservation because of her children. This could well be true of a lot of people, for many non-Indians live on Indian reservations, where they too get in trouble, socialize with Indians, marry Indians, and have children who are recognized as Indian. These facts alone do not raise an inference that Bruce has been recognized by any tribe or the government. Accordingly, the district court correctly concluded that Bruce failed to produce sufficient evidence to support a find- ing that she has legal status as an Indian. I would not cut a new path that allows someone to have the legal status of an Indian, and not an Indian, on the same set of facts that does not include enrollment, eligibility for enrollment, or entitle- ment to Indian benefits as a common denominator. I therefore dissent. 

898 N.E.2d 824 (2008) IN RE D.A. No. 13A05-0807-JV-414. Court of Appeals of Indiana. November 26, 2008. FRIEDLANDER, J. Disposition of case by unpublished memorandum decision. Affirmed. DARDEN, J. Concurs. BARNES, J. Concurs.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON ANDRE JACKSON v. FRED RANEY, WARDEN Direct Appeal from the Circuit Court for Lake County No. 99-7947 R. Lee Moore, Jr., Judge No. W1999-00234-CCA-R3-CD - Decided May 19, 2000 This appeal arises from the trial court's denial of the petitioner's pro se petition for habeas corpus relief based on his assertions that his guilty plea to second degree murder was void and illegal and that he had ineffective assistance of counsel in advising him to accept the plea agreement. After a careful review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed. GLENN, J., delivered the opinion of the court, in which HAYES, J., and RILEY, J., joined. Andre Jackson, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Clinton J. Morgan, Counsel for the State, for the appellee, Fred Raney, Warden. OPINION On February 11, 1993, the petitioner was indicted for the first degree murder of J. L. Covington. He entered a plea of guilty in the Shelby County Criminal Court to second degree murder, a Class A felony, on October 14, 1993. As part of the plea agreement, the petitioner was sentenced as a Range III offender and received forty years incarceration at forty-five percent plus a fifty dollar fine. He subsequently filed a Petition for Habeas Corpus, which was denied by the trial court on August 9, 1999. In his habeas petition, the petitioner alleged that his sentence was void, because his guilty plea was not voluntary and knowing, and was also illegal, in that his punishment was above the appropriate range that would normally be given him under the Sentencing Reform Act of 1989. He alleged that the trial court did not inform him of the minimum and maximum ranges for second degree murder, and he was denied effective assistance of counsel when he was led to plead out of his range. The trial court, in denying the petition, stated, “Petitioner’s allegations that he was improperly sentenced are not proper subject for habeas corpus relief. The judgment is not void, nor has the sentence expired. The petition is denied.”  On appeal, the petitioner has raised several issues that can be combined into two: 1. Whether the petitioner’s sentence is void or illegal? 2. Whether the petitioner was denied effective assistance of counsel during the plea process? Habeas Relief It is well-established in Tennessee that the remedy provided by a writ of habeas corpus is limited in scope and may only be invoked where the judgment is void or the petitioner’s term of imprisonment has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994). A void, as opposed to a voidable, judgment has been defined by our Supreme Court as “one in which the judgment is facially invalid because the court did not have the statutory authority to render such judgment.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The judgment of a court of general jurisdiction is conclusive and presumed to be valid, and such a judgment can only be impeached if the record affirmatively shows that the rendering court was without personal or subject matter jurisdiction. Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993); Passarella, 891 S.W.2d at 626. Thus, habeas corpus relief is available only when “‘it appears upon the face of the judgment or the record of the proceedings upon which the judgement is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment . . . has expired.” Archer, 851 S.W.2d at 164 (citation omitted). To obtain habeas corpus relief, the petitioner must show by a preponderance of the evidence that his sentence is void and not merely voidable. See Davenport, 980 S.W.2d at 409; Passarella, 891 S.W.2d at 627. Consequently, a petitioner cannot collaterally attack a facially valid judgment of the trial court in a petition for habeas corpus relief. Archer, 851 S.W.2d at 162. The proper means of challenging a facially valid judgment based on a constitutional violation is through a petition for post-conviction relief. Lewis v. Metropolitan Gen. Sessions Court for Nashville, 949 S.W.2d 696, 699 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997); Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993). In the present case, the petitioner has failed to carry his burden of showing through the record that his sentence was void or illegal. His allegation that his plea was involuntary would only result in a voidable judgment, which cannot be attacked through a habeas corpus petition. See Archer, 851 S.W.2d at 164. The fact that the trial court may or may not have informed the petitioner of the maximum and minimum ranges of his punishment still does not make habeas corpus relief available.1 Lewis, 949 S.W.2d at 699 (failure to fully advise defendant of rights waived by guilty 1 The transcript of the plea proceedings, which would have included the dialogue between the petitioner and the court when he entered his plea, is not contained in the record before us. -2- plea merely renders judgment voidable, not void). Likewise, an allegation of ineffective assistance of counsel merely renders a judgment voidable and not void. Passarella, 891 S.W.2d at 627. Neither is the petitioner’s sentence illegal. The petitioner faced a potential jury conviction on first degree murder. He agreed to be sentenced as a Range III offender as part of the agreement with the State that allowed him to plead guilty to second degree murder instead. The statutory range of punishment for a Range III offender to second degree murder, a Class A felony, is not less than forty nor more than sixty years. Tenn. Code Ann. § 40-35-112(c)(1); § 39-13-210. The petitioner was sentenced to the minimum in that range, and the trial court was within its statutory authority to make such judgment. Although, under certain circumstances, a petition for writ of habeas corpus may be treated as a petition for post-conviction relief, Tenn. Code Ann. § 40-30-205(c), this petition was not filed in the Shelby County Criminal Court, as would have been required of a petition for post-conviction relief. Tenn. Code Ann. § 40-30-204(a). Additionally, the guilty plea having been entered in 1993, and the petition not having been filed until 1999, the statute of limitations had expired for the filing of a petition for post-conviction relief. Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997). The petitioner does not allege that the trial court lacked personal and subject matter jurisdiction over him when it rendered the judgment. This judgment is presumed to be valid, and we see no evidence in the record before us that it was not. A facially valid judgment cannot be collaterally attacked by requesting habeas corpus relief, and the trial court was correct in dismissing the petition. We, therefore, affirm the judgment of the trial court. -3- 

749 F.2d 571 22 ERC 1572 DAN CAPUTO CO. and Wagner Construction Co., A Joint Venture,Plaintiff- Appellant,v.RUSSIAN RIVER COUNTY SANITATION DISTRICT, A Public Entity,State of California, State Water Resources ControlBoard; United States EnvironmentalProtection Agency, etc. etal., Defendants-Appellees. No. 83-2166. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 14, 1984.Decided Dec. 13, 1984. John S. Pachter, Wickwire, Gavin & Gibbs, P.C., Vienna, Va., for plaintiff-appellant. David A. Stein, Lempres & Wulfsberg, Oakland, Cal., David W. Hamilton, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before KENNEDY and CANBY, Circuit Judges, and PFAELZER*, District Judge. CANBY, Circuit Judge: 1 Dan Caputo Co. and Wagner Construction Co. (Caputo/Wagner) had a contractual dispute with the Russian River Sanitation District (Russian River) regarding Caputo/Wagner's construction of a sewage treatment system for Russian River. Caputo/Wagner filed this action to prevent Russian River from awarding a contract to correct alleged defects in Caputo/Wagner's work. The district court dismissed Caputo/Wagner's action for lack of standing. We affirm in part, and because an aspect of the case has become moot, vacate and remand in part. BACKGROUND 2 In 1979, pursuant to a grant from the Environmental Protection Agency, Russian River awarded Caputo/Wagner a contract to construct a sewage treatment system. Caputo/Wagner stopped work on the contract in 1981 when a dispute arose between Caputo/Wagner and Russian River about Caputo/Wagner's compliance with its contractual obligations. The dispute was taken to state court and was still pending when Caputo/Wagner filed this action. When Caputo/Wagner stopped work, $900,000 of EPA's grant to Russian River remained unspent. 3 Sometime after Caputo/Wagner stopped work, the California Water Resources Control Board (WRCB) authorized Russian River to let a contract for correction and completion of the sewage treatment system. Russian River, the WRCB, and EPA agreed that Russian River could fund the corrective work contract with the $900,000 remaining from the grant for the sewage treatment system. Russian River solicited bids for the corrective work contract on June 16, 1982. 4 On June 23, 1982, Caputo/Wagner filed a bid protest with EPA. Caputo/Wagner alleged that the solicitation was unlawful because the bidding documents violated EPA standards. See 40 C.F.R. Sec. 35.938-4 (1983). Caputo/Wagner also alleged that the contract offered by Russian River contained unlawful terms, such as a provision preventing the contractor from being compensated for losses due to an unreasonable suspension by Russian River. See 40 C.F.R. Sec. 35.938-8 (1983); Supplemental General Conditions Sec. 4(b), 40 C.F.R. Part 35, Subpart E, Appendix C-2. Caputo/Wagner did not bid on the corrective work contract. EPA denied Caputo/Wagner's bid protest on the ground that as a nonbidder, Caputo/Wagner lacked standing to challenge the procurement process. 5 Caputo/Wagner filed this action against Russian River, the WRCB, and EPA on December 10, 1982. Caputo/Wagner claimed that Russian River's bid solicitation and the contract it offered violated EPA regulations; that the WRCB unlawfully failed to insure Russian River's compliance with the regulations; and that EPA improperly dismissed Caputo/Wagner's bid protest. The district court dismissed Caputo/Wagner's complaint for lack of standing. The court held that Caputo/Wagner did not meet article III's injury-in-fact requirement because Caputo/Wagner did not allege either that it had bid on the corrective work contract or that it would have been awarded the contract if the alleged violations had not occurred. 6 Caputo/Wagner subsequently attempted to amend its complaint. The proposed amendment did not challenge the alleged defects in the bid solicitation; rather, it challenged the decision to use the $900,000 remaining from EPA's initial grant as a source of funds for the corrective work contract. The district court denied Caputo/Wagner's motion to amend on the ground that the added claims did not rectify the standing problem. 7 Caputo/Wagner appeals both the dismissal of its complaint and the denial of its motion to amend. ANALYSIS I. Dismissal of the Original Complaint 8 The original complaint challenged the procurement process; it alleged that the bid solicitation violated several EPA regulations, and that therefore EPA, the WRCB, and Russian River should have stopped the solicitation. 9 The district court dismissed the original complaint for lack of standing, reasoning that as a nonbidder, Caputo/Wagner suffered no injury from the alleged defects in the solicitation. We do not reach the question whether nonbidders can challenge sewage system procurement, however, for Caputo/Wagner's particular challenge has become moot. 10 With regard to its challenge to the bid solicitation, Caputo/Wagner requested as relief only an order enjoining construction until EPA resolved the merits of its bid protest; it made no plea for damages. The corrective work contracts, however, have been awarded and by now the work under them has been completed. There remains no effective relief which we can offer Caputo/Wagner. Accordingly, we vacate the district court's decision and remand with instructions that Caputo/Wagner's challenge to the bid solicitation be dismissed as moot. See Enrico's Inc. v. Rice, 730 F.2d 1250 (9th Cir.1984). II. Denial of Leave to Amend 11 Caputo/Wagner attempted to amend its complaint to add a claim that EPA, the WRCB, and Russian River acted unlawfully when they agreed that Russian River could use the remaining $900,000 of the grant to pay for the corrective work contract. The district court, however, denied the amendment as to all three defendants on the ground that Caputo/Wagner lacked standing to challenge the reallocation decision. 12 We review denials of motions to amend under an abuse of discretion standard. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir.1983). Motions to amend should be freely given, id., but may be denied if the proposed amendment will not save the plaintiff's suit, Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1520 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984). If the district court made the correct determination regarding Caputo/Wagner's standing, or if some other fatal defect exists in the proposed amended complaint, then of course the district court did not abuse its discretion in denying the motion to amend.1 A. EPA 13 Caputo/Wagner presents two theories to support its contention that it has standing to press its challenge to EPA's involvement in the funding decision. First, Caputo/Wagner argues that it meets the requirements for raising a challenge to agency action under Sec. 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 702 (1982). As Caputo/Wagner recognizes, those requirements are twofold: Caputo/Wagner must show both that it satisfies the requirement of actual injury inherent in article III and that its interests are arguably within the zone of interests protected by the statutory or constitutional provision at issue. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir.1981). 14 Caputo/Wagner does meet the injury-in-fact half of the standing test applicable to challenges to agency action. The allegations in Caputo/Wagner's complaint must be charitably construed. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109, 99 S.Ct. 1601, 1612, 60 L.Ed.2d 66 (1979). So construed, the amended complaint alleges that Caputo/Wagner has a right to the reallocated $900,000, and that once the reallocated funds are spent, Caputo/Wagner will be unable to collect the $900,000 from Russian River. From the allegations, "it reasonably could be inferred that ... there is a substantial probability" that Caputo/Wagner suffers harm from the reallocation. See Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343 (1975). 15 Caputo/Wagner, however, does not meet the zone-of-interest half of the standing requirement. Title II of the Clean Water Act, 33 U.S.C. Secs. 1281-1297 (1982), authorizes EPA to make grants to municipalities for the construction of sewage treatment works. Caputo/Wagner, however, does not point to any provision in Title II which arguably protects a contractor against the reallocation of grant funds by EPA after a contract dispute, nor can we find one in an independent review. 16 Caputo/Wagner does argue that its interests are protected by 40 C.F.R. Sec. 35.939 (1983), which allows would-be bidders to protest bid solicitations to EPA. Although courts have expanded the zone-of-interest test by applying it to regulations as well as to statutes and constitutional provisions, e.g., Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 842 (D.C.Cir.1982); see Stratman v. Watt, 656 F.2d 1321, 1324 (9th Cir.1981), cert. denied, 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 170 (1982), the EPA regulation here does not assist Caputo/Wagner. Section 35.939 addresses only irregularities in the procurement process, such as defects in bidding documents. See Sec. 35.939(c)(1)(iii) (1983). It was not intended to provide a forum for resolving funding disputes. A more pertinent regulation is Sec. 35.936-9 (1983), which does create a mechanism for challenging funding decisions. That section, however, provides that only the grantee, Russian River in this case, can bring the funding protest. It is therefore clear that the regulations are not designed to protect the interests of contractors in grant allocations. 17 Caputo/Wagner's second theory is that the citizen-suit provision of the Clean Water Act, 33 U.S.C. Sec. 1365(a)(2) (1982), provides Caputo/Wagner with standing to press its funding challenge. Caputo/Wagner, however, suffers financial injury only from the reallocation of grant funds. The purpose of the citizen-suit provision "is to ensure that an interest in the environment and clean water, whether or not economically based, is a sufficient basis for a citizen suit." Gonzales v. Gorsuch, 688 F.2d 1263, 1268 (9th Cir.1982). Caputo/Wagner's claim does not arise from an interest in the environment, and does not seek to vindicate environmental concerns. Therefore the citizen-suit provision, like Sec. 10(a) of the APA, does not accord Caputo/Wagner standing to vindicate its interest in the remaining grant funds. 18 B. The California Water Resources Control Board 19 Caputo/Wagner's amended claim against the WRCB could not arise under the APA since the WRCB is a state, not a federal, agency. Nevertheless, the test for standing in actions not involving the APA is for practical purposes the same as the test applicable to actions falling under the APA. Article III's requirement of injury in fact of course applies in both contexts. And the zone-of-interest requirement formulated in Data Processing for actions under the APA has been adopted as a generally applicable prudential limitation on standing. E.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700 (1982). 20 Caputo/Wagner meets the injury-in-fact requirement with regard to its amended claim against EPA. See supra pt. II.A. Precisely the same considerations apply with regard to its amended claim against the WRCB. Therefore, Caputo/Wagner's amended complaint against the WRCB satisfies the first half of the standing test. 21 The amended complaint does not, however, meet the zone-of-interest requirement. Caputo/Wagner alleges that the state WRCB violated 40 C.F.R. Secs. 35.1005 and 35.1030-6 (1982) (transferred with amendments by 48 Fed.Reg. 37,814, 37,818 (1983) to 40 C.F.R. Secs. 35.3005(a), 35.3010(b)) when it approved the fund reallocation. But section 35.1005 does not arguably protect Caputo/Wagner's interest. It does not establish a standard of conduct which could be construed as protecting contractors from grant reallocations, but rather only expresses EPA's intent to decentralize the administration of the construction grant program. Nor does Sec. 35.1030-6, which indirectly establishes standards of conduct by requiring that state agencies comply with applicable federal regulations, give Caputo/Wagner standing. Before a claim for standing under Sec. 35.1030-6 can be assessed, a plaintiff must specify the applicable federal regulations which it regards as violated; Caputo/Wagner, however, fails to meet that obligation. Therefore, we agree with the district court that Caputo/Wagner lacked standing to sue the WRCB for its participation in the funding decision.2 C. Russian River 22 Caputo/Wagner's amended claim against Russian River is in less embryonic form than are its amended claims against EPA and the WRCB. Caputo/Wagner's amended claims against EPA and the WRCB did not identify a single provision of federal law which arguably protected Caputo/Wagner against the participation of those agencies in the reallocation decision. Arguably at least, Caputo/Wagner has identified a federal regulation which protects contractors from improper grant reallocations by districts such as Russian River: 40 C.F.R. Sec. 35.936-5(a) (1983). Caputo/Wagner alleges that Russian River violated that regulation, which provides that grantees are "responsible for the settlement and satisfaction of all contractual and administrative issues arising out of subagreements entered into under the grant ... in accordance with sound business judgment and good administrative practice." 23 We do not need to decide, however, whether Caputo/Wagner satisfies the standing requirement in its amended claim against Russian River. Even if that requirement is met, the district court's denial of leave to amend must be affirmed on the ground that Caputo/Wagner fails to show that Congress provided it with a private right of action against Russian River. 24 The first place to look in considering whether Caputo/Wagner has a private right of action is the citizen-suit provision of the Clean Water Act, 33 U.S.C. Sec. 1365(a)(1) (1982). That provision, however, gives a cause of action only to those who allege a violation of an effluent standard or an order respecting an effluent standard. Caputo/Wagner makes no such allegation. 25 To show that some other provision of the Clean Water Act gives Caputo/Wagner a private right of action against Russian River, Caputo/Wagner would have to develop a four-factor analysis along the lines specified in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Caputo/Wagner does not undertake that task, nor does our independent review of the Clean Water Act reveal a likely statutory candidate for implying a private right of action. 26 Title 40 C.F.R. Sec. 35.936-5(a) does not itself provide Caputo/Wagner with a private right of action. To infer a private right of action from Sec. 35.936-5(a), we would have to be convinced both that Congress accorded EPA the authority to establish private rights of action and that EPA intended to create such a right through Sec. 35.936-5(a). We can find absolutely no indication that EPA intended to give Caputo/Wagner a cause of action. Therefore, assuming arguendo that EPA has the statutory power to create rights of action, see 33 U.S.C. Sec. 1361(a) (1982), we hold that Sec. 35.936-5(a) does not authorize Caputo/Wagner's suit. 27 We have concluded that Caputo/Wagner lacks standing to present its amended claims against EPA and the WRCB. Assuming it has standing to sue Russian River, it lacks a private right of action. Clearly, therefore, the district court acted within its discretion in denying in toto Caputo/Wagner's motion to amend. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1520 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984).CONCLUSION 28 There is no merit to any of Caputo/Wagner's contentions. The judgment of the district court is affirmed in part and because an aspect of the case is moot, vacated and remanded in part. Costs to be borne by appellant. 29 AFFIRMED IN PART, VACATED IN PART, AND REMANDED. * The Honorable Mariana R. Pfaelzer, United States District Judge for the Central District of California, sitting by designation 1 The challenge to the reallocation of the $900,000 is not moot. It is unclear whether all of the funds have been spent. If they have not been fully spent, Caputo/Wagner may be accorded relief by further expenditure. Even if the funds are exhausted, relief can be provided to Caputo/Wagner because Caputo/Wagner requests that EPA, the WRCB, and Russian River provide other funds to stand in the place of the $900,000 2 Even if Caputo/Wagner established standing, another substantial obstacle would remain in its path: Caputo/Wagner would have to demonstrate that Congress extended it a private right of action to sue the WRCB. We do not reach that issue here

Case: 13-3138 Document: 3 Page: 1 Filed: 07/03/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ MICHAEL A. ALSTON, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. __________________________ 2013-3138 __________________________ Petition for review of the Merit Systems Protection Board in No. DE844E120276-I-1. __________________________ ON MOTION __________________________ ORDER Michael A. Alston moves for leave to proceed in forma pauperis. Upon consideration thereof, IT IS ORDERED THAT: The motion is granted. Case: 13-3138 Document: 3 Page: 2 Filed: 07/03/2013 ALSTON V. OPM 2 FOR THE COURT /s/ Daniel E. O’Toole Daniel E. O’Toole Clerk s21 

789 F.2d 921 Castrov.Vasquez 84-2078 United States Court of Appeals,Ninth Circuit. 5/7/86 1 E.D.Cal. AFFIRMED

661 F.2d 909 Labatonv.Universal Leaf Tobacco Co., Inc. 81-7242 UNITED STATES COURT OF APPEALS Second Circuit 6/16/81 1 S.D.N.Y. AFFIRMED

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-17-00742-CV Nawaid Isa, Appellant v. CenterPoint Energy Houston Electric, LLC and Ambit Energy, LLC, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-15-005240, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING MEMORANDUM OPINION Pro se appellant Nawaid Isa sued appellees CenterPoint Energy Houston Electric, LLC, and Ambit Energy, LLC, alleging fraudulent, unfair, misleading, deceptive, or anti-competitive business practices in their contracting to provide electric service to a playing field owned by Isa. CenterPoint and Ambit filed pleas to the jurisdiction, which the trial court granted, dismissing Isa’s lawsuit. As explained below, we will affirm the trial court’s dismissal order. Factual and Procedural Summary In 2013, Isa contacted CenterPoint for information on constructing field lights on his cricket field. CenterPoint sent a representative to the property and discussed costs of installation. Isa and CenterPoint eventually signed a contract for CenterPoint to install an in-line pole on the property. After the pole was constructed, Isa arranged for electric service to be provided by Ambit, a retail electric provider (REP), signing a one-year, fixed-term contract.  When Isa received substantially higher bills than expected, he filed a complaint with the Public Utility Commission (PUC). During that proceeding an administrative law judge (ALJ) partially denied motions to dismiss filed by Ambit and CenterPoint, determining that there were fact questions that precluded summary judgment. The ALJ granted the motions to dismiss as to Isa’s claims seeking damages beyond those allowed in the Public Utility Regulatory Act (PURA). See generally Tex. Util. Code §§ 11.001-66.016. Ambit eventually credited Isa’s account for the disputed charges, and the administrative complaint was then dismissed as moot. Isa attempted to appeal from that dismissal, but those efforts were unsuccessful because he did not file a motion for rehearing and thus did not exhaust his administrative remedies under the Administrative Procedures Act. See Isa v. Public Util. Comm’n of Tex., 528 S.W.3d 609, 619 (Tex. App.—Texarkana 2017, pet. denied) (“Since Isa was required to exhaust his administrative remedies by filing a motion for rehearing and failed to do so, the trial court lacked subject-matter jurisdiction.”); see also Tex. Gov’t Code §§ 2001.145 (timely motion for rehearing is prerequisite to appeal); .171 (party who has exhausted all administrative remedies may seek judicial review); see generally id. §§ 2001.001-.902 (Administrative Procedures Act). In 2015, Isa filed the underlying lawsuit, asserting that Ambit and CenterPoint had violated the Deceptive Trade Practices Act (DTPA), PURA, and various PUC rules. He sought damages for loss of revenue, mental anguish, pain, and suffering, as well as exemplary damages. Both Ambit and CenterPoint filed pleas to the jurisdiction, asserting that the PUC had exclusive jurisdiction over Isa’s complaints, that Isa had not exhausted his administrative remedies, and that Isa’s complaints were moot. The trial court agreed and dismissed Isa’s suit. 2  Discussion Isa argues on appeal that because the PUC cannot grant the relief he seeks, the trial court should have exercised jurisdiction over his claims. He asserts that the ALJ determined that certain PUC rules applied to Ambit and CenterPoint and that providing remedies for violations of rule 25.22(5) and (7) are beyond the PUC’s jurisdiction. Finally, he argues that the remedies provided under PURA “collide immitigably with remedies under [the] DTPA.” An agency has exclusive jurisdiction when the legislature has established a pervasive regulatory scheme, evidencing an intent “for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.” In re Southwestern Bell Tel. Co., 235 S.W.3d 619, 624-25 (Tex. 2007). “If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction.” Id. at 625. The supreme court has explained that PURA, described in the act itself as “comprehensive,” was intended by the legislature to “comprehend all or virtually all pertinent considerations involving electric utilities operating in Texas.” In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004). Thus, PURA is “a pervasive regulatory scheme” granting the PUC exclusive jurisdiction over disputes related to utility rates, operations, and services. Id.; see also Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 140-41 (Tex. 2018) (“In light of section 32.001(a)’s express language and the comprehensive regulatory scheme PURA creates, we conclude that PURA grants the PUC exclusive jurisdiction over all matters involving an electric utility’s rates, operations, and services.”). 3  Chapter 17 of PURA sets out a pervasive, comprehensive statutory scheme governing the resolution of disputes between customers and their utilities and REPs. See, e.g., Tex. Util. Code §§ 17.001(b) (Chapter 17 establishes “retail customer protection standards and confer[s] on the commission authority to adopt and enforce rules to protect retail customers from fraudulent, unfair, misleading, deceptive, or anticompetitive practices”), .004 (PUC “may adopt and enforce rules as necessary or appropriate to carry out this section,” which sets out customer protection standards), .051 (PUC “shall adopt rules relating to certification, registration, and reporting requirements for a certificated telecommunications utility, a retail electric provider, or an electric utility”), .102 (PUC “shall adopt and enforce rules” aimed at ensuring “customers are protected from deceptive practices employed in obtaining authorizations of service and in the verification of change orders”), .156 (if PUC determines that billing utility “violated this subchapter, the commission may implement penalties and other enforcement actions under Chapter 15”1), .157 (PUC may resolve disputes between retail customer and utility or REP and may require utility or REP to “refund or credit overcharges or unauthorized charges with interest”); see also id. § 39.101 (“Customer Safeguards”) (PUC “shall ensure that retail customer protections are established” entitling customers to, inter alia, safe, reliable, and reasonably priced electricity; understandable billing; accurate metering and billing; “other information or protections necessary to ensure high-quality service to customers”; choice in 1 Chapter 15 governs “Judicial Review, Enforcement, and Penalties,” including requiring that a person seek judicial review of a PUC order by filing a petition pursuant to section 2001.171 of the Administrative Procedures Act. See Tex. Util. Code § 15.026(a); see generally id. §§ 15.001- .107; see also Tex. Gov’t Code § 2001.171 (“A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.”) 4 REPs; protection “from unfair, misleading, or deceptive practices”; “impartial and prompt resolution of disputes”; “The commission has jurisdiction over all providers of electric service in enforcing Subsections (a)-(d) and may assess civil and administrative penalties under Section 15.023 and seek civil penalties under Section 15.028.”). The supreme court has said, “For billing disputes, the PUC’s authority is even more comprehensive, as it may ‘resolve disputes between a retail customer and a billing utility, service provider, [or] telecommunications utility.’” Southwestern Bell, 235 S.W.3d at 625-26 (quoting Tex. Util. Code § 17.157(a)). Isa asserts that CenterPoint and Ambit violated various PUC rules and seeks damages under the DTPA, but as the ALJ observed, Isa seeks damages that are not authorized by PURA and are beyond the PUC’s authority to grant. Isa agrees and argues that because the PUC does not have the ability to award him the damages he requests, the trial court has jurisdiction over his claims.2 He contends that he may seek such damages in the trial court under a “hybrid claims-resolution process,” citing to the supreme court’s decision in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002). In that opinion, the court concluded that the Texas Motor Vehicle Board, which had exclusive jurisdiction over the “claims and issues the [Texas Motor Vehicle Commission Code] governs,” limited the remedies the Board could grant, expressly allowed a party to sue under the DTPA based on Code violations, and provided that the duty of good faith and fair dealing imposed by the Code was “actionable in tort.” Id. at 223-24. Therefore, the court 2 Contrary to Isa’s contention, the ALJ’s observation that Isa sought damages beyond the PUC’s authority does not equate to a “finding” that such damages could be sought elsewhere. Indeed, the ALJ said not only that Isa sought damages beyond the PUC’s authority to grant, but also that such damages “cannot be recovered.” 5 held, “the Code creates a hybrid claims-resolution process by which parties may seek damages for certain Code violations,” provided that the party first exhausts its “administrative remedies to obtain a Board decision about Code violations, if any, to support a DTPA or bad-faith claim.” Id. at 224. Recently, the supreme court discussed the hybrid claims-resolution process in the context of PURA in Chaparral Energy, in which Chaparral sued Oncor for breach of contract when Oncor did not meet its obligations under the Service Agreement between the parties. 546 S.W.3d at 137. Chaparral sought actual damages, additional damages, interest, attorney’s fees, expenses, and taxable costs and argued that “even if this case would otherwise fall within the PUC’s exclusive jurisdiction, the ‘inadequate-remedy exception’ to the exhaustion-of-remedies requirement applies.” Id. at 141. The court explained that the inadequate-remedy exception applies “when the claimant cannot obtain an adequate remedy through the administrative process and requiring the claimant to go through the process would cause the claimant irreparable harm” and concluded that the exception did not apply “because PURA does not prevent Chaparral from obtaining the damages it seeks in the district court after the PUC has exercised its exclusive jurisdiction.” Id. at 141-42. The court reiterated that under the hybrid claims-resolution process, the claimant must first its exhaust administrative remedies and obtain an agency decision on the issues within the agency’s exclusive jurisdiction before filing suit to obtain relief that the agency cannot provide. Id. at 142. This process applies when the statutory scheme, such as PURA, necessitates “that an administrative agency with exclusive jurisdiction make certain findings before a trial court may finally adjudicate a claim.” Id. Assuming that the hybrid claims-resolution process applies here, Isa’s suit for damages relies on his assertions that appellees violated various PUC rules. Those claims of rules 6 violations are within the exclusive jurisdiction of the PUC. See id. However, Isa did not exhaust his administrative remedies and obtain agency rulings on these claims and thus cannot seek non-PURA-authorized damages in the trial court under the hybrid process.3 See id.; David McDavid, 84 S.W.3d at 224. Although Isa asserts that he should be allowed to pursue damages under the DTPA, citing David McDavid for support, that case involved a different statutory scheme, one that specifically allowed someone who has sustained actual damages to bring a DTPA claim. 84 S.W.3d at 225. PURA does not contain such a provision. As Isa notes, Section 17.203 states, “The customer safeguards provided by this subchapter are in addition to safeguards provided by other law or agency rules.” Tex. Util. Code § 17.203(a). However, that provision is located in Subchapter E, which governs protecting consumers against utility service disconnection, and no such similar provision appears elsewhere in PURA. Further, Chapter 17 of PURA is intended to give the PUC authority to act to “protect retail customers from fraudulent, unfair, misleading, deceptive, or anticompetitive practices,” which would seem to supplant the DTPA in the utility context. Id. § 17.001(b), see generally id. §§ 17.001-.203. From the language used in PURA as a whole, we conclude that the 3 Isa argues that in the orders addressing appellees’ motions for summary decision and motions to dismiss, the ALJ found that appellees had violated PUC Rule 25.22. See 16 Tex. Admin. Code § 25.22 (2018) (Pub. Util. Comm’n of Tex., Request for Service). However, the ALJ’s orders determined that fact issues remained as to Ambit’s knowledge of Isa’s intended electrical use and CenterPoint’s culpability and responsibility to Ambit, its customer; disagreed with CenterPoint’s assertion that it was “categorically exempt” from Rule 25.22; and determined that Ambit had not complied with another PUC rule not relied on here by Isa. The ALJ did not make a finding that appellees had violated Rule 25.22, and instead stated that the record would not support summary decision of whether that rule was violated. Further, as stated earlier, Isa did not exhaust his administrative remedies. 7 legislature intended for Chapter 17 to govern in the face of a claim of deceptive trade practices by a utility or REP and that it did not intend that Chapter 17’s general provisions governing consumer disputes unrelated to the disconnection of utility service could be supplemented by suits under other consumer protection statutes. Because Chapter 17 provides the PUC with exclusive jurisdiction over a consumer’s disputes with his electric utility or REP and provides the exclusive remedies available in such a dispute, see id. § 17.157; Southwestern Bell, 235 S.W.3d at 625-26, the PUC has exclusive jurisdiction over Isa’s dispute with CenterPoint and Ambit.4 Isa may not attempt to sidestep the administrative process, a process that he did not exhaust, by this independent suit for damages not authorized under PURA. See Entergy, 142 S.W.3d at 323. We overrule Isa’s complaints on appeal. Conclusion Isa did not exhaust his administrative remedies and may not now seek in the trial court further remedies related to his dispute with Ambit and CenterPoint. The trial court properly dismissed his suit for want of jurisdiction. We affirm the trial court’s order of dismissal. 4 Our conclusion is supported by the supreme court’s opinion in Chaparral Energy, in which it approved of lower-court opinions holding that the PUC had exclusive jurisdiction over claims for breach of contract—one related to a billing dispute and the other to the delayed provision of services—and held, “We agree with these courts’ construction and application of the scope of PURA’s grant of exclusive jurisdiction to the PUC. Chaparral’s complaints arise from Oncor’s alleged breach of the Service Agreement, in which Oncor agreed to ‘provide additional electric facilities sufficient to provide electric service’ for Chaparral’s wells.” Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 140 (Tex. 2018); see also id. at 141 (PURA “section 17.157 further underscores that PURA has established a comprehensive regulatory scheme”). 8  __________________________________________ Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: August 29, 2018 9 

Case: 14-50957 Document: 00513082468 Page: 1 Date Filed: 06/17/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-50957 Summary Calendar United States Court of Appeals Fifth Circuit FILED June 17, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. VERNON TYRELL WALKER, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:06-CR-187-1 Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Vernon Tyrell Walker appeals the sentence imposed following the revocation of a previously imposed term of supervised release. He first argues that the district court procedurally erred by failing to calculate the applicable guidelines range and by failing to consider the sentencing factors of 18 U.S.C. § 3553(a). As Walker concedes, because he did not object in the district court, * 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.  Case: 14-50957 Document: 00513082468 Page: 2 Date Filed: 06/17/2015 No. 14-50957 plain error review applies. See Puckett v. United States, 556 U.S. 129, 135 (2009). The record on appeal does not show that the district court calculated the guidelines range or explicitly considered the § 3553(a) factors. However, we conclude that Walker has not shown that any error affected his substantial rights. In his appellate brief, Walker calculated the applicable guidelines range as 8 to 14 months of imprisonment, which is consistent with the sentencing range that the Government asserts was considered by the district court. Walker’s sentence of 12 months of imprisonment was within this range. In addition, because the district court heard and considered the statements of Walker and his counsel, we conclude that Walker has not demonstrated a reasonable probability that an explicit discussion of the relevant § 3553(a) factors or additional explanation of the sentencing decision would have resulted in a lesser sentence. See United States v. Culbertson, 712 F.3d 235, 243 (5th Cir. 2013). Walker also argues that the additional sentence of supervised release imposed constituted an ambiguous or illegal sentence. We review a claim of an illegal sentence de novo, even if the defendant failed to object in the district court. See United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010). After imposing a 12-month sentence of imprisonment, the district court ordered that Walker serve an additional supervised release term of 24 months or “whatever amount of time is unused.” We agree with the parties that this could be interpreted as imposing as much as 29.5 months of supervised release, which would result in an illegal sentence. See 18 U.S.C. § 3583(h). Therefore, we VACATE the sentence in part and REMAND to the district court with instructions to modify the judgment to reflect that Walker is sentenced to 24 months of supervised release. 2 

815 F.Supp. 844 (1993) James F. COX v. MASTER LOCK CO. Civ. A. No. 92-0287. United States District Court, E.D. Pennsylvania. March 23, 1993. James F. Cox, Ambler, PA, pro se. Marguerite S. Walsh, Philadelphia, PA, for defendant. MEMORANDUM WALDMAN, District Judge. Plaintiff asserts a claim under the Age Discrimination in Employment Act ("ADEA"), alleging that defendant terminated his employment because of his age. Defendant has moved for summary judgment on the ground that plaintiff was not an "employee" of defendant and thus is not entitled to the relief sought as a matter of law. I. LEGAL STANDARD A motion for summary judgment requires the court to consider whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). Only facts that may affect the outcome of a case under applicable law are "material." "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. at 2510. All reasonable inferences from the record must be drawn in favor of the non-movant. Id. at 255, 106 S.Ct. at 2513. Although the movant has the initial burden of demonstrating an absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See J.F. Feeser, Inc. v. Serv-A-Portion, 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. *845 1313, 113 L.Ed.2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). II. FACTS The pertinent facts are uncontroverted or set forth in a light most favorable to plaintiff, and are as follow. From 1972 until 1986, Mr. Cox worked as an "Independent Manufacturer's Representative" ("IMR") for Master Lock pursuant to a series of written agreements executed by Master Lock and Jimcox, Inc., an entity incorporated by plaintiff. Pursuant to the agreements, Mr. Cox was authorized to sell defendant's products in a territory encompassing northeastern Pennsylvania and portions of Philadelphia. The agreement in effect in August 1986 had been executed on March 1, 1985. Mr. Cox maintained and worked out of an office in Glenside and then Ambler, Pa. The defendant corporation manufactures locks and is headquartered in Milwaukee. Either party had a right to terminate the IMR agreement by written notice to the other at any time and for any reason. The agreement provided that the sole basis of compensation was commissions on sales. Plaintiff assumed responsibility for payment of travel, insurance, office, equipment, supply and any other expenses which were incurred by him in the performance of the contract. Jimcox, Inc. had full responsibility for the withholding and payment of social security and income taxes for plaintiff. Jimcox was given discretion to conduct its business in "such manner as it sees fit." Jimcox was not allowed to sell products manufactured by defendant's competitors or to sell at prices other than those set by Master Lock. Master Lock had the right to accept or reject any orders placed with plaintiff. Plaintiff was required to submit sales and marketing reports to defendant.[1] Mr. Cox was not required to report physically to defendant at any time but was required to maintain telephone contact. He set his own work hours and vacation times, and received no pension or insurance benefits from defendant. Mr. Cox received no sales training or performance reviews from Master Lock. On two occasions between May and August of 1986, he was visited by defendant's regional sales manager who accompanied and observed plaintiff while he made several sales calls. When asked at his deposition if it was true that his sales efforts were not supervised by Master Lock, plaintiff testified "That's correct." The agreement specified that Jimcox had "no authority to act on behalf of the Company as an agent or otherwise, and neither it nor its employees shall represent itself or themselves as agents or employees of the Company." On August 26, 1986, Master Lock notified plaintiff in writing that it was terminating the IMR agreement as of September 1, 1986.[2] Mr. Cox was 62 years-old at the time. III. DISCUSSION The ADEA protects only persons who are "employees." E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 33 (3d Cir.1983). Whether a plaintiff is an "employee" for purposes of ADEA is a question of law to be determined by the court in the absence of disputed material underlying facts. See Golden v. A.P. Orleans, Inc., 681 F.Supp. 1100, 1102 n. 2 (E.D.Pa.1988). The statute does not meaningfully define the term "employee." It simply provides that an "employee" is "an individual employed by any employer." See 29 U.S.C. § 630(f). The Third Circuit has adopted a so-called "hybrid test," combining the traditional test for common-law agency with modern economic realities, for determining whether a *846 person is an employee or independent contractor for purposes of ADEA. Zippo, 713 F.2d at 38. More recently, however, the U.S. Supreme Court in Nationwide Mut. Ins. Co. v. Darden, ___ U.S. ___, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), an ERISA case, articulated a general rule of utilizing the common-law agency standard to define the meaning of "employee" in statutes in which Congress has not otherwise helpfully defined the term. Id. at ___, 112 S.Ct. at 1348-49 (abandoning standard of United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463, 1468, 91 L.Ed. 1757 (1947) of construing "employee" "in the light of the mischief to be corrected and the end to be attained" from which hybrid test derives). See also Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir. 1993) (Darden mandates application of common-law agency test in ADEA cases). The court believes that Darden requires the application of the common-law agency test rather than a hybrid test in determining whether someone is an employee for purposes of ADEA. Under either test, however, the result in this case would be the same. Most of the twelve factors utilized by the Third Circuit in its hybrid test reflect common-law agency principles and both tests "place the greatest emphasis on the hiring party's right to control the manner and means by which the work is accomplished." Id. at 90; Zippo, 713 F.2d at 37. Applying either test, the plaintiff is not an employee for purposes of ADEA. Indeed, the facts of this case, construed most favorably to plaintiff, are quite similar to those in Zippo, in which the Third Circuit, applying the hybrid test, affirmed a grant of summary judgment on the ground that the plaintiffs were independent contractors. The pertinent factors in the common-law agency test are: 1) the alleged employer's right to control the manner and means of the employment; 2) the skill required; 3) the source of the instrumentalities and tools; 4) the location of the work; 5) the duration of the relationship between the parties; 6) whether the hiring party has the right to assign additional projects; 7) the hired party's discretion over hours; 8) the method of payment; 9) the hired party's role in hiring and paying assistants; 10) whether the work is part of the regular business of the hiring party; 11) whether the hiring party is in business; 12) the provision of employee benefits; and, 13) the hired party's tax treatment. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79, 104 L.Ed.2d 811 (1989). As noted, the most important factor in the hybrid test is "the extent of the employer's right to control the `means and manner' of the worker's performance." See Zippo, 713 F.2d at 37 (quoting Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979)). The other pertinent factors are: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the `employer' or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the `employer'; (9) whether the worker accumulates retirement benefits; (10) whether the `employer' pays social security taxes; and (11) the intention of the parties. Id. Defendant exercised virtually no control over the "means and manner" of plaintiff's sales practices. Plaintiff had the independence to establish his own business organization and indeed operated through an entity *847 which he incorporated. Although he provided Master Lock with a summary of his sales contacts, Mr. Cox was free to set his own hours and vacation times. Mr. Cox had a contractual right to conduct his business "in such manner as [he] sees fit." Plaintiff provided his own supplies, equipment, place of business and insurance. He was paid solely by commission and he paid for all travel and other expenses incurred in his sales efforts. Plaintiff received no annual leave or retirement benefits. He was responsible for paying his own income and social security taxes. Plaintiff's work was an important part of defendant's business, however, contract exclusions for government business and designated house accounts make clear that defendant used IMR's to supplement other direct sales. The parties had maintained a relationship for fourteen years, however, they expressly agreed that plaintiff was not and was not to represent himself as an agent or employee of defendant. Either party had the right to terminate their agreement at any time and for any reason. See Zippo, 713 F.2d at 38. Whichever test one utilizes, the pertinent factors militate heavily against a finding of employment. The court is compelled to conclude from the record adduced that plaintiff was an independent contractor and was not covered by ADEA. Accordingly, defendant's motion will be granted. NOTES [1] In his brief, plaintiff states that he was required to submit monthly "Territorial Marketing Plans" and forecasts. In his deposition, however, he testified that these Plans were submitted annually. [2] Defendant states that it terminated the agreement because plaintiff was not fulfilling his obligations and was the subject of customer complaints. Plaintiff states that his performance was "excellent." In deciding this motion, the court will assume that plaintiff was performing his work capably.

10 F.Supp. 245 (1935) PUGHE v. LYLE et al. No. 3832-S. District Court, N. D. California, S. D. March 19, 1935. *246 Francis V. Keesling, of San Francisco, Cal., Richard S. Kaplan, of Gary, Ind., and Garton D. Keyston, of San Francisco, Cal., for plaintiff. Maurice J. Rankin, of San Jose, Cal., and Thomas J. Riordan, of San Francisco, Cal., for defendants. LINDLEY, District Judge. Plaintiff is a citizen and resident of the state of Minnesota, and brings this suit against defendant Lyle, who is sheriff of the county of Santa Clara, Cal., and defendant Thomas, who is district attorney of said county. The defendants are each citizens and residents of the state of California. The amount in controversy exceeds $3,000, exclusive of interests and costs. Plaintiff is engaged in what in common parlance is known as showmanship, and promotes and conducts contests in various communities, in which young men and women engage in what are known as "Walkashows." Apparently these are successors to similar affairs known as Marathon dances. In a contest of this character, the participants, in pairs, walk continuously from the inception of the contest until eliminated or until the end, when the winners are selected. Certain rest periods and time out for hygenic, sleeping, and food purposes are allowed to all contestants. Ordinarily, the contest runs about five weeks. It was stated in court, without dispute, that the shortest one on record lasted somewhat longer than four weeks, and the longest a little over six weeks. Cash prizes are awarded to the winners. During the progress of the contest, the participants are from time to time invited to provide acts in dancing or gymnastics, attractive to the audience. The character of the exhibition is a matter hotly disputed. Plaintiff produces the evidence of reputable citizens to the effect that the contest conducted at Fresno by plaintiff was an orderly demonstration, and in no way destructive or subversive of the morals of the participants or of the spectators. Defendants, on the other hand, have submitted affidavits citing specific examples of occurrences which they describe as inimical to a desirable morale on the part of both participants and observants. Ruth Comfort Mitchell swore in her affidavit that on February 13, 1935, and again on February 14, 1935, for several hours she viewed a contest of this sort in the city of Fresno. The couples had then been walking since December 26, 1934. They appeared to her to be in a state of pitiful weariness, sleepiness, and exhaustion. They were chained together by the wrists. Because *247 of the condition of her feet, one girl was unable to wear shoes. She ran around during the evening "grind" or "treadmill" with tears streaming down her face. She finally fell and was eliminated. The floor judge from time to time directed the contestants to execute various kinds of steps at certain tempos. He blew his whistle and said, "Boys, carry the girls." Thereupon the boys would support the girls, who then went to sleep on their feet. At other times the girls held the boys, who immediately went to sleep on their feet and were steered and dragged about the floor by their girl partners. One girl fainted twice in 21 minutes, and thereby became eliminated. When she first fainted, she was unchained from her partner and carried to the emergency hospital, unconscious. The announcer reported to the audience that it was impossible to revive her. She finally returned, looking very ill and exhausted, and was again chained to her partner, remaining so until the second fainting spell, when she was eliminated. The eyes of one boy were closed and he was unable to feed himself. The witness believed the exhibition to be cruel to the contestants, degrading to the spectators, and demoralizing in its influence. Other witnesses testified that the crowd attending was largely disorderly, of low class, using loud and profane language, and that there was much cursing at all hours of day and night. Specific instances of revolting occurrences are recited; high school and grade school boys and girls attended and observed these events. On March 4, 1934, the supervisors of Santa Clara county adopted an ordinance, which appears in the footnote.[1] Plaintiff had previously leased premises and made arrangements to put on a "walkashow" in the city of San Jose, in said county, beginning March 19, 1935. He had procured a license from the tax collector and made expenditures, aggregating substantial sums of money, and preparations for the contest. Promptly upon the enactment of the ordinance, he filed his bill of complaint, wherein he prayed that defendants might be enjoined from enforcing said ordinance, on *248 the ground that it is discriminatory, unreasonable, and in violation of his constitutional rights. There was in effect at that time an ordinance enacted May 1, 1933, forbidding endurance contests. Because of its language, its validity is doubtful. The court has jurisdiction of this cause, because of the diversity of citizenship and the amount in controversy, and the plaintiff is, under the general principles of equity, within his rights in invoking the aid of this court. Where public officers act in breach of trust or without authority, or threaten so to do, and such acts will result in irreparable injury, or will make necessary a multiplicity of suits at law to obtain adequate redress, they may be enjoined. See 32 Cor. Jur. 240, 88, 247, 261, 264; and cases there cited. The question directly in issue here is the validity of the ordinance enacted March 4, 1935, and the solution of that question depends upon whether or not this ordinance is a reasonable exercise of the police power of the state. In California, the Constitution grants to counties power to make and enforce, within their limits, "all such local, police, sanitary, and other regulations as are not in conflict with general laws." Const. Cal. art. 11, § 11. This constitutes full power and authority upon the part of the county authorities to exercise all the police power that the state might exercise, in the absence of specific legislation to the contrary. The police power may be applied whenever and wherever necessary for the protection of the morals, health, or safety of the people. See 7 Cal. Jur. 534. Those matters which are subject to police regulation, McQuillan defines in his work on Municipal Corporations, vol. 3, p. 435, as follows: "Those which are dangerous, or of such a character that they may be so conducted as to affect the health, safety, morals and general welfare of the community may be regulated and the extent and reasonableness of the regulations must be determined by the inherent nature of the trade or occupation. Although the trade or occupation may be innocent and innocuous, and may be said to be pursued as of right, as distinguished from a mere privilege, the police power as regarded and enforced by the sounder judicial opinions is sufficiently broad to justify reasonable regulation when deemed necessary or desirable for the public good." In Mehlos v. City of Milwaukee, 156 Wis. 591, 146 N. W. 882, at page 885, 51 L. R. A. (N. S.) 1009, Ann. Cas. 1915C, 1102, the court said: "Public meetings and meeting places which are liable to be characterized by disorderly conditions or lead to breaches of the peace or promote immorality have, universally, been considered proper subjects for police regulation. Public dances and dance halls fall within the latter class. While, if conducted in a proper manner such a hall and its use may afford opportunity for innocent amusement, in the absence of any regulation, it tends to breed disorder, indolence, intemperance, immorality and to otherwise lower the standard of people in the social state. Such places, conducted for gain, open, in general, to all who come in suitable order to be received, no other condition being exacted except the prescribed entertainment fee, are so liable to be centers of disturbance and character lowering or destruction, that they have been subjected to pretty severe regulation by statute and city ordinances, to preserve the possible benefits of such amusement places, and prevent the possible or probable abuses." To the same effect are Ex parte Koser, 60 Cal. 177; likewise, Ex parte Moynier, 65 Cal. 33, 2 P. 728; In re Weisberg, 215 Cal. 624, 12 P.(2d) 446, and In re Sumida, 177 Cal. 388, 170 P. 823. Consequently, the right to regulate hours of closing such business as public dance halls and similar public exhibitions at reasonable hours has long been recognized and is universally supported. 55 A. L. R. 242; 43 Cor. Jur. 363; In re Sumida, 177 Cal. 388, 170 P. 823. The judicial department is not concerned with the wisdom, or lack of wisdom, of legislation. Such questions are for the legislative department, the members of which have been selected by the people, for the purpose of enacting legislation. With that function, the judiciary is not concerned, except where the legislature has acted in such an unreasonable, capricious, or arbitrary manner as to violate some provision of the basic law — the Constitution. Whether, therefore, it was wise for the supervisors of Santa Clara county to forbid public exhibitions between the hours of 1 o'clock a. m. and 8 o'clock a. m. is wholly beside the question. The only pertinent inquiry, so far as the court is concerned, is whether this restriction upon public entertainments of all character is reasonable. Little encouragement is found in the writings of distinguished jurists and legal authorities to support the proposition that a city council *249 or other legislative body may not regulate the hours of all public exhibitions, so as to eliminate therefrom all exhibitions within the early hours of the morning. This ordinance is general in character; its terms are not directed against any specific kind of public exhibition. This court believes, therefore, that it is entirely within the province of the legislative body to determine that the hours of from 1 o'clock a. m. to 8 o'clock a. m. are hours at which the public should not be invited or admitted to exhibitions of any character for profit. It is said that the third section of the ordinance discloses that the legislation was directed toward this plaintiff, and that, therefore, the ordinance is discriminatory. This section mentions no specific individual, but, if we accept plaintiff's interpretation in that respect, then, under the evidence submitted, the question is presented as to whether the plaintiff's business is such a business as the supervisors might regulate by preventing its conduct between the hours specified. The evidence submitted plainly justifies the exercise of discretion by the legislative body. Evidently the physical results upon the contestants, the effect of observation of such physical facts upon the minds of the morbidly curious who may be present between 1 o'clock a. m. and 8 o'clock a. m. at the exhibition, the repulsive incidents recited in the affidavits, the presence of school children, the effect upon their health and studies, the cursing, the necessity of police protection at all hours of the night, and the many other facts presented to the court were clearly sufficient to justify legislative action. It is not necessary to review further the facts justifying legislative action, for it is evident that the legislative body had reasonable ground for the exercise of such discretion. It is said, further, that section 3 of the ordinance, which recites the existence of an emergency, and, therefore, because thereof, makes the ordinance effective at once and prior to publication for thirty days as is ordinarily required, was not justified in fact. Ordinarily, the court will assume that an emergency existed where the legislative action has recited that fact. Morgan v. City of Long Beach, 57 Cal. App. 134, 207 P. 53; Los Angeles Dredging Company v. Long Beach, 210 Cal. 348, 291 P. 839, 71 A. L. R. 161. Irrespective of this question, and wholly aside from any question of emergency, under the California law, the ordinance will become valid at the end of the 30-day period, namely, April 4th. Consequently, the enactment of the emergency section is destructive and violative of none of plaintiff's rights. He knew, whether an emergency existed or not, that on or after April 4th the ordinance would be effective, and that he could not conduct the dance or "walkashow" for the customary period necessary to make it a success. He was bound by that knowledge; whether he could begin his operations on March 19th was wholly immaterial. The court makes no finding of ultimate fact at this time as to whether the exhibition promoted by the plaintiff is one subversive to morals and health. That subject-matter is considered only in determining whether there is anything in this record to justify a finding that the legislative body was without power to act. It is not necessary to determine such ultimate question of the character of plaintiff's exhibition. Were it necessary so to do, the court would require full and complete hearing where oral evidence could be submitted and witnesses observed. It follows, therefore, that the application for temporary injunction will be denied. The court adopts the foregoing as its findings of fact and conclusions of law, and directs that the same be incorporated in the decree herein, by way of reference. Proper decree may be submitted. NOTES [1] No. 103. "An Ordinance Prohibiting Public Exhibitions, Shows or Entertainments Between Certain Hours, and Providing a Penalty for the Violation Thereof. "The Board of Supervisors of the County of Santa Clara do ordain as follows: "Section 1. It is hereby declared unlawful for any person, firm or corporation to conduct, operate or carry on in the County of Santa Clara any exhibition, show or entertainment to which the public is invited or admitted between the hours of 1 o'clock a. m. and 8 o'clock a. m. of any day, or to keep open during such period any building or premises for the conduct, operation or carrying on of public exhibitions, shows, or entertainment; "Section 2. Any person, firm, or corporation violating any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine not to exceed five hundred dollars ($500.00), or by imprisonment in the county jail for a period not exceeding six months or both such fine and imprisonment. "Section 3. Whereas certain persons, firms or corporations propose and threaten to immediately construct and fit certain premises in this county for the purpose of conducting such public exhibitions, shows or entertainment for a continuous period so as to constitute an endurance contest or contests, and which proposed exhibitions, shows or entertainment are revolting, cruel and immoral and subversive to the morals of the citizens of this county and will attract large numbers of undesirable persons to this county and will cause public disturbances and be an immoral influence in this county, particularly affecting the younger generation, and will be a menace to and destructive of the public peace, health and safety of this county; and, whereas, such proposal and threats will be carried into effect before an ordinance prohibiting the same can become effective in the ordinary period, we therefore declare and ordain an emergency to exist and ordain that this ordinance shall take effect immediately. "Passed and adopted at a meeting of the Board of Supervisors of the County of Santa Clara, this 4th day of March, 1935. "Ayes: Supervisors Cooley, McKinnon, McClay, Hecker. "Noes: Supervisors, None. "Absent: Supervisor Ayer. "H. Hecker, "Chairman of the Board of Supervisors of the County of Santa Clara, State of California. "(Attest) Henry A. Pfister, "County Clerk and ex-officio Clerk of the Board of Supervisors of the County of Santa Clara. "By Eugene M. Don, "Deputy Clerk."

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 30, 2010 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court NORTHERN NATURAL GAS CO., Plaintiff–Appellee, v. NASH OIL & GAS, INC., Defendant–Appellant, No. 09-3135 (D.C. No. 6:08-CV-01405-WEB-DWB) and (D. Kan.) VAL ENERGY, INC., Defendant. ------------------------------ L.D. DRILLING, INC., Amicus Curiae. ORDER AND JUDGMENT* Before LUCERO, HOLLOWAY, and HOLMES, Circuit Judges. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.  Nash Oil & Gas, Inc. (“Nash”) appeals the grant of a preliminary injunction permitting Northern Natural Gas Company (“Northern”) to test four Nash gas wells. Because Northern has already conducted the tests ordered by the district court and tested the same wells pursuant to a data request issued by the Federal Energy Regulatory Commission (“FERC”), we dismiss this appeal as moot. I Northern owns an underground natural gas storage facility in south-central Kansas known as the Cunningham Storage Field. Nash operates several natural gas wells located to the north of Northern’s facility. After years of litigation between the parties over Northern’s claim that various Nash wells were producing Northern storage gas, Northern applied for FERC permission to expand its certificated storage field to include an additional 4,800 acres. N. Natural Gas Co., 125 F.E.R.C. ¶ 61,127, at 61,629 (2008). FERC found that Northern storage gas had migrated into a portion of the proposed expansion area and granted the application in part, permitting Northern to extend its certificated boundary to cover an additional 1,760 acres. Id. at 61,635. In December 2008, Northern filed suit against L.D. Drilling, Inc., Val Energy, Inc., and Nash in the United States District Court for the District of Kansas. Alleging that defendants are producing Northern storage gas by creating “pressure sinks” that cause Northern storage gas to migrate to defendants’ wells, Northern’s complaint asserts claims for declaratory and injunctive relief, conversion, unjust enrichment, nuisance, tortious interference with a business relationship, and civil conspiracy. -2-  Northern moved for a preliminary injunction to compel Nash to permit testing of four wells, citing a Kansas statute that grants injectors of natural gas the right to test wells on “adjoining property” to determine if gas migration has occurred. Kan. Stat. § 55-1210(c)(2). The district court acknowledged that each of the four wells is located at least a mile from the boundary of Northern’s certificated storage field. However, the court further found that all four Nash wells were located on property adjoining sections in which Northern had obtained storage lease rights: Two wells were located in sections in which Northern had storage lease rights, and the others were located in sections adjoining those in which Northern had storage lease rights. The district court concluded that the lease rights qualified Nash’s wells as “adjoining property” and granted Northern’s motion. Nash timely appealed. While this appeal was pending, Northern collected and tested gas samples from each of the four Nash wells at issue. Based in part on these tests, Northern filed a new application with FERC in September 2009 to expand the certificated boundaries of the Cunningham Storage Field. After Nash voluntarily intervened, FERC issued a data request requiring Nash to submit gas samples from the four wells. Northern subsequently collected gas samples pursuant to FERC’s order and submitted the resulting information to FERC. II Before addressing the substance of Nash’s appeal, we must first determine if we -3- have jurisdiction. Northern contends we lack jurisdiction because the appeal is moot.1 “To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (quotation omitted). In determining whether a case is moot, we ask “whether granting a present determination of the issues offered . . . will have some effect in the real world.” Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246 (10th Cir. 2009) (ellipses in original, quotation omitted). A case is moot if we can no longer grant effective relief as a practical matter. Id. “If a party to an appeal suggests that the controversy has . . . become moot, that party bears the burden of coming forward with the subsequent events that have produced that alleged result.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98 (1993) (citation omitted). Since entry of the district court’s order, Northern has completed the ordered testing. Accordingly, we cannot offer Nash meaningful relief: We cannot undo tests that have been completed. Nash argues that we could impose limits on Northern’s use of the test results, but this too would be ineffectual. Pursuant to a FERC data request, Northern again sampled the four Nash wells and obtained information regarding the composition of natural gas in the wells—information that is entirely redundant with the information 1 Northern also argues that Nash lacks standing to appeal. Because we conclude this appeal is moot, we need not address Northern’s standing argument. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997). -4- obtained as a result of the district court’s order. We lack “jurisdiction to interfere with an ongoing proceeding before FERC.” N. Natural Gas Co. v. Trans Pac. Oil Corp., 529 F.3d 1248, 1252 (10th Cir. 2008). Thus an order restricting Northern’s use of the court- ordered testing would have no actual “effect in the real world.” Kan. Judicial Review, 562 F.3d at 1246; cf. Navani v. Shahani, 496 F.3d 1121, 1127-30 (10th Cir. 2007) (proceedings before another tribunal can moot an action when they foreclose relief in the instant action).2 Nash further argues that this case remains fit for adjudication because the question (as characterized by Nash) of whether the district court could expand Northern’s storage rights “is a live and active controversy,” and because Nash could sue for wrongful 2 At oral argument, Nash’s counsel raised two arguments not included in its briefing on the mootness issue. First, counsel stated that the information obtained from the FERC-ordered testing was subject to a protective order restricting its use. Second, counsel argued that the appeal was not moot because information with respect to well bores, depths, manners of completion, and pressure was not provided to FERC and thus could be subject to a meaningful restrictive order. We generally do not consider issues raised for the first time at oral argument. See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997). Further, Northern’s counsel disputed Nash’s characterizations at oral argument, and submitted a Fed. R. App. P. 28(j) letter showing the district court heard testimony and admitted exhibits regarding the FERC-ordered test results. This information suggests the FERC tests are not subject to a protective order. Nash did not file a response. Nor has it cited evidence of a protective order or the information it contends was included in the court-ordered testing but not the FERC-ordered testing. Finally, we note that Nash’s counsel conceded at oral argument that the continuing injury for which it seeks redress on appeal is Northern’s use of information regarding the “content and nature of the gas” rather than “these other matters.” The content and nature of the gas, as discussed above, has been obtained by Northern by alternative means. -5- injunction if we reversed. These arguments miss the mark. An appeal becomes moot when the court can no longer grant the appellant effective relief. See Mills v. Green, 159 U.S. 651, 653 (1895). We may not “declare principles or rules of law [that] cannot affect the matter in issue in the case before” us. Id. This prohibition holds true even if the rule appellant urges us to articulate might be used in future proceedings. California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893) (Federal courts are “not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.”).3 We therefore lack jurisdiction to address the issues Nash identifies, even if our holdings on those issues might aid Nash in some other proceeding. III For the foregoing reasons, we DISMISS the appeal as moot.4 All pending 3 Exceptions to this rule exist when an issue is “capable of repetition yet evading review” or when “the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time.” Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002). Nash does not contend that either exception applies in this case. 4 Although as a general rule we have a duty to vacate lower court judgments when we dismiss a case as moot, see United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950), “[t]he duty to vacate . . . is not to be fulfilled sua sponte by the court, but rather a motion by one of the parties is required,” Plotner v. AT&T Corp., 224 F.3d 1161, 1169 (10th Cir. 2000); see Munsingwear, 340 U.S. at 40-41. Neither party has moved to vacate the district court’s judgment nor mentioned such relief in its briefing. We therefore dismiss the appeal without vacating the judgment below. -6- motions not addressed by this order and judgment are DENIED. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge -7- 

Case: 17-30514 Document: 00514586577 Page: 1 Date Filed: 08/06/2018 REVISED August 6, 2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-30514 August 2, 2018 Summary Calendar Lyle W. Cayce Clerk DURWIN ABBOTT, Plaintiff - Appellant v. PERCY BABIN, Captain; TYRONE KILBOURNE, Master Sergeant, Defendants - Appellees Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:15-CV-505 Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Durwin Abbott, Louisiana prisoner # 316843, challenges the district court’s failure to grant a new trial, contesting an instruction and the jury- verdict form for his excessive-force and negligence action against two correctional officers at Dixon Correctional Institute. * 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.  Case: 17-30514 Document: 00514586577 Page: 2 Date Filed: 08/06/2018 No. 17-30514 Abbott pursued this action under 42 U.S.C. § 1983 and Louisiana state law, claiming Captain Percy Babin and Master Sergeant Tyrone Kilbourne, inter alia, used excessive force against him in violation of his Eighth Amendment rights. More specifically, Abbott alleged Captain Babin ordered a “shake down” of, and repeatedly punched, Abbott, and Master Sergeant Kilbourne placed Abbott in a chokehold. The officers’ summary-judgment motions were denied, and this action proceeded to a jury trial. At the close of the evidence, the court held a jury-instruction conference under Federal Rule of Civil Procedure 51(b)(2). At that conference, Abbott requested the inclusion of the terms “unnecessary force” and “corporal punishment” in the definition of “excessive force”; the court granted the request for its instruction but did not include those terms in the jury-verdict form. The following morning, Abbott expressed concern over the terms’ not being included in the jury-verdict form. Nevertheless, after the court gave Abbott permission to include the terms in closing argument, Abbott stated he was “okay with just leaving it as excessive force”. Adhering to our circuit’s pattern jury instructions, the jury-verdict form contained separate interrogatories for excessive force, negligence, qualified immunity, and damages. Question one asked whether Captain Babin and Master Sergeant Kilbourne used excessive force against Abbott; question two, whether Abbott “suffered some harm as a result of [d]efendant[s’] . . . use of force”. The jury was to answer the questions on qualified immunity and damages only if it answered “yes” to questions one and two. After the jury returned a verdict, the court, sua sponte, determined the jury erred in failing to answer the questions concerning Abbott’s negligence claim. At that time, Abbott objected to the verdict form’s not allowing the jury to answer the question on nominal and punitive damages if the jury answered 2  Case: 17-30514 Document: 00514586577 Page: 3 Date Filed: 08/06/2018 No. 17-30514 “no” to either question one or two. The court overruled the objection, ruling the verdict form was correct because, in order to prove an Eighth Amendment violation and receive any damages, Abbott was required to show some harm as a result of the excessive force. The jury answered “yes” to question one as to Captain Babin but “no” to question two, finding Captain Babin, but not Master Sergeant Kilbourne, used excessive force, but Abbott did not suffer any harm. Regarding the negligence claim, the jury found that Captain Babin and Master Sergeant Kilbourne failed to exercise reasonable care, but that their actions did not cause Abbott’s injuries. Following the guidance by the jury-verdict form, the jury did not reach the issue of damages. The court denied Abbott’s new-trial motion. Abbott claims the court erred in denying that motion because the court: did not include the terms “unnecessary force” and “corporal punishment” in question one of the jury- verdict form; and did not allow the jury to award nominal or punitive damages unless it found Abbott suffered “some harm” as a result of the excessive force. This court generally reviews challenges to jury instructions for abuse of discretion, “affording the trial court substantial latitude in describing the law to the jurors”, Jimenez v. Wood Cty., 660 F.3d 841, 844–45 (5th Cir. 2011) (en banc); but unpreserved challenges are reviewed only for plain error, United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012); Highlands Ins. Co. v. Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994). Under the plain- error standard, Abbott must show a forfeited plain error (clear or obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct such reversible plain error, but 3  Case: 17-30514 Document: 00514586577 Page: 4 Date Filed: 08/06/2018 No. 17-30514 generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. In the ordinary case, Abbot would have waived his objection to the non- inclusion of the terms “unnecessary force” and “corporal punishment” in the jury-verdict form by his withdrawing the objection. E.g., United States v. Musquiz, 45 F.3d 927, 931–32 (5th Cir. 1995). But, in ruling on Abbott’s motion for a new trial, the district court instead reviewed the claimed error under the plain-error standard. Assuming Abbott did not waive his objection, his claim fails under that standard. E.g., Puckett, 556 U.S. at 135. Along that line, any error was not clear or obvious, because, inter alia, question one of the verdict form was essentially identical to this circuit’s pattern jury instruction, which does not include the terms “unnecessary force” and “corporal punishment”. Fifth Circuit Pattern Jury Instruction (Civil) § 10.7A (2014). Further, in its instructions, the court had included “corporal punishment” and “unnecessary force” in defining “excessive force”. For his second claimed error, Abbott did not timely object to the verdict form’s not permitting the jury to reach the damages issue unless it found both excessive force and “some harm” as a result of such force. An objection to a jury instruction is timely if made: when the court gives each party an opportunity to object before closing arguments; or after such time if “a party was not informed of an instruction . . . and the party objects promptly after learning that the instruction . . . will be, or has been given”. Fed. R. Civ. P. 51(c). The court gave Abbott an opportunity to object to question one before closing arguments, but Abbott objected only after the jury returned its first verdict. Therefore, review is again only for plain error. E.g., Jimenez, 660 F.3d at 844–45. 4  Case: 17-30514 Document: 00514586577 Page: 5 Date Filed: 08/06/2018 No. 17-30514 Abbott has not shown the verdict form’s requiring “some harm” before damages could be awarded constituted the requisite clear or obvious error. Puckett, 556 U.S. at 135. First, our court has noted the “powerful interests in orderliness and finality” compelling deferential review of unpreserved jury- instruction errors: “Few jury charges in cases of complexity will not yield ‘error’ if pored over, long after the fact . . . —if such an enterprise is to be allowed”. Highlands Ins. Co., 27 F.3d at 1032. Second, as discussed supra, the court copied questions one and two verbatim from this circuit’s pattern jury instructions. Fifth Circuit Pattern Jury Instruction (Civil) § 10.7A (2014); e.g., United States v. Andaverde-Tinoco, 741 F.3d 509, 516 (5th Cir. 2013) (alleged jury-charge error was not “clear or obvious” when it was “almost identical to the charge found in the . . . Pattern Jury Instructions”). Finally, it is not clear or obvious that “some harm” is not an element of an excessive-force claim under the Eighth Amendment. Puckett, 556 U.S. at 135. Although the Supreme Court in Hudson v. McMillian, 503 U.S. 1, 5–9 (1992), and Wilkins v. Gaddy, 559 U.S. 34, 37–39 (2010), criticized courts of appeals for requiring “some arbitrary quantity of injury” to maintain an excessive-force claim, the Court did not eliminate the required element of at least some harm or injury to maintain an Eighth Amendment claim. Wilkins, 559 U.S. at 37–38 (“An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.” (internal quotation marks and citations omitted)). AFFIRMED. 5 

137 F.3d 1352 U.S.v.Anderson** NO. 97-40567 United States Court of Appeals,Fifth Circuit. February 12, 1998 Appeal From: E.D.Tex. ,No.696CR501 1 Affirmed. ** Conference Calendar

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-1464 _____________ RAIDERY JOSE HERNANDEZ CARABALLO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ ON PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS Immigration Judge: Walter A. Durling (A061-491-327) ______________ Submitted Under Third Circuit L.A.R. 34.1(a) November 13, 2018 ______________ Before: GREENAWAY, JR., SHWARTZ and BIBAS, Circuit Judges. (Opinion Filed: February 28, 2019) ______________ OPINION* ______________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge. Petitioner Raidery Caraballo appeals from a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from a decision of an Immigration Judge (“IJ”) finding him removable. The IJ found that, due to his conviction in Pennsylvania for possession of heroin, Caraballo was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).1 For the reasons set forth below, we will deny his petition for review. Caraballo is a citizen of the Dominican Republic who entered the United States as a lawful permanent resident in 2011. Based on his plea to a violation of 35 PA. STAT. AND CONS. STAT. ANN. § 780-113(a)(16),2 he was served with a Notice to Appear on January 3, 2017, charging him as removable under 8 U.S.C. § 1227(a)(2)(B)(i). Before the IJ, Caraballo filed a motion to terminate removal, arguing that the Government’s evidence did not establish what controlled substance Caraballo was convicted of possessing. The IJ denied that motion. Caraballo then filed an application for asylum, 1 In pertinent part, 8 U.S.C. § 1227(a)(2)(B)(i) provides that “[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” Heroin is a controlled substance pursuant to 21 U.S.C. § 802. 2 Section 780-113(a)(16) prohibits “[k]nowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.” 35 PA. STAT. AND CONS. STAT. ANN. § 780-113(a)(16). 2 which he later voluntarily withdrew. Before his merits hearing, Caraballo filed a motion for a continuance in order to challenge his conviction in a Post-Conviction Relief Act proceeding. The IJ denied that motion and entered an order of removal. Caraballo sought review before the BIA, where he challenged the denial of his motions to terminate and for a continuance. The BIA found no error in the IJ’s decision to deny the continuance3 and dismissed on the merits, agreeing with the IJ that the conviction records established that Caraballo pleaded guilty to possession of heroin4 in violation of § 1227(a)(2)(B)(i), and was therefore removable. Caraballo then filed a petition for review before this Court. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review legal determinations de novo and findings of fact for substantial evidence. Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). When the BIA issues a separate opinion, we review the BIA’s disposition and look to the IJ’s ruling only insofar as the BIA deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Caraballo raises two arguments before us. First, he asserts that the BIA violated 8 3 Caraballo does not challenge that decision before us. 4 In its opinion, the BIA indicated that the conviction records, including the information and sentencing sheet, “clearly indicate[d] that the respondent pled guilty to possession of heroin,” and that it was “satisfied that the respondent [was] removable for having been convicted . . . of a controlled substance offense under section 237(a)(2)(B)(i) of the Immigration and Nationality Act.” A.R. 3. The BIA further noted that “[i]t is undisputed that heroin is a controlled substance under the Federal Controlled Substances Act. As such, the respondent was properly found removable as charged.” Id. 3 C.F.R. § 1003.1(e)(4) by not issuing an appropriate opinion in dismissing his appeal. Second, he argues that the BIA and IJ erred in relying on the criminal information in order to determine that he was convicted of a controlled substance offense. Caraballo’s argument that the BIA violated 8 C.F.R. § 1003.1(e)(4) by affirming the IJ’s decision “without reasoning” borders on frivolous. Appellant’s Br. at 12. As an initial matter, the argument mischaracterizes the regulation and its application here. Section 1003.1(e)(4) permits the BIA to affirm an IJ’s decision without opinion and provides mandatory language to be used in doing so. Here, the BIA did not invoke that option, instead issuing an opinion of its own. Therefore, § 1003.1(e)(4) does not apply. Caraballo’s disagreement with the BIA’s reasoning does not transform the opinion into an order. We will therefore deny Caraballo’s petition with regard to this argument. Asserting that his Pennsylvania crime of conviction is broader than the corresponding federal offense, Caraballo next argues that the IJ and BIA considered inappropriate documents when they used the modified categorical approach to determine that his conviction for a violation of 35 PA. STAT. AND CONS. STAT. ANN. § 780- 113(a)(16) satisfied the requirements of 8 U.S.C. § 1227(a)(2)(B)(i). In determining whether a state offense satisfies the criteria set forth in the federal immigration statutes, courts must determine if the state offense proscribes conduct identified in the immigration statutes. Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016). In making this comparison, “we generally employ a ‘categorical approach’ to the underlying statute of conviction . . . ‘focus[ing] solely on whether the elements of the crime of conviction 4 sufficiently match the elements of [the] generic [federal offense], while ignoring the particular facts of the case.’” Id. (internal citation omitted) (quoting Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)). When the state statute defines multiple crimes, we apply a modified categorical approach, in which we consider various factors beyond the language of the statute, such as “the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Id. at 278-79 (quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation marks omitted)). Although we have never determined in a precedential opinion whether § 780-113(a)(16) is divisible and thus subject to the modified categorical approach analysis,5 Caraballo does not raise that issue before us. Relying on Matter of Ayala- Cuevas, A72-752-372, 2003 WL 23216901 (BIA Oct. 2, 2003), he accepts the BIA’s use of the modified categorical approach. Instead, Caraballo focuses his argument on his assertion that the documents relied upon by the IJ and BIA in reaching their decisions were inappropriate. Specifically, relying on Moncrieffe v. Holder, he argues that “[t]he information, or charging document, cannot be used to establish the conviction in the case of a guilty plea.” Appellant’s Br. 19. This argument misstates the guidance provided by Moncrieffe. As we recognized in Singh, rather than prohibiting consideration of the charging document, the Court in Moncrieffe acknowledged that use of a plea agreement, 5 Parenthetically, we have, however, reached this conclusion in a not precedential opinion. Espinoza v. Att’y Gen., 742 F. App’x 666 (3d Cir. 2018). 5 in addition to a charging document, was appropriate. Singh, 839 F.3d at 279. In applying the modified categorical approach here, the IJ and the BIA relied upon the criminal information, which, in Count One, charged Caraballo with “possess[ion] of a controlled substance to wit: HEROIN,” in violation of § 780-113(a)(16). A.R. 252. Caraballo signed the information, acknowledging that he was pleading “Guilty to Count One only.” Id. We agree with the IJ and BIA that the criminal information, signed by Caraballo acknowledging his plea to Count One, is an appropriate basis for concluding that Caraballo committed an offense involving heroin, a controlled substance pursuant to 21 U.S.C. § 802(6).6 This offense renders Caraballo removable under § 1227(a)(2)(B)(i). Caraballo also argues that the criminal complaint that preceded his criminal information did not specify the substance that he was convicted of possessing. Since the criminal complaint here was “superseded by the criminal information” and is therefore “not the relevant charging document,” Evanson v. Att’y Gen., 550 F.3d 284, 293 n.7 (3d Cir. 2008), this argument must fail. For the foregoing reasons, we will deny the petition for review. 6 In addition to consideration of the signed criminal information being permissible under our case law, we also find that consideration of this document is appropriate pursuant to 8 C.F.R. § 1003.41(d), as a form of “[a]ny other evidence that reasonably indicates the existence of a criminal conviction.” 6 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-1654 ______________ MICHAEL SCOTT TRACEY, Appellant v. COMMISSIONER SOCIAL SECURITY ______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-17-cv-00470) Honorable Malachy E. Mannion, District Judge ______________ Submitted under Third Circuit L.A.R. 34.1(a) October 22, 2018 BEFORE: KRAUSE, COWEN, and FUENTES, Circuit Judges (Filed: January 22, 2019) ______________ OPINION* ______________ ____________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. COWEN, Circuit Judge. Michael S. Tracey appeals from the order of the United States District Court for the Middle District of Pennsylvania adopting the report and recommendation of the Magistrate Judge, denying Tracey’s appeal from the decision of the Commissioner of Social Security (“Commissioner”), and affirming the Commissioner’s decision. We will affirm. I. Tracey filed for disability insurance benefits and supplemental security income. After his claim was initially denied, an Administrative Law Judge (“ALJ”) conducted an evidentiary hearing. He found that Tracey was not disabled under the Social Security Act. Specifically, the ALJ determined that Tracey possessed the residual functional capacity (“RFC”) to perform light work with the following exceptions: [O]ccasional stoop, kneel, crouch, crawl and climb stairs; must avoid hazards such as unprotected heights; and can perform occasional handling and fingering with the dominant right upper extremity. The claimant can understand, remember and carry out simple work related instructions, is limited to exercising only simple work related judgments, requires no more than occasional changes to the routine work setting, and can perform only occasional interactions with the public, coworkers and supervisors. (A66 (emphasis omitted).) Finding that Tracey was unable to perform his past relevant work, the ALJ determined that “[c]onsidering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (A71 (emphasis omitted) (citations omitted).) “The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative 2 occupations such as a conveyor line bakery worker, DOT#524.687-022 (88,000 jobs in the national economy), an egg candler, DOT#529.687-074 (98,000 jobs in the national economy) and a car[d]ing machine operator, DOT#681.685-030 (130,000 jobs in the national economy).” (A71.) The ALJ further determined “that the vocational expert’s testimony [was] consistent with the information contained in the Dictionary of Occupational Titles.” (Id.) After his administrative appeal was denied, Tracey filed a complaint with the District Court. In a report and recommendation, the Magistrate Judge recommended that the Commissioner’s final decision be affirmed and that Tracey’s requests for relief be denied. The Magistrate Judge explained that, “[a]s defined [in the Dictionary of Occupational Titles (“DOT”), which includes the companion publication the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (‘SCO’)], the job [of conveyor line bakery worker] is capable of performance by someone with Mr. Tracey’s RFC limitation.” Tracey v. Berryhill, Civil No. 3:17-cv- 00470, 2018 WL 1100392, at *6 (M.D. Pa. Feb. 5, 2018) (Saporito, U.S.M.J.) (“Tracey I”). Accordingly, any error regarding the other two jobs identified by the ALJ would be harmless. See id. at *7-*8. Tracey filed objections to the Magistrate Judge’s report and recommendation. The District Court overruled his objections and adopted the report and recommendation: “The court finds that Judge Saporito correctly found that the ALJ did not err in finding that plaintiff could perform the job of conveyor line bakery worker based on plaintiff’s RFC finding that he was limited in the amount of handling and fingering with his upper 3 right extremity and, based on the [DOT] description of that job.” Tracey v. Berryhill, Civil No. 3:17-cv-00470, 2018 WL 1096430, at *3 (M.D. Pa. Feb. 28, 2018). “The DOT states that the job of bakery worker requires occasional handling and no fingering and, this is within the plaintiff’s RFC limitations.” Id. Accordingly, the District Court denied Tracey’s appeal from the Commissioner’s decision and affirmed the administrative ruling. II. It is undisputed that, in this case, the ALJ had to assess whether, considering Tracey’s age, education, work experience, and RFC, he was able to perform other work that exists in significant numbers in the national economy.1 See, e.g., 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c). The RFC is defined as “‘that which an individual is still able to do despite the limitations caused by his or her impairment(s).’” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)). “ALJs rely primarily on the [DOT] (including its companion publication the [SCO]). SSR 00-4p, 2000 WL 1898704 at *2. ALJs also often rely on testimony by VEs [vocational experts] retained by the Social Security Administration.” Tracey I, 2018 WL 1100392, at *5. Tracey argues that the Magistrate Judge improperly denied his claim “based solely on the premise that Mr. Tracey could perform the job of a conveyor line bakery worker on a full-time, sustained basis if he was 1 The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g), and we have appellate jurisdiction under 28 U.S.C. § 1291. Like the District Court, we review the Commissioner’s factual findings under a substantial evidence standard. See, e.g., Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). 4 only able to perform the visual aspects of the position.” (Appellant’s Brief at 7.) Purportedly, “there is simply no evidence of record to support the Commissioner’s position that an individual can work on a full-time sustained basis as a conveyor line bakery worker without using their dominant upper extremity on more than an occasional basis.” (Id. at 13.) According to Tracey, the ALJ and the Magistrate Judge misread the DOT narrative definition or description of this job and overlooked the general description of light work. Tracey also contends that “[t]he discussion between the ALJ and the vocational expert as to Mr. Tracey’s ability to mentally perform the duties of a conveyor line bakery worker is equivocal as to whether the position is within the ALJ’s mental RFC assessment of Mr. Tracey,” the DOT’s job description is silent on this mental capacity issue, and the Magistrate Judge failed to address his mental limitations. (Id. at 7.) Finally, he asserts that the ALJ failed to clarify the apparent conflicts between the DOT and the vocational expert’s testimony and that neither the ALJ nor the vocational expert relied on anything other than the DOT’s narrative description of the job. We conclude that the ALJ’s finding that Tracey could perform the job of conveyor line bakery worker was supported by substantial evidence. The vocational expert specifically indicated that a hypothetical individual—who, inter alia, is limited to “only occasional handling and fingering with dominant right upper extremity” and “can understand, remember, and carry out simple work relate[d] judgments, can exercise only simple work related judgments, limited to no more than occasional interactions with members of the public, coworkers, and supervisors” (A93)—could perform the occupation of conveyor line bakery worker. According to the expert, “one example 5 would be conveyor line bakery worker, DOT number 524.687-022.” (A94.) “The [DOT narrative] definition begins with the qualifier, ‘Performs any combination of following tasks in preparation of cakes along conveyor line….’” Tracey I, 2018 WL 1100392, at *6 (citation omitted). As the Magistrate Judge explained, there are elements of the job that would not require more than occasional use of Tracey’s upper right extremity, e.g., “Reads production schedule or receives instructions regarding bakery products that require filling and icing,” and “Notifies supervisor of malfunctions.” DOT #524.687- 022, 1991 WL 674401. The SCO (the DOT’s “companion” publication) states that the job requires “Handling: Occasionally—Exists up to 1/3 of the time” and “Fingering: Not Present—Activity or condition does not exist.” Id. Regarding the issue of mental capacity, it appears undisputed that “[t]he DOT assigns the Conveyor Line Bakery Worker occupation the lowest rating in the ‘people’ category [i.e., the ‘8’ in the ‘687’ occupation code], defined as ‘Taking Instructions-Helping.’” (Appellee’s Brief at 16 (footnote omitted).) The ALJ’s hypothetical question also incorporated Tracey’s mental limitation, and the vocational expert identified conveyor line bakery worker as an appropriate occupation. III. For the foregoing reasons, we will affirm the order of the District Court. 6 

2 F.2d 644 (1924) FARKAS v. UNITED STATES. No. 4047. Circuit Court of Appeals, Sixth Circuit. December 13, 1924. *645 George P. Hahn, of Toledo, Ohio (Scott Stahl and John B. McMahon, both of Toledo, Ohio, on the brief), for plaintiff in error. Geo. E. Reed, Asst. U. S. Atty., of Toledo, Ohio (A. E. Bernsteen, U. S. Atty., of Cleveland, Ohio, and George E. Reed, Asst. U. S. Atty., of Toledo, Ohio, on the brief), for the United States. Before DENISON, MACK, and DONAHUE, Circuit Judges. MACK, Circuit Judge. Defendant was found guilty and sentenced cumulatively to one year's imprisonment and $1,000 fine, on each of the first and fifth of the ten counts in an indictment brought under section 145 of the Criminal Code (Comp. St. § 10315). The counts are identical, except that in the first four William Suto, in the fifth Mike Mincheff, and in the last five Steve Banyas, is named as the victim. In each count a different date of demand and receipt is alleged. The verdict as to each of the other counts reads, — "The defendant is disagree." The substance of count 1 and section 145 of the Criminal Code, on which the indictment was based, are copied in the footnote.[1] 1. The informality in the verdict as to all counts except 1 and 5 is immaterial. Clearly the purport of it is that the jury disagreed as to the guilt of the defendant on these counts. 2. While the act does not expressly specify to whom the information is to be given or from whom it is to be concealed, it is unnecessary to consider in this case whether or not it should be construed as requiring a federal official to be such person, because the indictment specifically charges that he was "a proper prohibition enforcement officer of the United States." *646 3. There is no evidence, however, that as to Mincheff any federal official was to be involved; on the contrary, the threats testified to specifically mentioned state officials, and apparently referred to violations not of federal but of state laws. There was error in not directing a verdict as to the fifth count. 4. The testimony established that defendant, a Hungarian by birth, who had acquired a legal education in Hungary and who called himself a Hungarian attorney, had obtained a position of prominence and influence, politically and otherwise, in the Hungarian community at Toledo, where for upwards of 15 years he had been engaged in the business of selling steamship tickets and foreign exchange to his countrymen; that he was accustomed to furnish bail and advance fines and costs imposed on them in criminal cases and to act therein as their interpreter; that he was well acquainted with local judges and officials; and that in that vicinity he had often represented the Consular Department of the Austro-Hungarian Empire and since the war the Hungarian government. It is conceded that he had dealings with William Suto; Suto had loaned him a considerable sum of money some years before the acts in question, for which, as well as for merchandise bought, defendant was still indebted to him. The testimony on behalf of the government in support of the first four counts is primarily that of William Suto, who, like most of the government witnesses, spoke through an interpreter. His testimony tends to show that defendant, on November, 1922, with knowledge that Suto had been, was and intended to continue violating the National Prohibition Act, demanded money of Suto, saying: "That he could protect him and make it sure that I would not be bothered if I paid him money. * * * That he will guarantee that nobody will bother us. * * * That he will fix it with the federal officers that I would not be bothered. * * * That if we would not pay that ($50 each for five of them) he would have us all locked up. * * * He would have us all put into federal court; that is, brought into federal court. * * * It ($50) was to be paid for protection against being raided by federal men. * * * That he would have us raided and caught if we were selling whisky. * * * We could go ahead and sell whisky without any fear of interference if we paid him that money. He also said that if we did not pay him, he would set Ray and Bach (city officers) on us right away. * * * That he would have us all arrested if we did not pay. * * * That nobody, no officers would bother those that paid. * * * That he was on very good terms with Judge (naming a federal judge). * * * That he would fix it with" that judge and a commissioner whom the witness named. On cross-examination he testified that he had been arrested and brought both to the state and federal courts and that he had continued to sell to his friends after his police court arrest because defendant "told him to go ahead and he would fix it up with the federal men, and he did fix it up with the federal men because I did not answer any charge in the federal court." This testimony, if believed, as it was, by the jury, suffices to establish that the dealings were in reference, in part at least, to violations of federal law and to action or nonaction of federal officers. It is urged, however, that on this testimony, the demand for money was not under threat to inform or as a consideration for not informing as to the past violations but only for "protection," meaning thereby interference by officials with future violations. In our judgment, the testimony supports the contention that the money was demanded for "protection" against raids in the future and criminal proceedings that might otherwise be brought both for past and for future violations of both federal and state laws. "Protection," as used by this and other witnesses, involves, in our judgment, the not informing proper officials. It was for this, in part at least, that money was testified to have been demanded; in part, too, it was expressly testified to have been demanded under a threat so to inform. The language of the act is broad — "any violation of any law of the United States." In our judgment, this is not to be construed as limited to past violations; the evil sought to be guarded against is as serious, even though it be not perhaps as extensive, in the case of a contemplated future as of a completed past violation of law; and this, too, though such demand of money for action or nonaction, especially in relation to future violations, may be punishable under the conspiracy and other statutes. See Roberts v. U. S., 248 F. 873, 877, 160 C. C. A. 631 (C. C. A. 9); United States v. Fero (D. C.) 18 F. 901, 904. If knowledge of either past or contemplated violations of a federal law has been acquired, the demand of payment for "protection," *647 that is, for protection against its consequences necessarily, in our judgment, implies a threat to inform and an offer not to inform. 5. Evidence of similar offenses is admissible as bearing upon the intent of a defendant and therefore upon the likelihood of a similar intent, in case the other elements of the crime charged should have been proven. The charge is susceptible of a somewhat broader interpretation, that is, as permitting the jury to consider similar offenses, not merely as bearing upon intent alone, but also as evidencing a likelihood to commit all of the acts essential to the crime. But in this case intent was not in issue. If the money demand was made under threat of informing or in consideration of not informing, no further specific intent is required. Therefore the entire evidence of similar offenses and, of course, of different offenses, should have been excluded. Crinnian v. U. S. (C. C. A.) 1 F.(2d) 643. 6. The prosecuting witnesses, before the time of the trial, had pleaded guilty to an indictment in the federal court; the verdict of guilt or innocence in the instant case depended primarily upon their credibility as against that of defendant who testified in denial of the demands and threats. As bearing upon their credibility, motive for false accusations, as well as bias, was vitally relevant, and testimony tending to show such motive was entirely competent. Concededly promises of immunity are admissible; they are, however, rarely made. Inasmuch as the question involved is the motive for testifying falsely and therefore the state of mind of the prosecuting witnesses, the relevant evidence is not alone the acts or attitude of the district attorney but anything else that would throw light upon the prosecuting witnesses' state of mind. It is therefore entirely proper, either by cross-examination of the witness himself, or otherwise, to show a belief or even only a hope on his part that he will secure immunity or a lighter sentence, or any other favorable treatment, in return for his testimony, and that, too, even if it be fully conceded that he had not the slightest basis from any act or word of the district attorney for such a belief or hope. The fact that despite a plea of guilty long since entered, the witness had not yet been sentenced, is proper evidence tending to show the existence of such hope or belief. The trial judge, although at one time during the taking of testimony he had so ruled, later sustained the objection to similar testimony, and finally not only refused an instruction that the jury might consider the fact of the delayed sentence as bearing on such hope, but expressly instructed counsel that they must not argue the matter as affecting the motives of the witnesses. In our judgment, this was such error as to compel a reversal in the instant case. Stevens v. People, 215 Ill. 601, 74 N. E. 786; State v. Kent, 4 N. D. 577, 62 N. W. 631, 27 L. R. A. 686. 7. Inasmuch as the case must be tried again, we deem it unnecessary to consider, in detail, other objections. We have noted certain highly prejudicial acts on the part of the district attorney, in continually bringing in material clearly irrelevant. Reversed and remanded. NOTES [1] Count 1, after the usual introduction, proceeds: "That Geza Farkas, * * * on or about the 8th day of November, 1922, at Toledo, * * * unlawfully * * * did demand, accept and receive * * * $50.00 * * * from one William Suto under a threat of informing and as a consideration for not informing against the said William Suto as a violator of a law of the United States, that is to say, for not reporting to the proper prohibition enforcement officer of the United States that said William Suto had violated * * * the National Prohibition Act." Criminal Code, § 145, reads: "Whoever shall, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demand or receive any money or other valuable thing, shall be fined not more than two thousand dollars, or imprisoned not more than one year, or both."

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION Cause number: 01-18-00906-CR Style: Kiara Taylor v. The State of Texas Date motion filed*: February 21, 2019 Type of motion: Fourth Motion for Extension of Time to File Reporter’s Record Party filing motion: Court Reporter Jennifer Slessinger Document to be filed: Reporter’s Record Is appeal accelerated? No. If motion to extend time: Original due date: December 3, 2018 Number of extensions granted: 3 Current Due Date: February 25, 2019 Date Requested: March 8, 2019 (95 days from original deadline) Ordered that motion is:  Granted If document is to be filed, document due: March 8, 2019.  No further extensions of time will be granted.  Denied  Dismissed (e.g., want of jurisdiction, moot)  Other: The Clerk of this Court’s February 4, 2019 notice stated that this Court granted the reporter’s third extension request until February 25, 2019, with no further extensions to be granted absent extraordinary circumstances. Because the court reporter’s fourth extension request provides extraordinary circumstances, it is granted, but the reporter is warned that no further extensions will be granted. See TEX. R. APP. P. 10.5(b)(1)(C), 35.3(c). Accordingly, if the reporter’s record is not filed by March 8, 2019, the Court may abate for a show-cause hearing to determine whether Jennifer Slessinger should be held in contempt. See TEX. R. APP. P. 37.3(a)(2). Judge’s signature: ___/s/ Justice Evelyn V. Keyes________ x Acting individually Acting for the Court Date: _February 26, 2019______ 

Filed 4/9/13 P. v. Amaya CA2/5 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 FIVE THE PEOPLE, B231525 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA110203) v. TOMAS AMAYA, Jr. et al., Defendants and Appellants. APPEALS from judgments of the Superior Court of the County of Los Angeles, Paul A. Bacigalupo, Judge. Affirmed. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Tomas Amaya, Jr. Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant Aldo Arevalo. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.  INTRODUCTION Their respective juries found defendant and appellant Tomas Amaya (Amaya) guilty of first degree murder and defendant and appellant Aldo Arevalo (Arevalo) guilty of second degree murder and assault by means of force likely to produce great bodily injury. On appeal, Arevalo raises several challenges to his judgment of conviction, including claims of insufficient evidence, multiple instructional errors, ineffective assistance of counsel, cumulative error, and cruel and unusual punishment. In addition, Amaya, joined by Arevalo, contends that punishment on both the murder count and the weapons enhancement violated California‟s multiple conviction rule and federal double jeopardy principles. We hold that there was sufficient evidence supporting the guilty verdicts on both counts against Arevalo, his claims of instructional error are either unfounded or have been forfeited, and his other contentions are without merit. As for the punishment on both the murder count and the weapons enhancement, we hold that such punishment did not violate the multiple conviction rule and that double jeopardy rules do not apply to multiple punishment within a single case. We therefore affirm the judgments of conviction. FACTUAL BACKGROUND In July 2009, sixteen-year old Kevin Sanchez lived in the area of 105th Street and Wilmington Avenue. Sanchez, whose moniker was Drowsy, was a member of the Watts Varrio Grape Street gang (Grape Street) and was affiliated with the Little Gangsters and Tiny Winos cliques. On the day of the shooting, Sanchez walked to A.J.‟s liquor store. As he came out of the store, Sanchez noticed Jorge Hernandez (the victim) arrive in a truck. He observed the victim drinking beer by his truck. The victim, who smelled of beer, approached Sanchez, “banged on him, [and] asked [him] where he was from.” When Sanchez said he 2 was from “Grape,” the victim responded that he too was from “Grape.” The victim “tried to get all in [Sanchez‟s] face. He [said] he was [Sanchez‟s] big homie.” Because Sanchez did not know the victim, he understood the “big homie” comment as a sign of disrespect. When the victim called Sanchez his “little homie,” Sanchez denied being his “little homie.” The victim then “got in [Sanchez‟s] face” again, so Sanchez pushed him and challenged him to fight. Sanchez told the victim he was drunk and to “come back tomorrow and . . . talk to [Sanchez] sober.” Sanchez also asked the victim if he was trying to kiss him. In response to Sanchez‟s challenge to fight, the victim again called Sanchez his “little homie” and told Sanchez that he was too young to fight the victim. Sanchez renewed his challenge to fight, took off his shirt, and “threw [his] guard up . . . .” When the victim refused to fight, Sanchez taunted, “You bitch, you don‟t want to fight me[?]” Because the victim refused to fight, Sanchez began to walk home on Wilmington Avenue toward 105th Street. When he arrived at the corner of 105th Street, the victim pulled up in his truck, called Sanchez “little homie” yet again, and said he would be back. When Sanchez‟s friend Mario arrived at the corner on his bike, the victim said to him, “I know you, I got love for you.” Mario responded by telling the victim to go home, that everybody knew he was drunk because he had been drinking in front of the store, and that the victim could come back tomorrow to talk to him. Sanchez issued another challenge to fight, and warned the victim that if he did not fight, Sanchez would tell the victim‟s clique that he “chickened out . . . .” The victim‟s truck “burned rubber” as he left the scene. According to Sanchez, the victim was driving as “if it was a freeway” and there were “a lot [of] kids” on that block. As the victim‟s truck passed close to Amaya, who was located down the block, Sanchez saw Amaya throw a beer at the truck. Sanchez then heard the victim‟s truck “burning rubber or [doing] donuts, like doing circles,” in the street on the next block. In July 2009, Yvette Aguirre was Arevalo‟s girlfriend. She knew Arevalo by the nickname Little Knuckles and Amaya by the nickname Chuco. On July 19, 2009, Aguirre owned a blue, four-door Toyota Camry in which she drove Arevalo to his 3 brother‟s house on 105th Street near Wilmington Avenue. She parked on 105th Street, and, at some point Amaya joined them in her car. They “were just hanging out drinking [beer].” Aguirre saw an SUV pull over near the corner of 105th Street and Wilmington Avenue. A man exited the vehicle and began “arguing with some [teenagers].” The man appeared to be drunk. Amaya exited the Camry and approached the SUV. As he approached, the SUV “took off.” The teenagers chased the SUV and Amaya threw a beer can at it. Aguirre asked Arevalo “what was going on” because she was confused “about the whole situation.” She told Arevalo that she wanted to leave. After Amaya threw the beer, she saw him talk to the teenagers. Arevalo then exited the Camry and walked toward Amaya‟s location. Amaya and Arevalo returned to the Camry, with Arevalo taking the front passenger seat and Amaya taking the rear seat. Another person, whose name Aguirre could not recall, also entered the Camry. Aguirre then drove the group to A.J.‟s liquor store on Wilmington Avenue and “pulled in front . . . .” There she saw the victim‟s SUV parked on the opposite side of the street. Amaya exited the Camry, followed closely by Arevalo. As Amaya approached the SUV, Aguirre saw Amaya extending his right arm. She could not remember whether Amaya had anything on his face. Amaya approached within three or four feet of the SUV. Aguirre saw a red car arrive at the scene and then she saw Amaya shooting at the SUV. After the shooting, Amaya entered the red car and left. Arevalo entered the Camry, and Aguirre drove him to 105th Street where Amaya reentered the Camry and directed Aguirre “[t]o just get him out of there” and to drive to a restaurant. As the trio sat in the restaurant, Amaya stared at Aguirre which intimidated her. Arevalo appeared “pretty afraid.” Aguirre thereafter drove Amaya to a house and dropped him off.1 Robleon Thomas was talking with some people he knew in front of A.J.‟s liquor store on the day the victim was shot. The victim was across the street from the store in 1 During direct examination, Aguirre viewed portions of a security videotape depicting the events leading up to and including the shooting. She identified both Amaya and Arevalo on the videotape. 4 his SUV. At some point, Thomas observed other cars “pull[] up.” He saw a man wearing a blue bandana exit a car and approach the victim‟s SUV. Two other men exited the car along with the man in the bandana. As the man in the bandana approached the SUV with a revolver, Thomas saw the victim begin to open his door and then throw up his hands “in a retreat manner.” Thomas heard approximately six gunshots. The two men who exited the vehicle with the shooter appeared shocked. Following the shooting, Thomas went to the SUV and saw the victim slumped over. On July 19, 2009, Jeffrey Rencher was on the east side of Wilmington Avenue across from A.J.‟s liquor store talking to some friends. He noticed an SUV parked on the same side of the street. Rencher was about five car lengths away from the SUV. He heard gunshots and dropped to the ground. He then stood up and ran to 106th Street. When he returned to the scene of the shooting, he noticed the SUV had rolled “on top of [his nephew‟s] car.” On July 19, 2009, Augustin Gonzales was driving southbound on Wilmington Avenue near 107th Street. “A couple of cars stopped ahead of [him].” He saw a “Blazer” being cut off by a burgundy car going southbound. “Some guys got out of [the] burgundy car” and started shooting at the person in the Blazer. Gonzales reversed direction, but so did the burgundy car. He thought it was following him, but when he pulled into a driveway, the burgundy car passed him and pulled over about 100 yards away. He saw someone exit the passenger side of the vehicle and run north through some houses. Gonzales returned to the scene and photographed the victim‟s SUV. In July 2009, Los Angeles Police Officer Tyler Stanley was assigned to the southeast division. On July 19, 2009, at approximately 6:20 p.m., he and his partner were on patrol in the area of Wilmington Avenue and 103rd Street. A car pulled up beside them and reported a shooting. He and his partner made a u-turn and proceeded to the area of 107th Street and Wilmington Avenue. At that location, they observed “a vehicle that was on the east side of the street up on the sidewalk, [and] there was a lot of commotion around it.” Officer Stanley and his partner parked and approached the vehicle on foot. As they reached the vehicle, they saw the victim lying down inside. He 5 was bleeding from several wounds and did not appear to be conscious or breathing. Officer Stanley did not notice any weapons inside the victim‟s vehicle. Los Angeles Police Detective Roger Fontes and his partner Detective Mark Hahn were assigned to investigate the homicide of the victim. According to Detective Fontes, investigators recovered, inter alia, a surveillance videotape of the area near 106th Street and Wilmington Avenue that depicted the events leading up to and including the shooting. A photograph taken from the video showed a red vehicle driving southbound on Wilmington Avenue that the detective later determined was registered to Amaya. Other photographs from the video depicted the victim‟s vehicle parked along the east side of the street with the door open facing northbound. A different photograph from the video showed a light blue vehicle with individuals exiting the rear and front passenger doors. Another photograph showed Amaya‟s red vehicle crossing in front of the path of the victim‟s vehicle. Detective Stanley identified several more photographs taken from the security video that depicted the shooting. Portions of the videotape were also played for the jury during Detective Stanley‟s testimony. When Los Angeles Police Detective Mark Hahn arrived at the scene of the shooting, it had been secured. He inspected the victim‟s vehicle and noted that the center console was closed. The rear tires of the vehicle were up on the sidewalk and it appeared “to be resting on a tree.” The front passenger window was rolled all the way down and the front driver‟s window, which had been shattered, “had some glass that was still in the window.” By the time Detective Hahn inspected the victim‟s vehicle, the victim had been transported to the hospital. Los Angeles Police Department Criminalist Julie Wilkerson (the criminalist) assisted in the homicide investigation of the July 19, 2009, shooting. She searched the victim‟s vehicle in the tow yard of the facility to which it had been towed. She had been requested to perform a bullet path analysis and to search for and collect any firearms or bullet evidence. During her search of the inside of the vehicle, the criminalist opened the center console in which she found some papers and then a plastic insert. When she removed the plastic insert, she saw more papers and what looked like a firearm. The 6 papers were both below and on top of the firearm. The firearm she recovered from the console was a BB gun. She also observed blood stains on the left side of the console and the right arm of the driver‟s seat. But, when she opened the lid to the console, there were no blood stains inside and there was no blood on the BB gun. If the console was closed, the BB gun would be inaccessible because, to access it, the console needed to be opened and the plastic insert removed. On the passenger side of the vehicle, the criminalist located a bull horn on the seat. In the trunk, she found a cardboard beer container and a sunshade. The criminalist used trajectory rods to analyze the pathways of the bullets that struck the victim‟s vehicle. During direct examination, she identified photographs taken of the trajectory rods. Los Angeles County Deputy Medical Examiner Vadims Poukens conducted the autopsy of the victim and determined that he died of multiple gunshot wounds. The victim suffered a total of seven gunshot wounds, four of which were fatal, including a gunshot that entered near the victim‟s left ear and passed through his brain and one that went through his left lung and heart. The victim had cocaine and alcohol in his blood, with a blood alcohol concentration of three times the legal limit. Los Angeles Police Department Sergeant Scott Stevens testified as a gang expert for the prosecution. He was familiar with Hispanic street gangs generally, and explained how young males joined such gangs. According to Sergeant Stevens, there were various levels of gang membership, from street level soldiers to captains. Gang members typically had tattoos to identify them as members of the gang, as well as monikers. A gang member moved up in a gang based on reputation, and respect within and among gangs was important. Falsely claiming to be a member of a gang would be an ultimate act of disrespect. Acts of disrespect toward gang members could result in beatings or even more violent responses. Sergeant Stevens was familiar with Grape Street. He had investigated crimes committed by that gang and was familiar with its graffiti and writings. Grape Street controlled a specific territory that was divided among several cliques, including the Little 7 Gangsters and the Tiny Winos. The primary activities of Grape Street were vandalism, possession and sales of narcotics, robberies, homicides, and the possession of firearms. Sergeant Stevens was familiar with Arevalo and knew him to be a member of Grape Street based on numerous admissions that Arevalo had made. The sergeant was also familiar with Amaya, but had never met him, and understood that he was a member of Grape Street based on Amaya‟s various tattoos. The sergeant was familiar with Sanchez as well, and knew him to be a member of the Little Gangsters clique of Grape Street. Based on his familiarity with the case, Sergeant Stevens opined that the shooting of victim in this case was done to enhance the reputation of Grape Street and in response to the victim‟s acts of disrespect toward Grape Street and one of its members, Sanchez. PROCEDURAL BACKGROUND In an information, the Los Angeles County District Attorney charged Amaya and Arevalo with murder in violation of Penal Code section 187, subdivision (a).2 The District Attorney alleged that Amaya personally used a firearm; discharged a firearm; and discharged a firearm causing death or great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), and (d). The District Attorney further alleged that a principal personally: used a firearm; discharged a firearm; and discharged a firearm causing death or great bodily injury within the meaning of section 12022.53, subdivisions (b) and (e), (c) and (e), and (d) and (e). The District Attorney also alleged that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C). And the District Attorney alleged that Amaya had been convicted of three violent or serious felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). 2 All further statutory references are to the Penal Code unless otherwise indicated. 8  Prior to trial, the District Attorney successfully moved to amend the information to charge Arevalo in count 2 with assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(4). At trial, two juries were impaneled. Following trial, Amaya‟s jury found him guilty of first degree murder and found the firearm and gang allegations true. Arevalo‟s jury found him guilty of second degree murder and assault by means of force likely to produce great bodily injury and found the firearm and gang allegations true. Based on the prosecution‟s motion, the trial court dismissed the prior strike conviction allegations against Amaya. The trial court sentenced Amaya to an aggregate term of 50 years to life, comprised of a base term of 25 years to life on count 1, plus an additional, consecutive term of 25 years to life based on the section 12022.53, subdivision (d) firearm enhancement. The trial court imposed but struck the punishment for the remaining firearm enhancements and did not impose sentence on the gang enhancements. At a separate sentencing hearing, the trial court sentenced Arevalo to an aggregate term of 40 years to life, comprised of a base term of 15 years to life on count 1, plus an additional, consecutive term of 25 years to life on the section 12022.53, subdivision (d) and (e)(1) enhancement. The trial court imposed but struck the punishment for the remaining firearm enhancements and did not impose sentence on the gang enhancement. DISCUSSION A. Substantial Evidence 1. Standard of Review Arevalo‟s challenge to the sufficiency of the evidence in support of the jury‟s guilty verdicts on second degree murder and assault by means of force likely to produce great bodily injury is governed by a substantial evidence standard of review. “In assessing . . . a claim [of insufficient evidence], we review the record „in the light most favorable to the judgment below to determine whether it discloses substantial evidence— 9 that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‟ (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) „The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)‟ (People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] (Rodriguez).) [¶] Moreover, as observed in Rodriguez: „The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “„Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant‟s guilt beyond a reasonable doubt. “„If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.‟” [Citations.]‟” [Citation.]‟ (Rodriguez, supra, 20 Cal.4th at p. 11, italics added; see generally People v. Clark (2011) 52 Cal.4th 856, 942-943 [131 Cal.Rptr.3d 225, 261 P.3d 243] (Clark), and cases cited.)” (People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.) 2. Count 1 – Second Degree Murder According to Arevalo, the jury found him guilty of second degree murder based on an accomplice theory under the natural and probable consequences doctrine, but the evidence did not show that Arevalo knew or should have known that the shooting was a probable consequence of the target crime of assault by means of force likely to produce 10 great bodily injury. In the alternative, Arevalo argues that the evidence was insufficient to show that he committed the target crime of assault by means of force. It appears the jury found Arevalo guilty of second degree murder based on the prosecution‟s alternative accomplice theory of liability under the natural and probable consequences doctrine. Under that alternative theory, the prosecutor argued that Arevalo aided and abetted the commission of a gang assault of the victim and Amaya‟s shooting of the victim during the commission of the assault was a natural and probable consequence of the assault for which Arevalo was also liable. “„[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.‟ (People v. Beeman (1984) 35 Cal.3d 547, 561 [199 Cal.Rptr. 60, 674 P.2d 1318].) Furthermore, under the „“natural and probable consequences”‟ doctrine, an aider and abettor is guilty not only of the offense he or she intended to facilitate or encourage, but also any reasonably foreseeable offense committed by the person he or she aids and abets. (People v. Prettyman (1996) 14 Cal.4th 248, 261 [58 Cal.Rptr.2d 827, 926 P.2d 1013].) [¶] . . . [¶] In Prettyman, we summarized the natural and probable consequences doctrine as follows: „Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a “natural and probable consequence” of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the “natural and probable consequences” doctrine, the jury must find that, with knowledge of the perpetrator‟s unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant‟s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a “natural and probable consequence” of the 11 target crime that the defendant assisted or encouraged.‟ (Id. at p. 254.)” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-96, 298-299) In People v. Medina (2009) 46 Cal.4th 913, 926-927, the Supreme Court analyzed and approved two appellate court decisions which held that murder is a natural and probable consequence of a gang assault. “In People v. Montes [(1999)] 74 Cal.App.4th 1050, the victim was shot as he was retreating from a fight between two rival gangs. Although the defendant struck the victim (a rival gang member) with a chain after the victim produced a knife, no guns were displayed or used during the fight. As the victim was about to drive off after the fight ended, the defendant‟s confederate retrieved a gun from a nearby vehicle, ran up to the victim, and shot him several times. Rejecting the defendant‟s argument that he did not know his confederate had a gun, the Montes court held that the homicide was a reasonable and natural consequence of the gang attack in which the defendant participated. It reasoned that escalating violence is a foreseeable consequence to be expected in gang confrontations. (People v. Montes, supra, 74 Cal.App.4th at p. 1056.)” “In People v. Montano [(1979)] 96 Cal.App.3d 221, the court found the defendant guilty of attempted murder as an aider and abettor even though he had not fought with the victim. There, the defendant and a codefendant tricked a member of another gang into getting in their car by claiming to be members of the same gang. They drove the victim to a remote area where another codefendant met them. The two codefendants ordered the victim out of the car and escorted the victim to a nearby tree, while the defendant remained inside the car. The first codefendant produced a handgun and gave it to the second codefendant, who shot the victim. At the urging of the first codefendant, the second codefendant shot the victim again. Defendant argued there was insufficient evidence to support his attempted murder conviction as an aider and abettor; he contended he had only aided or encouraged a battery by suggesting the beating of the victim and had had no knowledge of his codefendant‟s intent to shoot the victim. [¶] The Montano court rejected the argument, reasoning that „The evidence was clear that the attack upon [the victim] was an aspect of gang warfare and that he was attacked on the 12 basis of his membership in the rival . . . gang. The frequency with which such gang attacks result in homicide fully justified the trial court in finding that homicide was a “reasonable and natural consequence” to be expected in any such attack. It is, therefore, clear that [the defendant‟s] guilt of aiding and abetting an attempted murder does not depend upon his awareness that [either codefendant], or both of them, had deadly weapons in their possession.‟ (People v. Montano, supra, 96 Cal.App.3d at p. 227.)” (People v. Medina, supra, 46 Cal.4th at pp. 926-927.) When the evidence in this case is viewed in a light most favorable to the prosecution, as it must be under the substantial evidence standard discussed above, it supports the jury‟s verdict finding Arevalo guilty of second degree murder. Sanchez and Arevalo each admitted that they were Grape Street gang members, and based on Amaya‟s tattoos, the gang expert testified that Amaya, the shooter, was also a member of that same gang. The victim, who had three times the legal limit of alcohol in his blood, engaged in a gang-related confrontation with Sanchez in front of the liquor store. According to Sanchez, he felt disrespected by the victim‟s claim that the victim was a Grape Street gang member, and the expert confirmed that such a false claim of gang membership was an ultimate act of disrespect toward the gang. The confrontation between Sanchez and the victim renewed at a street corner near where Amaya and Arevalo were drinking beer in Aguirre‟s Camry. At some point, Sanchez was joined on that corner by a fellow gang member, Mario. Upon witnessing the street corner confrontation, Amaya exited the Camry and approached the corner, evidence that supported an inference that he intended to come to the aid of his younger fellow gang members. When the victim saw Amaya, he sped past Amaya‟s location as Amaya threw a beer can at him and Sanchez and Mario chased his SUV. Amaya then spoke to Sanchez and Mario and thereafter to Arevalo. Immediately following the incident at the corner, Aguirre drove Amaya and Arevalo directly to the liquor store where the victim was located, while another person, or other persons, traveled in Amaya‟s burgundy car to the same location. As soon as they arrived, Amaya and Arevalo exited the Camry and proceeded straight toward the victim 13 in his SUV. To prevent the victim from escaping, the person driving Amaya‟s car blocked the victim‟s path. As the victim attempted to back up, Amaya came within three or four feet of the victim‟s SUV and fired six shots at close range, four of which were fatal. Amaya then fled the scene in his car, later rejoined Arevalo in Aguirre‟s Camry, and directed the trio to a restaurant where they ate. The foregoing evidence supported a reasonable inference that, at a minimum, Amaya and Arevalo planned to ambush and assault the victim for a perceived act of disrespect toward their gang and a fellow gang member in their territory. In the course of the ambush and assault, Amaya produced a handgun and shot the victim in a cold- blooded, execution-style murder. Thus, even if Arevalo was unaware of Amaya‟s intent to kill—as opposed to assault—the victim, the shooting was nevertheless a natural and probable consequence of the gang assault under the authorities cited above. As those cases teach, such escalating violence was a forseeable consequence that Arevalo should have expected given the gang-related nature of the planned attack. Arevalo further contends that he should not have been found guilty of murder as an accomplice under a natural and probable consequences doctrine because he did not commit the target crime of assault by means of force. For reasons similar to those that support Arevalo‟s conviction of second degree murder, we conclude that the evidence supported a reasonable inference that Arevalo committed the target crime. As discussed, Amaya and Arevalo witnessed the street corner confrontation between fellow gang members Sanchez and Mario, on the one hand, and the victim, on the other. Following that confrontation—which included the victim driving dangerously close to Amaya at high speed and Amaya throwing a beer at the victim‟s vehicle—Amaya spoke to both Sanchez and Mario and then to Arevalo and, almost immediately thereafter, Amaya and Arevalo engaged in what appeared to be a well-coordinated attack on the victim. In addition to Aguirre‟s Camry in which Amaya and Arevalo arrived at the scene, Amaya‟s vehicle arrived almost simultaneously to block the victim‟s escape and facilitate the success of the assault. 14  That evidence supported a reasonable inference that Arevalo intended to engage in a gang assault on the victim, either directly or as an aider and abettor. That he did not personally commit a battery on the victim is immaterial because, as discussed in detail below, actual physical contact with or harm to the victim is not necessary to support a finding of assault. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) The focus is on whether the means employed was likely to produce great bodily injury. (Ibid.) Here, the victim‟s assailants blocked his escape and Amaya, with Arevalo and another man at his side, proceeded directly to the victim‟s truck, evidence that supported an inference that they intended, at a minimum, to engage in a physical assault on the victim which assault, given their superior numbers and proximity to the victim, was likely to inflict great bodily injury. 2. Count 2 – Assault By Means of Force Likely to Produce Great Bodily Injury In support of his claim that there was insufficient evidence to support the jury‟s guilty verdict on count 2—assault by means of force likely to produce great bodily injury—Arevalo asserts that there was no evidence he committed any act that was likely to result in a battery of the victim and that he could not have aided and abetted in the assault of the victim because no one else committed any act likely to result in a battery of the victim. “[Former] [s]ection 245, subdivision (a)(1), punishe[d] assaults committed by the following means: . . . by „any means of force likely to produce great bodily injury.‟[3] One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, 3 The offense of assault by means of force likely to produce great bodily injury is currently set forth in section 245, subdivision (a)(4) which provides: “Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” 15 whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].)” (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) Section 245, subdivision (a)(4) requires that a defendant commit “an assault upon the person of another . . . .” “An assault . . . is defined in section 240 as „an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.‟ (Pen. Code, § 240, italics added.) [¶] . . . [¶] [B]ecause of the „present ability‟ element of the offense, to be guilty of assault a defendant must have maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim. (Thus, the emphasis is on the word „present‟ as much as the word „ability.‟) The policy justification is apparent. When someone has gone this far he is a greater and more imminent threat to his victim and to the public peace than if he is at an earlier stage of an attempted crime.” (People v. Valdez (1985) 175 Cal.App.3d 103, 108, 112.) As discussed, the evidence supported a reasonable inference that Arevalo intended either to engage directly in a gang assault on the victim or to aid and abet such an assault. Gang members Amaya and Arevalo witnessed the gang-related street corner confrontation and, after speaking with fellow gang members Sanchez and Mario, proceeded directly to the liquor store across from which the victim was parked. Aguirre parked her Camry across from the victim‟s vehicle, and Amaya, Arevalo, and a third man proceeded straight toward the victim while another person driving Amaya‟s car blocked the victim‟s escape. Amaya, with Arevalo at his side, moved within three or four feet of the victim‟s vehicle, evidence that supported a reasonable inference that Arevalo not only intended to engage in or support the gang attack, but also that he had the present ability to do so. The victim was, in effect, trapped, and Arevalo and his confederates outnumbered him at least three to one, suggesting that the planned assault was likely to produce great bodily injury. 16  B. Claimed Instructional Errors 1. Simple Assault as Lesser Included Offense of Assault by Means of Force Likely to Produce Great Bodily Injury Arevalo contends that because the evidence supported a reasonable inference that he intended to engage only in the lesser included offense of simple assault, he was entitled to a sua sponte jury instruction on that lesser included offense. According to Arevalo, the evidence did not establish a felony assault to the exclusion of simple assault because Arevalo was not armed with any weapon and there was no evidence as to what a gang “beat down” would entail. “„A court must generally instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want it to do so. [Citation.]‟ (People v. Horning (2004) 34 Cal.4th 871, 904-905 [22 Cal.Rptr.3d 305, 102 P.3d 228] (Horning); see People v. Valdez (2004) 32 Cal.4th 73, 115 [8 Cal.Rptr.3d 271, 82 P.3d 296].) „[T]he sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant‟s wishes, and regardless of the trial theories or tactics the defendant has actually pursued.‟ (People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)” (People v. Beames (2007) 40 Cal.4th 907, 926.) “[A] trial court, [however,] need not instruct the jury on a lesser included offense where no evidence supports a finding that the offense was anything less than the crime charged. ([People v. Barton (1995) 12 Cal.4th 186,] 196, fn. 5; see People v. Breverman[, supra,] 19 Cal.4th [at p.] 149; People v. Anderson (1983) 144 Cal.App.3d 55, 61 [192 Cal.Rptr. 409].)” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) The prosecution‟s evidence supported a reasonable inference that Arevalo intended to engage in what the gang expert described as a gang “beat down” of the victim. Contrary to Arevalo‟s assertion, there was evidence from the gang expert as to what a gang “beat down” would entail. When describing how gang members are “jumped in,” i.e., admitted, to a gang, the expert explained that a “group of guys beat you 17 down in an alley.” And when describing the role of “street level soldiers” within a gang, the expert said that they engaged in, inter alia, “retaliatory strikes” and administered “gang punishment.” The expert also explained that the punishment for snitching, a serious offense, could be an “old fashioned beat down” and that the victim‟s offense in this case—falsely claiming to be a Grape Street gang member—was also considered a very serious offense that, depending on the “extent of the insult,” would likely “end violently” in a “beat down.” From that expert testimony and the facts relevant to the assault, the jury could reasonably infer that the gang “beat down” in which Arevalo intended to engage would have been a violent physical beating administered by at least three gang members. Arevalo offered no evidence to the contrary. Based on that evidence, no reasonable juror could have concluded that Arevalo intended to engage in a simple assault. As a result, the trial court had no sua sponte duty to instruct on the lesser included offense of simple assault. 2. Voluntary and Involuntary Manslaughter as Lesser Included Offenses of Murder a. Involuntary Manslaughter Arevalo contends that he was entitled to a jury instruction on the lesser included offense of involuntary manslaughter. He argues that the evidence supported an instruction on simple assault as a lesser included target crime of assault by means of force likely to produce great bodily injury and, if the jury found he had committed a simple assault, the killing of the victim as a consequence of that simple assault would have been involuntary manslaughter. As discussed above, a trial court does not have a sua sponte duty to instruct on lesser included offenses that are not supported by the evidence. (People v. Gutierrez, supra, 45 Cal.4th at p. 826.) Here, as explained, the evidence did not support an instruction on simple assault. Therefore, the evidence also did not support an instruction 18 on involuntary manslaughter. Rather, the evidence supported a reasonable inference that Arevalo intended to engage in a gang “beat down” of the victim, not a simple assault, or as Arevalo characterizes it, a misdemeanor or “non-inherently dangerous felony.” Moreover, even if the evidence supported an instruction on a lesser included target offense of a simple assault, this court has concluded that a trial court does not have a sua sponte duty to instruct on lesser included target offenses under the natural and probable cause consequences doctrine unless those lesser included target offenses are relied upon by the prosecutor. (See People v. Huynh (2002) 99 Cal.App.4th 662, 677-678.) “Typically, there is a sua sponte duty to instruct on lesser included offenses. (People v. Koontz (2002) 27 Cal.4th 1041, 1084, [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Breverman[, supra,] 19 Cal.4th [at p.] 154.) Under most circumstances, involuntary manslaughter is a lesser included offense of murder. (People v. Prettyman, supra, 14 Cal.4th at p. 274; People v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10, [216 Cal.Rptr. 397, 702 P.2d 555].) But the California Supreme Court has held that there is no sua sponte duty to instruct on target offenses on a natural and probable consequences aiding and abetting theory unless they are identified by the prosecutor. In People v. Prettyman, supra, 14 Cal.4th at page 269, the California Supreme Court described the sua sponte duty to instruct on target offenses in natural and probable consequences aiding and abetting cases as follows: „We also recognize that “the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.” (People v. Wade (1959) 53 Cal.2d 322, 334, [1 Cal.Rptr. 683, 348 P.2d 116].) But the sua sponte duty to instruct that is imposed here is quite limited. It arises only when the prosecution has elected to rely on the “natural and probable consequences” theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory. The trial court, moreover, need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider.‟ (Fn. omitted, original italics; see People v. Dawson (1997) 60 Cal.App.4th 534, 544-545, [71 Cal.Rptr.2d 33].)” (Ibid.) 19  In this case, the prosecutor did not identify simple assault as a target offense. The only target offense identified was assault by means of force likely to produce great bodily injury. As a result, the trial court had no sua sponte duty to instruct on that lesser included target offense. b. Voluntary Manslaughter Arevalo argues that he was also entitled to a jury instruction on voluntary manslaughter under People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia). Arevalo maintains that Garcia recognized a separate theory of voluntary manslaughter, in addition to the well recognized theories of heat of passion and imperfect self-defense. Contrary to Arevalo‟s assertion, the issue in Garcia, supra, 162 Cal.App.4th 18 did not involve a claim that there was a third theory, beyond heat of passion and imperfect self-defense, upon which to base a conviction for voluntary manslaughter. Garcia involved the limited question of whether, under the facts of that case, the defendant was entitled to an instruction on involuntary manslaughter as a lesser included offense. (Id. at p. 22.) Thus, its holding was limited to that issue, and any discussion of voluntary manslaughter was dictum. Moreover, even assuming Garcia, supra, 162 Cal.App.4th 18 enunciated a new theory of voluntary manslaughter, the evidence in this case did not support an instruction on that theory as a lesser included offense of murder. The jury found that Arevalo committed an assault by means of force likely to produce great bodily injury, and, as noted, that finding was supported by substantial evidence. The jury also found, based on substantial evidence, that the intentional, premeditated killing of the victim was a natural and probable consequence of the assault. Thus, contrary to Arevalo‟s assertion, there was no evidence that Arevalo failed to appreciate the potential lethality of his conduct. To the contrary, the jury found by substantial evidence that he should have expected that escalating violence, including murder, would be a natural and probable consequence of the gang “beat down” in which he intended to engage. Based on that evidence and finding, there was no sua sponte duty to instruct on voluntary manslaughter. 20  3. Natural and Probable Consequences Theory Arevalo argues that the trial court erred by instructing the jury on the natural and probable consequences doctrine because there was insufficient evidence that he committed the target crime of assault by means of force likely to produce great bodily injury. Because we have previously rejected, in the context of other claims of error on appeal, Arevalo‟s contentions concerning the sufficiency of the evidence in support of assault by means of force, we conclude that this claim of instructional error is unfounded. 4. CALCRIM No. 402 Although the basis for this contention is unclear, Arevalo contends that the trial court erred by instructing the jury on the natural and probable consequences doctrine using CALCRIM No. 402.4 According to Arevalo, certain language in the instruction 4 The trial court instructed the jury using CALCRIM No. 402 as follows: “Defendant Aldo Arevalo is charged in count 2 with assault by means likely to produce great bodily injury and in count 1 with murder. [¶] You must first decide whether the defendant Arevalo is guilty of assault by means likely to produce great bodily injury. [¶] If you find the defendant is guilty of this crime, you must then decide whether he is guilty of murder. [¶] Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of murder, the people, and I‟m referring to defendant Arevalo, the people must prove that: [¶] 1. The defendant is guilty of assault by means likely to produce great bodily injury. [¶] 2. During the commission of assault by means likely to produce great bodily injury, a co-participant in that assault by means likely to produce great bodily injury committed the crime of murder. [¶] And 3. Under all of the circumstances, a reasonable person in the defendant‟s position would have known that the commission of murder was a natural and probable consequence of the commission of the assault by means likely to produce great bodily injury. [¶] A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] If the murder was committed for a reason independent of the common plan to commit the assault by means likely to produce great bodily injury, then the commission of murder was not a natural and probable consequence of assault by means likely to produce great bodily injury.” 21 created the “erroneous inference” that “if Amaya shot the victim for the same reason underlying the common plan to commit assault, then the homicide Amaya committed was the [natural and probable consequence] of the assault.” Arevalo‟s trial counsel did not object in the trial court to CALCRIM No. 402 based on the language with which Arevalo now takes issue. Instead, his trial counsel objected on the ground that the instruction applied only to Arevalo. Arevalo therefore forfeited this claim on appeal by not raising it in the trial court. (People v. Virgil (2011) 51 Cal.4th 1210, 1260.) Moreover, to the extent Arevalo‟s claim can be fairly characterized as an assertion that CALCRIM No. 402 was ambiguous or unclear, he also forfeited that claim by failing to request clarifying language in the trial court. (People v. Rundle (2008) 43 Cal.4th 76, 151 [“failure to request clarification of an instruction that is otherwise a correct statement of the law forfeits an appellate claim of error based on the instruction given”].) 5. CALCRIM No. 370 Arevalo claims that the trial court should not have instructed the jury on motive using CALCRIM No. 370. As Arevalo reads that instruction, it suggested to the jury that if Arevalo had a motive to confront and assault the victim, the jury could then assume that Arevalo was guilty of murder as an accomplice under the natural and probable consequences doctrine. Arevalo did not object in the trial court to the instruction on motive or argue that the language of CALCRIM No. 370 was unclear or ambiguous. He therefore forfeited on appeal this claim of instructional error. (People v. Virgil, supra, 51 Cal.4th at p. 1260, People v. Rundle, supra, 43 Cal.4th at p. 151.) C. Ineffective Assistance of Counsel Arevalo argues that if we determine that the trial court had no sua sponte duty to give certain instructions or that he forfeited one or more claims of instructional error, then he received ineffective assistance of counsel. “„To establish a violation of the 22 constitutional right to effective assistance of counsel, a defendant must show both that his counsel‟s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel‟s deficient performance resulted in prejudice to defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”‟ (People v. Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 686.) Preliminarily, we note that rarely will an appellate record establish ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v. Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed „that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.‟ (People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)” (People v. Mendoza Tello , supra, 15 Cal.4th at pp. 266-267.) The record in this case sheds no light on the issue of why Arevalo‟s trial counsel failed to request the various instructions that he claims were necessary based on the evidence or why his trial counsel failed to object to or request clarifying instructions as to CALCRIM Nos. 402 and 370. Moreover, we cannot determine on this record that there is no satisfactory explanation for his counsel‟s failure to request such instructions or to object to CALCRIM Nos. 402 and 370. As to the instructions on the claimed lesser included offenses, his trial counsel may have determined that a given instruction was not warranted based on her view of the evidence or there may have been tactical reasons for not requesting a given instruction. Similarly, there may have been tactical reasons for not objecting to or requesting clarification of CALCRIM Nos. 402 and 370. 23  D. Constitutionality of the Natural and Probable Consequences Theory Arevalo asserts that California‟s accessory theory of liability under the natural and probable consequences doctrine violates the separation of powers doctrine and due process. Therefore, he claims that the trial court committed constitutional error by instructing the jury on that theory. In a footnote, Arevalo concedes that the Supreme Court has repeatedly endorsed the natural and probable consequences theory and that we are bound by those decisions. (People v. Prettyman, supra, 14 Cal.4th at p. 260 [“Although the „natural and probable consequences‟ doctrine has been „subjected to substantial criticism (citations), it is an „established rule‟ of American jurisprudence [citation]”]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Given this concession, we reject this contention without further discussion. E. Cumulative Error Amaya maintains that the cumulative effect of the errors at trial which he challenges on appeal prejudiced him and warrants reversal. Because we have determined that no such errors occurred at trial, we reject this claim as well. F. Cruel and Unusual Punishment Arevalo contends that his sentence of 40 years to life violates California‟s constitutional prohibition against cruel or unusual punishment. Based on his view of the evidence, Arevalo concludes that his sentence is disproportionate to his crime because he had no adult criminal history, was unaware that Amaya was armed or intended to kill the victim, and otherwise had limited involvement in the actual murder of the victim. The United States Constitution prohibits the imposition of cruel and unusual punishment (U.S. Const., 8th Amend.), and the California Constitution prohibits the imposition of cruel or unusual punishment (Cal. Const., art I, § 17). The California and federal constitutional provisions have both been interpreted to prohibit a sentence that is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and 24 offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; see also Ewing v. California (2003) 538 U.S. 11, 32-35; Harmelin v. Michigan (1991) 501 U.S. 957, 962.) The federal constitutional standard is one of gross disproportionality. (Ewing v. California, supra, 538 U.S. at p. 21; Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) Successful challenges to the proportionality of particular sentences have been very rare. (Rummel v. Estelle (1980) 445 U.S. 263, 272; Ewing v. California, supra, 538 U.S. at p. 21 [“outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare”]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [“Findings of disproportionality have occurred with exquisite rarity in the case law”].) The California Supreme Court has instructed that, when reviewing a claim of cruel or unusual punishment, courts should examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Defendant does not contend that his punishment is unconstitutional in the abstract, but as applied to him. Thus, defendant‟s argument addresses the first factor identified in In re Lynch—the nature of the offense and the offender. Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendant‟s motive, the manner of commission of the crimes, the extent of the defendant‟s involvement, the consequences of his acts, and his individual culpability, including factors such as the defendant‟s age, prior criminality, personal characteristics, and state of mind. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) The nature of the offense and the offender in this case justify the sentence imposed on Arevalo by the trial court. The evidence of the shooting supported a reasonable inference that Arevalo‟s motive for the shooting was gang-related, i.e., to punish the victim for insulting a fellow gang member and falsely claiming to be a member of Grape Street. The evidence of the manner of commission of the crime showed that Arevalo 25 agreed to engage in or support the ambush of the victim for the purpose of administering a gang “beat down” as punishment. And Arevalo‟s involvement in the crime was more extensive than he claims. Arevalo knowingly accompanied Amaya to the scene, exited the Camry with him, and approached the victim‟s vehicle at Amaya‟s side, evidence which suggests support of and deep involvement in the ambush and assault of the victim. The consequences of Arevalo‟s actions were serious; based on his support of and participation in the planned attack, the victim was trapped and vulnerable to the close range shooting. Although Arevalo may not have had actual knowledge of Amaya‟s intent to kill, the jury found based on substantial evidence that Arevalo should have expected that the assault would escalate to a killing due to the gang-related motive underlying the planned assault. Arevalo‟s personal culpability for the shooting was evident from his motive—to punish the victim for disrespecting his gang. Finally, although Arevalo may not have had an adult criminal history, he had a juvenile criminal history, and he repeatedly admitted to the gang expert that he was a member of Grape Street, not a former member. G. Multiple Conviction Rule and Double Jeopardy Principles Amaya, joined by Arevalo, contends that the imposition of a section 12022.53, subdivision (d) firearms enhancement on a defendant convicted of murder violates the multiple conviction rule set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People v. Pearson (1986) 42 Cal.3d 351, 355-360, as well as federal constitutional principles of double jeopardy. According to Amaya, the factual element essential to establishing the section 12022.53, subdivision (d) enhancement—discharge of a firearm causing death—is necessarily consumed within the elemental components of murder— proximately causing death of the victim. Amaya concedes, as he must, that two recent California Supreme Court decisions have rejected his contention under California‟s multiple conviction rule. (People v. Sloan (2007) 42 Cal.4th 110, 115-125 and People v. Izaguirre (2007) 42 Cal.4th 126, 130- 134.) Because we are bound by those decisions under Auto Equity Sales, Inc. v. Superior 26 Court, supra, 57 Cal.2d at page 455, we reject Amaya‟s contention that his punishment violated California‟s multiple conviction rule. Amaya also concedes that, historically, federal double jeopardy has not applied to multiple punishment within a unitary trial, but contends that recent United States Supreme Court decisions “suggest” that it now should. Again, because there is California Supreme Court and United States Supreme Court authority holding that multiple criminal punishments that arise out of a unitary criminal proceeding do not implicate federal double jeopardy principles, People v. Sloan, supra, 42 Cal.4th at page 121, Hudson v. United States (1997) 522 U.S. 93, 99, we are bound to follow that authority and reject Amaya‟s double jeopardy contention. DISPOSITION The judgments of conviction are affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MOSK, J. We concur: ARMSTRONG, Acting P. J. KRIEGLER, J. 27 

IN THE COURT OF APPEALS OF IOWA No. 17-0913 Filed August 1, 2018 STATE OF IOWA, Plaintiff-Appellee, vs. MEJDIL AHMETOVIC, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, David N. May, Judge. Mejdil Ahmetovic appeals his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp. AFFIRMED. Kent A. Balduchi of Balduchi Law Office, P.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee. Heard by Danilson, C.J., and Mullins and McDonald, JJ.  2 MULLINS, Judge. Mejdil Ahmetovic appeals his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp. He asserts the district court erred in denying his motion to suppress evidence, contending the warrantless traffic stop and subsequent searches of his pocket and an automobile in which he was a passenger violated his constitutional rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. I. Background Facts and Proceedings The following facts can be gleaned from the suppression record. Officer Wilshusen is an officer in the Des Moines Police Department’s narcotics unit. On June 3, 2016 at approximately 6:00 p.m., Wilshusen received information from a confidential informant1 that Ahmetovic would be in a “black Volkswagen vehicle” in a particular McDonald’s restaurant parking lot at approximately 8:30 p.m. the same evening with approximately one ounce of cocaine in his possession.2 Wilshusen was off duty at the time he received this tip, so he relayed the information to two officers assigned to the department’s summer enforcement team,3 Officers McCarthy and Becker. 1 Wilshusen had prior dealings with this confidential informant and the informant has provided Wilshusen credible information in the past. Wilshusen testified on cross- examination that the confidential informant was receiving favorable treatment in a pending case in exchange for the provision of information. 2 Prior to receiving this information, Wilshusen was familiar with Ahmetovic, as there was an ongoing investigation concerning his sale of cocaine in the Des Moines area. 3 The summer enforcement team is a unit tasked with targeting drug, gang, and gun activity.  3 McCarthy and Becker’s shift started at 8:00 p.m., at which time Wilshusen followed up with them to advise the information was still valid. McCarthy and Becker obtained a photograph of Ahmetovic and then “drove straight to the vicinity of the location that [Ahmetovic] was supposed to arrive at.” McCarthy and Becker arrived at the location at 8:05 or 8:10 p.m. At approximately 8:50 p.m., a “black hatchback Volkswagen” arrived at the McDonald’s parking lot. After the vehicle parked, the officers placed their squad car behind the vehicle and exited their squad car. As the officers were exiting their vehicle, McCarthy observed the individual in the front passenger seat “ben[d] over kind of abruptly towards the floorboard.” The officers approached the Volkswagen, Becker on the driver side and McCarthy on the passenger side. The vehicle contained two occupants, and the individual seated in the front passenger seat was identified as Ahmetovic. During the course of their investigation, the officers learned Ahmetovic was not the owner of the subject vehicle. The driver was merely giving Ahmetovic a ride to a party they planned to attend that evening. Ahmetovic subsequently complied with McCarthy’s request that he exit the vehicle. McCarthy then performed a pat-down, weapons search of Ahmetovic’s person, during which McCarthy “noticed a hard bulge in the right coin pocket of [Ahmetovic’s] pants.” McCarthy testified: “The immediate feel of it, based on my experience and the specific information we were given from Officer Wilshusen, at that point I believed it to be cocaine.” He further testified on cross-examination, “Based on the touch, I was very certain it was probably a narcotic.” McCarthy “stayed on the item,” pressed it with his fingers to draw Ahmetovic’s attention to it, and asked Ahmetovic what it was; Ahmetovic responded he did not know.  4 McCarthy asked, “Can I get it?” upon which Ahmetovic responded, “Yeah.”4 McCarthy removed the object, which appeared to be, and subsequently tested positive as, cocaine. Ahmetovic admitted the substance belonged to him. McCarthy also found more than $1000 in cash on Ahmetovic’s person. Ahmetovic was placed under arrest and advised of his Miranda rights. During a subsequent search of the Volkswagen, the officers discovered “a much larger baggie of cocaine” underneath the front passenger seat, where Ahmetovic was sitting. Ahmetovic admitted the cocaine belonged to him. Ahmetovic was charged by trial information with possession of cocaine with intent to deliver and failure to affix a drug-tax stamp. Ahmetovic subsequently moved to suppress all of the drug evidence obtained as a result of the searches of his person and the vehicle, contending the warrantless searches were in violation of his constitutional rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. Following a suppression hearing, the district court denied Ahmetovic’s motion. The court 4 In his testimony at the suppression hearing, Ahmetovic denied McCarthy requested permission to remove the item and that he gave McCarthy permission to remove the item. The district court made an express credibility finding in favor of McCarthy’s testimony that Ahmetovic consented to the removal of the item. The court based its credibility finding on its “evaluation of each witness’s live testimony” and Ahmetovic’s “motivations in these suppression proceedings.” As discussed below, we give deference to the district court’s credibility assessments. Furthermore, the video footage of the encounter, which was admitted into evidence at the suppression hearing, supports McCarthy’s testimony. At the time of the encounter, Becker was wearing a microphone but McCarthy was not. At the time the drugs were found, McCarthy and Ahmetovic’s verbal exchanges were not captured by Becker’s microphone. However, moments before McCarthy removes a baggie containing a white substance from Ahmetovic’s pocket, the video footage depicts McCarthy pausing near Ahmetovic’s right pocket. McCarthy’s expressions cannot be seen at this time, as Ahmetovic is in between the dash camera and McCarthy’s face. However, shortly after McCarthy’s pause near the right pocket, Ahmetovic is seen mouthing a one- word statement to McCarthy. Seconds later, McCarthy removes the cocaine from Ahmetovic’s right pocket.  5 concluded the search of Ahmetovic’s pocket was lawful because the nature of the item was “immediately apparent” to McCarthy or, alternatively, because the search was based upon valid consent. As to the search of the vehicle, the court concluded Ahmetovic—as a mere passenger with no possessory interest in the vehicle— lacked standing to challenge the search or, in the alternative, the search was lawful under the automobile exception. Ahmetovic waived his right to a jury trial and stipulated to a bench trial on the minutes of evidence. The court found him guilty as charged. Ahmetovic appealed following the imposition of sentence. II. Standard of Review “When a defendant challenges a district court’s denial of a motion to suppress based upon the deprivation of a state or federal constitutional right, our standard of review is de novo.” State v. Storm, 898 N.W.2d 140, 144 (Iowa 2017) (quoting State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017)). “[W]e make ‘an independent evaluation of the totality of the circumstances as shown by the entire record.’” Brown, 890 N.W.2d at 321 (quoting In re Pardee, 872 N.W.2d 384, 390 (Iowa 2015)). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of the witnesses, but we are not bound by those findings.” Id. (quoting Pardee, 872 N.W.2d at 390). III. Discussion A. Initial Seizure Ahmetovic first appears to argue law enforcement was required to obtain a search warrant before stopping and seizing the vehicle and thereby seizing him.  6 Ahmetovic generally cites to Iowa Code section 808.3 (2016) to support his position. However, that section, entitled “Application for search warrant,” applies to searches, not to initial encounters with law enforcement or seizures such as a traffic stop. See Iowa Code § 808.3 (emphasis added); see also State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013) (noting a traffic stop amounts to a seizure). A search, whether pursuant to a warrant or an exigency exception to the warrant requirement, requires probable cause. See Iowa Code § 808.3 (requiring probable cause for search warrants); State v. Gogg, 561 N.W.2d 360, 368 (Iowa 1997) (“As a general rule, a search warrant requires probable cause.”); see also State v. Naujoks, 637 N.W.2d 101, 108 (Iowa 2001) (noting warrant requirement is excepted for a “search based on probable cause and exigent circumstances”). To justify a traffic stop and briefly detain an individual for investigatory purposes, “the police need only have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring.” State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004); accord Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (noting only reasonable suspicion is required to detain an individual for investigatory purposes); Navarette v. California, 134 S. Ct. 1683, 1687 (2014); State v. Pettijohn, 899 N.W.2d 1, 15 (Iowa 2017). “Reasonable suspicion is a less demanding standard than probable cause,” Alabama v. White, 496 U.S. 325, 330 (1990), and Ahmetovic does not argue the officers lacked the reasonable suspicion necessary to justify encountering him and his driver in the McDonald’s parking lot. In fact, Ahmetovic conceded in oral argument that under the totality of the circumstances, when Ahmetovic arrived at the McDonald’s parking lot, thus  7 verifying the confidential informant’s tip, the officers had not only reasonable suspicion, but probable cause to detain Ahmetovic and his driver and conduct a search. We conclude the police were not required to obtain a search warrant before they made contact with Ahmetovic and the driver of the vehicle. We reject Ahmetovic’s arguments to the contrary. B. Search of Ahmetovic’s Pocket Ahmetovic next contends the evidence concerning or flowing from the cocaine found in his pocket during the Terry5 pat-down search should be suppressed as obtained in violation of his constitutional rights. He concedes the Terry pat-down search was justified under the totality of the circumstances but contends the warrantless search of his pocket amounts to a constitutional violation. “Warrantless searches are per se unreasonable if they do not fall within one of the well-recognized exceptions to the warrant requirement.” State v. Lowe, 812 N.W.2d 554, 568 (Iowa 2012) (quoting Naujoks, 637 N.W.2d at 107). The exceptions to the warrant requirement include, among others, searches pursuant to valid consent and searches of items in plain view. Naujoks, 637 N.W.2d at 107; see generally Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent searches); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plain-view doctrine). The plain-view exception has also been extended to include certain “plain-feel” situations: 5 See Terry v. Ohio, 392 U.S. 1, 30 (1968) (noting officers are entitled “to conduct a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault” the officer or others).  8 If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. Minnesota v. Dickerson, 508 U.S. 366, 376–77 (1993). As to the plain-feel exception, Ahmetovic forwards the following argument: McCarthy did not believe that the contents of [his] pocket contained a weapon. He did, however, continue to manipulate the contents of the pocket in an attempt to further discern what said contents might be. The additional manipulation by Officer McCarthy makes it clear that the contents of [Ahmetovic’s] pocket were not immediately identifiable as narcotics. While absolute certainty may not be required, an item’s incriminating nature is not “immediately apparent” if an officer is torn between multiple-choice options. As did the district court, we find Ahmetovic’s argument and its underlying factual assertions unsupported by the suppression record. The evidence presented reveals that, while McCarthy was conducting a brief weapons search of Ahmetovic’s person, he “noticed a hard bulge in the right coin pocket of [Ahmetovic’s] pants.” McCarthy testified: “The immediate feel of it, based on my experience and the specific information we were given from Officer Wilshusen, at that point I believed it to be cocaine.” He further testified on cross-examination, “Based on the touch, I was very certain it was probably a narcotic.” No evidence or testimony was presented at the suppression hearing that McCarthy, in any way, shape, or form, “manipulated the contents of the pocket in an attempt to further discern what said contents might be” before he reached his conclusion. Rather, the evidence shows that, when McCarthy noticed the bulge, based on his training, experience, and the information he received, it was immediately apparent to him  9 that the item was contraband. It was not until after McCarthy reached this conclusion that he “stayed on the item” and pressed it with his fingers to draw Ahmetovic’s attention to it before questioning him what it was. In the course of a lawful Terry search, McCarthy felt an object that was immediately apparent to him to be contraband, and there was therefore no invasion of Ahmetovic’s privacy beyond that already authorized by the Terry search. We conclude the warrantless search of Ahmetovic’s pocket was valid under the plain- feel exception to the warrant requirement. We choose to continue our analysis of the search, however, because this case alternatively contemplates the consent exception to the warrant requirement. “A warrantless search conducted by free and voluntary consent does not violate” constitutional protections against unreasonable searches. State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001). Consent cases pose two questions: (1) whether the consent was given and (2) if so, whether it was given voluntarily. Id. As he did in his testimony at the suppression hearing, Ahmetovic “denies that he consented to the removal of the contents of his pocket.” Upon our de novo review and giving deference to the district court’s credibility findings, we conclude the consent was manifested. Whether the consent exception applies to validate this warrantless search therefore turns on whether the consent was voluntary. “Consent is considered to be voluntary when it is given without duress or coercion, either express or implied.” Id. Voluntariness of consent is “a question of fact based upon the totality of the relevant circumstances.” Id. Consideration of the following factors is helpful in determining the voluntariness of consent: (1) the defendant’s knowledge of the right to refuse consent, (2) “whether police asserted  10 any claim of authority to search prior to obtaining consent,” (3) any “show of force or other types of coercive action,” (4) the use of deception, (5) threats to obtain a search warrant, and (6) other illegal police action prior to the giving of consent. Id. Although it is unclear whether Ahmetovic knew he could refuse consent, it is clear that the police did not assert any claim of authority to search, engage in a show of force or other types of coercive action, threaten or attempt to deceive, or engage in other illegal police action prior to the giving of consent. In weighing these factors, we conclude Ahmetovic’s giving of permission to McCarthy to remove the contraband from his pocket was voluntary. We conclude the warrantless search of Ahmetovic’s pocket was valid under the plain-feel and consent exceptions to the warrant requirement. We therefore affirm the district court’s denial of Ahmetovic’s motion to suppress evidence concerning or flowing from the search of his pocket. C. Vehicle Search Finally, Ahmetovic challenges the search of the vehicle, contending the application of the automobile exception to the warrant requirement is not “justified under the facts of this case.” However, Ahmetovic does not challenge the district court’s alternative conclusion that he, as a mere passenger with no possessory interest in the vehicle, lacked a reasonable expectation of privacy in the vehicle, and therefore lacked standing to challenge the search. See Rakas v. Illinois, 439 U.S. 128, 148–50 (1978); State v. Haliburton, 539 N.W.2d 339, 342–43 (Iowa 1995). Because Ahmetovic does not challenge that ground for validation of the search, we deem such an argument waived and affirm the district court. See Iowa R. App. 6.903(2)(g)(3). We decline to entertain Ahmetovic’s request that we  11 examine the automobile exception’s “application in light of technological advances since its creation 92 years ago,” as our supreme court recently elected to retain the automobile exception when faced with the same request. See Storm, 898 N.W.2d at 156. IV. Conclusion We affirm in all respects the district court’s denial of Ahmetovic’s motion to suppress. AFFIRMED. 

510 U.S. 926 Thomasv.United States. No. 93-5860. Supreme Court of United States. October 12, 1993. 1 Appeal from the C. A. 7th Cir. 2 Certiorari denied. Reported below: 987 F. 2d 1298.

62 Cal.App.4th 1390 (1998) THE PEOPLE, Plaintiff and Respondent, v. CURTIS RONALD TOWNSEND, Defendant and Appellant. Docket No. H015880. Court of Appeals of California, Sixth District. April 10, 1998. *1393 COUNSEL Robert Spertus, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Richard Rochman, Deputy Attorneys General, for Plaintiff and Respondent. OPINION ELIA, J. At issue in this appeal is the scope of Health and Safety Code section 11353.6, subdivision (b), which creates a sentence enhancement applicable to certain narcotics offenses committed within 1,000 feet of a school.[1] In its instructions to the jury, the trial court altered the language of this provision. Appellant Curtis Ronald Townsend contends that the court's instruction gave the jury the erroneous impression that section 11353.6(b) is applicable to a person who sells controlled substances outside the school boundary while the school is closed but minors are on the school grounds. The People maintain that the enhancement is triggered whenever minors are present at the school. We agree with the People's interpretation. Although the trial court improperly changed the language of the statute in defining the enhancement for the jury, no prejudice resulted. We further find no unconstitutional vagueness in the statute. Accordingly, we will affirm the judgment. Background Between 5:55 and 6:00 on a Thursday evening in April 1995, appellant sold an undercover officer a piece of crack cocaine for $20. The exchange took place eight to ten feet from the fence that bordered Horace Mann *1394 Elementary School in San Jose. The officer saw several children between 10 and 15 years old playing basketball on the school grounds. Milly Powell, the principal at Horace Mann at that time, testified that the school was open for classes between 9:05 a.m. and 3:05 p.m. After that a "homework center" was open for the students until 4 p.m. Between 6:30 a.m. and 6 p.m. a private organization operated a day care center for children of parents who lived in the school district. The day care center was considered part of the school and was administered through the school district. After 6 p.m. there were no authorized activities on the school grounds except for adult classes in "English as a Second Language" (ESL). Children were "not supposed to" use the school grounds after 6 p.m., but Ms. Powell was aware that some students nevertheless went there to play basketball. Appellant and two codefendants were charged with selling and offering to sell cocaine base (§ 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). Attached to each count was an allegation that the crime took place within 1,000 feet of Horace Mann Elementary School "during hours that the school was open for classes and school-related programs, and at the time when minors were using the facilities where the offense occurred, within the meaning of section 11353.6 of the Health and Safety Code." After a jury trial, all three defendants were convicted as charged. Discussion 1. Jury Instruction Section 11353.6, the Juvenile Drug Trafficking and Schoolyard Act, creates a sentence enhancement for any adult who is convicted of certain narcotics offenses, including the sale of crack cocaine, "where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs...." (§ 11353.6(b).)[2] (1a) In instructing the jury, the trial court substituted "when the offense occurs" for "where the offense occurs" in the last clause of subdivision (b) quoted above. Defense counsel objected, but the prosecution successfully argued that the word "where" was a drafting error. *1395 Appellant argues that the court's substitution of "when" for "where" permitted the jury to convict him on a legally impermissible theory: that an off-campus sale of drugs will trigger the application of section 11353.6(b) if minors are using the school facility. According to appellant, when school is closed the enhancement may be imposed only if both the minors and the offender are at the school facility when the offense takes place, and only if the minors are authorized to be on the premises. This interpretation cannot withstand scrutiny. (2) In construing section 11353.6, our objective is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224]; People v. Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal. Rptr.2d 278, 856 P.2d 1134].) In approaching this task, a court must begin with the statutory language, giving the words used their plain and commonsense meaning. (People v. Valladoli (1996) 13 Cal.4th 590, 597 [54 Cal. Rptr.2d 695, 918 P.2d 999].) If there is no ambiguity or uncertainty, the Legislature is presumed to have meant what it said, and there is no need to resort to extrinsic indicia of legislative intent, such as legislative history. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr.2d 77, 906 P.2d 1232]; People v. Hendrix (1996) 16 Cal.4th 508, 512 [66 Cal. Rptr.2d 431, 941 P.2d 64].) On the other hand, "... language that appears unambiguous on its face may be shown to have a latent ambiguity." (Quarterman v. Kefauver (1997) 55 Cal. App.4th 1366, 1371 [64 Cal. Rptr.2d 741].) In such a case, a court may turn to customary rules of statutory construction, the "`wider historical circumstances,'" or legislative history for guidance, keeping in mind the "`consequences that will flow from a particular interpretation.'" (People v. Cruz (1996) 13 Cal.4th 764, 782-783 [55 Cal. Rptr.2d 117, 919 P.2d 731].) It is not always preferable to rely on the literal meaning of the words used. "`[I]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] ... Thus, `[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.'" (People v. Pieters (1991) 52 Cal.3d 894, 898-899 [276 Cal. Rptr. 918, 802 P.2d 420]; People v. Ledesma (1997) 16 Cal.4th 90, 95 [65 Cal. Rptr.2d 610, 939 P.2d 1310].) (1b) The manifest purpose of section 11353.6 is to prevent drug trafficking with schoolchildren and to protect students from exposure to drug transactions and the hazards they present. (People v. Williams (1992) 10 Cal. App.4th 1389, 1394 [13 Cal. Rptr.2d 379]; People v. Jimenez (1995) 33 *1396 Cal. App.4th 54, 60 [39 Cal. Rptr.2d 12]; People v. Marzet (1997) 57 Cal. App.4th 329, 338 [67 Cal. Rptr.2d 83].) "`Whether or not a child is involved in or otherwise present during any particular sale of narcotics within one thousand feet of a school, subjecting the seller to enhanced penalties reasonably may be expected to deter the seller and other illicit dealers from conducting their operations near school property in the future.... It is difficult to imagine a more rational way of keeping drug traffickers out of areas where children are more likely to come into contact with them than to subject them to a risk of stiffer penalties for doing business near school property.'" (People v. Williams, supra, 10 Cal. App.4th at p. 1395, quoting United States v. Nieves (S.D.N.Y. 1985) 608 F. Supp. 1147, 1149-1150, italics omitted.) In 1992 the Legislature amended section 11353.6, effective January 1, 1993. The 1992 amendment increased the number of offenses subject to the enhancement and narrowed the circumstances in which it applied. Instead of maintaining a 24-hour all-inclusive protected zone around schools, the Legislature added subdivision (g), which limited the reach of the statute to "any public area or business establishment where minors are legally permitted to conduct business." (Italics added.) The amendment also specified that the 1,000-foot zone was protected "during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs." (Stats. 1992, ch. 989, § 1, p. 4661, italics added.) It is this addition, particularly the portion italicized above, that is at issue in this case. Appellant contends the clause "where the offense occurs" refers to the school facility, and therefore the offense must take place on campus for the enhancement to apply. This construction ignores the preceding language creating the 1,000-foot zone. There is no basis either in the statutory language or in the legislative history for inferring that the Legislature intended to retain the phrase "within 1,000 feet" only during the hours a school is open, and to relinquish that protection when school is closed but students are "using the facility." Nor is there any indication that the students' presence on campus must be authorized for the offender's conduct to warrant increased punishment. To the extent that the amended portion of subdivision (b) creates ambiguity in its scope, appellant's proposed construction is unreasonable. Consequently, we do not apply the rule invoked by appellant, that ambiguous penal statutes are construed in favor of defendants. (3) That rule is applicable only when "two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable." (People v. Jones (1988) 46 Cal.3d 585, 599 [250 Cal. Rptr. 635, 758 P.2d 1165].) Courts will *1397 not favor a defendant's interpretation if it would lead to results "that are contrary to legislative intent or that fail to prevent the harm that is identified in the statute or that override common sense and create palpable absurdities." (People v. Davis (1985) 166 Cal. App.3d 760, 766 [212 Cal. Rptr. 673]; People v. Pieters, supra, 52 Cal.3d 894, 899; see also People v. Jimenez (1992) 11 Cal. App.4th 1611, 1626 [15 Cal. Rptr.2d 268] [defendant's construction must be rejected if unreasonable, absurd or contrary to the legislative intent].) (1c) In our view, the section 11353.6 enhancement applies whenever students are on campus — whether school is open or closed — and the offense takes place either on campus or in a public area within 1,000 feet of the school boundary. The clause "where the offense occurs" contributes little except to clarify that the school in use by minors must be the same one as the school at or near the location of the offense. When the court advised the jury that the enhancement allegation could be found true if "the minors were using the facility when the offense occurred," it was merely restating the provision for application of the enhancement "at any time when" minors are using the facility. (§ 11353.6(b).) Thus, the court's substitution of "when" for "where" in the clause "where the offense occurs" was of no significance. It is evident in the challenged instruction that the court assumed that "the facility" was the school. Neither party contests this assumption, and we agree that the intended referent of "the facility" is the school. We recognize, however, that there are other plausible constructions of this language. For example, a broader interpretation of the term "facility" would extend the protection during nonschool hours beyond the school boundary to the entire 1,000-foot zone. An expanded reading of "facility" to the entire surrounding area, however, becomes awkward when minors are considered to be "using the facility." Alternatively, it could be argued, as does the dissent, that "facility" refers to any specific point within the 1,000-foot area, so as to subject an offender to the enhancement if both the offender and the minors are at the same public location within that zone. But we believe the interpretation we have adopted to be most consistent with the Legislature's purpose to accord protection to children in the entire zone during hours the school is open, and to ensure protection of any children using the school facility even when school is closed. The legislative history surrounding the 1992 amendment is consistent with our interpretation. The Senate Judiciary Committee described the amendment as specifying "that the enhancement may be invoked for violation when the school is open or whenever minors are using the facility." The Senate Rules Committee described the applicable period as the hours "that *1398 the school is open for classes or school[-]related programs or at any time when minors are using the facilities." There is no evidence of any legislative effort to define the word "facility" to mean anything other than the facility identified in the preceding part of the sentence — that is, the school. In this respect section 11353.6(b) is identical to section 11353.1, subdivision (a)(2), and section 11380.1, subdivision (a)(2), which also create sentence enhancements for drug offenses near schools.[3] These provisions were enacted in 1990, prior to the amendment of section 11353.6. By comparison, section 11353.1, subdivision (a)(1), and section 11380.1, subdivision (a)(1), do not contain the disputed clause, "where the offense occurs."[4] Instead, these latter provisions call for increased punishment when the offense occurs on the grounds of any one of a number of specified facilities, "during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility." (Italics added.) The defining sentence refers first to the hours "the facility" is open and then to the time "when minors are using the facility." It was unnecessary to use the language "where the offense occurs" to distinguish the facility already identified by implication in the preceding part of the sentence.[5] As noted earlier, the Legislature did not need to use this qualifying language in section 11353.6 to distinguish the school from any other facility *1399 because only one type of facility — a school — is the subject of the enhancement. The statute would have been clear enough without the words "where the offense occurs." Appellant, as well as the dissent, suggests that we cannot presume the Legislature would have added unnecessary language, but must "try to give effect to every phrase and paragraph, leaving no part of the statute useless or deprived of meaning." (People v. Jackson (1985) 37 Cal.3d 826, 832 [210 Cal. Rptr. 623, 694 P.2d 736]; People v. Bow (1993) 13 Cal. App.4th 1551, 1557 [17 Cal. Rptr.2d 94].) (4) But the avoidance of surplusage, while an important principle of statutory construction, is nonetheless subordinate to the overriding purpose of effectuating legislative intent. "Rules such as those directing courts to avoid interpreting legislative enactments as surplusage are mere guides and will not be used to defeat legislative intent. [Citations.] As we have already stressed, the fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature." (People v. Cruz, supra, 13 Cal.4th 764, 782.) (1d) According to our dissenting colleague, the focus of the 1992 amendment was on proximity between the offender and any children who might be in the 1,000-foot zone when school is closed. He cites People v. Jimenez, supra, 33 Cal. App.4th 54, for the rationale that the statute is designed to prevent exposure of minors to drug trafficking when they are going to or from school or simply congregating in the surrounding area. The court in Jimenez, however, did not assume that school is closed when children are walking to and from school, as the dissent apparently does. Instead, the Jimenez court appears to have assumed the opposite, by contrasting the tendency of large numbers of students to congregate off campus "before and after school" with the "substantially" lower risk of exposure when "school is closed or abandoned. The amendment to section 11353.6, subdivision (b) recognizes these facts by focusing the enhancement for off-campus drug offenses on the hours the school is open for classes or school-related programs." (Id. at p. 59, italics added.)[6] Even if the construction we adopt does not encompass drug offenses committed in proximity to children when the nearby campus is closed and deserted, we nevertheless feel constrained to follow the intent as expressed in the statute, rather than what we think the Legislature should *1400 have intended. (5) "The role of the judiciary is not to rewrite legislation to satisfy the court's, rather than the Legislature's, sense of balance and order...." (People v. Carter (1997) 58 Cal. App.4th 128, 134 [67 Cal. Rptr.2d 845].) (1e) Thus, to paraphrase Carter, the apparent purpose underlying section 11353.6 may well be served by imposing a sentence enhancement on offenders who engage in drug dealing on a Saturday outside the school grounds when no one is on the playground but children are on the same street as the drug dealer. But "the question before us is not whether such substitution would be a reasonable legislative act but whether this is in fact what the Legislature did." (58 Cal. App.4th at p. 134.)[7] We thus conclude that the trial court's instruction, if erroneous, did not permit the jury to convict on a legally insufficient theory. Though there is no evidence that the word "where" was a drafting error, as the prosecution contended below, the substitution of "when" in the jury instructions was harmless beyond a reasonable doubt. (See People v. Harris (1994) 9 Cal.4th 407, 424 [37 Cal. Rptr.2d 200, 886 P.2d 1193]; People v. Davison (1995) 32 Cal. App.4th 206, 215 [38 Cal. Rptr.2d 438].) 2. Vagueness (6a) Appellant next contends that if the court correctly defined the enhancement when it replaced "where" with "when," then the statute must be declared void for vagueness. We cannot agree. First, we believe the Legislature intended to use "where," not "when," so we do not uphold the judgment on the ground that a "drafting error" occurred, as argued by the prosecution and accepted by the trial court. Furthermore, to the extent that appellant maintains that the statute is unclear even as written, he has not met the criteria for finding unconstitutional vagueness. (7) Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal. Rptr. 145, 673 P.2d 732]; People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389 [250 Cal. Rptr. 515, 758 P.2d 1046].) "Void for vagueness *1401 simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." (United States v. National Dairy Corp. (1963) 372 U.S. 29, 32-33 [83 S.Ct. 594, 598, 9 L.Ed.2d 561].) (6b) Section 11353.6 does not suffer from unconstitutional vagueness. A statute is not vague if, as here, any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required. (People v. Victor (1965) 62 Cal.2d 280, 300 [42 Cal. Rptr. 199, 398 P.2d 391]; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 [60 Cal. Rptr.2d 277, 929 P.2d 596]; Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340 [72 S.Ct. 329, 330-331, 96 L.Ed. 367].) Even where it contains somewhat imprecise language, secondary sources such as legislative history may clarify statutory terms sufficiently to meet the constitutional requirement of fair notice. (People v. McCaughan (1957) 49 Cal.2d 409, 414 [317 P.2d 974]; People v. Heitzman (1994) 9 Cal.4th 189, 200 [37 Cal. Rptr.2d 236, 886 P.2d 1229]; People v. Mitchell (1994) 30 Cal. App.4th 783, 799 [36 Cal. Rptr.2d 150].) "This analytical framework is consistent with the notion that we `require citizens to apprise themselves not only of statutory language, but also of legislative history, subsequent judicial construction, and underlying legislative purposes.'" (People v. Heitzman, supra, 9 Cal.4th at p. 200, quoting Walker v. Superior Court (1988) 47 Cal.3d 112, 143 [253 Cal. Rptr. 1, 763 P.2d 852].) Even if, as we have already discussed, the reference to "the facility where the offense occurs" may be susceptible of more than one reasonable construction, ambiguity alone does not mean a statute is vague.[8] "A statute may contain a serious ambiguity; this will not in itself make the statute vague. New statutes, criminal as well as civil, frequently contain ambiguities. If that alone made them unconstitutionally vague, it would be difficult to enact new statutes. The objection to vague statutes is that they invite arbitrary and discriminatory enforcement by those who administer the statute. A statute that contains one or several ambiguities that can be dispelled at a stroke by interpretation is not open to that objection and therefore is not vague in the constitutional sense." (Kucharek v. Hanaway (7th Cir.1990) 902 F.2d 513, 519.) Our Supreme Court has expressed a similar view: "Many, probably most, statutes are ambiguous in some respects and instances invariably arise under *1402 which the application of statutory language may be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201 [246 Cal. Rptr. 629, 753 P.2d 585]; People v. Kelly (1992) 1 Cal.4th 495, 533-534 [3 Cal. Rptr.2d 677, 822 P.2d 385].) We conclude, therefore, that section 11353.6(b) is not impermissibly vague. 3. Sufficiency of the Evidence Appellant finally contends that even if the instruction did not permit conviction on a legally insufficient theory, it is reasonably probable that the verdict was based on a factually insufficient theory. According to appellant, there was insufficient evidence that at the time of the offense either the school was open for school-related programs or the minors playing basketball were authorized to be there. As we noted earlier, however, the statute does not require that the minors' presence be authorized. In amending the statute, the Legislature preserved protection for minors whenever they are on campus, even when school is closed. Because an authorized use is not an element of section 11353.6, we reject his argument that the evidence failed to establish that the minors had permission to play basketball at the school facility while it was closed. (Cf. Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [20 Cal. Rptr.2d 330, 853 P.2d 496] [courts should not "add language or imply exceptions to statutes passed by the Legislature"].) Even if there was insufficient evidence that the transaction occurred before day care ended at 6 p.m.,[9] there was uncontradicted testimony that minors were playing basketball on the campus.[10] Accordingly, whether or not the school was "open for classes or school-related programs," the alternative criterion of the enhancement — that minors be using the facility — was clearly met. Disposition The judgment is affirmed. Premo, Acting P.J., concurred. *1403 WUNDERLICH, J. I respectfully dissent. Before 1993, Health and Safety Code section 11353.6[1] created an absolute "drug-free zone" around schools. The enhancement applied to offenses committed on or within 1,000 feet of a school, even if they occurred "in the bedroom of a private residence at a time when the nearby school was closed for summer vacation." (People v. Jimenez (1995) 33 Cal. App.4th 54, 58 [39 Cal. Rptr.2d 12].) Then, in 1993, the Legislature amended the statute by expanding the list of applicable offenses, limiting the circumstances in which the enhancement applied, and excluding offenses committed in private areas and businesses where minors are not legally permitted to be. These changes, as the court in People v. Jimenez, supra, 33 Cal. App.4th 54 later explained, were not made because the Legislature "suddenly became soft on crime or because it lost interest in `shielding ... children from the evils of the drug trade.'" (Id. at p. 59.) Rather, the amendments "represent a change in focus away from attempting to create a `drug-free zone' around schools, focusing instead on preventing the sale of drugs to students on their way to and from school and, equally important, protecting them from exposure to drug dealers and drug buyers so they will not be influenced to emulate the conduct of either."[2] (Ibid., italics added.) The changes recognized that "drug transactions carried out in private or in places where minors are not lawfully present, such as bars, nightclubs and adult bookstores, do not expose minors to drug trafficking to the same degree as transactions carried out in places children are likely to congregate before, during and after school such as streets, sidewalks, and bus stops." (Ibid., fn. omitted.) Section 11353.6 now provides, among other things, that when school is closed, the enhancement applies to offenses committed on or off campus "any time when minors are using the facility where the offense occurs." (§ 11353.6, subd. (b).) My colleagues and I disagree over the meaning of the quoted language. Drawing inferences from related statutes, my colleagues conclude that "facility" refers only to school grounds. In their view, when school is closed — for example, in the mornings or evenings before and after classes, on weekends and holidays, or during the summer vacation, the statute protects minors in any nearby bus stop, fast-food restaurant, parking lot, or similar public place only if another minor happens to be on campus. If the *1404 campus is empty or even completely locked up, then dealers need not fear additional punishment for selling drugs in nearby areas no matter how many children may be present. I question whether the Legislature intended to make application of the enhancement depend on the coincidental presence of a child on campus, especially when the statute is designed to prevent exposure to drug trafficking when minors are going to and from school or simply congregating in the surrounding area. (See People v. Jimenez, supra, 33 Cal. App.4th at pp. 58, 60; People v. Williams (1992) 10 Cal. App.4th 1389, 1395 [13 Cal. Rptr.2d 379].) As I explain more fully below, I read "facility" to mean school grounds or public areas within 1,000 feet of a school. Thus, when school is closed, the enhancement applies anytime a minor and dealer are in the same place. I believe this interpretation is more consistent with the legislative focus on preventing exposure and better serves the purpose of the statute. Turning to section 11353.6, I note that before the word "facility" is used, the statute lists the places where the underlying offense must occur: "upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school." (§ 11353.6, subd. (b).) In section 11353.6, subdivision (g), the Legislature specifically defines "[w]ithin 1,000 feet of a public or private elementary, vocational, junior high, or high school" to mean "any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school." After specifying that the offense must take place on school grounds or in public areas or businesses within 1,000 feet of school, the statute makes the enhancement applicable only if the offense occurs (1) during school hours or (2) "any time when minors are using the facility where the offense occurs." (§ 11353.6, subd. (b), italics added.) When used to denote a place or a thing, "facility" commonly means "something that promotes the ease of any action, operation, transaction, or course of conduct"; "something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end." (See Webster's New Internat. Dict. (3d ed. 1981) pp. 812-813.) The word "facility" in the statute refers to something, and, given the breadth of the term, I conclude that it refers back to any of the previously specified places: school grounds, public areas, or businesses open to minors. My colleagues concede that this is a *1405 "plausible" interpretation of "facility." And, at oral argument, the Attorney General conceded that "facility" could reasonably refer to more than school grounds. Furthermore, if the Legislature intended for "facility" to mean only one of the specified places — school grounds — it seems more likely it would have said "school grounds" instead of "facility." However, because it used this different, broader word, I infer a legislative intent to encompass more than just school grounds. (Cf. Zavala v. Board of Trustees (1993) 16 Cal. App.4th 1755, 1762 [20 Cal. Rptr.2d 768] [use of different words in adjoining, contemporaneous subdivisions creates compelling inference the Legislature intended different meaning].) This brings us to the phrase "where the offense occurs," which modifies "facility." Given my interpretation of "facility," the statute reads, in effect, any time when minors are using the school grounds, the public area, or the business where the offense occurs. The plain meaning of this language is clear: For the enhancement to apply, a minor must be in or at the same place the dealer commits the offense, whether it be the school ground or a nearby public area or business. The plain meaning of the language reflects and promotes the Legislature's intent to prevent exposure to drug trafficking because it focuses on proximity between dealers and school children when school is closed. The Legislature could reasonably conclude that punishing such proximity is, in theory, an effective way to prevent exposure to drug trafficking after school. Moreover, in theory, it protects minors whenever they are in the same place where the drug trafficking is occurring. Thus, in my view, punishing proximity is a far more effective way to prevent exposure to off-campus drug trafficking than making the enhancement applicable only when a minor happens to be somewhere on campus.[3] Furthermore, my interpretation of the language in question assumes the Legislature intended "where the offense occurs" to serve some meaningful purpose. My colleagues say it is little more than surplusage. However, in construing statutes, we generally try to give effect to all phrases and avoid interpretations that render the Legislature's words meaningless. (See People v. Bryant (1992) 10 Cal. App.4th 1584, 1600 [13 Cal. Rptr.2d 601]; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 55 [19 Cal. Rptr.2d 73, 850 *1406 P.2d 621]; Estate of MacDonald (1990) 51 Cal.3d 262, 270 [272 Cal. Rptr. 153, 794 P.2d 911].) My colleagues quote excerpts from two Senate committee reports, whose authors appear to have equated the words "facility" or "facilities" with school grounds. My colleagues can then find no legislative effort "to define the word `facility' to mean anything other than the facility identified in the preceding part of the sentence — that is, the school." (Maj. opn., ante, at p. 1398.) As I point out above, however, the preceding part of the statutory sentence identifies more than one facility: school grounds, public areas, and businesses open to minors. My colleagues also cite a number of related enhancement statutes. However, I find the statutes more supportive of my interpretation of section 11353.6. Section 11353.1, subdivision (a)(1), and section 11380.1, subdivision (a)(1), identify numerous places where the offense must occur for the enhancement to apply: churches, synagogues, playgrounds, public and private youth centers, child day-care centers, and public swimming pools. But unlike section 11353.6, the statutes do not include public areas and businesses within 1,000 feet of these places. The statutes then make the enhancements applicable to offenses that occur "during hours in which the facility is open" or "any time when minors are using the facility. ..." (Italics added.) The phrase "where the offense occurs" does not modify "facility." In these statutes, the word "facility" is not ambiguous. It can only refer back to one of the places listed. In this respect, they support my view that "facility" in section 11353.6 refers back to any one of specified places: school grounds or public places or businesses within 1,000 feet. These statutes further support my interpretation because they too focus on proximity and apply only if the dealer and minor are at the same church, playground, youth center, etc. Finally, these statutes do not need the modifying phrase "where the offense occurs" because there is no possible ambiguity concerning which facility the minors must be using when the offense occurs. One cannot reasonably read the statutes to apply to a drug sale in a synagogue when a minor is using a swimming pool someplace else. Section 11353.1, subdivision (a)(2), and section 11380.1, subdivision (a)(2), are different from their respective subdivision (a)(1)'s discussed *1407 above and essentially identical to section 11353.6: They all apply to transactions on school grounds or public places within 1,000 feet,[4] and they all contain the phrase "where the offense occurs" to modify "facility." Moreover, their use of "facility" is subject to the same ambiguity my colleagues and I recognize in section 11353.6. In all three statutes, the phrase "any time when minors are using the facility" could refer either to when minors are using either the school or to when they are using nearby public areas or businesses. The modifying phrase "where the offense occurs" resolves this ambiguity by saying the minor and dealer must be in the same place. Doing so maintains the legislative focus on proximity between dealers and schoolchildren.[5] Given my analysis, I disagree with my colleagues' conclusion that the trial court's substitution of "when the offense occurs" for the statutory language "where the offense occurs" was harmless error. The error permitted the jury to find the enhancement allegation true under a factual theory that is legally untenable: commission of a drug sale on a facility that schoolchildren were not using at the time. Since we cannot tell the factual basis upon which the jury relied, the enhancement cannot stand. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [17 Cal. Rptr.2d 365, 847 P.2d 45].) This is also true because if we assume that both of our interpretations are reasonable, defendant is entitled to benefit from the rule that we ordinarily resolve doubts and ambiguities concerning the meaning of a penal statute in favor of the defendant. (People v. Simon (1995) 9 Cal.4th 493, 517 [37 Cal. Rptr.2d 278, 886 P.2d 1271].) Moreover, my colleagues and I arrive at different interpretations, which, when applied to the facts of this case, lead to opposite conclusions concerning the applicability of the enhancement to defendant. Under these circumstances, I consider the statute too vague to have provided defendant with constitutionally adequate notice concerning the consequences of selling drugs near the school when it was closed. For this reason, I doubt my colleagues may properly apply their interpretation to defendant without violating his due process rights. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 [60 Cal. Rptr.2d 277, 929 P.2d 596].) In sum, my interpretation of the statute and that of my colleagues reflect two ways of protecting children from exposure to drug traffickers. I must *1408 acknowledge that neither provides protection in all situations when school is closed. My colleagues' interpretation fails to protect children who are in the public areas near school when there is no other child on campus. My interpretation fails to protect the children, who, as in this case, are in a school yard close to a dealer on a nearby sidewalk. These limitations, however, arise from the statutory language we have construed. In my view, "any time when minors are using the facility where the offense occurs" cannot reasonably be interpreted in a way that provides comprehensive protection. For this reason, I urge the Legislature to revisit section 11353.6 (and related statutes) and amend the statute so that it eliminates the deficiencies discussed above. Appellant's petition for review by the Supreme Court was denied July 15, 1998. NOTES [1] All further statutory references are to the Health and Safety Code. References to section 11353.6(b) are to section 11353.6, subdivision (b). [2] The term "within 1,000 feet of" is defined in section 11353.6 subdivision (g) as "any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school." Any references to "off-campus" in this opinion pertain to this protected zone. [3] Section 11353.1, subdivision (a)(2), enhances the sentence imposed for a violation of section 11353 if "the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs. ..." (Italics added.) Section 11380.1, subdivision (a)(2), provides for a similar enhancement if "the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high school, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs. ..." (Italics added.) [4] Subdivision (a)(1) of section 11353.1 provides: "If the [section 11353] offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility. ..." (Italics added.) Section 11380.1, subdivision (a)(1), provides for enhancement if "the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility. ..." (Italics added.) [5] Section 11353.5, which prohibits certain drug activities at a number of specified facilities, does include the language "at any time when minors are using the facility where the offense occurs." In that statute, however, the clause is preceded by an express reference to "those facilities." The qualifying language "where the offense occurs" is necessary to identify which of "those facilities" must be in use by minors at the time of the offense. [6] Students walking to and from classes are not necessarily outside the protection of section 11353.6(b) under our interpretation of the word "facility." Horace Mann Elementary School, for example, is open for day care from 6:30 a.m. until 6 p.m. Consequently, children walking either to school before the bell rings or home after being dismissed will generally be covered by the language protecting them "during hours that the school is open for classes or school-related programs." [7] Indeed, the alternative construction by the dissent only invites further interpretive difficulties. It does not explain how far away children must be on a sidewalk to constitute "using the facility [i.e., the sidewalk] where the offense occurs." If children are standing at a bus stop — a "facility" under the dissent's view of the statute — is the offender then exempt from the enhancement if he conducts his drug deal on the sidewalk a few feet away? If a street corner is a facility, does the offender escape the enhancement if children are watching the transaction from a different corner at the same intersection? If the legislative goal was to deter drug crimes in proximity to minors, the language of this statute does not promote that goal. [8] "A statute is vague if its meaning is imprecise or indefinite: Its meaning does not control the decision of the person applying it. A statute is ambiguous, on the other hand, if it can have two or more meanings." (Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law (1992) 44 Stan.L.Rev. 383, 421.) [9] Officer Raymond testified at trial that he approached appellant to make a purchase about 5:52 or 5:53 p.m. The transaction occurred "right around between 5:55 and six o'clock." Officer Hall, who had been observing appellant's activity, believed the initial contact between appellant and Officer Raymond was about 5:58 p.m., but he was not relying on his independent knowledge of that fact. [10] The People also point to the school principal's testimony that ESL classes were held at the school facility on Thursday nights. We decline to base our conclusion on this fact, however, because it was not established that the facility was open for this purpose at the time of the offense, nor that these adult ESL classes were "school-related" within the meaning of section 11353.6(b). [1] Further statutory references are to the Health and Safety Code. [2] As I read the statutory changes, the Legislature maintained the "drug-free zone" approach when school is open, for the enhancement applies to offenses committed in the defined areas regardless of whether any school children are around. However, the Legislature did change the approach when schools are closed, focusing on exposure. [3] It may also make it simpler to apply the enhancement. For example, when an offense occurs in a mini-market near a school, it would be easy to show that there was a minor in the store at the time, whereas more difficult to show there was a minor using the campus at that moment. [4] The statutory definition of "within 1,000 feet etc." is the same in all three statutes. (§§ 11353.1, subd. (e)(5), 11353.6, subd. (g), 11380.1, subd. (e).) [5] Section 11353.5 is a hybrid, in that it does not apply to offenses that occur within 1,000 feet of specified places but does apply "any time when minors are using the facility where the offense occurs." (Italics added.) In this statute, "where the offense occurs" does simply clarify the obvious: that the facility in use by the minor must be the one at which the offense occurs. However, even this statute supports my view that the dealer and minor must be in the same place when the offense occurs and thus is consistent with my view that the Legislature intended to protect school children by preventing proximity to drug dealers.

NO. 07-11-0147-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E OCTOBER 25, 2011 JACK E. WHITNEY, Appellant v. THE STATE OF TEXAS, Appellee ___________________________ FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY; NO. 96256-A; HONORABLE CLIFFORD BROWN, PRESIDING Memorandum Opinion on Motion for Rehearing Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1 Pending before the court is the State’s motion for rehearing. We grant the motion, withdraw our opinion, and dismiss the appeal for want of jurisdiction. Appellant Jack E. Whitney seeks to appeal the trial court’s finding that he has failed to present sufficient evidence in order for a writ to be granted. The State contends this court is without jurisdiction. This is so, according to the State, because art. 11.07 of the Texas Code of Criminal Procedure implicates the jurisdiction of only the convicting court and 1 John T. Boyd, Senior Justice retired, sitting by assignment. the Court of Criminal Appeals. It allegedly provides no role for the court of appeals. We dismiss for want of jurisdiction. Save for a few situations which are inapplicable here, an appellate court has jurisdiction only over final judgments and orders. Palomo v. State, 330 S.W.3d 920 (Tex. App.–Amarillo 2010, no pet.). No such judgment or order appears in the record before us. Here, the trial court issued findings and a recommendation that the writ be denied. It then ordered that the record be transmitted to the Court of Criminal Appeals. The trial court did not make a ruling in a final order denying appellant’s petition for writ of habeas corpus. Because we do not have a final appealable order from the trial court, we are without jurisdiction. Accordingly, we need not address whether this court would have jurisdiction over a proceeding arising under art. 11.07 of the Texas Code of Criminal Procedure if a final order had been entered. Instead, we simply dismiss the appeal for the lack of such an order. Per Curiam Do not publish. 2 

405 A.2d 141 (1979) Celestine BROOKS, Claimant-Appellant, v. CHRYSLER CORPORATION, Employer-Appellee. Superior Court of Delaware, New Castle County. Submitted June 15, 1979. Decided July 5, 1979. Julian D. Winslow, of Winslow & Winslow, Wilmington, for claimant-appellant. Carl Schnee and Dennis R. Spivack, of Schnee & Castle, Wilmington, for employer-appellee. OPINION TEASE, Judge. Two questions are raised in this appeal from a decision of the Industrial Accident *142 Board (Board) whether there is substantial evidence of record to support the Board's conclusion that the two year compensation claim period set by 19 Del.C. § 2361(a) expired before the filing of a claim for neck injuries and whether an award of disability benefits must be reduced by the amount of unemployment compensation received as a result of an industrial accident.[1] On October 13, 1976, claimant, Celestine Brooks, filed a claim for workmen's compensation benefits wherein she alleged having sustained separate injuries to her back and neck while employed by Chrysler Corporation. By opinion dated March 30, 1978, the Board awarded claimant total disability benefits for time lost from work due to her back injury from September 17, 1976, to September 27, 1976; and from September 30, 1976, to February 3, 1977. Such benefits as were paid to claimant under the Delaware unemployment compensation statute between September 30, 1976, to February 3, 1977, were, however, offset from the Board's award. The Board declined to award any benefits to claimant for injury to her neck. Since the claim for neck injury was filed more than two years after the occurrence of the accident in August, 1974, (according to claimant's Petition to Determine Compensation Due), the Board concluded that recovery was barred under the applicable period of limitations. If substantial competent evidence exists to support the conclusions reached by the Board and no errors of law appear, the Court must affirm. Food Krafts, Inc. v. Santiago, Del.Supr., 300 A.2d 2 (1972). The Superior Court does not sit as a trier of fact to weigh evidence and determine credibility. Johnson v. Chrysler Corporation, Del.Supr., 213 A.2d 64 (1965). I Claimant first contends that since her neck injury developed gradually over a period of time, the two year limitations period set by 19 Del.C. § 2361(a) should begin to run only after some remission of her symptoms had occurred. In Delaware: "... a claimant proceeding on a gradual deterioration or cumulative detriment-to-health theory must prove two points: (1) that his usual duties and work habits contributed to his condition, and (2) that such contributing factors were present on the day when he alleges that his right to compensation commenced." Chicago Bridge & Iron Co. v. Walker, Del.Supr., 372 A.2d 185, 188 (1977). Claimant states in her "petition" for compensation that her neck injury occurred in August of 1974. As indicated by the following testimony before the Board, claimant's condition had progressed, by that time, to the point where she was actually unable to work: Q Mrs. Brooks, I have a record here, and I think it is in the record here, that states that you were out of work from 7/25/74 to 8/25/74. Would that be a period that you were out of work due to your neck condition? A Say that again? Q From 7/25/74 to 8/25/74. A Yes. Q Would that be true of the period from 8/23/74 to 10/9/74? A Yes. I think I came back and worked a day or something and had to go back out because my neck was hurting too much. Pgs. 73 and 74 of the transcript. I am persuaded that there is substantial evidence of record to support the Board's conclusion that claimant is barred under 19 Del.C. § 2361(a) from receiving compensation for her neck injury. The benefits sought relate to an injury, the right to *143 receive benefits for which accrued more than two years prior to the time the claim therefor was filed. Additionally, since Section 2361(a) bars "forever" such claims as fall outside the two year limit, the Board properly denied compensation for the period of June 27, 1977 to November 14, 1977. The testimony of the claimant, Dr. John Hogan and Dr. Constantine Michelle consistently attribute claimant's loss of work during this later period to her neck condition. II Claimant next contends that the Board erred in reducing the amount awarded by the unemployment benefits received. In the case of Chrysler Corporation v. Bensinger, Del.Super., 5176 C.A., 1971 (unreported opinion, J. Quillen, January 12, 1972), it was determined that unemployment insurance payments and workmen's compensation benefits are not mutually exclusive remedies. Recovery of one does not bar recovery of the other. However, as indicated by Judge Christie in the case of Phoenix Steel v. Trivits, Del.Super., 511 C.A., 1977 (unreported opinion, J. Christie, March 9, 1978), while receipt of unemployment insurance benefits does not in and of itself disqualify one from receiving workmen's compensation benefits, "... the amount of any disability award should be reduced by the unemployment benefits received." This view recognizes that both workmen's compensation and unemployment insurance are designed to replace a certain percentage of lost wages. Eligibility for benefits under more than one wageloss statute does not entitle a claimant to increased benefits. A single loss of earnings should be compensated by only one recovery. "To the extent that any physical disability (compensated through workmen's compensation) lasts longer than the economic unemployment (compensable under unemployment laws), the injured workman could continue to receive extended workmen's compensation benefits without having prejudiced such right by the interim receipt of unemployment benefits; yet at no time may the claimant get duplicate benefits for the same period." Phoenix Steel Corporation v. Trivits, supra. I am of the opinion that the Trivits case adopts the correct and appropriate view on this issue and that the Board properly applied the reasoning therein to the facts at bar. For the reasons stated above, the decision of the Board is affirmed. NOTES [1] 19 Del.C. § 2361(a) provides in part: "(a) In case of personal injury, all claims for compensation shall be forever barred unless, within 2 years after the accident, the parties have agreed upon the compensation as provided in § 2344 of this title, or unless, within 2 years after the accident, I or more of the interested parties have appealed to the Board as provided in § 2345 of this title ..."

156 F.2d 769 (1946) UNITED STATES v. CHAMPLIN REFINING CO. et al. No. 3159. Circuit Court of Appeals, Tenth Circuit. July 29, 1946. Rehearing Denied August 29, 1946. *770 Fred W. Smith, Atty., Dept. of Justice, of Washington, D.C. (J. Edward Williams, Acting Head, Lands Div., Dept. of Justice, of Washington, D.C., Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl., and Roger P. Marquis, Atty., Dept. of Justice, of Washington, D.C., on the brief), for appellant. Nathan Scarritt and Harry O. Glasser, both of Enid, Okl. (Mac Q. Williamson, Atty. Gen., Randall S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., Walter Marlin, Law and Exe. Counsel for the Commissioners of the Land Office, State of Oklahoma, of Oklahoma City, Okl., and E. S. Champlin, of Enid, Okl., on the brief), for appellees. Coleman Hayes, of Oklahoma City, Okl., R. B. F. Hummer and D. E. Hodges, both of Bartlesville, Okl., Edward Howell, of Tulsa, Okl., E. R. McNeill, of Pawnee, Okl., N. E. McNeill, of Tulsa, Okl., J. A. McCollum, of Pawnee, Okl., and Roy C. Lytle, of Oklahoma City, Okl., amici curiae. Before PHILLIPS and MURRAH, Circuit Judges, and KENNAMER, District Judge. PHILLIPS, Circuit Judge. This is an appeal from a decree adjudging that the State of Oklahoma is the owner of the south half of the Arkansas River bed, in Oklahoma, adjoining four riparian tracts of land, which tracts the United States holds under trust patents for the benefit of certain of its Pawnee and Otoe Indian wards, and that the Champlin Refining Company has a valid and subsisting oil and gas lease upon such south half of the river bed. The United States originally acquired title to the land in suit as part of the Louisiana Purchase. Under treaties of May 6, 1828,[1] February 14, 1833,[2] and December *771 29, 1835,[3] the United States, by deed dated December 31, 1838, conveyed to the Cherokee Nation a large tract of land on both sides of the bed of the Arkansas River, embracing the south half of the river bed here in suit. By the treaty of July 19, 1866,[4] the Cherokee Nation agreed that the United States might settle friendly Indians upon that part of the Cherokee lands known as the Cherokee Outlet, which embraced the portions of the river bed here in suit. Article 16 of that treaty provided that such lands would be conveyed to the Indians so settled. By treaty of October 28, 1867,[5] a reservation was set aside for the Cheyenne and Arapahoe Indians between the Cimarron and Arkansas Rivers. That reservation embraced the portions of the river bed here in suit. It was expressly extended to the middle of the Arkansas River. The Cheyenne and Arapahoe Indians declined such reservations and relinquished their claim. On June 5, 1872,[6] Congress authorized the Cherokee Nation to convey to the Osage Nation a tract of land described as follows: "Bounded * * * on the south and west by the north line of the Creek country and the main channel of the Arkansas River, * * *" The conveyance was made. It included the land on the opposite side of the river at approximately the location of the four riparian tracts and the title of the Osage Nation to the north half of the river bed was upheld in subsequent litigation between the United States and the State of Oklahoma.[7] The land on both sides of the Arkansas River at the location of the portions of the river bed here in suit was first surveyed into sections, townships, and ranges in September, 1872. The survey was approved on September 16, 1872. Two of the riparian tracts are in Township 23 North, Range 4 East of the Indian Meridian. These tracts are held in trust for Pawnee Indians. The other two riparian tracts are located in Township 23 North, Range 3 East of the Indian Meridian. These tracts are held in trust for Otoe Indians. Under the 1866 treaty with the Cherokees, and pursuant to the Act of March 3, 1881,[8] the Secretary of the Interior designated and assigned for the use and occupation of the Confederated Otoe and Missouria tribes of Indians "that portion of Tp. 23, N. R. 3 E. lying west of the Arkansas River. * * *"[9] Pursuant to the 1886 treaty with the Cherokees, and in conformity with the Act of March 3, 1883,[10] the Cherokee Nation, on June 14, 1883, conveyed to the United States in trust for the use and benefit of the Otoe and Missouria Indians: "Fractional township twenty-three (23) North, range three (3) East of the Indian Meridian; lying and being on the right bank of the Arkansas River, according to a plat of said lands hereto annexed, marked `A,' and made a part of this conveyance * * *."[11] On November 24, 1906, a trust patent was issued to Ethel Lewis Barnes, an Indian of the Otoe and Missouria tribes, covering the following described land: "the South half and the North East quarter of the South East quarter and the Lot numbered five of Section twenty-four, in Township twenty-three North of Range three East, of Indian Meridian in Oklahoma, containing one hundred and fifty-two acres and twenty hundredths of an acre." The title to such land is now held by the United States in trust for Ethel Lewis Barnes. On June 10, 1907, a trust patent was issued to Anna Robedeaux, an Indian of the Otoe and Missouria tribes, covering the following described land: "* * * Lot numbered six of Section twenty four in Township twenty three North of Range three East of Indian Meridian in Oklahoma, * * *" Title to that land is now held *772 by the United States in trust for the heirs of Anna Robedeaux. Both of these allotments are bounded by the Arkansas River. By § 4 of the Act of April 10, 1876,[12] there was set aside as a reservation for the Pawnee Tribe of Indians, in accordance with the 1866 treaty with the Cherokees, the following described land: "All that tract of country between the Cinnarron [Cimarron] and Arkansas Rivers embraced within the limits of townships * * * twenty three, * * * of range four east, * * * of the Indian meridian."[13] In accordance with the 1866 treaty with the Cherokees, and pursuant to the provisions of the Act of March 3, 1883,[14] the Cherokee Nation, on June 14, 1883, conveyed to the United States in trust for the use and benefit of the Pawnee Tribe of Indians the following described land: "* * * fractional townships twenty-three (23) * * * north, range four (4) east; * * *"[15] The fractional townships referred to in this deed are described as "* * * the fractional townships being on the right bank of the Arkansas River." By agreement between the Pawnee Tribe and the United States, made November 23, 1892,[16] the Pawnee Tribe ceded and relinquished to the United States its beneficial interest in such reservation. Art. II of such agreement provided for the making of allotments to individual Pawnee Indians. Thereafter, on October 9, 1893, there was issued to Horace Field, a Pawnee Indian, a trust patent covering the following described lands: "The South East quarter of the North West quarter, and the Lots numbered one, two and three of Section nineteen in Township twenty-three North of Range four East of the Indian Meridian, in Oklahoma Territory, containing one hundred and twenty-one acres and sixty-six hundredths of an acre." Title to that tract is now held by the United States in trust for four Indians to whom it passed by descent. On October 9, 1893, a trust patent was issued to William Bayhylle, a Pawnee Indian, covering the following described land: "The west half of the northeast quarter of section twenty and the south-west quarter of the southeast quarter and the lot numbered six of section seventeen in Township twenty-three north of Range four east of the Indian Meridian, Oklahoma Territory containing one hundred and twenty-nine acres." Title to that tract is now held by the United States in trust for eight Indians to whom it passed by descent. These two Pawnee allotments are also bounded by the Arkansas River. All four of the trust patents were issued under § 5 of the General Allotment Act of February 8, 1887,[17] and the trust period has been extended by Executive Orders as provided therein. The portions of the river bed in suit were situated in Oklahoma Territory. The State of Oklahoma was admitted into the Union on November 16, 1907. All of the allotments were made prior to statehood. On July 20, 1942, the State of Oklahoma executed two oil and gas leases in favor of Champlin Refining Company, covering the south half of the Arkansas River bed for a considerable distance, including the area of the river bed adjoining the four riparian tracts, and the Champlin Refining Company has drilled one well which is producing in commercial quantities. On July 13, 1943, the United States commenced the instant action against the Champlin Refining Company to enjoin it from trespassing upon the river bed and drilling for oil and gas thereunder, and for a decree canceling the lease and quieting the title in the United States, its allottees, and their heirs. The State of Oklahoma intervened in the action. On September 16, 1944, a stipulation was entered into to the effect that it should be considered that the United States had introduced evidence showing the Arkansas River to be nonnavigable in fact at the location of the river bed in controversy on all dates material in this case. *773 The trial court found that the patents neither expressly included nor excluded the river bed and that the river, at all times material to the controversy, at the locations of the riparian tracts, was nonnavigable in fact. In the case of State v. Nolegs, 40 Okl. 479, 139 P. 943, decided in 1914, the court took judicial notice of the fact that the Arkansas River was navigable, and held that the title of patentees to adjoining lands extended only to the high water mark of the stream. The land there involved was a homestead entry. The date of the patent is not disclosed. The trial court held that the State had power to declare rivers navigable and to limit the title of riparian owners to the high water mark of the river, except where title to the river bed has been expressly granted by the United States prior to statehood, and that it was bound by the decision in State v. Nolegs, supra. In accordance with the constitutional principle of the equality of states, the title to the beds of rivers within a state passes to such state upon its admission into the Union, if the rivers are then navigable. If they are not then navigable, the title to the river beds, if a part of the public domain, remains in the United States. The question of navigability is determinative and is a Federal question.[18] It is settled Federal law that streams or lakes which are navigable in fact are navigable in law and, conversely, if they are not navigable in fact, they are not navigable in law.[19] Grants by the United States of its public lands bounded on streams or other waters, navigable or nonnavigable, made without reservation or restriction, are to be construed as to their effect according to the law of the state in which the land lies. As regards such conveyances, the United States assumes the position of a private owner, subject to the general law of the state.[20] Where it is disposing of tribal lands of Indians under guardianship, the same rule applies.[21] The question here presented is what title passed by the patents when they were issued in 1906 and 1907, prior to the admission of Oklahoma into the Union.[22] Oklahoma could not adopt a retroactive rule for determining navigability which would destroy a title already accrued under Federal law and grant, or would enlarge what actually passed to Oklahoma at the time of her admission under the constitutional rule of equality. In Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 86, 43 S.Ct. 60, 64, 67 L.Ed. 140, the court said: "It is a natural inference that Congress in its grant to the Osage Indians in 1872 made it extend to the main channel of the river, only because it knew it was not navigable. This would be consistent with its general policy. Rev.Stats. § 2476 [43 U.S. C.A. § 931]; Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; Scott v. Lattig, 227 U.S. 229, 242, 33 S.Ct. 242, 57 L.Ed. 490, 44 L.R.A., N.S., 107; Railroad Company v. Schurmeir, 7 Wall. 272, 289, 19 L.Ed. 74. If the Arkansas river is not navigable, then the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carries the title to that line. "But it is said that the navigability of the Arkansas river is a local question to be settled by the Legislature and the courts of Oklahoma, and that the Supreme Court of the state has held that at the very point here in dispute, the river is navigable. State v. Nolegs, 40 Okl. 479, 139 P. 943. A *774 similar argument was made for the same purpose in Oklahoma v. Texas, supra, based on a decision by the Supreme Court of Oklahoma as to the Red river. Hale v. Record, 44 Okl. 803, 146 P. 587. The controlling effect of the state court decision was there denied because the United States had not been there, as it was not here, a party to the case in the state court. Economy Light & Power Co. v. United States, 256 U.S. 113, 123, 41 S.Ct. 409, 65 L.Ed. 847. In such a case as this the navigability of the stream is not a local question for the state tribunals to settle. The question here is what title, if any, the Osages took in the river bed in 1872 when this grant was made, and that was thirty-five years before Oklahoma was taken into the Union and before there were any local tribunals to decide any such questions. As to such a grant, the judgment of the state court does not bind us, for the validity and effect of an act done by the United States is necessarily a federal question. The title of the Indians grows out of a federal grant when the Federal Government had complete sovereignty over the territory in question. Oklahoma when she came into the Union took sovereignty over the public lands in the condition of ownership as they were then, and if the bed of a nonnavigable stream had then become the property of the Osages, there was nothing in the admission of Oklahoma into a constitutional equality of power with other states which required or permitted a divesting of the title. It is not for a state by courts or legislature, in dealing with the general subject of beds of streams to adopt a retroactive rule for determining navigability which would destroy a title already accrued under federal law and grant or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked. * * * "Some states have sought to retain title to the beds of streams by recognizing them as navigable when they are not actually so. It seems to be a convenient method of preserving their control. No one can object to it unless it is sought thereby to conclude one whose right to the bed of the river granted and vesting before statehood, depends for its validity on nonnavigability of the stream in fact. In such a case, navigability vel non is not a local question." At the time the grants were made, the common law was in effect in Oklahoma Territory.[23] Under the rules of the common law, unless a contrary intention appears or is clearly inferable from the terms of the grant, the grantee of land, bounded by a nonnavigable stream or river, acquires title to the land to the center or thread of the water, on the theory that the grantor will not be presumed to have reserved a strip of land covered by water which will be of no practical value to him.[24] In Oklahoma v. Texas, 258 U.S. 574, 595, 596, 42 S.Ct. 406, 66 L.Ed. 771, the patents to Indian allottees of the uplands adjoining the nonnavigable river contain no express inclusion or exclusion of the river bed. The Supreme Court held that, under the common law, the patents conveyed the title to the middle of the stream and rejected the contention that the common law rule had been impliedly abrogated in Oklahoma. In United States v. Elliott, 10 Cir., 131 F.2d 720, 723, the court said: "* * * At the time the United States made the grant to the Seneca and Shawnee Indians, the lands granted were not within a state or other local jurisdiction. The grant, therefore, was not subject to local law. It must be construed in accordance with the principles of the common law and the decisions of the United States Supreme Court. * * * Under the common law and the decisions of the United States Supreme Court, a grant of land bounded on a *775 nonnavigable river carries the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river." We conclude that when the trust patents were issued, they conveyed the title to the center of the Arkansas River and that the State of Oklahoma could not, by legislative fiat or judicial decision, take from the Indian allottees what the United States had conveyed to them before statehood.[25] Wear v. Kansas, 245 U.S. 154, 38 S.Ct. 55, 62 L.Ed. 214, is heavily relied upon by the State and the Champlin Refining Company. An examination of the opinion in that case in the Supreme Court of Kansas, where it was entitled "State v. Akers,"[26] discloses that the court took judicial notice of the fact that the Arkansas River and the Kansas River were navigable in Kansas, and held that the test of navigability in law is navigability in fact. All that the Supreme Court of the United States held in the Wear case was that it was not error for the Supreme Court of Kansas, under the circumstances there presented, to determine, by the process of judicial notice, that the rivers were navigable in fact. Here, the trial court, from the stipulated facts, found that the river was nonnavigable in fact. The Supreme Court of Oklahoma could not, by a judgment to which neither the United States nor the heirs of the Indian allottees were parties, adjudge that the river was navigable and bind the United States and the heirs of Indian allottees by such adjudication.[27] The judgment is reversed and the cause remanded with instructions to enter a judgment as prayed for in the complaint of the United States. NOTES [1] 7 Stat. 311. [2] 7 Stat. 414. [3] 7 Stat. 478. [4] 14 Stat. 799. [5] 15 Stat. 593, 594. [6] 17 Stat. 228. [7] See United States v. Brewer-Elliott Oil & Gas Co., D.C., 249 F. 609; Brewer-Elliott Oil & Gas Co. v. United States, 8 Cir., 270 F. 100; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140. [8] 21 Stat. 380. [9] Other townships, not here involved, were also included. [10] 22 Stat. 603, 624. [11] Other townships, not here involved, were also included. [12] 19 Stat. 28, 29. [13] Other townships, not here involved, were included in the reservation. [14] 22 Stat. 603, 624. [15] Many other tracts, not here involved, were also included. [16] I. Kappler, Indian Affairs, Laws and Treaties, 496-498. [17] 24 Stat. 388, 389, 25 U.S.C.A. § 348. [18] United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 75 L.Ed. 844; United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 79 L.Ed. 1267. [19] United States v. Holt Bank, 270 U.S. 49, 56, 46 S.Ct. 197, 70 L.Ed. 465; Oklahoma v. Texas, 258 U.S. 574, 586, 42 S.Ct. 406, 66 L.Ed. 771. [20] Hardin v. Shedd, 190 U.S. 508, 519, 23 S.Ct. 685, 47 L.Ed. 1156; Hardin v. Jordan, 140 U.S. 371, 384, 11 S.Ct. 808, 35 L.Ed. 428; Whitaker v. McBride, 197 U.S. 510, 512, 25 S.Ct. 530, 49 L.Ed. 857. [21] Oklahoma v. Texas, 258 U.S. 574, 595, 42 S.Ct. 406, 66 L.Ed. 771. [22] Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 87, 43 S.Ct. 60, 67 L.Ed. 140. [23] St.1893, § 3874; St.1903, § 4200; Compiled Laws, 1909, § 5534; 12 Okl. St.Ann. § 2; Hoppe Hardware Co. v. Bain, 21 Okl. 177, 95 P. 765, 767, 17 L.R.A.,N.S., 310; McKennon v. Winn, 1 Okl. 327, 33 P. 582, 584, 585, 22 L. R.A. 501. [24] Oklahoma v. Texas, 258 U.S. 574, 595, 42 S.Ct. 406, 66 L.Ed. 771; United States v. Elliott, 10 Cir., 131 F.2d 720, 723, and cases there cited; Note, 74 A. L.R. 599. [25] See Coovert v. O'Conner, 8 Watts, (Pa.), 470; Allen v. Weber, 80 Wis. 531, 50 N.W. 514, 515, 14 L.R.A. 361, 27 Am.St.Rep. 51. In the last-mentioned case the court said: "The declaration made by the legislature of 1868, that Fox river is a navigable stream, could not possibly affect the rights of the owners of the dam, acquired long before, or make the dam navigable, or any other part of Fox river, in any other sense than mere theory. The defendants' rights are fixed by their deeds, and that act certainly could not change them in the least." [26] 92 Kan. 169, 140 P. 637, Ann.Cas. 1916B, 543. [27] See Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 87, 43 S.Ct. 60, 67 L.Ed. 140; Oklahoma v. Texas, 258 U.S. 574, 591, 42 S.Ct. 406, 66 L. Ed. 771.

FILED NOT FOR PUBLICATION OCT 13 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EARL FELTON CRAGO, Jr., No. 10-16531 Plaintiff - Appellant, D.C. No. 4:08-cv-00355-FRZ v. MEMORANDUM * DORA B. SCHRIRO, Director of the ADC at ADC Central Office; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding Submitted September 27, 2011 ** Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges. Earl Felton Crago, Jr., an Arizona state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants violated his Eighth Amendment rights by exposing him to unsafe levels * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of environmental tobacco smoke (“ETS”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, and may affirm on any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We affirm. Summary judgment was proper because Crago failed to raise a genuine dispute of material fact as to whether defendants disregarded an excessive risk to his health when they instituted and enforced a smoking policy that attempted to limit inmate exposure to ETS. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official cannot be found liable under the Eighth Amendment unless the official knows of and disregards an excessive risk to inmate health or safety). The district court did not abuse its discretion by denying Crago’s motion for appointment of counsel because Crago failed to demonstrate exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of review and requirement of “exceptional circumstances” for appointment of counsel). Crago’s remaining contentions are unpersuasive. AFFIRMED. 2 10-16531 

51 P.3d 52 (2002) 2002 UT App 223 WEST VALLEY CITY, Plaintiff and Appellee, v. Roy HOSKINS, Defendant and Appellant. No. 20010589-CA. Court of Appeals of Utah. June 27, 2002. *53 W. Andrew McCullough and Trenton K. Ricks, McCullough & Associates, Midvale, for Appellant. J. Richard Catten, West Valley City Attorney's Office, West Valley City, for Appellee. Before JACKSON, P.J., and ORME and THORNE, JJ. OPINION THORNE, Judge: ¶ 1 Defendant Roy Hoskins appeals from his conviction, following a bench trial, for Fleeing a Police Officer, a class B misdemeanor, in violation of West Valley City Utah Municipal Code § 21-6-107 (1999) (the Ordinance). We affirm. BACKGROUND ¶ 2 We "review the facts in the record in the light most favorable to the verdict." State v. Layman, 1999 UT 79, ¶ 3, 985 P.2d 911. ¶ 3 On March 22, 2001, West Valley City Police Department officers responded to a report of a man with a gun at a park within city boundaries. As two of the officers approached the park, they noticed a man, Hoskins, matching the description of the reported gunman, "confronting some males at the basketball court." The officers then pulled over to the roadside and observed the situation while they waited for additional officers to arrive. When the additional officers arrived, the two officers who had first responded got out of their vehicle, approached Hoskins, and one of them ordered him to stop. Upon hearing the officer, Hoskins turned and proceeded to walk toward his house.[1] The officer ordered Hoskins to stop at least twice more as Hoskins proceeded across the street and into his house. ¶ 4 Shortly after entering the house, Hoskins exited from either a back or side door, and "walked around the side of the house ... toward the front yard." As Hoskins reached the front of the house, the officers confronted and arrested him. He was charged with fleeing from a police officer. ¶ 5 At trial, Hoskins testified that while he had heard an officer yelling "stop," he had no reason to believe that the command was directed at him. Thus, he further testified, he had walked across the street, not hopped, jumped, or pranced, and went into the house *54 to put his dogs in the backyard, as was his normal practice. He then testified that after he had let the dogs into the backyard, he had come back to the front of the house only to investigate his girlfriend's yelling. After weighing the evidence, the trial court convicted Hoskins of fleeing from the officers. Hoskins appeals. ISSUES AND STANDARDS OF REVIEW ¶ 6 Hoskins argues that his alleged behavior does not rise to the level of "fleeing or evading" a police officer. We review questions of statutory interpretation for correctness, affording no particular deference to the trial court's interpretation. See State v. Coleman, 2001 UT App 281, ¶ 5, 34 P.3d 790. ¶ 7 Hoskins next argues that the evidence was insufficient to sustain his conviction for fleeing from a police officer. "In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences that may be drawn from it in a light most favorable to the verdict." State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993). ANALYSIS I. Statutory Interpretation of West Valley City Utah Municipal Code § 21-6-107. ¶ 8 Hoskins argues that assuming he (1) heard the police officer yelling at him to stop, (2) acknowledged the officer's request, and (3) ignored the request and continued into his house, these acts do not satisfy the statutory requirements. Specifically, Hoskins argues that because he was in his house for only a "few minutes" before exiting the house and returning to the front yard, he did not flee, evade, or escape from the officer, as the Ordinance requires. ¶ 9 "`"[W]here statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent. Rather, we are guided by the rule that a statute should generally be construed according to its plain language."'" Sorenson's Ranch Sch. v. Oram, 2001 UT App 354, ¶ 8, 36 P.3d 528 (quoting In re A.B., 936 P.2d 1091, 1097 (Utah Ct.App.1997) (citation omitted)). ¶ 10 In pertinent part, the Ordinance states: "It is a class `B' misdemeanor for any person on foot ... to knowingly flee from, evade, [or] escape ... a police officer after... receiving a reasonable visual or audible signal or command to remain or stop." The American Heritage College Dictionary defines flee as "[t]o run away, as from trouble or danger." American Heritage Coll. Dictionary 519 (3d ed.1997). Evade is defined as "[t]o escape or avoid by cleverness or deceit." Id. at 474. Finally, escape is defined as "[t]o avoid capture, danger, or harm." Id. at 467. ¶ 11 Here, the trial court concluded that Hoskins heard the officer when he told Hoskins to stop. Yet, Hoskins knowingly continued into his house despite the officer's repeated commands to stop. By continuing into the house, if only for a short time, Hoskins clearly fled from, evaded, or escaped from the officer. The plain language of the statute is clearly satisfied where, as here, the individual received a simple command to stop and knowingly failed to heed the officer's command. The duration of time Hoskins spent in the house before returning to the front yard is of no consequence. During that time, he could have been attempting to dispose of contraband or retrieve a weapon. In any event, by continuing into the house, Hoskins impeded the officer's investigation and jeopardized the safety of both himself and the officers responding to the reported disturbance. We therefore conclude that when he walked away from the officer and proceeded into the house, Hoskins violated section 21-6-107. II. Sufficiency of Evidence ¶ 12 Hoskins next argues that the evidence was insufficient to sustain his conviction for fleeing from a police officer. Specifically, Hoskins contends that the trial court "clearly err[ed] when it found that [Hoskins] stated `the police were telling me or someone to stop, and thereby concluded that [Hoskins] had heard ... [the] police officer's attempts to have [him] stop." ¶ 13 A critical requirement of appellate advocacy is the duty to marshal the evidence when challenging the trial court's *55 finding of fact. See Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. In doing so, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous. West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991). ¶ 14 In the present matter, we have already determined that the trial court properly concluded that Hoskins's acts satisfied the requirements of the Ordinance. In reaching this conclusion, the trial court was presented with evidence from both the City and Hoskins, and was in the best position to assess the credibility of the witnesses and weigh the evidence. See State v. Pena, 869 P.2d 932, 936 (Utah 1994) (stating that the trial court judge is "in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record"). ¶ 15 Now, on appeal, Hoskins merely reargues his position at trial, a position already considered and rejected by the trial court. Hoskins has thus failed to show any "fatal flaw" in the trial court's ruling that would make the ruling clearly erroneous. Majestic Inv., 818 P.2d at 1315. Hoskins's sufficiency of the evidence claim therefore fails. CONCLUSION ¶ 16 We conclude that by disregarding the officer's repeated commands to stop and proceeding into his house, Hoskins violated West Valley City Utah Municipal Code § 21-6-107, fleeing a police officer. Further, we conclude that the evidence was sufficient to sustain Hoskins's conviction. ¶ 17 The judgment of the trial court is affirmed. ¶ 18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and GREGORY K. ORME, Judge. NOTES [1] The officer actually testified that Hoskins "put his hands up in the air and started to dance around and he headed north across the street, going to the house on the northeast corner." The officer also characterized the movement as "hopping up and down," "jumping up and down," and "prancing across the road."

92 S.E.2d 351 (1950) 198 Va. 108 SOUTHSIDE COOPERATIVE MILK PRODUCERS ASSOCIATION, Incorporated, and Willie B. Irby, v. STATE MILK COMMISSION and Birtcherd Dairy, Incorporated. BIRTCHERD DAIRY, Incorporated, v. STATE MILK COMMISSION. Supreme Court of Appeals of Virginia. April 23, 1956. W. M. Gravatt, Jr., Blackstone (Joseph Wysor Smith and Hazlegrove, Shackelford & Carr, Roanoke, on the brief), for Southside Cooperative Milk Producers Ass'n, Inc., and another. Thomas M. Miller, Asst. Atty. Gen. (J. Lindsay Almond, Jr., Atty. Gen., on the brief), for State Milk Commission. T. L. Sawyer, Norfolk (J. S. Lawrence and Savage & Lawrence, Norfolk, on the brief), for Birtcherd Dairy, Inc. Before EGGLESTON, SPRATLEY, BUCHANAN, SMITH and WHITTLE, JJ. SPRATLEY, Justice. These appeals arise from orders of the State Milk Commission determining a controversy between the appellants, Southside Cooperative Milk Producers Association, Incorporated, and Willie B. Irby on the one hand, and Birtcherd Dairy, Incorporated, on the other. Since the issues raised by each of the appellants arise out of the same proceedings, are contained in one record, and involve related questions, the appeals will be considered together. The sole question for our determination is whether the language of the Act creating the State Milk Commission and conferring upon the Milk Commission the right to supervise and control the milk industry authorized it to enter the orders hereinafter referred to. That Act was first enacted in 1934, Chapter 357, Acts of 1934. With subsequent amendments it has been codified as Title 3, Chapter 17, Code of Virginia, 1950, sections 3-341 to 3-383, inclusive. The considerations which impelled the General Assembly to adopt the Act are found in its preamble on pages 558 and 559, Acts of 1934. "There it is made plain that the legislature was concerned with `the prosperity and health of the people of the Commonwealth of Virginia'. Clearly, this preamble, as well as the Act itself, has economic implications, i. e., the stabilization of the milk industry so as to enable the *352 producers (dairymen) to secure a fair price for their milk. But the passage of the Act was also prompted by a desire to provide a `constant supply of pure wholesome milk to the inhabitants' of Virginia. Thus the dairy business was `declared a business affecting the public peace, health and welfare', to be regulated as provided in the Act. These recitals set the framework for the legislation." Pet Dairy Products Co. v. State Milk Commission, 195 Va. 396, 399, 400, 78 S.E.2d 645, 647. See also Reynolds v. Milk Commission, 163 Va. 957, 179 S.E. 507. Southside Cooperative Milk Producers Association, Incorporated, will be hereinafter sometimes referred to as Producers Association; Willie B. Irby as Irby; State Milk Commission as Commission; and Birtcherd Dairy, Incorporated, as Birtcherd. Producers Association is a producers cooperative milk marketing association. Its members, including Irby, sometimes hereinafter referred to as Amelia Producers, live, and have their dairy farms principally, in the Counties of Amelia, Powhatan, Prince Edward, Charlotte, Mecklenburg, and Lunenburg, within the Norfolk-Portsmouth production area. Birtcherd is one of the largest milk distributors in the State. Its principal plant for processing milk is located in the City of Norfolk, Virginia, and it has a large receiving station in Amelia County. In 1944, it was found that the local producers immediately adjacent to the Norfolk-Portsmouth sales area were unable to supply a sufficient volume of grade "A" milk to meet the demands of the Norfolk-Portsmouth market. After a survey of numerous areas in Virginia for territory in which a new milk supply could be developed without interference with the supply of other distributors in the Norfolk-Portsmouth production area, the Counties of Amelia, Powhatan, Prince Edward, Charlotte, Mecklenburg, and Lunenburg were included in that production area, agreeably to the desires of both the producers and distributors involved. About one-half of the new producers in the counties named, who established their bases on the Norfolk-Portsmouth market, became members of the Producers Association. The volume of milk produced by the new producers increased rapidly, and the problem of transporting it in cans to the distributing plant in Norfolk became more and more difficult. In 1944, the milk of the producers in the above counties was delivered to Birtcherd at a receiving station which it maintained at Chase City, in Mecklenburg County. This station was closed in 1947, and a new receiving station was erected by Birtcherd in Amelia at a cost, including equipment, in excess of $225,000. Birtcherd picked up the milk in cans from the farms of the producers and hauled it to its Amelia receiving station, and by agreement with the producers charged 35¢ per cwt. for the transportation. Birtcherd thence hauled the milk to Norfolk in tank trucks without making any further charge at first. Later in 1949, it imposed a charge of 30¢ per cwt. for transporting its milk from the Amelia station to its Norfolk plant and a little later increased the charge to 65¢ per cwt. The charge in each instance was deducted from the price of the milk fixed by the Commission. When the hauling charge to Norfolk was increased to 65¢ per cwt., the producers appealed to the Commission. After a hearing before the Milk Commission, it fixed that charge at 35¢ per cwt. Subsequently, this was increased to 50¢ per cwt. As an efficient means for collecting the transportation and hauling charges, the Commission directed that the price to be paid for milk received at Birtcherd's Amelia receiving station should be 50¢ less per cwt. than the price for that delivered at Norfolk. For example, by its Norfolk-Portsmouth Market Order No. 2, effective January 1, 1954, the Commission fixed the price of $6.32 per cwt. for Grade "A", Class 1 Milk received by Birtcherd at its Amelia receiving station, and at $6.82 per cwt. for the same grade and class of milk received at its Norfolk plant. *353 It appears that the dairy industry has developed the "cold wall" tank method of handling milk in the producer's barn and hauling it to the distributor's plant. By this method the milk is reduced in temperature and pumped into a refrigerated tank truck, resulting in obtaining a higher quality of milk than by the old method of placing the milk in a ten-gallon can, placing the can in the cooler, and transporting it in an unrefrigerated truck to the platform of a receiving station. In the summer of 1954, about 15 of the Amelia producers, who had adopted the "cold wall" tank method, advised Birtcherd that they intended to deliver their milk to Norfolk. Birtcherd immediately objected and wrote a letter to the members of the Producers Association, advising them that it would refuse to accept milk delivered to Norfolk; and would accept the same only at its Amelia station. In September, 1954, Birtcherd filed a petition with the Commission praying that all producers operating in Amelia, Mecklenburg, Lunenburg, Prince Edward, Nottaway, Powhatan, and Charlotte Counties, hereinbefore referred to as Amelia Producers, with bases on the Norfolk-Portsmouth market, and whose production had been, or might be thereafter assigned to it, be directed to make delivery to it at its Amelia station. On November 23, 1954, the Commission denied the request of Birtcherd. In its opinion, the Commission said that the question of whether or not Birtcherd was obligated to receive the production at Norfolk or at Amelia was not before it; but "that, if such a question should arise, it would consider it to be a matter for the courts to determine and not the Commission." On November 26, 1954, Birtcherd advised its producers in the Amelia area, by letter, of the decision of the Commission, and further said to them that: "In order that all of the producers may be advised of our position before making any expenditure or other commitment for tank hauling, we are writing to advise that the Company will not receive the Amelia milk from the producers at its Norfolk plant or handle it in any manner other than that in which it is now being handled." On March 19, 1955, Irby and certain other members of Producers Association, who had adopted the "cold wall" tank method, undertook to make a delivery in bulk to Birtcherd in Norfolk; but Birtcherd refused acceptance. Thereupon Producers Association and Irby filed, in the Circuit Court of the City of Richmond, a suit against Birtcherd and the Commission seeking to have Birtcherd enjoined and restrained from refusing to accept delivery of their milk at Norfolk. A preliminary injunction was granted, which expired on March 25, 1955, and an extension was refused. On March 24, 1955, the same complainants filed a petition with the Commission containing the same complaint, and a request for an order directing Birtcherd to receive their milk at its Norfolk plant. The Commission immediately began a hearing on the petition. Considerable evidence was heard. The Commission reviewed the evidence in the proceedings held in September, 1954, and heard extended argument. The principal questions were whether the Commission had the authority to assign certain producers to the Amelia receiving station and others to the distributing plant of Birtcherd at Norfolk, and to fix a differential in price for the same grade of milk by means of a hauling charge based on the respective places of delivery; and whether Birtcherd had the right to elect to which of its plants the production of its Amelia producers should be delivered. Matters and facts before the Commission covered all phases of the question, the advantages and disadvantages to the respective parties, and the interests of the public. It was shown that a number of producers, whose farms bordered on the Norfolk-Portsmouth sales area, delivered their milk to Birtcherd at its Norfolk plant and received the full Norfolk price in payment. *354 As we have stated, the Amelia Producers, who had adopted the "cold wall" tank method, started to haul their milk in tank cars to the Norfolk plant. The hauling was done by a private contract-carrier. By this method such producers avoided the charge of 35¢ per cwt. for hauling milk from their farms to the Amelia station, thus receiving a price of 85¢ more per cwt. than for milk delivered at the Amelia station and thence transferred to Norfolk. Out of this, of course, they had to pay the hauling charges to the contract-carrier at an estimated 49.9¢ per cwt. It was pointed out in the evidence and argument that the saving did not, in fact, amount to 35¢ per cwt., in view of the cost of the facilities and equipment to employ the "cold wall" tank method. Birtcherd pointed out that delivery to its Amelia station permitted it to weigh, cool, and promptly reship to Norfolk the same day; that it was thereby enabled to inspect each can of milk and, when necessary, to reject any can or cans on account of odors, taste, or other impurities, before it was comingled with other milk; that thereby the standards of purity and quality of the separate producers were maintained, and the co-mingled whole not subject to rejection on account of a small percentage of impure milk; that it was also better enabled to comply with sanitary requirements, and by reason of control of the time of delivery to its plant in Norfolk could depend upon prompt distribution to its customers; and that if it had no control over the manner of time of delivery to its processing plant in Norfolk, it would be severely handicapped in the normal operation of its plant and the distribution of its milk. Birtcherd further pointed out that unless milk was delivered to its receiving station and hauled by it to Norfolk it had no supervision over the cooling of the milk, the time of its delivery, or the conditions under which it was transported; that the method of delivery suggested by it restricts the possible amount of loss to be sustained by the producers, and objection from its customers; and that in the event of a reduced volume of milk being delivered at its Amelia receiving station, it would be impractical to operate that station, and that its closing would result in a large loss to it. Moreover, it was shown that the Amelia station is about 150 miles from Norfolk and draws its supply of raw milk within a radius of nearly 50 miles; that a large number of the smaller producers in the area are located on secondary roads, remote from the station, and, in the absence of a hauling contract with Birtcherd, would have difficulty in deliverying their milk to any station; and if the Amelia station should be closed, the small producers would be faced with the necessity of providing additional facilities on their farms for cooling of milk at a probable cost of several thousand dollars, together with additional expenses for assembling their milk at some point where the services of a tank truck would be available. It was noted that the charge of a contract hauler for transporting milk to Norfolk would not be subject to regulation by the Commission; whereas, the hauling charge allowed Birtcherd is subject to such regulation. It was shown that Birtcherd receives from producers during certain seasons of the year large quantities of surplus milk. Its Norfolk plant is equipped to utilize the surplus for manufacturing purposes; whereas the Amelia station is not. At the conclusion of the hearing, and in consideration of all the facts and matters pertaining to the controversy, the Commission, by a majority vote, directed that the 15 producers then delivering direct to Norfolk be assigned to the Norfolk plant of Birtcherd; and Birtcherd be required to receive their production there; and that the production of the remaining 120 producers be assigned to the Amelia receiving station of Birtcherd; and that Birtcherd be required to receive their production at Amelia. The order named each of the producers involved and directed that they deliver their production to the places of delivery specified. From this order appellants appealed directly to this Court. Code, § 3-369. *355 On April 6, 1955, the Secretary of the Commission addressed and forwarded to counsel for Producers Association a copy of the Commission's decision of March 25, 1955, in which the following statement was made: "I failed, at that time, to state to you that it was also the Commission's decision that should any of those producers who were assigned to deliver to the Amelia receiving station desire to deliver direct to Norfolk by tank trucks then they should make application to the Chairman of the Norfolk-Portsmouth Local Milk Board for their assignment to the Norfolk plant rather than the Amelia plant." Pertinent to the questions before us here are the following Code sections: Sec. 3-346: "`Market' means any city, town or village of the State, or two or more cities or towns or villages and surrounding territory designated by the Commission as a natural marketing area." Section 3-352: "The Commission is declared to be an instrumentality of the Commonwealth, vested with the power: ****** "(c) Supervision and control.—To supervise, regulate, and control the production, transportation, processing, storage, distribution, delivery and sale of milk for consumption within the State." Section 3-359. "Fixing prices.—The Commission, after public hearing and investigation, may fix the prices to be paid producers or associations of producers by distributors in any market or markets, may fix the minimum and maximum wholesale and retail prices to be charged for milk in any market, and may also fix different prices for different grades of milk. In determining the reasonableness of prices to be paid or charged in any market or markets for any grade, quantity, or class of milk, the Commission shall be guided by the cost of production and distribution, including compliance with all sanitary regulations in force in such market or markets, necessary operation, processing, storage and delivery charges, the prices of other foods, and the welfare of the general public." Section 3-362. "Defining areas and milksheds.—The Commission may define what shall constitute a natural market area and define and fix the limits of the milkshed or territorial area within which milk shall be produced to supply any such market area; provided, that producers, producer-distributors, or their successors now shipping milk to any market may continue so to do until they voluntarily discontinue shipping to the designated milk market." The Milk Commission by its regulation of June 16, 1952, defined the Norfolk-Portsmouth Milk Market and milkshed as follows: "`Norfolk-Portsmouth Sales Area' means the territory included within the counties of Princess Anne and Norfolk, and the cities and towns situated therein, including the cities of Norfolk, Portsmouth and South Norfolk. "`Norfolk-Portsmouth Production Area' means that territory in which is located those producers supplying the market who have been approved by the `Health Authorities' having jurisdiction in the market area." By regulation of the Milk Commission, the word "base" is defined as meaning "the established quantity of milk and/or cream set up for each producer on an equitable basis with all other producers for apportioning fluid milk and fluid cream sales among the producers." Regulation No. 5, Section G, for the Norfolk-Portsmouth Milk Market, provides that "Producers are not required to deliver regularly to their distributors milk produced by them in excess of their established base allotments. No producer shall have a base in more than one market." * * * Section J of Regulation 5 provides that "A producer having a base on the market, approved by the Commission, shall have the right to continue to ship all of his milk and/or cream to the distributor at whose plant such base is established. The milk delivered by such producer shall not be rejected *356 by the distributor so long as the milk and/or cream is delivered regularly, is merchantable, and meets all requirements of the Local and State Health Laws and Regulations. "No producer having a base, established in the market, and assigned to a distributing plant by the Commission, can transfer his base and deliveries to another distributing plant, without having first obtained the written approval of the Local Milk Board. The decision of the Local Board in all such transfers shall be subject to an appeal to the State Milk Commission." Producers Association and Irby contend that since the Amelia receiving station is not located in any market area established by the Commission, and as none of their milk is sold to consumers at Amelia, the assignment of their production to that station is without authority and arbitrary. A market area is an area over which the Commission exercises its supervisory powers in controlling the sale and distribution of milk for consumption, whereas a production area or milkshed is the territory within which milk may be produced to supply a given market area. It is not necessary for a producer's dairy farm to be located in the market area which he services with his milk. The Act creating the Milk Commission does not designate the place where a producer shall deliver his milk, or provide a method of selecting such place. That is left to be determined by the Commission, governed by just and reasonable principles of equity and sound economics. There is no relation between the location of a dairy farm and the location of a market area, other than the health and economic factors involved, and the demands for a milk supply in a designated market area. The prices which producers receive for their milk are governed by the price established for the market to which they have been assigned. In this instance, the regulations of the Commission, No. 5(J), required the producers to deliver their production to Birtcherd, at whose plant their base had been assigned, for distribution and consumption in the Norfolk-Portsmouth market area. The Commission has not assigned the bases of the producers to Amelia or to any other non-market area; but merely designated the place for delivery of their milk. The Act does not contain a specific provision or system to be followed by the Commission in controlling and supervising the milk industry. The present system is established by means of rules, regulations and orders promulgated by the Commission for the several milk markets, under the provisions of Code, § 3-352(g). The Commission, under Code, § 3-352(c), has supervisory authority over all the facets of the industry, including transportation and delivery. Under that authority, it clearly has the right to designate the place where producers must make delivery and distributors accept such delivery. In the absence of unreasonable, arbitrary, or foolish regulations, courts may not declare its regulations and orders invalid. The authority to require delivery by producers at a designated place would be a futile power, in the absence of authority to require distributors to accept and pay for milk which has been assigned to them for delivery at a designated place. In Reynolds v. Milk Commission, supra, we declared the Act creating the Commission and conferring upon it certain powers constitutional, even to the extent of fixing prices, and took occasion to point out somewhat in detail the object, purposes, and administration of the Act. It has been uniform practice in the milk industry for producers to bear the cost of transporting their milk from the farm to the distributors. This was recognized in the earlier arrangements between the producers in this case and Birtcherd, both as to transportation to the Amelia station, and reshipment thence to Norfolk. The cost of transportation between points naturally varies according to the distances involved. In 1953, when the Commission allowed a charge of 35¢ per cwt. for transporting milk from the farms to the Amelia receiving station and 50¢ per cwt. for handling and *357 transportation of that milk to Norfolk, it said in its opinion, in part, as follows: "It was admitted by the producers that a reasonable handling and/or transportation charge could properly be made and this can be effected by the setting up of a platform price in Amelia for an amount less than the present Norfolk-Portsmouth base price to cover the necessary handling and transportation cost from Amelia to Norfolk." In their contention that the Commission has fixed a different price for the same grade of milk delivered at Amelia station and delivered at Norfolk, the producers rely upon Lucerne Cream & Butter Co. v. Milk Commission, 182 Va. 490, 29 S.E.2d 397, and Safeway Stores v. Milk Commission, 197 Va. 69, 87 S.E.2d 769. These cases, however, are not in point here. They did not involve the consideration of prices paid by distributors to producers. They considered only prices to be charged for milk sold by distributors to their customers. Code, § 3-359 provides that "The Commission, after public hearing and investigation, may fix the prices to be paid producers or associations of producers by distributors in any market or markets," and then provides for the fixing of "minimum and maximum wholesale and retail prices to be charged for milk in any market," etc. There is no provision for fixing of maximum and minimum prices to be paid producers. In fixing prices to be paid distributors by the customers there are certain facts and circumstances that are wholly irrelevant and unnecessary in the fixing of prices to be paid to producers. Factors and circumstances in connection with wholesale and retail prices are not present or involved in the latter instance. Some of the producers whose bases are assigned to Birtcherd are located in Norfolk County and Princess Anne County, immediately adjacent to the Norfolk-Portsmouth sales area; while the Amelia producers are distant 125 to 150 miles from Norfolk. It would be difficult, if not impossible, to arrive at an average cost applicable to producers who do not operate under similar conditions. Situations throughout the different areas vary according to soil, vegetation, costs of labor and distance from market. Had the legislature intended to provide for the fixing of minimum and maximum prices to be paid producers, it would have specifically provided therefor. The prices fixed to be paid the producers in this case do not constitute a real differential in the price of milk. The difference is in the net amount received by the several producers arising out of the variance in transportation costs. The producers who have been directed to make delivery at Norfolk will escape the hauling charge of 35¢ per cwt. from their farms to Amelia; but they will be required to expend approximately 50¢ per cwt. to transport their milk from their farms to Norfolk, in addition to the expense required because of the cost of the more modern equipment, in order to make such direct shipment, plus the expense of the maintenance of same. The evidence further showed that during the first eight months of 1954, after paying the handling and transportation charges complained of, the Amelia Producers received 41¢ per cwt. more for their milk than producers supplying the Richmond market, and 42¢ per cwt. more than received by producers supplying the Washington market. In view of the very broad powers conferred upon the Commission to make, adopt, and enforce all rules, regulations, or orders necessary to carry out the provisions of the Act, § 3-352 (g), we do not think that the designation of places for delivery of milk to the distributor, and the regulation of hauling allowances to distributors for transporting such milk to their processing plants are beyond the authority of the Commission. We find nothing in the evidence to justify the contention that the Commission has been unreasonable, arbitrary or discriminatory in designating certain producers to make delivery at Norfolk and others at Amelia, nor do we find that the effect of setting different prices based on the cost of hauling is in violation of the Act under consideration. We cannot say that the Commission, in an *358 overall view of all the facts and circumstances involved, including a consideration of the interests of the industry and the public, exceeded its authority or abused its discretion in entering the orders complained of. What we have said answers the contention of Birtcherd that the Commission erred in refusing to order all of the production of the Amelia producers to be delivered to it at its Amelia receiving station, and in denying it the right to elect to which of its plants such production should be delivered. In its brief, it concedes the constitutionality of the Act; but vigorously attacks the wisdom of its enactment and the method of its enforcement. It specifically challenges the rules, regulations and orders of the Commission hereinbefore considered. It says that the Commission, in compelling the producers to sell and the distributors to buy, exercises a drastic and confiscatory power which exceeds the limits of the police power. The attack upon the regulations is similar to that which has been made in numerous instances against the Act itself. Notwithstanding those attacks, and despite frequent appeals to the General Assembly of Virginia, the administrative policy of the Commission has been established and adhered to over a period of years, and there has been no amendment or alteration of the statute. Birtcherd further argues that there is an irreconcilable conflict between Regulations 5, G and 5, J of the Norfolk-Portsmouth Market, which respectively require the producer to sell his milk to a specified distributor and require that distributor to receive such milk, on the one hand, and Regulation No. 1, which provides minimum prices to be paid to such producers on the other hand. The conflict is said to exist because any price may be charged under Regulation No. 1, which is not lower than the minimum prescribed, and, therefore, milk prices may be the subject of bargaining between the producer and the distributor. It contends that this is an exercise of a confiscatory power. It should be noted that these cases do not involve a demand by the producer for a price in excess of a minimum price. We construe the regulation fixing the minimum price as a definite and specific price for milk supplied by the producer to the distributor, and it has been so construed and accepted by the Commission and the industry. The right of the parties to bargain between themselves for a price is denied by the powers granted to the Commission in the exercise of the police power of the State. For the purpose of carrying out the provisions of the Act, the Commission, under Code, § 3-360, requires all distributors in any market designated by the Commission, to be licensed by it. When a distributor applies for a license, he agrees to conform to the provisions of the Act and the rules and regulations of the Commission. Granted a license he is at liberty to surrender it; but if he desires to operate as a distributor, he must conform to the provisions of the Act and the rules, regulations and orders of the Commission promulgated thereunder. To sustain the contentions of the appellants would strike at the very heart and purpose of the legislation. The Commission could no longer exercise the powers and duties conferred upon it. We find no merit in any assignment of error in the two appeals, and for the reasons stated, the orders appealed from are affirmed. Affirmed.

477 F.3d 1212 CITIZENS FOR PEACE IN SPACE, an unincorporated association; William Sulzman; Mary Lynn Sheetz; Barbara Huber; Gerard Jacobitz; Donna Johnson; April Pergl, Plaintiffs-Appellants,v.The CITY OF COLORADO SPRINGS, Colorado, a Colorado municipal corporation, Defendant-Appellee. No. 05-1391. United States Court of Appeals, Tenth Circuit. February 28, 2007. Mark Silverstein, American Civil Liberties Union Foundation of Colorado, (and Edward T. Ramey, Isaacson, Rosenbaum, P.C., on the brief), Denver, CO, for Plaintiffs-Appellants. Thomas J. Marrese, Assistant City Attorney, (and Patricia K. Kelly, City Attorney/Chief Legal Officer, Office of the City Attorney, on the brief), Colorado Springs, CO, for Defendant-Appellee. Before KELLY, EBEL, and GORSUCH, Circuit Judges. KELLY, Circuit Judge. 1 Plaintiffs-Appellants Citizens for Peace in Space and several of its members (Citizens) appeal from the district court's judgment in favor of Defendant—Appellee The City of Colorado Springs (the City). The Citizens sought nominal damages under 42 U.S.C. § 1983 for an alleged violation of First Amendment rights. Specifically, the Citizens alleged that, from October 7 to October 10, 2003, they were unconstitutionally prohibited from protesting in the traditional public forums surrounding the Broadmoor Hotel (Broadmoor) in Colorado Springs, Colorado. After a three-day bench trial, the district court issued a memorandum opinion and order in favor of the City. Citizens for Peace in Space v. City of Colorado Springs, No. 04-CV-464-RPM, 2005 WL 1769230 (D.Colo. July 25, 2005). We exercise jurisdiction over the resulting judgment pursuant to 28 U.S.C. § 1291 and affirm. Background 2 From October 7 through October 10, 2003, the Secretary of Defense hosted a conference of the defense ministers of nineteen member nations of NATO,1 plus nine invitee nations, at the Broadmoor Hotel in Colorado Springs. Approximately 1,000 delegates, family and staff attended the conference. The Department of Defense leased the entire Broadmoor facility for the conference, including the International Conference Center, which is located across the street. 3 The security plan for the conference included closing public streets and sidewalks and imposing a large "limited access area" or "security zone." This security zone surrounded the Broadmoor and extended across public and private property for several blocks in all directions. The perimeter was roughly defined by five checkpoints at roadway intersections surrounding the Broadmoor property. The security zone was completely closed to all persons except conference attendees, accredited media, Broadmoor employees, individuals residing in the security zone, guests of individuals residing in the security zone, and personnel servicing the Broadmoor and the residences within the security zone. 4 The security plan resulted from the work of a task force that operated pursuant to an international memorandum of agreement. The task force based its planning on worldwide NATO protocols. The task force included officials from the Air Force, the Army, the Colorado Springs Police Department (CSPD), the El Paso County Sheriff's Department, the FBI, the Department of Justice, the Department of Transportation, the Department of Homeland Security, FEMA, and NATO. The task force's primary security concern was the threat of a terrorist attack utilizing explosives. The task force envisioned that such an attack might involve explosives driven onto the Broadmoor grounds by vehicle and detonated or explosives carried by an individual onto the grounds and detonated. Accordingly, the breadth of the security zone ensured that the blast from any such detonation would not get close enough to the Broadmoor to endanger any of the delegates. 5 During the conference, several hundred personnel from the military and various law enforcement agencies, including the CSPD, staffed the security zone. Five checkpoints, placed at various intersections around the Broadmoor, exclusively controlled access to the security zone. Security at the checkpoints included screenings by metal detectors and explosive-sniffing dogs. Broadmoor employees were bused into the zone from an off-site staging area, where, like airline passengers, they were pre-screened by metal detectors and scanners. Delegates, and their families and staffs, arrived and departed the conference by motorcade. Several hundred members of the national and international media were allowed into the security zone, as well. Like the Broadmoor employees, members of the media were pre-screened at an off-site staging area (the World Arena) and bused into the Broadmoor. Once inside the security zone, members of the media were restricted to an area around the International Conference Center, across the street from the Broadmoor's main building. The Broadmoor employees, conference delegates, and media all entered the security zone through Checkpoint 1 at the intersection of Lake Avenue and Second Street. 6 Protocols were also established allowing delivery and repair persons servicing the hotel to enter the security zone at Checkpoint 1. Likewise, protocols allowed the residents of twenty-two private homes located within the security zone to enter as they pleased; any time, day or night. Furthermore, delivery and repair persons servicing the private residences were allowed to enter and leave the security zone, as well as social guests of the residents living in the twenty-two homes, all of them passing through security at Checkpoint 1. 7 The Citizens are residents of Colorado Springs and long-time peace activists. Their principal concern is with the militarization of space and the prevention of war. Upon learning that the NATO conference would be held at the Broadmoor, the Citizens consulted with the American Civil Liberties Union (ACLU) and authorized it to communicate with the City on their behalf to see if they could be allowed to conduct a peaceful protest within the security zone. Specifically, the Citizens hoped to conduct their protest on a sidewalk across from the International Conference Center. An ACLU attorney communicated the Citizens' wishes to the City and explained that the proposed protest would involve six persons who would hold banners on a sidewalk across the street from the International Conference Center. The Citizens proposed a peaceful vigil that would be limited to one hour. They further offered to submit to the same security checks and screenings required of other persons allowed into the security zone. 8 The City rejected the request, contending that allowing the Citizens' protest would require it to permit other groups to do the same, which would jeopardize the government's ability to maintain security for the conference. Instead, the City suggested that the Citizens conduct their protest outside the security zone, near Checkpoint 1. The Citizens found this location unsatisfactory because the conference delegates and international media, the Citizens' target audience, could only observe the protest briefly as their vehicles passed by. 9 Nevertheless, the Citizens did conduct their protest at Checkpoint 1, standing by the side of the road (there were no sidewalks). This location was several blocks from the International Conference Center.2 There was no direct line of sight between the protest location and the International Conference Center, and the Citizens could barely be seen, if at all, from the Broadmoor itself. When the Citizens requested that CSPD officers inform the conference delegates and international media of their protest at Checkpoint 1, the officers declined. 10 The Citizens contend that even if the international media were alerted to the existence of their protest, security protocols prohibited them from walking down Lake Avenue to interview the Citizens. Instead, the Citizens contend that members of the international media would have had to leave the International Conference Center by bus, return to their off-site staging area, and then arrange private transportation to the protest site. In fact, while conducting their protest, the Citizens did not have any close, physical interaction with any of the conference delegates or international media. 11 At trial the City introduced evidence that, based on staffing levels incorporated into the security plan, officers would have been unable to control protests that turned confrontational or unlawful. The staffing levels included, at a minimum, sixty-five members of the CSPD. The CSPD officials testified that generally allowing protestors into the security zone would have required doubling the number of CSPD officers assigned to the conference. CSPD officials stated that any protest, peaceful or otherwise, would require officer observation and escort. 12 CSPD officials, however, conceded that there were sufficient officers to observe and supervise the Citizens' proposed six-person vigil. The district court expressly found "[t]here were adequate personnel available to assure the peacefulness of a one-hour demonstration and the prevention of any disruption to the NATO conference." Citizens for Peace in Space, 2005 WL 1769230, at *4. The City argued, however, that allowing the Citizens into the restricted zone would lead other groups to make similar requests. CSPD officials conceded the City could have handled similar requests, under protocols similar to those suggested by the Citizens, for groups limited to a small size. Discussion 13 In a First Amendment case, we have "an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (internal citations omitted). Thus, we review the district court's findings of fact and its conclusions of law de novo. Revo v. Disciplinary Bd. of the Supreme Court, 106 F.3d 929, 932 (10th Cir.1997). We conduct our review "without deference to the trial court." Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); see also New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). 14 The public streets and sidewalks encompassed by the security zone are traditional public forums. See Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (noting that "public sidewalks, streets, and ways . . . are quintessential public forums"); see also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). The government may impose reasonable time, place, and manner restrictions on speech in public forums provided the restrictions are (1) content neutral, (2) that they are "narrowly tailored to serve a significant governmental interest," and (3) that they "leave open ample alternative channels for communication." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). 15 I. Application of The Time, Place, and Manner Factors A. Content Neutrality 16 The Citizens concede that the City's restriction is content neutral. Although this concession is not controlling given our special standard of de novo review, we see no reason to disagree. There is no evidence that the City's security plan drew any distinction based on the content of speech. Instead, it implemented a total ban on public expression within the security zone, regardless of the identity of the speaker or the subject of the message. See Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir.2005). Accordingly, we hold that the City's security plan was content neutral. B. Significant Government Interest 17 The Citizens similarly concede that the City's interest in security is significant. The Citizens, however, take issue with the nature of the exact security interest asserted by the City, arguing that the City's only asserted interest was in keeping vehicle-borne explosives away from the conference. A review of the record indicates that the City was concerned with the threat of terrorism generally, including the use of vehicle and human-borne explosives, and with the threat posed by disorderly and violent protestors. See II Aplt.App. at 476:11-24, 518:8-18, 554:16-22; III Aplt. App. at 629:14-19, 644:8-16, 669:1-11, 678:11-20, 679:8-21, 695:8-18. As discussed below, the City's security interest is of the highest order and guides our determination of whether the security plan was narrowly tailored and whether there were ample alternative channels of communication. C. Narrow Tailoring 18 In this case, the City's security plan was narrowly tailored to advance its significant security interest because the security zone, limited to the immediate vicinity of the Broadmoor, directly and effectively protected the conference from the threat of terrorism, explosives, and violent protests. As discussed below, the Citizens' arguments to the contrary are premised on a narrow security interest and an overly strict standard of the relationship between the security zone and the security interest. This appears tantamount to an attempt to impose de facto strict scrutiny review of the City's security plan, a standard that does not apply to time, place, and manner restrictions. 19 "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799, 109 S.Ct. 2746. Thus, in order to demonstrate that a challenged restriction is narrowly tailored, the government must demonstrate that the restriction "serve[s] a substantial state interest in a direct and effective way." Edenfield v. Fane, 507 U.S. 761, 773, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (internal quotations omitted). Absent such proof, a restriction "may not be sustained if it provides only ineffective or remote support for the government's purpose." Id. at 770, 113 S.Ct. 1792 (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)).3 Thus, a regulation is not narrowly tailored when it "does not sufficiently serve those public interests that are urged as its justification." Grace, 461 U.S. at 181, 103 S.Ct. 1702. 20 In this case, the burden falls on the City to show that its "recited harms are real . . . and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). It is not enough that the City justify its restrictions based broadly on "security." See Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 13 (1st Cir.2004) (noting that "the question of narrow tailoring must be decided against the backdrop of the harms that a particular set of security measures are designed to forfend"). This does not mean, however, that the City must show that its restriction is the least intrusive means of promoting its interest. See Ward, 491 U.S. at 798-99, 109 S.Ct. 2746. Instead, we will give deference to a reasonable judgment by the City as to the best means of providing security at the NATO conference. See id. at 800, 109 S.Ct. 2746 ("The validity of time, place, or manner regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests. . . ."). 21 In this case, the City asserts that a wide security zone was necessary because of the need to keep the conference outside the blast radius of any explosion that might have been caused by vehicle or humanborne explosives. The City also asserts, that given that so many defense leaders were gathered in one location, it needed an extra margin for error. In other words, it needed a deep security zone so that its officers would have more reaction time to fend off any terrorist or other threat before the conference delegates were placed in imminent danger. Furthermore, the exclusion of protestors from the security zone allowed the City to devote its officers to maintaining the perimeter and fending off any possible terrorist attacks, rather than having its officers monitor protestors, which would have required the City to staff twice as many officers at the conference. I Aplt.App. at 91-92, 98. 22 The nature of the NATO conference bears not only on the conceded "significant interest" component of the time, place, and manner analysis, but also on the "narrowly tailored" component. While an extremely important government interest does not dictate the result in time, place, and manner cases, the significance of the government interest bears an inverse relationship to the rigor of the narrowly tailored analysis. See Bd. of Trus. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (noting that there must be a fit between the government's means and its desired objective—"a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served") (emphasis added). 23 In this case, there can be no doubt that the City's interest in providing security to a gathering of defense officials is of the highest order. We also cannot ignore the fact that the City's chosen method of providing security was part of a security protocol that was created by Department of Defense officials, NATO personnel, and various international defense agencies. Courts have historically given special deference to other branches in matters relating to foreign affairs, international relations, and national security; even when constitutional rights are invoked by a plaintiff. See, e.g., INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (international relations); CIA v. Sims, 471 U.S. 159, 178-79, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (national security); O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 1025 (10th Cir.2004) (en banc) (McConnell, J., concurring) (international relations).4 24 Despite the importance of the City's interest, and the obvious conclusion that the security zone certainly advanced the City's interest in securing the conference, the Citizens advance a number of arguments to show that the security zone was not narrowly tailored. While the City undoubtedly bears the burden of demonstrating narrow tailoring, and it has done so in this case, we think our discussion will be most clear by addressing each of the Citizens' arguments. Those arguments can be summarized as: 25 (1) The total exclusion of pedestrian demonstrators did not directly and effectively advance the City's security interest in protecting against explosives and any argument to the contrary is undermined by the fact that the City allowed numerous other classes of persons into the security zone. 26 (2) The City failed to demonstrate that it could not have accommodated protestors by simply increasing the number of officers present in the security zone. 27 (3) The City burdened substantially more speech than was necessary to further its interest. The presence of other, obvious less restrictive security protocols, including a permit system, demonstrates the security zone was not narrowly tailored. 28 We reject the Citizens' arguments and discuss them in turn. 29 1. The Direct and Effective Relationship Between the Security Zone and the City's Significant Interest 30 The Citizens characterize the security zone as indirectly connected to the City's security interest and thus impermissible. See Edenfield, 507 U.S. at 773, 113 S.Ct. 1792 (stating that the regulations must serve a substantial state interest in "a direct and effective way"). The Citizens argue that the security interest put forth by the City was the need to keep vehicle-borne explosives away from the Broadmoor, and that the security zone had nothing to do with any harms or threatened harms that the City attributed to pedestrians. Aplt. Br. at 29 ("In light of the absence of evidence that the Plaintiffs or other protestors posed a direct threat to safety, the City relies on an indirect and much more tenuous connection between its restrictions and its interest in protecting the conference participants."). As noted earlier, the City's security interest included the prevention of "possible terrorist threats and/or violent demonstrations," including the detonation of vehicle or human-borne explosives. Aplee. Br. at 5. 31 The City asserts that, absent the total ban on protestors, security would have been achieved "less effectively." Aplee. Br. at 20-21 (citing Ward, 491 U.S. at 782-83, 109 S.Ct. 2746 ("[N]arrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation . . . .")). The City also argues that the Citizens' literal adherence to the word "direct," as used in Edenfield, essentially transforms the narrowly tailored analysis into least restrictive means analysis. 32 The narrowly tailored analysis proceeds from the specific security interest articulated by the City. See Grace, 461 U.S. at 181, 103 S.Ct. 1702; Bl(a)ck Tea Soc'y, 378 F.3d at 13. Indeed, to assess whether a restriction is an appropriate "fit" to some important government interest, it is necessary that the government interest be specifically defined. Otherwise, the narrowly tailored analysis more closely resembles the "reasonably necessary" standard used in reviewing restrictions on speech in areas that are not public forums. See, e.g., Brown v. Glines, 444 U.S. 348, 355, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980). In this case, that interest is the need to protect the conference delegates from terrorist threats and violent demonstrations, including the detonation of vehicle or human-borne explosives 33 Contrary to the Citizens' argument, however, courts have not insisted upon a literal showing that but for the restriction, the substantial governmental interest would not be served. Instead, the regulation of speech has been deemed to directly advance the government's interest "[s]o long as the means chosen are not substantially broader than necessary." Ward, 491 U.S. at 800, 109 S.Ct. 2746. Here, the security zone directly advanced the City's interest in keeping explosives away from the NATO conference because it limited access near the Broadmoor to identified and screened individuals who were less likely to pose any threat to the delegates. Furthermore, a strict no-access policy allowed the City to devote its officers to maintenance of the extensive security zone perimeter and to the innumerable other security tasks associated with a conference of such magnitude. Had the City allowed protests within the security zone, its officers would have faced the substantial, additional burdens of screening protestors upon entry, maintaining supervision of the protestors during their protest, and generally providing enough manpower in close proximity to the protestors to quickly handle any protest that turned violent. 34 The Citizens argue that the City failed to prove that other protest groups would have requested permission to protest inside the security zone, and it contends that the City was wrong to premise its denial of the Citizens' request out of concern that a host of other groups would seek similar treatment. The Citizens describe this concern as "hypothetical." It goes without saying, however, that security protocols exist to deal with hypothetical risks. It was appropriate for the City to consider, as part of its decision to deny the Citizens' specific request to protest, the effect that additional protests would have on its ability to provide security at the conference. 2. Additional Officers 35 The Citizens also argue that the City could have supplied additional officers to monitor and escort the protestors and that, as a result, a total ban on expression was unnecessary. Specifically, they argue that the City failed to show "it would have been unable to assign more officers, or impose additional overtime, or arrange for reinforcements from another law enforcement agency." Aplt. Br. at 30. But the Citizen's argument assumes a standard far more strict than that at play here. The City is not obliged to show, under the narrowly tailored analysis, that it was impossible to increase officer presence to accommodate the protestors. This is a burden akin to that required in strict scrutiny cases. Instead, the City need only show that the security zone was a reasonable fit to the security interest. See U.S. West, Inc. v. FCC, 182 F.3d 1224, 1239 (10th Cir.1999). The fact that more officers might have been available is, in and of itself, irrelevant, unless it shows that the City's security plan was not a reasonable fit to the asserted security interest. 36 Furthermore, the Citizens argue that officer staffing levels at the Broadmoor were adequate to assure the peacefulness of their demonstration and others like it. Aplt.App. at 31. However, this argument assumes the best-case scenario: that all protest groups would be peaceful and law-abiding. The City was not required to base its security protocol on such an assumption, and indeed would have been foolish to do so. Additionally, the Citizens provide no authority that the narrowly tailored analysis can proceed based on this rosy scenario. Instead, security planning is necessarily concerned with managing potential risks, which sometimes necessitates consideration of the worst-case scenario. As long as a designed security protocol reduces a plausible and substantial safety risk, it directly and effectively advances a substantial government interest. 37 3. A Burden on Substantially More Speech Than Necessary 38 The Citizens argue that the security zone burdened substantially more speech than necessary because it even restricted residents, who were allowed within the zone, from protesting on sidewalks in front of their homes. Aplt. Br. at 34-35. This argument does not address, however, the City's concern that it would, as a matter of prudence, have to devote officers to supervising protestors, no matter whether the protestors were residents or outsiders, and no matter how well known or peaceful they seemed to be. It was not impermissible for the City to draw a distinction between residents going about their daily business in the security zone and those seeking to protest the NATO conference, because the City made a reasonable assumption that protestors could pose more of a security risk to the conference than other persons, an assumption that, for example, finds some support given the violent protests surrounding the World Trade Organization meeting in Seattle, Washington. See Menotti, 409 F.3d at 1120-23. 39 Additionally, the Citizens argue that the City could have chosen a number of obvious, less restrictive alternatives to the security zone's total ban on protests. Specifically, the Citizens suggest that the City could have set up a permit-based system allowing small groups of protestors into the security zone for limited times, and they argue that the City's failure to do so indicates the security zone was not carefully calculated to consider the burdens on expression. Aplt. Br. at 39-40. The Citizens also argue that the City never even contemplated allowing any protestors into the security zone. 40 Based on our holding in U.S. West, they argue that such alternatives indicate a lack of narrow tailoring. We note, however, that the presence of such alternatives is not dispositive. First, the cases cited by U.S. West for this notion only invalidated speech regulations that were "substantially excessive, disregarding far less restrictive and more precise means." 182 F.3d at 1238 (citing Fox, 492 U.S. at 479, 109 S.Ct. 3028). Second, Lederman v. United States, 291 F.3d 36 (D.C.Cir.2002), a case chiefly relied upon by the Citizens in their discussion of obvious, less restrictive alternatives, involved a per se ban on expression to promote safety and the orderly flow of traffic. Id. at 45. Though traffic control is important, the safety and security of NATO defense officials would seem to be a paramount concern. Given this interest, a more generous "fit" analysis may be warranted than that used in Lederman. 41 Additionally, the alternatives suggested by the Citizens are not really "obvious" within the meaning of that term as contemplated in U.S. West. First, enacting a permitting scheme would have been quite complex and still would have required the City to provide officers to escort and monitor the protestors, which would have hindered its ability to provide security for the conference. Though we agree that some content-neutral permitting system could have been enacted, we do not agree with the Citizens that such a system is an obvious alternative that easily could have been utilized without diverting resources and personnel. The City had no idea how many protest groups would seek access to the security zone, and, again, it would have been forced to plan for the worst-case scenario. Second, the subjective failure of City officials to consider allowing protests is irrelevant to the objective time, place, and manner analysis. See Ward, 491 U.S. at 799, 109 S.Ct. 2746 ("[T]he requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.") (internal quotations omitted). Regardless, even if the Citizens could articulate an obvious, less burdensome alternative, that is merely one factor that bears on the "fit" analysis. See U.S. West, 182 F.3d at 1238 n. 11. Given the need to provide security and the catastrophic risk involved, we hold that the security zone implemented by the City was narrowly tailored. D. Ample Alternative Channels 42 The Citizens also argue that they were denied ample alternative channels of communication because they were unable to interact with their intended audience; namely, the conference delegates and the international media. We conclude, however, that the Citizens were sufficiently able to communicate their message even though they had no close, physical interaction with their intended audience. "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). However, an alternative mode of communication may be constitutionally inadequate if the speaker's ability to "communicate effectively is threatened." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). As the Ninth Circuit has noted "the Supreme Court generally will not strike down a governmental action . . . unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting." Menotti, 409 F.3d at 1138. 43 The Citizens correctly note that many courts have struck down security zones that push protestors far away from their intended audience. See, e.g., United States v. Baugh, 187 F.3d 1037, 1044 (9th Cir.1999) (150-175 yard security zone with a "First Amendment area"); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir.1990) (75 yard security zone preventing water-borne protests); Serv. Employee Int'l Union v. City of Los Angeles, 114 F.Supp.2d 966, 972 (C.D.Cal. 2000) (260 yard security zone at the Democratic National Convention). They argue that, in this case, the security zone's breadth necessarily pushed protestors so far away from the conference delegates and international media that there could be no ample alternative channels of communication. 44 The City responds that all the conference delegates and international media viewed the Citizens when their motorcades and buses entered the security zone at Checkpoint 1. The City also notes, correctly, that on October 7 and 8, the Citizens were interviewed by local media as they protested at the checkpoint. The security zone, while prohibiting movement of the international media within it, did nothing to prevent the international media (or the conference delegates for that matter) from visiting the protestors outside the security zone. 45 The ample alternative channels analysis cannot be conducted in an objective vacuum, but instead it must give "practical recognition" to the facts giving rise to the restriction on speech. See Menotti, 409 F.3d at 1140. Thus, we must ask whether, given the particular security threat posed, the geography of the area regulated, and the type of speech desired, there were ample alternative channels of communication. To treat the ample alternative channels analysis as wholly independent disconnects it from reality and diminishes the emphasis courts have traditionally placed on the importance of the government interest. See U.S. West, 182 F.3d at 1238. 46 Thus, in this case, given the City's need to maintain a strict perimeter and provide conference security, we must determine whether the alternative protest sight at Checkpoint 1 was an adequate alternative. While allowing the Citizens to protest outside Checkpoint 1 may not have been the best alternative, nor even the most prudent, it is "ample" in the context of the NATO conference and the overall security protocol. This is not a case where the Citizens were wholly deprived of their ability to communicate effectively. Both conference delegates and the international media viewed their protest at Checkpoint 1. They were interviewed by local media on October 7 and 8. They could have protested at the off-site staging area for the international media, but they declined. Simply put, the Citizens do not have a right to convey their message in any manner they prefer. Instead, they have a right to convey their message in a manner that is constitutionally adequate. See Menotti, 409 F.3d at 1140. In this case, protesting on the periphery of the security zone allowed the Citizens to present their views to the conference delegates and international media. They were not wholly cut off from their intended audience, such that there were no ample alternatives to a protest within the security zone itself. 47 AFFIRMED. Notes: 1 NATO is the popular acronym for the North Atlantic Treaty Organization, an alliance of twenty-six countries from North America and Europe formed to fulfill the goals of the North Atlantic Treaty signed on April 4, 1949 2 Although the record is not entirely clear, it appears that Checkpoint 1 was approximately 310 yards from the front of the International Conference CenterSee http://www.gmappedometer.com (last visited January 23, 2007). We take judicial notice of this distance. See Fed.R.Evid. 201(b),(c); see also Pearson v. United States, 150 F.2d 219, 221 (10th Cir. 1945) (taking judicial notice of distance); Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir.1984) (same). 3 The validity of time, place, and manner restrictions is determined under a standard essentially identical to that governing the regulation of commercial speechSee United States v. Edge Broad. Co., 509 U.S. 418, 430, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). Accordingly, we draw on relevant precedent from some commercial speech cases. 4 We note that some recent decisions have limited the extent of such deference,e.g., Hamdan v. Rumsfeld, ___ U.S. ___, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), and the Supreme Court appeared hesitant (although it never reached the question) to grant such deference in a multi-opinion case involving the First Amendment, see Boos v. Barry, 485 U.S. 312, 324, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) ("Thus, the fact that an interest is recognized in international law does not automatically render that interest compelling ....") (internal quotations omitted). Nevertheless, it would be inappropriate to ignore the fact that the City's ability to provide effective security had national and international ramifications.

Opinion issued August 18, 2016 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00152-CV ——————————— IN THE INTEREST OF C.S. AND T.L., CHILDREN On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2015-00494J MEMORANDUM OPINION This is an accelerated appeal of a February 2, 2016 judgment terminating the parents’ parental rights to their young sons, C.S. and T.L. The father wished to pursue an appeal, and the trial court appointed counsel to prosecute the appeal. The father’s court-appointed appellate counsel has filed a motion to withdraw along with a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). We have reviewed the record and, having found no reversible error, we affirm the trial court’s judgment but deny counsel’s motion to withdraw. See In re P.M., No. 15–0171, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016); In re A.M., No. 01-16-00130-CV, 2016 WL 4055030, at *6 (Tex. App.—Houston [1st Dist.] July 28, 2016, no. pet. h.). Anders procedures are appropriate in parental-rights termination cases. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney finds a case to be wholly frivolous, his obligation to his client is to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to assure it, through an Anders brief, that, after a complete review of the record, the request to withdraw is well-founded. Id. Here, counsel has certified that he delivered a copy of the brief to the father and informed him of his right to examine the appellate record and to file a response. See Schulman, 252 S.W.3d at 408. The brief submitted by the father’s appointed appellate counsel states his professional opinion that no arguable grounds for reversal exist and that any appeal would therefore lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a 2 professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See id. at 744, 87 S. Ct. at 1400; Schulman, 252 S.W.3d at 409 n.23. This Court notified the father of his right to review the record and to file a pro se response. The father did not file a response. When we receive an Anders brief from an appellant’s appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Johnson v. Dep’t of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at *1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.); see In re K.D., 127 S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Thus, our role in this appeal is to determine whether arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the appointed attorney to withdraw. See id. Then, the trial court appoints another attorney to present all arguable grounds for appeal. See id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id. On the other hand, if our independent review of the record leads us to conclude that the appeal is wholly frivolous, we may affirm the trial court’s 3 judgment by issuing an opinion in which we explain that we have reviewed the record and find no reversible error. See id. Although we may issue an opinion explaining why the appeal lacks arguable merit, we are not required to do so. See Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). The appellant may challenge the holding that there are no arguable grounds for appeal by petitioning for review in the Supreme Court of Texas. See Bledsoe, 178 S.W.3d at 827 & n.6. Following Anders, we have reviewed the record and counsel’s Anders brief. We conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and deny counsel’s motion to withdraw. See In re P.M., 2016 WL 1274748, at *3; In re A.M., 2016 WL 4055030, at *6. Counsel’s duty to his client extends through the exhaustion or waiver of “all appeals.” TEX. FAM. CODE § 107.016(2)(B). If the father wishes to pursue an appeal to the Supreme Court of Texas, “appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief.” P.M., 2016 WL 1274748, at *3. PER CURIAM Panel consists of Justices Higley, Bland, and Massengale. 4 

377 F.Supp. 200 (1974) Allen B. EDWARDS and Carol M. Edwards, Plaintiffs, v. Albert AINSWORTH and Lydia Ainsworth, Defendants. Civ. No. 74-16-1. United States District Court, S. D. Iowa, Central Division. June 5, 1974. Marvin E. Duckworth, Hopkins, Bump & Huebner, Des Moines, Iowa, for plaintiffs. Brent B. Green and John G. Fletcher, Des Moines, Iowa, for defendants. ORDER STUART, District Judge. Defendants have filed with the Court a motion to dismiss or in the alternative to quash the return of service of summons. The motion was filed on April 4, 1974, and the plaintiffs filed a resistance on May 1, 1974, after an extension of time was granted. The Court has considered the motion and the briefs in support of the respective positions of the parties, and is of the opinion that the motion should be granted. This lawsuit is the outgrowth of an oral contract for the sale of land in Iowa, which was later reduced to writing. The written contract was executed on January 14, 1971. At the time of the execution of the contract, plaintiffs were residents of the State of Minnesota; defendants were and are now residents of Michigan. Subsequent to the execution of the contract, plaintiffs moved to the Northern District of Iowa. The land in question is located in the Southern District of Iowa. Plaintiffs have attempted to utilize Section 617.3, Code of Iowa, 1973, in bringing defendants within the jurisdiction of this Court. That chapter provides in part that: * * * If a nonresident person makes a contract with a resident of Iowa to be performed in whole or in part by either party in Iowa * * * *201 such act[s] shall be deemed to be doing business in Iowa by such person for the purpose of service of process or original notice on such person * * *. The term `resident of Iowa' shall include * * * any individual residing in Iowa * * *. The Court is of the opinion that plaintiff's attempt to bring the defendants under the jurisdiction of this Court via Section 617.3 is fatally defective and the motion to quash the return of service of summons is granted. After a careful reading of the statute the Court is convinced that plaintiffs do not qualify as "residents of Iowa" in order to utilize Section 617.3. The Court is under the further opinion that this statute requires that a plaintiff be a resident of Iowa at the time the contract was made or executed. See, Schnebly v. St. Joseph Mercy Hospital of Dubuque (Iowa 1969), 166 N.W.2d 780, 784. The documents in this case clearly indicate that plaintiffs' residence was in Minnesota at the time of the execution of the contract in question, and that they did not become residents of this state (Northern District) until sometime prior to the commencement of this lawsuit. In this respect, the Court does not agree with plaintiffs' contention that the holding in Sporcam v. Greenman Bros., Inc. (D.C.Iowa 1972), 340 F.Supp. 1168, establishes that residency at the time of the lawsuit, rather than at the time of the contract is controlling as to operation of Section 617.3. Sporcam involved different issues than are now present here, and plaintiff in that case was both at the time of the contract's making and at the time of the lawsuit a "resident of Iowa". The general rule prevails that it is the burden of the plaintiff to establish jurisdiction, but after a prima facie showing, the burden passes to the defendant. Sporcam, Inc. v. Greenman Bros., Inc., supra, at page 1175; Rath Packing Co. v. Intercontinental Meat Traders, Inc. (Iowa 1970), 181 N.W.2d 184, 185. Plaintiffs have carried their initial burden by establishing a contract was entered into by the two parties to be performed in whole or in part in Iowa. However, defendants' showing that plaintiffs are not proper persons within the definitions of Section 617.3, overcomes plaintiffs' prima facie case. The fact that plaintiffs cannot seek to assert the "long-arm" attributes of this statute destroys any jurisdictional claim over the defendants. It is hereby ordered, that the motion of the defendants, Albert Ainsworth and Lydia Ainsworth, to quash the return of service of summons is granted.

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2018.10.22 16:27:30 -05'00' Mehalko v. Doe, 2018 IL App (2d) 170788 Appellate Court KATHY MEHALKO, Plaintiff-Appellant, v. JANE DOE, KATHY Caption MILLER WHITNEY, a/k/a Opposing Voices of Kathy Mehalko Puppymill Agenda, and MATTHEW CALEB WILLIAMS, a/k/a Caleb Matthew Williams, a/k/a Caleb-Matthew Williams, a/k/a Pet Owners Beware, Defendants (Jane Doe, Defendant-Appellee). District & No. Second District Docket No. 2-17-0788 Filed July 10, 2018 Decision Under Appeal from the Circuit Court of Winnebago County, No. 16-L-214; Review the Hon. Eugene G. Doherty, Judge, presiding. Judgment Affirmed. Cause remanded. Counsel on Jeffrey P. Orduno, of Rockford, for appellant. Appeal Joel M. Huotari, of WilliamsMcCarthy, LLP, of Rockford, for appellee. Panel JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.  OPINION ¶1 Plaintiff, Kathy Mehalko, appeals from the trial court’s order imposing postjudgment sanctions on her under Illinois Supreme Court Rule 219 (eff. July 1, 2002). Mehalko argues that Rule 219 sanctions were improper because (1) the trial court lacked jurisdiction to impose such sanctions as the case was already closed, (2) the sanctions’ purpose was not to further discovery as required by the rule, and (3) no “abuse of discovery procedures” occurred. She further argues that the hearings did not include the procedural safeguards necessary for contempt proceedings. ¶2 We conclude that the trial court had jurisdiction to sanction Mehalko under both Rule 219 and its inherent authority to enforce its orders through contempt proceedings. However, although the trial court found Mehalko in indirect civil contempt, it failed to specify what Mehalko must do to purge herself of the contempt. We therefore remand the cause. ¶3 I. BACKGROUND ¶4 Mehalko is an animal rights activist. On July 29, 2016, she filed a three-count complaint against various defendants alleging defamation, violation of the Right of Publicity Act (765 ILCS 1075/1 et seq. (West 2016)), and intentional infliction of emotional distress. The claims arose from photographs and comments about her that were posted on the Facebook pages “Opposing Voices of Kathy Mehalko Puppymill Agenda” (Opposing Voices) and “Pet Owners Beware.” Mehalko did not know who was responsible for creating the Facebook pages or posting the comments, so she nominally filed the case against various Jane and John Does. ¶5 In a related action, Mehalko obtained an order requiring Facebook to disclose to Mehalko’s attorney the individual(s) behind Opposing Voices. Jane Doe was named to counsel and then served in the instant case. ¶6 Mehalko was granted leave to file an amended complaint on September 1, 2016. On September 21, 2016, Doe filed a motion to dismiss the complaint. ¶7 Mehalko thereafter sought to depose Doe. On November 8, 2016, the trial court granted Mehalko leave to conduct a limited deposition of Doe. Its order stated that Mehalko’s attorney could reveal Doe’s identity to Mehalko, who could attend the deposition. It further stated that Mehalko was “ordered not to disclose Doe’s identity to anyone and may be subject to contempt of court if she [did].” (Emphasis in original.) ¶8 On January 19, 2017, the trial court allowed Mehalko leave to file a second amended complaint. ¶9 On February 22, 2017, the trial court granted Doe’s motion to dismiss, and it dismissed all claims as to all parties with prejudice under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2016)). Shortly afterward, on March 2, 2017, Mehalko filed a motion to lift the November 8, 2016, protective order prohibiting her from disclosing Doe’s identity. The trial court denied Mehalko’s motion on March 23, 2017. ¶ 10 More than 30 days later, on May 4, 2017, Doe filed a petition for a rule to show cause and for reconsideration. She alleged that she had proceeded under a pseudonym in the case because Mehalko’s Internet followers, who did not know Doe’s identity, had made veiled threats against her. Doe alleged that Mehalko had violated the protective order by revealing Doe’s identity to them, resulting in escalating “online taunts and menacing behavior.” Doe alleged -2-  that Mehalko’s conduct constituted contempt of court. Doe asked the court to order Mehalko to remove all Facebook posts referring to her and pay her attorney fees. ¶ 11 On June 20, 2017, the trial court granted Doe’s petition for a rule to show cause. An evidentiary hearing took place on August 10, 2017. On August 14, 2017, Doe amended her petition “[p]ursuant to the direction of the” trial court to state that it was brought pursuant to Illinois Supreme Court Rule 219(c) and (d) (eff. July 1, 2002). ¶ 12 The trial court issued a written order on August 30, 2017, making the following findings. Mehalko did not know the person behind the Opposing Voices Facebook page before the entry of the November 8, 2016, protective order. That order allowed Mehalko to attend Doe’s deposition and learn her identity, but it prohibited Mehalko from disclosing Doe’s identity to anyone. Mehalko was present in court when the protective order was entered and knew its terms. Mehalko attended Doe’s deposition on November 15, 2016, and learned her identity. On July 25, 2016, Mehalko and her Facebook friends had expressed that they were looking forward to the exposure of Doe’s identity, which they thought could result in a class action lawsuit against her. Mehalko was present in court with her counsel on March 23, 2017, when she unsuccessfully moved to lift the protective order. On April 24, 2017, Mehalko alluded to Doe’s identity on Mehalko’s own Facebook page by describing the person behind Opposing Voice as a female resident of Belvidere who bred a certain type of dog. Within hours of that post, Mehalko used the alias “Justin Guy” to post comments on her Facebook page revealing Doe’s first name, the name of her kennel, and her city of residence. Mehalko’s disclosures directly led to online harassment, taunting, insults, and threats against Doe from third parties posting on Mehalko’s Facebook page. On or about May 29, 2017, Mehalko created a new Facebook page that showed a photo of Doe’s recently deceased mother-in-law, which Mehalko copied from her obituary. The page disclosed the name of Doe’s kennel and associated Doe with bestiality. ¶ 13 The trial court quoted Rule 219(c) and (d) and stated that Mehalko knowingly and intentionally revealed Doe’s identity to others in direct violation of the trial court’s November 8, 2016, protective order. The trial court awarded Doe attorney fees and costs from the date the case was closed to the date of its current order, totaling $7329.02.1 It stated that Mehalko was free to speak out about the issues addressed on the Opposing Voices Facebook page, but it enjoined Mehalko from referring to or identifying Doe in any manner. ¶ 14 This appeal followed. ¶ 15 II. ANALYSIS ¶ 16 Mehalko’s arguments on appeal involve the interpretation and application of an Illinois Supreme Court rule, which is a question of law that we review de novo. See People v. Cole, 2017 IL 120997, ¶ 20. Questions relating to a trial court’s jurisdiction are similarly reviewed de novo. J&J Ventures Gaming, LLC v. Wild, Inc., 2016 IL 119870, ¶ 25. We construe Illinois Supreme Court rules according to the same principles that govern the interpretation of statutes. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22. Our primary goal is to ascertain and give effect to the drafters’ intent, which is best indicated by the language used, when given its plain and ordinary meaning. Id. We will interpret the rule such that no part of it is rendered meaningless or superfluous, and we will not depart from the rule’s plain language 1 This total was listed in a separate order entered the same day. -3-  by reading into it exceptions, limitations, or conditions that conflict with the drafters’ expressed intent. Id. ¶ 17 Rule 219 provides, in relevant part: “(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following: *** In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal. Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order. (d) Abuse of Discovery Procedures. The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.” (Emphases added.) Ill. S. Ct. R. 219(c), (d) (eff. July 1, 2002). ¶ 18 Mehalko’s brief consists of less than three full pages of argument, so our summary of her arguments is likewise brief. Mehalko first contends that the trial court lacked jurisdiction to consider Doe’s petition and enter Rule 219 sanctions because the case was closed before Doe even filed the petition. Mehalko cites Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955. In that case, the plaintiff learned, after a jury verdict in his favor, that the defendant had understated the amount of its available insurance coverage in discovery. Id. ¶ 75. The plaintiff sought leave to take depositions to confirm the exact amount of coverage and pursue possible sanctions. Id. The trial court initially granted the request on the basis that it had “ ‘ancillary’ ” or “ ‘auxiliary’ ” jurisdiction over discovery sanctions under Rule 219(c), but it later ruled that it lacked jurisdiction. Id. ¶ 76. On appeal, the appellate court stated that Rule 219(c) extends a trial court’s jurisdiction to address sanctions after a final judgment is entered only if the motion for sanctions was pending before the filing of a notice or motion seeking a judgment or order of dismissal. Id. ¶ 78. It stated that “the trial court would only retain residual jurisdiction if plaintiff had filed a motion for sanctions prior to the entry of judgment” and that, -4-  because the plaintiff had not done so, the trial court properly found that it did not have residual jurisdiction to address the matter under Rule 219(c). Id. ¶ 19 Mehalko further argues that Rule 219 is inapplicable because an order entered pursuant to the rule must provide for discovery and a trial on the merits (see Gallo v. Henke, 107 Ill. App. 3d 21, 27 (1982)), which is impossible for a postjudgment order. ¶ 20 Mehalko additionally contends that Rule 219(d) is inapplicable, as it relates to abuses of discovery procedures. Mehalko argues that the dispute at issue is whether she violated the trial court’s order that she not disclose Doe’s real identity, which is a contempt issue. Mehalko asserts that, because Doe’s counsel followed the trial court’s misguided lead and chose the route of Rule 219 proceedings, it would be “beyond unjust” to now subject her to time-consuming and costly contempt proceedings. She argues that we also should not allow testimony taken in Rule 219 proceedings to be considered in contempt proceedings, as contempt proceedings have their own procedural safeguards that the trial court and Doe expressly rejected. ¶ 21 Doe, for her part, cites Yow v. Jack Cooper Transport Co., 2015 IL App (5th) 140006, ¶ 26, for the proposition that a trial court has the inherent, common law authority to enforce its orders and impose sanctions for the failure to comply with its orders. She cites the same case in arguing that Rule 219 also vested the trial court with authority to enforce its protective order and sanction Mehalko for her unreasonable failure to comply. In Yow, the defendant concealed, until after the limitations period had run, the fact that its wholly owned subsidiary was potentially involved in the injury at issue. Id. ¶ 29. The plaintiffs learned of the concealment long after the case had been removed to federal court. Id. ¶¶ 8, 13. At issue was whether the trial court retained jurisdiction to impose sanctions. Id. ¶ 21. The appellate court stated that a trial court has the inherent authority to enforce its orders and that Rule 219 additionally vested the trial court with jurisdiction. Id. ¶ 23. That is, the appellate court agreed with the plaintiffs’ argument that the trial court “retained residual jurisdiction to impose a sanction against [the] defendant pursuant to both Rule 219 and a court’s inherent authority to enter a sanction.” Id. ¶ 21. The appellate court stated that, although a state court could not take action on the merits of a case that had been removed to federal court, the state court could still sanction a party for preremoval conduct. Id. ¶ 25. ¶ 22 Doe argues that the instant case is like Yow in that both involve situations where the underlying case was no longer pending. Doe maintains that we should follow Yow instead of Maggi because Yow is a newer case that accurately applied Rule 219’s plain meaning. She also argues that Yow shows that sanctionable violations can occur after a case is no longer pending—in addition to during the pendency of the litigation, as in Gallo. ¶ 23 We begin by addressing Mehalko’s argument that Rule 219 sanctions were inappropriate here because such sanctions must ensure discovery and a trial on the merits. Our supreme court has stated that a “just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits.” (Emphasis added.) Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123 (1998). Shimanovsky recognized that, as a last resort, a dismissal with prejudice or a sanction resulting in a default judgment is sometimes appropriate under Rule 219(c). Id. Therefore, we reject Mehalko’s argument that Rule 219(c) sanctions must always be crafted to ensure a trial on the merits. ¶ 24 We also reject Mehalko’s reliance on Maggi. There, the trial court imposed postjudgment sanctions for prejudgment misconduct that had recently been discovered, whereas here the -5-  issue is essentially the trial court’s postjudgment authority to enforce a prejudgment order.2 Rule 219(c) explicitly provides that the trial court “may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules.” Ill. S. Ct. R. 219(c) (eff. July 1, 2002). The order that Mehalko was found to have violated was a discovery order regarding Doe’s deposition, which was “an order entered under these rules,” so the trial court properly invoked its authority under Rule 219(c). We are not sure why the trial court also referenced Rule 219(d), as we agree with Mehalko that Rule 219(d) pertains to an abuse of discovery procedures and rules, not a violation of a discovery order. However, that reference to Rule 219(d) did not prejudice Mehalko in any way, so it provides no basis for reversal. This is especially true considering that subsection (d) provides that “the court may enter any order provided for in paragraph (c) of this rule.” Ill. S. Ct. R. 219(d) (eff. July 1, 2002). ¶ 25 We have yet to fully resolve the question of jurisdiction. Generally, absent a timely filed postjudgment motion, the trial court loses jurisdiction 30 days after it enters the final judgment. In re Marriage of Heinrich, 2014 IL App (2d) 121333, ¶ 35. We recognize that Doe filed her petition for a rule to show cause after 30 days had passed. We further recognize that Rule 219(c) does not explicitly state that a trial court has continuing jurisdiction to enforce its orders through contempt proceedings. However, our supreme court has stated that a “court is vested with the inherent power to enforce its orders and to preserve the dignity of the court by the use of contempt proceedings.” Cole, 2017 IL 120997, ¶ 18. A court’s contempt power does not depend on constitutional or legislative grant, and it may not be restricted by legislative enactment. In re L.W., 2016 IL App (3d) 160092, ¶ 25. A court’s inherent authority to enforce its orders gives it jurisdiction to enter a rule to show cause. Anderson Dundee 53, L.L.C. v. Terzakis, 363 Ill. App. 3d 145, 156 (2005). Therefore, here the trial court’s contempt powers provided it with jurisdiction to hear Doe’s petition and impose sanctions for Mehalko’s violations of the discovery order. ¶ 26 Mehalko acknowledges that the trial court had the authority to enforce its orders through contempt proceedings, but she argues that the Rule 219 proceedings did not provide the procedural safeguards of contempt proceedings. However, Rule 219 allows a trial court to enforce its discovery orders through contempt proceedings, which is simply an explicit incorporation of a trial court’s inherent authority to enforce all of its orders by way of contempt. See In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723 (1998) (equating a trial court’s contempt power under Rule 219(c) with its inherent power to enforce its orders through contempt); see also Yow, 2015 IL App (5th) 140006, ¶ 29 (the trial court retained jurisdiction pursuant to both Rule 219(c) and its inherent authority to sanction a defendant). Thus, under the facts of this case, the proceedings would have been identical whether the trial court invoked Rule 219 or its inherent authority, or both. ¶ 27 The remaining question is whether the trial court followed the proper procedure for contempt proceedings. The proper procedure depends on the type of contempt at issue. In re Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 19. Contempt may be classified as either criminal or civil and either direct or indirect. In re Estate of Lee, 2017 IL App (3d) 150651, ¶ 39. Whether contempt is direct or indirect depends on where the contemptuous conduct 2 Yow is distinguishable for this same reason, though we later cite some of its general language. -6-  occurred; if it occurred in the court’s presence, the contempt is direct, and if it occurred outside the court’s presence, it is indirect. Id. Mehalko’s conduct occurred outside the court’s presence, so it is indirect contempt. ¶ 28 To determine whether contempt is civil or criminal, we consider the purpose for which the sanction was imposed. In re Marriage of O’Malley, 2016 IL App (1st) 151118, ¶ 26. Contempt is civil if the sanction’s main purpose is to coerce future conduct, and the person held in civil contempt must have the ability to purge the contempt by complying with the court order. Id. That is, the civil contemnor must be provided with the proverbial keys to his cell. In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 56. Therefore, contempt based on past actions that cannot be undone cannot be civil contempt. In re Marriage of O’Malley, 2016 IL App (1st) 151118, ¶ 26. Contempt is criminal if the sanction is intended to punish past actions that cannot be undone, as opposed to coercing the party to comply with court orders. Id. ¶ 27. ¶ 29 Doe argues that she sought enforcement of the protective order to cease online harassment, rather than as punishment. We note that, in her reply in support of her petition for a rule to show cause, Doe argued that the rule to show cause was just the first step to determining how Mehalko’s contemptuous behavior was best addressed, and “[w]hether the Court wants to hold her in civil contempt, and offer her a chance to purge herself by deleting the offensive comments and Facebook pages, or whether the Court wants to throw her in jail after having provided her with the Constitutional due process such a course of action would require, that is up to the Court.” Mehalko argues that criminal contempt was at issue because the behavior had ceased and the Facebook posts had been deleted before the evidentiary hearing took place. However, in her reply, Doe disputed this point and alleged that Mehalko had in fact created a new Facebook page, ostensibly administered by Doe’s deceased mother-in-law, that revealed Doe’s identity as the person behind the Opposing Voices page. Additionally, at oral argument, Doe represented that the new Facebook page was still up at the time of the evidentiary hearing, whereas Mehalko stated that the trial court found that it had been removed. Mehalko failed to include a transcript of that hearing in the record, so we must resolve any doubts arising from the lack of a complete record against her. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (the appellant has the burden to provide a sufficiently complete record of trial proceedings to support his or her claims of error, and the reviewing court will resolve any doubts that arise from the incompleteness of the record against the appellant). ¶ 30 In its written order, the trial court agreed with Doe that Mehalko was behind the new Facebook page showing Doe’s mother-in-law and revealing Doe’s identity, ruling that Mehalko created the page on or about May 29, 2017. That date was weeks after Doe filed her petition for a rule to show cause, belying Mehalko’s argument that any alleged violations were purely historical and that she required no coercion to comply with the protective order. Further, as stated, because we lack a transcript of the evidentiary hearing, we cannot presume that the trial court found that the new Facebook page had been removed by the time of the hearing. The trial court ultimately sanctioned Mehalko by ordering her to pay attorney fees and enjoining her from referring to or identifying Doe. “It is appropriate in both civil and criminal contempt cases to require the contumacious party to bear the reasonable costs and attorney fees of a contempt proceeding ***.” Harper v. Missouri Pacific R.R. Co., 282 Ill. App. 3d 19, 30 (1996). Therefore, the imposition of attorney fees does not alone render the contempt action criminal. As the trial court did not impose any additional punishment, but rather sought to enforce its protective order, we conclude that the proceedings were civil. This corresponds to -7-  the trial court’s invocation of Rule 219(c), which references compelling a party’s obedience to a discovery order. ¶ 31 In indirect civil contempt proceedings, a respondent is entitled to minimal due process, which consists of notice and an opportunity to be heard. In re Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 34. The proceedings at issue explicitly began as contempt proceedings, with Doe filing a petition for a rule to show cause. The trial court granted that petition and held an evidentiary hearing. Therefore, Mehalko received the minimal due process required for indirect civil contempt proceedings. Still, as discussed, a person held in civil contempt must be able to purge himself of the contempt. In re Estate of Lee, 2017 IL App (3d) 150651, ¶ 40. The trial court’s order here failed to include such a purge provision. Accordingly, we must remand the cause so that the trial court may hold a limited hearing on the issue and include a purge provision in its order. Cf. McGary v. Illinois Farmers Insurance, 2016 IL App (1st) 143190, ¶ 43 (remanding cause for trial court to, among other things, include a purge provision in its indirect civil contempt order imposed under Rule 219(c)). ¶ 32 III. CONCLUSION ¶ 33 For the reasons stated, we remand this cause to allow the Winnebago County circuit court to include a purge provision in its order. The order is otherwise affirmed. ¶ 34 Affirmed. ¶ 35 Cause remanded. -8- 

AFFIRMED; Opinion Filed February 28, 2017. In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00195-CR KEVIN DEWAYNE JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-81811-2015 MEMORANDUM OPINION Before Justices Francis, Stoddart, and Whitehill Opinion by Justice Stoddart A jury convicted Kevin Dewayne Johnson of theft under $1,500 with two previous convictions and sentenced him to two years’ confinement. In five issues, Johnson argues the evidence is insufficient to support the conviction and the trial court erred by denying his requests for jury instructions on a lesser-included offense and community supervision. We affirm the trial court’s judgment. FACTUAL BACKGROUND Ignacio Lopez worked as a loss prevention officer for a JCPenny store. Sephora is a department within the JCPenny store and Lopez’s duties included protecting Sephora’s merchandise. Sephora is a “high shrink department” from which many items are stolen.  Lopez monitored the JCPenny sales floor in person and with closed-circuit cameras. In July 2015, a sales associate alerted Lopez to a man, identified at trial as appellant, carrying a plastic bag in the Sephora department. Shoplifters frequently use bags as a tool to steal merchandise. Lopez testified he saw appellant select a night cream and a wrinkle cream without looking at the items’ prices and put them into his plastic bag. He testified: “After concealment was completed, [appellant] walked straight to the cash register.” The creams cost $50 each. Lopez followed appellant to the check-out counter and stood a few feet away and watched to see whether appellant paid for the items or attempted to return them. He could not hear any discussion between appellant and the cashier. Appellant removed three items from his plastic bag and completed a “no-receipt return.” Lopez explained that JCPenny’s return policy allows customers to return merchandise without receipts in exchange for a voucher that can be used at any JCPenny location. In exchange for the three items, the cashier gave appellant a card, the front of which states: “JCPenny Merchandise Credit.” Appellant accepted the merchandise credit for $250, which included the value of the night and wrinkle creams he collected in Sephora. After appellant received the merchandise credit, Lopez apprehended him. The jury viewed footage from the in-store closed-circuit cameras showing appellant in the Sephora department and making the no-receipt return. Officer Cliff Turrubiarte with the Plano Police Department arrived at the JCPenny store and searched appellant’s plastic bag. He testified: “As I was searching the bag, [appellant] told me that he did take the night cream and the wrinkle cream, but the other Peter Thomas clinic cream was his wife’s and that he did not steal it from JCPenny.” –2–  LAW & ANALYSIS A. Variance In his first issue, appellant asserts the evidence is insufficient to establish theft of United States currency. The indictment alleged that appellant intentionally and knowingly appropriated property, “namely: lawful United States currency, of the value of less than Fifteen Hundred Dollars (1,500), without the effective consent of JC Penny’s [sic], the owner of the property.” Appellant argues the State sought to prove theft of a JCPenny merchandise credit, which is not currency, and the variance between what the State alleged and what was proven is material. In cases involving a sufficiency claim based on a variance between the indictment and the evidence, rather than reviewing the evidence under the traditional sufficiency standards, we consider the materiality of the variance. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Johnson v. State, No. 05-15-00060-CR, 2016 WL 1733610, at *5 (Tex. App.— Dallas Apr. 28, 2016, no pet.) (mem. op., not designated for publication). A variance only renders the evidence insufficient when it is material. Fuller, 73 S.W.3d at 253; Johnson, 2016 WL 1733610, at *5. A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense. Fuller, 73 S.W.3d at 253; Johnson, 2016 WL 1733610, at *5. The burden of demonstrating the materiality of a variance rests with the defendant. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001); Johnson, 2016 WL 1733610, at *5. Appellant does not argue he lacked notice of the charges against him such that he could not prepare an adequate defense or he could be subject to the risk of being prosecuted twice for the same offense. Rather, he argues, the State failed to prove what it alleged: theft of “lawful United States currency,” and the variance is material “because it is both per se material and –3– because part of Appellant’s defense at trial was that he did not take U.S. currency.” Appellant’s argument does not comport with the standard against which we determine whether a variance is material. Theft occurs when a person, without the owner’s effective consent, unlawfully appropriates property with the intent to deprive its owner of the property. TEX. PENAL CODE § 31.03(a), (b). In this context, “property” includes a document that represents anything of value. Id. § 31.01(5)(C). The JCPenny merchandise credit is a document representing something of value—the right to claim up to $250 in JCPenny merchandise. Thus, the merchandise credit is “property” subject to being misappropriated within the meaning of the theft statute, and the issue is whether theft of the card presents a material variance from the indictment’s allegation that appellant misappropriated “lawful United States currency.” In the case before us, the record shows appellant was not surprised by the variance and his defense was not prejudiced by the State’s failure to prove the property description as alleged. During jury selection, appellant’s counsel spoke with the venire about currency and United States currency and asked whether potential jurors consider “Kyle bucks”1 to be currency. He also asked potential jurors about the difference between a coupon and cash. He inquired whether people would convict his client if the indictment alleged appellant stole from a Kohl’s store and the evidence showed the theft occurred at Macy’s. Additionally, during opening statement, counsel for appellant stated: Kevin was trying to commit theft. He was. We’re not going to be here to dispute the color of the sky, we’re not going to be here disputing things that can’t reasonably be disputed. ... 1 Kyle Therrian represented appellant at trial. It appears counsel used the term “Kyle Bucks” to describe fake currency he could create that would not have value as a way to discuss the difference between legal currency and non-currency with the venire. For example, he asked the venire whether Kyle Bucks are currency and why they considered or did not consider them currency. –4–  [W]hen it comes time to decide whether or not they’re [JCPenny] deprived of anything of value, whether or not Kevin acquired anything of value, whether or not what he received was something that he could exchange for value. So that’s issue No. 1. Issue No. 2, the indictment alleges that what Kevin appropriated was lawful U.S. currency, the value of which is less than $1500. We talked about this in jury selection, you know, whether or not the State has to prove what it is they’ve alleged, whether if you see that somebody has tried to commit a theft or made you think a theft was completed, which is something we would disagree with, but maybe you’ve come to that conclusion. The ultimate question is whether it was U.S. currency, and I think the answer is a resounding no. We conclude that the asserted variance in this case is not material and does not render the evidence insufficient to support appellant’s conviction. Appellant makes no argument that he lacked notice of the charges against him such that he was unable to prepare a defense or the variance could subject him to the risk of being prosecuted twice for the same offense. The record shows appellant was fully aware of the discrepancy during jury selection and his opening statement and he made it a key piece of his defense. Appellant began addressing the variance well before the State began presenting evidence. Thus, even if we accept appellant’s argument that a JCPenny merchandise credit is not lawful United States currency, appellant has not met his burden of demonstrating the materiality of the variance. We overrule appellant’s first issue. B. Sufficiency of the Evidence In his second, third, and fourth issues, appellant argues the evidence is insufficient to establish JCPenny as the owner of United States currency, establish the absence of JCPenny’s effective consent because it knew about appellant’s fraud when value was loaded onto the merchandise credit, and establish appellant appropriated something of value because monetary instruments have no value without the maker’s ability and intent to honor. We review a challenge to the sufficiency of the evidence on a criminal offense for which the State has the burden of proof under the single sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. –5– 2014). Under this standard, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011) (footnotes omitted). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination. Id. Direct and circumstantial evidence are treated equally: Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (discussing Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). Reversal on evidentiary sufficiency grounds is restricted to “the rare occurrence when a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); see Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014) (stating that a reviewing court should not act as a “thirteenth juror”). In other words, the appellate scales are weighted in favor of upholding a trial court’s judgment of conviction. Winfrey v. State, 323 S.W.3d 875, 879 (Tex. Crim. App. 2010). –6–  As applicable here, a person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. TEX. PENAL CODE § 31.03(a). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1). 1. Ownership In his second issue, appellant challenges the evidence showing the owner of the stolen property. He asserts the State failed to prove JCPenny as the owner of the property, as alleged in the indictment. Appellant appears to argue the evidence shows Sephora owned the stolen property. The penal code defines “owner” as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. TEX. PENAL CODE § 1.07(a)(35). “Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment as the owner is the same person (or entity) . . . as shown by the evidence.” Garza v. State, 344 S.W.3d 409, 412 (Tex. Crim. App. 2011) (quoting Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011)). Here, Lopez described Sephora as both a department and a store within JCPenny, and testified JCPenny is bound to protect Sephora merchandise. JCPenny’s no-receipt return policy allows a person to return merchandise, including Sephora merchandise, without a receipt in exchange for a merchandise credit that can be used at any JCPenny location. When a person returns items to a cash register inside of Sephora, the JCPenny return policy applies. Generally when merchandise is returned in Sephora, a person is given a Sephora credit. However, when Sephora runs out of Sephora merchandise credits, JCPenny credits are used instead. The card given to appellant states: “JCPenny Merchandise Credit.” –7–  The receipt generated when appellant returned the merchandise, which was admitted into evidence, does not have a heading on it to indicate the name of the store that processed the return, but Lopez stated the exchange occurred between appellant and JCPenny. The State asked Lopez: “Was it JCPenny through the Sephora store?” and he replied “yes.” Reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found JCPenny owned the stolen property. Lopez’s testimony and the JCPenny merchandise credit admitted into evidence are sufficient for a rational trier of fact to conclude Sephora is a department within JCPenny, JCPenny owns Sephora merchandise, and when, as here, Sephora merchandise is returned, the party making the return may receive a JCPenny credit to purchase other goods from JCPenny. JCPenny issued the merchandise credit obtained by appellant. Through this analysis, rational jurors could have concluded JCPenny was the “owner” and had title to or possession of the property stolen. We overrule appellant’s second issue. 2. Consent to theft In his third issue, appellant argues the evidence is insufficient to establish the absence of the owner’s effective consent to the theft because JCPenny loaded value, if any, onto the card with knowledge of appellant’s actions. The State was required to prove appellant unlawfully appropriated the property without JCPenny’s effective consent. See id. §§ 31.03(a), (b)(1). Consent is not effective if it is “given solely to detect the commission of an offense.” Id. § 31.01(3)(D). Lopez testified that although he was suspicious of appellant’s behavior before appellant completed the no-receipt return, he did not intervene before the transaction was completed because no offense occurred until appellant signed for the merchandise credit. Prior to completing the no-receipt return, Lopez could not know whether appellant would purchase the –8– creams or return them. When the State asked Lopez whether he was “aware of anyone who consented to [appellant] returning those items for cash value without having purchased them first” and Lopez replied “no.” Reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found JCPenny did not consent to the theft or any consent given was solely to detect the commission of the offense. Therefore, the jury could have concluded the State proved appellant unlawfully appropriated the property without JCPenny’s effective consent. We overrule appellant’s third issue. 3. Value of JCPenny Merchandise Credit In his fourth issue, appellant asserts the evidence is insufficient to establish he appropriated something of value because “monetary instruments have no value without the maker’s ability and intent to honor.” The State responds the value of the merchandise credit is its face value. Property subject to theft can be real property, personal property, or “a document, including money, that represents or embodies anything of value.” Id. § 31.01(5). Here, the State alleged and was required to prove appellant appropriated property “of the value of less than Fifteen Hundred Dollars (1,500.00).” See Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). The State and appellant rely on Simmons to support their arguments on this issue. Simmons was charged with theft of two checks with value between $1,500 and $20,000 after he accepted checks as payment for his auto theft and car storage insurance claims. Simmons, 109 S.W.3d at 470, 472. The court of appeals reversed his conviction on grounds the evidence was insufficient to prove the value of the checks because the State failed to show the drawer of the check had sufficient funds to cover the checks at the time Simmons came to possess the checks. Id. The court of criminal appeals reversed the court of appeals. Id. at 479. The Simmons court –9– concluded the amount written on the face of the checks and signed by the drawer is prima facie evidence of the checks’ value and is sufficient to show its value. Id. at 475. Here, the State did not charge appellant with theft of a check, there is no evidence appellant stole a check, and recognizing a JCPenny merchandise credit is not a check, we will apply the legal principles from Simmons as urged by the parties. The face value of the merchandise credit is $250, and the evidence established at least $100 of that value resulted from appellant’s fraudulent no-receipt return. Applying Simmons, the written value of the merchandise credit, absent disputed evidence, is sufficient to show the credit was less than $1,500, as alleged in the indictment. See id. at 477. Other evidence in the record also shows the State proved the merchandise credit had value of less than $1,500 as alleged. Lopez testified the credit is “the same thing as money at JCPenny” and the value placed on the card is one dollar per dollar of merchandise returned. Lopez described the credit as being “basically a debit card” that is worth the cash value that has been loaded onto it. The merchandise credit is a promise by JCPenny to exchange the value of the credit for merchandise. Further, Lopez testified the merchandise credit held value to appellant because he could have “walk[ed] across the street to a check place and [sold] it [the merchandise credit] for half the value of it. By that time, we lose.” Although there is evidence in the record that JCPenny could cancel the value assigned to a merchandise credit, the fact a check will not be paid when tendered was not persuasive to the Simmons court. See id. at 475. Similarly, here, the fact JCPenny could have canceled the credit is not dispositive. Reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the value of the merchandise credit was less than $1,500. We overrule appellant’s fourth issue. –10– C. Lesser-Included Offense In his fifth issue, appellant argues the trial court erred by denying his request for a lesser- included offense instruction on attempted theft. With respect to criminal attempt, the penal code states: “A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” TEX. PENAL CODE § 15.01(a) (criminal attempt). We review the trial court’s decision to submit or deny a lesser included offense instruction for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). We apply a two-pronged test to determine if the trial court should have given a jury charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). We first determine if the proof necessary to establish the charged offense includes the lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty, he is guilty only of the lesser offense. Id. at 536. The second step is a question of fact and is based on the evidence presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires us to determine whether “there is some evidence in the record which would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser- included offense is a “valid, rational alternative to the charged offense.” Id. Moreover, it “is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted.” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). –11–  The State concedes attempted theft is a lesser-included offense of theft, see TEX. CODE CRIM. PROC. art. 37.09(4), but argues the evidence does not satisfy the second prong of the analysis. Based on the arguments in his third and fourth issues, appellant asserts he only committed attempted theft because JCPenny consented to the theft and he did not appropriate something of value. Our discussion above negates each of these arguments. Further, appellant argues the cashier loaded value onto the card with full knowledge of his fraudulent actions. However, the record shows the cashier did not know about appellant’s actions when the cashier executed the no-receipt return. While Lopez was aware appellant had not paid for the creams he returned, Lopez did not convey his suspicions about appellant’s activity to the cashier. Appellant also re-urges his argument that he did not receive anything of value and, therefore, he is only guilty of attempted theft. For the reasons discussed above, we do not find this argument persuasive. Having reviewed the entire record, we conclude there is no evidence that if appellant is guilty, he is guilty only of attempted theft. Therefore, the trial court did not abuse its discretion by denying appellant’s request to give a lesser-included offense instruction on attempted theft. We overrule appellant’s fifth issue. –12– D. Instruction on Community Supervision In his sixth issue, appellant asserts the trial court erroneously denied his request to instruct the jury to consider making a recommendation that the trial court suspend the imposition of his sentence. Appellant argues section 15 of article 42.12 of the code of criminal procedure permitted him to seek community supervision from the jury despite failing to file a sworn motion alleging the non-existence of prior felony convictions. The State responds that appellant was not eligible for community supervision and he did not, and could not, file the sworn motion required by section 4(e) of article 42.12 and, therefore, the trial judge did not err by denying his request. When addressing a claim of jury charge error, we first decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then analyze that error for harm. Id. The trial court is required to give a written charge to the jury distinctly setting forth the law applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14. When interpreting statutes as appellant requests we do here, we look to the literal text of the statute in question and attempt “to discern the fair, objective meaning of that text at the time of its enactment.” State v. Schunior, PD-0526-15, 2016 WL 6471981, at *4 (Tex. Crim. App. Nov. 2, 2016) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). Ordinarily we give effect to the plain meaning of the text. Id. (citing Boykin, 818 S.W.2d at 785). When interpreting the literal text of a statute, we “presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.” Id. (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)). Two provisions of article 42.12 of the code of criminal procedure are at issue: section 4(e) and section 15(a)(2-a). Section 4 is titled “Jury Recommended Community Supervision” and subsection (e) states a “defendant is eligible for community supervision under this section –13– only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(e). Section 15 is titled “Procedures Relating to State Jail Felony Community Supervision” and subsection (a)(2-a) states: “In any case in which the jury assesses the punishment, the judge must follow the recommendation of the jury in suspending the imposition of a sentence or ordering a sentence to be executed.” Id. art. 42.12, §15(a)(2-a). Appellant was convicted of a state jail felony. He argues that section 15 provides independent procedures for assessing community supervision in state jail felony cases and permitted him to seek community supervision from the jury despite not filing the sworn motion required by section 4(e). Appellant’s argument is not supported by the text of the statute. Section 4 of article 42.12 is a general provision that applies in cases such as this one when the jury is responsible for recommending community supervision. See id. art. 42.12, § 4. Nothing in the code limits the application of section 4 to non-state jail felonies. Rather, sections 4 and 15 work in tandem. Section 4(e) provides the process by which a criminal defendant informs the trial court that he seeks community supervision and that he meets at least one requirement for eligibility. Id. art. 42.12, § 4(e). Once eligibility is established, section 15 provides procedures relating to community supervision for state jail felonies. Id. art. 42.12, § 15. Reading the text of section 4 as a whole, it is clearly intended to apply to convictions for state jail felonies unless noted otherwise. Section 4(d)(2) states a defendant is not eligible for community supervision under section 4 if the defendant is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under section 15(a). See id. art. 42.12, § 4(d)(2). If we were to apply appellant’s argument that section 4 does not –14– apply to provisions under section 15, section 4(d)(2) would be a nullity. Appellant’s argument fails to give effect to each word, phrase, clause, and sentence of article 42.12. See Schunior, 2016 WL 6471981, at *4. Further, article 42.12 includes numerous general provisions in addition to section 4 that govern varying aspects of community supervision. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 9 (presentence investigations), 10 (authority to impose, modify, or revoke community supervision), 11 (basic conditions of community supervision), 12 (confinement as a condition of community supervision), 19 (fees). If we apply appellant’s argument that the general provisions of article 42.12, such as section 4, are separate from and apply independently of the specific provisions such as section 15, we would hinder the trial court in ways not contemplated by the statute. For example, if section 15 stands alone, then the trial court would lack any authority to modify the terms of community supervision because section 15 does not address modifications and section 10 would not apply. See id. art. 42.12, §§ 10, 15. Likewise, appellant’s argument would mean that the trial court cannot order a person convicted of a state jail felony to pay fees while on community supervision because section 15 does not provide for the payment of fees and section 19 addressing the payment of fees would not apply. See id. art. 42.12, §§ 15, 19. When the legislature intended a section of article 42.12 to only apply to a defendant convicted of a state jail felony, the legislature made its intention clear through the heading in section 15 (procedures relating to state jail felony community supervision) or through specific language such as that found in section 20A(a)(1): “This section applies only to a defendant who is granted community supervision . . . for an offense punishable as a state jail felony . . .” Applying the statutory interpretation method provided by the court of criminal procedure in Schunior, we conclude a conviction for a state jail felony under section 15 does not discharge a defendant’s duty to file a sworn motion pursuant to section 4(e). Having found no error in the –15– court’s denial of appellant’s request for a jury instruction under section 15, we overrule appellant’s sixth issue. CONCLUSION We affirm the trial court’s judgment. /Craig Stoddart/ CRAIG STODDART JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 160195F.U05 –16–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT KEVIN DEWAYNE JOHNSON, Appellant On Appeal from the 380th Judicial District Court, Collin County, Texas No. 05-16-00195-CR V. Trial Court Cause No. 380-81811-2015. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of February, 2017. –17– 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 7, 2008 No. 07-31158 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETER A. WILLIAMS, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Louisiana 2:07-CR-35-1 Before DAVIS, STEWART, and DENNIS, Circuit Judges. PER CURIAM:* Defendant-Appellant Peter A. Williams, Jr. challenges his conviction following a guilty verdict on three counts: two weapons counts and one drug trafficking count. For the reasons stated below we affirm Williams’ conviction. I. Following his arrest in New Orleans, Williams was indicted in February 2007 for possession of a firearm by a convicted felon, 18 U.S.C. §922(g)(1); possession with intent to distribute two grams of crack cocaine, 21 U.S.C. * 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. 07-31158 §841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. §924(c)(1). Stating the facts in a light most favorable to the verdict, the evidence revealed the following. On January 26, 2007, two New Orleans police officers, Michael Dimarco and Octavio Baldassaro, observed Williams in a high crime area in New Orleans where the officers were on duty. When Williams saw the officers, he ran. As Williams ran down an alleyway the officers saw him throw a firearm between two houses. The officers retrieved the firearm from the location where Williams had discarded it. The officers then were able to apprehend and arrest Williams. When the officers searched Williams they recovered a plastic sandwich bag containing two smaller bags which held rocks of crack cocaine and $375. No crack pipe or other items associated with personal use of narcotics was recovered. A number of other officers who were patrolling in the area arrived on the scene as the officers were chasing Williams. A drug dog was called to the scene but because the arrest had been made no search was made with the dog. The government produced expert testimony that the drug packaging sizes and quantities the officers recovered from Williams were consistent with possession with intent to distribute rather than for personal use. The government called Jeff Sandoz, a New Orleans police officer who had participated in an April 9, 2003 arrest of Williams on the same street at almost exactly the same address for possession with intent to distribute crack cocaine. The officer testified that prior to the 2003 arrest, he observed Williams discard a plastic bag containing multiple rocks of crack cocaine and that they discovered over $600 in cash on Williams’ person. The district court overruled the defendant’s objection to the admission of evidence of this prior arrest under FED. R. EVID. 404(b). The court then issued a limiting instruction directing the jury that the evidence could only be considered for the limited purpose of establishing 2  No. 07-31158 the defendant’s motive or intent to commit the crime charged and that it could not be used to establish bad character. Williams called five witnesses including his grandparents and his girlfriend who testified that Williams never went down the alley where he was allegedly arrested. To rebut this testimony the government called another New Orleans police officer, Sergeant Hans Ganthier. Sergeant Ganthier testified that he arrived at the scene two to four minutes after the officers called out their location on the radio. Upon his arrival he saw Officer Baldassaro leading a person in handcuffs out of an alley and towards a police vehicle. Sergeant Ganthier was then allowed to testify, over a defense objection, that Officer Baldassaro told him he had arrested the individual for narcotics and weapons offenses. Williams argues on appeal that his conviction should be reversed because the district court erred in (1) admitting the Rule 404(b) evidence of his prior arrest and (2) admitting the hearsay statement of Sergeant Ganthier. We will discuss these arguments in turn. II. A. Williams argues first that the district court erred in admitting evidence of his 2003 arrest for possession with intent to distribute crack cocaine. Williams contends that because he pled guilty to a lesser offense, possession of crack cocaine, evidence of the charges lodged against him when he was arrested was improper. Where relevant evidence of prior conduct may be admissible for such purposes as proof of motive, opportunity, intent, plan, absence of mistake or accident, or modus operandi, there is no requirement that the prior bad act result in conviction or even formal charges being filed. United States v. Gonzalez-Lira, 936 F.2d 184, 189 (5th Cir. 1991). We review admission of prior 3  No. 07-31158 bad acts under Rule 404(b) under what we have described as “a heightened abuse of discretion standard.” United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003). In Jackson we also made it clear that extrinsic evidence in criminal trials must be strictly relevant to the particular offense charged. Id. We employ a two-step test for analyzing Rule 404(b) evidence. Evidence is properly admitted under Rule 404(b) if (1) it is relevant to an issue other than the defendant’s character, and (2) its probative value is not substantially outweighed by its undue prejudice. United States v. Leahy, 82 F.3d 624, 636 (5th Cir. 1996); United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc). Except for the absence of any weapon, the 2003 arrest by Williams was, in practical terms, identical to the conduct for which he was arrested in 2007. The arrest was located at the same location and adjacent to the same premises where the arrest in this case occurred. It also involved the same type of illegal drug. To obtain a conviction on a charge of possession of narcotics with intent to distribute requires the government to prove knowing possession of narcotics and specific intent to distribute. We have frequently held that extrinsic evidence of past drug offenses is “more probative than prejudicial” in cases like this one where intent is a statutory element of the crime charged. United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991). This is particularly true when, as in this case, the trial judge gives a careful limiting instruction. United States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008). Williams’ primary argument is that his prior offense was so old that its probative value was substantially outweighed by its prejudicial effect. But, in United States v. San Martin, we said “the test for remoteness need not and indeed cannot be reduced to a simple rule of thumb based solely on the number of years that have lapsed between the prior crime and the present offense charged. The better test . . . is whether the prior crime is similar [enough] in nature and in its material elements to have clearly probative value with respect 4  No. 07-31158 to the intent of the accused at the time of the offense charged.” 505 F.2d 918, 922-23 (5th Cir. 1974). See also United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). We are satisfied that evidence of the prior conduct was particularly relevant to the issue of knowledge and intent and the district court did not abuse its discretion in concluding that its probative value outweighed the prejudicial effect. B. Williams argues next that the district court erred in admitting Sergeant Ganthier’s statement relating Officer Baldassaro’s report that he had arrested Williams on weapons and drug trafficking charges. The district court overruled the hearsay objection on grounds that the statement was non-hearsay because the report by Baldassaro that he had arrested the individual for narcotics and weapons charges was not for the truth of the matter asserted but rather to explain Sergeant Ganthier’s understanding of the unfolding events and to confirm that the person he observed being led out of the alley was in fact Williams. The importance of Sergeant Ganthier’s testimony rested primarily on his statement that he personally observed Officer Baldassaro leading Williams in handcuffs out of the alley and rebutting Williams witnesses’ testimony that Williams had not been in the alley. Thus, even if Baldassaro’s statement that he had arrested Williams on drug and weapons charges amounts to hearsay, it is clear to us that it was not prejudicial. In addition to the testimony of the two arresting officers, who testified about their arrest of Williams, one of the officers on the scene in addition to Sergeant Ganthier saw the arresting officers lead Williams out of the alley in handcuffs. The fact that Williams was charged with weapons and drug offenses was a matter of record from the face of the indictment. Thus, even if the 5  No. 07-31158 statement of Officer Baldassaro as to the nature of the charges on which he arrested Williams is hearsay, that testimony was harmless beyond a reasonable doubt. The conviction is AFFIRMED. 6 

195 F.2d 641 NORTHERN PAC. RY. CO.v.MACKIE et al. No. 13032. United States Court of Appeals Ninth Circuit. April 2, 1952. Dean H. Eastman, Roscoe Krier, Seattle, Wash., for appellant. Rummens, Griffin & Short and Paul R. Cressman, all of Seattle, Wash., for appellees. Before STEPHENS, HEALY and GOODRICH,* Circuit Judges. HEALY, Circuit Judge. 1 This is a suit against appellant, an interstate rail carrier, to recover damages to a carload of plywood. A trial to the court resulted in a judgment in favor of the plaintiffs, appellees here. 2 The facts were stipulated. The freight was delivered to appellant at Tacoma, Washington, about March 4, 1949, for delivery at Phoenix, Arizona. Section 2(b) of the bill of lading under which the shipment was handled provided, in part: "As a condition precedent to recovery, claims must be filed in writing with the * * * carrier * * * within nine months after delivery of the property * * *." The question for decision is whether, under the circumstances shown, recovery may be had in the absence of compliance with the condition. 3 The freight was delivered to the consignee on March 12, 1949. Upon its arrival at Phoenix, an employee of the Southern Pacific Company inspected the shipment and made a written report to the consignee and to the Southern Pacific Company. The report noted damage — extent unknown — and that the consignee would call for a final inspection. The report stated that it was not an acknowledgment of liability, and it contained a provision in substance the same as that of the bill of lading clause quoted above. 4 Neither the consignee nor the appellees called for a final inspection, and the Southern Pacific Company made no further inspection. The consignee declined to accept the plywood and appellees ultimately disposed of it to their best advantage, suffering a net loss of $1,177.71. Meanwhile, during June, 1949, appellee Mackie discussed the claim with one Taft, then chief clerk in appellant's freight claim department. During these conversations, Mackie advised Taft of his intention to file a claim, and further advised that formal claim was delayed by inability to complete a deal and determine the exact loss. Appellees, on February 2, 1950, more than nine months after delivery, filed a written claim for damages. The claim was denied as having been filed too late. 5 As the basis of its judgment in favor of the complaining parties, the trial court found that by reason of the Southern Pacific Company's inspection and advice from the plaintiffs, appellant knew immediately after the arrival of the shipment that it had damaged the same, and that it then had as much, if not more, knowledge in relation to the damages as the plaintiffs, and at all times had or was chargeable with actual knowledge of all the conditions as to the damage. 6 Section 2(b) of the bill of lading was drawn in accordance with 49 U. S.C.A. § 20(11) (the Carmack amendment), prohibiting contracts for a shorter claim period than nine months. That such a provision in a bill of lading is reasonable and valid has long been settled law. Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. The Blish case further established the proposition that the carrier cannot waive the provision. It is settled law, also, that, as regards interstate shipments, the question of the sufficiency of the notice of claim is a federal question. Georgia, F. & A. Ry. Co. v. Blish, supra; Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983. 7 A study of the federal decisions, including those of the Supreme Court, makes it clear that some sort of written notice of claim is essential. It is not enough that the carrier had actual knowledge that damage occurred, or that an oral claim for damages was made. Thus, in the leading case of Georgia, F. & A. Ry. Co. v. Blish, supra, the carrier informed the shipper that the freight was damaged. An exchange of telegrams followed, the last of which was from the shipper claiming damages for total loss. The Court held that the telegrams, taken together, satisfied the requirement of notice in writing. Speaking of the wisdom of the requirement, the Court observed that the transactions of a railroad company are multitudinous and are carried on through numerous employees of various grades. "Ordinarily," said the Court [241 U.S. 190, 36 S.Ct. 544], "the managing officers, and those responsible for the settlement and contest of claims, would be without actual knowledge of the facts of a particular transaction." 8 In St. Louis, I. M. & S. Ry. Co. v. Starbird, 243 U.S. 592, 37 S.Ct. 462, 61 L.Ed. 917, oral notice of spoilage of fruit was given to the carrier's agent in charge of the unloading dock. The Court held this insufficient as a notice of claim, stating that some kind of writing had to be given. "Such notice," said the Court, 243 U.S. at page 605, 37 S.Ct. at page 468, "puts in permanent form the evidence of an intention to claim damages, and will serve to call the attention of the carrier to the condition of the freight, and enable it to make such investigation as the facts of the case require while there is opportunity so to do." 9 In Southern Pacific Company v. Stewart, 248 U.S. 446, 39 S.Ct. 139, 63 L.Ed. 350, the carrier had full notice of the damage, and communications relative to it passed daily between the shipper and the carrier. No written claim was filed until the damage became definitely ascertainable. The Court held that the contract provision was not complied with and that a verdict for the carrier should have been directed. To similar effect, see Olson v. Chicago, B. & Q. Ry. Co., 8 Cir., 250 F. 372; Manby v. Union Pacific Ry., 8 Cir., 10 F.2d 327. 10 Appellees cite numerous state decisions, but rely mainly on the holding of the Seventh Circuit in Hopper Paper Company v. Baltimore & O. Ry. Co., 178 F.2d 179. There, an interstate shipment of paper was almost totally destroyed in a wreck. The carrier sold the salvaged goods for $100 without notifying the shipper. The court was of the opinion that actual knowledge on the part of the carrier of all the facts was sufficient notice of claim, without more. Whether, in light of the unusual circumstances of that case, the holding is reconcilable with the federal rule we need not stop to inquire. 11 There are two later federal decisions on the subject, both of which adhere to the long recognized rule requiring written notice. One of these, Insurance Company of North America v. Newtowne Manufacturing Company, 187 F.2d 675, is by the First Circuit; the other, Delphi Frosted Foods v. Illinois Central Ry. Co., 188 F.2d 343, is by the Sixth. In the Newtowne case, all the documents which would support a claim were shown to the carrier's agent as the basis of an oral claim, no written claim being filed. The court thought that the minimum requirement is a written document, however informal, indicating the intent to claim, with sufficient identification of the shipment. In the Delphi Frosted Foods case, the court distinguished the Hopper holding, supra, as being predicated on its own peculiar facts. 12 A vital purpose of the Interstate Commerce Act is to prevent preferences and discrimination by carriers as among shippers. For the carrier to disregard the condition precedent to recovery incorporated in the bill of lading here would, under the circumstances shown, open the door to evasions of the spirit and purpose of the Act in the respects mentioned. Chesapeake & Ohio Ry. Co. v. Martin, supra, 283 U.S. at page 222, 51 S.Ct. 453. 13 The judgment is reversed. Notes: * Third Circuit, sitting by special designation

133 F.Supp. 17 (1955) WESTERN NEWSPAPER UNION, a corporation, Plaintiff, v. Ned K. WOODWARD, Defendant. No. 9617. United States District Court W. D. Missouri, W. D. August 8, 1955. *18 Byron Spencer, and Joseph J. Kelly, Jr., of Spencer, Fane, Britt & Browne, Kansas City, Mo., Frederick W. P. Lorenzen of Dwight, Royall, Harris, Koegel & Caskey, New York City, for plaintiff. Paul R. Stinson, Lawrence R. Brown and M. J. Bogutski, of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendant. WHITTAKER, District Judge. This action for rescission is now before me upon defendant's motion for a summary judgment in his favor. His contention is that the averments of the complaint, and of a portion of paragraph 4 of his answer (stipulated by the parties to be taken as true for the purposes of this motion and its decision), and the recitals of the affidavits and exhibits on file, show that all claims of the plaintiff against the defendant were liquidated, satisfied and discharged as the legal effect of a general release given by plaintiff to one W. W. Brown, in New York, on August 16, 1954, and that, therefore, defendant is entitled to judgment as a matter of law. Reduced to essence, the complaint alleges that plaintiff, hereinafter called Western, a Delaware corporation, maintaining its principal office in New York City, owned 1,000 of the 1,500 issued and outstanding shares of capital stock of Midwestern Paper Company, a Missouri *19 corporation, hereinafter called Midwestern, of which the defendant, a citizen of Missouri, was President, and owned 225 shares of its capital stock; that prior to, and on, March 29, 1951, W. W. Brown was one of plaintiff's directors and its Vice President and General Manager, stationed in its New York City office, and that E. L. Walters was its Vice President and Purchasing Agent, stationed in its Omaha, Nebraska office, and that both occupied "fiduciary positions" with, and were "influential and trusted employees of", the plaintiff; that defendant, knowing all this, did, prior to March 29, 1951, secretly offer a reward of 100 shares of the capital stock of Midwestern to each of Brown and Walters for the wrongful purpose of inducing them, and did thereby induce them, "to breach their fiduciary relationship to plaintiff" and "to assist and aid defendant in obtaining from plaintiff 1,000 shares of Midwestern Paper Company stock * * * owned by plaintiff", without "disclosure of their own interest", and, by this means and "fraudulent conduct", defendant, on or about April 4, 1951, fraudulently induced plaintiff "to sell to defendant said 1,000 shares of capital stock of Midwestern Paper Company at $125 per share at a time when the value of said stock was in excess of $300 per share"; that defendant, upon obtaining the certificates for the shares, caused plaintiff's name, as owner of the shares, to be stricken from the stock books and records of Midwestern, at its "offices in Kansas City, Missouri", and caused himself or his nominees or transferees to be recorded on said record as the owner or owners of said shares, thus depriving plaintiff of all its rights as the holder of 1,000 shares of the capital stock of Midwestern. That plaintiff did not learn of the fraud until June of 1954, when it discovered that about April 12, 1951, defendant, in accordance with his earlier promise to Brown and Walters, transferred to Brown 100 shares of the capital stock of Midwestern for the purported consideration of Brown's promissory note in the amount of $12,500 (no part of which had been paid to the time of the discovery of the fraud in June, 1954, though, meanwhile, Brown had received approximately $18,000 in dividends on said 100 shares), and transferred to Walters 100 shares of the capital stock of Midwestern "for an actual consideration, if any, unknown to plaintiff", and that Walters had, to the time of the discovery of the fraud in June, 1954, received approximately $18,000 in dividends on said 100 shares. That on August 16, 1954 "plaintiff demanded and received from W. W. Brown the 100 shares of capital stock of Midwestern Paper Company which had been transferred to him by the defendant as aforesaid", and, subsequently, (on September 2, 1954)[1] plaintiff notified defendant that, because of the fraud, "it rescinded said sale * * * and demanded defendant return to plaintiff 900 shares of the capital stock of said company, together with all dividends received thereon from April 4, 1951, to date, an amount unknown to plaintiff, but at least the sum of $162,000, less the purchase price of $112,500", but defendant failed to comply with the demand; that defendant is still the record holder of 900 shares of the capital stock of Midwestern; that plaintiff has no adequate remedy at law and that defendant should not, in good conscience, be permitted to profit by his perversion of plaintiff's fiduciaries, but should be compelled to return to plaintiff 900 shares of the capital stock of Midwestern and all dividends received thereon since the date of the fraudulent sale, less $112,500, the amount paid to plaintiff by defendant for the stock, and the complaint concludes with a prayer accordingly. It is stipulated by counsel that paragraphs numbered 1, 2, 3, 6 and 7, of the complaint are true, and that all other parts of the complaint shall be assumed to be true for the purposes of this motion *20 and its decision, and that, for the purposes of this motion and its decision, the following allegations of paragraph 4 of defendant's answer shall be assumed to be true, to-wit: "That in August, 1954, a dispute arose between plaintiff and the said Brown * * *, that said dispute was settled by an exchange of releases between Brown and the plaintiff, and the transfer to plaintiff by Brown of said 100 shares of stock which had been transferred to Brown; that on receipt of said certificate the plaintiff sent the same to Midwestern Paper Company and a new certificate was issued and sent to plaintiff, accepted by plaintiff, and since that time the plaintiff has received dividends thereon; * * * that in addition, the plaintiff and Brown exchanged documents in the city, and county and state of New York, copies of which are hereto attached, marked Exhibits A, B and C, and made a part of this answer. * * *" Exhibit A is an agreement between Brown and plaintiff, made and delivered in New York, and, omitting signatures, reads as follows: "Memorandum of agreement between William W. Brown (hereinafter called "Brown") and Western Newspaper Union (hereinafter called "Western"). "Whereas, divers disputes have arisen between the parties hereto and they have determined to settle all accountings and disagreements between them as hereinafter provided, "Now, therefore, in consideration of the premises and of the provisions hereinafter contained, the parties hereto do hereby agree as follows: "1. Brown shall deliver to Western 100 shares of the capital stock of Midwestern Paper Company (which Brown represents and warrants is all the stock he or any member of his family owns or ever owned), duly endorsed in blank or accompanied by duly executed stock power for transfer of the same with the name of Western. This delivery shall be made without any cost or expense in any way to Western at the office of Dwight, Royall, Harris, Koegel & Caskey, on or before August 27, 1954. "2. Western agrees to accept said 100 shares of capital stock of Midwestern Paper Company in full satisfaction of all its claims against Brown to the date hereof. "3. Brown acknowledges that any claim or claims he has against Western have been offset by Western's claims against him. "4. The parties hereto agree to enter into mutual general releases, one from the other. "In witness whereof, this memorandum has been duly signed and sealed this 16th day of August, 1954." Exhibits B and C are general releases of all claims made, executed and delivered by plaintiff to Brown, and by Brown to plaintiff, respectively, in New York City, on August 16, 1954. The only express reservation in the releases was "that nothing contained herein shall release said party from its obligations under an agreement between said parties of even date herewith". There are two affidavits before me, one by W. W. Brown (filed by defendant), and one by Farwell W. Perry (filed by plaintiff). Brown's affidavit recites that he became a director of plaintiff in 1938, and that he became its Vice President, Treasurer and General Manager in 1945; that defendant, for many years, had been offering to purchase plaintiff's stock in Midwestern, and that in 1951 he renewed his offer, to Brown, saying he would sell his stock for $150 a share or purchase plaintiff's stock for $125 per share, and that if plaintiff did not sell to him at that price he proposed to leave Midwestern and set up a new competitive business. *21 Brown communicated this offer to plaintiff's president, Perry, who called a meeting of the directors of the plaintiff in New York City. At this meeting, Brown's affidavit says, "I repeated to the directors what I had said to Mr. Perry, and the directors decided to accept Woodward's offer. All of the directors, including myself, voted in the affirmative." He attaches a copy of the directors' resolution. It is dated March 29, 1951, and, omitting recitals of plaintiff's ownership of the stock, and a description of the several certificates evidencing the same, reads as follows: "And whereas, N. K. Woodward, of 6810 Penn Street, in Kansas City, Missouri, has offered to purchase all of said 1,000 shares for the sum of $125,000, "Now, therefore, be it resolved that this corporation accept the offer of said N. K. Woodward, and sell to him said 1,000 shares of capital stock of Midwestern Paper Company for the sum of $125,000, and that W. W. Brown, as Executive Vice President of this corporation, be, and he hereby is, authorized and directed to deliver or cause the delivery of said shares to Mr. Woodward, pursuant to his instruction, against receipt of payment for the account of this corporation of the sum of $125,000." Thereupon, Brown, in New York, telephoned Woodward, in Kansas City, and told him of the directors' acceptance of his offer. The stock certificates, endorsed in form for transfer, were then sent to the First National Bank in Kansas City, with instructions to deliver them to Woodward against receipt of $125,000 to be remitted to plaintiff. The certificates were delivered and the money paid at the bank in Kansas City; that all representations made by Brown to plaintiff's president and its Board of Directors were made in New York City. He continues, "I afterwards acquired from Woodward 100 shares of Midwestern Paper Company's stock" and "shortly after the closing of this transaction, Walters received from Woodward 100 shares of the capital stock of Midwestern Paper Company"; that when affiant returned from a trip to Houston, Texas, on June 9, 1954, plaintiff's president, Perry, accused Brown "of stealing between $150,000 and $250,000 of Western Newspaper Union's money", and requested him to sign, and he did sign, a resignation. His affidavit recites further that he learned that while he was away a file in his office was opened "and it was discovered that I had acquired the 100 shares of the stock of Midwestern Paper Company", and Perry advised him that his "accounts were being audited and that certain shortages had been discovered". After the audits were completed, Brown and his lawyer met with plaintiff's president and its lawyer in New York City on August 16, 1951, where, Brown says, "the various charges against me were discussed." Brown countered with claims against plaintiff for (1) breach of his contract of employment for the year ending June 30, 1954, (2) a bonus for the year ending June 30, 1954, (3) severance pay of one year's salary, and (4) a possible action for slander against Perry, and, the affidavit says, "the result was that I agreed to endorse and deliver to the Western Newspaper Union my 100 shares of stock, free and clear, and that we would exchange general releases, which we did", and that the releases were executed and delivered in New York City on August 16, 1951, and that Brown afterwards mailed the certificate for 100 shares of Midwestern stock from Cleveland, Ohio, to plaintiff's attorney in New York. Perry's affidavit recites that it came to his attention in June, 1954, that Brown, since 1946, while serving as a director and officer of plaintiff, had appropriated "substantial sums" belonging to plaintiff, and a complete investigation was ordered and conducted by a firm of accountants and a detective agency, which disclosed defalcations by Brown, and as a result Brown was afforded an opportunity to resign, and did so on June 9, 1954. Subsequently, plaintiff made claim against Brown for (1) commissions "secretly received" *22 by Brown from one Schwartz, from 1946 until June of 1952, (2) return of monies obtained through "padded" expense accounts from January 1, 1946 to June 1, 1954 (the total dollar amount of the secret commissions and padded expense accounts "was unknown and uncertain"), and (3) "It appeared that Brown had participated in the sale of the Midwestern Paper Company stock to Woodward as alleged in the complaint herein". Against these claims Brown countered with claims against plaintiff for (1) a bonus, in the amount of $30,000, for the year ending June 30, 1954, (2) severance pay of a year's salary, and (3) compensation for "improper discharge". On August 16, 1954, a conference was held between plaintiff's president and its attorney, and Brown and his attorney, in New York City, at which plaintiff agreed "to settle on the basis of accepting from Mr. Brown the 100 shares of stock of Midwestern Paper Company that he had acquired from Mr. Woodward without paying any consideration therefor", and to "to settle all claims Newspaper Union had against him (Brown) arising out of his various breaches of fiduciary duty owed to Newspaper Union and * * * all the claims which Brown had against Newspaper Union", and "it was made clear to Brown and his attorney in the course of the * * conference that Newspaper Union intended forthwith to proceed against Woodward to get back the Midwestern Paper Company stock and, likewise, to proceed against Walters for his breach of duty to Newspaper Union", and, agreement accordingly being reached, Exhibits A, B and C were prepared, signed and delivered in New York City. Affiant affirms (very probably in violation of the parol evidence rule) that he "did not intend the settlement to involve Newspaper Union's right to recover from Woodward the Midwestern Paper Company stock which he had obtained as alleged in the complaint", and that "the release given to Brown in August of 1954 was not intended by Newspaper Union, and could not have been intended by any other party to that settlement, to release any claim against Woodward. There was never any suggestion by anyone that such would be its effect." The affidavit continues, saying that Brown, as Executive Vice President and director of plaintiff, "was the party on behalf of" plaintiff "who had contact with Woodward in 1951", and that Brown represented that if the sale was not made to Woodward on his terms he would leave Midwestern's employ and take with him most of Midwestern's business; that Woodward's offer of $125 per share "was so much less than the estimated value" that affiant "did not want to accept Woodward's offer even with Brown's representation", and, before recommending acceptance to plaintiff's Board of Directors, he "checked with Vice President * * * Walters * * * (by telephone) and he made representations similar to those made by Brown", and on the basis of the representations made by both Brown and Walters, affiant recommended, and so did Brown, to plaintiff's Board of Directors, at their meeting of March 29, 1951, acceptance of Woodward's offer of $125 per share for plaintiff's 1,000 shares of stock in Midwestern, and the directors, on the basis of those recommendations, and in ignorance of the fact that Brown and Walters "had been promised a bribe by Woodward", adopted the above-quoted resolution authorizing the sale. Affiant states that thereafter, on March 30, 1951, the certificates evidencing the stock were sent to the First National Bank of Kansas City, Missouri, under covering letter of that date (copy of which is attached as an exhibit to the affidavit), instructing the bank to deliver them to Mr. Woodward against his payment of $125,000 for the account of plaintiff, and that the money was paid by defendant to said bank for plaintiff's credit, and the bank delivered the certificates to defendant; that on September 2, 1954, plaintiff made formal demand in writing upon defendant for return of the 1,000 shares of stock, which demand was refused. *23 These are the facts upon this submission, and the ultimate question for decision is whether the release of Brown also released defendant. Defendant claims that this submission factually and legally shows that he, Brown and Walters, as co-conspirators or joint tortfeasors, committed a fraud or tort upon plaintiff in the state of New York, which is governed by its laws, and that plaintiff was entitled to but one satisfaction, and when plaintiff executed and delivered a general release to joint tortfeasor Brown, in the state of New York, on August 16, 1954, without expressly reserving its claim against defendant, it acknowledged full satisfaction of its claims in respect of the transaction, and, under the New York law, which governs the release — because made there —, the effect was to release and discharge all claims against defendant, and that, therefore, he is entitled to summary judgment as a matter of law. On the other hand, plaintiff contends that the fraudulent wrong, though jointly perpetrated by defendant, Brown and Walters, was finally committed upon it in Missouri, where legal situs of the stock existed, and where it parted with physical possession of the stock certificates, and that, therefore, its remedy or election of remedies in respect of the transaction, are governed by the laws of Missouri, and that the release, though made in New York, is governed by the laws of the state that govern the claims thereby released (in this case Missouri), and that Missouri does not recognize the "joint tortfeasor release bar rule" as applied in New York, and for this reason the release in no way bars this action; and, moreover, even if the tort and the release are held to be governed by the laws of New York, the release is not a bar to this action in equity to rescind, because the New York joint tortfeasor release bar rule applies only to actions at law for unliquidated damages. Under the law of Missouri, the release of one of several joint tortfeasors does not discharge other joint tortfeasors unless the release acknowledges "full satisfaction"[2], and, because of that fact, defendant concedes that if, as plaintiff contends, the release is governed by the laws of Missouri, and not of New York, its motion for a summary judgment would be properly denied. The first question then is: What law governs, first, the tort, and, second the contract of release? Inasmuch as the claimed bar of this action rests entirely upon the release, it would not be necessary presently to determine what law governs the tort were it not for the fact that the cases hold that a contract of release, absent, as here, express designation of other laws to control it, is presumed to have been made in contemplation of, and, hence, to be governed by, the laws of the state that created or gave rise to the right thereby released[3]," but because of that fact it is necessary to determine what law governs the tort, and so doing will also determine the law that governs the contract of release. It is the general law, and the law of conflicts in Missouri, and the parties agree, that in tort actions governed by state law, the law of the state in which the injury or loss was suffered, and which, hence, created the right, governs the tort, and that, in cases of fraudulent misrepresentation, it is not the law of the state where the misrepresentations were made, but, rather, the law of the state where the misrepresentations were intended to, and did, operate to cause the *24 injury or loss that control the tort[4], but the parties do not agree upon the state in which the claimed fraudulent conspiracy was intended to, and did, finally operate to cause plaintiff to suffer injury and loss. It seems plain, as pointed out by defendant, that the claim is that defendant conspired with and bribed trusted officers of plaintiff, Brown and Walters, to breach their fiduciary duties to plaintiff by fraudulently inducing plaintiff's president and Board of Directors, in New York, to accept defendant's offer of $125 per share for stock worth $300 per share, and that whatever misrepresentations were made by Brown to plaintiff's president and its Board of Directors were intended to be, and in fact were, made to them in New York and there operated to fraudulently induce acceptance of defendant's offer to plaintiff's injury, and, likewise, the representations, confirmatory of Brown's earlier representations, made by Walters to plaintiff's president, Perry, in the latter's telephone call from New York to the former at Omaha, Nebraska, are, in law, to be regarded as made in New York,[5] where they, like Brown's representations, were designed to, and did, operate upon plaintiff's president and Board of Directors to fraudulently induce their acceptance of defendant's offer, and that it was that fraudulent conduct, operating upon plaintiff's president and Board of Directors in New York that there induced acceptance of defendant's fraudulent offer — and that is what caused plaintiff's injury, and it occurred at that time and place. Plaintiff, in support of its contention to the contrary, points out that Midwestern is a Missouri corporation and that the certificates for the stock, though physically in New York at the time of the fraudulently induced acceptance, are but evidence of the shares, and not the shares themselves, and that legal situs of the shares, (except for certain purposes, such as excise taxation, not material here) is in the state of incorporation of the issuing corporation[6], and that, therefore, the stock (as distinguished from the certificates evidencing the same) was actually in Missouri at the time of the fraudulently induced acceptance of the offer, and that even the certificates evidencing the stock, though endorsed for transfer in New York, remained in its possession, through its agent, the bank in Kansas City, until actually delivered by that agent, in Missouri, to defendant against his payment of the accepted price, and, therefore, plaintiff argues that not only was the property in Missouri, but the last act that resulted in the loss, namely the delivery of the certificates, occurred in Missouri, and hence, its injury and loss was suffered in Missouri and the tort is to be governed by its laws. I believe that the question here is not determined by the legal situs of the stock, nor by the place of actual delivery of the certificates evidencing the stock, but, rather, depends upon the place where *25 the fraud was designed to, and did actually, operate to induce the fraudulent contract of sale — which is what injured the plaintiff —, and that happened in New York, and I think it follows, in accord with the cases cited, that the tort was committed, and plaintiff's injury occurred, in the state of New York, and its right or rights of action, and all defenses thereto, were created in, and are governed by, the laws of that state. Because, as heretofore stated, the cases[7] hold that absent, as here, any express provision in the contract to the contrary, it is presumed that parties to a contract of release contracted in contemplation of the law that created and governed the claim thereby released, it follows from the foregoing determination — that the tort was committed under, and is governed by, the laws of New York —, that the validity, interpretation and effect of the contract of release is likewise governed by that law. This brings us to the question of whether plaintiff's release of Brown, in the circumstances here, operated, under the New York law, to release defendant also, as contended by defendant. There appears to be no doubt that it is the law of New York that one injured or damaged by a tort is entitled to but one satisfaction, and that, absent express reservation to the contrary, a release is presumed to have liquidated the amount of the claim at the amount stated in the release, and that when a general release, without express reservation of rights against others, is given to one of several joint tortfeasors on a legal claim, or action at law, for an unliquidated sum of money, the legal effect is to work a full satisfaction of the claim, and, hence, a discharge of all the joint tortfeasors.[8] Nor does there appear to be any doubt, under the New York decisions, that where, as here, several persons conspire, or join a conspiracy, to defraud or injure another, and the conspired result is achieved, the co-conspirators are joint tortfeasors, regardless of degree of participation, and are jointly and severally liable to the injured or damaged person.[9] But, in New York, as generally held elsewhere, when a person has been induced by fraud to contract away his property for an inadequate consideration, he has an election of remedies. One, he may elect to affirm the fraudulent transaction and sue one or more of the joint tortfeasors for his damages[10], and if he makes this election and then settles his legal claim, or action at law, for unliquidated money damages, with one of the joint fraudfeasors, he has thus liquidated his claim at the amount stated in the release and has accepted that amount, which works a full satisfaction and a discharge of all the joint fraudfeasors.[11] Two, instead, he may elect to disaffirm the fraudulent transaction and to make claim, or sue in equity, for rescission — to follow his property into the hands of the fraudfeasors or those who took with knowledge of the fraud, and to get it back —, and if he makes this election his claim, or equitable action for rescission, is not joint but is several, and he is limited in his recovery of property from each of the fraudfeasors to that portion of his property that they severally got, and a release of one of the fraudfeasors, after such election to rescind, and upon, or in consideration of, his return of the portion of the property he fraudulently received, obviously does *26 not work a full satisfaction of plaintiff's claim nor a release of other joint fraudfeasors, but, rather, they remain liable to, and only to, an action of rescission in equity to compel them, severally, to return the portions of the property they fraudulently, severally, received.[12] It seems to me that the facts here show that plaintiff, upon discovery of the fraud, elected, not to affirm the sale and to make claim, or to sue, at law for unliquidated damages, but, rather, to rescind the fraudulent sale and to seek return of its property. This seems clear from the following facts: (1) Upon discovery of the fraud plaintiff made claim upon Brown for the return to it of the 100 shares of its capital stock in Midwestern which he had received in, or out of, the fraudulent stock sale, (2) In the "Memorandum of Agreement", of August 16, 1954, it was stipulated and represented that "Brown shall deliver to Western 100 shares of the capital stock of Midwestern Paper Company (which Brown represents and warrants is all the stock he or any member of his family owns or ever owned) * * *" in Midwestern, (3) Plaintiff told Brown, in their discussions of the settlement with him, on August 16, 1954, that it intended to pursue defendant to recover back the portion of its property which he had severally received and retained out of the fraudulent stock sale, and (4) Plaintiff, very soon thereafter, actually did so pursue defendant, by letter of September 2, 1954, and by the means of this suit, for the return to it by defendant of all of its capital stock in Midwestern which he had received in the fraudulent stock sale. Surely, this amounted to an election to disaffirm the fraudulent sale and to pursue the remedy of rescission. And under that election to rescind and the law, plaintiff's only claim against Brown, in respect of the fraudulent stock sale, was for the return of the 100 shares he had received in, or out of, the fraudulent stock sale, and when Brown returned, or contracted to return, as he did, that 100 shares to plaintiff, he had discharged his full and only liability to plaintiff, in respect of the fraudulently induced stock sale, and that was the liability acquitted by the release. Though the "Memorandum of Agreement" of August 16, 1954, said that "Western agrees to accept said 100 shares of capital stock of Midwestern Paper Company in full satisfaction of all its claims against Brown to the date hereof", there were then no other open claims between Brown and plaintiff, for the other claims and cross claims between them (all foreign to the fraudulently induced stock sale) had been agreed to be mutually offset, as the "Memorandum of Agreement" continues, saying, "Brown acknowledges that any claim or claims he has against Western have been offset by Western's claims against him". Plaintiff's claim against Brown for rescission, having been satisfied by his agreement to return the 100 shares he had received, and the foreign claims and cross claims between the parties having been satisfied by being mutually offset, plaintiff and Brown had composed and satisfied all claims existing between them, and the "Memorandum of Agreement" continued, saying, "The parties hereto agree to enter into mutual general releases one from the other", and they did so, later that day; but note that the release from plaintiff to Brown did not spend Brown's covenant, contained in the "Memorandum of Agreement", to return to plaintiff the 100 shares of Midwestern stock he had received, nor his representation *27 and warranty therein that such was all of the stock of Midwestern he held, as the release contains an express reservation "that nothing contained herein shall release said party from his obligations under an agreement between said parties of even date herewith". This does not show an election by plaintiff to affirm the fraudulent stock sale, nor a claim, nor satisfaction of any claim, by plaintiff, for unliquidated damages, but, to the contrary, shows an election by plaintiff to disaffirm the fraudulent stock sale and to pursue the remedy of rescission, and shows a satisfaction and release of plaintiff's rescission claim against Brown — which was not joint, but several — for the return of the 100 shares of its stock he had received in or from the fraudulently induced stock sale. Upon these facts and the law, I conclude that plaintiff, upon discovery of the fraud, elected to rescind the fraudulent stock sale, and that its claims for equitable rescission were not joint (inasmuch as the fraudfeasors did not jointly receive and retain its 1,000 shares of Midwestern stock) but were several (against each, severally, for the amount of its stock they, respectively, received), and that the release given by plaintiff to Brown discharged Brown's several equitable obligation to return the 100 shares of Midwestern stock which he had received in, or as a result of, the fraudulent sale (as he had contracted to return them), and released all the other independent claims which plaintiff had against Brown, but it did not release or discharge defendant or Walters from their several equitable rescission obligations to return to plaintiff that portion of plaintiff's property which they severally received, and still hold lis pendens or otherwise, as a result of, and with the knowledge of, the fraudulent sale. This conclusion renders unnecessary any discussion, further than encompassed above, of plaintiff's contention that the New York "joint tortfeasor release bar rule" is applicable only to actions at law for unliquidated damages and would not, in any event, apply in bar of this action in equity for rescission, though I may say that does appear to be the law of New York.[13] Defendant makes the further claim that plaintiff, by accepting conveyance to it from Brown of the 100 shares of Midwestern stock, in, as he argues, settlement of its claim against Brown, knowing that Brown had received the stock from defendant, thus recognized defendant's title to the stock and his right to transfer it to Brown, and, hence, ratified the fraudulent sale to defendant. But what I have said above shows that defendant's premise is baseless — that plaintiff did not take the 100 shares of stock from Brown in payment of damages, but in rescission, so far as in Brown's possession and power, of the fraudulent stock sale, and it follows, in my opinion, that ratification of the fraudulent stock sale is not shown. It follows from all the foregoing that defendant's motion for a summary judgment in its favor is not well taken and must be denied. It is, therefore, ordered and adjudged by the court that defendant's motion for a summary judgment be, and it is hereby, denied. NOTES [1] Page 8 of Perry's affidavit. [2] Section 537.060 RSMo 1949, V.A.M.S.; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825; Farrell v. Kingshighway Bridge Co., Mo.App., 117 S.W.2d 693; Roberts v. Atlas Life Ins. Co., 236 Mo.App. 1162, 163 S.W.2d 369; Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40, and the numerous cases therein cited. [3] Preine v. Freeman, D.C., 112 F.Supp. 257; Smith v. Atchison, T. S. F. Ry. Co., 8 Cir., 194 F. 79; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606. [4] Electric Theatre Co. v. Twentieth Century Fox Film Corp., D.C.W.D.Mo., 113 F.Supp. 937; Restatement of the Conflict of Law, Section 377, p. 457; 2 Beal, The Conflict of Laws (1935), Section 377.2, p. 1287; Iasigi v. Brown, 17 How. 182, 58 U.S. 23, 15 L.Ed. 208; Smyth Sales v. Petroleum Heat & Power Co., 3 Cir., 128 F.2d 697; James-Dickenson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; Commonwealth Fuel Co. v. McNeil, 103 Conn. 390, 130 A. 794; Bradbury v. Central Vt., 299 Mass. 230, 12 N.E.2d 732; Hughes Provision Co. v. LaMear Poultry & Egg Co., Mo.App., 242 S.W.2d 285. [5] Restatement of Conflict of Laws, Section 326, Comment "C"; Corbin on Contracts, Section 79, p. 252; Cardon v. Hampton, 21 Ala.App. 438, 109 So. 176; Dallas Waste Mills v. Early-Foster Co., Tex.Civ.App., 218 S.W. 515; Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 P. 855, 65 L.R.A. 90, and Cuero Cotton, Oil & Mfg. Co. v. Feeders Supply Co., Tex.Civ.App., 203 S.W. 79. [6] Richardson v. Busch, 198 Mo. 174, 95 S.W. 894; State ex rel. N. American Co. v. Koerner, 357 Mo. 908, 211 S.W.2d 698, and Armour Bros. Banking Co. v. Smith, 113 Mo. 12, 20 S.W. 690. [7] See note 3. [8] Milks v. McIver, 264 N.Y. 267, 190 N.E. 487; Rushford v. United States, D.C. N.Y., 92 F.Supp. 874; Rector, Church Wardens and Vestrymen of St. James Church v. City of New York, 261 App. Div. 614, 26 N.Y.S.2d 762; In re Allen's Estate, 178 Misc. 855, 36 N.Y.S.2d 630, and the numerous cases therein cited. [9] National Drama Corporation v. Burns, Sup., 183 N.Y.S. 739, 741; Lonsdale v. Speyer, 249 App.Div. 133, 291 N.Y.S. 495, 504, 505; Burgess Bros. Co., Inc., v. Stewart, 112 Misc. 347, 184 N.Y.S. 199, 200. [10] Merry Realty Co. v. Shamokin & Hollis Real Estate Co., 230 N.Y. 316, 130 N.E. 306; See generally 17 C.J.S., Contracts, § 167, p. 523. [11] Cases cited in Note 8. [12] Pollak v. Staunton, Cal.App., 284 P. 226, affirmed, 210 Cal. 656, 293 P. 26; McClure v. Law, 161 N.Y. 78, 55 N.E. 388; Veazie v. Williams, 8 How. 134, 49 U.S. 134, 12 L.Ed. 1018; Flannery v. Flannery Bolt Co., 3 Cir., 108 F.2d 531; Meyer v. John W. Corley Pub. & Promotion Co., 179 Mo.App. 695, 162 S.W. 273; Euneau v. Rieger, 105 Mo. 659, 16 S.W. 854; Holt v. Joseph F. Dickmann Real Est. Co., Mo.App., 140 S.W.2d 59; In re Dant & Dant of Kentucky, D.C.W.D.Ky., 39 F.Supp. 753, affirmed, Kessler v. Jefferson Storage Co., 6 Cir., 125 F.2d 108, and the numerous cases there cited. [13] Milks v. McIver, 264 N.Y. 267, 190 N.E. 487; Sec. 233 and 235 of the New York Debtor and Creditor Law; Gaylor v. Burroughs, 248 App.Div. 915, 290 N.Y.S. 679, affirmed, 273 N.Y. 606, 7 N.E. 2d 716.

310 F.2d 462 The FERBER COMPANY et al., Plaintiffs, Appellants,v.Theodore J. ONDRICK et al., Defendants, Appellees. No. 6015. United States Court of Appeals First Circuit. Nov. 28, 1962. Gerson Askinas, Springfield, Mass., for appellants. John H. Goewey, Worcester, Mass., and William T. Conlan, Boston, Mass., with whom Bowditch, Gowetz & Lane, Worcester, Mass., and Ely, Bartlett, Brown & Proctor, Boston, Mass., were on brief, for appellees. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit judges. ALDRICH, Circuit Judge. 1 Ferber, short for two New Jersey corporations, joint venturers, was the prime contractor engaged in the construction of a housing project for a government Air Force base in Chicopee, Massachusetts. In August, 1958 Ferber entered into a subcontract with two other joint venturers, Ondrick, a citizen of Massachusetts, and Wilbraham Construction Corporation, a Massachusetts corporation, to do certain clearing, excavation, filling and drainage. It appeared that Ondrick and Wilbraham were equipped to do different parts of this work and desired separate contracts, but Ferber required a single agreement. After the work had been completed and $46,508 of the contract price remained to be paid, Wilbraham went into bankruptcy. Ferber thereupon filed a statutory interpleader (28 U.S.C. 1335) in the Massachusetts district court against Ondrick, Wilbraham and their joint surety, and Wilbraham's trustee in bankruptcy, naming also all alleged suppliers of labor and materials on their contract as to whom it had notice of claim. The complaint further alleged that Ondrick claimed as an individual, over and above the contract amount, $19,744 for labor, materials and the use of equipment.1 Ferber paid the sum of $46,508 into court, alleged that this was the total amount due to all defendants, and prayed that the defendants be required to interplead and settle their rights between themselves and that Ferber 'be discharged from all liabilities in the premises. * * *' Ondrick filed an answer in which he admitted making a claim for $19,744 'not as part of the joint venture,' and by counterclaim demanded its payment. Ferber filed a motion to dismiss the counterclaim, which motion was denied. Following trial without jury the court found for Ondrick on his claim in the amount of $7,121, which it subsequently increased to $10,711. The court refused Ferber's request for an allowance for counsel fees out of the fund, a so-called interpleader fee. Ferber appeals. 2 The first question is the correctness of the court's refusal to dismiss the counterclaim on the ground that the parties had provided in the subcontract for arbitration. Assuming that Ondrick's claim fell within the contract as extra work and was therefore arbitrable, we nevertheless think it clear that Ferber waived this right. Ferber could have brought a bill of strict interpleader solely with relation to the undisputed amount. But having elected, in addition, to raise a disputed claim, see F.R.Civ.P. Rule 22; Standard Surety & Casualty Co. v. Baker, 8 Cir., 1939, 105 F.2d 578, it must take the consequences. It could not ask the court to declare that it owed only so much to Ondrick, and that the court should discharge it from his claim for extra work, and then, when Ondrick resisted such a declaration, demand that Ondrick arbitrate. 3 Next, Ferber asserts that a series of so-called releases executed from time to time by Ondrick in connection with progress payments bars recovery. These documents do not use the word 'release' in the title, nor is it in the body of the instrument except with respect to liens upon the premises. Ondrick is not presently asserting liens. The documents were prepared by Ferber and are to be construed against it. We agree with the court in disregarding them. 4 We come, therefore, to the merits. The principal contract called for the erection of ninety-six structures, all of which were to have concerte cellars, with drainage fill under the concrete. By the end of September 1958 some of the foundations were ready for the fill. The principal contract required the fill to be placed and, in addition, to be 'compacted.' Ferber took the position that all of this work was included in the subcontract and demanded that Ondrick do it. Ondrick admitted responsibility for supplying the gravel at the locus, but denied any further obligation. On the evidence most favorable to Ondrick, one Cristello, Ferber's superintendent, instructed Ondrick to place and compact the gravel, and stated that if this did not prove to be within the subcontract Ferber would pay extra for it. Ondrick thereafter did the filling and compacting for all ninety-six units, and presented a bill in the amount of $19,744. 5 The court found that installing the fill was not within the subcontract. This was a question of interpretation, and it is sufficient to say that we find the district court's reasoning persuasive.2 The contract provided further, under the subtitle 'Change Orders Additions and Deductions' that 'alterations' should not be effected except by written order of Ferber. No written order was given for this extra work. The court, however, found that Cristello had sufficient authority to alter the contract. 6 It is, of course, rudimentary that a contractual requireement that agreements be in writing may be waived. Lord Constr. Co. v. United States ex rel. W. E. Sexton Co., 3 Cir., 1928, 28 F.2d 340; Zarthar v. Saliba, 1933, 282 Mass. 558, 185 N.E. 367. The fact, however, that Cristello may have possessed authority to waive a writing, and substantially to enlarge the agreement, is of little help to Ondrick so far as the total amount of the recovery here involved is concerned. On his own testimony the top officials of Ferber informed Ondrick at some point that this work was within his original contract and must be done thereunder. Accorading to Ferber's evidence this took place in December 1958. Ondrick testified that he was entirely unable to place the date, but he admitted that this work lasted until December 1959 and that many individual unit jobs were done by him after Ferber's interview, as result of pressure put on him by the top Ferber officials acting through the bonding company, although he constantly maintained that he was not required to do it. It cannot be said that Cristello's promise to pay extra if this was in fact extra work remained in effect for jobs undertaken after Ferber's repudiation thereof. The court made no finding which would enable us to separate the amount, or value, of the work done before Ferber's repudiation and afterwards. 7 The court, however, made an alternative finding or ruling with which we agree, namely, that Ondrick was entitled to recover on a quantum meruit for unjust enrichment. Normally a party doing work without a contract for another party who has stated in advance that he is not going to pay for it can have no claim. The facts, however, in the case at bar are peculiar. Ferber was obligated under its contract with the government to complete the units, including the placing and compacting of the drainage fill in question. Evidence which we need not detail compels the conclusion that if Ondrick and Wilbraham were not obligated to do this work, no one else was. In other words, if Ondrick had refused to do it, Ferber would have been obliged to obtain someone else. It loses nothing by paying Ondrick the fair value of the work. Where Ferber insisted that Ondrick do the work, and by its own admission sought to create serious difficulties with Ondrick's bonding company, we think it would be highly inequitable to treat Ondrick as a volunteer not entitled to reimbursement. See Todd Dry Dock Engineering & Repair Corp. v. City of New York, 2 Cir., 1931, 54 F.2d 490, 491; cf. Borough Constr. Co. v. City of New York, 1910, 200 N.Y. 149, 93 N.E. 480. Even though Ferber may not have believed that it was going to have to pay a greater amount, it requested the work, there was no suggestion that Ondrick intended it as a gratuity, and the law will imply an agreement to pay the fair value of what was outside the contract. Molloy v. Liebe, P.C., 1910, 102 L.T.R. (n.s.) 616; cf. Vickery v. Ritchie, 1909, 202 Mass. 247, 88 N.E. 835, 26 L.R.A.,N.S., 810. 8 We think, however, that the court may have erred in its supplemental cpinion increasing the amount of the payment. In its inital opinion the court found that 'Ondrick's records were shown to be incomplete and unreliable.3 I shall, therefore, accept the cost estimate of the plaintiffs (Ferber) which is $5,934, to which are to be added 10 per cent for profit and 10 per cent for overhead4 * * * (a total of) $7,121.' Thereafter, in a supplemental opinion, the court stated that in its previous opinion it had neglected to consider all of the testimony of Ferber's 'chief estimator,' and that there should have been added 'the plaintiff's estimate of the price for compacting $2,992,' and that the judgment should be corrected accordingly. It then entered judgment in favor of Ondrick for $10,711. 9 In point of fact there was no specific testimony that plaintiff's estimate for compacting was $2,993. Ferber's estimator, one Hebbel, did testify that the separate cost of compacting was 'about 80 cents a yard,' and the court apparently multiplied this to obtain a specific amount. However, we think Hebbel's testimony is somewhat ambiguous, and that it does not clearly show that the 'about 80 cents' was not a part of the $5,934 figure rather than an addition to it. Ferber's other witness was not at all ambiguous, but testified specifically that plaintiff's estimate of $5,934 included the compacting. 10 Upon receipt of the supplemental opinion Ferber addressed what we construe to be a motion for further hearing with respect to the court's supplemental opinion. To this it attached a paper which it alleged to be the original estimate itself. This paper shows clearly that compacting was included in the $5,934 total. Upon receipt of this the court conducted a further proceeding. However, as we read the record, Ferber's claim in this regard was not specifically considered, but rather the discussion took the form of whether the case could be settled. 11 The court was not obligated to accept Ferber's estimate. However, where it made findings specifically relying thereon, it was bound to construe it accurately. We feel that if the document attached to Ferber's motion was the original extimate-- which is not, of course, for us to say-- the court should have recognized the ambiguity in the testimony and withdrawn its supplemental opinion. Possibly it should have regarded Hebbel's testimony as ambiguous even standing by itself, particularly in the light of the testimony of the other witness which manifestly referred to the same estimate, and should not have disregarded the latter. We believe this matter deserves further consideration by the district court. 12 Finally, Ferber complains that the court erred in denying it an interpleader fee. In this, Ferber has exhibited two serious misconceptions. To quote its position in the district court, '10 per cent of what has been deposited in court (is the usual) fee. * * * I have spent several hundred hours on this. * * *' Ten per cent is not the 'usual' amount. Nor would Ferber be entitled to an award of counsel's fee out of the fund for resisting Ondrick's counterclaim even if that resistance had been successful. An interpleader fee is unually5 awarded out of the fund to compensate a totally disinterested stakeholder who had been, by reason of the possession of the fund, subjected to conflicting claims through no fault of its own. By its very nature it is of a relatively small amount, simply to compensate for initiating the proceedings. As to the $46,744 Ferber was undoubtedly a disintersted stakeholder. Obviously, howver, the great bulk of its efforts were in resisting Ondrick's counterclaim, as to which the court properly pointed out it was in no way disinterested or entitled to a fee. See Standard Surety & Casualty Co. v. Baker, supra, 105 F.2d at 580. It may well be that had Ferber made an appropriate limited request the court would have recognized it. But we will not rule that the court committed an abuse of discretion when Ferber's only request was one that was totally inappropriate.6 Nor did the court abuse its discretion in denying Ferber's tardy counterclaim. 13 Judgment will be entered vacating the judgment of the District Court and remanding the action for further proceedings in accordance with this opinion. No costs for either party. 1 Hereafter we shall disregard Wilbraham, because even if this work was done pursuant to a modification of, and hence as part of, the joint contract, admittedly it was done by Ondrick alone. Wilbraham has in no way participated in this appeal 2 We note, inter alia, that in order to support its construction Ferber is required to say that some of the language of the agreement is surplausage, a presumptively unsound position 3 By which it meant, in part, that certain matters were charged for twice 4 We have held that in certain situations profit and overhead may be recovered on a quantum meruit. Arthur N. Olive Co. v. United States ex rel. Marino, 1 Cir., 1961, 297 F.2d 70. Ferber raises no objection in this instance 5 We do not agree, at least in this circuit, with 2 Barron and Holtzoff, Federal Practice and Procedure 557 (rev. ed., 1961), that it is not customary to allow interpleader fees 6 The court did award Ferber its actual interpleader disbursements in the amount of $100

Court of Appeals Sixth Appellate District of Texas JUDGMENT Jeremy Dakota Murrieta, Appellant Appeal from the 4th District Court of Rusk County, Texas (Tr. Ct. No. CR 18-036). No. 06-18-00163-CR v. Opinion delivered by Justice Burgess, Chief Justice Morriss and Justice Stevens The State of Texas, Appellee participating. As stated in the Court’s opinion of this date, we find no error in the judgment of the court below. We affirm the judgment of the trial court. We note that the appellant, Jeremy Dakota Murrieta, has adequately indicated his inability to pay costs of appeal. Therefore, we waive payment of costs. RENDERED MAY 3, 2019 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE ATTEST: Debra K. Autrey, Clerk 

[Cite as Johnson v. Miller, 2018-Ohio-3739.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO MADISON COUNTY GORDON E. JOHNSON, TRUSTEE OF : CASE NO. CA2017-12-021 THE JOHNSON FAMILY TRUST, et al., : OPINION Plaintiffs-Appellees, 9/17/2018 : - vs - : : EMERY J. MILLER, INDIVIDUALLY AND AS TRUSTEE, : Defendant-Appellant. : CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVE20130262 James R. Cooper, 33 West Main Street, P.O. Box 4190, Newark, OH 43058-4190, for plaintiffs-appellees Emery J. Miller, 489 West Main St, Lot 19, Plain City, OH 43064, defendant-appellant, pro se M. POWELL, J. {¶ 1} Defendant-appellant, Emery J. Miller, appeals from the decision of the Madison County Court of Common Pleas, which rendered judgment in favor of plaintiffs- appellees, Gordon and Karen Johnson, Trustees of the Johnson Family Trust (collectively, "the Johnsons") on the Johnsons' complaint on a promissory note and to foreclose  Madison CA2017-12-021 mortgages. For the reasons described below, this court affirms the lower court's decision. {¶ 2} In 2007, Miller, a real estate broker and appraiser, learned of a farm for sale in Madison County known locally as the "Oiler Farm." Miller attempted to purchase the Oiler Farm but for reasons not in the record, the transaction never occurred. {¶ 3} Miller was acquainted with Attorney Todd Drown; the two worked together on real estate transactions. In the summer of 2007, Miller began working with Drown on a plan for Drown to purchase and develop the Oiler Farm property. {¶ 4} Drown arranged for financing to purchase the property. A bank loaned Drown $110,000 towards the purchase. Drown provided the bank with a promissory note and first mortgage on the property. To finance the remainder of the purchase price, Drown obtained a loan for $95,000 from the Johnsons. Drown's father, Bill Drown, arranged this loan. Bill had previously worked with the Johnsons on similar transactions involving loans for real estate development. {¶ 5} Drown prepared the various legal documents that were executed by the parties at the closing. Drown and Miller both executed a $95,000 promissory note in favor of the Johnsons. The note was secured with a second mortgage on the Oiler Farm. Miller provided additional security for the note by executing mortgages in favor of the Johnsons on two separate Madison County parcels he owned. Drown thereafter acquired the Oiler Farm. Miller earned a commission for brokering the deal. {¶ 6} Drown later filed for bankruptcy and no development occurred at the property. The bank holding the first mortgage on Oiler Farm initiated foreclosure proceedings, which resulted in a sale of the property. The Johnsons, holders of the second mortgage, received $12,000 in proceeds from the foreclosure sale. {¶ 7} Meanwhile, the Johnsons received no payments on the note. The Johnsons delivered a demand letter to Miller. Miller failed to cure. The Johnsons filed suit in 2013. -2-  Madison CA2017-12-021 Miller represented himself throughout the litigation. In 2017, after numerous continuances, a bench trial occurred. {¶ 8} The Johnsons submitted into evidence the signed promissory note and mortgage documents at issue in the case. Miller did not dispute that he signed the documents and admitted that he had not made any payments on the note. However, Miller claimed that he executed the documents under duress while at the closing. Specifically, Miller claimed that Drown told him at the closing that "Dad (meaning Bill Drown) said you have to." {¶ 9} Karen Johnson testified that she was at the closing. She did not see Drown at the closing, who had already signed the closing documents. Miller was at the closing and showed her binders that depicted development plans for the Oiler Farm, which impressed her. Miller willingly signed all the real estate documents at the closing. {¶ 10} The court found that the Johnsons were entitled to judgment on the promissory note and further ordered that the mortgages on Miller's properties be foreclosed. Miller appeals, raising two assignments of error. {¶ 11} Assignment of Error No. 1: {¶ 12} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE ALLEGED PROMISSORY NOTE WHICH DEFENDANT WAS FORCED TO SIGN, AS WELL ALSO AS THE ALLEGED STATUTORY MORTGAGE DEFENDANT WAS COERCED TO SIGN ON AUGUST 30, 2007, WERE AND ARE VALID, BINDING AND SUBSISTING CONTRACTS, ENFORCEABLE UNDER OHIO LAW. {¶ 13} Miller argues that the court erred in finding that the parties entered into enforceable agreements with respect to the promissory note and mortgages because there was insufficient evidence of a meeting of the minds and the agreements were not supported by consideration. The issue of whether a contract exists presents a mixed question of fact -3-  Madison CA2017-12-021 and law. DeHoff v. Veterinary Hosp. Operations of Cent. Ohio, Inc., 10th Dist. Franklin No. 02AP-454, 2003-Ohio-3334, ¶ 48-49; Rudd v. Online Resources, Inc., 2d Dist. Montgomery No. 17500, 1999 Ohio App. LEXIS 2733, *9-10 (June 18, 1999); McSweeney v. Jackson, 117 Ohio App.3d 623, 632 (4th Dist.1996). This court reviews the application of the law to the facts de novo. McSweeney at id. However, the appellate court defers to the factual findings of the trial court if supported by some competent, credible evidence. Id. {¶ 14} The "'[e]ssential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.'" Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). To declare the existence of a contract, the parties must consent to the contractual terms, there must be a meeting of the minds, and the contract must be definite and certain. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369 (1991). {¶ 15} Mutual assent is normally manifested by an offer by one party followed by an acceptance by the other party. Ohmer v. Mel Farr Ford, 12th Dist. Butler No. CA2000-12- 252, 2001 Ohio App. LEXIS 3551, *6 (Aug. 13, 2001), citing McSweeney at 631; Restatement of the Law 2d, Contracts, Section 22 (1981). Whether there has been a manifestation of mutual assent or a meeting of the minds is a question of fact to be determined from all the relevant facts and circumstances. Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 15 (10th Dist.). The "manifestation of assent may be made wholly or partly by written or spoken words, or by other acts or the failure to act." Precision Concepts Corp. v. Gen. Emp. & Triad Personnel Servs., Inc., 10th Dist. Franklin No. 00AP-43, 2000 Ohio App. LEXIS 3322 (July 25, 2000). {¶ 16} Competent and credible evidence established mutual assent. The court -4-  Madison CA2017-12-021 accepted into evidence the executed promissory note and mortgage documents, all which Miller admitted to signing. Karen Johnson testified that Miller appeared at the closing and willingly signed all the documents. Through the documents, the parties' appearance at the closing, and the signatures executing the documents, the parties demonstrated mutual assent for the Johnsons to loan $95,000 to permit Drown to purchase the Oiler Farm, and for Drown and Miller to provide the Johnsons with collateral to secure a promissory note in the form of mortgages on the Oiler Farm and Miller's separate property. That the Johnsons and Miller never personally discussed the terms of the agreement before arriving at the closing is irrelevant to the issue of whether the parties understood and agreed to the terms of the transaction while at the closing. {¶ 17} Competent, credible evidence also established sufficient consideration for the agreements. The court found that Miller made efforts to obtain the Oiler Farm himself but was unsuccessful. Miller had a business relationship with Drown and was significantly involved in assisting Drown in obtaining the property. Miller made plans for developing the property. Karen Johnson testified that Miller appeared at the closing and showed her detailed materials concerning the development of the property. Miller told Johnson of a plan to improve the property with a road and subdivide the land into building sites after the road was constructed. Miller obtained a commission for brokering the deal and was positioned to earn additional commissions upon brokering sales of the developed property. This evidence was more than sufficient to establish consideration. {¶ 18} Miller's assignment of error raises the issue of alleged duress or coercion in signing the agreements although he does not expand upon the issue in his brief. The trial court found that Miller's claim of duress failed for several reasons, including that the statement "Dad says you have to" did not establish duress because Miller was free to walk away from the closing without executing the documents. The court also found that Miller -5-  Madison CA2017-12-021 failed to allege coercive acts by the opposite party to the transactions, i.e., the Johnsons. Competent, credible evidence supported the court's factual findings concerning the lack of duress and Miller's lack of credibility on the subject. This court overrules Miller's first assignment of error. {¶ 19} Assignment of Error No. 2: {¶ 20} THE TRIAL COURT [ERRED] IN FINDING THAT WILLIAM TODD DROWN, AN OHIO ATTORNEY, A MAKER ON THE PROMISSORY NOTE, WAS THE SUBJECT OF A BANKRUPTCY PROCEEDING. AT NO TIME WAS ANY EVIDENCE PUT BEFORE THIS COURT THAT WILLIAM TODD DROWN WAS THE SUBJECT OF A BANKRUPTCY PROCEEDING AT THE TIME HE VOLUNTARILY SIGNED THE PROMISSORY NOTE AND RECEIVED $95,000 FROM PLAINTIFFS. AT FIRST GLANCE THIS ERROR MAY APPEAR TO BE HARMLESS ERROR, BUT CONSIDERING THE FACT THAT THE JUDGMENT ENTRY WAS DRAFTED BY COUNSEL FOR PLAINTIFFS, THE ERROR IS CARELESS AND SLOPPY. {¶ 21} Miller's brief contains no argument concerning this assignment of error. Regardless, bankruptcy proceedings involving Drown have no relevance to the issues before the court on the Johnsons' complaint. This court overrules Miller's second assignment of error. {¶ 22} Judgment affirmed. RINGLAND, P.J., and PIPER, J., concur. -6- 

700 F.Supp. 522 (1988) Mary MARCHESE, Frank Marchese, Rosemary Marchese Klay, and Kent Minor, Plaintiffs, v. Karl NELSON, Main Street Securities, Inc., and Equity One, Inc., Defendants. Civ. No. 88-C-0614A. United States District Court, D. Utah, C.D. November 30, 1988. Charles C. Brown, Jeffrey C. Brown, Salt Lake City, Utah, for plaintiffs. David R. King, Salt Lake City, Utah, for defendants. ALDON J. ANDERSON, Senior District Judge. INTRODUCTION Plaintiffs have filed an action against the defendants alleging various misrepresentations and omissions of material fact in connection with purchases of securities from the defendants in August 1984 and February 1985. The allegations include claims under Section 10(b) of the Securities Exchange Act of 1934 and various pendent state law claims. Although the purchases of securities were made in late 1984 and early 1985, plaintiffs allege that they were unable to ascertain the true nature of their accounts and investments and the need to take action against the defendants until August 28, 1985. Defendant Main Street Securities, Inc., ("Main Street") has filed a motion to dismiss plaintiffs' Complaint on the basis that plaintiffs' claims are time-barred by the applicable statute of limitations. Main *523 Street admits that federal securities cases alleging violations of Section 10(b) and Rule 10b-5 in Utah have been governed by the three-year limitations period found in Utah Code Annotated (U.C.A.) § 78-12-26(3), and that the limitations period does not begin to run until the aggrieved party discovers the facts constituting the fraud or mistake. However, Main Street urges this court, as a result of recent Supreme Court decisions and a 1988 Third Circuit case construing those decisions, to adopt a new limitations period to govern federal securities cases, i.e. one year from the discovery of the fact constituting a violation, but in no event more than three years after the violation. If this court adopted the proposed limitations period, then plaintiffs complaint would be time-barred since it was filed more than one year after the discovery of the alleged violations and more than three years after the violations occurred. Plaintiffs argue that their complaint should not be dismissed because federal courts, including the Tenth Circuit, have uniformly applied state statutes of limitation to federal securities actions brought under Section 10(b). Hence, plaintiff's complaint is timely since the applicable limitations period that a federal court sitting in Utah should apply in Section 10(b) and Rule 10b-5 claims is three years from the discovery of the alleged fraud or mistake. Plaintiff further argues that Main Street offers no compelling reason for this court to impose a different limitations period, and that any conflict among the circuits regarding the applicable limitations period is better left for resolution by the U.S. Supreme Court. DISCUSSION Defendant Main Street first argues that the Supreme Court has recently suggested that, in cases involving federal law where no statute of limitations has been directly specified, the limitations period be borrowed from an analogous federal statute when the federal statute provides a clearly closer analogy than available state law. Defendant points to the cases of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 171-72, 103 S.Ct. 2281, 2294-95, 76 L.Ed.2d 476 (1983) and Agency Holding Corp. v. Malley-Duff and Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) where the Supreme Court determined that: resort to state law remains the norm for borrowing of limitations periods. Nevertheless, when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make the rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law. DelCostello, 462 U.S. at 171-72, 103 S.Ct. at 2294; Malley-Duff, 107 S.Ct. at 2763.[1] Main Street next points to the decision of In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3d Cir.) cert. den. ___ U.S. ___, 109 S.Ct. 131, 102 L.Ed.2d 103 (1988), where a Third Circuit en banc panel reconsidered the applicable statute of limitations in Section 10(b) and Rule 10b-5 cases in light of DelCostello and Malley-Duff. Id. at 1537-1538. The en banc court reasoned that express private rights of action in the Exchange Act of 1934 were more analogous to the implied rights of action in the Exchange Act than limitations periods available under state law. Id. at 1550. Therefore, it held that the statute of limitations in the express private rights of action (one year from discovery/no later than three years from alleged violation) should apply to the implied right of action under Section 10(b) and Rule 10b-5, rejecting its earlier decisions that applied state limitations statutes to 10(b) and 10b-5 actions. Id. Although Data Access appears well-reasoned and, if adopted by most circuits, would indeed promote uniformity in the time period to bring a federal securities actions, it is the first decision of any federal *524 court that has varied from the general rule applying statute limitations statutes to Section 10(b) and Rule 10b-5 cases. The decision has been criticized by at least one other circuit court. See Durham v. Business Management Associates, 847 F.2d 1505, 1508 (11th Cir.1988). With the exception of Data Access, federal courts, including the Tenth Circuit, have uniformly applied state limitations statutes to cases concerning analogous federal rights where no federal statute of limitations existed. FDIC v. Palermo, 815 F.2d 1329 (10th Cir.1987); DelCostello, 462 U.S. at 158, 103 S.Ct. at 2287. In DelCostello, the Supreme Court noted that "[a]s is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit.... We have generally concluded that Congress intended that the court apply the most closely analogous statute of limitations under state law." Id. It is well-settled that federal courts sitting in Utah are required to apply the three year limitation found in U.C.A. § 78-12-26(3) to federal securities cases brought under Section 10(b) or Rule 10b-5. Loveridge v. Dreagoux, 678 F.2d 870, 874 (10th Cir.1982); Clegg v. Conk, 507 F.2d 1351, 1353 (10th Cir.1974) cert. den. 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975); Richardson v. MacArthur, 451 F.2d 35, 39 (10th Cir.1971); Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90, 103-04 (10th Cir.1971) cert. den. 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1972); Brown v. Producers Livestock Loan Co., 469 F.Supp. 27, 30 (D.Utah 1978). Utah is not alone in applying state statutes of limitation in federal securities cases. Courts in eleven of the twelve judicial circuits currently apply state limitations statutes to actions brought under Section 10(b) or Rule 10b-5. See e.g. General Builders Supply Co. v. River Hill Coal Venture, 796 F.2d 8, 11 n. 3 (1st Cir.1986); IIT, an Intern. Inv. Trust v. Cornfeld, 619 F.2d 909, 928 (2d Cir.1980); Gurley v. Documation Inc., 674 F.2d 253, 258-59 (4th Cir.1982); Wood v. Combustion Engineering, Inc., 643 F.2d 339, 342 (5th Cir.1981); Carothers v. Rice, 633 F.2d 7, 12-13 (6th Cir.1980) cert. den. 450 U.S. 998, 101 S.Ct. 1702, 68 L.Ed.2d 199 (1981); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 128 (7th Cir.1972); Morris v. Stifel, Nicolaus & Co., Inc., 600 F.2d 139, 140 (8th Cir.1979); Semegen v. Weidner, 780 F.2d 727, 733 (9th Cir.1985); Durham v. Business Management Associates, 847 F.2d 1505, 1508 (11th Cir.1988); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 413 (D.C.Cir. 1977). In fact, research has revealed no decision, with the exception of Data Access, where a federal court has not applied a state limitations statute to a Section 10(b) or Rule 10b-5 action. With this virtual unanimity of opinion, this court will not sua sponte deviate from the practice of the Tenth Circuit and federal bench based on a recent decision by the Third Circuit. If, in some future time, the Tenth Circuit modifies its rule with respect to limitations periods applicable to Section 10(b) and Rule 10b-5 actions, this new course will be unhesitatingly followed. Until then, this court is obligated to apply U.C.A. § 78-12-26(3) in Section 10(b) and Rule 10b-5 cases arising in Utah and must deny defendant Main Street's Motion to Dismiss. NOTES [1] Neither of these cases involved securities claims; DelCostello was an action brought under the National Labor Relations Act, while Malley-Duff was a RICO case.

299 F.Supp. 202 (1969) FOREST LABORATORIES, INC., Plaintiff, v. FORMULATIONS, INC. and the Pillsbury Company, Defendants. No. 67-C-128. United States District Court E. D. Wisconsin. April 15, 1969. *203 *204 Foley, Sammond & Lardner by James P. Brody, Milwaukee, Wis., for plaintiff. Wherry & Wherry, Milwaukee, Wis., for Formulations, Inc. Quarles, Herriott, Teschner, Clemons & Noelke, Adrian L. Bateman, Jr., Milwaukee, Wis., for The Pillsbury Co. DECISION MYRON L. GORDON, District Judge. This is an action for improper use and disclosure of what are alleged to be the plaintiff's trade secrets. Jurisdiction is based on diversity of citizenship, and state law is to be used to determine the substantive issues. Smith v. Dravo, 203 F.2d 369 (7th Cir. 1953); Besly-Welles Corp. v. Balox, Inc., 291 F. Supp. 328 (E.D. Wis. 1968). In addition, the defendant, Pillsbury, has counterclaimed for a declaratory judgment of invalidity of the plaintiff's patent. Formulations, Inc. was dismissed from the action during the course of the trial, pursuant to rule 41(b), Federal Rules of Civil Procedure. The plaintiff's cause of action based on the anti-trust laws was likewise dismissed under the same rule. *205 I. THE TRADE SECRET CAUSE OF ACTION It is alleged that Pillsbury has illegally used and divulged the plaintiff's trade secrets for packaging effervescent sweetener tablets. Originally the allegations included a claim that Pillsbury had also violated trade secrets for the manufacture of such sweeteners, but the plaintiff abandoned that attack and proceeded at trial only with respect to the packaging techniques. The plaintiff is a manufacturer and packager of food and drug items. It claims to have developed a successful process for packaging effervescent sweetener tablets so that their shelf life is lengthy. The production and sale of effervescent sweetener tablets is limited to a small group of companies; of the approximately 1000 tablet manufacturers in the United States, only a few produce this type of tablet. Tidy House Corporation, the defendant's predecessor, had been interested in marketing an effervescent sweetener tablet. Prior to 1957, Tidy House had engaged several firms to manufacture tablets for this purpose. However, Tidy House experienced difficulties with each of these sources of supply, and in 1958 Tidy House learned that the plaintiff manufactured such tablets. In December, 1958, Tidy House sent its technical director, Mr. Egan, and his co-employee, Mr. Steinhauser, to observe the plaintiff's operation in New York. During that visit Mr. Lowey, the president of the plaintiff, claims to have disclosed to Mr. Egan what are alleged to be Forest Laboratories' trade secrets for packaging. Shortly thereafter, the plaintiff began to supply Tidy House with tablets in bulk; Tidy House packaged the tablets for the consumer. In 1960, the Tidy House assets were purchased by the Pillsbury Company, and the plaintiff continued to supply the tablets to what became known as the Tidy House division of Pillsbury. This relationship continued until January, 1964, when Pillsbury engaged Formulations, Inc. as a new source of supply. Subsequently, the plaintiff brought this action, alleging that Pillsbury was using its confidential packaging secrets. In addition, the plaintiff charges that the defendant improperly disclosed such secrets to Mankato, Inc., a contract packager hired by Pillsbury in 1965. The applicable law on trade secrets was set down in Abbott Laboratories v. Norse Chemical Corp., 33 Wis.2d 445, 147 N.W.2d 529 (1967). The court determined that the Restatement of Torts correctly states the Wisconsin law. In particular, the Abbott court ruled that there were two essential elements to a cause of action for misappropriation of trade secrets: there must be an actual trade secret and there must likewise be a breach of confidence. Each factor will be discussed in turn. A. ARE THESE "TRADE SECRETS"? A trade secret is defined by the Restatement as "Any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a * * * process of * * * treating or preserving materials * * *." Restatement of Torts, § 757, comment (b). The Restatement and Abbott set forth six factors to be considered in determining whether given information qualifies as a trade secret. These six factors are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be *206 properly acquired or duplicated by others. The plaintiff contended at the trial that its packaging procedure consists of the following steps: (a) the entire packaging operation must take place in a room in which the relative humidity is maintained at 40% or less; (b) before packaging, the tablets are to be tempered in a room having 40% or less relative humidity for a period of between 24 to 48 hours; (c) before packaging, the bottles into which the tablets are to be packaged are to be tempered in a room having 40% or less relative humidity for a period of between 24 to 48 hours; (d) before packaging, the bottle caps are to be tempered in a room having 40% or less relative humidity for a period of between 24 to 48 hours; (e) before packaging, the cotton used to stuff the bottles is to be tempered in a room having 40% or less relative humidity for between 24 to 48 hours; (f) the bottles should not be washed; (g) an air space should remain in the bottles after the caps are applied. The purpose of the foregoing procedure is to make certain that the tablets and the materials are dry and that they are in a state of equilibrium with each other. By using these techniques, the plaintiff asserts that it was able to produce and package a tablet with a high degree of stability. In contrast, the testimony shows that prior to the plaintiff's association with Tidy House, the latter had had difficulties with its prior suppliers whose products on occasion exploded on store shelves or otherwise proved unstable. Pillsbury denies that the recited techniques constitute trade secrets. To determine that issue, we will consider, seriatim, the six Abbott factors listed above. (1) Pillsbury asserts that each step in the packaging procedure was well known in the trade, and that it cannot, therefore, qualify as secret material. Pillsbury's expert witness, Dr. Wurster, a professor of pharmacy at the University of Wisconsin, testified that in his opinion these procedures were "just common knowledge". Professor Wurster prepared a compilation of textbook materials that he claimed set forth the procedures claimed by the plaintiff as trade secrets. (Def. exh. 1) This compilation makes references to the fact that effervescent tablets must be handled and packaged under controlled humidity conditions. Several of the articles refer to specific humidity levels; the references vary between 25% and 50%. The literature in evidence also contains admonitions that moisture must be kept out of the entire procedure. In addition, there was testimony that when Tidy House first became interested in effervescent tablets, it had been advised by The Du Pont Corporation that operations would have to be conducted under low (40%) humidity conditions to eliminate moisture. The foregoing supports my conclusion that the industry was quite well aware of point (a) listed in the plaintiff's procedure: that packaging operations must be conducted under controlled humidity (40%) conditions. I am also convinced that steps (f) and (g), which relate to washing of the bottles and an air space above the cotton, likewise cannot be claimed to be trade secrets. There was testimony that others in the industry refrained from the practice of washing the bottles. Competitive products introduced into evidence clearly show that other producers utilized an air space above the cotton. While Dr. Wurster thought that all of the plaintiff's procedures were well known, nothing that he said or compiled persuades me that the tempering steps, numbered (b), (c), (d) and (e) were known in the industry. On the contrary, the plaintiff's witness, Mr. Reamer, a fully qualified expert in the field, testified that the tempering steps were "new, intriguing. I think it's a break-through * * *" (Tr. 46) It was also his opinion that the defendant's compilation of literature did not set forth these procedures. (Tr. 46-47, 50) *207 Mr. Lowey testified that when he first became interested in effervescent tablets, he found that the literature on the subject did not teach him enough to package a stable tablet. It was only through trial and error, he averred, that he arrived at this process. As already noted, few firms engaged in packaging effervescent tablets, and those that did so often produced an inferior tablet. If proper techniques for packaging were broadly known, there would be little reason for this difficulty, unless the flaws stemmed from defective manufacturing practices. The defendant asserts, however, that the tablet tempering stage [step (b)] is in the public domain because it is disclosed in the plaintiff's patent in suit. The argument is that under such circumstances plaintiff cannot claim this step as a secret. The patent (Pl. exh. 2) discloses the tablet tempering step. The general rule is that the issuance of a patent which clearly discloses all essentials of a process destroys any secrecy that previously attached to that process. Ferroline Corp. v. General Aniline and Film Corp., 207 F.2d 912 (7th Cir. 1953). However, if there is a wrongful use or disclosure prior to the issuance of the patent, the wrongdoer will not be absolved from liability for his wrong committed during that prior period. Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F.2d 347 (9th Cir. 1963). There is a decision in this circuit which holds that the wrongdoer may be permanently enjoined from use or disclosure even though the subsequently issued patent has made the information public. Shellmar Products Co. v. Allen-Qualley Co., 87 F.2d 104 (7th Cir. 1936). That rule has been severely criticized in other circuits. See, e. g., Conmar Products Corp. v. Universal Slide Fastener Corp., 172 F.2d 150 (2d Cir. 1949). On the other hand, once the plaintiff has issued a patent setting out the process, some courts hold that the disclosure in the patent precludes liability for use of the information subsequent to issue. Schreyer v. Casco Products Corp., 190 F.2d 921 (2d Cir. 1951); Tempo Instrument, Inc. v. Logitek, Inc., 229 F.Supp. 1 (E.D.N.Y. 1964). The Shellmar case is often cited for the opposite conclusion. See Tempo Instrument, Inc. v. Logitek, Inc., supra. In our case the confidential disclosure allegedly occurred in 1958; the improper use occurred in 1964 after Pillsbury discontinued purchases from Forest Laboratories. The patent was issued in March, 1965. There was an allegedly improper disclosure to Mankato, Inc. in May, 1965. Since jurisdiction in this case is based upon diversity, Wisconsin law controls. However, the Wisconsin supreme court has not decided the instant question. In my opinion, the better rule is that which holds an improper use of a trade secret prior to the issuance of the patent to be an actionable wrong. This rule is in accord with the Restatement, which makes breach of faith an essence of the wrong. The plaintiff is not in a position to complain of a disclosure of the information occurring after his patent has issued. When the patent was issued, he dedicated his information to the public in return for a monopoly. To permit him to have both a monopoly and a cause of action for subsequent disclosure in inequitable. The plaintiff, in effect, has changed his position. Whereas he had previously kept this information secret (the sine qua non of a trade secret), he has now decided that it shall no longer be his knowledge alone. The key element of secrecy is gone. Therefore, Pillsbury cannot be held liable for any disclosure after March, 1965. The improper adoption of steps (b) through (e), which were not well known in the industry, are actionable; on the other hand, steps (a), (f) and (g) were sufficiently well-known so that they cannot be called trade secrets. (2) With reference to the second Abbott factor, the evidence discloses that only a handful of the plaintiff's employees knew of his packaging operations, *208 and they were all bound by secrecy agreements. (3) Mr. Lowey testified that all of his employees who deal with packaging were bound by secrecy agreements. There was also testimony that packaging information was closely guarded in the trade. (Tr. 46-47). (4) The information would be of significant value to the plaintiff. Since technical problems prevent more than a few companies from packaging effervescent tablets, one who has the ability to do so is in an advantageous position. (5) Mr. Lowey testified that he spent a long time developing and testing the process before he was able to devise a packaging procedure that insured stability. No exact time period was mentioned, however. There is no evidence as to the amount of money expended to develop the process. There is evidence that other firms in the industry hesitated to enter this particular field unless they had two years to test the stability of the product. (6) This process is not so ingenious that it could not be duplicated by others; but invention is not the keynote of a trade secret under the liberal test of the Restatement. All that is needed is some procedure which gives an advantage over a competitor who does not have it. Restatement of Torts, § 757, comment (b). My conclusion is that the tempering portions of the packaging process must be classified as a trade secret. The Restatement test is not overly stringent. Even though a given procedure seems simple by hindsight, that is not conclusive. See A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F.2d 531 (6th Cir. 1935), mod. on other grounds, 74 F.2d 934 (1935). A trade secret requires some process or method which is not obvious or generally known in the trade, and which gives the innovator a substantial advantage over a competitor. I find that the plaintiff has established the tempering process in connection with packaging as a trade secret. (B) WAS THERE A CONFIDENTIAL RELATIONSHIP? The second issue presented is whether these trade secrets were given by Mr. Lowey to the defendant under circumstances which reveal that a confidential relationship existed between them. At the outset, Pillsbury argues that even if a confidential relationship as to these secrets was established with Tidy House, Pillsbury would not be bound unless it had actual notice of these facts. It bases its argument on § 758, Restatement of Torts. That section deals with situations in which a distinct third party receives confidential information without being aware of its secret nature; but that section does not apply to the situation at hand. In this case, Pillsbury purchased all the assets of Tidy House (Tr. 727), which thereafter became known as the Tidy House division of the Pillsbury Company. Most employees remained the same. In my opinion, Pillsbury, as successor, was bound by any confidential disclosure made to Tidy House. If Tidy House had notice that these secrets were confidentially disclosed, that knowledge does not end when the Tidy House personnel become Pillsbury employees. It does not matter, therefore, whether any member of the Pillsbury management actually received notice that the packaging information was a confidential trade secret. The testimony on whether this information was given to Tidy House in confidence is contradictory. It is my conclusion, however, that the plaintiff has established that there was a confidential disclosure to Tidy House employees in 1958. When early arrangements were made with Tidy House, which was looking for a new supplier of effervescent sweetener tablets, Mr. Lowey sent the plaintiff's manufacturing formula to Mr. Sherrard, Tidy House's purchasing agent. The letter which conveyed this information said that the formula was to be kept confidential. (Pl. exh. 9) the letter also stated that "we agree with you that details *209 on packaging, etc. should be taken up later". In December, 1958, Mr. Egan, the Tidy House technical director, and Mr. Steinhauser, Mr. Egan's associate, were authorized by Mr. Tieszin, the Tidy House Executive Vice President, to visit the plaintiff's facilities in New York. During that meeting, Mr. Lowey told Mr. Egan that Forest Laboratories did not want to package the tablets for the consumer because of a lack of space. (Tr. 112) Mr. Egan testified that he asked Mr. Lowey to give him "some advice as to the conditions under which this packaging should be carried on", (Tr. 113) because Tidy House had not previously packaged tablets. Both Mr. Lowey and Mr. Egan testified that Mr. Lowey agreed to furnish the packaging techniques in confidence. (Tr. 113, 495-96); both men also testified that all of the trade secrets were communicated orally to Mr. Egan, who took notes at such meeting. (Tr. 119-21, 498). Mr. Egan testified that he then returned to Tidy House and both orally and in writing informed Mr. Sherrard, Mr. Tieszin, Mr. Williams, and "maybe" Mr. Rapp, the Tidy House President, that what he had learned at the meeting had been received in confidence. Mr. Egan's written memo was never introduced into evidence, but Mr. Sherrard corroborated Mr. Egan's testimony by stating (Tr. 388-89) that although he did not remember seeing any memorandum, he did learn that the disclosure of packaging techniques to Mr. Egan had been made in confidence. Further, Mr. Egan's statement that he also informed Mr. Tieszin is uncontradicted. Mr. Steinhauser, who accompanied Mr. Egan on the trip, testified that Mr. Lowey never cautioned Mr. Egan or himself that they were hearing confidential information. (Tr. 646) However, Mr. Steinhauser stated that the information disclosed was confidential on a "moral" basis. (Tr. 638-39). Mr. Rapp testified that neither Mr. Egan nor Mr. Steinhauser told him that any information given to them was to be kept in confidence. (Tr. 724); however, he also testified that he was never aware that any confidential relationship existed with the plaintiff (Tr. 728), and it is quite clear that a confidential relationship existed at least as to certain manufacturing information. (Pl. exh. 9, 33). Mr. Williams and Mr. McCarron also did not remember any statement that a confidential relationship existed. (Tr. 1008-09, 1233, 1253). Although the foregoing proof is conflicting, I believe that the record establishes that a confidential relationship as to packaging information arose in 1958 between the plaintiff and Tidy House. Mr. Sherrard's testimony corroborates the testimony of the participants—Mr. Lowey and Mr. Egan. It is uncontradicted that Mr. Egan also reported this information to Mr. Tieszin. The contrary negative assertions of Messrs. Rapp, Williams, and McCarron do not convince me otherwise. I have concluded that a confidential relationship as to "packaging information" was established in 1958, but Pillsbury argues that tempering secrets were not disclosed at that time. Both Mr. Egan and Mr. Lowey testified that such data was supplied, and they both detailed what those secrets were. I believe that tempering information was discussed at the meeting between Mr. Lowey and Mr. Egan; such conclusion is not reversed by Mr. Steinhauser's statement that he only remembers a discussion of manufacturing techniques. Pillsbury points out that Mr. Egan had testified at a deposition taken some months before the trial that the tablet tempering secrets were disclosed by Mr. Lowey during 1960 when Pillsbury's packaging facilities were being conducted at its Omaha facility (Tr. 218-21), and not at the 1958 meeting. Mr. Egan explained this discrepancy by saying that his recollection had been refreshed. (Tr. 219, 222). I find that the disclosure of the tablet tempering secrets was made in 1958, and thereafter Tidy House was under an agreement of confidence. *210 The defendant asserts that Mr. Lowey never formally reasserted after the 1958 meeting that the packaging techniques were trade secrets. While this may be true, the parties appear to have clearly understood that this was the case. Mr. Steinhauser, who met with Mr. Lowey in 1961, stated that while no specific admonition of secrecy was made at that time, "We had confidence in Mr. Lowey and I thought he had confidence in us and that is pretty much the way I recall it being handled." (Tr. 649). Mr. Boand, a Tidy House employee, also made a similar statement. (Tr. 656). Mr. Lowey testified that since a confidential relationship had been established in 1958, and since he was dealing with Tidy House employees or people who were under contract with them, he felt no need to reiterate what was already an established fact. (Tr. 588, 89). I do not believe that Mr. Lowey was careless in his dealings with the defendant. The Restatement provides as follows: "The question is simply whether in the circumstances B knows or should know that the information is [the plaintiff's] trade secret and that its disclosure is made in confidence." Restatement of Torts, § 757, comment on cl. (b) at 14. In regard to the tempering of materials, both Mr. Lowey and Mr. Egan stated that these steps were also disclosed in the meeting held in 1958. The defendant challenges this position and urges that the steps relating to the tempering of materials did not arise from Mr. Lowey but, instead, were the result of suggestions made by Mr. Pasternak of Magna, Inc. The latter company was hired in 1962 by Pillsbury to handle packaging. The practice of tempering materials was utilized in 1962, but there was no reference to such procedures in the set of specifications which were composed when Pillsbury resumed its own packaging. I conclude that the plaintiff has failed to satisfy its burden of proving that the tempering techniques as to materials (as distinguished from tablets) were its confidential trade secrets. While there are inconsistencies on both sides of the question, it is the plaintiff's burden to establish its case; in my opinion, it has failed on this point. To entitle the plaintiff to recovery, it is only necessary that "some secret information relating to one or more essentials" belonging to the plaintiff has been misappropriated. Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F.2d 347 (9th Cir. 1963). In my opinion, the information regarding the tablet tempering step constitutes essential and confidential information belonging to the plaintiff. Therefore, if it was misappropriated, the defendant will be liable to the plaintiff. As already noted, however, since the plaintiff's patent was issued in March, 1965, that is the cut-off date for any wrongdoing by the defendant. This court need not, therefore, examine the alleged improper disclosure to Mankato in May, 1965. (C) WAS THERE A BREACH OF CONFIDENCE BY THE DEFENDANT? The plaintiff has alleged a wrongful use of the tablet tempering information by the defendant subsequent to the time that Pillsbury dropped Forest Laboratories as its supplier in January, 1964. Pillsbury, on the other hand, insists that it made no use of this information after that time. I think the record fairly establishes that Pillsbury made use of the tablet tempering procedure after the plaintiff was dismissed as supplier of the tablets. Pillsbury's confidential manufacturing specifications for these tablets, dated March 19, 1964, disclosed the following notation: "Temper tablets 11805 in unopened supplier's containers for a minimum period of 48 hours. During tempering, *211 handling and packaging of tablets maintain environmental: a. R.H. at 40% b. Temperature of 70° F." Dr. Stein of Pillsbury testified that the purpose of this type of requirement was "to allow the temperature of the tablets to equilibrate with the temperature of the room." (Tr. 912). The defendant argues that this specification is different from the plaintiff's trade secret because the former specifies tempering in an "unopened" container. Mr. Dienst, the defendant's witness, testified that experiments showed that it would take much longer for tablets to equilibrate in a closed container than in a container open to the air. (Def. exh. 53). Other witnesses testified that the tablets would still equilibrate. (Tr. 54, 629-30). In my opinion, the question of how long it would take the tablets to equilibrate is not controlling. An improper use need not be in exactly the same form as that contemplated by the plaintiff. Restatement of Torts, § 757, comment (b), p. 9. The only purpose of the tablet tempering procedure was to place the tablets in an ambient condition; that the defendant's method of utilizing this information may have been somewhat inefficient does not detract from the fact that the tablet tempering procedure was the plaintiff's secret and that it was improperly used by Pillsbury. While the plaintiff has requested an injunction to prevent further use of the trade secret by the defendant, it is my opinion that such an injunction should not issue where, as here, the trade secret process has now been made public by the declarations made in the plaintiff's patent. Damages will suffice to compensate the plaintiff for its injury. But cf. Shellmar Products Co. v. Allen-Qualley Co., 87 F.2d 104 (7th Cir. 1936). II. THE INVALIDITY OF THE PLAINTIFF'S PATENT The defendant, Pillsbury, has counterclaimed for a declaratory judgment that the plaintiff's United States patent number 3,173,797, issued on March 16, 1965, is invalid and not infringed by the defendant. Jurisdiction for this claim is based on 28 U.S.C. § 2201 and 28 U.S.C. § 1338. The plaintiff has stipulated on the record (Tr. 1572-73) that the defendant does not infringe the plaintiff's patent. It is necessary to discuss the propriety of exercising jurisdiction to issue a declaratory judgment. The plaintiff's brief on this issue states that "It is within the discretion of the court to dismiss the defendant's counterclaim for a declaration of invalidity of plaintiff's patent because no actual controversy exists between the parties". This matter was before this court earlier, by way of the plaintiff's pre-trial motion to dismiss the defendant's counterclaim. By written decision dated September 20, 1967, this court denied that motion on the ground that a justiciable controversy existed within the meaning of the declaratory judgment act. The basis for that decision was that an action had been commenced in 1965 against Pillsbury in the federal district court for the southern district of New York. That action had charged the defendant with infringement of the same patent now before the court. The action was voluntarily dismissed without prejudice on April 19, 1967. When the plaintiff's motion to dismiss this counterclaim was before this court, the plaintiff acknowledged by affidavit that the defendant's tablet manufacturing method did not infringe the plaintiff's patent. I nevertheless held that because of the earlier charge of infringement, a sufficient controversy existed within the meaning of the declaratory judgment act to give this court jurisdiction. Cf. Drew Chemical Co. v. Hercules, Inc., 407 F.2d 360 (2d Cir. 1969), where the court found that the *212 patentee never really evidenced an intention to sue. The only factor that has changed since my decision is that at the trial the plaintiff stated on the record that the defendant did not infringe the plaintiff's patent. Accordingly, the parties stipulated to a judgment of non-infringement, and that judgment should be granted. The statement on the record that there was no infringement does not divest this court of jurisdiction to issue a declaratory judgment. Whether a court has such jurisdiction is to be determined as of the time the suit was filed. Facts occurring after such time are not generally to be considered. American Needle & Novelty Co. v. Schuessler Knitting Mills, 379 P.2d 376 (7th Cir. 1967); Ortman-Miller Machine Co. v. International Basic Economy Corp., 138 U.S.P.Q., 108 (N.D. Ill. 1963); E. J. Brooks Co. v. Stoffel Seals Corp., 160 F.Supp. 581 (S.D.N.Y. 1958), rev. on other grounds, 266 F.2d 841 (2d Cir. 1959). While I hold that this court has jurisdiction to determine the issue of validity, it is also my opinion that under the circumstances now present this jurisdiction should not be exercised. The declaratory judgment act states that if proper jurisdiction is present, a district court "may" declare the rights of the parties. 28 U.S.C. § 2201. One court has stated that it is possible that the withdrawal of the charge of infringement after the case has begun may bear on the exercise of the court's discretion. Ortman-Miller Machine Co. v. International Basic Economy Corp., supra, at 109. In this case, the patentee charged the defendant with infringement in 1965; that suit was later withdrawn, allegedly because the plaintiff determined that the defendant did not, in fact, infringe the patent. The plaintiff has now reiterated that determination on the record in this action. There is a public interest in ascertaining whether a patent is valid or not. Phillips Petroleum Co. v. Shell Development Co., 6 F.R.D. 406 (D.C. Del. 1947). I am of the opinion that this court should not declare the rights of the parties under the existing circumstances. See McCurrach v. Cheney Brothers, 152 F.2d 365 (2d Cir. 1949), concurring opinion of Judge Clark. III. CONCLUSION The plaintiff has established that the tablet tempering process was its trade secret; that it was given to the defendant in confidence; and that the defendant violated that confidence by using that process after Forest Laboratories was discharged as the tablet supplier. The other elements of the trade secret cause of action have not been established. The plaintiff is entitled to damages, but not to injunctive relief. In addition, the court declines to exercise its jurisdiction to declare the rights of the parties in regard to the plaintiff's patent. The foregoing constitutes this court's findings of fact and conclusions of law in accordance with rule 52, Federal Rules of Civil Procedure. Counsel for the plaintiff are requested to prepare an order in accordance with this opinion. Said order may be presented to the court for signature, but not until it has been in the hands of defendant's counsel for at least 10 days.

894 N.E.2d 1047 (2008) John D. HAYES, Stacy R. Hayes, and Old National Bancorp, Appellants-Defendants, v. Robert Lee CHAPMAN, Jr., Appellee-Plaintiff. No. 53A05-0802-CV-84. Court of Appeals of Indiana. October 16, 2008. *1048 John R. McKay, Hickam & Lorenz, P.C., Spencer, IN, Attorney for Appellants John and Stacy Hayes. Karen A. Wyle, Bloomington, IN, Attorney for Appellee. OPINION BAKER, Chief Judge. Appellants-defendants John D. Hayes and Stacy R. Hayes appeal the trial court's *1049 order denying their counterclaim against appellee-plaintiff Robert Lee Chapman, Jr., and foreclosing Chapman's mechanic's lien on construction he performed on the Hayeses' residence. The Hayeses argue that the trial court erroneously concluded that Chapman did not violate the Indiana Home Improvement Contract Act[1] (HICA), that the mechanic's lien was invalid because it contained mathematical errors when filed, and that the trial court erroneously awarded prejudgment interest to the Hayeses on the lien. Finding no error, we affirm. FACTS Robert and John are friends and coworkers. For many years, Robert has had a part-time business doing construction work. In early 2001, John told Robert that he was interested in remodeling his farmhouse, parts of which were 150 years old. John used a software program to create some plans that, although they were not architectural plans and did not include dimensions, indicated approximately what John wanted to do to the residence. Robert examined the plans and stated that as a general matter, he thought he could perform the work, though he would have to check the feasibility of certain details. Robert and John agreed verbally that Robert would perform the work, with billing to be based on time and materials. There was no written contract, no bid, and no fixed contract price. Robert told John that no firm estimate was possible at the outset, though John remembers Robert stating that he thought he could complete the work for approximately $70,000. Robert and John did not discuss a start date or an end date for the project. Robert and his crew were responsible for the carpentry, excavation, plumbing, some landscape grading, and some concrete work. John hired the trencher, the electrician, the heating and air contractor, the landscapers, the painters, the fireplace contractor, the gutter supplier, the tile supplier, the carpet installer, the concrete contractor, and the drywall supplier and finisher. Groundbreaking on the foundation began in August 2001 and water lines were installed at the end of 2001. Robert began his work on the foundation in February 2002, beginning major work on the basement in April or May 2002. He began erecting rafters and beams in August 2002 and framed the sub-floor in October 2002. Demolition of portions of the old house and interior work began in November and December 2002. During construction, John made a number of changes and additions to his original plans, including a larger patio and deck, a finished basement, a poplar — rather than drywall — ceiling in the great room, two lofts, a master bath, an upstairs deck, and a wraparound covered front porch. John admitted that these changes substantially increased the cost of the project. The changes also added to the length of time required to complete construction. John testified at trial that the delay in completion of the remodeling did not hurt him financially. Tr. p. 45. John testified that in the fall of 2002, he expressed some concern to Robert about when the job would be finished, and in the winter of 2002, John asked Robert for a timeline. Robert replied that he might be able to finish the work by May 2003, but the changes and additions to the original plans altered Robert's estimated timeline. As John's October 2003 wedding date approached, he frequently expressed concerns to Robert about the timeline, inasmuch *1050 as he had planned to be married at the residence. Robert billed John at irregular intervals. John paid the bills promptly until March 2003, when Robert gave John a bill for $16,668. Hayes did not object to the amount of the bill but told Robert that he was having some "money issues" and asked for more time to pay. Tr. p. 40, 41. Robert agreed and continued with the construction. On June 13, 2003, John took several friends, including Robert, on a four-day "bachelor trip" to the Bahamas before his wedding. Appellee's Br. p. 6. John paid for Robert's airplane ticket with the understanding that Robert would later reimburse him. Although Robert asked John several times what the ticket had cost, John never provided that information. Robert and John never agreed that Robert would deduct the cost of the ticket from a construction bill. John did not pay Robert at all during the spring and summer of 2003. On September 1, 2003, John paid $10,000, which was less than the amount he owed at that time. It was the last payment John made to Robert on the project. On October 2, 2003, John fired Robert. John never provided Robert with written notice of any construction defects or damages he suffered as a result of any defects, nor did he ask Robert to finish the project or correct any alleged problems. Robert eventually asked John why he had not paid the remaining balance, John directed Robert to submit an itemized bill, and on November 9, 2003, Robert did so. The bill reported an unpaid balance of $13,983. At the bottom of the bill, Robert wrote, "John, I have not deducted airline tickets from bill." Appellant's App. p. 42. John questioned some of the charges on the bill, and on November 19, 2003, Robert filed a notice of intention to hold mechanic's lien. On March 11, 2004, Robert filed a complaint against the Hayeses seeking to foreclose the mechanic's lien and requesting prejudgment interest and attorney fees.[2] On May 4, 2004, the Hayeses filed a counterclaim against Robert seeking damages for violation of HICA and breach of warranty. A bench trial on the complaint and counterclaim took place on April 30, May 1, and September 5, 2007. Subsequently, the parties filed proposed findings of fact and conclusions of law, and the trial court issued an order in favor of Robert on December 14, 2007, finding in pertinent part as follows: 18) [John] failed to pay the June 1, 2003 bill promptly because he did not have money available.... * * * 22) [John] did not object to any bill he received from [Robert] until October 3, 2003, when [John] objected to the amount of the bill that [Robert] told [John] he planned to submit. 23) [John] has not paid anything to [Robert] on [Robert]'s final bill of $13,983. [John] has disputed some of the labor charges o[n] that bill. * * * 28) [Robert] and or his employees performed all of the work on [John's] house that [Robert] billed [John] for, with the exception of a charge for eight hours of [Robert]'s time on July 28, 2003. *1051 29) [Robert]'s bill should be reduced by $200 to account for the error on July 28, 2003. 30) [Robert] paid for the materials that he charged [John] for, and the materials were used on [John's] house. * * * 34) [Robert] has incurred attorney fees and charges to foreclose his mechanic's lien in the amount of $12,130. 35) Interest on the sum of ... $13,783 at 8% from November 9, 2003 through December 14, 2007 is $1,208.34. * * * 39) [John] stated at trial that [the Hayeses] did not suffer monetary loss due to the duration of the project. 40) [John] did not complain about the quality of the work that [Robert] performed on the house until after [Robert] left the project. Since the time that [Robert] left the project, October, 2003, [John] has identified defects that he claims are the result of [Robert]'s poor workmanship. * * * 51) [John] did not at any time send to [Robert] any written list of defects. * * * 53) [John] did not permit [Robert] to return to [John's] property to finish any work or to make any repair or corrections to work. * * * 64) [John] paid for [Robert's] ticket to [the Bahamas]. [Robert] was to reimburse [John] for the ticket. [John] never told [Robert] how much the ticket was, although [Robert] asked several times. The final bill that [Robert] sent to [John] states that [Robert] did not deduct the price of the ticket from [Robert's] bill. Conclusions * * * 69) [Robert] failed to comply with [HICA] by failing to provide a written contract containing the elements prescribed by the statute. 70) [Robert's] failure to comply with [HICA] is defined by Indiana law a deceptive act, even though there was no evidence that [Robert] was aware of the law that requires home improvement contracts to be in writing, and even though [Robert] did not deceive [John]. 71) [Robert's] failure to comply with [HICA] was not intentional or willful. 72) [The Hayeses] have not been damaged by [Robert's] failure to comply with [HICA]. 73) The parties had no agreement about how long the project was to take. [John] knew that [Robert] worked part time, and [John] knew that [Robert] had other projects that he would be working on during [John's] remodeling. 74) The extensive changes to the plans during the project required additional time and money to complete the project. 75) [Robert] fulfilled many of the duties of a general contractor, but [Robert] did not assume a duty to complete the project by any particular date, or for a specific price. 76) [The Hayeses] did not suffer monetary loss or other compensable damage due to the duration of the project. * * * 78) ... [Robert's] errors in recording and reporting the time he and his employees *1052 worked on [John's] house were minor and were not intentional. * * * 88) [Robert] should have been allowed an opportunity to return to the work site to modify or repair any work that could be considered defective or deficient. 89) [John's] refusal to allow [Robert] to the work site to modify or repair any work that could be considered defective or deficient relieves [Robert] of responsibility he might otherwise have for defective or deficient work. 90) [Robert] should not be ordered to pay the [Hayeses'] attorney fees. 91) The issue of [Robert's] debt to [John] for [Robert's] airplane ticket to [the Bahamas] has not been raised by the pleadings in this case or tried by agreement, and is not decided by the court. 92) [Robert's] mechanic's lien in the sum of $13,783 should be foreclosed. 93) [Robert] is entitled to interest on the unpaid balance of [Robert's] claim of $13,783 at 8% from November 9, 2003 through December 14, 2007 in the amount of $1,208.34. 94) [Robert] is entitled to recover reasonable attorney fees of $12,130. Appellant's App. p. 8-15. The Hayeses now appeal. DISCUSSION AND DECISION I. Standard of Review When, as here, a trial court has entered an order containing findings of fact and conclusions of law, we review the sufficiency of the evidence using a two-step process. Huber v. Sering, 867 N.E.2d 698, 706 (Ind.Ct.App.2007), trans. denied. First, we must determine whether the evidence supports the findings of fact, and second, we must determine whether those findings of fact support the trial court's conclusions of law. Id. We will set aside the findings only if they are clearly erroneous, which occurs when the record contains no facts to support them, either directly or by inference. Id. Moreover, a judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In applying this standard, we neither reweigh the evidence nor assess witness credibility. Id. Rather, we consider the evidence that supports the judgment and the reasonable inferences that may be drawn therefrom. Id. To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id. As always, we apply a de novo standard of review to questions of law. Lukis v. Ray, 888 N.E.2d 325, 330 (Ind.Ct.App.2008). II. HICA The Hayeses first argue that the trial court erroneously concluded that they are not entitled to relief under HICA. The purpose of HICA is to protect consumers by placing specific minimum requirements on the contents of home improvement contracts... [because] few consumers are knowledgeable about the home improvement industry or of the techniques that must be employed to produce a sound structure. The consumer's reliance on the contractor coupled with the well-known abuses found in the home improvement industry, served as an impetus for the passage of [HICA], and contractors are therefore held to a strict standard. Benge v. Miller, 855 N.E.2d 716, 720 (Ind. Ct.App.2006) (internal citation omitted). To that end, HICA requires home improvement *1053 suppliers[3] performing any alteration, repair, or modification to a residential home property in an amount greater than $150 to provide the customer with a written home improvement contract. I.C. § 24-5-11-1 et seq. A home improvement supplier who violates HICA — by, among other things, failing to provide a written contract — commits "a deceptive act that is actionable ... by a consumer under IC 24-5-0.5-4 and is subject to the remedies and penalties under IC 24-5-0.5." I.C. § 24-5-11-14. Indiana Code section 24-5-0.5-4 provides that "[a] person relying on an uncured or incurable deceptive act may bring an action for the damages actually suffered as a consumer as a result of the deceptive act or five hundred dollars ($500), whichever is greater." An "uncured deceptive act" means a deceptive act of which the consumer gave proper notice to the supplier and either the supplier made no offer to cure within thirty days of the notice or the act was not cured within a reasonable time. I.C. § 24-5-0.5-2(a)(7). An "incurable deceptive act" means "a deceptive act done by a supplier as part of a scheme, artifice, or device with intent to defraud or mislead." I.C. § 24-5-0.5-2(a)(8). The section related to limitation of actions explicitly states that (a) No action may be brought under this chapter ... unless (1) the deceptive act is incurable or (2) the consumer bringing the action shall have given notice in writing to the supplier [within a certain time frame], which notice shall fully state the nature of the alleged deceptive act and the actual damage suffered therefrom, and unless such deceptive act shall have become an uncured deceptive act. (b) No action may be brought under this chapter except as expressly authorized in section 4(a), 4(b),[[4]] or 4(c)[[5]] of this chapter. Any action brought under this chapter may not be brought more than two (2) years after the occurrence of the deceptive act. I.C. § 24-5-0.5-5. HICA explicitly provides that a supplier's failure to provide a written contract is a deceptive act and brings that deceptive act under the purview of the remedies and penalties of Indiana Code chapter 24-5-0.5. I.C. § 24-5-11-14. But to establish entitlement to those remedies, the consumer must show that the deceptive act was either uncured — meaning that notice was given and the deceptive act was not cured — or incurable — meaning that the supplier acted with an intent to defraud or mislead the consumer. I.C. § 24-5-0.5-4(a). Here, it is undisputed that the Hayeses did not notify Robert of his deceptive act — the failure to provide them with a written home improvement contract containing information such as the approximate start and stop dates of the construction and the contract price — or afford him with an opportunity to cure the act. Thus, we cannot conclude that Robert's failure to provide a written contract was an uncured deceptive act. Furthermore, the trial court found that Robert's "failure to comply with *1054 [HICA] was not intentional or willful." Appellant's App. p. 14. Indeed, nothing in the record suggests that Robert's actions were "part of a scheme, artifice, or device with intent to defraud or mislead." I.C. § 24-5-0.5-2(a)(8). Thus, we cannot conclude that Robert's failure to provide a written contract was an incurable deceptive act. Finally, we note that even if Robert's action qualified as an uncured or incurable deceptive act, Indiana Code section 24-5-0.5-5(b) explicitly states that "[a]ny action brought under this chapter may not be brought more than two (2) years after the occurrence of the deceptive act." Here, the parties reached their verbal agreement in early 2001 and the Hayeses did not file their counterclaim raising Robert's failure to provide a written contract at that time until May 2004, three years later. In any event, therefore, their claim is time-barred. Under these circumstances, we can only conclude that the Hayeses are not entitled to the remedies included within the purview of HICA and the trial court properly denied their counterclaim against Robert.[6] III. Foreclosure of the Mechanic's Lien The Hayeses next argue that the trial court erroneously ruled in Robert's favor by foreclosing his mechanic's lien. They base this argument on the facts that when Robert filed his notice of intent to hold the lien, the amount of the lien was misstated and that the trial court reduced the amount of his requested lien by $200 based on an error contained in one of his time sheets.[7] It is evident, however, that the error was inadvertent and easily cured, and we see no support for the Hayeses' argument that Robert made a false statement under oath by including an incorrect amount in the initial lien application and failing to modify the lien at a later date. Additionally, although the Hayeses argue that Robert should have deducted the amount of the airplane ticket to the Bahamas from his bill, the trial court properly concluded that the pleadings did not raise this specific debt, that the issue was not tried by agreement, and that it was not in any way related to the mechanic's lien. Thus, we find that the trial court properly entered a judgment of foreclosure on Robert's mechanic's lien. Finally, the Hayeses argue that the trial court erred by awarding prejudgment interest on the lien, again relying on the computation error described above as support for their assertion that "the amount [owed] was not a sum certain when it was first advanced, and subsequently became even less so during the course of the trial...." Appellant's Br. p. 13. They neither cite to authority in support of nor elaborate upon this argument. We note briefly that prejudgment interest may be awarded where the amount of damages can be ascertained by simple mathematical computation and has been allowed even where some degree of judgment must be used to measure damages. Cincinnati Ins. Co. v. BACT Holdings, Inc., 723 N.E.2d 436, 441 (Ind.Ct.App.2000). Once it appears that the damages may be ascertained *1055 with reasonable precision, an award of prejudgment interest is mandatory. Wash. County Mem'l Hosp. v. Hattabaugh, 717 N.E.2d 929, 933-34 (Ind.Ct. App.1999). Here, although Robert made an inadvertent error in computing the overall amount owed to him, his overall damages are ascertainable with reasonable precision based on the time spent by Robert and his employees and the materials purchased for the remodeling of the Hayeses' home. The trial court, therefore, properly awarded prejudgment interest to Robert. Robert has filed a motion for appellate attorney fees based on Indiana Code section 32-28-3-14(a), which provides that "in an action to enforce a lien under this chapter, a plaintiff or lienholder who recovers a judgment in any sum is entitled to recover reasonable attorney's fees." Where a statute authorizes reasonable attorney fees, such fees include appellate attorney fees. St. Vincent Hosp. and Health Care Center, Inc. v. Steele, 766 N.E.2d 699, 705-06 (Ind.2002). Although it appears that Robert is entitled to appellate attorney fees in this matter, the proper way in which to raise the issue is by filing proceedings supplemental with the trial court. Thus, we deny his motion — though our denial does not imply that he is not entitled to this relief — and direct him to bring this request directly to the trial court. The judgment of the trial court is affirmed. CRONE, J., concurs. KIRSCH, J., concur and dissent with opinion. KIRSCH, Judge, concurring in part and dissenting in part. I concur with the decision of my colleagues to affirm the decision of the trial court on the plaintiff's complaint, but I respectfully dissent from their decision affirming the trial court's order denying relief on the defendants' counterclaim. I do not believe that a breach of the Home Improvement Contract Act (HICA) is subject to the provisions of IC 24-5-0.5-2(a)(8) and must be either uncured or incurable. The relevant section in HICA (IC XX-X-XX-XX) says that failing to provide a written contract is a deceptive act that is actionable under IC 24-5-0.5-4 and "is subject to the penalties under IC 24-5-0.5." No mention is made of cure on incurability. I believe that imposing the cure provisions undermines HICA's purposes and its requirement of written contract for home improvement projects. A home improvement contractor could escape liability (as here) by simply proceeding without a written contract unless the homeowners give notice at which time the contractor could cure the deceptive act by tendering a written contract. NOTES [1] Ind.Code § 24-5-11-1 et seq. [2] Robert also named Old National Bancorp as a defendant, but the parties stipulated to the priority of the bank's mortgage lien and further stipulated that Old National need not appear or present evidence. Appellant's Br. p. 1. It did not take part in the trial and is not participating in this appeal. [3] There is no dispute that Robert is a "home improvement supplier" as defined by the statute. [4] Section 4(b) entitles consumers to bring a class action against suppliers under certain circumstances. I.C. § 24-5-0.5-4(b). [5] Section 4(c) entitles the attorney general to bring an action to enjoin a deceptive act. I.C. § 24-5-0.5-4(c). [6] Inasmuch as we find that the Hayeses are not entitled to damages under HICA, we need not consider their argument that the trial court erred by concluding that they sustained no actual damages as a result of Robert's actions. [7] To the extent that Robert contends that the trial court deducted too much from the amount of the lien based on the computation error, we observe that he has not appealed the amount of the judgment. Additionally, we note that the most appropriate way in which to raise this argument would have been via a motion to correct error with the trial court. We decline to adjust the amount of the judgment on this basis.

867 F.2d 92 Rose Ann MCGURRIN EHRHARD, Plaintiff, Appellant,v.Michael Joseph CONNOLLY, etc., et al., Defendants, Appellees. No. 88-1361. United States Court of Appeals,First Circuit. Heard Dec. 9, 1988.Decided Feb. 8, 1989. Lawrence R. Ehrhard, Springfield, Mass., for plaintiff, appellant. Alexander G. Gray, Sp. Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., was on brief, for defendants, appellees. Before BOWNES, BREYER and SELYA, Circuit Judges. BREYER, Circuit Judge. 1 This "political discharge" case arose in Massachusetts. The appellant, Rose Ann Ehrhard, claims that the Massachusetts Secretary of State, Michael J. Connolly, dismissed her from her job as director of the Secretary of State's Western Massachusetts office ("SOS West") because she expressed opposition to the Governor at a local political meeting. She says this politically motivated dismissal violated her First Amendment rights. See Elrod v. Burns, 427 U.S. 347, 372, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (political firing violates First Amendment except in policymaking positions); Branti v. Finkel, 445 U.S. 507, 518-19, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980) (political firing violates First Amendment unless political loyalty is an appropriate job requirement). The Secretary says he dismissed her for reasons of competence, not politics. 2 The district court, setting aside the dispute over the reasons why Ehrhard was fired, directed a verdict for the Secretary on the ground that Ehrhard's job was one for which "party affiliation is an appropriate requirement," Branti, 445 U.S. at 518, 100 S.Ct. at 1295, and so her dismissal could not have violated the First Amendment. Id. at 517, 100 S.Ct. at 1294. Ehrhard says the court erred in granting the directed verdict, and also by refusing to let her present rebuttal evidence at the trial. After reviewing the record, we affirm the judgment of the district court. I. 3 In deciding whether "party affiliation" is "an appropriate requirement for the effective performance of the public office," Branti, 445 U.S. at 518, 100 S.Ct. at 1295, this court has employed a two-part inquiry. We have looked, first, to the nature of the position, asking whether it involves "governmental decisionmaking on issues where there is room for political disagreement on goals or their implementation," and whether "party goals or programs affect the direction, pace, or quality of governance." Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en banc ). We have also looked to the particular responsibilities of the office holder, asking whether she is "a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally important requirement." Id.; see also Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir.1987) (courts must ask, first, "does the position implicate partisan interests?" Then, if so, they must ask whether "the position involves 'policymaking, access to confidential information, communications, or similar functions' "). 4 In this case, we have taken the basic facts from the record, determining what happened by viewing the evidence in a light favorable to the plaintiff. See Rainey v. Gay's Express, Inc., 275 F.2d 450, 451 (1st Cir.1960). Whether those facts demonstrate a job that falls within the Elrod-Branti "party affiliation" exception, however, is a question of law. In light of the important constitutional and governmental interests surrounding the application of the exception, we believe it the kind of legal question that the court, not the jury, is best suited to determine. See Branti, 445 U.S. at 508-11, 100 S.Ct. at 1289-91. Having independently reviewed the record, we find that the job in question falls within the Branti exception for positions that legitimately require political affiliation or loyalty. II. The key facts are the following: 5 1. The Constitution of Massachusetts ranks the Secretary of State third (after the Governor and the Lieutenant Governor), in order of succession. His office, among other things, handles the state census, re-districting, and election procedures, registers corporations, and sells state publications, such as building codes and other regulations. It also provides information about corporations, elections, and state agencies to the public, over the telephone and in person at two offices, a main office in Boston and SOS West. The Secretary's office engages in various activities to promote its services. It sponsors seminars on issues of public interest, and technical seminars for attorneys on the incorporation process. It sponsors a "Voter Hall of Fame" throughout the state, to honor people who have voted for 50 years or more, and it holds "voter symposiums." In voter districts outside of Boston, it has a program to "bring state government on the road," which involves presenting information about various state agencies. 6 2. The Secretary of State's office employs 200 to 250 persons. The Secretary himself and his Chief of Staff run the office. Beneath them are 5 Deputy Secretaries of State, and beneath the deputies are 20 Directors. Ehrhard was one of these 20 directors; the Deputy Secretary who supervised her was Monica Graham. All the deputies and most of the directors, including Ehrhard, were designated as holding a "major policymaking position" for purposes of the Massachusetts financial disclosure laws. Mass.Gen.Laws Ann., ch. 268B, Sec. 5 (Supp.1988) (all public employees who hold major policymaking positions must file annual statements of their financial interests). 7 3. Almost all Secretary of State employees work at the main Boston office. SOS West was staffed only by Ehrhard, two full-time clerical employees, one intern, and one "work/study" student. 8 4. The Secretary personally hired Ehrhard to direct the Western Office in October 1984. The job was not a civil service position, and Secretary Connolly did not advertise the job, solicit applications, or consider any applicant other than Ehrhard. Ehrhard's only prior work experience was in secretarial and clerical positions. As Ehrhard, in effect, admitted, Connolly hired her in part because she and her husband had worked in his 1984 state senate campaign. (Mr. Ehrhard was Connolly's Western campaign coordinator.) 9 5. SOS West provided information to citizens in the Western part of the state about corporations, elections, and state rules and regulations. It sold state publications. The office also ran a referral service, directing citizens' problems and inquiries to the proper state agency. Ehrhard described this last function as follows: 10 The other ... one was CIS, which was Central Information Service. And that was any questions that any of the citizens of the state might have about what--about anything. You know, whether it was something they had read in the paper or whether there was some problem. They didn't know which agency to call. They would call into us. And ... we ... probably could handle calls by either giving them the specific name of a person to speak to, or else telling the specific agency that they really needed to deal with, so CIS was another major part of it. 11 6. Although Ehrhard did not have final authority to hire and fire employees, she had "input" into SOS West hiring decisions. On one occasion, she interviewed a potential employee, and then met with several deputies and told them he did not have the skills her office needed; he was not hired. She supervised the other SOS West employees. She changed the office working hours, with her supervisor Monica Graham's approval, and she changed office procedures so that information was mailed to citizens directly from SOS West, instead of through the main Boston office. She suggested that SOS West, like the main Boston office, send out a special card, saying "We are glad to have been of service ... MICHAEL J. CONNOLLY," when sending information that citizens had requested through the Central Information Service. Graham approved, and Ehrhard then helped to design the card. Graham also asked Ehrhard for "input" on a brochure concerning SOS West. 12 Ehrhard also attended monthly directors' meetings, at which the Secretary's future "political strategy" was occasionally discussed. At one of these meetings, in January 1985, a consultant to the Secretary of State described the "public affairs" aspect of the directors' work, which included "marketing," i.e., promoting the office's services to the public, and "political" activities. At about the same time, Ehrhard had a conversation with a deputy, Joseph Ricca, about the public affairs aspect of their work. Thus, at least as of January 1985 she knew that the Secretary saw her job as director of SOS West to be partly one of "public affairs," and that he saw success in "public affairs" as important to his own aspirations for reelection and higher office. 13 7. In addition to the directors' meetings, in October 1984 Ehrhard was invited to a meeting of political supporters where Connolly spoke about his future political plans. Ehrhard also continued to be politically active on Connolly's behalf while she was director of SOS West. She hosted a party for his supporters in March 1985, and she ran for the position of delegate to the Democratic state issues convention. III. 14 The facts that we have mentioned, along with the other evidence in the record, make clear to us that political affiliation, or political loyalty, is an appropriate qualification for the position of Director of SOS West. For one thing, the SOS West office, though small, is one of only two offices in the state, with responsibility for its western portion. For another thing, the office deals directly with the public, providing its services on an individual basis. Further, the office provides information, not simply about corporate registrations or state regulations, but about "any question that any of the citizens of the state might have" about the workings of state government. As Ehrhard and the other witnesses described this aspect of the job, it seems less like providing a purely technical government service, such as water or electricity, than like providing direct, person-to-person assistance, the type of "case work" for political constituents that is the very bread and butter of local political life. Finally, the office sought to make members of the public aware that a particular elected official, Michael Connolly, had provided the services they had obtained. (Indeed, Ehrhard herself proposed using the "glad-to-have-been-of-service" card at SOS West. The Secretary's deputies approved the card, though they removed Ehrhard's own name, which she had wished to include on the card.) 15 Given SOS West's involvement in providing public information and referrals, in helping to solve citizens' problems, and in "public relations," we believe that "there is room for political disagreement" about how the office should be run, and about "its goals or their implementation." Jimenez Fuentes, 807 F.2d at 241-42. The political "goals or programs" of different Secretaries of State might directly affect the "direction, pace, or quality" of the work at SOS West. Id. It is true that the matters at stake in Ehrhard's job relate more directly to the personal political career of an official who seeks reelection or nomination within a party, than to the platforms of competing parties. But, we see no reason why that fact should make a critical difference when applying the Branti rule. Working to ensure the popularity and success of a particular elected official is as close to the heart of "politics" as is supporting a particular viewpoint on political issues. 16 Ehrhard argues that she was not aware of the overtly political tasks the Secretary wished her to undertake, such as being his "eyes and ears" in Western Massachusetts, and that her decisionmaking authority in her job was limited. We agree that a jury might find that her "particular responsibilities" as director of SOS West did not involve final policymaking authority. They did, however, involve "input" into hiring decisions, supervision of employees, and development of office policies and practices, such as the Central Information Service cards, mailing system, and working hours. The position of regional director is an administrative position within the Secretary's organization, and is described as a "policymaking" position for financial disclosure purposes. Ehrhard was also "privy to confidential information" about the Secretary's plans and opinions, including overtly political plans and opinions. And her basic, everyday job involved "communica[tion]" with the public. These facts, taken together, make clear that Ehrhard did not fulfill a purely clerical or technical role within the office; her job is within the standard set forth in Jimenez Fuentes. 17 In Jimenez Fuentes we found that "regional directors" who did not have "final policy-making authority" still held a policymaking position, because they were "sole directors of an entire region," and acted as "the alter ego of the Executive Director at the regional level." Id. at 245. Similarly, Ehrhard was the only administrative official in Western Massachusetts, and she, by running SOS West, represented the Secretary to the citizens of Western Massachusetts. Also, in other cases involving regional directors whose duties resembled Ehrhard's, we have held that at the least, there was no "clearly established" legal protection against political dismissal. For example, in Quintana v. Anselmi, 817 F.2d 891, 892-93 (1st Cir.1987), the plaintiff's duties, like Ehrhard's, included recommending personnel actions, representing the organization in community activities, supervising the implementation of programs, and establishing internal office procedures. In Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138, 140 (1st Cir.1986), the plaintiff "was responsible for implementing at the regional level the Agency's 'mission,' " and his job was classified as a "trust" position under Puerto Rico law, much as Ehrhard's job was designated as a policymaking position under Massachusetts law. 18 Ehrhard's job had enough in it of a "policymaker, a privy to confidential information" and a "communicator" to make political affiliation "an ... appropriate requirement." Jimenez Fuentes, 807 F.2d at 842. Therefore, even assuming defendants fired her for political reasons, their action did not violate the First Amendment. 19 Since the "rebuttal evidence" that Ehrhard wished to present did not concern the nature of her job, we need not consider her claim that the court improperly refused to permit her to present it. The judgment of the district court is 20 AFFIRMED.

219 F.3d 37 (1st Cir. 2000) UNITED STATES, Appellee,v.WALDEMAR GONZALEZ-VAZQUEZ, Defendant, Appellant.UNITED STATES, Appellee,v.HECTOR HERNANDEZ-NEGRON, Defendant, Appellant. No. 98-2108, 98-2109 United States Court of Appeals For the First Circuit Heard March 8, 2000.Decided July 18, 2000. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Hector M. Laffitte, U.S. District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted] Lydia Lizarribar-Masini for appellant Gonzalez-Vazquez. Mauricio Hernandez Arroyo for appellant Hernandez-Negron. Antonio A. Bazan, Assistant United States Attorney, with whomGuillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Camille Velez-Rive, Assistant United States Attorney, were on brief, for the United States. Before: Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge. LIPEZ, Circuit Judge. 1 Hector Hernandez-Negron and Waldemar Gonzalez-Vazquez appeal from their convictions following a trial for conspiracy to distribute controlled substances and aiding and abetting the distribution of controlled substances within one thousand feet of a school. Hernandez claims that he received ineffective assistance of counsel when his trial attorney failed to accept a plea bargain as instructed, and that the government then violated his constitutional rights by withdrawing the original plea offer and offering a new "package deal" plea bargain that Hernandez could only accept if his two remaining co-defendants also pled guilty. Hernandez also argues that the district court misapplied U.S.S.G. § 3B1.1 in finding him to be a "manager or supervisor" of the criminal activity. Gonzalez challenges the sufficiency of the evidence, arguing that it was based solely on testimony from the government's confidential informant. We reject these arguments (as well as several arguments concerning evidentiary errors) and affirm the convictions and sentence of Hernandez and the convictions of Gonzalez. I. Background 2 We recite the facts in the light most favorable to the jury's verdict, consistent with record support. See United Statesv. Hughes, 211 F.3d 676, 679 (1st Cir. 2000). In January 1995, FBI Agent Michael Anderson learned that an individual named Angel Gonzalez-Ortiz, a.k.a. "Pichi," headed a gang that distributed illegal drugs at the Luis Pales Matos housing project in Guayama, Puerto Rico. The distribution point was within 1000 feet of the Pales Matos Public School. Anderson opened an investigation, assisted by Agent Jose Tirado, a Puerto Rico Police officer who had performed some initial investigation of the drug ring. Anderson met with a confidential informant ("CI"), Ramonita Masso-Nieves, who had assisted Agent Tirado in his initial investigation. To corroborate the information provided by Masso, Anderson set up two video surveillance cameras at the drug point, recording numerous drug deals. 3 In February 1996 a Grand Jury returned a two-count indictment against twenty-two individuals, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1) & 846 and aiding and abetting the distribution of controlled substances within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly after the indictments, the government offered plea bargains to all of the co-defendants. Nineteen of the twenty-two co-defendants accepted a plea bargain; Hernandez, Gonzalez, and Louis Bonano-Serrano went to trial. 4 The jury trial lasted seven days. Through surveillance videotapes, the jury saw drug transactions involving many of the individuals who had pled guilty. Hernandez,Gonzalez, and Bonano, however, did not appear in these videos. The government attempted to link the defendants to the conspiracy through the testimony of Masso and Agent Tirado. Masso testified that, from her experience working at the drug point, she knew that Hernandez, Gonzalez, and Bonano were the "guilterro" or "triggermen" for Pichi, insuring that the kingpin and his interests were protected. She further testified that Gonzalez had provided drugs to the distribution point and that Hernandez was second in command, after Pichi himself. She also testified that on one occasion Hernandez had used her apartment to package drugs, and that she called Agent Tirado to inform him. Agent Tirado confirmed this, testifying that upon arriving at Masso's apartment, he found Hernandez and two others sitting around a table packaging a powder that a feld test indicated was cocaine. A chemist testified that later laboratory tests also indicated that the substance was cocaine. Tirado also testified thatwhen he stopped Gonzalez for a traffic violation he found a bag containing drug packaging paraphernalia. 5 Gonzalez and Bonano did not offer defense witnesses. Hernandez offered one witness: a co-conspirator who had pled guilty, and who testified that Hernandez had been with him when Agent Tirado came to Masso's apartment and found them packaging drugs. The jury found Hernandez and Gonzalez guilty on both counts. Bonano was acquitted. Hernandez was sentenced to 450 months and Gonzalez was sentenced to 360 months. 6 We evaluate Hernandez's claims first, turn then to the issues raised by Gonzalez, and finally address an issue raised by both appellants. II. Hernandez A. The Plea Bargain 7 Hernandez raises two arguments related to his unsuccessful efforts to obtain a plea agreement from the government. Like all of the twenty-two original co-defendants, Hernandez was offered a plea agreement after he was indicted in 1996. Nineteen of the co-defendants accepted the plea bargain and were sentenced to between eighteen and forty-six months. Hernandez, however, deferred a decision on the plea offer while preparing a motion to dismiss. After that motion was denied, Hernandez moved to compel the government to honor the initial plea agreement. The government responded that there had been no agreement. Rather, there had only been an offer that Hernandez had not accepted and that was now withdrawn. The government further stated that it had advised Hernandez that "trial preparation in this case would be the same against one or against any of the three co-defendants." 1. Ineffective Assistance of Counsel 8 Hernandez argues that he received ineffective assistance of counsel because his trial counsel mishandled the plea bargaining process by grossly underestimating Hernandez's potential sentence if the case were taken to trial, having stated that Hernandez could face a maximum of a ten year prison term when in reality he faced a life sentence (and in fact received thirty-seven and a half years). Additionally, Hernandez asserts that his trial counsel failed to accept the plea offer as instructed, allowing the offer to lapse. Hernandez asserts that he went so far as to call his sisters in the United States to enlist their help in bypassing his attorney and communicating to the government that he wanted to accept the plea bargain. 9 If true, Hernandez's claims would present a serious ineffective assistance question. See Boria v. Keane, 99 F.3d 492, 496 (1st Cir. 1996) ("A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable."); id. at 496-97 ("The decision whether to plead guilty or contest a criminal charge . . . must ultimately be left to the client's wishes."). However, "[w]e have held witha regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court." United States v. Berros, 132 F.3d 834, 841 (1st Cir. 1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63 (1st Cir. 1993)); see also United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989). 10 While there is an exception to this bar in cases "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of the ineffective assistance claim," United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir. 1994), Hernandez's claims require the resolution of factual disputes. We thus follow our usual practice of dismissing this portion of the appeal without prejudice to Hernandez raising the ineffective assistance claim in a 28 U.S.C. § 2255 petition. See id. 11 We note, though, that this seems to be one of the "rare section 2255 cases in which the appointment of counsel [would be] warranted." Mala, 7 F.3d at 1064. As in Mala, the allegation of ineffectiveness is serious and the record provides some support for the defendant's claim. Under the initial plea agreement that Hernandez's trial counsel allegedly refused to accept, Hernandez would have likely received forty-six months, given a reduction for acceptance of responsibility and the government's willingness to drop the aiding and abetting count and stipulate that Hernandez was only responsible for a fraction of the drugs. Both at the sentencing hearing and in an affidavit filed on appeal, Hernandez stated that he had instructed his trial attorney to accept the plea bargain because it was much less severe than the twenty years he was serving on Puerto Rico charges relating to his involvement in the conspiracy.1 After trial, Hernandez received a sentence of thirty-seven and half years--almost ten times the sentence he would have likely received pursuant to the proposed plea agreement. Moreover, the court ruled that the federal sentence could not be served concurrently with the related twenty year Puerto Rico sentence because the local courts were "too lenient." We therefore "direct the district court, if appellant petitions for section 2255 relief and demonstrates continued financial eligibility, to appoint counsel for him under 18 U.S.C. § 3006A(a)(2)(B)." Id. 2. The "Package Deal" Objection 12 Hernandez argues that the government violated his constitutional rights by withdrawing the original plea offer and replacing it with a "package deal" plea that Hernandez could only accept if his two remaining co-defendants also pled guilty. Because his co-defendants wanted a jury trial, Hernandez says he was unable to accept the agreement and was thus "forced" to go to trial. 13 Hernandez's objections have no merit. First, the government was under no obligation to leave its original plea offer open. At the sentencing hearing, Hernandez's counsel conceded that he had never accepted the initial plea offer, instead hoping for success on a motion to dismiss. He further conceded that "while we were waiting for disposition of those motions . . . at that point, between all that, the government withdrew." It is axiomatic that a prosecutor may withdraw a plea offer before a defendant accepts it. See United States v. Papaleo, 853 F.2d 16, 19-20 (1st Cir. 1988); see also Mabry v. Johnson, 467 U.S. 504, 507 (1984). 14 Given that the government was entitled to withdraw the initial plea offer, the question becomes whether the government could offer a new "package deal" plea bargain that would be available to Hernandez only if his two co-defendants also gave up their right to a jury trial. Assuming that a "package deal" offer was made2, it would not violate Hernandez's constitutional rights. Although we have expressed concerns with package deal plea agreements, those concerns have no application here. The difficulty with "package deal" plea offers is not the fear that a defendant, like Hernandez, will be "forced" to go to trial. Rather, it is the opposite fear that the defendant will involuntarily waive his right to a jury trial because his codefendants will coerce him to accept the plea agreement. SeeUnited States v. Martnez-Molina, 64 F.3d 719, 732 (1st Cir. 1995). We have held that "[p]ackage plea deals therefore impose special obligations: the prosecutor must alert the district court to the fact that codefendants are entering a package deal, and the district court must carefully ascertain the voluntariness of each defendant's plea." Id. at 733 (internal citations omitted) (vacating package deal guilty plea when district court did not determine if it was voluntary); see also United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir. 1987) (vacating package deal guilty plea when government did not inform trial court about nature of agreement). 15 The "voluntariness" concern that the defendant may have been coerced into giving up his right to go to trial obviously does not apply when the defendant does go to trial. It is difficult, then, to understand the constitutional right at stake here. While the "package deal" did limit Hernandez's ability to obtain a plea bargain (since the other defendants would also be required to plead guilty), the fact remains that "there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty." Weatherford v. Bursey, 429 U.S. 545, 561 (1977); see also United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (rejecting defendant's claim that package deal plea was unconstitutional because it "forced" him to go to trial). 16 B. Upward Adjustment for Supervisor / Manager Role 17 Section 3B1.1(b) of the United States Sentencing Guidelines calls for a three point increase to the base offense level "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b); see also United States v. Joyce, 70 F.3d 679, 682 (1st Cir. 1995). Hernandez claims that the district court erred in ordering a two level upward adjustment pursuant to §3B1.1(b) because he was not a "manager or supervisor." Since the determination of whether a defendant played this aggravated role is fact intensive, we will reverse a trial court's determination only if it is clearly erroneous. See United States v. Shrader, 56 F.3d 288, 293 (1st Cir. 1995); United States v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993). 18 As the district court noted at the sentencing hearing, Masso testified thatHernandez was second in command at the drug point. Moreover, Hernandez played a leadership role in arranging with Masso to use her apartment for drug packaging. Thus, there was sufficient evidence for the district court to conclude that the "defendant, in committing the crime, exercised control over, or was otherwise responsible for overseeing the activities of, at least one other person." United States v. Cali, 87 F.3d 571, 578 (1st Cir. 1996)(quoting United States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993)). As such, the imposition of supervisory liability under § 3B1.1(b) was not clearly erroneous. 19 There is one other issue related to the § 3B1.1(b) determination. Although the court found that § 3B1.1(b) applied, it decided to "give [Hernandez] a break on this one" and increase the offense by only two levels rather than the three called for by the guideline. This was error. As we noted in United States v.Rostoff, 53 F.3d 398, 412-14 (1st Cir. 1995), § 3 B1.1 sets forth a precise adjustment scheme3 that cannot be modified by the district court. The Sentencing Commission did not provide for a partial upward adjustment under § 3B1.1, in contrast to other provisions where the Commission authorized the sentencing judge to select an intermediate adjustment. See, e.g., U.S.S.G. § 2A2.2(b)(3)(D), (E) (intermediate adjustment allowed for injuries considered to be "between" specified categories of injuries); § 3B1.2 (intermediate adjustment allowed for mitigating role "falling between" minimal and minor participation). Therefore, a court may not "forgo the three-level increase called for by U.S.S.G. § 3B1.1(b) and instead impose a two-level increase" when it finds mitigating circumstances. United States v. Cotto, 979 F.2d 921, 922 (2d Cir. 1992); see also United States v. Kirkeby, 11 F.3d 777, 778-79 (8th Cir. 1993) ("A trial court's only options in cases involving a criminal activity with five or more participants are, therefore, a four-level enhancement under § 3B1.1(a), a three-level enhancement under § 3B1.1(b), or no enhancement at all . . . ."). 20 Although the district court erred in adjusting Hernandez's offense by two levels rather than three, the government did not cross-appeal. We therefore deem the issue waived and affirm the sentence. See generally United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 21 C. Limits on Hernandez's Cross-Examination of Tirado 22 Hernandez objects that the district court improperly limited his cross-examination of Jose Tirado, a Puerto Rico Police officer working (at the time of the conspiracy) for the Drugs and Narcotics Division in the Guayama area. Agent Tirado testified that acting on a tip from Masso, he obtained a warrant and entered her apartment with Guayama officers Laboy Rolon and Juan Rodrguez. Tirado stated that he found Hernandez and two of his co-conspirators packaging a white powder, which field tests indicated was cocaine. The drugs were seized and stored in Rodriguez's locker. 23 Hernandez wanted to cross-examine Tirado about allegations that Rodrguez and other Guayama area officers were corrupt. The district court ruled that while questions on the chain of custody of the drugs would be allowed, "you cannot benefit from somebody else's corruption, and it is immaterial to this case." The court reasoned that the corruption was "immaterial" because Tirado himself had never been accused of corruption and because the corruption of other officers at the local level did not implicate the federal prosecution. 24 The Confrontation Clause of the Sixth Amendment secures a right to cross-examination in order to test "the believability of a witness and the truth of his testimony." United States v. Carty, 993 F.2d 1005, 1009 (1st Cir. 1993). The right to cross-examine, however, is not unlimited. When a witness's credibility is at issue, the trial court may limit cross-examination as long as the court allows "sufficient leeway to establish a reasonably complete picture of the witness' veracity, bias, and motivation." United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal quotation marks omitted). "Confrontation clause challenges are reviewed de novo to determine whether defense counsel was afforded a reasonable opportunity to impeach adverse witnesses; once that threshold is reached, the trial court's restrictions on the extent and manner of cross-examination are reviewed only for abuse of discretion." United States v. Balsam, 203 F.3d 72, 87 (1st Cir. 2000) (citing United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999)). 25 The district court's unwillingness to allow Hernandez to question Tirado about the corruption of other police officers did not prevent the jury from obtaining "a reasonably complete picture of the witness' veracity, bias, and motivation." Laboy-Delgado, 84 F.3d at 28 (emphasis added). While a magistrate judge's pre-trial report adopted by the district court contained evidence that some police officers (including Rodrguez) had behaved corruptly in other drug cases, there was no allegation that Tirado was himself corrupt. Indeed, Tirado provided the United States with information that helped implicate other corrupt officers. Thus, any testimony tending to show that these other officers were dishonest would not implicate Tirado's veracity, bias, and motivation. More concretely, cross-examination that attacked Rodrguez's integrity would do nothing to cast doubt on Tirado's claims that (1) he personally saw Hernandez packaging a white powder, (2) he personally observed a field test indicating that the white powder was cocaine, and (3) he recognized the drugs from the laboratory as those seized from Hernandez. 26 Moreover, the district court did not completely bar Hernandez from questioning Tirado about Rodrguez. Rather, the court allowed extensive questioning as to how Rodrguez handled the evidence in this case, including the unusually lengthy storage in Rodrguez's locker and the miscounting of the bags of drugs. The district court "retains wide latitude to impose reasonable limits" on cross-examination in order to avoid confusion of the issues or extended discussion of marginally relevant material. United Statesv. Twomey, 806 F.2d 1136, 1139 (1st Cir. 1986). Since Hernandez was unable to offer any evidence that Rodrguez corruptly handled the case against Hernandez, it was not unreasonable for the court to limit Hernandez to questioning Tirado about these concrete factors relating to storage and quantification rather than allowing a broad inquiry into the corruption of third party police officers who were not appearing as witnesses. III. Gonzalez A. Sufficiency of Evidence 27 Gonzalez was convicted of conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a)(1) & 846, and of aiding and abetting the distribution of controlled substances within one thousand feet of a school, 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. The evidence tying him to the drug operation came primarily from Masso, a paid government informant. Gonzalez does not argue that the evidence, taken as a whole, was insufficient. Rather, Gonzalez claims that "[t]he evidence, excluding Ramonita Masso, is legally insufficient to support appellant's conviction." (emphasis added). We reject Gonzalez's sufficiency challenge. His premise that Masso's testimony must be disregarded as"not trustworthy" because of her informant status is unsupportable. 28 It is well-established that "the testimony of interested informants is not so inherently unreliable that it must be excluded." United States v. Cresta, 825 F.2d 538, 546 (1st Cir. 1987). A conviction may be based solely on the uncorroborated testimony of a confidential informant "so long as the testimony is not incredible or insubstantial on its face." United States v.Ciocca, 106 F.3d 1079, 1084 (1st Cir. 1997) (quoting United Statesv. Andujar, 49 F.3d 16, 21 (1st Cir. 1995)). While the credibility of an interested informant can be challenged, the challenge should ordinarily be directed to the jury, not the appellate court. Thus, when an informant is paid a contingent fee, "the jury must be informed of the exact nature of the contingency agreement; the defense counsel must be permitted to cross-examine the witness about the agreement; and the jury must be specifically instructed to weigh the witness' testimony with care." Cresta, 825 F.2d at 546; see also United States v. Fernandez, 145 F.3d 59, 62 (1st Cir. 1998) (plain error review when defendant does not request the "special care" instruction). When these "established safeguards,"id., are met, we will not disturb a conviction based on the testimony of an interested informant. 29 Masso's testimony was certainly not "incredible or insubstantial on its face." Ciocca, 106 F.3d at 1084. She provided detailed descriptions of Gonzalez's participation in the drug distribution operation. Gonzalez was allowed to--and did--vigorously cross-examine Masso, suggesting that her testimony was untruthful. Masso admitted that she had started working at the drug point before she made a decision to serve as an informant. Gonzalez also brought out inconsistencies between Masso's trial testimony--where she identified Gonzalez as a "triggerman" and recalled an incident when he delivered drugs to the distribution point--and her investigative interviews with Agent Tirado and Agent Anderson. During the closing, Gonzalez argued that Masso was now lying about Gonzalez's role due to compensation she had acknowledged on direct: $10,000 for expenses, $10,000 for her availability, and the promise of a "bonus" upon completion of the trial, regardless of its result. Finally, the trial court instructed the jury to weigh Masso's testimony with care.4 Despite this admonition, the jury rejected Gonzalez's defense that Masso was lying and voted to convict. We have no reason to disturb the verdict on sufficiency grounds. B. The Traffic Stop 30 Gonzalez argues that the district court erred in failing to strike Agent Tirado's testimony that he saw Gonzalez with drug paraphernalia as he left the distribution point. Tirado testified that on March 4, 1994, he stopped Gonzalez for traffic violations as he left the housing project on his motorcycle. A consensual search of Gonzalez's sports bag revealed a scale, a sieve, plastic containers, and pieces of aluminum--items Tirado recognized as frequently used to process controlled substances. When Tirado told the other officers, "Look what this guy has in here," Gonzalez began to run. 31 After cross-examination of Agent Tirado was complete, Gonzalez moved to strike the testimony concerning the traffic stop on the grounds that the evidence was irrelevant to the conspiracy charges and, even if relevant, unduly prejudicial underFed. R. Evid. 403. The trial court denied the motion to strike, stating,inter alia, that the evidence was relevant (and more probative than prejudicial) because "he was at the drug point within the time frame of the conspiracy and carrying paraphernalia is consistent with drug trafficking." We review evidentiary rulings for abuse of discretion. United States v. Rodrguez, 162 F.3d 135, 142 (1st Cir. 1998). 32 The evidence was plainly admissible as relevant evidence of the conspiracy: combined with the testimony of Masso, it suggested that Gonzalez was a member of the drug ring at the housing project. Likewise, "it is only unfair prejudice, not prejudice per se, against which Rule 403 guards." United States v.Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995). "Unfairly prejudicial evidence is evidence having some quality that moves the jury to attribute to it excessive probative value. It is evidence that 'triggers [the] mainsprings of human action [in such a way as to] cause a jury to base its decision on something other than the established proposition in the case.'" United States v. Currier, 836 F.2d 11, 18 (1st Cir. 1987) (quoting 1 Weinstein's Evidence § 403[03], 36-39 (1986)). The items Gonzalez was carrying did not create a danger of such unfair prejudice. Rather, a reasonable jury could consider the testimony concerning these items as circumstantial evidence of Gonzalez's involvement in the conspiracy. IV. Hernandez and Gonzalez 33 Hernandez and Gonzalez argue that the district court erred in admitting the testimony of Puerto Rico Police Officer Gregorio Duran regarding investigations and surveillance at the Luis Pales Matos housing project. Duran testified that while investigating drug distribution at the housing project he observed Hernandez, Gonzalez, and Bonano acting as Pichi's bodyguards. Cross-examination, however, revealed that Duran was unsure precisely when he saw the co-defendants. Since some of Duran's observations were made before the charged conspiracy, he could not be certain that he had seen the defendants within the time frame of the conspiracy. Surveillance reports that could have been used to clarify when Duran saw the defendants, or to impeach his testimony if the defendants were not mentioned in them, could not be obtained because they were stored in a Puerto Rico facility that OSHA had declared highly contaminated. 34 In response, Hernandez and Gonzalez requested a mistrial. Although arguing that no mistrial was necessary, the government suggested to the district court that it might strike Agent Duran's testimony and issue a curative instruction. The trial court reasoned that there was no basis for a mistrial--or even for striking the testimony--because 1) the reports were unavailable to the government, 2) there had been no misconduct, and 3) the defendants "have had the chance to cross-examine this witness and really attack his credibility on the grounds that he did not observe the matters within the time frame." Nonetheless, the court agreed to strike the testimony and issue the cautionary instruction because "the Government wants to do that." On appeal, Gonzalez and Hernandez claim that Agent Duran's testimony impermissibly bolstered Masso's testimony. Given that Duran's testimony was struck, the only possible legal argument is that the remedy of striking the testimony and issuing a cautionary instruction was insufficient to cure the harms caused by the allegedly inadmissible testimony and that the mistrial the defendants sought should have been granted. 35 We find no error in the trial court's denial of a mistrial, much less the manifest abuse of discretion required for reversal. See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995) ("Mistrial is a last resort, to be employed only if the demonstrated harm can be cured by no less drastic means, such as a contemporaneous jury instruction."). Even assuming that Agent Duran's testimony was inadmissible(an assumption we make solely for the sake of argument), the district court's response--striking the testimony and issuing a curative instruction--was certainly adequate. The court told the jury: 36 Now, the testimony of Agent Gregorio Duran Malave concerning his observations that he saw the three defendants providing security service, body guarding 'Pichi', well I am ordering that testimony to be stricken from the record, and I am instructing you to erase it from your mind entirely, the way I told you, the way you swore to obey my instructions and follow the law. So again, I repeat, disregard that testimony , that portion of the testimony, that portion, entirely from your minds. 37 We presume that juries follow instructions. See United States v. Woodward, 149 F.3d 46, 73 (1st Cir. 1998). While this presumption may be rebutted "on a sufficient showing that the offending testimony reasonably could not have been ignored and that serious prejudice likely resulted," Rullan-Rivera, 60 F.3d at 18, no such showing has been made here. Indeed, Agent Duran's stricken testimony also implicated co-defendant Bonano as a bodyguard for Pichi. The jury, however, acquitted Bonano, indicating that they were not unduly influenced by the testimony. V. Conclusion 38 For the reasons stated herein, we affirm the convictions and sentences. Notes: 1 Three of Hernandez's relatives have also filed affidavits stating that Hernandez telephoned two of his sisters (who lived in Ohio) to enlist their help in bypassing his attorney and telling the government directly that he wanted to accept the offer. 2 While the record is not entirely clear, it suggests that the government did offer Hernandez a "package deal." In response to Hernandez's motion to compel the government to accept its original plea offer, the government stated that "[Hernandez's] [c]ounsel was advised in no uncertain terms that . . . trial preparation in this case would be the same against one or against any of the three co-defendants." Moreover, when Hernandez informed the trial court that the government had offered a "package deal" arrangement, the trial court seems to have accepted this characterization in deciding that such an arrangement was unproblematic, and the government did nothing to challenge this characterization. 3 If a crime involves "five or more participants or was otherwise extensive," the Guidelines provide for a four level enhancement for an "organizer or leader," U.S.S.G. § 3B1.1(a), and three levels for a "manager or supervisor," U.S.S.G § 3B1.1(b). For criminal activity on a smaller scale, the Guidelines provide for a two level upward adjustment for all four roles--organizers, leaders, managers or supervisors. See U.S.S.G. § 3B1.1(c). 4 In addition to receiving a general instruction on witness credibility, the jury was advised that it should consider whether Masso's pre-trial statements were consistent with her testimony at trial and that the testimony of "an informer for pay" must "always be examined and weighed with greater care and caution than the testimony of an ordinary witness." We assume for the sake of argument that Gonzalez properly requested these instructions, though the record is unclear. See Fernandez, 145 F.3d at 62 (plain error review if "special care" instructions not requested).

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS January 12, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-41053 Summary Calendar ROGER DALE SPENCER, Plaintiff-Appellant, versus ROBERT BRUCE; COURT OF CRIMINAL APPEALS STATE OF TEXAS; LINDA MIRELES; SHERRI ADELSTEIN, Defendants- Appellees. ------------------------------------------------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:04-CV-425 ------------------------------------------------------------- Before DeMOSS, STEWART and PRADO, Circuit Judges. PER CURIAM:* Roger Dale Spencer, Texas prisoner # 788154, appeals the dismissal of his 42 U.S.C. § 1983 complaint challenging the actions of the trial court and the Texas Court of Criminal Appeals in addressing his state postconviction applications. The district court dismissed Spencer’s claims pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim. Spencer’s claims are properly raised under § 1983 because he is challenging the procedures used to consider his state * 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. application, and the only relief requested is another opportunity to file his claims. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)(parole procedures). To the extent that Spencer is asserting that he was denied access to the courts, his assertion is unavailing because he was able to prepare and transmit his applications to the state court. See Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). Spencer asserts that he was denied due process because the state court failed to comply with state law and did not hold a hearing on his applications. Spencer has not established that he was denied his right to be heard “in a meaningful manner.” Price v. City of Junction, 711 F.2d 582, 589 (5th Cir. 1983). Spencer’s claim that he was denied equal protection is unavailing, in light of his failure to assert that he was treated in a discriminatory manner as a result of race or another improper motive. See Thompson v. Patteson, 985 F.2d 202, 207 (5th Cir. 1993). Although the district court did not offer Spencer an opportunity to amend his complaint before dismissing it, Spencer cannot show that amendment would have remedied the errors in his case. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Spencer has not established that the district court abused its discretion by dismissing his civil rights action under § 1915(e). See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002). The judgment of the district court is affirmed. See Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981). The district court’s dismissal of Spencer’s complaint as frivolous counts as one strike under § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Spencer is cautioned that if he accumulates three strikes, he may no longer proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). AFFIRMED; SANCTION WARNING ISSUED. 

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473 F.2d 912 U. S.v.Groce 72-1973 UNITED STATES COURT OF APPEALS Sixth Circuit 2/27/73 W.D.Ky., 341 F.Supp. 795 AFFIRMED

905 P.2d 71 (1995) 80 Hawai`i 96 Frederick K. SHIMOTE, Plaintiff-Appellee, v. Kay Tokie VINCENT, as Special Administrator of the Estate of Albert Vernon Vincent, Deceased, Kay Tokie Vincent, Defendants-Appellants, and Trustees of the Estate of Bernice Pauahi Bishop, Richard Lyman, Jr., in his capacity as President of the Bernice Pauahi Bishop Estate, Henry Peters, William S. Richardson, Matsuo Takabuki and Myron B. Thompson, in their capacity as Trustees of the Estate of Bernice Pauahi Bishop, Honolulu Federal Savings and Loan Association, Bank of Hawaii, John Does 1-100, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe "Non-Profit" Corporations 1-10, and Doe Government Agencies 1-10, Defendants-Appellees. Kay Tokie VINCENT, Individually and as Special Administrator of the Estate of Albert Vernon Vincent, Deceased, Third-Party Plaintiffs/Appellants, v. Henry H. FUKUSHIMA, Rose M. Fukushima, Henry Fukushima Contracting, Frank Moon, Oahu Sign Co., Ltd., Oahu Sign and Building Contractors, Clayton K. Tom, Master Builders, Inc., Mathew Kaonohi, Honsador Inc., and S & H Insurance Company, Third-Party Defendants/Appellees. Henry H. FUKUSHIMA, Rose M. Fukushima and Henry Fukushima Contracting, Fourth-Party Plaintiffs/Appellees, v. Frederick K. SHIMOTE, Alan Rowland and Ossipoff, Snyder & Rowland Architects, Inc., Fourth-Party Defendants/Appellees. No. 16679. Intermediate Court of Appeals of Hawai`i. October 5, 1995. Reconsideration Denied October 25, 1995. Certiorari Denied November 15, 1995. *73 Leslie S. Fukumoto and Michael A. Chambrella (Leslie S. Fukumoto, Attorney at Law, A Law Corporation, of counsel), on the briefs, Honolulu, for defendant-appellant. Gregory K. Markham, Peter Y.L. Pong and Keith K. Kato, on the brief, Honolulu, for fourth-party defendant/appellee. Michael F. McCarthy (Michael F. McCarthy, Attorney at Law, A Law Corporation, of counsel), on the brief, Honolulu, for plaintiff/appellee. Before KIRIMITSU, J., and SIMMS, Circuit Judge, in place of WATANABE, J., Recused, and NAKATANI, Circuit Judge, in place of ACOBA, J., Recused. KIRIMITSU, Judge. In this residential construction dispute, the Defendant/Third-Party Plaintiffs-Appellants, Albert Vernon Vincent[1] and Kay Tokie Vincent (collectively Vincents), appeal the First Circuit Court's December 17, 1992 order (December 17, 1992 Order) denying their Motion to Dismiss Complaint or in the Alternative for Stay of Proceeding on Plaintiffs Complaint. Vincents claim that the court erred by (1) denying their November 20, 1992 Motion to Dismiss Complaint or in the Alternative for Stay of Proceeding on Plaintiff's Complaint (November 20, 1992 Motion) and (2) proceeding with trial after they filed their December 17, 1992 First Amended Notice of Appeal. We affirm. I. FACTS On January 12, 1979, Vincents hired the architectural firm of Ossipoff, Snyder, and Rowland to construct a house at 1920 Laukahi Street, Wai`alae Iki, Honolulu, Hawai`i. Vincents also entered into a construction contract with Master Builders Inc. to build the residence. Due to numerous problems, including bankruptcy, Master Builders Inc. ceased construction. On December 22, 1981, Vincents entered into a construction contract with Third-Party Defendant/Fourth-Party Plaintiff Henry Fukushima (Fukushima) to complete the house. Fukushima assigned his contract to Oahu Sign & Building, who eventually walked off the project in 1983. On May 15, 1984, Vincents contracted with Plaintiff/Fourth-Party Defendant-Appellee Frederick K. Shimote (Shimote) to complete the house (May 15, 1984 Construction Contract). *74 After Vincents refused to pay the balance due, Shimote filed an Application for Mechanics' Lien on May 3, 1985. Vincents contend that the workmanship was incomplete and defective. On October 24, 1986, Shimote filed a Complaint for Damages and to Foreclose Mechanics' Lien, and on November 18, 1986, Shimote filed a First Amended Complaint for Damages and to Foreclose Mechanics' Lien. On February 23, 1987, Vincents filed an Answer to First Amended Complaint and a Counterclaim. For over six years, the parties prepared for trial. One month before the trial, set for December 21, 1992, Vincents filed the November 20, 1992 Motion. At the December 11, 1992 hearing, the trial court orally denied the November 20, 1992 Motion and stated that the case will proceed as scheduled for trial. On December 15, 1992, Vincents filed their Notice of Appeal. On December 17, 1992, the trial court entered its Order denying the November 20, 1992 Motion and Vincents filed the First Amended Notice of Appeal. Trial began as scheduled on December 21, 1992. The December 17, 1992 Order is an appealable collateral order, and we therefore have appellate jurisdiction. Association of Owners of Kukui Plaza v. Swinerton & Walberg Co., 68 Haw. 98, 107, 705 P.2d 28, 35 (1985). II. DISCUSSION A. Vincents assert that the trial court erred in its December 17, 1992 Order. On appeal, we review the denial of the motion to stay proceedings pending arbitration under the de novo standard. Koolau Radiology Inc. v. Queen's Medical Ctr., 73 Haw. 433, 439-40, 834 P.2d 1294, 1298 (1992) (holding that review of the denial of a motion to compel arbitration is under the de novo standard). We note that the trial court is statutorily required to follow Hawai`i Revised Statutes (HRS) § 658-5 (1985) which provides: No trial if issue referable to arbitration. If any action or proceeding is brought upon any issue referable to arbitration under an agreement in writing, the circuit court, upon being satisfied that the issue involved in the action or proceeding is referable to arbitration under such an agreement in writing, shall stay the trial of the action or proceeding until the arbitration has been had in accordance with the terms of the agreement, provided the applicant for the stay is not in default in proceeding with the arbitration. We have stated that: [i]f a suit is brought upon "any issue [possibly] referable to arbitration under an agreement in writing," the circuit court must decide whether any issue is referable to arbitration and, if its answer is yes, it must stay the trial of all of the issues in the suit until the arbitration has been had in accordance with the terms of the agreement. Rainbow Chevrolet, Inc. v. Asahi Jyuken (USA), Inc., 78 Hawai`i 107, 113, 890 P.2d 694, 700 (App.1995). Therefore, the initial question in this case is whether any issue is referable to arbitration. Id. Paragraph 18 of the May 15, 1984 Construction Contract between Shimote and Vincents states as follows: 18. DISPUTES: All disputes arising hereunder shall be submitted to the licensed architect, if any superintending said construction, and if none, then to the material company which may be surety on the bond; provided, however, that the architect's decision or the decision of the material company, as the case may be, shall be subject to arbitration if notice thereof is given by either party in writing within ten (10) days of the date of the decision. If there shall be no architect or material house, then all decisions shall be submitted to arbitration. In the event of arbitration, one arbitrator selected by the parties *75 hereto shall determine the dispute, and failing agreement as to the selection of an arbitrator, three disinterested arbitrators (who shall be licensed general contractors, architects, or structural engineers) shall determine the dispute, one to be appointed by each party hereto. If either party fails to name his arbitrator within ten (10) days after notice in writing of the appointment of the first arbitrator, the first arbitrator may name the second arbitrator. The two thus chosen, in either manner, shall name the third arbitrator. If they cannot agree within ten (10) days, either may request any judge of the Circuit Court of Hawaii [Hawai`i] within which the premises are situated to name the third arbitrator. The majority decision of the arbitrators shall be final and binding upon the parties hereto. Each party shall pay one-half of the costs of the arbitrators' fees and each party shall pay all other costs incurred by such party. (Emphasis added.) "When `the arbitration paragraph is clear and unambiguous its interpretation is a question of law which may be made by the appellate court.'" Rainbow Chevrolet, 78 Hawai`i at 112, 890 P.2d at 699 (quoting Koolau Radiology, 73 Haw. at 447, 834 P.2d at 1301 (brackets omitted)). The May 15, 1984 Construction Contract clearly provides that any dispute arising out of this contract "[i]f there shall be no architect or material house, then all decisions shall be submitted to arbitration." In this case, the dispute arose when Vincents refused to pay the balance due to Shimote because the house was allegedly incomplete and defective. Although the records are not clear whether an architect was still involved in the construction, it seems clear that Vincents ultimately had the right to arbitration of the dispute. Consequently, the arbitration paragraph is clearly meant to cover this dispute. Shimote, however, contends that Vincents waived their right to arbitration by failing to make a timely assertion of that right between the initial filing of the complaint on October 24, 1986, to the November 20, 1992 Motion, a period of over six years. We have stated: [n]otwithstanding the circuit court's failure to perform its statutory duty, a party may waive its right to arbitration by (1) failing to assert its right, Moorcroft v. First Ins. Co. of Hawaii, Ltd., 68 Haw. 501, 720 P.2d 178 (1986), or (2) taking actions that are "completely inconsistent with any reliance thereon." Association of Owners of Kukui Plaza v. Swinerton & Walberg Co., 68 Haw. 98, 110, 705 P.2d 28, 36 (1985) (citation omitted). However, a waiver of a right to arbitration will not be lightly inferred because of Hawai`i's public policy of encouraging arbitration as a means of settling differences. Kamaole Two Hui v. Aziz Enterprises, Inc., 9 Haw.App. 566, 854 P.2d 232 (1993). Rainbow Chevrolet, 78 Hawai`i at 114, 890 P.2d at 701. In Rainbow Chevrolet, supra, we dealt with actions that were not completely inconsistent with any reliance on the right to arbitration. Asahi in its answers "alleged that all or a portion of the claims alleged in the complaint are determinable by arbitration." Id. at 111, 890 P.2d at 698. After discovery was completed, Asahi moved to stay the proceedings pending arbitration. Id. at 112, 890 P.2d at 699. We decided that Asahi's actions were not inconsistent with its reliance on the right to arbitration. Id. at 114, 890 P.2d at 701. We focused on the point that Asahi, in its answers, asserted its intent to rely on the arbitration clause. With such clear intent, Asahi's participation in discovery cannot constitute waiver of its right to arbitration. We also noted that the process of obtaining information through discovery, in and by itself, was not completely inconsistent with a reliance on the right to arbitration. Id. As a result, the dispositive question is whether Vincents' conduct can be found to be inconsistent with a reliance on their right to arbitration. We conclude that Vincents' actions were completely inconsistent with a reliance on their right to arbitration. Vincents did not initially assert their intent to rely on their right to arbitration in their pleadings or answers. After six years of litigation, including *76 the filing of third and fourth party complaints, Vincents asserted their right in the November 20, 1992 Motion, which was about one month before trial. Although waiting for the completion of discovery, in and by itself, is not inconsistent with a reliance on the right to arbitration, actively participating in litigation for over six years without any notice of an intent to rely on arbitration until the eve of trial is clearly inconsistent. If Vincents notified Shimote about their intent to rely on the right to arbitration in their answer, or put Shimote on notice earlier in the proceedings, rather than notify Shimote on the eve of trial, Vincents' actions would resemble Asahi's actions in Rainbow Chevrolet, supra, and would not be completely inconsistent with a reliance on the right to arbitrate. Vincents actively filed various motions, opposing memoranda and discovery documents which would easily lead the other parties to believe that Vincents would proceed to trial. There was no hint or clue that Shimote would rely on the right to arbitrate until he filed his Motion to Stay the Proceedings for Arbitration. Some of the pleadings that Vincents filed in preparation and in the course of litigation in this trial are, as follows: (a) Memorandum in Opposition to Fukushima's Motion for Leave to File First Amended Answer and Cross-Claims; (b) Responsive Pretrial Statement; (c) Memorandum in Opposition to Fukushima's Motion to Dismiss Third Party Complaint; (d) Amended Responsive Pretrial Statement; (e) Memorandum in Opposition to Fukushima's Motion to Consolidate; (f) Memorandum in Opposition to Shimote's Motion to Compel Oral Deposition of Kay Vincent; (g) Memorandum in Opposition to Shimote's Motion for Partial Summary Judgment Filed on 10/15/90; (h) Memorandum in Opposition to Fukushima's Motion for Reconsideration of Order Denying Motion to Consolidate; (i) Memorandum in Opposition to Shimote's Motion for Partial Summary Judgment Filed on 4/26/91; (j) Settlement Conference Statement; (k) Memorandum in Opposition to Henry and Rose Fukushima's Motion for Summary Judgment; (l) Motion for Rehearing on Fukushima's Motion for Summary Judgment; (m) Memorandum in Opposition to Rose Fukushima's Motion for Summary Judgment; (n) Second Amended Responsive Pretrial Statement; (o) Notice of Taking Written Deposition Re: Regulated Industries Complaint Office; (p) Notice of Taking Oral Deposition Re: Fred Shimote; and (q) Motion for Order Compelling Discovery and For Sanctions. Since an appellate court may declare a waiver if defendants' conduct can be deemed inconsistent with any reliance on the right to arbitration, Swinerton, 68 Haw. at 110, 705 P.2d at 36, we conclude that Vincents waived their right to arbitrate. B. Vincents assert that the trial court lacked jurisdiction to proceed with trial following their appeal and that all subsequent orders following the appeal are null and void. We disagree. It is well settled that for appellate jurisdiction, the appeal of judgments, orders, and decrees in civil matters require finality, except as otherwise provided by law. HRS § 641-1(a) (1985). "[A] final judgment, order, or decree is not necessarily the last decision of a case. What determines the finality of an order or decree for purposes of appeal is the nature and effect of the order or decree." In re Castle, 54 Haw. 276, 278, 506 P.2d 1, 3 (1973) (citations omitted); see also In re [Hawai`i] Government Employees' Association, 63 Haw. 85, 88, 621 P.2d 361, 364 (1980) (citations omitted). There are, for example, orders falling "in that small class *77 which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. [541,] 546 [69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949)], quoted and followed in MDG Supply, Inc. v. Ellis, 51 Haw. 480, 481-82, 463 P.2d 530, 532 (1969). Such orders, as the Supreme Court observed, may not be effectively reviewable and rights may be lost, perhaps irretrievably, if review invariably awaited a final judgment. Id. Swinerton, 68 Haw. at 105-06, 705 P.2d at 34 (original brackets omitted). Orders denying a stay of proceedings until arbitration under HRS §§ 658-5 and -3 are such final orders in the above mentioned class. Id. at 107, 705 at 35. It is also generally accepted that once the appellate court obtains jurisdiction with the filing of a notice of appeal, the appellate court "deprives the [trial] court of jurisdiction to proceed further in the case, except for some matters." Kama`ole Two Hui v. Aziz Enters, Inc., 9 Haw.App. 566, 571, 854 P.2d 232, 235 (1993) (citing MDG Supply, Inc. v. Diversified Inv., Inc., 51 Haw. 375, 463 P.2d 525 (1969), cert. denied, 400 U.S. 868, 91 S.Ct. 99, 27 L.Ed.2d 108 (1970)). One such exception is collateral order appeals. 15A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3911 (2d ed. 1992). Where a collateral order is appealed, the trial court retains jurisdiction over the merits of the case. Id. See also United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir.1982) (finding that the trial court had jurisdiction over the merits of the case after the government appealed the order granting the defendant's motion to compel cooperation of government personnel), cert. denied, 460 U.S. 1091, 103 S.Ct. 1790, 76 L.Ed.2d 358 (1983); United States v. Crozier, 674 F.2d 1293, 1296-97 (9th Cir. 1982) (holding that the appellate court had jurisdiction to hear the interlocutory appeal on a restraining order and the district court retained jurisdiction to proceed with the trial), cert. granted and judgment vacated on different grounds, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984). By definition, orders denying a stay of proceeding pending arbitration involve collateral matters separate from the merits of the case. Accordingly, an appeal of the collateral order denying a stay of proceeding for arbitration does not divest the trial court's jurisdiction to continue with the merits of the case. Therefore, the trial court did not err by proceeding with trial following this appeal by Vincents. III. CONCLUSION For the aforementioned reasons, we affirm the circuit court's December 17, 1992 Order denying Vincents' Motion to Dismiss Complaint or in the Alternative for Stay of Proceeding on Plaintiff's Complaint and hold that the trial court retained jurisdiction after Vincents filed their December 17, 1992 First Amended Notice of Appeal. NOTES [1] Albert Vernon Vincent died on August 8, 1990. Kay Tokie Vincent, as the Special Administrator of the Estate of Albert Vernon Vincent, represents his interest.

935 F.2d 1286Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Winifred GOUDIE, Plaintiff-Appellant,v.Larry STARCHER, West Virginia Supreme Court of Appeals,Ancil G. Ramey, Defendants-Appellees. No. 90-7405. United States Court of Appeals, Fourth Circuit. Submitted Feb. 20, 1991.Decided June 20, 1991. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CA-90-989) Winifred Goudie, appellant pro se. S.D.W.Va. DISMISSED. Before PHILLIPS, WILKINSON and NIEMEYER, Circuit Judges. PER CURIAM: 1 Winifred Goudie appeals from the district court's order denying relief. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal on the reasoning of the district court. Goudie v. Starcher, CA-90-989 (S.D.W.Va. Oct. 29, 1990). 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. 2 DISMISSED.

802 F.2d 472 dChapinv.Controlled Water Emission 86-744 United States Court of Appeals,Federal Circuit. 9/15/86 DCT Affirmed 1 --------------- d Denotes patent appeals

278 F.2d 319 UNION CARBIDE CORPORATION, a corporation, Defendant and Third Party Plaintiff below, Appellant and Cross-Appellee,v.Ellen GOETT, As Administratrix of the Estate of Marvin Paul Goett, deceased, Plaintiff below, Appellee and Cross-Appellant,v.AMHERST BARGE COMPANY, a corporation, Third Party Defendant below, Appellee. No. 7588. United States Court of Appeals Fourth Circuit. Argued March 28, 1960. Decided April 19, 1960. Harvey Goldstein, New York City (Ernest Franklin Pauley, Charleston, W. Va., and S. Eldridge Sampliner, Cleveland, Ohio, on brief), for Ellen Goett, as administratrix etc., appellee and cross-appellant. Charles M. Love, Charleston, W. Va. (Charles R. McElwee, Charleston, W. Va., on brief), for Union Carbide Corp., appellant and cross-appellee. David D. Johnson, Charleston, W. Va., (Jackson, Kelly, Holt & O'Farrell, and W. T. O'Farrell, Charleston, W. Va., on brief), for Amherst Barge Co., appellee. Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and THOMSEN, District Judge. THOMSEN, District Judge. The Supreme Court has remanded this case, Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 359, 4 L.Ed.2d 341, so that this court may determine three questions, stated by the Supreme Court as follows: "(a) Whether the West Virginia Wrongful Death Act, as to this maritime tort, employs the West Virginia or the general maritime law concept of negligence; and, in the light of its determination, (b) whether the district judge's finding as to negligence is correct under the proper substantive law. To facilitate our discretionary review of the Court of Appeals' findings as to unseaworthiness, it should also determine whether the West Virginia Act incorporates this standard of the general maritime law in death actions involving maritime torts." The facts are fully stated in the original opinion of this court, 4 Cir., 256 F. 2d 449, and are summarized in the opinion of the Supreme Court. A. The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed. 524, and United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct 517, 3 L.Ed.2d 541, as interpreted by a majority of the Supreme Court in Goett and in Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305, 345, held that "in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty's standards * * * but under the substantive standards of the state law." 361 U.S. at page 319, 80 S. Ct. at page 345. "Under this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence." 361 U.S. at page 342, 80 S.Ct. at page 358. In his dissents in Hess and Goett, 361 U.S. 339, 80 S.Ct. 356 and 361 U.S. 344, 80 S.Ct. 359, Mr. Justice Whittaker, who was one of the majority of five in Skovgaard and Halecki, has stated that he does not interpret Skovgaard in the manner quoted above, and has indicated that he believes such cases are governed by "the general federal maritime law as remedially supplemented by the State's Wrongful Death Act". This brings him close to the position of the four justices who dissented in Skovgaard and Halecki and concurred "under compulsion" in Hess and Goett. It is not for us to resolve this problem; and in the view we take of the law it would make no difference in our answer to question (b) whether we follow the rule stated in the "opinion of the Court" in Hess and in Goett or the rule suggested by Mr. Justice Whittaker in his dissents. 1 There is no West Virginia case in point, although the Supreme Court of West Virginia has held that its Wrongful Death Act should be liberally construed. Richards v. Riverside Iron Works, 56 W.Va. 510, 49 S.E. 437. We have considered the arguments on both sides so well developed in the majority and minority opinions of the Second Circuit in Halecki v. United New York & New Jersey Sandy Hook Pilots Ass'n, 251 F.2d 708, and of the Third Circuit in Skovgaard v. The Tungus, 252 F.2d 14, which construed a statute essentially similar to the West Virginia Act. See also Holley v. The S. S. Manfred Stansfield, 4 Cir., 269 F.2d 317, and State of Maryland for Use of Smith v. A/S Nabella, D.C.D.Md., 176 F.Supp. 668, noting that the construction of the Virginia and Maryland Acts was aided by comparatively recent amendments to those Acts, giving the right to proceed in rem against a ship. There is no such provision in the West Virginia Act; that is an element to be considered, but it is not conclusive, since this is not an action in rem. 2 The West Virginia statute, Code, 54-7-5 et seq., like most wrongful death statutes, provides basically that if death is caused by an act, neglect or default which would have entitled the injured party to maintain an action if he had lived, then the person who would have been liable for the injury will be liable under the statute for the death. If Goett had survived he could have brought an action against Union Carbide in the West Virginia courts for the alleged negligence and unseaworthiness, and his right to recover in such an action would have been governed by general maritime law. It is true that such an action based on unseaworthiness was not recognized in 1863, when the West Virginia Wrongful Death Act was adopted, and that the principles presently controlling the negligence aspect of such an action had not been fully developed. We find, however, that the West Virginia legislature, in adopting the Wrongful Death Act, did not intend to limit recovery thereunder to actions based on the wrongful acts, neglects and defaults with which the legislators who adopted it were familiar, but that the statute was intended to cover all wrongful acts, neglects and defaults which from time to time would entitle an injured party to maintain an action under the applicable substantive law, whether the common law, statutory law or maritime law. The West Virginia courts apply all three, in appropriate cases. 3 We conclude that in a maritime tort death case West Virginia would "choose to incorporate the general maritime law's concepts of unseaworthiness or negligence". [361 U.S. 340, 80 S.Ct. 357.] 4 Counsel for Union Carbide argues that such a construction of the West Virginia Act violates the separation of powers doctrine, that a state legislature "cannot delegate its law-making power to another branch of government, whether judicial or legislative." We have found no authority supporting Union Carbide's argument. No delegation of law-making power is involved. The separation of powers doctrine does not require that the Wrongful Death Act be frozen so that it cannot respond to the development of the common law, as interpreted by West Virginia courts, or to the development of the maritime law. B. 5 Although we have concluded that the Supreme Court of West Virginia would apply maritime law concepts of negligence in such a case as this, we do not believe that it would run ahead of the federal courts and create duties not heretofore recognized or enforced by the Supreme Court of the United States or by the weight of other federal authority, and not applied by West Virginia courts in analogous situations. 6 In our former opinion in this case we said [256 F.2d 455]: "Nor was Carbide negligent in delivering the barge to Amherst without mounting life rings or other safety equipment on the barge, or in failing to rescue Goett after he fell into the river, as contended by his administratrix. There is, of course, a duty on a vessel and her owners to have life saving equipment available to rescue members of her crew who fall overboard while the vessel is in operation. Sadler v. Pennsylvania R. Co., 4 Cir., 159 F.2d 784, and cases cited. A similar duty is owed to business visitors who come aboard while the vessel is in the custody and control of her * * * owners. But in the instant case Carbide had delivered the barge into the sole custody and control of Amherst. Carbide's duty under those circumstances was to warn Amherst and its employees of any hidden danger or latent defect * * * in the barge. It was the duty of Amherst to supply its employees with a reasonably safe place in which to work. It knew and controlled the conditions of the work and the equipment which would be used. It was Amherst's responsibility to decide whether a temporary railing or stanchion should be erected, whether its men should be required to wear preservers, and whether and where life rings and other rescue equipment should be mounted. For negligence in any of these respects it would be liable to plaintiff herein for damages, were it not for the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950. But Carbide is not liable to plaintiff for negligence; it breached no duty it owed to Goett. Lester v. United States, [2 Cir., 234 F.2d 625, certiorari denied 352 U.S. 889, 77 S.Ct. 130, 1 L.Ed.2d 85]; West v. United States [D.C.E.D.Pa., 143 F.Supp. 473]; Raidy v. United States [D.C.D.Md., 153 F.Supp. 777, affirmed 4 Cir., 252 F.2d 117]; 38 Am.Jur., Negligence, sec. 97; Restatement, Torts, §§ 340, 343; Harper and James, The Law of Torts, vol. 2, sec. 21.1." 7 Since our opinion in this case was written West has been affirmed by the Third Circuit, 256 F.2d 671, and by the Supreme Court, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161, emphasizing the importance of control of the vessel at the time of the injury as the decisive factor on both aspects of the case, negligence and unseaworthiness. See also, Halecki, supra, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, and Lawlor v. Socony-Vacuum Oil Co., 2 Cir., 275 F.2d 599, in all of which the vessel was in the control of the owner. The owner was also in general control of the vessel in all the stevedore and other cases cited by libelant. We adhere to our previous opinion on this point as a proper application of the general maritime laws' concept of negligence. It is also in line with the principles applied by West Virginia courts in analogous situations. Sesler v. Rolfe Coal & Coke Co., 51 W. Va. 318, 41 S.E. 216. Cf. Roberts v. Kelly Axe & Tool Co., 107 W.Va. 236, 148 S.E. 70, where the owner was in control of the premises. See also Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66 S.E.2d 441. C. 8 As stated above, we believe the West Virginia Act incorporates the general maritime law of unseaworthiness in death actions involving maritime torts. Our previous findings that Goett was not a person to whom the warranty of seaworthiness ran, and that the barge was not unseaworthy, is supported by the decision of the Supreme Court in West, supra. See also Lawlor, supra. 9 We adhere to our decision that judgment should have been rendered in favor of the defendant.

81 F.2d 947 (1936) COMMISSIONER OF INTERNAL REVENUE v. NEAVES. No. 7736. Circuit Court of Appeals, Ninth Circuit. February 10, 1936. Frank J. Wideman, Asst. U. S. Atty. Gen., and James W. Morris, Sewall Key, Lucius A. Buck, and Maurice Mahoney, Sp. Assts. to the Atty. Gen., all of Washington, D. C., for petitioner. Allen Spivock, of San Francisco, Cal., for respondent. Before GARRECHT, DENMAN, and HANEY, Circuit Judges. *948 GARRECHT, Circuit Judge. This case comes to us from the Board of Tax Appeals, upon petition of the Commissioner to review a decision of the Board holding "that there is no deficiency for the calendar year 1928." A deficiency had been determined by the Commissioner against the taxpayer, who appealed to the Board of Tax Appeals. It appears that in 1928 respondent was the owner of 80 shares of common stock of United Wire & Supply Company, which had been acquired December 29, 1926, at a cost of $1,600, and 150 shares of preferred stock of said company acquired in 1917 by gift from her father, which stock had a cost of $15,000. The respondent, a resident of California, kept the stock in a safe deposit box in Providence, R. I., to which her brother, who acted for her in business transactions under power of attorney, had access. In the latter part of 1928 the respondent was advised by her brother to sell the 80 shares of common stock and 150 shares of preferred stock of United Wire & Supply Company, to which she assented, but she had no knowledge to whom the stock was to be sold. On December 18, 1928, respondent's said brother sold the stock to respondent's father, receiving therefor $240 for the 80 shares of common stock and $6,545 for the 150 shares of preferred stock, and said amounts were paid to respondent by check of her father in the amount of $6,785 and deposited to respondent's account in the Phenix National Bank of Providence, R. I. There was no agreement or understanding between respondent and any other person that she could or would purchase back said stock or any part thereof, and the said sale price of $6,785 represented the prevailing market price of the stocks at the time of said sale. The said stock so sold or similar stocks were reacquired by respondent in May, 1929. In her income tax return for 1928 respondent claimed a loss of $1,360 on the sale of the 80 shares of common stock, and a capital net loss of $8,455 on the sale of the preferred stock, both of which claims the Commissioner disallowed on the ground that the transaction was not a bona fide sale. The respondent was the only witness to appear before the Board. It is the contention of petitioner that the taxpayer had the burden of overcoming the "presumption in favor of the correctness of the Commissioner's determination"; that she "had an added burden of proof because, (a) she was claiming the benefit of a deduction provision of the Revenue Act; (b) the transaction was with members of her family; and (c) the stock was repurchased during the following tax year." Petitioner argues that the taxpayer's evidence was wholly insufficient to carry her burden of proof. Section 23(e)(2) of the Revenue Act of 1928, 45 Stat. 791 (26 U.S.C.A. § 23 note), provides that a deduction shall be allowed an individual in computing net income where a loss is sustained during the taxable year and is not compensated for by insurance or otherwise, "if incurred in any transaction entered into for profit, though not connected with the trade or business." Section 118 of the same act (26 U.S.C.A. § 118 note) provides that no deduction for the loss shall be allowed under the above section 23(e)(2), "where it appears that within thirty days before or after the date of such sale or other disposition the taxpayer has acquired (otherwise than by bequest or inheritance) or has entered into a contract or option to acquire substantially identical property." Respondent's brief says: "The motive for the sale was apparently to secure a tax reduction and the taxpayer's right to do this cannot be questioned. * * *" The cases on the subject bear out this contention. "The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted." Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355. The Circuit Court of Appeals for the Second Circuit has said, in Commissioner v. Dyer, 74 F. (2d) 685, 686: "Any one is privileged to arrange his affairs so that his taxes shall be as low as the statute permits. * * * But the statute does not permit deduction of a loss claimed to have been sustained in a sale of stock where within thirty days before or after the date of such sale the taxpayer has entered into a contract or option to acquire substantially identical property and the property so acquired is held after such sale." The burden of proof to establish a deductible loss and the amount of it was upon the taxpayer. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. The taxpayer here established her loss by a showing of a sale, which the Commissioner held not to be an absolute *949 sale, and further held that the losses were not of such a nature as to render them deductible for purposes of taxation. "Unquestionably the burden of proof is on the taxpayer to show that the Commissioner's determination is invalid." Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 291, 79 L.Ed. 623. While the determination of the Commissioner is not conclusive, it is prima facie correct, subject to being proven otherwise by the taxpayer. Wickwire v. Reinecke, 275 U.S. 101, 105, 48 S.Ct. 43, 72 L.Ed. 184. The transaction, being between members of the same family, is subject to somewhat close scrutiny (Appeal of P. B. Fouke, 2 B.T.A. 219; Uihlein v. Commissioner, 30 B.T.A. 399, 402), but it is not, by that reason alone, to be held to lack good faith. If there was no agreement for the repurchase or return of the stocks, made within 30 days either way of the transaction, then the sale must be held to have been made in good faith. However, even though the repurchases were made beyond the 30-day period, such repurchases are not thereby validated if they were part of an original plan, and they are thereby ineffective to produce deductible losses. Shoenberg v. Commissioner (C.C. A.) 77 F.(2d) 446, 450. While the transaction in this case may have been viewed with suspicion, it was not necessarily fraudulent. It may even have been entered into for the very purpose of avoiding the tax (although the testimony is otherwise) and yet not be rendered "ineffective to produce deductible losses," if there was no agreement for return or repossession. The taxpayer positively testified that she did not know who the purchaser was and that she did not have any intention of repurchasing the stock at the time. This, if believed, was sufficient to overcome the prima facie presumption of correctness in favor of the Commissioner's determination. If the Commissioner claimed that the transaction was fraudulent, it was his duty to prove the fact. "There was nothing unlawful, or even mildly unethical, in the motive of petitioner, to avoid some portion of the burden of taxation. * * * If the transaction were attacked as fraudulent, the burden would be upon the Commissioner to establish such fraud by a clear preponderance of the evidence." Marshall v. Commissioner, 57 F.(2d) 633, 634 (C.C. A.6). "It is a general principle that fraud is never to be presumed, and he who avers it, takes upon himself the burden of proving it." Budd v. Commissioner, 43 F.(2d) 509, 512 (C.C.A.3). If the Commissioner meant to imply that the transaction was a sham and fraudulent, he did not attempt to prove it. The only witness before the Board was the taxpayer. It is the rule of this court that a "finding of the Board of Tax Appeals must be sustained if based upon any substantial evidence," and "we are bound by the decision of the Board, where the evidence does not compel a contrary conclusion." Old Mission Portland Cement Co. v. Commissioner, 69 F.(2d) 676, 679 (C.C.A.9). See, also, Commissioner v. Gerard, 75 F.(2d) 542, 544 (C.C.A.9). There was substantial evidence which afforded a basis for the finding of the Board, and it does not compel a contrary conclusion; therefore the decision of the Board of Tax Appeals is affirmed.

486 F.2d 1394 Geller, In The Matter of 72-1819 UNITED STATES COURT OF APPEALS Second Circuit 2/27/73 1 S.D.N.Y. AFFIRMED

754 N.E.2d 544 (2001) John MANN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 15A05-0012-CR-512. Court of Appeals of Indiana. August 3, 2001. *545 Sarah L. Nagy, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. OPINION VAIDIK, Judge. Case Summary John Mann appeals his conviction for Operating While Intoxicated (OWI) with a previous conviction, a Class D felony.[1]*546 Mann contends that the State failed to produce sufficient evidence to support his conviction. He also asserts that the State failed to authenticate documents concerning an alleged prior conviction from Ohio and that these documents were inadmissible hearsay. Finally, Mann asserts that his conviction should not have been enhanced to a Class D felony because the State failed to prove that he had previously been convicted of OWI under a similar statutory scheme to that of Indiana. We find that there was sufficient evidence to support that Mann was intoxicated where he scored .10 on the breath test, failed several sobriety tests, and drove erratically. Also, we conclude that the evidence of the prior conviction from Ohio was properly authenticated and admitted, and that Mann was convicted of OWI under a similar statutory scheme. Thus, we affirm. Facts and Procedural History Mann was traveling in his van around 10:30 p.m. when Officer Brian Miller of the Lawrenceburg Police Department noticed that the van was weaving back and forth and straddling two traffic lanes. Officer Miller saw the van nearly strike other vehicles. He then stopped the van and saw Mann behind the wheel. Officer Miller observed that Mann's eyes were bloodshot and that he smelled of alcohol. Mann admitted to drinking three beers that evening and agreed to submit to field sobriety tests. As Mann was exiting the van, he either tripped or staggered and had to catch his balance. Officer Miller administered several field sobriety tests. Mann failed the finger count test, finger to nose test, backward count test, and the walk and turn test. Mann passed the Rhomberg balance test. Then, Mann agreed to take a breath test, and he registered .10 on the test. Mann was arrested, and charged with the following four counts: Count I, OWI, as a Class A misdemeanor;[2] Count II, OWI with a BAC level of .10 or above, as a Class C misdemeanor;[3] Count III, OWI with a prior conviction, as a Class D felony; and Count IV, OWI with a BAC level of .10 or above with a prior conviction, as a Class D felony.[4] After a jury trial, Mann was found guilty on all counts. The trial court merged all counts into Count III. The court only entered judgment on this count and sentenced Mann to three years' imprisonment. Mann now appeals. Discussion and Decision Mann argues that there was insufficient evidence to support his conviction. Further, he claims that the evidence of his prior conviction in Ohio was not properly authenticated and was inadmissible hearsay. Finally, Mann contends that his conviction should not have been enhanced to a Class D felony because the State failed to prove that he has a prior OWI conviction under a statutory scheme similar to that of Indiana. We address each argument in turn. I. Sufficiency of the Evidence First, Mann contends that the State failed to provide sufficient evidence to support his OWI conviction. Specifically, he asserts that there was no evidence that he was impaired because he passed one field sobriety test, he was compliant and orderly, and Officer Miller was not certified to and did not give a particular field sobriety test to Mann. When reviewing sufficiency of the evidence, we neither reweigh the evidence nor assess witness credibility. Weaver v. State, 702 N.E.2d 750, 752 (Ind. *547 Ct.App.1998). We look solely to the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. at 752-53. If the probative evidence and the reasonable inferences to be drawn from the evidence could have permitted a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, then we will affirm. Id. at 753. To convict Mann, the State had to prove that he operated a motor vehicle while intoxicated. I.C. § 9-30-5-2. Intoxicated is defined as "under the influence of: (1) alcohol . . . so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to an extent that endangers a person." Ind.Code § 9-13-2-86. Mann asserts that his conviction should be reversed because the State only produced evidence of intoxication through his breath test. He cites Warner v. State, 497 N.E.2d 259, 262 (Ind. Ct.App.1986), to support the proposition that the State must show evidence of impairment and that a BAC of .10 or more is not sufficient by itself to establish that a driver is intoxicated. Intoxication may also be established through evidence of consumption of significant amounts of alcohol, impaired attention and reflexes, watery or bloodshot eyes, an odor of alcohol on the breath, unsteady balance, failed field sobriety tests and slurred speech. Ballinger v. State, 717 N.E.2d 939, 943 (Ind.Ct.App.1999). Here, the State introduced evidence other than the BAC test result as proof of Mann's impairment. In particular, Officer Miller witnessed Mann's van weaving and straddling two lanes, nearly hitting other vehicles. Mann's eyes were bloodshot and he smelled of alcohol. Further, Mann tripped or staggered as he exited his vehicle, and Mann failed four field sobriety tests. Mann's claim that he was compliant and orderly and that Officer Miller was not certified to give him another field sobriety test amounts to an invitation to reweigh the evidence. This we will not do. Thus, the State presented sufficient evidence to support Mann's conviction. II. Authentication Next, Mann argues that the State failed to authenticate documents concerning an alleged prior conviction from Ohio and that these documents were inadmissible hearsay. The trial court admitted State's Exhibit 5, which consisted of a traffic ticket showing that Mann was charged with operating a vehicle with a concentration of ten-hundredths of one gram by weight of alcohol per two hundred ten liters of breath and a journal entry showing that Mann was found guilty and the imposed sentence. Before evidence may be admitted, proof must be given that the matter in question is what its proponent claims. Ind. Evidence Rule 901(a). Indiana Evidence Rule 901(b)(1) provides that evidence may be authenticated by testimony of a witness with knowledge that a matter is what it is claimed to be. Further, Indiana Evidence Rule 901(b)(10) states that evidence may be authenticated by any other method provided by the Indiana Supreme Court, statute, or our constitution. One such method is found in Indiana Trial Rule 44(A)(1), which allows for an official record kept within the United States to be authenticated by a public officer who has official duties in the district where the record is kept. Specifically, Rule 44(A)(1) reads, An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, . . . when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of *548 the record, or by his deputy. Such publication or copy need not be accompanied by proof that such officer has the custody. Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having the seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. Here, the State authenticated the documents comprising State's Exhibit 5 with the testimony of Mark Gramaglia, who is a deputy clerk from the Ohio court that convicted Mann. This meets the requirements of both Evidence Rule 901(b) and Trial Rule 44(A)(1). Mann concedes that State's Exhibit 5 was properly authenticated under these rules, but he maintains that Indiana Code § 34-39-4-3 controls the authentication of an official record from another jurisdiction. The statute discusses the admissibility of records from foreign jurisdictions. It reads that records from other jurisdictions "shall be admitted in Indiana courts as evidence when authenticated by attestation or certificate of the clerk or prothonotary. . . ." Mann argues that because the documents were signed by a deputy clerk and not by the clerk personally, the documents were not properly authenticated. This argument fails. We hold that meeting the requirements of both Evidence Rule 901(b) and Trial Rule 44(A)(1) is sufficient to authenticate court documents from other states. Here, Deputy Clerk Gramaglia, who is entrusted with official duties in his district, testified at trial that the documents were what the State purported them to be, and this is sufficient to authenticate the documents. Mann argues in his brief that even if the documents were properly authenticated, they are inadmissible hearsay. However, he concedes in his reply brief that the documents fall under the public records exception to the hearsay rule found in Indiana Evidence Rule 803(8). Thus, we need not address this contention. III. Enhancement Finally, Mann claims that the State failed to provide evidence that he had previously been convicted of OWI under a similar statutory scheme. Thus, he asserts that his conviction for OWI as a Class D felony may not stand. Indiana Code § 9-30-5-3 serves to enhance an OWI conviction from a Class A misdemeanor to a Class D felony if a person has a previous conviction within the past five years. The term "previous conviction" is defined in Indiana Code § 9-13-2-130. Specifically, that section reads, "Previous conviction of operating while intoxicated" means a previous conviction: (1) in Indiana . . . or (2) in any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a crime described in IC 9-30-5-1 through IC 9-30-5-9. In particular, Mann asserts that the State had the burden of proving that the Ohio statute under which he was previously convicted is substantially similar to Indiana's OWI statutes. During trial, Mann's attorney asked that the court take judicial notice of the relevant Ohio statute. His attorney requested a directed verdict and stated, "I ask for any judicial notice of Ohio statutes so the jury can compare, take a look at that, what the elements of the offense were. . . ." Record at 426. The trial court replied, That would be an issue of law, not an issue of fact for the jurors. At this *549 point in time that can be, well, I'm not going to grant the directed verdict and the arguments that you can bring up can be argued in closing argument. Another chance to try and persuade the jury but the Court's not going to grant the directed verdict at this time. Record at 427. After this exchange, the State and Mann presented closing arguments in which they discussed whether the State proved that the Ohio statute was substantially similar to Indiana's OWI statutes. Under the Notice of Foreign Law Act ("the Act"),[5] the determination of foreign law shall be made by the court and not by the jury. Ind.Code § 34-38-4-3; Revlett v. Louisville & N.R. Co., 114 Ind. App. 187, 51 N.E.2d 95, 98 (1943), reh'g denied. Further, the Act applies to both civil and criminal cases. See Yurina v. State, 474 N.E.2d 93, 97 (Ind.1985); Masden v. State, 265 Ind. 428, 355 N.E.2d 398, 400 (1976). We will review questions of law under a de novo standard and owe no deference to a trial court's conclusions. South Bend Tribune v. South Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938 (Ind.Ct. App.2000). The Act provides that Indiana courts shall take judicial notice of the common law and statutes of every state, territory and other jurisdictions in the United States. I.C. § 34-38-4-1. Furthermore, the court may inform itself of the foreign laws in question and may ask counsel to aid the court in obtaining this information. Ind.Code § 34-38-4-2. Finally, although a court may seek assistance from a party to inform itself of the foreign law, there is no factual burden on a party to prove the foreign law. Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., 492 N.E.2d 686, 691 (Ind.1986). In the instant case, Mann's trial counsel requested that the court take judicial notice, but the court did not do so. Although the trial court correctly noted that the determination of foreign law is a question of law for the court, it seemed to place the question of whether the two statutes in questions were substantially similar before the jury for consideration. We conclude that the trial court should have taken judicial notice of the Ohio statute and determined that the statute was substantially similar to Indiana's OWI statutes. Mann was charged and convicted under Ohio Revised Code § 4511.19(A)(3), which provides in relevant part: (A) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply: * * * (3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath. This provision is substantially similar to Indiana's version of this statute, Indiana Code § 9-30-5-1, which read at the time: A person who operates a vehicle with an alcohol concentration equivalent to at least ten-hundredths (.10) gram of alcohol but less than fifteen-hundredths (.15) gram of alcohol per: * * * (2) two hundred ten (210) liters of the person's breath; commits a Class C misdemeanor. Because the trial court should have taken judicial notice of the Ohio statute and declared that the Indiana and Ohio statutes are substantially similar, we uphold *550 Mann's conviction for OWI as a Class D felony.[6] Judgment affirmed. ROBB, J., and BROOK, J., concur. NOTES [1] Ind.Code § 9-30-5-3. [2] Ind.Code § 9-30-5-2. [3] Ind.Code § 9-30-5-1. [4] Ind.Code § 9-30-5-3. [5] Ind.Code § 34-38-4-1 et. seq. [6] Mann also argues that the trial court erred in allowing the State to amend the charging information on the day of trial and in instructing the jury with respect to the other counts charged. However, because the trial court merged these counts and only one judgment was entered, we need not address these claims. See Carter v. State, 750 N.E.2d 778, 781 (Ind.2001).

166 Wis.2d 614 (1992) 480 N.W.2d 499 IOWA COUNTY, a municipal corporation and Honorable James P. Fiedler, Circuit Court Judge, Plaintiffs-Respondents, v. IOWA COUNTY COURTHOUSE/SOCIAL SERVICES EMPLOYEES, LOCAL 413, AFSCME, AFL-CIO and Kristy K. Spurley, as President of Local 413, Defendants-Appellants. No. 90-2015. Supreme Court of Wisconsin. Oral argument January 2, 1992. Decided March 4, 1992. *616 For the defendants-appellants there were briefs by Bruce F. Ehlke and Lawton & Cates, S.C., Madison and oral argument by Mr. Ehlke. For the plaintiffs-respondents there was a brief by Kirk D. Strang and Godfrey & Kahn, S.C., Madison and Joel L. Aberg and Weld, Riley, Prenn & Ricci, Eau Claire and oral argument by Mr. Strang. Amicus Curiae brief was filed by Robert W. Mulcahy, John J. Prentice and Michael, Best & Friedrich, Milwaukee for Wisconsin Counties Association. WILLIAM A. BABLITCH, J. AFSCME Local 413 appeals a decision of the Circuit Court for Iowa County. The circuit court held that a collective bargaining agreement could not usurp the power of the circuit court judge to appoint a register in probate. Section 851.71(1), Stats., provides that "the judges of the county shall appoint . . . a register in probate." The statute is clear and unambiguous. Accordingly, we affirm the judgment of the circuit court. *617 The relevant facts are not in dispute. AFSCME Local 413 is a labor organization that represents certain employees of Iowa County. At all times material to this action, there was in effect a collective bargaining agreement between Local 413 and Iowa County pursuant to sec. 111.70, Stats. This agreement governs the wages, hours, and other conditions of employment of the employees represented by Local 413. The register in probate is an employment position included in the bargaining unit represented by Local 413. The collective bargaining agreement states that a vacancy in any bargaining unit position must be posted before it is filled. The purpose of this provision is to give current Iowa County employees a chance to apply for the position. The agreement also provides that if two persons with similar qualifications are considered for a vacant position, the position must be filled by the person with the greatest seniority. Any disputes under the agreement must be settled through arbitration. In 1989, a vacancy occurred in the register of probate position. Judge Fiedler filled the position without posting the vacancy. Local 413 filed a grievance against Iowa County alleging that Iowa County had filled the position of register in probate inconsistent with the bargaining agreement. Iowa County and Judge Fiedler then commenced an action seeking a declaratory judgment that the collective bargaining agreement did not supersede Judge Fiedler's authority to fill the position under sec. 851.71, Stats. The circuit court held that the power to appoint a register in probate, although provided for by statute, also derived from the Wisconsin Constitution Article VII and may not be superseded by a collective bargaining agreement authorized by statute. The circuit court also held that to the extent that provisions of the collective bargaining agreement between Iowa County *618 and Local 413 purport to regulate the appointment or removal of a register in probate, said provisions are void, and that the grievance filed by Local 413 is not subject to arbitration. Local 413 appealed to the court of appeals. This court accepted the certification of this case for review and determination. [1] The issue before us is whether the provisions of a collective bargaining agreement between Iowa County and AFSCME (Local 413) which deal with the hiring of covered employees can regulate a circuit court judge's power to appoint a register in probate. This is a question of law which we review de novo. As an initial matter, the parties disagree as to whether the circuit court judge's power to appoint a register in probate derives solely from sec. 851.71, Stats., or is also grounded in the court's inherent constitutional powers. Local 413 vigorously argues that the circuit court's power is purely statutory and does not derive from the constitution. However, we need not address whether the circuit court judge's power is an inherent constitutional power because even if we assume, as Local 413 suggests, that the judge's power is only statutory, we conclude that the collective bargaining agreement cannot supersede the statutory authority given to the circuit court judge. Section 851.71(1) Stats., provides that "the judges of the county shall appoint . . . a register in probate." Relying on this court's opinion in Glendale Prof. Policemen's Asso. v. Glendale, 83 Wis. 2d 90, 103, 264 N.W.2d 594 (1978), Local 413 contends that the collective bargaining agreement may limit this statutory grant of power because the provisions of the agreement can be harmonized with the statute. We conclude that such harmonization is not possible. *619 In Glendale Prof. Policemen's Asso., 83 Wis. 2d at 103, we determined that a police chiefs statutory power to appoint subordinates could be limited by the provisions of a collective bargaining agreement. We reasoned that in order to give effect to sec. 111.70, Stats., a municipal employer may negotiate limitations on its statutory power. Therefore, since negotiated provisions of a collective bargaining are directly authorized by sec. 111.70, they must be given effect and harmonized with apparently conflicting statutes whenever possible. However, the reasoning in Glendale is not applicable in this case. A police chief is employed by and is an agent of the city. Sections 62.13(1) and (3), Stats. Furthermore, a city qualifies as a "municipal employer" under sec. 111.70(1)(j), and thus may enter into a collective bargaining agreement for its employees. It is entirely reasonable then to allow a city to modify, through a collective bargaining agreement, the hiring discretion of the police chief. [2-4] However, a circuit court judge is not a "municipal employer." Under sec. 111.70(1)(j), Stats., "municipal employer" is defined as: any city, county, village, town, metropolitan sewage district, school district, or any other political subdivision. of the state which engages the services of an employe and includes any person acting on behalf of a municipal employer within the scope of his authority, express or implied. A circuit court judge is the local presence of the state. The judge is not a county employee or an agent of the county. See State ex rel. Gubbins v. Anson, 132 Wis. 461, 464, 112 N.W. 475 (1907). In other words, a circuit court judge is not within the statutory definition of a "municipal *620 employer" and as such is not a party to and cannot be bound by the provisions of a collective bargaining agreement entered into by Iowa County and Local 413 which purport to regulate the appointment of a register in probate.[1] The basis for allowing a limitation on a chief of police's statutory discretion discussed in Glendale, i.e., the municipal employers' ability to limit its own or its agent's discretion through bargaining, is not present in this case. [5] The express language of sec. 851.71, Stats., makes it clear that circuit court judges and counties have separate powers concerning registers in probate. Section 851.71(1), provides that "the judges of the county shall appoint and may remove a register in probate." Section 851.71(3) provides that the salary of the register in probate "shall be fixed by the county board and paid by the county." No authority is granted to the county to influence the appointment decision. In entering into a collective bargaining agreement, the county as a municipal employer may limit its own power with respect to registers in probate, but it could not put restrictions on the hiring of a register in probate because it was not within its power to begin with. If the provisions of the collective bargaining agreement were found to be binding, these provisions would effectively transfer the circuit court judge's statutory power to the county. In Glendale, we made clear that the harmonization was possible because the collective bargaining agreement merely limited the police chiefs discretion, and did not transfer away the authority. Glendale, 83 Wis. 2d at 107. If Local 413 were to prevail here, the judge's power to appoint a register in *621 probate would be transferred to the county, a result totally in conflict with the statute. Furthermore, sec. 851.71(1), Stats., states that appointments and removals "may be made only with the approval of the chief judge." The collective bargaining agreement provides for final and binding arbitration in the event of an alleged breach of the agreement. Thus, any attempt to enforce the agreement would impermissibly transfer the appointment of a register in probate to an arbitrator. This also is in direct conflict with the statutory provision. [6] Local 413 argues that in harmonizing the authority delegated by statute to a circuit court judge at secs. 851.71(1) and 851.72(6), Stats., with a county board's power to establish working conditions pursuant to secs. 59.15(2)(c) and 111.70(1)(a), the board's power must prevail as to any conflict because of sec. 59.15(4). Section 59.15(4) provides: "INTERPRETATION. In the event of conflict between this section and any other statute, this section to the extent of such conflict shall prevail." However, the question in this case is not whether the applicable statutes conflict with one another, but rather whether the collective bargaining agreement irreconcilably conflicts with statutory authority. Thus, sec. 59.15(4), is inapplicable. [7] For the reasons set forth above we conclude that the provisions within the agreement which purport to regulate the statutory power of the circuit court judge to appoint a register in probate are void, unenforceable, and not subject to arbitration. *622 By the Court.—The judgment of the circuit court is affirmed. NOTES [1] Section 851.71(4), Stats., which provides for removal of the register in probate in counties of 500,000 or more is not at issue here and we express no opinion as to that section.

72 Wn. App. 40 (1993) 863 P.2d 573 SKILCRAFT FIBERGLASS, INC., Plaintiff, v. THE BOEING COMPANY, ET AL, Respondents, JOAN CAROL WADSWORTH, ET AL, Defendants, ROLAND O. BALLOUN, Appellant. No. 30961-7-I. The Court of Appeals of Washington, Division One. December 13, 1993. *42 Roland O. Balloun, pro se, Karen F. Jones and Riddell, Williams, Bullitt & Walkinshaw, for appellant. Arthur D. McGarry and Oles, Morrison & Rinker; Kandice G. Tezak and Ryan, Swanson & Cleveland, for respondents. COLEMAN, J. Roland O. Balloun appeals the trial court's judgment imposing CR 11 sanctions, arguing that neither Boeing nor Hermanson Corporation was entitled to be served with his default motion against Boeing and that deficiencies in the bond recorded by Hermanson justified his actions in seeking the default judgment. We affirm. In October 1990, Hermanson Corporation, the primary contractor on a construction project for the Boeing Company, entered into an agreement with Skilcraft Fiberglass, Inc., under which Skilcraft was to provide ducting materials for the project. Subsequently, Hermanson concluded that Skilcraft's performance was deficient and replaced Skilcraft with another supplier. In mid-1991, Skilcraft filed a claim of lien for approximately $150,000 against Boeing's property, where the construction project had taken place. Skilcraft claimed that Hermanson owed it that amount for materials Skilcraft had delivered pursuant to the agreement. On February 13, 1992, Skilcraft filed a complaint against Hermanson for breach of contract. Included in the complaint was a lien foreclosure claim against Boeing's property. On February 18, 1992, Hermanson filed a notice of appearance in the lawsuit. On February 20, 1992, to release the lien against Boeing's property, Hermanson filed a bond in the amount of $300,754, replacing an earlier, deficient, bond that Hermanson had filed. Upon receiving notice of Hermanson's intent to file this second bond, Skilcraft's attorney, Roland O. Balloun, sent Hermanson a letter requesting that Hermanson *43 send documentation to verify that the bond issuer was financially able to meet its guaranties. This letter also stated: "If Hermanson fails to comply with RCW 60.04.115 [release of lien — bond statute], Skilcraft will move for default judgments against any and all defendants that fail to timely answer Skilcraft's complaint." Brief of Respondent app. A, at 17. Hermanson immediately sent Balloun the requested documentation. The next day, Hermanson spoke with Balloun on the telephone, asking whether Skilcraft, having received a copy of the bond and the requested documentation regarding the insurer, would now release its lien against Boeing's property. Balloun replied that "he anticipated he would because, in view of RCW 60.04.115, he did not have much choice." In late February 1992, Hermanson left a message on Balloun's answering machine, asking again whether Skilcraft intended to amend its complaint to drop its claim against Boeing. In a letter dated March 11, 1992, Balloun replied that amending the complaint was unnecessary and not required by former RCW 60.04.115. On March 11, 1992, Balloun, without notifying Boeing or Hermanson, filed a motion and affidavit for order of default against Boeing, and Skilcraft was awarded a $150,000 default judgment against Boeing. When Boeing demanded that Balloun vacate the default judgment, Balloun replied that the judgment was proper because the bond filed by Hermanson was deficient under former RCW 60.04.115. On March 26, 1992, Boeing and Hermanson filed a motion to vacate the default judgment and for terms against Balloun and Skilcraft. The trial court concluded that Balloun had obtained the default judgment against Boeing improperly because Hermanson's bond had released the lien on Boeing's property. The trial court also concluded that Balloun violated CR 5 by not serving Hermanson with the default motion against Boeing.[1] The trial court ordered Balloun and Skilcraft *44 to pay Hermanson and Boeing approximately $22,000 in attorney fees. Balloun appeals.[2] We first determine whether Balloun's misconduct warranted sanctions under CR 11. [1] CR 11 provides that every pleading, motion, and legal memorandum submitted by an attorney on behalf of a party shall be signed by the attorney and that [t]he signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum; that to the best of the party's or attorney's knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... CR 11 further provides that a court may order sanctions against any party or attorney who signs a document in violation of the rule. A reviewing court will not reverse CR 11 sanctions absent an abuse of discretion. Harrington v. Pailthorp, 67 Wn. App. 901, 841 P.2d 1258 (1992) (citing Clarke v. Equinox Holdings, Ltd., 56 Wn. App. 125, 132, 783 P.2d 82, review denied, 113 Wn.2d 1001 (1989)), review denied, 121 Wn.2d 1018 (1993). In the present case, the trial court sanctioned Balloun for the representations in his affidavit in support of the default motion, which stated that Skilcraft was entitled to a default judgment against Boeing. Balloun argues that his actions were reasonable because (1) he was not required to serve *45 Boeing or Hermanson with the default motion and (2) defects in Hermanson's bond justified his actions in seeking a default judgment against Boeing. For the reasons below, we conclude that neither of these arguments has any merit. [2, 3] CR 55(a)(3) provides: Notice. Any party who has appeared in the action for any purpose shall be served with a written notice of motion for default and the supporting affidavit at least 5 days before the hearing on the motion. Any party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion, except as provided in rule 55(f)(2)(A). RCW 4.28.210 provides that a defendant appears in an action when he "answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance." However, these methods of appearing are not exclusive, and "courts have recognized various informal acts as sufficient to constitute an appearance." Shreve v. Chamberlin, 66 Wn. App. 728, 732, 832 P.2d 1355 (1992), review denied, 120 Wn.2d 1029 (1993). In Gage v. Boeing Co., 55 Wn. App. 157, 776 P.2d 991, review denied, 113 Wn.2d 1028 (1989), Gage appealed two decisions by the Board of Industrial Insurance Appeals in which Boeing had prevailed. When Boeing failed to file any notices of appearance, Gage obtained default judgments without notifying Boeing. The trial court granted Boeing's motions to vacate the judgments, and Gage appealed. Gage, at 158-59. The Court of Appeals reiterated the general rule that default judgments are not favored in the law and "must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party." Gage, at 160-61 (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir.1970)). Because of this rule, the court reasoned that the concept of appearance, for purposes of CR 55 (default judgments), must be construed broadly. Gage, at 161. The court stated: Whether a party has "appeared" for purposes of the rule requiring notice prior to an entry of default is generally a question *46 "of intention, as evidenced by acts or conduct, such as the indication of a purpose to defend or a request for affirmative action from the court, constituting a submission to the court's jurisdiction." Gage, at 161 (quoting Annot., What Amounts to "Appearance" Under Statute or Rule Requiring Notice, to Party Who Has "Appeared," of Intention To Take Default Judgment, 73 A.L.R.3d 1250, 1254 (1976)). The court then cited several cases in which a defendant's informal actions have been held to constitute an appearance for purposes of CR 55. Gage, at 162. Finally, the court concluded that because Boeing had vigorously contested all of Gage's claims through the administrative level, Gage could "have entertained no illusions regarding respondent's intentions to contest the claims." Gage, at 162. Balloun argues that he was not required to give Boeing notice of the default proceedings because Boeing never appeared in the action. He further argues that because default motions are heard ex parte, under CR 5 he was not required to serve the default motion on Hermanson.[3] Balloun argues that his conclusion that neither Boeing nor Hermanson was entitled to notice constituted a reasonable interpretation of the law and, therefore, his actions did not warrant CR 11 sanctions. We disagree. Like the appellant in Gage, Balloun could have entertained no illusions about Boeing's intentions to contest the lien foreclosure. The actions taken by Hermanson on behalf of Boeing apprised Balloun of Boeing's intention to contest the lien foreclosure, and Boeing was therefore entitled to notice of the default proceedings, either directly or through Hermanson, its representative.[4] Moreover, Balloun *47 obtained the default judgment after explicitly representing to Hermanson that he would not be pursuing his claim against Boeing. Under these circumstances, the failure to notify either party was unreasonable. Former RCW 60.04.115 provides, in part, that in order to release a lien on its property, a party may file a bond which (1) is acceptable to the lien claimant, (2) contains a description of the claim of lien and real property involved, and (3) represents a sufficient sum, as specified in the statute.[5] Balloun argues that Hermanson's bond was insufficient to release the lien on Boeing's property because it referred to a lien recorded in May 1992, as opposed to 1991, and because it did not refer to a lien recorded under a particular recording number with the county auditor. [4] We find these arguments unpersuasive. As Hermanson points out, the incorrect year on the bond was a minor typographical error, and since Skilcraft had only one prior lien on Boeing's property, it was clear to which lien the bond was referring. Furthermore, former RCW 60.04.115, by its terms, does not require reference to a particular recording number so long as the description of the lien is sufficiently definite. Most importantly, however, Balloun never communicated any objections to the bond to either Hermanson or Boeing. Thus, we reject his argument that the default was justified due to deficiencies in the bond. [5] We believe that the specific facts of this case require the conclusion that Balloun's actions were unreasonable. Balloun's oral and written statements to Hermanson indicated he was aware that Hermanson was attempting to comply with the lien release statute on behalf of Boeing. In addition, Balloun never objected to the bond that Hermanson filed, and he represented to Hermanson that he would not be pursuing his claim against Boeing. To obtain a default judgment against Boeing under these circumstances clearly evidenced bad faith. Moreover, when Balloun's actions are viewed in the context of his prior dealings with Hermanson, *48 it is evident that they were interposed for an improper purpose. Thus, the trial court's award of CR 11 sanctions was proper.[6] We last determine whether Hermanson is entitled to attorney fees on appeal. [6] Hermanson has requested attorney fees on appeal on two grounds: (1) the trial court's order of CR 11 sanctions awarded Boeing and Hermanson costs and reasonable attorney fees in collection of the judgment against Balloun; and (2) RAP 18.1 and RAP 18.9(a) allow this court to award attorney fees for a frivolous or improper appeal. Both grounds are applicable. As Hermanson argues, responding to this appeal could reasonably be viewed as a cost of collecting the judgment from Balloun. In addition, because Balloun's behavior was a clear violation of CR 11 and involved substantial bad faith conduct, we agree with Hermanson that the appeal is frivolous and improper. Thus, Hermanson will be awarded its reasonable attorney fees on appeal. The order of the trial court is affirmed. SCHOLFIELD and KENNEDY, JJ., concur. NOTES [1] The trial court concluded that Balloun's actions constituted the following: "a. A violation of the duty to conduct a reasonable inquiry into the facts supporting the motion, and the necessity to provide notice thereof to Hermanson in accordance with applicable court rules, particularly when taking the default judgment against Boeing was inconsistent with Mr. Balloun's prior written and oral representations to Hermanson's counsel; "b. A breach of the duty to conduct a reasonable inquiry into the law, such that the motion is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and "c. A breach of the duty not to interpose the motion for the purposes of delay, harassment, or increasing the costs of litigation." [2] Initially, Skilcraft appealed the order as well, but its appeal was subsequently dropped. [3] CR 5(a) provides, in part, that "every written motion other than one which may be heard ex parte ... shall be served upon each of the parties." [4] Also, the general rule in the federal courts is that default judgment should not be entered against one of several jointly liable defendants until the claim is adjudicated with regard to the other defendants. This rule can be extended to "situations in which several defendants have closely related defenses." 10 C. Wright, A. Miller & M. Kane, Federal Practice § 2690, at 455-59 (1983). This rule supports the view that Hermanson, as a defendant whose rights were closely related to Boeing's, was entitled to notice. [5] This statute is now RCW 60.04.161, but these requirements have not changed. [6] Balloun argues in his brief that Hermanson did not have standing to be awarded sanctions. However, it is clear that Hermanson was a real party in interest. Hermanson had a contractual obligation to indemnify Boeing, its counsel was acting on behalf of both Hermanson and Boeing, and Hermanson incurred substantial costs as a result of Balloun's actions. In addition to being proper under CR 11, an award of attorney fees to both Hermanson and Boeing was a proper exercise of the trial court's inherent power to assess attorney fees against an attorney for bad faith litigation conduct. Wilson v. Henkle, 45 Wn. App. 162, 174-75, 724 P.2d 1069 (1986).

F I L E D United States Court of Appeals Tenth Circuit October 25, 2006 PU BL ISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT O F APPEALS TENTH CIRCUIT G LEN DA LE H A MM O N , Petitioner-A ppellant, v. No. 05-6158 R ON W A R D , Respondent-Appellee. Appeal from the United States District Court for the W estern District of O klahom a (D.C. No. 04-CV-01007-HE) Glen Dale Hammon filed a brief pro se. James L. Hankins, Hankins Law Office, Oklahoma City, Oklahoma, for Petitioner-A ppellant. Jennifer L. Strickland, Assistant Attorney General for Oklahoma, Oklahoma City, Oklahoma (W .A. Drew Edmondson, Attorney General for Oklahoma, and Laura E. Samuelson, Assistant Attorney General for Oklahoma, on the brief), for Respondent-Appellee. Before H E N RY , SE YM OU R , and EBEL, Circuit Judges. EBEL, Circuit Judge.  Petitioner-A ppellant Glen Dale H ammon (“Petitioner”) was convicted in Oklahoma state court of possession of a controlled dangerous substance (“CDS”), possession of a firearm by a convicted felon, and possession of a firearm with a defaced or mutilated serial number, for which he was effectively sentenced to seventy years’ imprisonment. Petitioner filed a pro se 28 U.S.C. § 2254 habeas petition challenging those convictions, which the district court denied. W e issued a certificate of appealability on the issue of ineffective assistance of appellate and trial counsel, and we now vacate the district court’s order denying § 2254 relief and remand for an evidentiary hearing. BACKGROUND I. Factual Background On October 19, 2000, Petitioner w as driving through an Oklahoma City suburb in a vehicle with his brother, Demarcus Hammon, as the passenger, when Officer Hill of the Del City Police Department initiated a traffic stop of the vehicle because the brake lights were not working. Officer Hill approached the driver’s side and asked Petitioner for his license and proof of insurance. After Petitioner stated that he had neither, Officer H ill returned to his patrol car to confirm that information with dispatch. Once Officer Turner and Lieutenant Baker arrived as back-up, Officer Hill again approached the vehicle to arrest Petitioner for driving without a license and for an outstanding warrant. Officer Hill ordered Petitioner out of the car, -2- informed him that he was under arrest, and placed him in handcuffs. Officer Hill searched Petitioner’s person as part of that arrest and found nothing. Officer Turner removed D emarcus Hammon from the car, performed a pat-down search of him, and discovered nothing. Demarcus Hammon did not have any outstanding warrants, but the officers did not release the car to him because his license had also been suspended and the car w as not insured. Officers Hill and Turner thus conducted an inventory search of the vehicle. The officers first searched the driver’s side of the vehicle and found nothing there. In searching the passenger’s side, however, Officer Hill found a bag containing thirteen to fourteen gravel sized brownish-white rocks located in the cavity of the dashboard where the glove box would normally be located. Subsequent tests revealed the rocks to be crack cocaine. Underneath the passenger seat, the officers discovered a loaded semiautomatic handgun with a mutilated or defaced serial number. 1 No other contraband was found inside the car. At that time, Demarcus Hammon was arrested and searched, and the officers discovered $260.00 in $20 bills on him. W hile in county jail, Glenn and Demarcus Hammon retained the same defense counsel to represent them. At some point before trial, trial counsel negotiated a plea bargain for Demarcus Hammon. Petitioner, unaware his brother 1 The gun was never submitted for fingerprint testing, allegedly because Officers Hill and Turner had handled the gun. -3- had pleaded, rejected a plea offer of fifteen years in prison and proceeded to trial. The State apparently sought to call Demarcus Hammon as a witness at Petitioner’s trial, but it was unable to locate him. In its case-in-chief, the State’s two main witnesses were Officers Hill and Turner, both of whom testified about the stop and subsequent search as well as their opinion regarding whether the amount of drugs found in the vehicle was for distribution or personal use. 2 W ithout objection from trial counsel, Officer Hill testified that, based upon the amount of rocks found, the money found on Demarcus Hammon, the fact that neither Petitioner nor Demarcus Hammon exhibited signs of being under the influence of drugs, the absence of crack-use paraphernalia found in the car, and the presence of the gun, the drugs found in the vehicle were for distribution— as Officer Hill basically described, “the gun, the money, and the dope.” Officer Turner testified to essentially the same facts and opinions as Officer Hill, but he additionally testified, again without objection from trial counsel, that his opinion that the drugs were for distribution was based on the fact that the Hammon brothers were stopped in an area of town with heavy gang and drug activity. 2 The rest of the State’s evidence consisted of chain-of custody testimony and Oklahoma State Bureau of Investigation agents’ testimony regarding the testing of the contents of the baggie and the examination of the gun. -4-  Petitioner’s trial counsel gave no opening statement. 3 He called only one witness— Evan June Smith, Petitioner’s mother. M s. Smith testified that she visited Petitioner in jail and that he told her the gun was not his and that he did not know anything about the drugs. According to M s. Smith, Petitioner also told her that, on the day he was arrested, he had planned to pick up Demarcus Hamm on and then drive to her house. She further testified that the car driven by Petitioner did not belong to her, Petitioner, or Demarcus Hammon. To rebut M s. Smith’s testimony about her son’s statement that the gun was not his, the State confronted her on cross-examination with a letter Petitioner had written to then-District Attorney Bob M acy, which was read into the record by the prosecutor: M r. M acy, I am G len Hammon. M y birthday is January 17, 1976. I am accused . . . with my brother, Demarcus Hammon, . . . after being stopped in a car searched by officer [sic]. A firearm was found under the passenger side w here Demarcus Hammon was sitting. He confessed to the firearm on the spot. This information should be written in [sic] police report. W hy am I still charged with possession of firearm? Thank you for your time, respectfully yours, Glen Hammon. At the conclusion of M s. Smith’s testimony, the defense called no other witnesses, Petitioner waived his right to testify on his ow n behalf, and the defense rested. 3 Petitioner’s counsel had reserved opening statement until prior to the defense’s case-in-chief. W hen trial counsel began his statement, the State’s objections resulted in a bench conference where the trial court explained the difference between opening statement and closing argument. Petitioner’s counsel decided to forego another attempt at opening statement. -5-  Although the State could not locate Demarcus Hammon and thus could not call him in its rebuttal case, it attempted to introduce Demarcus Hammon’s plea paperwork. Specifically, the State wanted to read into the record a statement from the factual basis for the plea in which Demarcus Hammon admitted under oath that “I committed the crimes of possession of CDS and possession of a firearm while a passenger in an automobile driven by my brother, Glen Hammon; the gun was mine; the C DS belonged to both of us.” In response, Petitioner’s trial counsel argued that if the factual basis for Demarcus Hammon’s plea was read to the jury, then the jury should also simultaneously be informed that there was an agreement between Demarcus Hammon and the State that Demarcus Hammon would, in exchange for receiving a deferred sentence, 4 inculpate Petitioner in the factual basis for his plea and testify against Petitioner at trial. The exchange that followed between trial counsel (M r. Jackson) and the trial court is particularly relevant to this appeal: T H E C OU R T: I don’t see it in this portion of the paperw ork. The part where they discuss the plea agreement it says, “Is their [sic] a plea agreement?” And it says, “Y es.” A nd then handwritten in is -- w ell, typed in, “W hat is your understanding of the plea agreement?” Handwritten in, “I’m pleading guilty to Possession of CDS and Possession of a Firearm in exchange for a five-year deferred sentence . . . .” 4 Under Oklahoma law a “deferred sentence,” which is very favorable to a criminal defendant, entails a probationary period of up to five years after which, if the accused has complied with the rules and conditions of probation, the case is dismissed without a criminal conviction and the record is expunged. See Okla. Stat. tit. 22, § 991c. -6-  M R . JA CK SO N: In exchange for that statement -- he’s saying in exchange for that statement he received consideration. In other words, he was motivated to the statement be given [sic]. W e have – T HE C OU R T: Well, he may or -- I don’t know. M R . JA CK SO N: W e have a right to inform the jury -- we have the right to inform the jury [sic] any agreements [Demarcus Hammon] had with the district attorney that the court approved. It’s like -- isn’t it like a jail house snitch or – T HE C OU R T: No, not at all. I mean, he’s merely pleading guilty and -- M R . JA CK SO N: In considering [sic] of a five-year deferred. T HE C OU R T: Right. M R . JA CK SO N: If [Demarcus Hammon] had not inculpated [Petitioner], [Demarcus Hammon] would not have gotten [a five-year deferred sentence]. T HE C OU R T: I don’t know. It doesn’t say in here [the plea paperw ork] that. I don’t know if that’s true or not. I don’t know. At this point, trial counsel instructed the trial court that he had a conflict of interest in this case because he had also represented Demarcus H ammon in negotiating the plea bargain: M R . JA CK SO N: W ell, I have a bit of a conflict of interest, Your H onor, in that I was the attorney [for Demarcus Hammon] as well. TH E CO URT: That’s your -- M R . JA CK SO N: And that’s something I need to -- ... T HE C OU R T: W ell, I’m asking about your discussions with the State of Oklahoma. D id the State of Oklahoma say to you, Your Client, M r. Demarcus Hammon, must inculpate his co-defendant [Petitioner] in return for this recommendation of a five-year deferred [sentence]? M R . JA CK SO N: That’s correct. T HE C OU R T: You’re saying that the State of Oklahoma said that? M R . JA CK SO N: On the CDS charge. And it w as a negotiated matter, Y our H onor . . . . ... TH E CO URT: Okay. And you negotiated that with who? Paulette Stewart? She’s the one who took the plea. -7-  M R. JACK SO N: I believe that’s right. And M r. Pate, I believe. There were – M R . SID ER IA S [Assistant District Attorney]: I asked M r. Pate about this matter and he has no recollection of it. That’s not to say it didn’t happen; its just to say he’s probably negotiated a lot of cases since then. ... M R. JACK SO N: Your Honor, there w as much discussion about this because -- I represented both of them, and we were getting close to a point during the negotiations where if their interest [sic] became adverse, I would have to -- certain decisions in terms of control. And the district attorney knew that. That w as part of the negotiation. Despite this lengthy discussion, the State dropped its request to introduce Demarcus Hammon’s statements, and the case was ultimately submitted to the jury without Demarcus Hammon’s testimony or plea statements. II. Procedural Background The Oklahoma jury convicted Petitioner of possession of a CD S (crack cocaine) in violation of Okla. Stat. tit. 63, § 2-401; possession of a firearm by a convicted felon in violation of Okla. Stat. tit. 21, § 1283 (Count 2); and possession of a firearm with a defaced or mutilated serial number in violation of Okla. Stat. tit. 21, § 1550 (Count 3). The trial court imposed a sentence in accordance with the jury verdicts: twenty years on Count 1; fifty years on Count 2; and twenty years on Count 3, with the sentences for Counts I and II to be served consecutively to each other and concurrently with Count III— totaling a seventy-year prison term. -8-  The state court appointed Petitioner new counsel to pursue a direct appeal of his conviction and sentences. O n direct appeal, Petitioner’s counsel raised two errors, only one of which was substantive: 1) evidence adduced at trial was insufficient to sustain the State’s burden of proof beyond a reasonable doubt; and 2) the Judgment and Sentence document incorrectly reflected a conviction under Okla. Stat. tit. 21, § 1850 on Count III, when it should have read Okla. Stat. tit. 21, § 1550. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner’s convictions and sentences. Petitioner then filed an application for state post-conviction relief, alleging, inter alia, that his trial counsel was ineffective and represented conflicting interests and that his appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness and conflict on direct appeal. The state district court denied post-conviction relief. The OCCA affirmed the judgment of the trial court on the ineffective assistance of appellate counsel claim and found Petitioner had procedurally defaulted all of his other claims. Petitioner then filed a pro se petition for federal habeas corpus relief based on the following grounds: ineffective assistance of trial counsel due to a conflict of interest; ineffective assistance of trial counsel due to trial counsel’s performance; prosecutorial misconduct for knowingly allowing perjured testimony; and ineffective assistance of appellate counsel for failure to raise the proceeding claims on direct appeal. Adopting the magistrate judge’s report and recommendations, the district court denied all of Petitioner’s claims, including his -9- request for an evidentiary hearing. W e issued a certificate of appealability with regard to whether Petitioner received ineffective assistance of appellate and trial counsel in violation of his constitutional rights and appointed counsel to represent Petitioner in support of those claims. D ISC USSIO N The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA ”) applies to this appeal because Petitioner filed his § 2254 petition after AEDPA’s effective date. See W elch v. Sirmons, 451 F.3d 675, 682 (10th Cir. 2006); M alicoat v. M ullin, 426 F.3d 1241, 1246 (10th Cir. 2005), cert. denied, 126 S. Ct. 2356 (2006). AEDPA strictly limits a federal court’s ability to consider issues on habeas review that the state court deemed procedurally barred, see Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999), or to grant evidentiary hearings, see 28 U.S.C. § 2254(e)(2). 5 5 Section 2254(e)(2) provides that: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no (continued...) - 10 - I. Procedural Bar The OCCA found that Petitioner had procedurally defaulted his ineffective trial counsel claims pursuant to Okla. Stat. tit. 22, § 1086 by failing to raise them on direct appeal. 6 Under AEDPA , we generally may not consider “issues on habeas review that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Smallwood, 191 F.3d at 1268 (quotations omitted). Here, we need not decide whether § 1086 is an independent and adequate state procedural bar because we conclude that Petitioner’s allegations are sufficient to establish that the bar should be excused on the basis of ineffective appellate counsel. 5 (...continued) reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(A)& (B); see also Bryan v. M ullin, 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc). 6 Section 1086 reads: All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application. Okla. Stat. tit. 22, § 1086. - 11 -  Petitioner properly raised his claim alleging appellate counsel was ineffective for failing on direct appeal to raise ineffective trial counsel due to a conflict of interest. “Because the alleged deficiencies on appeal relate to trial counsel’s conduct, we review the claims of ineffective assistance of appellate counsel on their merits, along with the claims of ineffective assistance of trial counsel.” 7 Boyd v. W ard, 179 F.3d 904, 914 (10th Cir. 1999). W e conclude that if the facts are as Petitioner alleges them, then Petitioner is entitled to relief for ineffective assistance of appellate counsel for failure to assert that trial counsel operated under a prejudicial conflict of interest and appellate counsel’s ineffectiveness is cause sufficient to excuse the state procedural bar to Petitioner’s ineffective trial counsel claim. See Ellis v. Hargett, 302 F.3d 1182, 1186 (10th 7 Although the OCCA determined Petitioner to have procedurally defaulted his claim alleging trial counsel was operating under an actual conflict of interest, we must nevertheless review the merits of [M r. Hammon’s ineffective trial counsel claim] in order to determine whether he received ineffective assistance from his appellate counsel. Assuming he demonstrates ineffective appellate assistance, his procedural default will be excused and we may then review the merits of his [ineffective trial counsel] claim[]. Notwithstanding the apparent circularity of this review , our ultimate inquiry is central and straightforward: is our confidence in the outcome of M r. [Hammon’s] conviction and sentence undermined by the fact that [his trial counsel operated under an actual conflict of interest]. Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (citations omitted). Our review in this regard is ultimately governed by the deferential A EDPA standard. See 28 U.S.C. § 2254(d); see also M ayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000). - 12 - Cir. 2002) (“A showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default.”). W e therefore proceed to consider the merits of Petitioner’s claim challenging direct appeal counsel’s representation. II. Ineffective A ssistance of Appellate C ounsel Based on Trial Counsel’s Conflict of Interest Only Petitioner’s claim involving appellate counsel’s failure to allege on direct appeal that Petitioner’s trial counsel operated under a conflict is properly before this court. 8 The district court denied Petitioner habeas relief on this claim without conducting an evidentiary hearing. W e conclude that the district court abused its discretion by denying Petitioner an evidentiary hearing. See Anderson v. Attorney General of Kan., 425 F.3d 853, 858 (10th Cir. 2005) (“A district court’s decision to grant or deny an evidentiary hearing in a habeas proceeding is reviewed for an abuse of discretion.”). Although AEDPA strictly limits a federal court’s ability to grant an evidentiary hearing, in this case Petitioner is freed from § 2254(e)(2)’s limitation because he diligently pursued the factual basis for his claims in state court and 8 Petitioner argues on appeal that his appellate counsel also omitted a claim that Petitioner was convicted in violation of Oklahoma law for two separate crimes— possession of a firearm by a felon and possession of a firearm with a mutilated or defaced serial number— based upon one act of possession of a firearm . Petitioner did not raise this claim in his § 2254 habeas petition, and w e therefore will not consider it on appeal. See M cLuckie v. Abbott, 337 F.3d 1193, 1200 n.3 (10th Cir. 2003); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). - 13 - thus did not “fail[] to develop the factual basis of a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2); see also Bryan, 335 F.3d at 1214 (“If . . . the petitioner did not fail to develop the factual basis of his claim in State court, § 2254(e)(2) is not applicable and a federal habeas court should proceed to analyze whether a hearing is appropriate or required under pre-AEDPA standards.”) (quotations, alterations omitted); see also M iller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). Consequently, Petitioner is entitled to an evidentiary hearing on the issue of ineffective appellate counsel “so long as his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.” Anderson, 425 F.3d at 858; see also M edina v. Barnes, 71 F.3d 363, 369-70 (10th Cir. 1995) (discussing at length the pre-AEDPA standard for obtaining an evidentiary hearing). For the reasons set out below, we conclude Petitioner has met this requirement. Therefore, contrary to the district court, we conclude that Petitioner is entitled to an evidentiary hearing on his claim of ineffective assistance of appellate counsel for failure to assert that trial counsel operated under a prejudicial conflict of interest. A . Diligence in pursuing the factual basis for his claim s AEDPA precludes a federal habeas court from conducting an evidentiary hearing on a claim that the habeas petitioner failed to develop in state court. See 28 U.S.C. § 2254(e)(2); see also Bryan, 335 F.3d at 1214. But “a failure to develop the factual basis of a claim is not established unless there is lack of - 14 - diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” W illiams v. Taylor, 529 U.S. 420, 432 (2000); see also M iller, 161 F.3d at 1253 (holding that § 2254(e)(2) does not apply where the petitioner “diligently sought to develop the factual basis underlying his habeas petition, but a state court prevented him from doing so”). “Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light of the information at the time, to investigate and pursue claims in state court.” W illiams, 529 U.S. at 435; see also Cannon v. M ullin, 383 F.3d 1152, 1176 (10th Cir. 2004). Here, Petitioner sought an evidentiary hearing in his state-post conviction application proceedings, but the Oklahoma courts denied his requests. W e note that “merely requesting a hearing in state court may not be enough to satisfy the requirement that [a petitioner] diligently seek to develop a factual basis for his claim.” Parker v. Scott, 394 F.3d 1302, 1325 (10th Cir. 2005). In this case, however, Petitioner not only aggressively sought an evidentiary hearing, he also put on some evidence in support of his allegation of his counsel’s conflict of interest. Specifically, the state trial record reflects counsel’s concession during trial that negotiating Demarcus Hammon’s plea bargain created a conflict of interest in trial counsel’s joint representation of the Hammon brothers. Accordingly, the pre-AEDPA standard applies to Petitioner’s request for an evidentiary hearing. See M iller, 161 F.3d at 1253. - 15 -  B. Allegations, if true and not contravened, w ould entitle Petitioner to habeas relief Under the pre-AEDPA standard for granting an evidentiary hearing, we must analyze whether M r. Hammon’s allegations, “if true and not contravened by the existing factual record, would entitle him to habeas relief.” Anderson, 425 F.3d at 858. To obtain relief for ineffective counsel, a petitioner must generally show both that his “counsel’s representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. W ashington, 466 U.S. 668, 688, 694 (1984). “W hen considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, w e look to the merits of the omitted issue.” Hooks v. W ard, 184 F.3d 1206, 1221 (10th C ir. 1999) (citation omitted). In conducting this review: [i]f the omitted issue is so plainly m eritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance; if the omitted issue has merit but is not so com pelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance. Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Consequently, in this case, we must consider the merits of Petitioner’s claim that his trial counsel was constitutionally ineffective because of a conflict of interest. - 16 -  Because the OCCA reached and rejected Petitioner’s claim of ineffective assistance of appellate counsel on its merits, we may not grant relief on that claim unless the state court’s adjudication of it (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). See also M ayes, 210 F.3d at 1288 (indicating, in the context of deciding whether the petitioner was entitled to an evidentiary hearing, that the deferential AEDPA standard applies to our consideration of the merits). Although the OCCA made its decision without granting Petitioner an evidentiary hearing, that summary decision was an adjudication on the merits within the meaning of § 2254(d) because the OCCA determined that Petitioner did “not provide[] any facts or arguments to establish his counsel’s performance fell below prevailing professional norms [or] that the outcome of his appeal would have been different,” and, therefore, that no evidentiary hearing was w arranted. In reviewing the OCCA’s adjudication of Petitioner’s ineffective assistance of appellate counsel claim, we consider the record as it existed before the OCCA. See Bryan, 335 F.3d at 1215. 9 9 Although the deferential AEDPA standard under § 2254(d) applies to our assessment of the state court’s decision to adjudicate the merits of Petitioner’s claim without granting an evidentiary hearing, it does not apply to the district court’s ultimate determination on remand of whether the facts established at the (continued...) - 17 -  “To determine the applicable ‘clearly established’ law, we look to Supreme Court precedent as it existed when the state court reached its decision.” Brown v. Uphoff, 381 F.3d 1219, 1224 n.4 (10th Cir. 2004). A state-court decision is contrary to clearly established Supreme Court precedents if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] [Supreme] Court but reaches a different result. A state-court decision involves an unreasonable application of th[e] [Supreme] Court’s clearly established precedents if the state court applies th[at] Court’s precedents to the facts in an objectively unreasonable manner. Brow n v. Payton, 544 U.S. 133, 141(2005) (citations omitted). The Supreme Court has held that a “conflict itself demonstrat[es] a denial of the ‘right to have the effective assistance of counsel.’” Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (quoting Glasser v. United States, 315 U.S. 60, 76 (1942)); see also W ood v. Georgia, 450 U.S. 261, 271 (1987); United State v. Bowie, 892 9 (...continued) federal evidentiary hearing entitle Petitioner to habeas relief or to this court’s review of that determination on appeal. See Bryan, 335 F.3d at 1216 n.7 (“[T]he panel erred in applying the deferential review standards set out in 2254(d) and (e) in reviewing [petitioner]’s claims that his trial counsel was ineffective.”); M iller, 161 F.3d at 1254 (“[B]ecause the state court did not hold any evidentiary hearing, we are in the same position to evaluate the factual record as it was. Accordingly, to the extent the state court’s dismissal of [petitioner]’s petition was based on its own factual findings, we need not afford those findings any deference.”); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997) (“[Although] [f]ederal courts entertaining habeas petitions must give a presumption of correctness to state courts’ factual findings, . . . [t]his presumption of correctness does not apply . . . if the habeas petitioner did not receive a full, fair, and adequate hearing in the state court proceeding on the matter sought to be raised in the habeas petition.”). - 18 - F.2d 1494, 1500 (10th Cir. 1990). Furthermore, “[a] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349-50 (emphasis added); see also Bowie, 892 F.2d at 1500. An “actual conflict of interest” cannot be demonstrated merely by “the possibility for conflict,” see Cuyler, 446 U.S. at 350; nor may it be demonstrated by “the mere appearance of impropriety,” Pool v. Armontrout, 852 F.2d 372, 375 (8th Cir. 1988). Instead, the Supreme Court has held that the claimant must show “that his counsel actively represented conflicting interests.” Cuyler, 446 U.S. at 350. As we have noted, the OCCA ruled that Petitioner failed to proffer sufficient facts or legal argument to support an ineffective assistance of appellate counsel claim. In deferring to that determination, the district court more fully determined that appellate counsel’s performance would not entitle Petitioner to habeas relief, even with the presentation of evidence, because there was no actual conflict of interest where 1) Demarcus Hammon never testified for the prosecution and against Petitioner despite his agreeing to do so and 2) the jury never heard Demarcus Hammon’s statement, reflected in the factual basis for his plea, inculpating Petitioner. We do not agree that the alleged conflict of interest is based on Demarcus Hammon’s value as a state’s witness; instead, we interpret the - 19 - alleged actual conflict to be based on Demarcus Hammon’s value as a potential defense witness. 10 Based on the trial record and Petitioner’s affidavit, which he submitted to the state court, we interpret the alleged conflict as follows: Until Demarcus Hamm on’s plea agreement, the joint defense strategy upon which trial counsel was hired to represent the Hammon brothers w as that the brothers w ould present a unified front in which Demarcus Hammon would take the full rap for the gun found in the vehicle, both men would disavow knowledge that there were drugs in the car (because it was not their car), and a witness (D amien Smith) w ould corroborate that Demarcus H ammon legitimately acquired the money found on him during the search. Trial counsel then negotiated a plea bargain with the State for Demarcus Hammon, in which the State agreed to recommend a five-year deferred sentence if, but only if, Demarcus Hammon agreed to inculpate Petitioner. Trial 10 Respondent claims that Petitioner did not raise, in his pro se petition and brief in support, the claim that he now raises on appeal. Respondent claims instead that Petitioner first asserted in his reply brief to this court that trial counsel’s dual representation prevented counsel from presenting trial testimony by Demarcus Hammon at Petitioner’s trial. W e disagree. In his Petition, Petitioner claimed that his trial counsel labored under a conflict of interest because the same attorney worked out a plea agreement for D emarcus Hammon. In that petition, Petitioner also explained that “such actions by counsel eliminated petition [sic] only viable defense.” In his brief in support of that petition, Petitioner reasserted that his counsel by operating under a conflict of interest acted against Petitioner’s only viable defense. He then argued specifically that “[t]he existing conflict affected the defense. Conflict of interest; deal for co- defendant [Demarcus Hammon], implicating petitioner, deprived co-defendant as future witness in petitioner [sic] behalf.” - 20 - counsel never informed Petitioner that Demarcus Hammon had pleaded guilty, and, as a result, Petitioner declined a (much less favorable) plea offer of fifteen years in prison and proceeded to trial. 11 At trial, Petitioner repeatedly asked trial counsel when Demarcus H ammon was going to testify. According to Petitioner, it was not until his trial was underway that his trial counsel finally informed him, during trial, that Demarcus Hammon had already pleaded guilty and thus would be unable to testify on Petitioner’s behalf as planned because part of the plea bargain required Demarcus H ammon to inculpate Petitioner and Demarcus H ammon would receive prison time for lying if he reneged on that inculpation. If the facts are as Petitioner alleges, then trial counsel’s performance was adversely affected by an actual conflict in this case regardless of whether Demarcus Hammon ever actually inculpated Petitioner at trial. This is so because trial counsel could not simultaneously negotiate the most favorable deal for Demarcus Hammon— a five-year deferred sentence— without both disqualifying Demarcus Hammon from providing exculpatory testimony for Petitioner and, consequently, sabotaging Petitioner’s most viable defense strategy and the defense that trial counsel was hired jointly to present for the H ammon brothers. Thus, once the State offered Demarcus Hammon the conditional plea bargain, Demarcus Hammon’s interest in obtaining the most favorable plea bargain conflicted with 11 W e note that trial counsel’s conflict may have prevented counsel from pursuing a better plea agreement for Petitioner, or advising Petitioner to accept the State’s proffered deal, but Petitioner has not raised these issues on appeal. - 21 - Glenn Hammon’s interest in presenting his best defense. Yet, trial counsel continued actively to represent both Hammon brothers— negotiating the conditional plea for Demarcus Hammon and leading Petitioner to trial without the best w itness (D emarcus Hammon) to create a reasonable doubt in the State’s case. See Bowie, 892 F.2d at 1500 (“[D]efense counsel’s performance [is] adversely affected by an actual conflict of interest if a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests.”). W here an actual conflict of interest adversely affects counsel’s performance, as Petitioner’s affidavit suggests here, “[n]o further showing of prejudice is necessary,” Bowie, 892 F.2d at 1500; see also Cuyler, 446 U.S. at 349-50; instead, we presume prejudice, see H ernandez v. M ondragon, 824 F.2d 825, 827 (10th Cir. 1987). In fact, here there is more than the general presumption of prejudice; here, there is evidence in the record of actual prejudice— trial counsel’s candid statement on the record at trial that he had a conflict of interest based on his duel representation of the Hammon brothers and the associated problems that such representation presented once he negotiated a plea bargain for D emarcus Hammon. C. Conclusion W e cannot resolve on the record before us whether Demarcus Hammon’s plea bargain contained an agreement that effectively prevented him from providing - 22 - statem ents exculpating Petitioner. 12 Parker, 394 F.3d at 1324 (“No hearing is necessary if we can resolve the petitioner’s claims on their merits based solely on the record before us.”). If the facts alleged by Petitioner are true, however, then Petitioner has shown that his trial counsel actively represented conflicting interests and thus operated under an actual conflict. Omitting “an issue which was obvious from the trial record, and one which would have resulted in a reversal on appeal,” Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998) (quotations omitted) (emphasis in original), constitutes ineffective assistance of appellate counsel under any reasonable application of Supreme Court precedent to Petitioner’s allegations in this case. See W ood, 450 U .S. at 271; Cuyler, 446 U .S. at 348-50; see also Upchurch v. Bruce, 333 F.3d 1158, 1164 n.3 (10th Cir. 2003) (“[W]e reject[] the proposition that omission of a ‘dead bang winner’ is necessary to prevail on a claim of ineffective assistance of appellate counsel. At the same time, of course, omission of a ‘dead bang winner’ can be a sufficient basis for such a claim.”) (citations omitted). W e therefore conclude that the OCCA either reached “a 12 The State has requested to supplement the record on appeal with the probable cause affidavit to support the arrest of Demarcus Hammon in support of their arguments against habeas relief. Although the affidavit was part of the state trial court record, it w as not presented to the federal district court. In our view, the district court should in the first instance have an opportunity to consider this additional evidence in light of the evidence presented at the hearing on remand to decide w hether Petitioner is entitled to habeas relief. “Consequently, we conclude the circumstances in the present case do not lead us to believe the interests of justice would best be served by exercising our inherent equitable power to allow [the State] to supplement the record on appeal.” United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000). - 23 - decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d). Accordingly, Petitioner is entitled to an evidentiary hearing, and the district court abused its discretion by denying Petitioner habeas relief without conducting one. See Anderson, 425 F.3d at 858. C ON CLU SIO N For the foregoing reasons, we conclude that Petitioner has made sufficient allegations at this stage to merit the opportunity to present evidence in support of his habeas claim concerning his counsels’ inadequate representation. W e therefore REVERSE the district court’s order denying Petitioner habeas relief on his claim of ineffective assistance of trial counsel due to a conflict of interest and ineffective assistance of appellate counsel for failing to raise that claim on direct appeal and REM AND the case to the district court for an evidentiary hearing and further proceedings consistent with this opinion. Petitioner’s request to proceed in form a pauperis on appeal is G RA NTED. - 24 - 

Citation Nr: 1710386 Decision Date: 03/22/17 Archive Date: 04/11/17 DOCKET NO. 12-11 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and B.B. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to October 1971. He received the Purple Heart Medal and Army Commendation Medal with "V" device. He died in February 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) an Insurance Center in Philadelphia, Pennsylvania. The RO in Cleveland, Ohio, exercises current jurisdiction of the claims file. The appellant testified at a Board hearing via video conference in February 2013. A transcript of the hearing testimony is associated with the claims file. In May 2014, the Board remanded this case for additional development, and the case has been returned for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's certificate of death reflects that he died in December 1969 from a self-inflicted gunshot wound. The appellant contends that this was a result of a psychiatric disability that developed as a result of his combat service in Vietnam. This claim was previously remanded to attempt to obtain VA and private treatment records that have been identified by the appellant. On remand, VA medical records were obtained from the VA Medical Center (VAMC) in Chillicothe, Ohio; the Community Based Outpatient Clinic (CBOC) in Lancaster, Pennsylvania; the VA Bay Pines Health Care System (HCS) in Florida; and the CBOC in Sebring, Florida (which is affiliated with the Bay Pines HCS). There are, however, several indications that the Veteran received psychiatric treatment at a VA facility in Columbus, Ohio. A March 2001 record from the Lancaster CBOC notes that the Veteran had a positive depression screening but declined referral to Mental Hygiene/Psychiatry. An April 2001 record notes that the Veteran is "currently being followed for PTSD by Mental Health/PTSD Clinic." A May 2001 record notes that the Veteran was being seen by a "new psychiatrist." The accompanying comment notes that he was being treated by Michael Mizenko and David Hayes. An August 2001 psychiatric record notes that the Veteran reported that Dr. Mizenko had increased his Zyprexa dosage and that he sees "Hayes" as his therapist at Columbus. There are two VA medical facilities in Columbus; the Chalmers P. Wylie Ambulatory Care Center and the Columbus Vet Center. The claims file does not indicate that records have been requested from these facilities. In addition, it does not appear that records requests to any of the facilities from which records were obtained would produce records from either of the Columbus facilities. Therefore, a remand is required in order to obtain any outstanding records from these facilities. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding medical records from the VA HCS in Columbus, Ohio, and the Columbus Vet Center; including treatment in 2001. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ Mark D. Hindin 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) (2016).

849 F.2d 1074 1988 A.M.C. 2919 Terry REYNOLDS, Plaintiff-Appellant,v.HEARTLAND TRANSPORTATION, Defendant-Appellee. No. 87-5358 MN. United States Court of Appeals, Eighth Circuit. Submitted April 13, 1988.Decided June 14, 1988. 1 Jeanne L. Sathre, Wood River, Ill., for plaintiff-appellant. 2 Thomas F. Eagleton, St. Louis, Mo., for defendant-appellee. 3 Before JOHN R. GIBSON and BEAM, Circuit Judges, and DUMBAULD*, Senior District Judge. 4 DUMBAULD, Senior District Judge. 5 Appellant, a seaman, brought suit on February 4, 1987, under general maritime law for injuries sustained almost seven years earlier,1 alleging unseaworthiness of the vessel. The District Court2 held that the action was barred by the three-year statute of limitations contained in 46 U.S.C.App. 763a,3 as well as by laches. We affirm. 6 It is obvious from the dates that appellant's injuries (on March 24, 1980) occurred before the enactment of Section 763a (on October 6, 1980). But it is also obvious that by the time appellant sued (on February 4, 1987) he had permitted the entire three year period specified in Section 763a to pass.4 Clearly he had had a reasonable opportunity to sue (after the enactment of this statute of limitations) before the three year statute could have operated to cut off his action. 7 We believe that such a reasonable opportunity to sue before the statute could have foreclosed his suit suffices to prevent application of the statute to his case from being retroactive and unconstitutional. 8 The language of Section 763a, referring to a suit's being "maintained" shows that it is a procedural statute, referring to remedy and not to right.5 The language is also in plain terms inclusive in its scope. It does not make any exception in its coverage for pre-enactment injuries. The only reason for exempting appellant's suit from the application of Section 763a would be to preserve his constitutional right to a reasonable time to sue before the bar of the statute became operative. Lewis v. Lewis, 48 U.S. (7 How.) 776, 778-79, 12 L.Ed. 909 (1849); Sohn v. Waterson, 84 U.S. (17 Wall.) 596, 596-600, 21 L.Ed. 737 (1873). Under the circumstances he had ample time for that purpose. We agree with the Fifth Circuit's ruling in Cooper v. Diamond M Co., 799 F.2d 176, 178 (5th Cir.1986) cited in the District Court's opinion. 9 A litigant has no vested right to maintenance forever of the status quo existing at the time of his injury with respect to the time within which a legal remedy remains available. If it were otherwise no statute of limitations could ever become effective (as litigants would enjoy an unlimited time for suit after the statute of limitations had been enacted). 10 The same principle precludes any vested right to the perpetual continuance of the remedy provided by the doctrine of laches as existing at the time of the injury. 11 Moreover the circumstances of the case at bar justify the District Court's holding that laches bars recovery by appellant (even if length of time alone does not support a finding of laches). 12 In the case at bar appellant engaged in numerous actions negating a serious and diligent intention to pursue available legal remedies. 13 In June, 1980, three months after his injury, appellant filed suit in State court in Illinois. This proceeding was dismissed on appellee's motion in December, 1980, on grounds of forum non conveniens. Subsequently another action in Illinois State court was filed by appellant, but it was voluntarily dismissed by the appellant in September, 1985. Thereafter nothing was done by appellant to prosecute his claim until February 24, 1987 when the present suit was filed. 14 Laches is an equitable doctrine and the courts will "examine all aspects of the equities affecting each case." Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 806 (8th Cir.1979).6 The same case holds that the period prescribed in an analogous statute of limitation is a rough rule of thumb in considering the question of laches, and constitutes a pertinent factor in evaluating the equities. Ibid., at 805.7 The long delay in the case at bar, and appellant's failure to demonstrate any persuasive reason for such lack of diligence in prosecuting its claim, justify the District Court's conclusion that appellant's delay in filing its suit was unreasonable. We find no error in the District Court's evaluation of the equities, or its conclusion that appellant's suit is barred under the doctrine of laches, as well as by the express statutory bar of Section 763a. 15 Accordingly, the judgment of the District Court is 16 AFFIRMED. * The Honorable Edward Dumbauld, Senior District Judge for the Western District of Pennsylvania, sitting by designation 1 On March 28, 1980 2 The Honorable Diana E. Murphy, of the District Court of Minnesota, Fourth Division 3 This section, enacted by the Act of October 6, 1980, 94 Stat. 1525, reads: Unless otherwise specified by law, a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action accrued. 4 This is true even if one counts the pendency of appellant's State court litigation as tolling the statute. See note 1 of the District Court's order. Without that adjustment it would seem that twice the period of limitation prescribed by the statute had been permitted by appellant to elapse without any showing of diligence 5 Goodrich, Handbook of the Conflict of Laws (4th ed. by Eugene F. Scoles, 1964) 152-55; Butler v. Dravo Corp., 310 F.Supp. 1265, 1266 (W.D.Pa.1970); Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 200-201, 4 L.Ed. 529 (1819) 6 As stated in Gardner v. Panama Railroad Co., 342 U.S. 29, 30, 72 S.Ct. 12, 13, 96 L.Ed. 31 (1951), "the existence of laches is a question primarily addressed to the discretion of the trial court," and we find no abuse of discretion in its decision here. See also Goodman, supra, 606 F.2d at 808-809; and Azalea Fleet, Inc. v. Dreyfus Supply & Machinery Corp., 782 F.2d 1455, 1458 (8th Cir.1986) 7 See also McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 229, 78 S.Ct. 1201, 1206, 2 L.Ed.2d 1272 (1958) [Brennan, J. concurring]

751 F.2d 367 Beesleyv.Smith NO. 84-2130 United States Court of Appeals,second Circuit. SEP 07, 1984 Appeal From: S.D.N.Y., 582 F.Supp. 727 1 AFFIRMED.

271 Cal.App.2d 66 (1969) ALTA-DENA DAIRY, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents. Civ. No. 9150. California Court of Appeals. Fourth Dist., Div. One. Mar. 25, 1969. Dannemeyer & Tuohey, William E. Dannemeyer, Woolley, Collins & Ward for Plaintiff and Appellant. *70 Bertram McLees, Jr., County Counsel, McInnis, Focht & Fitzgerald, McInnis, Fitzgerald & Wilkey, Laurence L. Pillsbury, Walker, Walker & Gann and Russell W. Walker for Defendants and Respondents. Thomas C. Lynch, Attorney General, and Jan S. Stevens, Deputy Attorney General, as Amici Curiae on behalf of Defendants and Respondents. AULT, J. pro tem. [fn. *] Alta-Dena Dairy, a partnership consisting of Harold J. J. Stueve, Edgar E. Stueve and Elmer Stueve, appeals from a judgment of dismissal entered after a demurrer was sustained to its third amended petition for writs of mandate, certiorari and prohibition. The petition is directed against the County of San Diego and its Director of Public Health, Dr. J. B. Askew, M.D. The court sustained general demurrers to all six counts of the petition, expressly refrained from ruling on special demurrers and motions to strike, and granted 30 days to amend. Alta-Dena Dairy and its partners (Alta-Dena), elected to stand on the pleading and the dismissal followed. In the first four causes of action Alta-Dena seeks mandate together with monetary damages from Dr. Askew and the County of San Diego. The fifth cause of action asks for certiorari and the sixth for prohibition. All of the causes of action set forth in the petition contain the same factual allegations, but in each relief is sought on different theories of law. For that reason, in discussing the pleading to ascertain whether a cause of action is stated, we will generally refer to the petition as a whole and not to the individual causes of action. In the oral argument in this court, Alta-Dena's attorney announced his intention to abandon the fourth cause of action and any claim for monetary damages against the County of San Diego and Dr. Askew. We accept that abandonment and therefore will not comment on those aspects of the appeal. Alta-Dena is located in the County of Los Angeles. It produces and distributes raw milk. The controversy before us arose as the result of an order contained in a letter dated January 19, 1966, from Dr. Askew to Alta- Dena which reads: "The Public Health Laboratory of this department recently isolated bacterial organisms known as coagulase positive staphylococci from bottled unpasteurized milk originating from your dairy. These organisms are pathogenic to man. *71" "Upon receipt of this letter, you are hereby notified to discontinue the production of raw milk for sale and to pasteurize all milk produced at your dairy for distribution in San Diego County. This order will remain in effect until such time as you can prove to this department that the raw or unpasteurized milk from your dairy is free of pathogenic organisms and this department authorizes in writing the sale of raw milk from your dairy. The authority for taking this action is found in Section 2528 of the California Administrative Code, Title 17 which states as follows:" " '2528. When the local health officer has good cause to believe that a milk supply is suspected to be the source of infection for any one of the communicable diseases known to be transmitted through or suspected of being transmitted through milk, the health officer shall prohibit the use, sale or disposal of such milk, except by a method approved by him, until such time as he deems it to be safe for human consumption.'" "If you have any questions regarding this matter, you may wish to contact Mr. Walshe, Mr. Whitman or Dr. Murphy of this department at 239-7711, Extension 420." Alta-Dena, after an informal and unsuccessful attempt to obtain relief from this order, filed its petition in the trial court. Throughout its pleading and on appeal, it concedes its certified raw milk did and does contain a small quantity of staphylococci aureus coagulase positive. The first cause of action for mandate is based upon the theory of an alleged denial of substantive and procedural due process. Factually, it is alleged: certified raw milk cannot as a practical matter be produced without the presence of a small quantity of staphylococci aureus coagulase positive; the presence of a small quantity of that bacteria in its milk does not render the milk harmful to man, unsafe for human consumption, or make it a source of infection for one of the communicable diseases known to be or suspected of being transmitted through milk; this quantity of bacteria has been present in certified raw milk for over 60 years and no one has been made ill by its consumption, and staphylococci aureus coagulase positive is neither an infection nor a disease. It is further alleged the action taken by Dr. Askew was without notice or hearing and by reason of the action taken Alta-Dena has been improperly and unlawfully precluded from the enjoyment of a valuable property right, that is, the right to distribute and sell its certified raw milk in San Diego County. *72 [1] Respondent Askew's authority to prohibit the distribution and sale of appellant's certified raw milk must be based upon the provisions of section 2528 of title 17 of the California Administrative Code, cited in his letter of January 19, 1966. As a prerequisite to taking action, that section requires the local health officer to have good cause to believe the "milk supply is suspected to be the source of infection for any one of the communicable diseases known to be transmitted through or suspected of being transmitted through milk." [2a] The factual allegations in the petition support a conclusion directly to the contrary. [3] Furthermore, section 2528 provides the health officer shall prohibit the sale of suspected milk "until such time as he deems it to be safe for human consumption." Since the power to prohibit the sale of milk ends when milk is safe for human consumption, it necessarily follows such power begins when that standard is not met. Application of any lesser standard would result in an invalid exercise of the police power not reasonably related to the health, convenience, comfort, safety and morals of the public. (See Frost v. City of Los Angeles, 181 Cal. 22, 28 [183 P. 342, 6 A.L.R. 468].) [2b] The petition unequivocally alleges Alta-Dena's certified raw milk, despite the presence of staphylococci aureus coagulase positive in small quantity, is not harmful to human beings and is safe for human consumption. Respondents, however, rely on the well recognized exception to the general rule that in testing the sufficiency of the pleading on demurrer, matters judicially noticed will be considered and will prevail over contrary allegations contained in the pleading. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23 [195 P. 666]; Livermore v. Beal, 18 Cal.App.2d 535, 540 [64 P.2d 987].) They contend certain regulations, reports and documents of which the court must take judicial notice establish staphylococci aureus coagulase positive is a communicable disease transmitted through milk and since appellant concedes its presence in its certified raw milk, no issue of fact is raised by the petition and the demurrer was properly sustained. We have examined the items and sources upon which respondents rely. Assuming them all to be properly subject to judicial notice and assuming without deciding the statements contained therein must be accepted as true in all instances (See Love v. Wolf, 226 Cal.App.2d 378, 403 [38 Cal.Rptr. 183]; Beckley v. Reclamation Board, 205 Cal.App.2d 734, 741 [23 Cal.Rptr. 428]), we feel none of them meets the fair thrust of *73 the factual allegations contained in the petition. They do not establish the presence of staphylococci aureus coagulase positive in milk in small quantity makes that milk a source of infection for a communicable disease or renders it unsafe for human consumption. [4] It is a matter of common knowledge that most of the food we eat and the water we drink is not absolutely pure. Much of it contains small quantities of deleterious substances which, if present in larger quantity, might prove injurious to health. But the business of producing and selling foodstuffs, including milk, is a lawful business and interference by the governmental agency must bear a reasonable relationship to the public health and safety. (Frost v. City of Los Angeles, supra, 181 Cal. 22, 28.) If it is true, as appellant alleges, that its milk, containing a small quantity of staphylococci aureus coagulase positive, presents no danger to the public health and is safe for human consumption, the order prohibiting its sale exceeds the authority conferred by the regulation and amounts to an abuse of discretion. [5a] It is next contended the petition for mandate is fatally defective because appellant has not exhausted its administrative remedy. Section 2528 of the Administrative Code contains no provision for review of the order made by the health officer and respondents have pointed to no other statute or regulation which does so. Instead they rely on a single sentence which appears in the letter-order of Dr. Askew dated January 19, 1966. It reads as follows: "This order will remain in effect until such time as you can prove to this department that the raw or unpasteurized milk from your dairy is free of pathogenic organisms and this department authorizes in writing the sale of raw milk from your dairy." The contention is that since appellant did not accept this invitation, it has failed to exhaust its administrative remedy, and access to the courts should be denied. We think an administrative remedy sufficient to invoke the doctrine of exhaustion cannot be created with such informality. [6] Even when administrative review or remedy is provided by statute or regulation, the doctrine of exhaustion is not applicable "Unless the statute or regulation under which the power is exercised establishes clearly defined machinery for the submission, evaluation, and resolution of complaints by aggrieved parties." (Rosenfield v. Malcolm, 65 Cal.2d 559, 566 [55 Cal.Rptr. 505, 421 P.2d 697]; see also Endler v. Schutzbank, 68 Cal.2d 162, 168 [65 Cal.Rptr. 297, *74 436 P.2d 297]; Martino v. Concord Community Hospital Dist., 233 Cal.App.2d 51, 57 [43 Cal.Rptr. 255].) The requirements should be no less where respondents rely, not upon regulation or statute, but on the administrative order itself to establish the existence of administrative review. (Endler v. Schutzbank, supra, 68 Cal.2d 162, 168.) [5b] The language relied upon by respondents sets up no machinery or procedure for reviewing the order and makes no provision for a hearing. It amounts to no more than a statement "the order stands until you prove us wrong." It cannot be considered an adequate procedural remedy of review and appellant's failure to pursue it does not preclude it from requesting mandate. [2c] Because of our ruling petitioner is entitled to relief in mandate, the question of whether certiorari and prohibition (sought in the fifth and sixth causes of action of the petition) are available is largely academic. [7] We are satisfied mandamus is the proper remedy and neither certiorari nor prohibition lies under the circumstances presented (Dare v. Board of Medical Examiners, 21 Cal.2d 790, 794-795 [136 P.2d 304]; Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 81-82 [87 P.2d 848]). The demurrer to the 5th and 6th causes of action was properly sustained. The matters previously discussed control the appeal and will require a reversal of the judgment of dismissal. Other questions are raised on the appeal which will affect further proceedings in the trial court and a discussion of some of these is indicated. [8] Appellant alleges in the petition and urges on appeal the local health officer cannot prohibit the sale of milk under title 17, section 2528 of the Administrative Code unless or until an infection or disease attributable to its milk actually exists in the community. We find nothing in the words of that portion of the section under consideration to support this contention. Moreover, the plain purpose of that regulation is to give the health officer authority to take action to protect the public health. If an ambiguity exists, the section should be broadly construed to effect the purpose for which it was intended. (Askew v. Parker, 151 Cal.App.2d 759, 762 [312 P.2d 342]; A. O. Andersen & Co. v. United States, 284 F. 542, 543.) The section should not be interpreted so as to require the local health officer, charged with the duty to protect the public health, to await the occurrence of a death, or of a disease which might result in death, before he can act to prohibit *75 the sale of a milk supply which he knows, or has good reason to suspect, is contaminated. [9a] Appellant also contends through its pleading and on appeal the local health officer cannot act to prohibit the sale of milk under title 17, section 2528 of the Administrative Code unless the total bacteria count in the milk exceeds 15,000 bacteria per milliliter. It argues since the Legislature, in Agricultural Code section 460 (now 35781) has provided raw milk shall not contain more than 15,000 bacteria per milliliter, it has "preempted the field" and the health officer may not act to prohibit the sale of milk unless its total bacteria count, including pathogenic bacteria, exceeds 15,000 bacteria per milliliter. This contention does not fit within our concept of preemption. [10] We understand that term to mean where the Legislature has adopted a scheme for the regulation of a given subject, local legislative control over such phases of the subject as are covered by state legislation ceases. (In re Lane, 58 Cal.2d 99, 102 [22 Cal.Rptr. 857, 372 P.2d 897]; In re Hubbard, 62 Cal.2d 119, 123 [41 Cal.Rptr. 393, 396 P.2d 809].) [9b] The provisions of the Administrative Code, adopted by the State Department of Public Health pursuant to section 208 of the Health and Safety Code, have the force and effect of state law. (Lertora v. Riley, 6 Cal.2d 171, 180 [57 P.2d 140].) In acting pursuant to the Administrative Code, respondent Askew was enforcing a state law, and his order cannot be construed as being "in the nature of a local ordinance" as appellant contends. The provisions of the Agricultural Code setting broad minimum standards for market milk can and should be reconciled with the provisions of Health and Safety Code and the regulations promulgated thereunder more precisely concerned with protecting the public health. It is not reasonable to infer the Legislature, by providing in the Agricultural Code that raw milk shall not contain more than 15,000 bacteria per milliliter, intended to preclude the health officer from taking appropriate steps to protect the public when a milk supply meets that general over-all standard, yet contains a sufficient quantity of pathogenic bacteria or organisms to constitute a danger to the public health. The nature of the hearing to be afforded in the trial court is also in dispute. Respondents contend any factual review of Dr. Askew's order should be limited to a consideration of whether substantial evidence supports the issuance of the *76 order rather than a review by a trial de novo. It is argued Dr. Askew's action was a local action enforcing state law to perform the local function of protecting local citizens within the county. While the substantial evidence test applies to review of decisions of local agencies (Thompson v. City of Long Beach, 41 Cal.2d 235, 239-240 [259 P.2d 649]; Fascination, Inc. v. Hoover, 39 Cal.2d 260, 264-265 [246 P.2d 656]), Dr. Askew's action was not an action of a local agency. He acted as the local health officer, an individual to whom the power to act was delegated by the state-wide Department of Public Health under that department's regulation as contained in title 17, section 2528 of the Administrative Code. The action taken was that of the Department of Public Health through its appointed agent. [11] Where a state-wide agency delegates its powers to a local officer the scope of review applicable to an exercise of that power is the rule which applies to the delegating authority. Respondents further contend the State Department of Public Health derives some of its authority from the state Constitution (art. XX, 14) and thus must be considered a constitutional agency whose decisions are reviewable by the substantial evidence test. (Palm Springs Turf Club v. California Horse etc. Board, 155 Cal.App.2d 242, 246 [317 P.2d 713].) Article XX section 14 of the Constitution provides: "The Legislature shall provide, by law, for the maintenance and efficiency of a State Board of Health." The Constitution does not confer the decision making power which was exercised here by the health officer. [12] The authority of the Department of Public Health to control milk and foodstuffs to prevent the spread of communicable diseases is not derived directly from the Constitution. Article XX section 14 does not purport to delegate adjudicatory powers to either the State Board of Health or the State Department of Public Health. (Compare Ishimatsu v. Regents of the University of Cal., 266 Cal.App.2d 854, 863-864 [72 Cal.Rptr. 756].) [13] Because an agency may be, in part, established by constitutional provision does not of itself exempt it from trial de novo review of its decisions. The criterion to be met is the decision making power must be based upon a constitutionally granted authority to adjudicate. (See Covert v. State Board of Equalization, 29 Cal.2d 125, 131-132 [173 P.2d 545]; Ishimatsu v. Regents of the University of Cal., supra, 266 Cal.App.2d 854, 863-864; Deering, California Administrative Mandamus (Cont. Ed.Bar) 5.68, pp. 78-79.) *77 [14] The action to be reviewed here was by a state-wide agency exercising an authority of legislative origin affecting a vested right of Alta-Dena to continue distribution of its milk products and is subject to review by a trial de novo. (Laisne v. California State Board of Optometry, 19 Cal.2d 831 [123 P.2d 457]; Drummey v. State Board of Funeral Directors, supra, 13 Cal.2d 75, 84.) More important, however, than these considerations are the constitutional principles involved. [15] Where, as here, the order of an administrative officer adversely affects a valuable and existing property right, where it is made without notice or hearing under a regulation which makes no provision for hearing or administrative review, the fundamental principles of due process come into play. Somewhere along the line appellant is entitled to meet its adversary on equal footing in a full and fair hearing, before an impartial tribunal, with the full and complete right to present evidence and cross-examine witnesses (Bess v. Park, 144 Cal.App.2d 798, 807 [301 P.2d 978]). Unless such right is available to appellant by a trial de novo in the superior court, the very regulation under which respondent Askew acted would violate due process and thus be unconstitutional. (Jordan v. American Eagle Fire Ins. Co., 169 F.2d 281, 290 [83 App.D.C. 192]; Columbia Auto Loan v. Jordan, 196 F.2d 568, 572 [90 App.D.C. 222]; Jordan v. United Ins. Co. of America, 289 F.2d 778, 782 [110 App.D.C. 112]; Jones v. Freeman, 400 F.2d 383, 390; Parker v. Board of Barber Examiners (La. App.) 84 So.2d 80, 86.) Because of the posture of the case on appeal, our scope of inquiry is largely confined to whether the facts as pleaded state a cause of action for relief. We do not by our ruling put the stamp of approval on the petition as it now reads or upon the various theories of law which have been pleaded. The abandonment of the fourth cause of action can be dealt with by the decision of this court, but the claim for damages, which has also been abandoned and which appears in each of the mandate counts cannot be reached and will require action by the trial court. Absent the abandoned claim for monetary damages the position of the county as a responsive party is questionable. This is a matter to be considered in the further proceedings below. Since the remaining mandate counts are all based upon the same facts, we see no reason why they should not be consolidated into one cause of action. The petition as it now stands is repetitious, redundant, argumentative and conclusionary. These defects should be cured through the *78 vehicle of the motions to strike and the special demurrers which are not before us on appeal and upon which the trial court has not ruled. The judgment is affirmed as to the fourth, fifth and sixth causes of action; it is reversed as to the first, second and third causes of action. The case is remanded to the trial court for further proceedings in accordance with this opinion. Brown (Gerald), P. J., and Coughlin, J., concurred. NOTES [fn. *] *. Assigned by the Chairman of the Judicial Council.

08-4494-ag Zheng v. Holder BIA Bukszpan, IJ A070 902 071 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8 th day of June, two thousand ten. PRESENT: REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges. _______________________________________ SHENGJIN ZHENG, Petitioner, v. 08-4494-ag NAC ERIC H. HOLDER, JR., 1 U.S. ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio. 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. FOR RESPONDENT: Michael F. Hertz, Acting Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Susan Bennett Green, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Shengjin Zheng, a native and citizen of China, seeks review of the August 13, 2008 order of the BIA (1) affirming the May 16, 2007 decision of Immigration Judge (“IJ”) Joanna M. Bukszpan denying his motion to reopen removal proceedings, and (2) denying his motion to remand. In re Shengjin Zheng, No. A070 902 071 (B.I.A. Aug. 13, 2008), aff’g No. A070 902 071 (Immig. Ct. N.Y. City May 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the BIA’s denial of a motion to reopen or remand for abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 200-01 2 (2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). I. Motion To Reopen The BIA dismissed Zheng’s appeal, affirming both the IJ’s determination that Zheng’s motion was untimely and her discretionary denial of his motion to reopen. Because the motion to reopen Zheng’s in absentia order was based on new evidence, we apply the general standards governing motions to reopen. See 8 C.F.R. §§ 1003.2(c), 1003.23(b); see generally Grigous v. Gonzales, 460 F.3d 156, 160 (1st Cir. 2006). 2 Under those standards, we agree that Zheng’s motion to reopen, filed nearly ten years after entry of the in absentia order of removal, was untimely. See 8 C.F.R. § 1003.2(c)(2) (requiring that motion to reopen be filed within 90 days of date of final administrative decision). There are no time or number limitations for filing a 2 The BIA erred in concluding that Zheng’s motion to reopen was untimely under the deadline requirements set forth in 8 U.S.C. § 1229a(b)(5)(C). That statute applies to an alien’s motion to rescind an in absentia order. Nevertheless, remand based on this error would be futile because Zheng’s motion was untimely pursuant to the general motion to reopen deadlines set forth in 8 C.F.R. §§ 1003.2(c) and 1003.23(b). See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006) (finding that remand is futile only when reviewing court can “confidently predict” that IJ would reach same decision absent relevant errors). 3 motion to reopen where the motion is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA, however, properly concluded that Zheng failed to demonstrate that his motion satisfied the requirements of this exception. As in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of S- Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA considered the 2006 U.S. State Department Country Conditions Report and various administrative decisions issued to Chinese couples who violated the family planning policy but determined that such evidence was insufficient to establish material changed country conditions or a reasonable possibility of persecution, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). On this record, we cannot conclude that the BIA abused its discretion in affirming the IJ’s denial of Zheng’s untimely motion to reopen. 3 3 We need not consider Zheng’s argument that the BIA erred in failing to consider his fear that he will face a significant fine if he returns to China, as the argument is unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007). 4 II. Motion to Remand Under 8 U.S.C. § 1229a, “[a]ny alien who, after written notice . . . has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the [government] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” 8 U.S.C. § 1229a(b)(5)(A). Generally, “[s]uch an order may be rescinded only . . . upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). In denying Zheng’s motion to remand, the BIA noted that (1) the motion was untimely, as it was filed more than 180 days after the IJ’s in absentia order; and (2) Zheng failed to explain why he did not appear for his October 1997 merits hearing. This reasoning manifests no abuse of discretion. See 8 U.S.C. § 1229a(b)(5)(C)(i); see also Alrefae v. Chertoff, 471 F.3d 353, 358-59 (2d Cir. 2006). Nevertheless, Zheng argues that denial of his motion to remand was improper under Matter of G-Y-R-, 23 I. & N. Dec. 5 181 (BIA 2001), because he did not receive proper notice of his merits hearing. See 8 C.F.R. § 1003.23(b)(4)(ii) (permitting in absentia order of removal to be rescinded upon motion to reopen at any time, so long as alien demonstrates he did not receive proper notice). We are not persuaded. In April 1997, the agency sent a notice to appear (“NTA”) to Zheng via certified mail using an address that he provided on his asylum application approximately one month earlier, and there is no evidence in the record that Zheng did not receive that NTA. See Alrefae, 471 F.3d at 359 (noting that because sending NTA by certified mail and providing proof of attempted delivery create presumption of effective service, alien seeking relief from in absentia removal order on ground that he did not receive notice must “present[] substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery” (internal quotation marks omitted)). Zheng’s hearing date was thereafter twice changed, prompting two additional NTAs to be mailed to the same address. Zheng asserts that he never received these later NTAs and that he had moved from the address provided. 6 The April 1997 NTA, however, advised Zheng of his obligation to “notify the Immigration Court immediately . . . whenever [he] change[d] [his] address” and warned that the failure to do so would relieve the government of its duty to provide him with written notice. April 15, 1997 Notice to Appear at 2. In light of these facts and Zheng’s failure to adduce any evidence indicating that he notified the government of his purported change of address, we identify no abuse of discretion in the BIA’s rejection of Zheng’s notice defense to his failure to appear at his merits hearing. Zheng’s assertion that the BIA erred in denying his motion to remand by finding him ineligible for adjustment of status is similarly unavailing. The BIA did not reach the issue of Zheng’s eligibility for adjustment of status because Zheng offered no explanation for his failure to present his application for adjustment to the IJ. In these circumstances, the BIA’s denial of the motion for remand was not an abuse of discretion. See 8 C.F.R. § 1003.2(c)(1) (noting that motion to reopen shall not be granted unless evidence sought to be offered was unavailable and could not have been presented at former hearing). 7 III. Conclusion For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 8 

In the United States Court of Appeals For the Seventh Circuit No. 99-3497 Tuf Racing Products, Inc., Plaintiff-Appellee, v. American Suzuki Motor Corporation, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 94 C 50392--Philip G. Reinhard, Judge. Argued March 31, 2000--Decided July 24, 2000 Before Posner, Chief Judge, and Ripple and Rovner, Circuit Judges. Posner, Chief Judge. Tuf, a dealer in motorcycles in DeKalb, Illinois, in 1987 signed a franchise contract with Suzuki that the latter terminated in 1994, precipitating this diversity suit by Tuf under the Illinois Motor Vehicle Franchise Act, 815 ILCS 710/1 et seq. Although Tuf carried other brands as well as Suzuki and so was able to survive the termination, it claims to have suffered damages of some $1.2 million from the alleged breach. A jury agreed that the termination had been wrongful but awarded Tuf only $137,000, to which, however, the judge added $391,318 in attorneys’ fees under the franchise act’s fee-shifting provision, 815 ILCS 710/13, which requires such an award if the plaintiff "substantially prevails." Construed as favorably to Tuf as the record permits, which is the correct approach in light of the verdict, the facts reveal that Suzuki became angry at Tuf for selling motorcycles outside the geographical area in which its dealership was located, some of these to other Suzuki dealers for resale. The franchise agreement did not forbid either practice (sales for resale are forbidden except to other Suzuki dealers), but apparently Suzuki received complaints from its other dealers about Tuf’s "poaching" on their markets, and so it wrote Tuf complaining about its conduct. The letter focused on sales for resale but Suzuki’s regional manager called Tuf’s owner and told him that Suzuki had been getting complaints about Tuf’s selling outside its immediate vicinity too and that it should not do that either. When Tuf did not desist from the practices complained of, Suzuki decided to precipitate a breach of the franchise contract by Tuf, which it did by such tactics as denying standard credit terms and then accusing Tuf of failing to maintain a regular plan for sales on credit, as required by the franchise agreement. All the grounds Suzuki gave in its notice of termination--not only failure to maintain a regular credit plan, but also inadequate sales volume, insufficient inventory, and inadequate promotion--were pretextual, the real reason for termination being that Tuf had irritated Suzuki’s other dealers by the two practices that Suzuki had asked it to desist from. The invocation of "pretext" in this context is puzzling. In the law of contracts, while procuring a breach by the other party to your contract would excuse the breach, United States v. Peck, 102 U.S. 64 (1880); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1124 (7th Cir. 1998); Swiss Bank Corp. v. Dresser Industries, Inc., 141 F.3d 689, 692 (7th Cir. 1998); Mendoza v. COMSAT Corp., 201 F.3d 626, 631 (5th Cir. 2000); E. Allan Farnsworth, Contracts sec. 8.6, p. 544 (3d ed. 1999), merely having a bad motive for terminating a contract would not. If a party has a legal right to terminate the contract (the clearest example is where the contract is terminable at will by either party), its motive for exercising that right is irrelevant. Kumpf v. Steinhaus, 779 F.2d 1323, 1326 (7th Cir. 1985); Harrison v. Sears Roebuck & Co., 546 N.E.2d 248, 255-56 (Ill. App. 1989). The party can seize on a ground for termination given it by the contract to terminate the contract for an unrelated reason. So if Tuf gave cause for termination (other than "cause" procured by Suzuki’s own misconduct, for example in withholding standard credit terms), that would be the end of the case--at least if Tuf were charging merely a breach of contract. But it is not; we are under the franchise act, which requires franchisors to deal with their franchisees in good faith. 815 ILCS 710/4(b); Kawasaki Shop of Aurora, Inc. v. Kawasaki Motors Corp., U.S.A., 544 N.E.2d 457, 462-63 (Ill. App. 1989). Tuf appears to think that the good-faith provision entitles it to complain about a pretextual termination even if there is good cause for termination. This is incorrect. The cases cited in the preceding paragraph hold that the fact that there is a duty of good faith read into every contract does not justify judicial inquiry into motive. A party can stand on his contract rights; what he cannot do is resort to opportunistic or otherwise improper behavior in an effort to worm his way out of his contractual obligations. In Dayan v. McDonald’s Corp., 466 N.E.2d 958, 974 (Ill. App. 1984), we read that "no case has been cited nor has our research revealed any case where a franchise termination for good cause was overcome by the presence of an improper motive. As a general proposition of law, it is widely held that where good cause exists, motive is immaterial to a determination of good faith performance." Dayan was not decided under the franchise act, but we are given no basis in case law or common sense for supposing that the duty of good faith created by the act sweeps beyond the common law duty. The judge’s charge to the jury, however, though not a model of clarity, is consistent with Dayan. For although the jury was asked to decide whether Suzuki had acted in bad faith in terminating Tuf for any of the reasons given in its notice of termination, it was also told that Suzuki would have an affirmative defense if any of the reasons were grounds for termination in the contract, even if the other reasons cited in the notice were not. It would have been more straightforward to instruct the jury to determine simply whether the termination had been a breach of the contract, but Suzuki is not complaining about the charge. Its main argument for reversal is that the judge improperly allowed Tuf to inject a new ground at trial, what Suzuki calls the "match-up" theory of a breach of the franchise agreement. To understand this argument requires us to delve into the agreement. Section 9.1 provides that if the dealer fails to conduct his business in conformity with the agreement, Suzuki may terminate him upon written notice. Section 9.2 lists 15 violations that Suzuki can base termination on with only 15 days’ notice to Tuf, and section 9.3 lists 11 more violations on which termination can be based provided that 60 days’ notice is given. The first list contains the more serious violations, like insolvency, and the second the lesser ones, such as failing to maintain the sales volume agreed upon with Suzuki. Suzuki terminated Tuf with 60 days’ notice, but the list of violations in the notice does not match up completely with the list in section 9.3. Suzuki argues that even so, given section 9.1, the termination could still be proper. The judge disagreed, and did not let Suzuki argue that, but instead allowed Tuf to argue that the failure of the notice to match the list of violations in section 9.3 showed that the termination was improper.  Read most naturally, section 9.1 does not create a separate basis for termination. All it says is that "if Dealer does not conduct its business in accordance with the requirements set forth herein, Suzuki may terminate this Agreement by giving Dealer written notice of termination," and all this seems to mean is that Suzuki can terminate the franchise agreement if the dealer does not comply with it but that Suzuki must give written notice of the termination. The succeeding sections indicate how much written notice must be given, which depends on the gravity of the violation. If there are grounds for termination other than the 26 listed in sections 9.2 and 9.3, they do not appear in the contract. Were they assumed to exist nevertheless, the contract would have a hole, since it doesn’t indicate how much written notice Suzuki must give if it wants to terminate on the basis of a ground for termination not stated in the contract. The contract contains no provision to the effect that "termination based on a violation of the franchise agreement that is not listed in sections 9.2 or 9.3 requires ___ days’ written notice." The 26 grounds taken as a whole seem pretty exhaustive, moreover; there is no compelling reason to interpolate additional grounds and thus embrace the ambiguity just identified. The most plausible reading of the contract, therefore, is that a notice of termination that fails to specify any of the 26 listed grounds for violation violates the contract. Tuf has been shy about making this argument, maybe because a defect in notice would be a technical violation from which no damages could be shown to flow. In any event it argues merely that Suzuki’s failure to conform to the requirements of section 9.3 is further evidence of Suzuki’s bad faith in terminating the franchise agreement. But here Suzuki drops the ball, failing to argue that bad faith in the sense of bad motive is not a violation of the franchise act. Instead Suzuki contends that Tuf did argue in the district court that the failure of the notice of termination to match the grounds for termination listed in the contract was an independent breach, and complains that the judge prevented it from meeting the argument by forbidding it to cite section 9.1 as an independent basis for termination. However this may be (as near as we can determine, Tuf didn’t make the argument but the judge instructed the jury as if it had!), since Suzuki has never explained how its interpretation could be right given the hole in the contract that such an interpretation would create, no injustice was done by its being forbidden to present the interpretation to the jury. Probably no injustice was done by Tuf’s "bad faith" theory either (which may be why Suzuki has failed to oppose it), for remember that the jury was correctly instructed that Suzuki should prevail if it had a basis in the contract for terminating Tuf. Evidently the jury concluded that it did not; and Suzuki’s contention that it had a ground for termination not stated in the contract is unsound for the reasons we’ve explained. We move on to the issue of damages. Tuf presented its theory of damages by way of its accountant (a C.P.A.), and in the district court Suzuki argued that the accountant should not have been permitted to testify as an expert witness because he does not have a degree in economics or statistics or mathematics or some other "academic" field that might bear on the calculation of damages. The notion that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires particular credentials for an expert witness is radically unsound. The Federal Rules of Evidence, which Daubert interprets rather than overrides, do not require that expert witnesses be academics or PhDs, or that their testimony be "scientific" (natural scientific or social scientific) in character. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 150 (1999); Smith v. Ford Motor Co., No. 99-2656, 2000 WL 709895, *3 (7th Cir. June 2, 2000); United States v. Williams, 81 F.3d 1434, 1441 (7th Cir. 1996); Morse/Diesel, Inc. v. Trinity Industries, Inc., 67 F.3d 435, 444 (2d Cir. 1995). Anyone with relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness. Fed. R. Evid. 702; Advisory Committee’s Notes to 1972 Proposed Rule 702; United States v. Navarro, 90 F.3d 1245, 1261 (7th Cir. 1996); United States v. Williams, supra, 81 F.3d at 1441; City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 563 and n. 17 (11th Cir. 1998). The principle of Daubert is merely that if an expert witness is to offer an opinion based on science, it must be real science, not junk science. Tuf’s accountant did not purport to be doing science. He was doing accounting. From financial information furnished by Tuf and assumptions given him by counsel of the effect of the termination on Tuf’s sales, the accountant calculated the discounted present value of the lost future earnings that Tuf would have had had it not been terminated. This was a calculation well within the competence of a C.P.A. The accountant calculated Tuf’s damages at about $1.2 million, yet the jury awarded only a bit more than 10 percent of that--leading Suzuki to argue that the damages award should be set aside as "speculative," since the jury of course did not explain the path that led to the award and it is unclear what that path may have been. We think it pointless, although it might assist defendants who seek to win by attrition, to credit a defendant’s complaint that an award of damages should be set aside because it was too small to make sense, which is at root what Suzuki is arguing. The argument implies that upon a retrial the plaintiff is likely to obtain a higher award (since the previous award was irrationally low) that the appellate court will sustain. In any event, such an argument is blocked by the principle that if the award is within the bounds of reason, the fact that the jury may not have used reason to arrive at it--may instead have negotiated an unprincipled compromise in order to avoid deadlock--will not prevent it from being upheld. Kasper v. Saint Mary of Nazareth Hospital, 135 F.3d 1170, 1177 (7th Cir. 1998); Outboard Marine Corp. v. Babcock Industries, Inc., 106 F.3d 182, 186-87 (7th Cir. 1997). In other words, the court looks only at the "bottom line," to make sure it’s reasonable, and doesn’t worry about the mental process that led there. Since the jury is a collective body rather than a single mind, since it does not write up its findings as the judge does when he’s the finder of fact, and since the law protects jurors from being interrogated about their reasoning processes, it really isn’t feasible to insist upon a demonstration that the jury arrived at its reasonable bottom line by reasoning to it the way a professional judge would do, rather than by guesswork, intuition, or compromise. Suzuki’s other complaints about the award are niggling and we move on to the last issue, that of attorneys’ fees. Suzuki argues that Tuf did not prevail because it obtained so much less than it asked for. It prevailed in the literal sense, but did it substantially prevail? We cannot find any cases that interpret this term in the franchise act. The parties assume as shall we that we can turn for guidance to the case law that has developed around the issue of when a plaintiff who has won much less than he sought is entitled to an award of attorneys’ fees under rules or statutes entitling prevailing parties to "reasonable" such fees. That case law indicates that had Tuf obtained merely nominal damages, it would not have been entitled to any award of fees, Farrar v. Hobby, 506 U.S. 103, 114 (1992); Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir. 1998); Bristow v. Drake Street Inc., 41 F.3d 345, 352 (7th Cir. 1994); Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 339 (1st Cir. 1997), and that if it had incurred attorney’s fees that were disproportionate to a reasonable estimate of the value of its claim, it could not recover all those fees, but only the reasonable proportion, which is to say the amount that would have been reasonable to incur had the value of the claim been estimated reasonably rather than extravagantly. Farrar v. Hobby, supra, 506 U.S. at 115; Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Suzuki has shown neither of these things. But it argues in addition that the rule in this circuit is that a plaintiff who fails to obtain an award of damages equal to at least 10 percent of the amount he sought will be denied any award of fees, and at one point before trial Tuf had asked for $1.5 million although before trial it scaled down its demand. (Its complaint did not demand a specific amount, but only an amount greater than the then jurisdictional minimum in a diversity case of $50,000, since raised by Congress to $75,000.) Several cases in this circuit do suggest that a plaintiff’s failure to obtain at least 10 percent of the damages it had sought will weigh heavily against any award of attorneys’ fees. Indeed, Perlman v. Zell, 185 F.3d 850, 859 (7th Cir. 1999), states this in a way that makes it sound like a rule, although the cases it cites for the rule treat it, rather, merely as a factor to consider along with other factors weighing for or against an award of attorneys’ fees. Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999); Fletcher v. City of Ft. Wayne, supra, 162 F.3d at 976. (We cannot find a case in any other court that mentions the 10 percent rule or factor.) Since a defendant must take seriously a large demand and prepare its defense accordingly, it is right to penalize a plaintiff for putting the defendant to the bother of defending against a much larger claim than the plaintiff could prove. But here the plaintiff scaled back its claim before trial and obtained more than 10 percent of the scaled- back demand from the jury. That seems to us enough to take the case out of the "rule" for which Suzuki contends. The fact that the attorneys’ fees awarded exceed the damages award is not decisive either. Because the cost of litigating a claim has a fixed component, a reasonable attorney’s fee in the sense of the minimum required to establish a valid claim can exceed the value of the claim. Hyde v. Small, 123 F.3d 583, 584-85 (7th Cir. 1997). Yet one purpose of fee shifting is to enable such claims to be litigated, and the purpose would be thwarted by capping the attorneys’ fees award at the level of the damages award. There is no evidence that the $391,000 that Tuf expended to establish its claim--an amount that was, incidentally, little more than a third as great as Suzuki’s expenditure in defending against it--was more than was reasonably necessary for Tuf to prevail.  The cases we have cited on the issue of attorneys’ fees are cases interpreting federal fee-shifting statutes, but Tuf’s entitlement is created by the law of Illinois. In default of relevant Illinois cases, however, the parties have cited to us federal cases, assuming, reasonably enough, that the common-sense principles that guide federal courts in determining attorneys’ fees issues would commend themselves to Illinois courts as well. But in addition we have found one Illinois case that makes the essential point that the damages award does not cap the fee award. Pitts v. Holt, 710 N.E.2d 155 (Ill. App. 1999). Affirmed. 

917 So.2d 876 (2005) SWINTON v. STATE. No. 2D05-4266 District Court of Appeal of Florida, Second District. December 14, 2005. Decision without published opinion. Affirmed.

827 S.W.2d 213 (1992) James Edward MOORE, Appellant, v. STATE of Missouri, Respondent. No. 74002. Supreme Court of Missouri, En Banc. March 24, 1992. Dave Hemingway, St. Louis, for appellant. William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent. RENDLEN, Judge. Defendant appeals from the denial of his 27.26 motion seeking relief from his convictions of rape, sodomy and first degree burglary. We reverse and remand. The charges arose at the instance of M.T., defendant's neighbor in an adjoining duplex unit, who reported that as she lay in bed on the night of September 27-28, 1985, a man wearing gloves and a ski mask raped and sodomized her. The victim testified the assailant identified himself as Darryl, the father of her children, but she knew the voice was not his. While the victim first stated she did not recognize her assailant's voice, she later identified the voice as that of appellant. M.T. named appellant as the attacker, though during the assault she *214 was able to momentarily raise the mask no further than his eyebrows and then blacked out. Samples were taken of a semen stain on the victim's bed sheet, as well as vaginal and rectal swabs from the victim, which tested positive for the presence of semen. Defendant's conviction on these charges was affirmed on direct appeal. State v. Moore, 731 S.W.2d 351 (Mo.App.1987). In his motion for postconviction relief, defendant questioned his counsel's failure to investigate his blood type for comparison with specimens obtained from the victim's apartment. Defendant testified that he repeatedly asked counsel that tests be conducted to establish his innocence, but no testing procedure was performed until 1988-1989, after the filing of defendant's 27.26 motion. The serological evidence produced in support of the motion established that defendant has Type O blood and is a nonsecretor, meaning that he does not secrete antigens reflecting his blood type in his body fluids, including semen. An antigen is a protein or carbohydrate substance, such as a toxin or enzyme, which stimulates the production of antibodies. The victim's blood type was identified as Type O, secretor, meaning that her body fluids could contain H antigens. The semen stain on the bed sheet contained A and H antigens, which could not have been produced by a nonsecretor, such as defendant, nor could the victim have produced the A antigen; the evidence therefore firmly established that someone other than defendant produced the semen stain. However, samples taken from M.T.'s vagina and rectum also evidenced the presence of spermatozoa. Patricia Dougherty, a forensic scientist from the St. Louis County Police Department, testified she was unable to identify any antigens in these swabs, which could have been consistent with a nonsecretor male such as appellant, but she further acknowledged that antigens could have decomposed during the three-year lapse between the time of the incident and the time of her analysis, or that the swabs may have contained an insufficient amount of semen to detect antigens. At the hearing on the motion for postconviction relief, defendant also produced the testimony of the comptroller of the Missouri Public Defenders' State Office, who testified that money was available to the public defenders to perform laboratory analyses, though defense counsel made no effort to avail himself of such service. Instead, defense counsel based his closing argument on the theory that defendant requested that tests be done to prove his innocence, but he could not afford blood typing tests, and the State had the resources to perform them. Counsel further contended the defendant did not have the burden to prove his innocence, but the state had the burden to prove his guilt.[1] Defense counsel further based his argument on the erroneous assumption that the specimens collected at the time of the incident were no longer usable at the time of trial. In ruling on appellant's 27.26 motion, the circuit court held: Movant has not shown he was prejudiced by Trial Counsel's failure to request comparison of Movant's blood and saliva to evidence obtained by the State in investigating this crime. Movant has steadfastly maintained he requested such test be performed but his request went unheeded by Counsel. The record at trial both in the cross-examination of the State's expert and in closing argument strongly suggests this was Trial Counsel's deliberate strategy to attribute the lack of such testing as a failure in the State's evidence. However, it is not necessary to determine either of these issues because the analysis and comparison performed at Movant's request in the course of this post-conviction proceeding established Movant was not prejudiced by Counsel's decision. Movant has placed great weight in his pleadings on the fact further testing excluded him as a donor of seminal fluid on the victim's bedsheet. However, there was semen recovered both from victim's vagina and anus. These findings tracked exactly with her testimony that she was both raped and sodomized. New testing did not exclude *215 Movant as the donor of either of these far more significant evidentiary samples. Trial testimony indicated the victim had a boyfriend. There was no evidence offered either at trial or during this proceeding to suggest or establish that the sole source of the seminal fluid on the bedsheet was victim's assailant. Certainly had the further testing been completed prior to Movant's trial and admitted into evidence, the arguments of both counsel would undoubtedly have been different. Yet, that fact in no way establishes prejudice to Movant. * * * * * * Movant further alludes to statements by Trial Counsel in closing argument to the effect that Movant had no money to perform these tests and by the time Trial Counsel had entered the case the relevant evidentiary samples had dried up and were of no use. Certainly, these statements were not accurate. It serves no useful purpose to question the propriety of the statements having been made. If anyone was prejudiced by this inaccurate argument, it was the State. Since the tests were not performed, Trial Counsel's argument that Movant could not have performed the test and only the State had the resources at the time they could have been performed could not have prejudiced the jury against Movant. When examining the motion court's ruling, we are mindful our review is limited to a determination whether its findings, conclusions and judgment are clearly erroneous, Rule 27.26(j), and they may be so found only if review of the entire record leaves the Court with a firm impression a mistake has been made. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). A showing of ineffective assistance of counsel first requires that defendant show counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby; stated otherwise, that but for counsel's unprofessional conduct, there was a reasonable probability of a different result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Mallett v. State, 769 S.W.2d 77, 82 (Mo. banc 1989), cert. denied, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 104 S.Ct. at 2068. Against these standards, we conclude counsel's failure to obtain the requested blood tests fell below reasonable and customary standards, and there was at least a reasonable probability of a different result had such test results been obtained. "Counsel has a duty to make reasonable professional investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Griffin, 810 S.W.2d 956, 958 (Mo.App. 1991). In this case, counsel's failure to pursue the evidence readily available to his office falls outside the range of reasonably competent professional behavior under the circumstances. See State v. Wells, 804 S.W.2d 746, 748-49 (Mo. banc 1991). Further, though the test results may not have changed the result, that very real probability cannot be ignored, and meets the minimum standard of undermining confidence in the outcome of the case. See Perkins-Bey v. State, 735 S.W.2d 170, 172 (Mo.App. 1987). Examining the facts and circumstances before counsel, the serological evidence that appellant could not have been the source of the semen found on the sheet, together with the inconclusive analysis of the samples taken from the victim, gives rise to a reasonable probability that a different result may have obtained. Relying upon Toney v. State, 770 S.W.2d 411, 414 (Mo.App.1989), respondent would have us dismiss counsel's conduct as trial strategy. In Toney, defense counsel similarly was charged with ineffective performance in failing to obtain an analysis of spermatozoa found on the rape victim, but there the court held: Rather than taking the potentially devastating risk of having such an analysis show a positive or inconclusive result as to her client, trial counsel forcefully argued that the failure of the State to *216 show similarity between the blood types of the assailant and of movant constituted a failure to sustain the State's burden of proof ... Counsel's decision to attack the State's failure to conduct tests was reasonably within professional norms under the circumstances. Eliminating the distorting effect of hindsight, movant's allegations fail to overcome the strong presumption that counsel's tactic was sound trial strategy. 770 S.W.2d at 414. However, Toney is distinguishable on the facts. Taking into account, as we must, the entire record, we note the brevity of M.T.'s view of her assailant's countenance in a darkened room, and the incongruity of her testimony as to the attacker's voice, together with appellant's consistent denial that he was the perpetrator of the offense. Further, defense counsel based his closing argument on the erroneous assumption that he had no money for the laboratory testing and that the specimens were no longer usable at the time of trial. As stated by the United States Supreme Court in Strickland, 104 S.Ct. at 2066: [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. (Emphasis added.) In this case, counsel's conduct cannot withstand the test of reasonableness when he was mistaken as to the availability of the test procedures and when defendant, who consistently maintained his innocence, apparently asked repeatedly that tests be performed. With this shadow cast upon the case, and with the outcome of the trial therefore called to question, we hold the motion court was clearly erroneous in its finding that there was no prejudice to appellant within the meaning of Strickland, 104 S.Ct. at 2068. The judgment is reversed and remanded. ROBERTSON, C.J., and COVINGTON, BLACKMAR, BENTON and THOMAS, JJ., concur. HOLSTEIN, J., dissents in separate opinion filed. HOLSTEIN, Judge, dissenting. Insofar as the majority is granting an outright reversal of the judgment without remand for further hearing, I respectfully dissent. In a post-conviction proceeding, the trial court may choose to believe all, part, or none of the testimony of any witness. See Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). This is true even though such testimony is uncontradicted. Id. Defendant was the only person to testify regarding his conversations with his attorney prior to trial. The majority opinion assumes that defendant was truthful in his testimony "that he repeatedly asked counsel that tests be conducted to establish his innocence." The majority also assumes counsel "was mistaken as to the availability of test procedures." The motion court specifically declined to make findings on those issues. The motion court is required to make findings of fact and conclusions of law on all issues presented. Rule 27.26. The majority, without benefit of findings by the motion court, concludes that counsel made incompetent mistakes contrary to the wishes of his client. But if the fact finder disbelieved defendant, the record here does not exclude reasonable explanations for counsel's conduct. For example, counsel may have been supplied with reliable information by defendant or others indicating that such testing would do more harm than good to the defendant's case. If counsel had such information, he might have made a reasonable, strategic decision not to conduct the tests. Counsel might wisely have made an informed decision to argue that defendant's poverty prohibited obtaining the tests and that the state had the burden of proof. Under such circumstances, counsel's conduct would be the result of a sound, strategic decision. The state has no burden to persuade the fact finder that counsel's investigation and representation was reasonable. Defendant has the burden of establishing that counsel's decision *217 not to further investigate was unreasonable. Chambers v. State, 745 S.W.2d 718, 721 (Mo.App.1987). This Court should not take on the mantle of fact finder. Especially noteworthy is the unexplained failure to call defense counsel as a witness at the Rule 27.26 hearing. He is obviously in the best position to explain his motives for not requesting the tests. I will not assume the trial court believed the defendant's testimony regarding what he asked his lawyer to do. I am also unwilling to assume the trial court believed counsel's arguments at trial were the result of a mistaken notion that test procedures were unavailable to defendant. In this proceeding, the defendant has the burden of establishing all issues by a preponderance of the evidence. Rule 27.26(f). The case should be remanded to the trial court for further hearing and a finding as to whether the defendant requested counsel to obtain the tests and whether counsel's decision not to obtain the tests was based upon a mistake. There may be evidence that is more persuasive than defendant's self-serving testimony. Both defendant and the state should be given the opportunity to submit additional evidence on the questions if such evidence is available. For these reasons, I would reverse and remand for additional hearing, findings of fact, conclusions of law, and entry of judgment consistent therewith. NOTES [1] Defense counsel was not called to testify at the evidentiary hearing on the 27.26 motion.

Thomas v Mintz (2020 NY Slip Op 02367) Thomas v Mintz 2020 NY Slip Op 02367 Decided on April 23, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 23, 2020 Acosta, P.J., Richter, Manzanet-Daniels, Gische, Kapnick, JJ. 11405 103397/11 [*1]Deborah Thomas, Plaintiff-Appellant, vJonathan Mintz, etc., et al., Defendants-Respondents. Stewart Lee Karlin Law Group P.C., New York (Daniel Edward Dugan of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents. Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered August 2, 2018, which granted defendant's motion to dismiss the complaint alleging discrimination, retaliation, and hostile work environment under the New York State Human Rights Law (HRL) and the New York City HRL, unanimously modified, on the law, to deny the motion as to the retaliation claim, and otherwise affirmed, without costs. Under the lenient notice pleading standard afforded to employment discrimination cases, the complaint states a cause of action for retaliation (see Petit v Department of Educ. of the City of N.Y., 177 AD3d 402, 403 [1st Dept 2019], citing Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009]). It alleges that plaintiff filed a discrimination complaint in December 2010, that defendant Jonathan Mintz was notified of the complaint in November 2011, and that six months later plaintiff was charged with departmental misconduct that allegedly had occurred more than a year earlier. The complaint fails to state causes of action for discrimination and a hostile work environment, because it does not allege that defendants' actions occurred under circumstances that give rise to an inference of discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305, 310 [2004]; Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569 [1st Dept 2014], lv denied 26 NY3d 903 [2015]). It does not allege facts that would establish that similarly situated persons who were male or were not of African American descent were treated more favorably than plaintiff was (see Askin v Department of Educ. of City of N.Y., 110 AD3d 621 [1st Dept 2013]). Instead, the complaint merely asserts the legal conclusion that defendants' adverse employment actions and plaintiff's termination were due to race and gender (see Askin, 110 AD3d at 622). The hostile work environment cause of action fails for the additional reason that the handful of potentially insensitive comments made by her superior over the course of a few years do not rise to a level that is actionable under either the State or the City HRL (see [*2]Forrest, 3 NY3d at 311; Williams v New York City Hous. Auth., 61 AD3d 62, 79-80 [1st Dept 2009], lv denied 13 NY3d 702 [2009]). We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 23, 2020 CLERK

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-857V Filed: November 23, 2016 * * * * * * * * * * * * * * * The Estate of JUANITA WHITE * Decedent by and through JOYCELYN * UNPUBLISHED FORD, as Personal Representative * * Special Master Hamilton-Fieldman * Petitioners, * v. * Attorneys’ Fees and Costs; * Reasonable Amount Requested SECRETARY OF HEALTH * to which Respondent Does Not AND HUMAN SERVICES, * Object. * Respondent. * * * * * * * * * * * * * * * * Isaiah R. Kalinowski, Maglio, Christopher and Toale, PA, Washington, D.C., for Petitioner. Ryan D. Pyles, United States Department of Justice, Washington, D.C., for Respondent. DECISION 1 On August 11, 2015, Jocelyn Ford (“Petitioner”), as the personal representative of the estate of Juanita A. White, filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act”). Petition (“Pet.”), ECF No. 1. Petitioner alleged that the administration of the influenza (“flu”) vaccine on October 8, 2013, caused Ms. White to develop Guillain-Barré Syndrome (“GBS”). Pet. at 1-4, filed Aug. 11, 2015. On April 11, 2016, Petitioner filed a notice to withdraw her petition pursuant to 42 U.S.C. § 300aa-21(b). Withdrawal Notice, ECF No. 21. In response, on April 12, the undersigned issued an Order Concluding Proceedings pursuant to § 300aa-21(b) Withdrawal. ECF No. 24. 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44 U.S.C. § 3501 (2012). Each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).  On October 5, 2016, Petitioner filed an application for attorneys’ fees and costs. Petitioner requested compensation in the amount of $19,337 for attorneys’ fees and costs, of which none were personally incurred by Petitioner. Petitioner’s Application at 1-2, filed Oct. 5, 2016. “Respondent does not object to the payment of Petitioner’s attorneys’ fees and reimbursement of Petitioner’s case costs in the amount specified above.” Id. at 2. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner’s request for fees and costs is reasonable. Accordingly, the undersigned hereby awards the amount of $19,337, in the form of a check made payable jointly to Petitioner and Petitioner’s counsel, Isaiah R. Kalinowski, of Maglio, Christopher and Toale, P.A. 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. 2 IT IS SO ORDERED. /s/Lisa D. Hamilton-Fieldman Lisa D. Hamilton-Fieldman Special Master 2 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 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1901 JUSTINE BELLAMY, Plaintiff – Appellant, v. HORRY COUNTY SCHOOL DISTRICT, Defendant - Appellee, and JOE DOWLING, in his individual and official capacity as director of career and technology for Horry County School District; RONNIE BURGESS, in his individual and official capacity as principal of St. James High School, Defendants. Appeal from the United States District Court for the District of South Carolina, at Florence. Thomas E. Rogers, III, Magistrate Judge. (4:07-cv-02727-TER) Submitted: November 17, 2009 Decided: November 19, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Justine Bellamy, Appellant Pro Se. Thomas Kennedy Barlow, Kenneth Lendren Childs; Jasmine Stanetta Rogers, CHILDS & HALLIGAN, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Justine Bellamy appeals from the orders entered by the district court and the magistrate judge in favor of Defendants in her action alleging employment discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and by the magistrate judge. Bellamy v. Horry Co. Sch. Dist., No. 4:07-cv-02727-TER (D.S.C. July 13, 2009 & July 28, 2009). We deny Bellamy’s motion for transcripts at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

991 So.2d 866 (2008) McPHAIL v. STATE. No. 2D08-1906. District Court of Appeal of Florida, Second District. September 17, 2008. Decision without published opinion. Affirmed.

604 F.2d 232 79-2 USTC P 9564 UNITED STATES of Americav.EDELSON, Joseph, Appellant. No. 79-1209. United States Court of Appeals,Third Circuit. Submitted Under Third Circuit Rule 12(6) July 10, 1979.Decided Aug. 22, 1979. Michael J. Mella, Fair Lawn, N. J., for appellant. Robert J. Del Tufo, U. S. Atty., Kenneth N. Laptook, Asst. U. S. Atty., Maryanne T. Desmond, Asst. U. S. Atty., Chief Appeals, Div., Newark, N. J., for appellee. Before ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT PER CURIAM. 1 In recent years an increasing, if still small, number of our citizens have placed themselves in open defiance of the Internal Revenue Code, justifying their positions on the basis of a variety of legal theories that have, for the most part, been rejected by the courts. The present appeal may be fairly classified as such a case and, just as our sister courts of appeals that have considered similar arguments have done, we reject appellant's position. 2 Joseph Edelson was convicted by a jury on three counts of willful failure to file tax returns in violation of 26 U.S.C. § 7203. On this appeal Edelson urges that his signed income tax forms containing only identifying data, with the balance of the requested information answered with bald assertions of Fifth Amendment privilege constitute legitimate tax returns. Edelson inserted only his name, address, occupation, and social security number on the forms. He also provided a figure for his total income computed on the basis of his interpretation of "constitutional dollars" by which he meant those dollars backed by silver. All other requested information was refused, with assertions of a Fifth Amendment privilege. Inasmuch as he filed such documents, he argues, he may not be convicted of willful failure to file income tax returns. 3 Further, even if such a use of the Fifth Amendment privilege is found to be invalid, Edelson insists that he was entitled to have the question of his subjective "good faith" exercise of the privilege put to the jury. Edelson claims that a good faith finding in this respect would provide a legal justification for his act, and that the trial judge's charge was inadequate in this regard. 4 We will affirm the judgment of the district court. 5 First, it is now well established that tax forms that do not contain financial information upon which a taxpayer's tax liability can be determined do not constitute returns within the meaning of the Internal Revenue Code. Florsheim Bros. Dry Goods Co. v. United States, 280 U.S. 453, 50 S.Ct. 17, 74 L.Ed. 600 (1930); United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir. 1978); United States v. Daly, 481 F.2d 28 (8th Cir. 1973); 10 Mertens, The Law of Federal Income Taxation, § 55.22 (1964 revision). 6 Second, contrary to Edelson's apparent belief, there is no Fifth Amendment privilege negating one's duty to file a tax return. A tax form requires disclosure of routine information necessary for the computation of tax liability and does not ordinarily compel testimony about facts that might lead to a criminal prosecution. Federal income tax information is sought in a non-accusatorial setting and is not, as a general matter, extracted from a "highly selective group inherently suspect of criminal activities." California v. Byers, 402 U.S. 424, 430, 91 S.Ct. 1535, 1539, 29 L.Ed.2d 9 (1971). That such filings or the information contained therein may later appear in court to the detriment of the declarant does not, Ipso facto, justify an assertion of the Fifth Amendment privilege. As the Supreme Court noted in Byers : 7 "Information revealed by these reports could well be 'a link in the chain' of evidence leading to prosecution and conviction. But under our holdings the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for . . . ." Id., 428, 91 S.Ct. at 1538. 8 Edelson relies on cases recognizing a Fifth Amendment privilege to refuse to answer questions on a tax return. See U. S. v. Garner, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); U. S. v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). In order to claim this privilege, however, the taxpayer must have a real basis for fearing that he would be subject to criminal prosecution if he were to answer the question in response to which he asserted the privilege. Edelson, in contrast, states only in a generalized manner that, absent his use of the Fifth Amendment, he may be prosecuted for tax fraud. 9 We find no justification for Edelson's blanket invocation of the Fifth Amendment privilege. One who uses the Fifth Amendment to protect his refusal to provide the disclosures required in a tax return should confine that use to specific objections to particular questions on the return for which a valid claim of privilege exists. He may not use the Fifth Amendment extravagantly to draw a "conjurer's circle" around the obligation to file a return. United States v. Sullivan, 274 U.S. 259, 264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Of course, the mere fact that the privilege is asserted as to many, most or almost all of the questions on a return, does not deprive the taxpayer of his right to an opportunity to show that the privilege really was properly asserted as to all these questions. But Edelson had the requisite opportunity to submit his claim of privilege to the court for a determination of validity. Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). See Garner, supra, 424 U.S. 659, n.11, 96 S.Ct. 1178, citing Marchetti v. U. S., 390 U.S. 39, 61, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). He did so by means of a Fed.R.Crim.P. 12(b) motion seeking dismissal of the indictment, and the broad assertion of a Fifth Amendment privilege was rejected by the trial judge. This was not error. Even if a case should arise in which very broad assertions of the privilege might be justifiable, one seeking such protection must provide the trial judge with more than mere averments of possible tax-related prosecutions. Edelson does not appear to have done so before the district court, nor has he indicated to this Court any substantial non tax-related reasons that might have justified his actions. A vague possibility of prosecution for tax fraud may not properly be used as an excuse for engaging in a course of conduct that itself amounts to tax fraud. 10 Edelson also challenges the jury instructions on the question of his "good faith" reliance on his Fifth Amendment rights. Even if he is adjudged to have gone beyond any legitimate assertion of the constitutional privilege, he argues, he may not be convicted of willful failure to file tax returns inasmuch as he sincerely believed that his actions were consistent with the law. In fact, the trial judge appears to have put this question to the jury with considerable precision: 11 In the context of § 7203, the element of willfulness is established by proving that the defendant had knowledge of his legal obligation to file that tax return but, nevertheless, he voluntarily, deliberately and intentionally chose not to do what the law required. 12 The defendant maintains because of his beliefs, his actions were justified. 13 It is not a defense that the failure to furnish tax information required by the internal revenue law was done for the purpose of protesting government policies, even if such protest is with good motive. 14 I further instruct you, the term "willful" in the context of this case is the intentional violation of a known legal duty. 15 The defendant's conduct is not willful if he acted through negligence, inadvertence or mistake or due to his good faith misunderstanding of the requirement of the law. 16 I further instruct you that the defendant's statement of defense in this case is that . . . he did not willfully and knowingly fail to file said returns in violation of a known legal duty, but rather, failed to submit said returns in the good faith belief that he had the legal right to submit a Fifth Amendment return . . . 17 If you find the defendant believed in good faith that he was acting within the law, that the defendant's conduct was not marked by careless disregard as to whether he had the right to so act, you must find the defendant not guilty for lack of willfulness.1 18 We can find no error in this charge. The definition of "willfulness" set forth therein is in accord with the Supreme Court's pronouncement in United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976). Insofar as the defendant may be said to rely on a "good motive" defense,2 the district court's instruction is in accord with this Court's opinion in United States v. Malinowski, 472 F.2d 850, 855 (3d Cir.), Cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973).3 As for his "good faith" argument, the trial court correctly reasoned that if Edelson truly believed he was under no legal obligation to provide the Internal Revenue Service with anything more than the returns he filed, he could not be guilty of Willful failure to file that is, he could not have intentionally violated a known legal duty. See United States v. Pohlman,522 F.2d 974, 976 (8th Cir. 1976). As we read the instruction, this was the precise question that was put to the jury, and it was resolved against the defendant. 19 Accordingly, the judgment of the district court will be affirmed. 1 A-32-A-38 2 "The only good faith defense to a charge of failure to file a required return is one where the defendant alleges 'a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained . . .' United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381 (1933)". United States v. Matosky, 421 F.2d 410, 413 (7th Cir. 1970), Cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 Defendant's motives in failing to file are immaterial so long as the government proves beyond a reasonable doubt that defendant was required to file a return; that he knew this obligation; and that he willfully or purposely failed to file such return. Thus defendant's arguments of good motive, i. e. protest against taxation or government use of paper money not backed by silver, or good faith but mistaken belief in the law of Fifth Amendment are material and relevant only to the statutory element of "willfulness", the specific intent which the government must establish. United States v. Johnson, supra. United States v. Silkman, 543 F.2d 1218 (8th Cir. 1976), Cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Jordan, 508 F.2d 750 (7th Cir. 1975); United States v. Ming, 466 F.2d 1000 (7th Cir. 1972), reh. denied, Cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176; United States v. Hawk, 497 F.2d 365, 368 (9th Cir. 1974), Cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65; United States v. Pohlman, 522 F.2d 974, 976 (8th Cir. 1975) (en banc). 3 In Malinowski, defendant was a college professor who had provided false information on his tax return because his taxes were used, in part, to fund the war in Vietnam, which he opposed. Malinowski reasoned that his good faith exercise of what he considered to be a First Amendment right of symbolic protest immunized him for prosecution because of his good purpose. Nonetheless, the trial court's refusal to give such a "good purpose" instruction was affirmed by this Court

391 F.Supp. 1143 (1975) Joseph ANUSZEWSKI and Ronald Gutowski to their own use and to the use of Liberty Mutual Insurance Company v. DYNAMIC MARINERS CORP. PANAMA. Civ. No. 73-1220-K. United States District Court, D. Maryland. March 13, 1975. Bernard J. Sevel, Baltimore, Md., for plaintiff. Eugene A. Edgett, Jr., Baltimore, Md., for use plaintiff. Randall C. Coleman, Baltimore, Md., for defendant. *1144 FRANK A. KAUFMAN, District Judge. In this case which has been tried non-jury before this Court two plaintiffs seek damages resulting from injuries sustained by each of them while working as longshoremen aboard a vessel docked in the Baltimore, Maryland area. Their claims raise questions of the meaning and application of one of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act. That amendment is set forth in 33 U.S. C. § 905(b).[1] FINDINGS OF FACT AND HOLDINGS The accident in question occurred in the lower hold of the No. 1 hatch. The vessel arrived in Baltimore from New York after there discharging all cargo from the upper tween deck of No. 1 hatch. In the lower tween deck and the lower hold of No. 1 hatch was Baltimore cargo. A gang carrier and 23 men employed by the Nacirema Operating Co., Inc., a stevedoring company which had no connection with the prior discharge of cargo in the New York area from the upper tween deck of No. 1 hatch or from any other part of the vessel, came aboard the ship on February 17, 1973 at 8:00 a. m. and commenced work, including the removal of the hatch covers between the upper tween and the lower tween deck of No. 1 hatch. Later in the day of February 17, 1973, after the lower tween deck had been unloaded, the hatch cover between the lower tween deck and the lower hold of No. 1 hatch was removed by the longshoremen. The hatch cover over the lower tween deck, and the hatch cover between the lower tween deck and the lower hold and covering the latter, were each supported by four beams. The three aftermost beams below each such cover were removed by the gang after each such hatch cover was lifted during their work on February 17th, but the forward of the four beams below each such cover was left in place. On February 17, 1973, the gang members discharged all of the cargo from the lower tween deck and some of the cargo from the lower hold. On February 18, 1973, they completed discharge from the lower hold. The plaintiffs were injured on February 18, 1973 during the unloading of the lower hold when the forward of the four beams, above the lower hold and which, when it was in place, supported the hatch cover over the lower hold, was dislodged by a cargo hook. That hook, during the discharge operation on February 18th, became caught under the beam, lifted the beam out of its socket and dropped it into the lower hold where it fell upon plaintiffs who were at work there. When the gang removed the hatch covers over the lower tween deck and later over the lower hold, they found that all of the pins which held those eight beams in place were missing and that none of the eight beams was locked in place or otherwise secured by rope or other means. The lack of such locking or fastening of the beams over the lower tween deck was noted by and discussed among members of the gang when they removed the hatch cover over the lower tween deck about the time they commenced their work on February 17th. The foreman of the gang told its members to work and that the situation would be corrected. The men continued to work on February 17th and 18th but the situation was not corrected. The weather on the two days was cold and there was not the maneuverability that would have existed on other than a cold day. However, the boom to which the hoist was attached could have been respotted at one or more times on February 17th and 18th to make it more probable that first one, and then two, of the eight beams would not be dislodged. While the evidence does not establish that respotting of the *1145 boom would have necessarily avoided the accident, respotting might have decreased the chances of the accident occurring. Further, in any event the evidence does establish that there was room to place on the weather deck the two forward beams, which were under the hatches covering the lower tween deck and the lower hold, if those two beams had been removed as were the other two respective groups of three beams each. Further, the evidence additionally establishes that there was also available at a Nacirema supply office, within a half block of the spot at which the vessel was docked, rope and probably also nuts and bolts, which could have been used to fasten the two forward beams in place in lieu of their removal or in lieu of their being left in place without fastening. In sum, there was negligence on the part of Nacirema in not achieving rather easily a condition of safety. That failure would seemingly have been obviated (a) if Nacirema had provided, as it did not, a safety man aboard ship on February 17th and 18th and if that safety man had performed his job, and (b) even without the safety man, if the gang leader had obtained rope or some other items from the Nacirema supply office and secured the beams, or had required the fastening or the removal of even just the forward beam covering the lower hold of No. 1 hatch. A crewman of the vessel who was present during the discharge described above for the purpose of preventing pilferage, as well as one or more other members of the ship's crew, was in a position to see that the beams were unfastened. However, there is no evidence that any crewman was at any time asked by anyone employed by Nacirema to correct the situation. There were on hand in a nearby chain locker of the ship items which could have been used to fasten the beams left in place, but no one requested that such items be utilized. The appropriate practice while any cargo was being handled in a portion of a hatch below any beam of the type of the eight beams in question was to have such beam secured through the use of the pins for which each such beam was fitted, or to have such beam otherwise secured. The failure to secure the two beams during the unloading operation on February 17, 1973 and February 18, 1973 was in violation of section 1504.43(e) of the Safety and Health Regulations for Longshoring, 29 C.F.R. § 1918.43(e).[2] While the primary duty under that regulation to make certain that the beams left in place during the unloading operation was upon the stevedore,[3] the failure of the vessel to lock or fasten the beams constituted negligence on the part of the shipowner since the shipowner, at least in terms of knowledge of the crew member stationed to prevent pilferage, and in terms of those responsible for handling the ship from the time of its departure from New York, knew or should have known of the violation of the safety regulation. Provenza v. American Export Lines, Inc., 324 F.2d 660, 665 (4th Cir. 1963). But that negligence on the part of the ship is not actionable negligence in a post-1972 setting, for reasons which are discussed infra. The longshoremen removed all of the unlocked beams except two. The presence of the forward beam left in place above the lower tween deck has not been proven by plaintiffs to have contributed to the accident, that is, there is no evidence that if the forward beam above the lower tween deck had not been in place, the boom would have been operated so as to have avoided the cargo hook *1146 having become attached to the forward beam above the lower hold. By way of contrast, of course, it is clear that the accident would not have occurred except for the presence of the forward beam above the lower hold. But that presence could have been eliminated by removal or fastening of that beam by the stevedore on February 17th or before the accident on February 18th. Instead, the stevedore company negligently left that beam in place and unsecured. The issue in this case is whether the ship's continuing failure up to and including the moment of the accident to take steps to correct the condition which existed after one or both of the forward beams was left in place and unsecured renders the ship liable to plaintiffs. Before the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, that condition itself would seemingly have constituted unseaworthiness. But unseaworthiness has been eliminated as a remedy for longshoremen by the addition in 1972 of what is presently codified as 33 U.S.C. § 905(b) of that Act. That subsection provides as follows: (b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. The applicable section of the Report of the House Committee on Education and Labor, No. 92-1441, 92d Cong., 2d Sess., prepared in connection with the 1972 amendments is set forth in 3 U.S.Code Cong. & Admin.News, pp. 4701-05 (1972), and is appended to this opinion.[4] It speaks clearly for itself, and establishes that land-based principles of law apply to longshoremen's claims for damages against third parties and that a ship has no different liability to longshoremen employed to work aboard it by a stevedoring company than the owner of land-based property owes to the employees of an independent contractor who perform work on that property. And the post-1972 amendment cases in the federal courts decided to date and involving longshoremen's claims against ships have adopted that approach.[5] Accordingly, a look at the established principles of negligence tort law is required. In that regard the House Committee Report, 3 U.S.Code *1147 Cong. & Admin.News, supra, at p. 4705, provides that in cases such as this one the federal courts are to formulate uniform federal law and not to apply differing state law principles on the basis of location of the port in which an accident occurred. Restatement (Second) of Torts § 343 (1965) provides: § 343. Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Comment a thereto provides that section 343 "should be read together with" section 343A which "limits the liability" stated in section 343. Section 343A(1)[6] states: § 343A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Employees of independent contractors doing work on property of the owner are invitees of the latter. W. Prosser, Handbook of the Law of Torts § 61, at 385-86 (4th ed. 1970). But the owner is not liable * * * for harm resulting from conditions from which no unreasonable risk was to be anticipated, or those which the occupier did not know and could not have discovered with reasonable care. * * * Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough. It is generally agreed that the obligation as to the condition of the premises is of such importance that it cannot *1148 be delegated, and that the occupier will be liable for the negligence of an independent contractor to whom he entrusts maintenance and repair. In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence of contractors and concessionaires as to activities on the land, as well as that of other persons who have entered it, or even from intentional attacks on the part of such third persons. But he is required to take action only when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the invitee. Again, in the usual case, a warning will be a sufficient precaution, unless it is apparent that, either because of lack of time or by reason of the character of the conduct to be expected on the part of the third person, it will not be effective to give protection. [Id. at 393-95; footnotes omitted.] It is possible to argue that the plaintiffs and their fellow longshoremen forgot on February 18th the existence of the unfastened beam above the lower hold. But the presence of the unfastened beam was a most evident and continuing condition which may have been largely ignored by the longshoremen but hardly entirely forgotten particularly since the boom operator and those aiding him by comments had to lower the cargo hook down and up past the offending beam. Thus, this case presents a fact situation in which the danger was open, obvious, apparent and known to plaintiffs. Accordingly, Restatement § 343(b), supra, would appear to provide liability only if the person contracting with the independent contractor (i. e., in the context of this case, the shipowner contracting with the stevedore) "should except that [his invitees] * * * will not discover or realize the danger, or will fail to protect themselves against it * * *". In this case the plaintiffs and the members of their gang did discover and realize the danger. Further, the shipowner could reasonably have expected that the longshoremen would have discovered the unsecured beams and would have protected themselves by removing all of those beams or by fastening them. This is not a case like that set forth in illustration 5, Restatement § 343A, supra, in which a person employed in an office located in an office building slipped "over a slippery waxed stairway, whose condition is visible and quote obvious" and upon which she walked because "[h]er only alternative to taking the risk was to forgo her employment." In that situation the Restatement would permit that injured person to recover in a negligence action against the office building owner. By way of contrast, the two plaintiffs in this case were in no such similar position. Nor would they seem within the approach suggested in 2 F. Harper and F. James, The Law of Torts § 27.13 (1956) — an approach seemingly somewhat more advantageous to a plaintiff than the approaches of either the Restatement or of Professor Prosser — to have been subjected to a "condition unreasonably dangerous" (§ 27.13 at 1490; emphasis in original). Thus, regardless of whether the duty upon a person who "employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken," Restatement, supra at § 413, is or is not a type of duty owed to employees of independent contractors who work on the premises, the defendant shipowner is not liable in this case. In passing, however, it is noted that there is a conflict among the jurisdictions as to whether the "peculiar risk" doctrine does or does not apply to *1149 such employees.[7] Even if that doctrine does so apply, there is authority that it only applies if it is the work, not the negligent condition, which poses the "peculiar risk".[8] Herein if there was a "peculiar risk", it was posed not by the nature of the unloading duties, i. e., not by the work but by the beam, i. e., the offending condition. But herein it is not necessary to reach the issues involved in the applicability vel non of the "peculiar risk" doctrine because in the context of the facts in this case settled principles of land-based tort law do not impose liability in favor of the employees of an independent contractor for the open and obvious negligence of the person in control of the premises upon which those employees are at work. Nevertheless, plaintiffs herein contend, inter alia, that the following paragraphs in the House Committee report (3 U.S.Code Cong. & Admin.News, supra at p. 4704) entitle them to recover herein: Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. So, for example, where a longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances. The vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore. It is true that the words following "2" in the next to the last sentence of that quotation, standing by themselves and preceded by the word "or", not "and", may well at first blush appear to entitle plaintiff to recovery herein. The ship had the opportunity after the lower hold hatch cover was removed on February 17, 1973 to discover and to rectify the condition of the beam which was a proximate cause of the accident on February 18th. But it would not seem that the ship or its officers or crew acting in the exercise of reasonable care should have believed it was incumbent upon the ship under the circumstances to remove or fasten a beam (a) which the longshoremen could have removed at any time as they did its three companion (and six out of a total of eight) beams, or (b) which the longshoremen could have secured or fastened. Moreover, the House Report calls specifically for longshoremen to be placed vis a vis shipowners in the same position as their land-based counterparts are placed toward land-based property owners (id. at pp. 4702, 4703, 4704, 4705). And the paragraph (at p. 4704) directly after the above *1150 quoted two paragraphs includes this observation: Under this standard, as adopted by the Committee, there will, of course, be disputes as to whether the vessel was negligent in a particular case. Such issues can only be resolved through the application of accepted principles of tort law and the ordinary process of litigation — just as they are in cases involving alleged negligence by land-based third parties. The Committee intends that on the one hand an employee injured on board a vessel shall be in no less favorable position vis a vis his rights against the vessel as a third party than is an employee who is injured on land, and on the other hand, that the vessel shall not be liable as a third party unless it is proven to have acted or have failed to act in a negligent manner such as would render a land-based third party in non-maritime pursuits liable under similar circumstances. If the plaintiffs herein can recover, then the door will be wide open for longshoremen to recover for shipowners' negligence on a basis that is not available against land or building owners to employees of independent contractors who do work on such land and/or in such buildings. While that result would not offend the elimination by the Congress in 1972 of the principle of unseaworthiness as a remedy against the ship by a longshoreman, it would negate the repeated insistence in the House Report concerning the applicability of principles of land-based tort law. In that context, the possible or literal word-for-word application of one illustration in the House Report may not prevail. Accordingly, judgment is today being entered herein for defendant. The Court requested that the appendix, which is available in the cited volume, not be printed. NOTES [1] That subsection, added to the Act by the 1972 amendments, is set forth in full infra in the body of this opinion. [2] That regulation provides as follows: (e) Any beam or pontoon left in place adjacent to a section through which cargo, dunnage, equipment, or other material is being worked, shall be lashed, locked, or otherwise secured so that it cannot be displaced by accident. All portable, manually handled hatch covers, including those bound together to make a larger cover, shall be removed from any working section. [3] See 33 U.S.C. §§ 902(3) and (4), 941(a); and 29 C.F.R. §§ 1918.2 and .3. [4] The Report of the Senate Committee on Labor and Public Welfare apparently is identical to the House Report. S.Rep.No. 92-1125, 92d Cong., 2d Sess. (1972). [5] Ramirez, et al. v. Toko Kaiun K.K., 385 F.Supp. 644 (N.D.Cal.1974); Shellman v. United States Lines Operators, Inc., Civil No. CV 73-1902-R (C.D.Cal. filed Nov. 21, 1974); Citizen v. M/V TRITON, 384 F. Supp. 198 (E.D.Tex.1974); Slaughter v. S.S. RONDE, 390 F.Supp. 637 (S.D.Ga. filed Sept. 11, 1974); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex.1974); Lucas v. "Brinknes" Schiffahrts Ges., 379 F. Supp. 759 (E.D.Pa.1974); Fedison v. The Vessel WISLICA, 382 F.Supp. 4 (E.D.La. 1974); Hite v. Maritime Overseas Corp., 375 F.Supp. 233 (E.D.Tex.1974). [6] Subsection (2) of section 343A deals with public land or public utilities and has no applicability in this case. [7] Compare, e. g., Parsons v. Amerada Hess Corp., 422 F.2d 610 (10th Cir. 1970), and Welker v. Kennecott Copper Co., 1 Ariz. App. 395, 403 P.2d 330 (1965), stating that employees of independent contractors are not "others" as that term is used in the Restatement, supra, §§ 416-29, with Person v. Cauldwell-Wingate Co., 176 F.2d 237, 240 (2d Cir.) (L. Hand, C. J.), cert. denied, 338 U.S. 886, 70 S.Ct. 189, 94 L.Ed. 544 (1949), and Woolen v. Aerojet General Corp., 57 Cal. 2d 407, 20 Cal.Rptr. 12, 369 P.2d 708 (1962), stating that employees of independent contractors are "others" as that term is used in Restatement, supra, §§ 416-29. [8] See, e. g., Cutlip v. Luckey Stores, Inc. et al., 22 Md.App. 673, 684-86, 325 A.2d 432 (1974).

988 F.2d 1059 125 Lab.Cas. P 35,829, 25 Fed.R.Serv.3d 99,1 Wage & Hour Cas.2d (BNA) 531 OTR DRIVERS AT TOPEKA FRITO-LAY, INC.'S DISTRIBUTION CENTERon behalf of themselves and all other employees ofFrito-Lay, Inc. similarly situated,Plaintiffs-Appellants,v.FRITO-LAY, INC., a Delaware Corporation licensed to dobusiness within the State of Kansas, Defendant-Appellee. No. 91-3320. United States Court of Appeals,Tenth Circuit. March 22, 1993. Eric Kjorlie, Topeka, KS, for plaintiffs-appellants. Gloria G. Flentje of Foulston & Siefkin, Wichita, KS, for defendant-appellee. Before BRORBY and EBEL, Circuit Judges, and McWILLIAMS, Senior Circuit Judge. McWILLIAMS, Senior Circuit Judge. 1 On February 11, 1991, an action was filed in the United States District Court for the District of Kansas against Frito-Lay, Inc., a Delaware corporation licensed to do business within the State of Kansas. The plaintiffs identified in the title of the action were as follows: 2 OTR Drivers at Topeka Frito-Lay, Inc.'s Distribution Center on behalf of themselves and all other employees of Frito-Lay, Inc. similarly situated. 3 The action was based on the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq., and sought injunctive relief and the recovery of unpaid minimum wages, overtime compensation, attorney's fees, interest and costs. Attached to the complaint was a list of the names, and corresponding signatures, of some 77 drivers employed in Frito-Lay's Topeka office, wherein each allegedly consented to an action against Frito-Lay. The caption above the 77 names, and signatures, was as follows: 4 The Employees Listed Below Hereby Give Their Consent to Become Party Plaintiffs in a Civil Action against Frito-Lay, Inc. Pertaining to the "Available Drivers List" Policy.1 5 Frito-Lay moved to dismiss the complaint, contending, inter alia, that subject matter jurisdiction was lacking because there was no proper plaintiff before the court. In support of its motion, Frito-Lay relied on Fed.R.Civ.P. 10(a)2 and 29 U.S.C. § 216(b).3 6 In granting Frito-Lay's motion to dismiss the complaint, the district court noted that Rule 10(a) required that the title of the action include the "names of all parties" and that the only party named in the title was OTR Drivers at Topeka Frito-Lay, Inc.'s Distribution Center, hereinafter referred to as OTR Drivers.4 In this regard, the district court found that OTR Drivers was simply a descriptive appellation given the over the road drivers working for Frito-Lay at the Topeka distribution center, and that it was not even an informal entity, let alone a more formal organization, such as a labor union. 7 The district court concluded that under 29 U.S.C. § 216(b) OTR Drivers had no standing or capacity to sue as a representative of Frito-Lay employees. In granting Frito-Lay's motion to dismiss, the district court held that under 29 U.S.C. § 216(b) the FLSA claim could only be maintained by "one or more employees" and that the instant case was not brought by "one or more employees," since no employees were named in the title of the action. 8 In dismissing the action, the district court also concluded that even had OTR Drivers been a union or association rather than merely a descriptive term, under 29 U.S.C. § 216(b), OTR Drivers had neither capacity nor standing to institute an FLSA claim as a representative of Frito-Lay employees. Further, the district court held that the wording of the consent attached to the complaint was ambiguous and therefore ineffective to bring employees into the suit as party plaintiffs, since the consent could have been interpreted to refer to litigation attacking Frito-Lay's use of the "Available Drivers List" policy rather than litigation under FLSA to recover damages for the company's policy. In dismissing the action, the district court opined that "[b]ecause jurisdiction was lacking from the commencement of this suit, the defect may not be cured by amendment of the complaint," citing Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889, 893 (2d Cir.1983), cert. denied, 464 U.S. 845, 104 S.Ct. 148, 78 L.Ed.2d 138 (1983).5 9 The dismissal of the complaint, entered on July 31, 1991, was "without prejudice." Three days later, 22 of the 77 employees listed in the "consent" attached to the original complaint refiled a complaint virtually identical to the original complaint. In this second complaint, the names of the 22 employees were included in the title of the action along with "OTR Drivers." The attachment to the second complaint indicated that the persons signing consented "to become party plaintiff in collective action under 16(b) of FLSA [29 U.S.C. § 216(b) ]." 10 On August 9, 1991, OTR Drivers filed a motion to alter or amend the district court's order of July 31, 1991, to permit OTR Drivers to file an amended complaint specifically naming in the caption the employees who had signed the consent. The motion was denied on September 6, 1991, and this appeal follows. 11 A notice of appeal was filed on October 4, 1991. The title of the notice described the plaintiffs as follows: 12 OTR Drivers at Topeka Frito-Lay, Inc.'s Distribution Center on behalf of themselves and all other employees of Frito-Lay, Inc. similarly situated. 13 The body of the notice of appeal read as follows: 14 Notice is hereby given, that the plaintiffs above named, and each of them, who are entitled to appeal from the final Judgment entered herein by the Court on the 6th Day of September 1991, denying Plaintiffs' Motion to Alter or Amend the Judgment entered July 31, 1991, dismissing the case without prejudice, hereby appeal from such Judgments, and each of them, to the United States Court of Appeals for the Tenth Circuit. 15 The first issue to be resolved is which party or parties, if any, are properly before this court. In this regard, we are uncertain whether counsel for the "appellants" is contending that the 77 employees listed in the attachment to the original complaint as consenting to the bringing of an action pertaining to Frito-Lay's "Available Drivers List" policy are proper parties to this appeal. Be that as it may, Fed.R.App.P. 3(c) provides that "the notice of appeal shall specify the party or parties taking the appeal." Under the rationale of Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), we conclude that none of the 77 employees is properly before this court. They are not identified as appellants in the notice of appeal. The phrase "on behalf of themselves and all other employees of Frito-Lay, Inc., similarly situated" is ineffective to bring the 77 employees before this court.6 That phrase is like the phrase "et al." in Torres, which the Supreme Court held did not meet the specificity requirement of Fed.R.App.P. 3(c).7 16 The only party specified in the notice of appeal is "OTR Drivers at Topeka Frito-Lay, Inc.'s Distribution Center." In Walter v. International Association of Machinists Pension Fund, 949 F.2d 310 (10th Cir.1991), we held that the "et al." catch-all phrase was ineffective to perfect the appeal of 17 "would be" appellants, but then we considered, on appeal, the merits of the controversy as it related to the one party who was specified in the notice of appeal. In line therewith, we deem OTR Drivers, whatever it may be, to be the only party properly before this court. 17 As indicated, the district court dismissed the action on the ground, inter alia, that under 29 U.S.C. § 216(b) OTR Drivers had no standing to institute an action on behalf of itself, or on behalf of over the road drivers of Frito-Lay's office in Topeka, Kansas, that under 29 U.S.C. § 216(b) such action could only be maintained by "one or more employees," and that no employee of Frito-Lay had been identified by name in the title of the action. As we understand it, OTR Drivers does not contend on appeal that it had standing under 29 U.S.C. § 216(b) to institute the present action. Thus it concedes, in effect, that it did not have standing to institute the present action. Having conceded that it had no standing to maintain an action under 29 U.S.C. § 216(b) in the district court, OTR Drivers has no standing to pursue on appeal matters unrelated to the standing issue.8 Hence, we do not reach the two issues OTR Drivers sought to raise in this court, namely, the adequacy of the consents and whether OTR Drivers, after judgment, should have been allowed to amend its complaint. 18 Appeal dismissed. 1 According to the complaint, the Available Drivers List was a policy, implemented at Frito-Lay's Topeka Distribution Center, which required the drivers to remain on call to drive during their off hours. The drivers allegedly were not paid for their on-call time 2 Rule 10(a) reads, in part, as follows: In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties (emphasis added). 3 29 U.S.C. § 216(b) reads, in part, as follows: An action to recover the liability prescribed [under § 216(b) ] may be maintained ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought (emphasis added). 4 "OTR" stands for Over the Road 5 In Pressroom, the Second Circuit held that if jurisdiction be lacking at the commencement of an action, it cannot be aided by the intervention of a party with sufficient standing, and in connection therewith concluded that "we have never allowed [28 U.S.C. § 1653] to create jurisdiction retroactively where none existed." Id. at 893 6 The complaint filed in the district court was not a class action 7 In Walter v. International Association of Machinists Pension Fund, 949 F.2d 310 (10th Cir.1991), we recognized that a defective notice of appeal could be cured by a docketing statement filed within the time for filing a notice of appeal which indicated which parties were appealing. In the instant case, the docketing statement was not filed within the time for filing a notice of appeal. Further, the docketing statement did not identify any of the 77 employees as appellants. In answer to the question on the docketing statement "Party or Parties filing Appeal" was typed simply "Plaintiffs." 8 In Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289 (10th Cir.1980), we dismissed the appeal of an unincorporated association on the grounds that the unincorporated association had failed to present adequate proof to support the standing allegations in its complaint, even though the question of standing had not been raised in the district court