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Filed 7/1/13 P. v. Pena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX THE PEOPLE, 2d Crim. No. B242570 (Super. Ct. No. 2011022870) Plaintiff and Respondent, (Ventura County) v. EMILSON LADIMIRO PENA, Defendant and Appellant. Emilson Ladimiro Pena appeals a judgment following conviction of receiving stolen property, possession of false vehicle registration documents, conspiracy to commit grand theft, attempted grand theft (two counts), and giving false information to a police officer, with a finding that he was on bail in an unrelated prosecution at the time he committed the present crimes ("out-on-bail enhancement"). (Pen. Code, §§ 496d, subd. (a), 182, subd. (a)(1), 664, 487, subd. (a), 148.9, subd. (a), former 12022.1, subd. (b)1; Veh. Code, § 4463, subd. (a).) We modify the judgment to strike a "no-contact" order, and to award Pena an additional 185 days of presentence conduct credit, reverse and remand for resentencing regarding the out-on-bail enhancement, but otherwise affirm. 1 All further statutory references are to the Penal Code unless stated otherwise. References to section 12022.1 are to the version in effect prior to repeal effective January 1, 2012.  FACTS AND PROCEDURAL HISTORY In 2011, Ventura County law enforcement agencies formed an auto theft task force to investigate a theft operation involving Toyota Tacoma trucks stolen from Los Angeles County and sold to unsuspecting buyers in Ventura County. The stolen trucks had fraudulent titles and displayed license plates stolen from other Tacoma trucks. The trucks were parked on residential streets, marked for sale with a telephone number, and sold thereafter in cash transactions. On June 20, 2011, Mario Delgado parked his Toyota Tacoma truck in front of his apartment in Los Angeles. Later that evening, he noticed that his truck was not there and reported the theft to police. Two days later, Abel Gutierrez saw a Toyota Tacoma truck parked on a residential street in Ventura, marked with a "For Sale" sign. Gutierrez telephoned the contact number and spoke to Baron Ramirez, who identified himself as "Fernando." Gutierrez informed Ramirez that he was interested in purchasing the truck. Detective George Orozco, a California Highway Patrolman and member of the auto theft task force, also saw the Toyota Tacoma truck marked for sale. The vehicle identification number on the truck matched the vehicle identification number on the truck stolen from Delgado, but the license plate number differed. Orozco telephoned Ramirez, who again identified himself as "Fernando," and the two agreed to meet the following day. In the afternoon of June 24, 2011, Orozco, working as an undercover officer, arrived at the location of the truck to meet Ramirez. Other law enforcement members of the task force were nearby conducting surveillance. Ramirez left a black Crown Victoria automobile driven by Pena and walked toward the Tacoma truck. Pena then drove away. Gutierrez and his wife appeared and parked near the truck. Orozco introduced himself to Ramirez and stated that he intended to purchase the truck. Ramirez 2 stated that he would sell the truck to either Orozco or Gutierrez, but would permit Gutierrez to "test drive" the truck first. During the test drive, Ramirez appeared nervous and dropped the sales price by $1,000. Gutierrez inquired if title to the truck was "clean," and Ramirez confirmed that it was. Gutierrez then offered to purchase the truck for $6,500. When Ramirez and Gutierrez returned from the test drive, they were arrested by members of the auto theft task force. Police officers later released Gutierrez. Ramirez stated to police officers that he was unaware that the truck was stolen and that Pena was paying him to sell the truck. Within an hour, police officers conducted a traffic stop on the Crown Victoria automobile and arrested Pena. Officers found fraudulent registration and title documents concealed in the panels of the automobile and keys to other Toyota Tacoma trucks on the floorboard. During a police interview, Pena denied knowledge of the stolen Tacoma truck and stated that he drove Ramirez to Ventura as a favor. Pena also stated that his name was "Ladimiro Aranda" and that he did not own the Crown Victoria automobile. During booking at the police station, officers discovered Pena's true identity after analyzing his fingerprints. Prior Crimes & Common Plan (Evid. Code, § 1101, subd. (b).) The prosecutor presented evidence that Pena had committed previous crimes involving stolen vehicles. In 2007, Pena attempted to sell a stolen Honda Odyssey automobile to an unsuspecting buyer. Law enforcement officers observed the attempted sale and then arrested Pena. A search revealed that Pena possessed fraudulent vehicle title documents. In 2010, two Toyota Tacoma trucks were stolen in Orange County and driven to San Jose. Pena followed the trucks in a black Crown Victoria automobile. The trucks were parked on a street in San Jose and marked for sale. Pena drove by and a passenger left his automobile to approach a prospective buyer. Police officers observed 3 the attempted transaction and arrested Pena and his passenger. Pena confessed and explained the mechanics of the auto theft operation. At the time of trial on the present offenses, a prosecution against Pena was pending in Orange County. Conviction and Sentencing The jury convicted Pena of receiving stolen property, possession of false vehicle registration documents, conspiracy to commit grand theft, two counts of attempted grand theft, and giving false information to a police officer. (§§ 496d, subd. (a), 182, subd. (a)(1), 664, 487, subd. (a), 148.9, subd. (a); Veh. Code, § 4463, subd. (a).) It acquitted him of the unlawful taking of a vehicle. (Veh. Code, § 10851, subd. (a).) In a separate proceeding, Pena admitted the out-on-bail enhancement regarding the pending prosecution in Orange County. (§ 12022.1, subd. (b).) The trial court sentenced Pena to a prison term of six years four months, including a two-year consecutive term for the out-on-bail enhancement. The court imposed and stayed sentence for count 8, conspiracy to commit grand theft. It imposed a $1,320 restitution fine, a $1,320 parole revocation restitution fine (stayed), and a $200 court security assessment, ordered victim restitution, and awarded Pena 553 days of presentence custody credit (369 days of actual custody and 184 days of conduct credit). (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a).) Pena appeals and contends that 1) there is insufficient evidence to support his conviction of two counts of attempted grand theft, and 2) the trial court erred by not staying sentence for attempted grand theft pursuant to section 654. He also raises several sentencing arguments that the Attorney General concedes. DISCUSSION I. Pena argues that there is insufficient evidence of his specific intent to sell the stolen truck to two prospective buyers. He asserts that the evidence supports conviction of only one count of attempted grand theft. 4  In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We must accept logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise. (Streeter, at p. 241.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.) All persons involved in the commission of a crime, whether acting directly or aiding and abetting, are principals in the crime committed. (§ 31; People v. Delgado (2013) 56 Cal.4th 480, 486.) A person aids and abets the commission of a crime when he: 1) with knowledge of the unlawful purpose of the perpetrator, 2) and with intent or purpose of committing, facilitating, or encouraging commission of the crime, 3) by act or advice, aids, promotes, encourages, or instigates the commission of the crime. (Id. at p. 486.) The dividing line between the actual perpetrator and the aider and abettor often is blurred; when two or more persons commit a crime together, each may act in part as the actual perpetrator and in part as the aider and abettor of the other. (Id. at p. 487.) An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission. (§ 21a; People v. Watkins, supra, 55 Cal.4th 999, 1018, fn. 9.) A defendant may be convicted of criminal attempt when he acts with the specific intent to engage in the conduct or bring about the consequences proscribed by the attempted crime and performs an act that goes beyond 5 mere preparation. (People v. Toledo (2001) 26 Cal.4th 221, 230; People v. Nguyen (2013) 212 Cal.App.4th 1311, 1323.) Sufficient evidence supports Pena's conviction of two counts of attempted grand theft. Pena aided and abetted Ramirez by driving him to Ventura to sell the stolen Tacoma truck. Pena, who had been involved in a similar theft operation in Orange County, had fraudulent documents in his automobile when arrested. Ramirez, for his part, spoke to Gutierrez and Orozco separately, discussed price and arranged to meet to test drive the truck. Each buyer appeared at the meeting place prepared to purchase the truck. The sale to Gutierrez was prevented by police officers, and the sale to Orozco was prevented by Gutierrez's offer to purchase. Thus the jury could conclude that Ramirez had the specific intent to sell the truck to either buyer and took direct but ineffectual steps to do so as to each. Although Pena and Ramirez could complete only one act of grand theft concerning the truck, they could commit multiple acts of attempted grand theft regarding the same property. II. Pena contends that the trial court erred by not staying sentence on the two counts of attempted grand theft (counts 9 and 10) because his criminal intent and objective regarding those offenses was the same as his intent and objective regarding receiving stolen property (count 6). (§ 654.) He argues that the three offenses rest upon the same physical act of selling the stolen Tacoma truck. (People v. Jones (2012) 54 Cal.4th 350, 360 [section 654 prohibits multiple punishment of unlawful possession of firearm by a felon, carrying of concealed and unregistered firearm, and carrying unregistered and loaded firearm in public].) Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars multiple punishment for separate offenses arising out of a single occurrence where all of 6 the offenses were incident to one objective. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368.) We review the trial court's implied finding of a separate intent and objective for sufficient evidentiary support. (Ibid.) In this review, we do not assume a broad or amorphous view of the defendant's intent and objective. (People v. Morelos (2008) 168 Cal.App.4th 758, 769.) Sufficient evidence supports the trial court's implied finding that Pena had distinct criminal intents and objectives regarding the receiving stolen property offense and the attempted grand theft offenses. The receiving stolen property offense concerned possession and concealment of the Tacoma truck from its owner; the attempted grand theft offenses involved fraudulent sale of the truck to unsuspecting buyers. Concealing and possessing the truck necessarily preceded the attempted grand thefts. The truck was taken from Los Angeles County, its license plates changed, and was placed for sale in Ventura County. Pena's objective in count 6 involved concealing and possessing stolen property, Delgado's truck. Pena's objective in counts 9 and 10 involved obtaining cash from potential buyers in exchange for fraudulent title. Under the circumstances, section 654 does not prohibit multiple punishment. III. Pena raises several sentencing issues that the Attorney General properly concedes. First, he contends that he is entitled to an additional 185 days of presentence conduct credit. (Former § 2933, subd. (e).) Second, he asserts that the trial court lacked jurisdiction to enter a no-contact order with certain persons, absent statutory authority or evidence that he threatened a witness. (People v. Robertson (2012) 208 Cal.App.4th 965, 995-996 [no-contact order without statutory authorization or evidentiary support is an unauthorized sentence that may be raised for the first time on appeal].) Third, he points out that the court was required to stay execution of the out-on-bail enhancement because he has not yet been convicted of the Orange County offense. (§ 12022.1, subd. (d) ["Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of 7 the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense"].) The abstract of judgment also incorrectly reflects Pena's conviction of receiving stolen property as a violation of section 469d, subdivision (a), rather than section 496d, subdivision (a). The trial court shall amend the abstract of judgment to reflect the correct Penal Code section. We modify the judgment to strike the no-contact order, and to award Pena an additional 185 days of presentence conduct credit, and reverse and remand for resentencing regarding the out-on-bail enhancement, but otherwise affirm. The trial court shall amend the abstract of judgment accordingly and forward it to the Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED. GILBERT, P.J. We concur: YEGAN, J. PERREN, J. 8  Ryan J. Wright, Judge Superior Court County of Ventura ______________________________ Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent. 9 

945 F.2d 409 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Claudio Roger MARTINEZ, Flor Mary Restrepo, Olga NaranjoGarcia, Luz Marina Restrepo, Juan Casanova, Carlos AlbertoMontoya, Janeth Naranjo Garcia, Faber Antonio Restrepo, andLuis Fernando Monsalve, Defendants-Appellants. Nos. 89-50529, 89-50535, 89-50536, 89-50537, 89-50538,89-50540, 89-50541, 89-50542 and 89-50543. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 1991.Decided Oct. 1, 1991. Before BOOCHEVER, KOZINSKI and O'SCANNLAIN, Circuit Judges. 1 MEMORANDUM* 2 Claudio Roger Martinez, Flor Mary Restrepo, Olga Naranjo Garcia, Luz Marina Restrepo, Juan Casanova, Carlos Alberto Montoya, Janeth Naranjo Garcia, Faber Antonio Restrepo, and Luis Fernando Monsalve were convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute 430 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Janeth, Olga, Carlos, Faber, Flor and Luz (we refer to all of the appellants by their first names as some of them have the same last name) were convicted of possession with intent to distribute an additional 100 kilograms of cocaine, and Flor was convicted of using a minor to assist in the commission of drug offenses, in violation of 21 U.S.C. § 845(b) (now 21 U.S.C. § 861). They all appeal their convictions raising a myriad of issues.1 We affirm. DISCUSSION 1. Sufficiency of the Evidence 3 In reviewing the sufficiency of the evidence, we must determine whether a reasonable jury, after viewing the facts in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989). In February 1989, an informant's tip led police first to an Encino employment agency, then to an East Palm address in Burbank where the officers initially focused on the suspicious activities of Faber and Carlos. Specifically, they were observed engaging in counter-surveillance driving, securing vehicles later used in car switches, and making "beeper calls." Continued surveillance led police to observe Flor and Luz, then Claudio, and finally Janeth and Olga engaging in similar behavior. 4 On April 10, Faber and Carlos drove separate cars in tandem to several pay phones where they made calls. At their second stop, Flor, Luz, and a minor (the minor who was the object of Flor's conviction) drove up, talked with Faber and Carlos, and drove off in a counter-surveillance manner. Luz used a cellular phone while Flor drove. Flor then dropped Luz off at a house located on Marseille Street, and Flor and the minor continued driving around, stopping twice so the minor could make calls from pay phones. 5 Flor and the minor then drove down an alley where they met Claudio who was driving a car which the police previously had seen Carlos and Faber using. Claudio then drove to the Marseille house, while Flor drove through a grocery store parking lot. 6 Meanwhile, Claudio walked into the Marseille house, passing Luz on her way out. Flor then picked Luz up on a street away from the house. Claudio drove a van out of the garage to the same grocery store parking lot. While Claudio got out of the van and walked about twenty feet from it to give the van keys to Juan, who in turn gave the keys to Luis, a police officer walked by the van and observed multi-colored packages of what he recognized as kilogram quantities of cocaine behind the driver's seat. The officer then gave the arrest signal. Claudio had already begun heading down the street when he was arrested, Juan sat in the pick-up truck he and Luis had driven to the parking lot, (among other things, a cellular phone was recovered from the truck) and Luis was preparing to start the van. 7 Police subsequently found 430 kilograms of cocaine in the van, some in a plastic bag, and the rest in boxes. Police returned to the Marseille house after the arrests, where they observed Janeth and Olga. Janeth was arrested after she drove up to the house, walked in, left and started driving away. Olga was arrested as she was leaving the house. She carried the same bag containing a cellular phone which police had seen Flor carrying earlier. The bag also contained among other things a rent receipt issued to Janeth and Olga for the Marseille house. 8 Later that day, police arrested Flor, Luz and Carlos at an address which was written on an envelope which the police subsequently found in the van. Even later, police found an additional 100 kilograms of cocaine at the Prince Circle address. The next day, police arrested Faber at the East Palm address. 9 a. Conspiracy 10 The elements of conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive act. United States v. Litteral, 910 F.2d 547, 550 (9th Cir.1990). Once the existence of a conspiracy is established, evidence of only a slight connection is necessary to support a conviction of knowing participation in that conspiracy. Id. More than sufficient evidence supports the conspiracy convictions of all of the appellants. 11 The jury could reasonably infer an agreement to possess and distribute cocaine from the attempted exchange of the large quantity of cocaine. The attempted exchange also constituted the requisite overt act. Appellants' sufficiency argument focuses on the third element, the requisite intent. In this case, the requisite mental state is intent or knowledge. 21 U.S.C. § 841(a) (1988). Claudio, Juan and Luis' claim that a reasonable jury could not find that they did not know the van contained cocaine is meritless. The jury could reasonably infer, based on the value and quantity of the cocaine, that the three men knew the van was filled with cocaine and that they intended to distribute it. See United States v. Meyers, 847 F.2d 1408, 1414 (9th Cir.1988); cf. United States v. Sanchez-Lopez, 879 F.2d 541, 555 (9th Cir.1989) (price and quantity of cocaine highly relevant to establish appellants' knowledge of cocaine in car and intent to distribute cocaine). 12 Similarly, the jury could reasonably infer that Faber, Carlos, Flor and Luz were knowing participants in the conspiracy, based on these appellants' activities leading up to the April 10 drug exchange. They essentially claim that there was no link between the counter-surveillance activity and the ultimate possession of drugs in the van. The bulk of their argument is factual, and we must view the evidence in the light most favorable to the government. Although the jury could have drawn favorable inferences from the evidence, the jury chose not to do so. The evidence from which it drew the ultimate inference that Faber, Carlos, Flor and Luz were participating in the drug conspiracy included (1) counter-surveillance driving, (2) car switches, (3) telephone records of calls between the various vehicles, (4) Flor's interaction with Claudio the day of the bust, (5) Luz's entry into the Marseille house the day of the bust, (6) interaction with Janeth and Olga, the listed tenants of the house in which the cocaine was stored, (7) cash purchases of cars, (8) registration of cars to false names and addresses, and (9) paper found in the van with some of their names on it. This evidence was sufficient to persuade a jury beyond a reasonable doubt that Faber, Carlos, Flor and Luz had at least a slight connection to the conspiracy. Cf. United States v. Sai Keung Wong, 886 F.2d 252, 254, 257-58 (9th Cir.1989) (evidence was sufficient to support convictions of conspiracy, possession, and importation of heroin despite little direct communication among some defendants). Likewise, as for Janeth and Olga, among other evidence, they rented the two houses in which cocaine was stored, they were present at one of the houses after Claudio, Juan and Luis were arrested, and they had been seen engaging in the counter-surveillance driving with Claudio. This evidence was sufficient to persuade a jury beyond a reasonable doubt that they had at least a slight connection to the conspiracy. 13 b. Possession 14 Once there is sufficient evidence of knowing participation in a conspiracy, defendants are responsible for the substantive offenses committed by their co-conspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Thus, the appellants were criminally responsible for possessing the cocaine found in the van. Similarly, Flor, Luz, Faber, Carlos, Claudio, Janeth and Olga were criminally responsible for possessing the cocaine found in the Prince Circle house. 15 c. Use of a Minor 16 Flor challenges her conviction for using a minor in a drug offense claiming that there was no evidence of the minor's age. Her challenge fails because the government introduced the minor's driver's license and passport indicating that she was seventeen years old at the time of the offense. 2. The Van Search 17 Appellants argue that a sophisticated drug distribution organization would not leave cocaine kilos in plain view in the compartment of a van. They claim that all of the cocaine was in closed boxes. Officer Ray Phillips testified that some of the cocaine was in plain view. We do not find clearly erroneous the district court's acceptance of the police officer's testimony in denying the suppression motion. 18 Appellants further challenge the search of the closed boxes which were shielding some of the cocaine from plain view. Assuming that at least Luis has standing to challenge the search, the police were authorized to conduct a warrantless search "of compartments and containers within the vehicle whose contents [were] not in plain view[,]" United States v. Ross, 456 U.S. 798, 800 (1982), because they had probable cause to believe that cocaine was in the van. See id. at 823-24; see also California v. Acevedo, 111 S.Ct. 1982, 1991 (1991) (police may search an automobile and the containers within it if they have probably cause to believe contraband is contained). Thus, we hold that the 430 kilograms of cocaine were properly admitted at trial. 3. Claudio's Post-Arrest Statements 19 Claudio argues that he was not advised of his Miranda rights prior to making several post-arrest statements. An officer testified that he read Claudio his rights and that Claudio waived them. We do not find clearly erroneous the district court's decision to believe the officer even though the waiver was not recorded. Thus, the statements were properly admitted. 4. Janeth's and Olga's Arrests 20 Janeth and Olga argue that evidence seized during the searches of their persons incident to arrest should have been suppressed because the police did not have probable cause to arrest them. They argue that mere proximity to the house from which the cocaine-laden van departed did not give rise to probable cause. We disagree. 21 Although it is disputed whether Janeth and Olga were present in the house contemporaneously with the drug seizure, we can conclude at the very least that they were there shortly after the seizure. The officer assessing whether there was probable cause to arrest knew that earlier in the three-month surveillance, Janeth and Olga had been seen driving in a car with Claudio executing counter-surveillance maneuvers.2 The officers, therefore, could reasonably conclude that the women's presence in the house so soon after the seizure gave rise to probable cause because the drug enterprise being carried out was of the type that could not be carried out without the knowledge of all persons present in the house. See United States v. Hillison, 733 F.2d 692, 697-98 (9th Cir.1984). Such evidence was sufficient to support the officer's conclusion that there was probable cause to arrest. We conclude that the incriminating material seized from their persons during the searches incident to arrest was properly admitted. 22 5. The Marseille House and Prince Circle House Entries 23 Janeth and Olga assert that the entries into the Marseille and Prince Circle houses prior to the issuance of the search warrant were illegal. We need not decide this issue because any evidence obtained as a result of the entries would have been inevitably discovered pursuant to lawful means, namely, the search warrant of April 11, 1989. See Murray v. United States, 487 U.S. 533, 539 (1988); Nix v. Williams, 467 U.S. 431, 444 (1984). The search warrant ultimately issued was lawful because it was based on probable cause independent of the alleged illegal entries. We therefore find that the evidence seized from Prince Circle, including the additional 100 kilograms of cocaine, was properly admitted, as was the evidence that the Marseille house was virtually empty. 6. Ineffective Assistance of Counsel 24 Janeth and Olga claim that their trial attorney did not adequately present the motions to suppress because the attorney failed to demand an evidentiary hearing. Moreover, they assert that the motions did not comport with a local rule requiring that declarations of parties competent to testify be attached. We find that they have not satisfied their burden of proving ineffective assistance.3 25 Usually ineffective assistance claims are raised collaterally so as to allow the district court the first opportunity to consider them and, if necessary, to develop a record. United States v. Molina, 934 F.2d 1440, 1446 (9th Cir.1991). However, the record is sufficiently clear for us to conclude that the claim is meritless. 26 To prove ineffective assistance of counsel, Janeth and Olga must show "material, specific errors and omissions that fall outside the 'wide range of professionally competent assistance.' " Id. at 1447 (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). In addition, they must show prejudice, i.e., but for the attorney's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Id. We need not linger on the first question of whether the attorney's failure to request an evidentiary hearing and to file a different declaration were errors falling outside the range of competent assistance, because the conduct clearly produced no prejudice. As discussed earlier, the evidence seized from Janeth's and Olga's persons and houses was properly admitted, and thus their attorney could not have done anything differently which would have prevented the admission of evidence. 7. Confidential Informant 27 Janeth and Olga assert that the district court should have compelled disclosure of the identity of the informant whose tip sparked the surveillance. They maintain that the informant would have exculpated them. The informant's tip, however, was not used to establish guilt at trial, but instead was relied upon only to begin surveillance. Because Janeth's and Olga's guilt was established by the investigation of events occurring subsequent to and independent of the informant's tip, the appellants failed to carry their burden of proving that disclosure of the informant's identity was " 'relevant and helpful to the[ir] defense ... or ... essential to a fair determination....' " United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir.1990) (quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). Moreover, even if the informant had testified that he or she was not aware of Janeth's and Olga's involvement in the drug-related activities, the effect of such testimony would have been minimal at best in light of other evidence of guilt. See Sai Keung Wong, 886 F.2d at 256. We, therefore, find that the district court did not abuse its discretion in refusing both to compel disclosure and to hold an in camera hearing. See United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir.1989), cert. denied, 110 S.Ct. 1830 (1990). 8. Severance Motion 28 Appellants argue that the district court erred in denying their severance motion made pursuant to Fed.R.Crim.P. 14. We find that they waived their right to appeal this denial as they did not renew it after the close of the government's case. Sanchez-Lopez, 879 F.2d at 551. 9. Closing Argument 29 Appellants claim that the prosecution made improper rebuttal statements during closing argument. Notwithstanding that it appears that the statements were appropriately made in response to points made by the appellants' attorneys, the overwhelming evidence of guilt made any such error harmless beyond a reasonable doubt. See United States v. Crespo de Lllano, 830 F.2d 1532, 1545 (9th Cir.1987), amd'd on denial of reh'g, 838 F.2d 1006 (9th Cir.1988). 10. Jury Instructions 30 a. Conspirator Liability 31 Appellants argue that the court delivered a Pinkerton instruction which did not advise the jury that it must find that the appellants reasonably foresaw that the substantive crimes might be committed by their co-conspirators to be liable for those substantive crimes. Foreseeability was not at issue here as the substantive crimes were the same as the object of the conspiracy. Moreover, the instruction given has been deemed a valid Pinkerton instruction by this court. See, e.g., United States v. Vasquez, 858 F.2d 1387, 1393 & n. 3 (9th Cir.1988), cert. denied, 488 U.S. 1034 (1989), 489 U.S. 1029 (1989). 32 Appellants also challenge the instruction given that "[o]ne who willfully joins an existing conspiracy is charged with the same responsibility as if he or she had been one of the originators or instigators of the conspiracy. Further, a conspirator who joins a preexisting conspiracy is bound by all that has gone on before in the conspiracy." They claim that this instruction made it appear as if appellants could be found liable for the substantive offenses of their co-conspirators committed before the appellants joined the conspiracy. This challenge fails as the same instruction also informed the jurors that an appellant "cannot be bound by the acts and declarations of other participants until it is established that a conspiracy existed and that he or she was one of its members." See RT 1907. Viewing the instruction as a whole, the instruction indicates that the challenged language was limited specifically to conspiracy liability. 33 b. Reasonable Doubt 34 Appellants request a new trial based on the court's use of the "willingness to act" formulation of reasonable doubt as opposed to the preferred "hesitation to act" instruction. Although the "hesitation" language is preferred, use of the "willingness" language does not constitute reversible error. United States v. Robinson, 546 F.2d 309, 313-14 (9th Cir.1976), cert. denied, 430 U.S. 918 (1977). Instead, appellants must show prejudice, id., which they have not done. The appellants' related contention that the instruction was grammatically incomplete also fails. The instruction, "taken as a whole, fairly and accurately convey[ed] the meaning of reasonable doubt...." Id. at 314. CONCLUSION 35 Sufficient evidence supported appellants' convictions. We find no reversible error. Thus, the convictions of appellants are 36 AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Appellants also appeal their sentences which we address in a separate published opinion 2 Although at least once in their brief, Janeth and Olga assert that only Janeth was seen in the car with Claudio, trial testimony indicates otherwise. See RT 820. As noted earlier, we must view the evidence in the light most favorable to the government 3 Janeth and Olga's statement that the court failed to make "any findings of fact and conclusions of law as it was required to do by Fed.R.Crim.P. 12(e) and (g)," see Appellants' Reply Br. 7, although made in the ineffective assistance section of their reply brief, is really a separate issue. Because, however, it is mentioned for the first time in their reply brief and is not adequately developed, it is deemed abandoned

[Cite as State v. Suloff, 2019-Ohio-4607.] COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2018 AP 10 0032 TIMOTHY J. SULOFF Defendant-Appellant O P I N IO N CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2016 CR 04 0127 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 6, 2019 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant MICHAEL J. ERNEST GEORGE URBAN Assistant Prosecuting Attorney 116 Cleveland Avenue, NW – Ste. #808 Tuscarawas County Canton, Ohio 44702 125 East High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2018 AP 10 0032 2 Hoffman, J. {¶1} Appellant Timothy Suloff appeals the judgment entered by the Tuscarawas County Common Pleas Court convicting him of four counts of burglary (R.C. 2911.12) and two counts of theft (R.C. 2913.02), and sentencing him to an aggregate term of incarceration of twelve years. Appellee is the state of Ohio. STATEMENT OF THE FACTS AND CASE {¶2} On January 6, 2016, Terry Miller arrived at his home in Stonecreek, Ohio, at about 4:00 p.m., and discovered the kitchen door had been pried open. The door had been installed in the last week or two, and had been cleaned by his wife Elizabeth shortly before the break-in. Terry Miller called the Sheriff’s Office to report the suspected break- in, and called one of his neighbors. The neighbor reported a loud, tan-colored truck in the area around 3:45 p.m. When Elizabeth Miller returned home, she discovered her jewelry box with all of her jewelry was missing, as well as two wooden boxes and a container of coins. She estimated the value of the jewelry at $3,000. {¶3} Deputy Troy Beckley of the Tuscarawas County Sheriff’s Department reported to the scene. He photographed footprints in the snow on the stairs leading to the broken kitchen door, which he photographed. He noticed four fingerprints in the middle of the glass window on the broken door. The prints were lifted and sent to the Ohio Bureau of Criminal Investigation (BCI) for analysis. The fingerprints were determined to be left by Appellant. {¶4} Lt. Jeff Moore of the Tuscarawas County Sheriff’s Department questioned Appellant about the burglary at the Miller home. Appellant denied breaking into the home, and when shown photographs of the home claimed he had never seen the home. Lt. Moore presented Appellant with the fingerprint report, which Appellant studied. After Tuscarawas County, Case No. 2018 AP 10 0032 3 reading the report, Appellant nodded his head up and down. During further conversation about the burglary, Appellant indicated he was remorseful. {¶5} Chris and Cindy Goehring left their home in Dover, Ohio, on April 1, 2016, to go camping. They returned home around 11:15 a.m. on April 2. When they opened their garage door, they realized the door leading from the garage to the kitchen was open. When they entered their home, they found broken glass, and it appeared someone broke the glass on the French doors at the back of the house, reached inside, and unlocked the dead bolt. The couple called 911. {¶6} The Goehrings’ closet doors and dresser drawers were open, and Cindy Goehring’s jewelry box was missing. Along with jewelry items with personal value, a ruby ring which had a diamond missing, a charm bracelet, and two tennis bracelets were in the stolen box. Lt. Moore contacted Cindy Goehring later, and she was able to identify two pieces of jewelry taken with the jewelry box: the ruby ring with a diamond missing, and a chain from which she had previously removed a pendant. {¶7} Between 3:30-4:00 p.m. on April 4, 2016, Neil Parrot returned home to his Strasburg residence after work to find glass on his garage floor. The window at the back door to the garage had been broken, and someone had broken the door leading into the house and left it open. Parrot found glass scattered throughout the kitchen, closet doors left open, and a jewelry armoire belonging to his wife, Elaine, had been ransacked in the bedroom. Jewelry, gift cards, and cash were missing from the armoire, and three iPads, including one belonging to Parrot’s employer Tuslaw Schools, were missing. Some of his pants were also missing, along with a pillowcase from the bed. Tuscarawas County, Case No. 2018 AP 10 0032 4 {¶8} While investigating at the Parrot residence, Deputy Lincoln Troyer noticed two sets of foot impressions in the mulch outside the window. A path of footprints led from the Canton Water Department to the back side of the Parrot residence. While there were several homeless people living in tents by the river near the house, the footprint trail did not lead directly from the tents. {¶9} In the morning of April 11, 2016, Cathy Sprang exited her bathroom at her home outside Strasburg to find a man standing in her living room. She yelled, “Who the hell are you and what are you doing in my home?” Tr. (II) 192. The man ran out the back door. She described the man as about 5’5” tall, skinny, with dark skin. Tr. (II) 193. Because he was wearing a hoodie, she could only see part of his face. She saw the man drive away in a white car. Deputy Rick Morrison responded to Cathy’s 911 call, and lifted footprints from a Fila tennis shoe from Sprang’s kitchen floor. Cathy Sprang was unable to identify Appellant later from a photo lineup or later in court. {¶10} Theresa Stith resides outside of Bolivar. At 9:00 a.m. on April 11, 2016, she was sitting in her living room. She saw a man, who she later identified as Appellant, approach her front door and look in the window with his hands cupped over his eyes. When he saw her, his eyes got big and he smiled and waved at her. Stith opened her front inner door, leaving the storm door closed, and asked Appellant if she could help him. He stated he was looking for McDugal Battery and stopped for directions. She asked why he would come to her home asking for directions, because her home sits on a hill about a quarter of a mile from the road, and is not visible from the road. He replied he was lost, and did not know what to do. Stith told Appellant the only battery place in Bolivar is Harris Tuscarawas County, Case No. 2018 AP 10 0032 5 Battery, and gave him directions. Stith identified Appellant in court as the man she encountered at her home on April 11. {¶11} Stith was unable to obtain Appellant’s license plate number, so she got in her truck to follow him. She did not see him at Harris Battery, but saw the white car Appellant traveled in driving down the road. She was able to get a license plate number, which she gave to police. {¶12} After running the license plate provided by Stith, deputies discovered the car belonged to Appellant. A search warrant was executed for Appellant’s home. Appellant was wearing Fila tennis shoes at the time police went to the home. During the search, police found the iPad belonging to Tuslaw Schools taken from the Parrot home. They also found jewelry in Appellant’s home. {¶13} Lt. Moore interviewed Appellant about the Goehring and Parrot burglaries, and he denied any knowledge or involvement in the burglaries. {¶14} Appellant was indicted by the Tuscarawas County Grand Jury as follows: Count 1 – burglary of the Miller residence Count 2 – theft from the Miller residence Count 3 - burglary Count 4 - theft Count 5 - theft Count 6 - burglary of the Goehring residence Count 7 – petty theft of the Goehring residence Count 8 – burglary of the Parrot residence Tuscarawas County, Case No. 2018 AP 10 0032 6 Count 9 – theft at the Parrot residence Count 10 – attempted burglary of the Stith residence Count 11 – burglary of the Spring residence {¶15} Counts one and two were severed from the remaining counts for jury trial. Following jury trial in November of 2017, Appellant was convicted of counts one and two. Sentencing was deferred pending resolution of the remaining counts. {¶16} The State dismissed counts three through five without prejudice, and the case proceeded to jury trial on counts six through eleven. The jury found Appellant guilty of counts six, seven, eight, and eleven, but not guilty of counts nine and ten. The trial court sentenced Appellant to three years incarceration on each count of burglary, to be served consecutively to each other. The court ordered the sentences imposed on Counts one and six to be served consecutively to Appellant’s unrelated felony terms of imprisonment imposed by Holmes County and Marion County, and ordered the sentences imposed on counts eight and eleven to be served concurrently with the terms imposed by Holmes and Marion Counties. The court imposed no sentence on the theft counts. The court ordered Appellant pay restitution in the amount of $16,025 to the Parrots and $500 in restitution to the Goehrings. {¶17} It is from the September 12, 2018 judgment of conviction and sentence Appellant prosecutes his appeal, assigning as error: I. APPELLANT’S CONVICTIONS WERE AGAINST THE SUFFICIENCY AND/OR MANIFEST WEIGHT OF THE EVIDENCE. Tuscarawas County, Case No. 2018 AP 10 0032 7 II. THE TRIAL COURT ERRED IN ITS ORDER OF RESTITUTION TO THE PARROTS. I. {¶18} In his first assignment of error, Appellant agues his convictions of burglary and theft were against the manifest weight and sufficiency of the evidence. We disagree. {¶19} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). {¶20} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991). {¶21} Appellant was convicted of one count of burglary in violation of R.C. 2911.12(A)(1), and three counts of burglary in violation of R.C. 2911.12(A)(2): (A) No person, by force, stealth, or deception, shall do any of the following: Tuscarawas County, Case No. 2018 AP 10 0032 8 (1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense; (2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.] {¶22} Appellant was also convicted of two counts of theft in violation of R.C. 2913.02: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent[.] {¶23} Miller Residence: Appellant first argues there is insufficient evidence to identify him as the person who broke into the Miller residence, as there is no evidence to corroborate the fingerprint evidence found at the scene. He argues none of the items Tuscarawas County, Case No. 2018 AP 10 0032 9 taken from the Miller residence were connected to him, and he made no admissions. He further argues the Millers provided no supporting evidence the value of the items taken was $3,000.00. {¶24} The burglary and theft counts related to the Miller residence were tried on November 7 and 8, 2017. The State presented evidence Appellant’s fingerprints were lifted from the door at which the home was entered. The door had been installed only a week or two prior to the break in, and Mrs. Miller had cleaned the door shortly before the burglary. Footprints in the snow led to the door where Appellant’s fingerprints were found. {¶25} In State v. Miller, 49 Ohio St. 2d 198, 361 N.E.2d 419, sentence vacated on other grounds, 438 U.S. 911, the Ohio Supreme Court recognized the use of fingerprints for identification purposes in criminal cases, stating, “fingerprints corresponding to those of the accused are sufficient proof of his identity to sustain his conviction, where the circumstances show that such prints, found at the scene of the crime, could only have been impressed at the time of the commission of the crime.” Id. at syllabus. See also, State v. Jenkins, 5th Dist. Stark No. 2014CA00180, 2015-Ohio-3360, ¶22 (palm print alone is enough to establish the element of identity where print was left behind counter, near footprints left by robber, and store had been cleaned the night before); State v. Walker, 5th Dist. Stark No. 2000CA00077, 2000 WL 1745146, *1 (November 20, 2000) (defendant’s fingerprints on the broken window glass gaining illegal entry into residence sufficient to support burglary conviction); State v. Boone, 6th Dist. Lucas No. L-08-1409, 2010-Ohio-1481, ¶15 (trier of fact was justified in concluding the owner of the fingerprint on underside of window used to enter home was the culprit). Tuscarawas County, Case No. 2018 AP 10 0032 10 {¶26} We find the fingerprint evidence presented in this case was sufficient evidence, if believed by the jury, to prove Appellant’s identity as the person who burglarized the Miller residence. Further, while Appellant he did not make a direct admission of guilt, Lt. Jeff Moore testified when presented with the fingerprint report Appellant first studied the report, then nodded his head up and down. During further conversation about the burglary, Appellant indicated he was remorseful. From all of the evidence presented, we find the jury did not lose its way in finding Appellant was the person who committed the burglary and theft of the Miller residence. {¶27} Appellant also argues the Millers did not present supporting evidence concerning the value of the items taken. {¶28} Terrence Miller testified as to how he and his wife arrived at an estimated value for the jewelry taken from their home: She has a very good memory. She drew different pictures and descriptions of her jewelry. We worked with the jeweler that she bought it from as well as the insurance company. {¶29} Tr. (1) 148. {¶30} Elizabeth Miller testified in arriving at an estimated value of the jewelry, she had kept a lot of the receipts and added them up. Tr. (1) 151. {¶31} We find the testimony of the Millers was sufficient evidence, if believed by the jury, to support the estimated value of $3,000. Further, we find the jury did not lose its way in believing the testimony of the Millers regarding the value of the jewelry taken. Tuscarawas County, Case No. 2018 AP 10 0032 11 {¶32} Goehring Residence: Appellant argues there is no evidence linking him to the Goehring burglary and theft. He argues while there is evidence several items of jewelry were recovered and identified by Mrs. Goehring, there is no evidence these items were recovered in the search of Appellant’s home. {¶33} The burglary and theft charges connected to the Goehring residence were tried during the trial held on April 17, 18, and 19, of 2018. Lt. Moore testified as follows regarding the items found in the search of Appellant’s home: There was some other jewelry that we also located in the home. Those items were taken at that time and later provided to victims who was able to identify some of that jewelry. {¶34} Tr. (2) 278. {¶35} Cindy Goehring testified a few weeks after the break-in at their home, Lt. Moore contacted her and her husband to show them pictures of items recovered in the case. From the pictures, she identified a ring and a chain which had been taken from the home. The only other person testifying at the April, 2019 trial regarding missing jewelry was Neil Parrot, who testified the only item returned by police was a Movado watch belonging to his wife. {¶36} Although Lt. Moore did not specifically state items missing from the Goehring home were recovered in the search of Appellant’s home, from his testimony multiple items of jewelry were taken from Appellant’s residence and provided to victims who identified some of the jewelry, coupled with Cindy Goehring’s testimony Lt. Moore Tuscarawas County, Case No. 2018 AP 10 0032 12 showed her pictures of jewelry she could identify as taken from her home and Neil Parrot’s testimony only a single item was recovered from the theft of their jewelry, the jury could infer the ring and chain identified by Cindy Gohring were recovered from the search of Appellant’s home. We find the judgment of convictions of burglary and theft of the Goehring residence are not against the manifest weight of the evidence, and are supported by sufficient evidence. {¶37} Parrot Residence: Appellant argues police failed to investigate the people living by the river near the Parrot home, despite the documentation they found in the tents identifying the people living there. He also argues although the iPad belonging to Tuslaw schools and the Movado watch taken from the Parrot residence were found in Appellant’s home, his wife and another man also lived in the home. {¶38} Appellant was convicted of burglary of the Parrot home at the trial conducted in April of 2019. {¶39} Although there were homeless people living in tents near the Parrot home, there was evidence the footprints leading to the door through which the person entered the home did not lead directly to the tents. Further, the iPad taken from Appellant’s bedroom matched the serial number of the iPad missing from the Parrot home, and the Parrots identified a watch taken from the search of Appellant’s home as one taken in the burglary. {¶40} “It has long been the law of this state that, where a burglary has been committed and property stolen as a part of the criminal act, the fact of the subsequent possession is some indication that the possessor was the taker, and therefore the doer Tuscarawas County, Case No. 2018 AP 10 0032 13 of the whole crime.” State v. Simon, 6th Dist. Lucas No. H-04-026, 2005-Ohio-3208, ¶14, citing State v. Brennan, 85 Ohio App. 175, 88 N.E.2d 281 (1949). {¶41} In the instant case, the Parrot home was burglarized on April 4, 2016. The search warrant of Appellant’s home was executed on April 12, 2016. Property stolen from the Parrot home was recovered during the search of Appellant’s home. Although there was testimony two other people were living at the residence, the jury could conclude Appellant was the person who broke into the Parrot home, and not his wife or Matthew Graves. We find the conviction of burglary was not against the manifest weight or sufficiency of the evidence. {¶42} Sprang Residence: Appellant argues Cathy Sprang was unable to identify Appellant at trial or from a photo lineup as the person who entered her home, and therefore his conviction of burglary of the Sprang residence was against the manifest weight and sufficiency of the evidence. {¶43} Sprang was unable to identify Appellant as the person who entered her home, but also testified the man was wearing a hoodie which partially hid his face. She gave a general description of the man, which matched Appellant. A Fila tennis shoe print was lifted from her kitchen floor, and Appellant was wearing Fila tennis shoes when police executed the search warrant on his home. Sprang further testified after Appellant ran away she went to retrieve her gun, and when she returned to the window she saw a white car leaving her driveway. {¶44} Theresa Stith was able to identify Appellant as the man who came to her door on the same morning as the Sprang burglary. She followed the white car Appellant drove, and retrieved a license plate number from the vehicle which ultimately led the Tuscarawas County, Case No. 2018 AP 10 0032 14 police to Appellant. Stith lived relatively close to Sprang, and the incidents occurred on the same morning. {¶45} While Stith described Appellant as wearing a striped shirt and jeans and Sprang testified the man who entered her home was wearing a hoodie and pants, a hoodie is an easy item of clothing to put on or remove. Based on the proximity of the incidents in time and place, and the fact both Sprang and Stith connected a white car to the man who came to their home, we find the jury could conclude Appellant was responsible for the Sprang burglary. We find the conviction of burglary is not against the manifest weight or sufficiency of the evidence. {¶46} The first assignment of error is overruled. II. {¶47} Appellant argues the court erred in ordering him to pay restitution to the Parrots in the amount of $16,025, which reflected their total economic loss after the application of insurance payments. He argues he was acquitted of the charge of theft from the Parrots’ home, and further the State did not present credible evidence as to the amount of the loss. {¶48} R.C. 2929.18(A)(1) governs restitution orders: (A) Except as otherwise provided in this division and in addition to imposing court costs pursuant to section 2947.23 of the Revised Code, the court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under this section or, in the circumstances specified in section Tuscarawas County, Case No. 2018 AP 10 0032 15 2929.32 of the Revised Code, may impose upon the offender a fine in accordance with that section. Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following: (1) Restitution by the offender to the victim of the offender's crime or any survivor of the victim, in an amount based on the victim's economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender. Tuscarawas County, Case No. 2018 AP 10 0032 16 {¶49} We review restitution orders under an abuse of discretion standard. See, e.g., State v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, ¶ 15; State v. Cook, 5th Dist. Fairfield No. 16–CA–28, 2017–Ohio–1503, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016–Ohio–7389, ¶ 40. An order of restitution must be supported by competent and credible evidence from which the trial court can discern the amount of restitution to a reasonable degree of certainty. State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 2017–Ohio–59, ¶ 44 (citations omitted). Furthermore, a trial court abuses its discretion if it orders restitution in an amount that does not bear a reasonable relationship to the actual loss suffered. Id. (citations omitted). {¶50} Appellant was convicted of burglary of the Parrot home, but acquitted of the grand theft charge connected to the items stolen from the Parrot home. At sentencing, Appellant argued regarding restitution as follows: MR. PERLAKY: Yes, in even ordering it I think the Court must consider the ability to pay if I remember 2929.18 correctly, and maybe I am remembering it incorrectly. Mr. Suloff has little to no ability to pay. I don’t believe we have any disagreement with the claims by any of the individuals. I would note the only thing that concerns me is that I think the jury on the grand theft count was concerned about the testimony from the Parrots in terms of how they calculated their loss. Again, I’m guessing. Of course I don’t know but they were somewhat concerned about that so we’d ask the Court to take that into consideration as well. Tuscarawas County, Case No. 2018 AP 10 0032 17 {¶51} Sent. Tr. 42. {¶52} Despite the fact Appellant was acquitted of the theft charge, we find the trial court did not err in including items taken from the home were economic loss caused by the burglary. The evidence presented at trial demonstrated the items were taken from the home as a result of the burglary, which Appellant was convicted of committing. {¶53} Further, we find the trial court’s determination of $16,025 in restitution is supported by competent, credible evidence in the record. The State submitted a restitution request on behalf of the Parrots in the amount of $16,025. Appellant did not specifically dispute the Parrots’ calculation of damages, but rather argued the jury might have rejected their calculation of damages, thus acquitting Appellant of theft. {¶54} R.C. 2929.18(A)(1), quoted above, allows the court to award restitution in an amount recommended by the victim. At trial, the State presented evidence the value of the property taken from the Parrotts was around $20,000, and they received $4,000 from the insurance company. Neil Parrot testified he had taken photographs of the jewelry taken from the home as part of a household inventory, and was further able to provide serial numbers for the iPads taken in the burglary. We decline to speculate on the reason the jury found Appellant not guilty of theft related to the Parrot burglary, and find the trial court’s restitution award is supported by the evidence in the record. Tuscarawas County, Case No. 2018 AP 10 0032 18 {¶55} The second assignment of error is overruled. {¶56} The judgment of the Tuscarawas County Common Pleas Court is affirmed. By: Hoffman, J. Gwin, P.J. and Delaney, J. concur 

131 F.3d 144 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Bakari Lu ADISA, Appellant.UNITED STATES of America, Appellee,v.Izih LENARD, Jr., Appellant. Nos. 97-2580EA, 97-2649EA. United States Court of Appeals, Eighth Circuit. Submitted: Nov. 18, 1997Filed: Nov. 26, 1997 Before FAGG, WOLLMAN, and HANSEN, Circuit Judges. PER CURIAM. 1 Bakari Liu Adisa and Izih Lenard, Jr. appeal their convictions and sentences for bank robbery and related weapons charges. Having reviewed the record and the parties' briefs, we conclude that an extensive discussion is not warranted. First, the district court properly classified Adisa's conviction for a racketeering conspiracy predicated on an underlying series of four armed robberies and a hired shooting as a serious violent felony for sentencing purposes under 18 U.S.C. § 3559(c) (1994). Second, the district court did not abuse its discretion in denying Adisa's request for a court-appointed psychiatric expert. Third, Lenard's assertions that a felony conviction expunged under Arkansas state law could not be used as the predicate for Lenard's conviction as a felon in possession of a weapon, that the government failed to produce sufficient evidence to support the jury's verdicts, and the district court improperly enhanced his sentence for reckless endangerment and for obstruction of justice either are unsupported by the record, otherwise without legal merit, or both. Having rejected Adisa's and Lenard's contentions, we affirm their convictions and sentences. See 8th Cir. R. 47B. 2 A true copy. Attest: 3 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00054-CV ______________________________     IN THE INTEREST OF C. G. B., a/k/a M. G. K., AND J. R. B., a/k/a R. R. K., CHILDREN                                                    On Appeal from the 76th Judicial District Court Titus County, Texas Trial Court No. 30,610                                                   Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss O P I N I O N             For almost two years Wade and Debbie Kludt served as foster parents for C.G.B. and J.R.B., placed in their home by the Texas Department of Family and Protective Services. But the Kludts' hopes to adopt the children were first delayed, long beyond the required and customary time periods, and then were interrupted when the Department removed the children from the Kludt home. That removal was based on Department administrative findings that Debbie Kludt had inflicted a blunt force trauma on C.G.B. and then neglected the child's medical needs—findings contained in a Department letter dated May 21, 2003, but contradicted by the Kludts, who maintained C.G.B. was injured in a bicycle accident. The Kludts ultimately asked the trial court to name them, rather than the Department, managing conservators of the two children. Mediation proved futile. Over a year after the children had been removed from the Kludts' home, the trial court was finally able to bring the Kludts' request to a hearing. The court denied the Kludts possession of the children, because by contract the Department could remove the children from the Kludts' home without cause and because the children, by the time of the hearing, had been out of the Kludts home for over a year. The trial court, however, directed at the Department some strongly-worded negative findings, which are not relevant to this appeal; ruled the Department's administrative findings against the Kludts were unfounded; and entered a number of orders, only two of which are challenged in this appeal.             The Department appeals, asking only that we strike from the trial court's order of April 8, 2004, the parts of the order exonerating the Kludts "from any wrongdoing toward" C.G.B. and J.R.B. and ordering the Department "to expunge from its records and its computer system the administrative findings contained in the letter dated May 21, 2003 and signed by Angela L. Nowell." The Department asserts that, once the trial court found the Kludts lacked standing, the trial court had no subject-matter jurisdiction to exonerate the Kludts or to order the Department's records expunged. We disagree and conclude the trial court had authority to enter its order because (1) the Kludts had standing, and (2) even if the Kludts lacked standing, the trial court had inherent power to enter the order. The Kludts Had Standing             Ordinarily, standing must be established before a court will have the subject-matter jurisdiction essential to its power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Here, the Kludts had standing under Section 102.003(a)(12) of the Texas Family Code, which provides that a suit seeking modification of the parent-child relationship may be filed by "a person who is a foster parent of a child placed by the Department . . . in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition." Tex. Fam. Code Ann. § 102.003(a)(12) (Vernon Supp. 2004–2005).             The children were foster children in the Kludts' home from the time the Department placed them there, July 17, 2001, until the Department removed them April 2, 2003—a period of over twenty-one months. On June 19, 2003, seventy-eight days after the Department removed the children from their home, the Kludts filed their petition to modify. Therefore, pursuant to Section 102.003(a)(12), the Kludts had standing. The trial court erred in concluding they had none. Because the Kludts had standing, the trial court's order can be sustained on that basis. The Court Had Inherent Power To Enter the Order             But even if the Kludts had no standing to seek conservatorship of the children, the trial court clearly has a continuing statutory duty to oversee the children's case, including the Department's supervision of them.             For example, the supervising court must review the conservatorship appointment of the Department or another agency and the substitute care thereunder. Tex. Fam. Code Ann. § 263.002 (Vernon 2002). The Department must create a "service plan" for each child in its custody within forty-five days after the court renders a temporary order appointing it temporary managing conservator. Tex. Fam. Code Ann. § 263.101 (Vernon 2002). The plan must be filed with the court. Tex. Fam. Code Ann. § 263.105(a) (Vernon 2002). In the plan, the Department must set out its goals for the child, specifying how it intends to seek a "permanent safe placement" for the child, whether by termination and placement for adoption, by return to their family, or by other means. Tex. Fam. Code Ann. § 263.102 (Vernon 2002). The plan is explicitly subject to review by the court of continuing jurisdiction over the child. Tex. Fam. Code Ann. § 263.105 (Vernon 2002).             The Department must prepare a "permanency plan" for each child. Tex. Fam. Code Ann. § 263.3025 (Vernon 2002). The trial court must review the Department's permanency progress reports  in  connection  with  the  "permanency  plan"  created  for  each  child.  Tex.  Fam.  Code Ann. § 263.303 (Vernon 2002). The trial court's hearings must be held no less frequently than as set out by statute. See Tex. Fam. Code Ann. §§ 263.304, 263.305 (Vernon 2002). The statutory scheme sets out a number of things that must be done by the trial court, including reviewing the appropriateness of the current placement; determining the plans, services, and orders needed to ensure that a final order is timely rendered; deciding whether the Department has made reasonable efforts to finalize the permanency plan; and projecting a likely date for the child to be placed for adoption. See Tex. Fam. Code Ann. § 263.306 (Vernon 2002). At permanency hearings, the court is required to review the service plan, permanency report, and other information from the hearing, including the child's safety, the ongoing viability of the current placement, and the compliance and progress made, including whether the Department has made reasonable efforts to finalize the permanency plan. Tex. Fam. Code Ann. § 263.306(b). The court should always be guided by "the best interest of the child." See Tex. Fam. Code Ann. § 263.307 (Vernon 2002).             The Department appears to be taking the position that the trial court's review may be focused on only the actions of parents or foster parents toward the child, not the Department's actions that affect the child. The statute makes no such distinction, and there is no more reason to permit an agency to act outside the best interest of a child than to allow a parent to do so. Accordingly, the actions taken by the trial court fall well within the ambit of its explicit and implicit authority to review this type of proceeding, and it is clear from the court's findings that, in doing so, it was properly performing its duty to C.G.B. and J.R.B.             We affirm the judgment.                                                                                       Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          April 27, 2005 Date Decided:             May 3, 2005 font-family: Times New Roman">Date Decided: September 14, 2007 1. Sims also sued Donald Ray Holt in this case. Holt was served, but did not appear at trial and has not appealed the trial court's judgment. 2. The trial court conducted a final hearing in this case December 7, 2006. Sims appeared with her counsel; Jenkins appeared pro se. 3. Jenkins also paid Sims $600.00 to have the mobile home moved onto the disputed property. Part of Jenkins' mortgage payment was meant to reimburse Sims for that additional cost. 4. At the conclusion of the hearing, the trial court also made several oral pronouncements that were consistent with its later-entered written findings of fact and conclusions of law. The trial court stated that all the money Jenkins had paid to Sims should be considered as rental payments, which meant Jenkins was not entitled to a refund of any money. 5. Jenkins' appellate brief raises two issues that are, at best, far from a model of clarity. For example, the first issue raised appears to challenge the legal sufficiency of the evidence to support the trial court's judgment. Yet, the brief does not attempt to set forth the proper standard of review for such an issue. And in providing analysis on the issue raised, Jenkins appears to provide a factual sufficiency analysis. Then, to further complicate matters, she asks for this case to be remanded to the trial court for a determination of whether the mobile home is real or personal property. Thus, it would appear she has raised three separate and distinct issues within a single point of error, even though none of these issues have been clearly briefed or analyzed. A similar deficiency appears in the briefing portion for Jenkins' second point of error. A party's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Given these deficiencies, we could conclude Jenkins has inadequately briefed these issues. See, e.g., El Paso Natural Gas Co. v. Strayhorn, 208 S.W.3d 676, 681 n.7 (Tex. App.--Texarkana 2006, no pet.). However, in this case, insofar as we can fairly do so, we will address what we have discerned to be the main two issues raised in Jenkins' brief. To the extent that any additional issues have been raised, we overrule those issues as both multifarious, see In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.--Texarkana 2007, no pet.), and inadequately briefed, see Strayhorn, 208 S.W.3d at 681 n.7. Our leniency in substantively addressing any issues in this case should not be interpreted as future permission to submit briefs that raise multifarious points of error, because our law grants us discretion to summarily overrule the entirety of any multifarious or inadequately briefed points of error. See, e.g., Foster v. State, 101 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (three separate issues combined into single point of error ruled inadequately briefed and multifarious); H.B. Zachry Co. v. Ceco Steel Prods. Corp., 404 S.W.2d 113, 133 (Tex. Civ. App.--Eastland 1966, writ ref'd n.r.e.) (overruling four separate issues as duplicitous and multifarious). 6. Neither party raised at trial or on appeal whether a writing was required even if the mobile home was classified as personal property. See Tex. Bus. & Com. Code Ann. §Â 2.201 (Vernon 1994) (writing is required for a sale of goods for the price of $500.00 or more). 7. Additionally, we note the record is not clear whether the trial court characterized the mobile home as "personal" or as "real" property. But in finding Sims was the owner, the court labeled the properties at issues as both "real and personal property" under a single grouping, a characterization which appears in the trial court's findings. 8. We note that the possible application of Section 5.072(a) of the Texas Property Code (which prohibits oral contracts for sale of land) to the doctrine of promissory estoppel was not at issue in this case. See Tex. Prop. Code Ann. § 5.072(a) (Vernon 2004).

209 Cal.App.2d 647 (1962) SHELLEY R. COTHRAN, Individually and as Executor, etc., Plaintiff and Respondent, v. THE TOWN COUNCIL OF LOS GATOS, Defendant and Appellant. Civ. No. 19919. California Court of Appeals. First Dist., Div. One. Nov. 19, 1962. J. Rainey Hancock for Defendant and Appellant. Everett P. Rowe for Plaintiff and Respondent. SULLIVAN, J. This is an appeal by The Town Council of Los Gatos from a judgment granting respondent's petition for a writ of mandate and commanding appellant to terminate certain annexation proceedings initiated pursuant to the Annexation of Uninhabited Territory Act of 1939. (Gov. Code, 35300-35326.) [1] The basis of the above judgment was a finding that on June 6, 1960, the day such proceedings were initiated by appellant (see Gov. Code, 35310) there were 12 registered voters residing within the territory proposed to be annexed. Since under the applicable statute as it then read, "territory shall be deemed uninhabited if less than twelve registered voters reside within it at the time of ... the institution of proceedings on motion of the city legislative body" (Gov. Code, 35303; emphasis added), the court concluded that the territory in question was not uninhabited, that appellant in initiating the proceedings exceeded its jurisdiction and that the writ should issue to terminate them. [fn. 1] At the trial the parties stipulated and the court found that *651 eight specified persons were registered voters residing within the territory on June 6, 1960. In addition, the court found and concluded that Oliver F. Hitchcock and Marie Hitchcock, husband and wife, and Joseph A. Rogers and Linda L. Rogers, husband and wife, were also registered voters residing there on said date, thereby bringing the total number of such persons to 12. It is around the last four persons that the present controversy revolves and it is against the findings and conclusions pertaining to them, that appellant directs its attack. We therefore proceed to determine, separately as to each of the above married couples, whether the court's determination that they were registered voters residing within the territory on the crucial date is sustained by the evidence and the law. Oliver F. and Marie Hitchcock The Hitchcocks owned two contiguous parcels of land. One consisted of approximately 14 acres, abutting the boundary line of the territory proposed for annexation, but lying wholly outside of it. The other consisted of approximately 29 acres, also abutting the above boundary line, but lying wholly inside of it. The 14-acre parcel was in section 23 (T.8 S. R.1 W-M.D.B. & M.) and the 29-acre parcel in section 24. The section line, therefore, and the proposed annexation boundary line which followed it in this area, ran between the two parcels. The two parcels were acquired by the Hitchcocks at different times and by different deeds. They were assessed by the County of Santa Clara according to different code areas and the taxes levied thereon billed to the Hitchcocks by separate tax statements. The Hitchcocks reside at 15060 Kennedy Road. While both parcels abut this road on the north, the Hitchcock home is located on the smaller parcel and about 400 feet from and outside of the proposed boundary line. At the time they built this home, however, in 1955, the Hitchcocks had already acquired the full acreage of both parcels. Mr. Hitchcock testified that aside from the fact that "[t]here's an old broken-down fence between the properties" no longer in repair, there was no other "physical mark" indicating the line between the parcels and no "physical barrier such as a mountain ridge or a stream" dividing them. He further stated that he obtained his water supply from the larger parcel, that both parcels were tied together with power lines and pipe lines, that he lived on the entire 43 acres and that he considered the "whole unit" of both parcels as his *652 residence. Hitchcock, finding that the larger parcel had gone "back to nature pretty much" had started the work of clearing it and had installed an expensive culvert. He estimated expenditures on the 29-acre parcel in the year before the trial to be $1,000. There is evidence that he operated both parcels as a unit, that he considered the larger parcel "more like a front yard" and had in fact purchased it because of the attractiveness of its "wild and uncultivated state." He used the larger parcel "for recreational purposes," to "shoot pistols with the neighbors" and "to exercise my dog." The trial court found, so far as is pertinent here, that all of the property comprising the 43 acres of both parcels "is one unit and constitutes one 'home place' " and that the Hitchcocks "use the property as one entire place and live on it as one entire piece" and concluded that Mr. and Mrs. Hitchcock (along with the 10 other specified persons) were registered voters residing within the territory proposed for annexation. The learned trial judge filed an extensive memorandum opinion which has been included in the present record (Cal. Rules of Court, rule 5 (a)) [fn. *] and which we may consider for the purpose of understanding the foregoing findings and conclusions (Trans-Oceanic Oil Corp. v. City of Santa Barbara (1948) 85 Cal.App.2d 776, 790 [194 P.2d 148]) and the process by which the judgment was reached. (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 750-751 [47 P.2d 273].) Such opinion discloses that the trial court's determination that Mr. and Mrs. Hitchcock were residing within the area was reached by applying to the above facts the legal principles announced by Mr. Justice Wood for this court in People v. City of Richmond (1956) 141 Cal.App.2d 107 [296 P.2d 351]. After quoting from the above case, the trial judge stated: "In this instant case it will be recalled that there is no natural boundary following the annexation line, or vice versa, and the Court cannot help but conclude that the use of the property by the Hitchcocks, together with their own intention as expressed by the testimony of Mr. Hitchcock that they have always considered and used it as one single parcel of land and intend to so use it results in the inescapable conclusion that the whole parcel of property including the twenty-nine acres lying within the area to be annexed and the fourteen acres lying outside of the artificial line created by the Resolution and upon which the home is situated are inhabited *653 as a single unit by the Hitchcocks who are registered voters in the home and therefore are registered voters residing within the territory to be annexed as indicated in Section 35303 of the Government Code." (Original emphasis.) We conclude that the court's findings are supported by substantial evidence, that the rule of People v. City of Richmond was properly applicable and that the court's determination based thereon was correct. In People v. City of Richmond, supra, the boundary line transected a lot 100 feet wide by 500 feet deep so as to include the rear fourth portion thereof within the territory proposed for annexation. The dwelling house was located on the front of the lot and over 300 feet from the above boundary. This court held that the trial court's finding that the premises consisted of a single undivided parcel of land, all of which was used for residential purposes, was supported by substantial evidence and that as a consequence the registered voters resident thereon were to be counted as residing in the territory proposed for annexation. Mr. Justice Wood, speaking for the court, said: "To annex land is one thing; to strip it of its quality of being inhabited is quite another. [2] The state of being inhabited is an attribute, a characteristic, a quality every bit as real as the state of being owned, possessed or farmed. Bisecting a lot by means of an annexation boundary line does not extinguish any of these qualities of the land. Each of the resultant portions continues an integral part of the whole in respect to ownership, possession, occupancy, use and residency. The power to fix the course of the boundary line does not include the power to strip the land of any of these qualities nor the power to interfere with or to cut down any of the rights or privileges of the owner or of the occupier of the land." (141 Cal.App.2d at p. 111.) Observing, anent the trial court's finding, that "[t]his concept of 'inhabited' finds support in the case law which developed prior to the legislative definition of 'uninhabited' " in section 35303 and predecessor statutes, [fn. 2] this court quoted the following language, inter alia, from People v. City of *654 Lemoore (1918) 37 Cal.App. 79, 81 [174 P. 93] as "the judicially developed concept of 'inhabited' ": " 'The fact of occupancy is not limited, manifestly, to the space occupied by the building or buildings, but extends to every portion of the single tract of which that space is an undivided part. It may be difficult to formulate a description that can be applied with accuracy to every situation, [footnote omitted] but to say that any portion of a single and separate tract of land is uninhabited when people actually reside within the boundaries of that tract of land involves a contradiction in terms.' " (141 Cal.App.2d at pp. 112-113.) Finally in answer to the objection that the concept of residence applied by the trial court would have no limit, [fn. 3] Richmond declares: "The nature of the use of the various parts, if there be parts, of a ranch, an estate, or a town lot, would be a significant factor to consider. Is it residential in character or is it nonresidential, such as industrial, commercial or agricultural? If it is any of the latter, does it pervade the part so used in such a manner and to such an extent as to make it unreasonable to view it also as residential? Conceivably, a person might have a home orchard in his backyard or might conduct on the premises a small business of such a character and in such a manner that it would still be within reason to say that he nevertheless resides upon the entire lot. Then, too, in some cases the existence of a permanent barrier, natural or artificial, would enter into the picture for determination; e.g., a stream, a mountain ridge, a street, or a railroad. There well may be other factors, upon occasion, factors which presently do not occur to us." (141 Cal.App.2d at p. 115.) In City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385 [341 P.2d 318], the proposed annexation of uninhabited territory having been found to include 14 registered voters, the first boundaries were withdrawn and revised boundaries substituted "so as to exclude [footnote omitted] three houses inhabited by eight of the 14 registered voters. These excluded houses were located on land which was in each case part of a larger parcel belonging to the same owner, the remainder of which larger parcel was included within the so-called 'second proposed' " territory for annexation. Mr. *655 Justice Schauer held the attempted annexation void as an attempt "to exclude from such annexation the habitations of eight registered voters and thus to sever such habitations from the parcels of which they were an integral part" (52 Cal.2d at p. 391) stating: "Whether the territory included within the proposed annexation was inhabited is a question of fact which does not depend upon whether the houses of the registered voters in which they ate and slept were within the boundaries of the proposed annexation but upon whether such houses were an integral part of the whole parcel (including the portion thereof which fell within the boundaries of the proposed annexation) so as to render the whole parcel inhabited. (People v. City of Richmond (1956) 141 Cal.App.2d 107, 111-114 [296 P.2d 351].)" [3] The essence of the foregoing cases is that where all of the land in question can be reasonably said to be used in connection with the home located thereon as an integrated whole, all of it is inhabited. The determination of whether and to what extent the land possesses such an integrated and unitary character rests upon an overall consideration of the facts of the particular case bearing upon location, physical appearance, and use, and not on any precise formula, composed solely of units of land measurement expressed lineally or in quantity. An additional city lot, so designated on official records, lying adjacent to a home, may be an integral part of it as a garden; several acres in a rural area may be a part of a country estate for the additional recreational facilities or merely for the natural beauty which they add. These conditions are matters of common knowledge. The resultant place of residence is nonetheless indivisible although consisting of more than one lot, acre or other portion of land. Whether it is an indivisible residence is a question of fact. In the instant case, the trial court found upon substantial evidence that all of the Hitchcock property on both sides of the proposed boundary line was "one unit" or to state it another way in terms of Hueneme, supra, that the Hitchcock house was an integral part of the whole 43 acres including the portion thereof which fell within the boundaries of the proposed annexation. In the light of the supporting evidence and measured by our views expressed in Richmond, we cannot say that such finding represents an unreasonable extension of the concept of residence. [4] Appellant argues that the instant case is distinguishable from Richmond and Hueneme on two bases. First it *656 claims that in neither of the last two cases "was the court faced with the problem of a separate parcel" (emphasis added) of 29 acres within the territory proposed to be annexed and 14 acres outside of it. Such claim of "separateness" is gratuitous and against the evidence. In making it, appellant chooses to disregard the court's finding that the above parcels were, so far as the Hitchcock occupancy was concerned, not two separate parcels but one unit. Secondly, it claims that Richmond and Hueneme involved what appeared to be an intentional cutting of the land undertaken for the purpose of excluding registered voters (Hueneme, supra, 52 Cal.2d at pp. 390-391) or of circumventing the Annexation Act of 1913 (Gov. Code, 35100-35158; Richmond, supra, 141 Cal.App.2d at p. 119). There is nothing in either case which restricts the rule announced therein to situations involving an intentional exclusion of registered voters. The rule rests upon the character of the land involved and not the intention of the annexing municipality. We should also mention at this point appellant's argument that where several large parcels of land are accumulated within a certain area, it is not correct to say all are occupied as a residence, for it would thus be possible to extend a person's residence to another county, another state, or theoretically across the United States. As we have already pointed out, this "extension of residence" argument was answered by us in Richmond. (See Richmond, 141 Cal.App.2d 114-115, quoted supra.) We are not called upon here to pass upon, and hence express no views concerning a situation where a residence overlaps a county line. Finally appellant urges that in view of the addition of section 35008 to the Government Code in 1957 (Stats. 1957, ch. 1665, p. 3046, 1) there is no longer any necessity for the extension of the principle of law developed in the Richmond case. Section 35008, added to general provisions affecting annexation of territory ( 35000- 35012) but made applicable to the Act of 1939 here under consideration ( 35301), provides in substance that boundaries shall not be fixed without the owner's consent so as to exclude the site of his residence dwelling, and where so fixed in violation of the section, the owner may within one year of the completion of the proceedings file a statement of violation with the annexing municipality and have the property excluded. [fn. 4] On this statute appellant *657 constructs a bifurcated argument. The gist of the first part is that the Hitchcocks may eventually consent to the annexation of the 29 acres. To this the simple answer is that, on the record before us, they have not. The gist of the second part is that if they do not consent "and the 29-acre parcel is thereby excluded," they would have none of their property within the proposed territory. To this the equally simple answer is that the 29 acres have not been excluded but are attempted to be annexed. [5] While section 35008 may provide an additional remedy to such residents as the Hitchcocks, we find nothing in the statute which abrogates or restricts the right of other property owners in the territory proposed for annexation to compel termination of the proceedings on the grounds that there were not "less than twelve registered voters" within it. Appellant relies on City of Morgan Hill v. City of San Jose (1961) 192 Cal.App.2d 383 [13 Cal.Rptr. 441] dealing with the annexation of inhabited territory under the Annexation Act of 1913 (to which 35008 is also made applicable) and involving the splitting of certain properties by the proposed annexation. It was held that the City of Morgan Hill could not urge invalidity of the annexation based on noncompliance with section 35008 since the remedy afforded by the statute was resident in the affected property owners who had consented afterwards anyhow. The method of annexation was entirely different (see comparison made by Mr. Justice Tobriner in City of Campbell v. Mosk, supra, 197 Cal.App.2d 640, 643), no jurisdictional question was presented based on required number of registered voters, and no holding was made that section 35008 established an exclusive remedy. [6a] We are unimpressed with appellant's argument that *658 there was no finding that the Hitchcocks were registered voters "either within or without the territory proposed to be annexed." The court concluded that "there were twelve registered voters residing within" the territory proposed to be annexed and thereupon listed the Hitchcocks among "the names of said twelve registered voters." Although made as a conclusion of law, the above language insofar as it refers to "registered voters" would appear to be a finding of ultimate fact. [7] A finding may be considered as a valid and effectual finding of fact, even though it is included among stated conclusions of law. (Linberg v. Stanto (1931) 211 Cal. 771, 776 [297 P. 9, 75 A.L.R. 555]; Safeway Stores, Inc. v. Massachusetts Bonding & Ins. Co. (1962) 202 Cal.App.2d 99, 106 [20 Cal.Rptr. 820]; Petersen v. Cloverdale Egg Farms (1958) 161 Cal.App.2d 792, 797 [327 P.2d 127].) [6b] Mr. Hitchcock testified that both he and his wife were registered voters. An assistant registrar of voters of Santa Clara County testified that they were both registered in precinct 5783 of Santa Clara County. We therefore hold that the trial court applying the legal principles we have set out above properly counted Mr. and Mrs. Hitchcock as registered voters residing within the territory proposed for annexation. Joseph A. and Linda L. Rogers Joseph A. Rogers, Jr., and his wife, Linda L. Rogers, were the son and daughter-in-law of Joseph and Belle A. Rogers. The senior Rogers were stipulated by the parties, and found by the court, to be registered voters residing within the territory proposed for annexation. For convenience we will refer to the father as Rogers Sr. and to the son as Rogers Jr. [8a] Rogers Jr. was an officer in the United States Air Force, having entered the service in 1954, at the age of 19. At that time he was unmarried and living with his parents at their residence in San Jose. He was assigned to duty with the Strategic Air Command at Lincoln, Nebraska. Joseph Jr. and Linda were married in Omaha in August 1958. Shortly after the wedding they came to California and had a reception at the home of Rogers Sr. in San Jose. Although Rogers Sr. had just purchased the property located at 15201 Deer Park Road in the territory under annexation, he and his wife were still residing in San Jose. After a short visit, Rogers Jr. and his wife returned to Lincoln where they lived in a house owned by the grandfather of Linda Rogers. *659 Rogers Sr. moved to his new residence on Deer Park Road, Los Gatos on October 20, 1958. In August or September 1959, Rogers Jr. visited his parents and stayed with them at their new home for about two weeks. The record is unclear as to whether his wife accompanied him. At the time of the trial in August 1960 he was assigned to duty in Spain and his wife Linda was visiting the senior Rogers in Los Gatos. A primary election was held in California on June 7, 1960. It is important to note that this was one day after the critical date here involved when the appellant council instituted annexation proceedings by appropriate resolution. Joseph Rogers, Jr., and his wife Linda both voted in the above election by absentee ballot. Each of the above persons signed a separate "Post Card Application for Absentee Ballot" at Lincoln, Nebraska, on May 11, 1960. These applications were mailed on May 14, 1960, to the County Clerk of Santa Clara County at San Jose and were received by him on May 17, 1960. Joseph Jr.'s application stated inter alia that he was a member of the Armed Forces of the United States and that for the preceding 13 years his residence in California had been at 15201 Deer Park Road, Los Gatos. [fn. 5] Linda's application, made as a spouse of a member of the Armed Forces, showed the same place of residence for 2 years previous. In return they each received a separate "Affidavit of Registration" for Santa Clara County Precinct 5783, a War Voters Ballot and a War Voters Identification Envelope. The parties agree that the above precinct is the one in which the Deer Park Road home of Rogers Sr. was located. Joseph's affidavit was subscribed and sworn to on May 19, and Linda's affidavit on May 20. Each of the affiants stated therein that his or her residence was 15201 Deer Park Road. There is no dispute that Rogers Jr. and his wife returned the above affidavits of registration together with the above envelopes containing their ballots and that their votes were counted. The present controversy centers about when they mailed back the above documents and when they were received. An assistant registrar of voters of Santa Clara County testified that Joseph A. and Linda L. Rogers were registered voters in said county in June 1960, that their affidavits of registration were on file, and that their precinct was 5783. He *660 also testified that it was the practice of the registrar's office, in complying with pertinent provisions of the Elections Code [fn. 6] to accept registration affidavits and ballots from a war voter if the envelope transmitting them bore a postmark of a date on or before the day of election and the envelope was received within six days thereafter. If the above conditions of date were met, the envelope was not kept and the vote was counted. As a result, the envelope used by Joseph and Linda Rogers was not available to establish either the date they mailed it or the date it was received by the registrar of voters. It was therefore the testimony of the assistant registrar that the affidavits and ballots of Rogers Jr. and his wife were received at some time prior to six days after June 7, 1960, but that it could not be ascertained on what specific date they were actually received. The evidence showed that the names of Joseph A. Rogers, Jr., and Linda Rogers, his wife, did not appear on the printed precinct list for precinct 5783 which was distributed by the registrar on May 27, 1960, but that both names were added in longhand to the list maintained in the registrar's office at some time after the election. The trial court found that when Rogers Jr. entered the military service "he did so with the intention of retaining the residence of his father and mother ... as his place of residence"; that when he attained the age of 21 he "did form no change of intention"; that his residence after marriage in the home of his wife's grandfather in Lincoln was one "of a purely temporary nature"; that the residence of Rogers Jr. was that of his wife; that both Rogers Jr. and his wife "had registered as voters and were registered voters within the area to be annexed, to wit: At 15201 Deer Park Road, on June 6, 1960; ..." The opinion of the trial judge, already referred to, discloses that at the basis of the above findings was the court's determination that the affidavits of registration executed by both *661 of the above parties had been received by the registrar of voters before the critical date of June 6, 1960, when annexation proceedings were instituted. In reaching this conclusion, the court noted that it had taken three days for the post card applications for absentee ballots to reach San Jose from Lincoln, from which the court inferred that "the normal traveling of mail time" between such places was three days, stating: "From this, the Court infers and finds that the Affidavits of Registrations signed on May 19th and 20th, 1960 were mailed on or about May 20th, 1960 to the registrar of voters at San Jose from Lincoln, Nebraska and that they were received by that office on or about May 23rd, or possibly May 24th, 1960." Appellant attacks the above findings by claiming in effect that the foregoing evidence establishes as a matter of law that Rogers Jr. and his wife (1) did not reside within the territory, (2) were not electors in the precinct and (3) were not registered on or before June 6, 1960. [9] Section 35303 of the Government Code upon which this controversy is centered provides that the territory proposed for annexation shall be deemed uninhabited "if less than twelve registered voters reside within it" (emphasis added) on the crucial date. Appellant attempts to splinter off the concept of residence implicit in the above italicized language and to engraft on the statute a new and different one. The residence prescribed by section 35303, appellant argues, means actual residence ("actually living and dwelling") within the territory, not legal residence or domicile which governs registration and voting. The argument has no merit. It is clear to us that the word "reside" in its above context means the residence requisite for the registration of voters. As this court declared in Perham v. City of Los Altos (1961) 190 Cal.App.2d 808 [12 Cal.Rptr. 382], in the course of construing section 35303: "The obvious purpose of this reference to the voter registration records is to furnish a convenient and ready means of ascertaining the number of legal residents of the territory. Registration is based upon the affidavit of the voter (Elec. Code, 120) which must show the affiant's 'place of residence and post- office address with sufficient particularity to identify it and to determine affiant's voting precinct' ( 220, subd. (c); see also 230, subd. 3). The rules for determining 'residence' for the purpose of registration and voting show that it means legal residence or domicile. ( 5650-5661, especially 5652.)" (P. 809; emphasis added.) *662 Former section 5652 (now 14282) of the Elections Code, [fn. 7] as in effect on June 6, 1960, provided: "That place is the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning." Former section 5653 (now 14283) of the Elections Code provided in relevant part: "A person does not gain or lose residence solely by reason of his presence or absence from a place while employed in the service of the United States, ...." Former section 5654 (now 14284) of the Elections Code provided in relevant part: "A person does not lose his residence who leaves his home to go into another State ... for temporary purposes merely, with the intention of returning." [8b] Applying the above statutes, it is clear that the evidence summarized by us above, together with the reasonable inferences therefrom, support the trial court's findings that Joseph A. Rogers, Jr. intended to and did maintain the home of his parents as his permanent residence during the period of time here involved, that his residence was not lost by his military service or by the moving of his parents' home from one precinct to another during such service, and that his residence in the house of his wife's grandfather in Lincoln was purely temporary. Such permanent residence became also the residence of Linda Rogers upon her marriage to Rogers Jr. since "[t]he residence of the husband is the residence of the wife" (former Elec. Code, 5660 [now 14290]) except in certain circumstances not here applicable. Appellant concedes that Rogers Jr. did not lose his residence when he enlisted in the Air Force (former Elec. Code, 5653), but maintains that upon his becoming 21 years of age he could have acquired a residence of his own either in Nebraska or by retaining his San Jose residence. The trial court, as we have pointed out, found on substantial evidence that Rogers chose the latter course. Appellant then argues that although Rogers Jr. might have thus retained his parents' home in San Jose as his permanent residence, such residence was not changed to Los Gatos when Rogers Sr. moved there. However we think that the above findings, supported by the evidence, are embracive of this circumstance. After Rogers Sr. moved to the Deer Park Road dwelling in October 1958, *663 Rogers Jr., still in military service, made no attempt to establish a permanent residence elsewhere. He and his wife continued their temporary residence in her grandfather's house. In the next year, 1959, he visited his father's Los Gatos home in much the same way he had visited the San Jose home in the preceding year. In 1960 he registered to vote giving the Deer Park Road address as his residence in both his application for an absentee ballot and in his affidavit of registration. [10] Voting registration is "[o]ne of the important acts to be considered" in determining residence (Ballf v. Public Welfare Dept. (1957) 151 Cal.App.2d 784, 788 [312 P.2d 360]). [8c] From the above and other evidence which we have summarized, viewed in the light of the provisions of section 5653 of the Elections Code, supra, that a person does not lose residence by reason of his absence while employed in the service of the United States, the trial court could properly infer that Rogers Jr. intended that his permanent residence should remain at the home of his father after the latter moved to Los Gatos. This, we think, was a reasonable inference. The alternate suggested by appellant, namely, that absent any proof of domicile in Nebraska, Rogers Jr. "retained the San Jose Precinct as his residence" even though the father had moved and the son had no fixed place of residence there, would lead to an absurdity. We turn to appellant's second point of attack. It urges that "Rogers, Jr. did not qualify as an elector, because he had not been a resident 'in the election precinct (Los Gatos) fifty-four (54) days next preceding the election,' as required by California Constitution Article II, Section 1." This argument has no merit. The affidavit of registration of Rogers Jr., introduced into evidence by appellant, contained the following statement: "I will be at least twenty-one years of age at the time of the next succeeding election, a citizen of the United States ninety days prior thereto, and a resident of the State one year, of the County ninety days, and of the Precinct fifty-four days next preceding such election, and will be an elector of this County at the next succeeding election." Furthermore, as we have pointed out, the trial court found on substantial evidence that Rogers Jr. was a resident within the territory in question from the time his father moved there in October 1958. Cases cited by appellant dealing with the illegality of votes cast by nonresidents are not here pertinent. The evidence shows that the votes cast by Rogers Jr. *664 and his wife in the primary election held on June 7, 1960, were counted and were never declared illegal. We conclude, therefore, that the trial court properly determined upon substantial evidence that Rogers Jr. and his wife were registered voters residing within the territory in question. But the crucial question raised by appellant's third objection remains: Were they registered voters on June 6, 1960? As we have set forth in detail above, the trial court answered this question in the affirmative by inferring that the affidavits of registration were mailed in Lincoln on or about May 20, 1960, from the fact that they were signed on May 19 and 20, and by further inferring that they were received by the Santa Clara County Registrar on or about May 23, or May 24, 1960, from the fact that incidents pertaining to the mailing and receipt of the previous applications disclosed the normal mail time to be three days. On this reasoning the court concluded that the Rogers became registered voters no later than May 24, 1960, and were therefore to be counted as such on June 6, 1960. [11] A legal inference can be drawn only from the facts proved. It must be reasonably and logically drawn and it may not be based only on imagination, speculation, supposition, surmise, conjecture or guess work. (Code Civ. Proc., 1958, 1960; Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590, 602 [315 P.2d 19]; Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655 [5 Cal.Rptr. 657]; 18 Cal.Jur.2d, Evidence, 60, pp. 479-481; Witkin, Cal. Evidence, 121, p. 145.) We find in the record no fact established from which the trial court could have inferred that the affidavits of registration were mailed by Rogers Jr. and his wife from Lincoln "on or about" May 20, 1960. It cannot be logically concluded that these documents were mailed on the day of their date. The only evidence in the record is that they were received by the registrar of voters in San Jose at some time prior to June 13, 1960, and that at the time of their receipt they bore a postmark showing mailing on or before June 7, 1960, the date of the election. On oral argument, counsel for respondent with commendable candor conceded that the court's determination that the affidavits were received "on or about May 23rd, or possibly May 24th, 1960" was without any support in the record. If the court's conclusion that the Rogers were registered voters in the area on the critical date is to be upheld, it must therefore be on another basis. It has been established by uncontradicted evidence that *665 Rogers Jr. and his wife registered and voted as absentee war voters. (Elec. Code, former 48, 132.6, 220, 230. [fn. 8]) The provisions quoted below make it clear that under the applicable sections of the Elections Code then in effect, an absentee war voter received his ballot and affidavit of registration at the same time, and "on or before the day of election" executed the affidavit and returned it to the county clerk with his ballot enclosed in an identification envelope. Thus, in such cases, the clerk and the registrar of voters received the affidavit of registration and the ballot at the same time. Former section 132.6 then continues in its third paragraph: "Upon receipt thereof within the time required by law for the return of the absent voter's ballots, the clerk shall examine the affidavit of registration and if it appears therefrom that the affidavit of registration is properly executed and that the facts stated therein are such as would have entitled the applicant to register and vote at the election, if the affidavit had been executed in this State and within the time required by law, then the affiant shall be deemed a duly registered elector as of the date of the affidavit to the same extent and with the same effect as though he had registered in proper time prior to the election before the clerk." (Emphasis added.) Former section 5932 of the Elections Code which we have already set forth (see footnote 6) prescribed that absent voter's ballots had to be received by the clerk "within six days after the date of the election. ..." [12] It has been established by uncontradicted evidence *666 in the instant case that the affidavits of registration executed by Rogers Jr. and his wife were received by the county clerk of Santa Clara County within such permissible period, although the precise date of receipt is not ascertainable and that the ballots of these parties were counted. Such being the case, by virtue of the third paragraph of section 132.6, Rogers Jr. was to be deemed a "duly registered elector" as of May 19 and his wife such as of May 20, 1960. Appellant urges upon us a number of reasons why section 132.6 should not be so applied. Before we take these up, we make one preliminary observation. Former section 132.6 of the Elections Code states that upon the proper and timely return of the absent war voter's affidavit of registration, he shall be deemed a duly registered elector, while section 35303 of the Government Code prescribes the test of uninhabited territory on less than 12 registered voters. As we said in Perham v. City of Los Altos, supra, 190 Cal.App.2d 808, 810, there is no substantial difference in the use of such terms when considered in connection with ascertaining residence of registered voters. As defined by former and present section 21 of the Elections Code " '[v]oter' means any elector who is registered under the provisions of this code." The employment of the two terms "elector" and "voter" is not a factor in the problem. Appellant takes the position that (1) "registered voters" as used in section 35303 of the Government Code does not include "registered war voters" and (2) even if it does, the term "registered voters" should only include those persons whose affidavits of registration are actually in the possession of the registrar of voters and on the official precinct list available for inspection in connection with annexation proceedings. We think that appellant confuses the issue before us which is a question of residence and registration (Perham, supra, 190 Cal.App.2d at p. 809) by coupling with it the question of voting. Admittedly, the latter question easily obtrudes upon the former in the instant case, since the primary election for which the Rogers registered, occurred one day after the critical date for determining whether there were less than 12 registered voters in the area. Be that as it may, we are not concerned with the question of voting. We refer to Perham, supra. In that case, similar proceedings under the Act of 1939 here involved were declared void because on the day when the petition for annexation was filed, there were 14 registered voters within the territory proposed *667 for annexation. It was claimed on appeal that 8 of the 14 had registered less than 54 days before the crucial date, leaving only 6 who could be considered "registered voters." This court affirmed the judgment, holding that the 8 registered residents should be counted, even though they might have been ineligible to vote if an election had been held on the crucial day for counting under Government Code section 35303. We said: "It is a question of residence and registration, not a question of voting, on that day." (P. 809.) Perham becomes a guidepost in the instant case where an election was held, not on the crucial day, but the day after. Despite its proximity in time, we are still concerned only with registration and not with other circumstances pertaining to voting. [fn. 9] As we have pointed out, the resident registered voters contemplated by section 35303 of the Government Code are those determined to be such according to the provisions of the Elections Code. (Perham v. City of Los Altos, supra, 190 Cal.App.2d 808.) We fail to find, nor has appellant referred us to, any provisions of the Elections Code creating different categories of registered voters. All voters must be registered according to the Elections Code (former 21, 70) by affidavit of registration (former 120) according to a specified content and form (former 220, 230). The manner of effectuating the act of registration may vary, as for example in the case of absentee registration (former 132) or absentee war voter registration (former 132.6), but the result is uniform. All, whether making the affidavit in person before the county clerk or returning it by mail, become registered voters. We can therefore find no reason for the conclusion that an absentee war voter who registers according to the applicable statute (former 132.6) becomes a member of any different or separate class of registered voters. It is significant that the statute *668 which provides for this procedure of registration did not so state. On the contrary, it specifically stated that such a person became a duly registered elector "to the same extent and with the same effect as though he had registered in proper time prior to the election before the clerk" (former 132.6; emphasis added). [13] We hold therefore that a war voter (former 48) who registers according to law is a "registered voter" within the purview of section 35303 of the Government Code. [14] Appellant urges the sequential point that such a registered voter should not be counted unless his affidavit of registration has been processed as provided by former section 331 (now 422) of the Elections Code. [fn. 10] It is appellant's position that it is the bound and indexed book of affidavits of registration, compiled pursuant to such section, which constitutes the voter registration records and that only the names therein contained were the registered voters residing in the proposed territory on the crucial day. We disagree. Former section 120 (now 200) of the Elections Code provides: "No person shall be registered as a voter except by affidavit of registration. The affidavit shall be made before the county clerk and shall set forth all of the facts required to be shown by this chapter." Former section 121 (now 202) provides that the county clerk "may take the affidavit of registration in any adjoining county." Former section 123 (now 204) states that the county election board may provide "for the registration of electors" in precincts and "at specified times and places" other than the office of the county clerk. Former section 125 (now 205) provides that "[a]ny registration which may be made at the main office for registration in any city and county may be made and taken in any place in the city and county in the manner provided by rules and regulations made by the election board." We are persuaded that, in the light of the foregoing sections, registration is effected when the requisite affidavit is "made" by the voter and "taken" by the county clerk or other authorized person. The elector then becomes a "registered voter." [15] Appellant's insistence that the bound precinct registration *669 books constitute the sole list of registered voters is grounded on the erroneous premise that in the instant problem we are concerned with the question of voting. Former section 331 is coordinated with former section 122 to control the closing of registration and listing of voters for a particular election. Former section 122 (now 203) provides that "[r]egistration of electors shall be in progress at all times except during the 53 days immediately preceding any election, when registration shall cease for that election ..." (emphasis added). It in effect closes, not all registration, but registration for a particular election. As we said in Perham v. City of Los Altos, supra, 190 Cal.App.2d 808, 810, "[t]hat, obviously, is a limitation imposed to facilitate the orderly and accurate preparation of voting lists for use at any election" (emphasis added). Former section 331 then comes into play prescribing that within 15 days of such closing of registration, precinct registration books shall be prepared. All of the foregoing has to do with the question of voting. The act of registration was completed when the affidavit of the voter was properly made and taken. It did not depend upon its being incorporated in the precinct register, so far as registration is concerned. Thus, persons may be registered voters although ineligible to vote at the next election (cf. Perham, supra) or because under other registration procedures it was not contemplated that their affidavits of registration be subject to the compilation requirements of section 331. Former section 132.6 provides in substance for the filing of an absentee war voter's affidavit of registration by transmission to the clerk on or before the date of election with receipt thereof permissible within six days thereafter (former Elec. Code, 132.6, 5932). Quite obviously, such affidavits might be legally "made" and "taken" long after the time prescribed for the compilation of precinct registration books. [16] We must recognize that, if the "registered voters" residing in the territory proposed for annexation are not confined to those names contained in the precinct registration book, some difficulty will ensue in ascertaining the number of registered voters. Nevertheless we feel the proper question is who are the registered voters, not who are the registered voters qualified to vote at any election. Appellant maintains that the recognition of absentee war voter's registration and the retroactive effect of it pursuant to section 132.6 should not be permitted to void the instant annexation proceedings. This may be an unfortunate result but nevertheless, the law, as we view *670 it, permits it. We revert to Perham. It is a question after all of residence and registration. Section 35303 of the Government Code ordains that we count all registered voters residing in the territory on the crucial date. Former section 132.6 permits absentee war voter registration and ordains its retroactive effect "as of the date of the affidavit" of registration. This section, too, controls the counting of registered voters. We hold therefore that for the foregoing reasons Mr. and Mrs. Joseph A. Rogers, Jr., were also properly counted as registered voters residing within the territory proposed to be annexed. With Mr. and Mrs. Hitchcock, this brought the total number to 12 and justified the trial court's conclusion that appellant had exceeded its jurisdiction. The judgment is affirmed. Bray, P. J., and Molinari, J., concurred. Former section 5932, also dealing with absent voting, provided as follows: "All ballots cast under the provisions of this chapter shall, in order that they may be counted, be received by the clerk from whom they were received within six days after the date of the election in which they are to be counted." (New 14667 changes the above time to "not less than three days before the date of election. ...") "(a) Member of the armed forces of the United States or any auxiliary branch thereof." "* * *" "(f) Spouses and dependents of the persons enumerated herein. ..." Former section 132.6 provided, in its first two paragraphs, as follows: "Whenever any person not a registered elector, or any person who has changed his residence since last registering, who qualifies under the provisions of Section 48 shall apply in writing or in person to the clerk for an absent voter's ballot and the application shows that he is a war voter, and that his place of residence is in the county, the clerk shall mail to the applicant with the absent voter's ballot, or deliver to him, blank forms of registration affidavit as prescribed in Article 3 of this chapter to be executed in duplicate by the applicant." "If the applicant desires to vote at the election he shall, on or before the day of the election and before marking the absent voter's ballot, execute the affidavit of registration under the provisions of Section 120, 132, or 132.5 ... and return the same, in the return envelope but not in the identification envelope, together with the absent voter's ballot enclosed in the identification envelope, to the clerk from whom the same were received." (Emphasis added.) NOTES [fn. 1] 1. Mandamus is a proper remedy to compel termination of proceedings under the Annexation of Uninhabited Territory Act of 1939 prior to the time when quo warranto becomes available. (County of San Mateo v. City Council, Palo Alto (1959) 168 Cal.App.2d 220, 221 [335 P.2d 1013]; American Distilling Co. v. City Council, Sausalito (1950) 34 Cal.2d 660, 666-667 [212 P.2d 704, 18 A.L.R.2d 1247]; City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 645 [17 Cal.Rptr. 584].) [fn. *] *. Formerly Rules on Appeal, rule 5(a). [fn. 2] 2. Richmond thereupon notes that the Supreme Court in People v. Town of Ontario (1906) 148 Cal. 625, 641 [84 P. 205], sustained a trial court finding that certain territory " 'taken as a whole, may fairly be said to be inhabited' " notwithstanding " 'the presence of several uninhabited tracts or parcels, each exceeding five acres in area,' " Ontario being thereafter followed and applied in Rogers v. Board of Directors of Pasadena (1933) 218 Cal. 221, 223 [22 P.2d 509] and in People v. City of Whittier (1933) 133 Cal.App. 316, 320-321 [24 P.2d 219]. [fn. 3] 3. The argument proceeded as follows: "... that, logically extended, it would apply to a holding of 1,000 acres or more if the occupant is a registered voter and has a dwelling house in one corner of it." (141 Cal.App.2d at p. 115.) Appellant herein makes a similar contention. [fn. 4] 4. Section 35008 provides: "The boundaries of territory proposed to be annexed shall not be fixed without the consent of the owner of the property so as to exclude the site of the residence dwelling of the owner of the property and to include the remainder of the property of such owner, where the site of the residence dwelling is contiguous or adjacent to the remainder of the property. If in any annexation proceedings boundary lines are fixed in violation of this section, the affected property owner may at any time before one year after the completion of the proceedings file a statement of the violation of this section with the clerk of the legislative body of the city annexing, or proposing to annex, such property and at its next meeting the legislative body shall by resolution exclude such property from the territory annexed. If the annexation proceedings have been completed, the legislative body shall transmit a certified copy of such resolution, describing the boundaries of the annexed territory, as changed, with the Secretary of State, who shall file it and transmit a certificate of the filing to the clerk of the legislative body and to the board of supervisors of the county in which the city is situated. [fn. 5] 5. The exhibit brought before us shows that Rogers, after stating the length of residence, first wrote and then deleted the street address of his former San Jose home. Linda did the same thing. [fn. 6] 6. Former section 5931 of the Elections Code provided in part as follows: "At any time on or before the date of an election, an absent voter, regardless of whether he is within or without the territorial limits of the United States, may mark his ballot and transmit it, on or before the day of election, to the clerk by mail. ..." [fn. 7] 7. Since the present Elections Code of 1961, in effect September 15, 1961, represents extensive amendments and changes in the former Elections Code, we will refer to the pertinent sections as in effect on June 6, 1960, by the numbers used in the former (1939) Elections Code. [fn. 8] 8. Former section 48 provided: " 'War voter' refers to an elector who comes within one of the following categories: [fn. 9] 9. Perham v. City of Los Altos, supra, was decided on April 5, 1961. Shortly thereafter 35303 was amended by Stats. 1961, ch. 1988, p. 4183, 15 approved by the Governor July 19, 1961, and effective September 15, 1961, to give a new definition of uninhabited territory. Section 35303, as thus amended, now provides: "For purposes of this article territory shall be deemed uninhabited if less than 12 persons who have been registered to vote within the territory for at least 54 days reside within the territory at the time of the filing of the petition for annexation or the institution of proceedings on motion of the city legislative body." (Emphasis added.) We are not called hereupon to determine the effect of such amendment on the registration of absentee war voters covered by 250-254 of the 1961 Elections Code, which represent a reenactment of former 132.6 of the 1939 Code without substantial change. It is to be noted that the retroactive effect of such registration is still provided for in new 252 in language identical to that used in former 132.6. [fn. 10] 10. Former 331 provided: "Within fifteen days after the last day of registration for any election the county clerk shall arrange the original affidavits of registration for each precinct in which the election is to be held, alphabetically by surnames in each precinct, and bind them into books with an alphabetical index. Each book shall be marked on the outside with the name or number of a precinct, and shall contain all, and only, the original affidavits of registration of the voters residing within the precinct."

770 F.2d 1072 Lameyv.Heckler 84-3706 United States Court of Appeals,Third Circuit. 5/6/85 1 W.D.Pa. AFFIRMED

103 F.2d 765 (1939) NEIRBO CO. et al. v. BETHLEHEM SHIPBUILDING CORPORATION, Limited, et al. No. 309. Circuit Court of Appeals, Second Circuit. April 10, 1939. Robert P. Weil, of New York City (Laurence A. Tanzer, of New York City, of counsel), for appellants. William Dwight Whitney, of New York City (Cravath, deGersdorff, Swaine & Wood, and Robert D. Blasier, all of New York City, of counsel), for appellee. Before L. HAND and CLARK, Circuit Judges. CLARK, Circuit Judge. This appeal assigns error in the action of the District Court in granting the motion of Bethlehem Shipbuilding Corporation, *766 Ltd., to quash service of process upon it and in dismissing the action as to it on the ground that it was not a resident of the Southern District of New York within the requirements of the federal venue statute, Jud.Code § 51, 28 U.S.C.A. § 112. Appellants, plaintiffs below, ground their appeal on two claims: first, that appellee, the Bethlehem corporation, is a resident of the District, notwithstanding its incorporation in the State of Delaware, because of the location of its chief business and executive offices within the District and its designation of an agent to accept process there, in compliance with the conditions under which a foreign corporation is legally permitted to do business within the State of New York, and second, that such designation of an agent to accept process in connection with appellee's qualification to do business in New York is a waiver of the venue defense. In the light of the statutory language and of the well settled rule that lack of venue is a personal privilege which a defendant can waive, a reversal of the order of dismissal would become necessary if either the claim of residence in the district or that of waiver could be sustained. But whatever objections of policy may be urged against it, we feel the law to the contrary is too well established to be now overturned. The action was originally brought by the appellants, who are citizens and residents of New Jersey, against United Shipyards, Inc., a New York corporation of which they are stockholders, to restrain the carrying out by the latter of a contract for the sale of drydocks in the waters of New York Harbor and other property to Bethlehem Shipbuilding Corporation, Ltd. The court refused to stay the sale, but added certain other persons as parties on the plaintiffs' motion. Then the plaintiffs filed an amended and supplemental bill alleging the consummation of the sale and praying relief in respect thereof. In this bill they asked that the Bethlehem corporation be added, and they described it as "a corporation organized and existing under the laws of the State of Delaware, and * * * a citizen and resident of the State of Delaware." The court ordered that Bethlehem be added as a defendant. Upon being served with process, Bethlehem appeared specially and moved to quash the service and the Marshal's return thereof. The appeal is taken from the order granting Bethlehem's motion and dismissing the action as to it. The material provisions of Jud.Code § 51, 28 U.S.C.A. § 112, applicable to this action are as follows: "* * * no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Since jurisdiction of the present action is founded on the diversity of citizenship of the parties, the latter part of this statute applies. It is settled, however, that except for the limitation of suit to a single district — that whereof the defendant is an inhabitant — in suits other than those based on diversity of citizenship, the requirements of the two parts of the statute are identical, and precedents as to one part are equally authoritative as to the other. In re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402. The defense of lack of venue was open to this defendant, notwithstanding the presence in the action of other defendants properly sued in the district. Camp v. Gress, 250 U. S. 308, 39 S.Ct. 478, 63 L.Ed. 997; McLean v. State of Mississippi, 5 Cir., 96 F. 2d 741, 119 A.L.R. 670, certiorari denied 59 S.Ct. 84, 83 L.Ed. ___. We shall consider successively the two claims of error urged by appellants. First. Suits by and between corporations as citizens of different states have always presented troublesome problems of jurisdiction to the federal courts. For half a century after the passage of the first judiciary act, a corporation was allowed to sue or be sued in the circuit courts only when all its members were citizens of the state which created it. Bank of United States v. Deveaux, 5 Cranch 61, 3 L.Ed. 38. But in 1844, it was held in Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L.Ed. 353, that for the purposes of determining federal jurisdiction a corporation was to be deemed a person or an inhabitant, and thus a citizen, of the state in which it was incorporated. Although this conclusion has been assailed as unreal, it has been consistently followed ever since, and attempts at legislative *767 change, even when made under distinguished sponsorship, have proven unsuccessful.[1] Hence on all questions of jurisdiction involving diversity of citizenship, this appellee is conclusively determined to be a citizen of the State of Delaware by reason of its incorporation there. It was perhaps not logically necessary that a like conclusion should be reached as to the residence of a corporation under the requirements as to venue; but such a conclusion was a natural one, in the light of the language of the Letson case and the policy involved. And it was the meaning ascribed to the residence requirement in Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853, decided in 1877. Yet the question was not then important, for the venue statute, from the time of the original judiciary act, had provided that a defendant might be sued in a district in which he should be "found" at the time of serving the writ. Act of Sept. 24, 1789, c. 20, § 11, 1 Stat. 79; Act of Mar. 3, 1875, c. 137, 18 Stat. 470. Hence the court held that a corporation doing business within the state was to be found within it for the purposes of venue. Ex parte Schollenberger, supra. This part of the statute was, however, eliminated in 1887. Act of Mar. 3, 1887, c. 373, § 1, 24 Stat. 552, as corrected by the Act of Aug. 13, 1888, c. 866, § 1, 25 Stat. 433. From that time the statute has required residence in (or being an inhabitant of) the district to support the action. Jud.Code § 51, 28 U.S.C.A. § 112, supra. After the change in the statute it has been held uniformly by the Supreme Court and generally by the lower federal courts that residence is limited to the state of incorporation of the corporation and is not satisfied by the doing of business within the state. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942; In re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402; Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300; Seaboard Rice Milling Co. v. Chicago, R. I. & P. Ry. Co., 270 U.S. 363, 46 S.Ct. 247, 70 L.Ed. 633; Yanuszauckas v. Mallory S. S. Co., 2 Cir., 232 F. 132; McLean v. State of Mississippi, 5 Cir., 96 F. 2d 741, 119 A.L.R. 670, certiorari denied, 59 S.Ct. 84, 83 L.Ed. ___; Central West Public Service Co. v. Craig, 8 Cir., 70 F. 2d 427; De Dood v. Pullman Co., 2 Cir., 57 F.2d 171, affirming D.C.E.D.N.Y., 53 F.2d 95. Among the several decisions of district courts to the same effect may be cited that of A. N. Hand, D.J., in Beech-Nut Packing Co. v. P. Lorillard Co., D.C.S.D.N.Y., 287 F. 271, in 1921, relied on by the court below in the present case. The only exception in recent years to this uniform current of decision seems to be Dodge Mfg. Co. v. Patten, 7 Cir., 60 F.2d 676, affirming D.C.Ind., 23 F.2d 852, which was based upon the decision of Mr. Justice Harlan on circuit in U. S. v. Southern Pacific R. Co., C.C.N.D.Cal., 49 F. 297. The court, however, failed to note the later contrary decisions of the Supreme Court, in several of which Mr. Justice Harlan dissented. Cf. Shaw v. Quincy Mining Co. and Macon Grocery Co. v. Atlantic Coast Line R. Co., supra.[2] Appellants, however, criticize the policy followed in these cases as applied to the modern private corporation doing business in many different places and suggest ingenious distinctions to lessen their force as precedents. But so far as the policy is concerned, Congress has shown itself as yet distinctly uninterested in a change in *768 the direction urged by appellants. Indeed, so long as the citizenship of a corporation for jurisdictional purposes is determined by the state of its incorporation, there would seem no good reason for a different view of the venue requirements. The limitation on suits against a corporation implicit in the rule as to jurisdiction would be of comparatively little effect if all plaintiffs who lived outside the state of incorporation could sue the corporation at will wherever it carried on business. The suggested grounds for distinguishing the cases find no support in the precedents themselves or in the reasons behind them. Thus it is asserted that in no one of the decisions of the Supreme Court was there involved a corporation which not only does business and has its headquarters within the state, but also maintains there a designated office and agent to accept process. The cases discussed below in connection with appellants' second claim show that this combination of circumstances is not enough to show even waiver of the venue defense, and therefore certainly not residence in the district. Moreover, the reasons for, and historical development of, the rule show that the claimed distinction would be simply a direct repudiation of the rule itself. See especially Shaw v. Quincy Mining Co. and In re Keasbey & Mattison Co., supra. The latter case demonstrates, too, that no sound distinction is possible based on the fact that some of the cases, such as those for patent or copyright infringement, can be brought only in the federal courts, while actions such as the present one can be brought in either the state or the federal courts. Indeed, the stricter rule might be justified, if at all, in cases such as the present where a more extensive choice of forum is possible. But no such distinction appears in the statute or is suggested by the cases. Some support is claimed from decisions of the New York courts that a foreign corporation having qualified to do business within the state is present within the state, so as not to prevent the running of the statute of limitations in its favor. Cf. Comey v. United Surety Co., 217 N.Y. 268, 273, 274, 111 N.E. 832, Ann.Cas.1917E, 424. Such a result is reasonable, since the corporation is continuously subject to suit in the state court. It is not useful in determining the entirely different problems of federal jurisdiction. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, does not make such cases binding authorities on the present issue; whatever else that case may do, it certainly does not throw the determination of federal jurisdiction into the state courts. Second. Appellants' other claim is based upon the facts, admitted on the record, that appellee qualified to do business within the State of New York in 1918 and, as required by the law then in force, designated an agent to accept process.[3] Such agent, who is located in the Southern District of New York, is still acting under such designation. But the question whether such designation constitutes a waiver of the venue defense seems also well settled, contrary to the appellants' contention. In the case of Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942, decided in 1892, there is a clear statement of the court that the supposed agreement of the corporation went no further than a stipulation that process might be served upon its officers or agents, and that, while this might subject the corporation after proper service to the jurisdiction of a federal court, so long as the federal statutes allowed it to be sued in the district in which it was found, such an agreement could not, since Congress had made citizenship of the state, with residence in the district, the sole test of jurisdiction in this class of cases, "estop the corporation to set up non-compliance with that test" when sued in a federal court. The appellants attempt to distinguish this case on several grounds going to show that this statement was dictum only, unnecessary to the decision. It was, however, a direct statement on the point in question and has been accepted as authoritative. It is true that in the Denton case the Texas statute authorizing qualification of a foreign corporation to do business in the state was held unconstitutional, since it required as a condition of such qualification that the corporation relinquish its right of removal of cases to the federal courts. But the holding that there was no *769 waiver was made an alternative ground of decision. It is also claimed that the act had already been repealed, and that the Texas records do not disclose any actual designation of the defendant corporation. But the facts stated by the court show that the repeal came after the action was brought, and the decision was rendered on the basis, admitted on the record, that the corporation had complied with the statute. Cases following and applying the Denton case include McLean v. State of Mississippi, 5 Cir., 96 F.2d 741, 119 A.L. R. 670, certiorari denied 59 S.Ct. 84, 83 L. Ed. ___, Heine Chimney Co. v. Rust Engineering Co., 7 Cir., 12 F.2d 596, and numerous district court decisions. Beech-Nut Packing Co. v. P. Lorillard Co., supra; Gray v. Reliance Life Ins. Co., D.C. W.D.La., 24 F.Supp. 144; Standard Stoker Co. v. Lower, D.C.Md., 46 F.2d 678; Thomas Kerfoot & Co. v. United Drug Co., D.C.Del., 38 F.2d 671; Jones v. Consolidated Wagon & Machine Co., D.C.S.D. Idaho, 31 F.2d 383, appeal dismissed 280 U.S. 519, 50 S.Ct. 65, 74 L.Ed. 589; Hagstoz v. Mutual Life Ins. Co. of New York, C.C.E.D.Pa., 179 F. 569; Platt v. Massachusetts Real-Estate Co., C.C.Mass., 103 F. 705. The decision by the Fifth Circuit Court of Appeals in McLean v. State of Mississippi, supra, contains a careful analysis of the authorities and considers and disposes of the various objections offered against the ruling in the Denton case. Application for writ of certiorari in the McLean case was denied by the Supreme Court on October 10, 1938, after the decision below in the pending action. 59 S.Ct. 84, 83 L.Ed ___. Decisions and opinions to the contrary seem to be limited to the ruling of the district court, found in D.C.Ind., 23 F.2d 852 the case of Patten v. Dodge Mfg. Corp., supra — since the circuit court of appeals affirmed solely on the point of residence to which its opinion is cited above (7 Cir., 60 F.2d 676) — and some early rulings of lower courts. Shainwald v. Davids, D.C.N.D. Cal., 69 F. 704; and Consolidated Store-Service Co. v. Lamson Consolidated Store-Service Co., C.C.Mass., 41 F. 833, the force of which is weakened by the decision of the same judge contra in Platt v. Massachusetts Real-Estate Co., supra.[4] It is asserted, however, that the Denton case and the cases relying on it are not controlling here because they involved only a consent by the corporation through its designated agent to accept process, while the present consent is one to be sued within the state. And reliance is placed upon a recent case, decided by the Circuit Court of Appeals for the Tenth Circuit, Oklahoma Packing Co. v. Oklahoma Gas & Elec. Co., 100 F.2d 770.[5] In this case the court, while recognizing the general rule referred to above, did hold that an Oklahoma statute required a consent not merely to accept process, but to be sued in the state courts (as indeed the trial court found, 100 F.2d at pages 773, 774), and that this consent likewise operated in the federal courts to constitute a waiver of the venue defense. Notwithstanding the authority of this court, we are not convinced of the soundness of this distinction. If state statutes of the form considered in the cases discussed above do not force a waiver of the federal venue privilege, it is difficult to see what is added by this further provision. It would mean, of course, that the addition of a few words to a state statute would demolish a privilege given by federal law. Moreover, as a practical matter, state legislation requiring consent to be sued as a condition of qualification is usually an unnecessary gesture, since state courts will have jurisdiction of such suits against foreign corporations as concern the state or its citizens, if service of process can be had on the corporation. The statute therefore need only provide for service of process. Indeed, the added provisions of the Oklahoma statute have another reasonable explanation, i.e., the necessity that suits against corporations should satisfy local requirements of venue, since the designated agent was to be found only at the State Capitol. Hence there was coupled with the requirement of the designation of an agent upon whom service of process might be made, the further statement that action might be brought in any county. Okl.Stat.1931, § 130, 18 Okl. St.Ann. § 452; cf. Okl.Const. Art. 9, § 43, Okl.St.Ann. *770 Whatever may be the force of the distinction, however, the court did recognize the general rule that a mere designation of an agent to accept process is not a waiver of the venue privilege. Appellants' attempted construction of the New York corporation laws as including a consent to be sued comparable to that found in the Oklahoma statute cannot be sustained. The applicable statutes in New York are clear in requiring merely the designation of an agent "upon whom all process in any action or proceedings against it may be served within this state."[6] It is true that another statute authorizes actions against foreign corporations under certain circumstances, including that "where a foreign corporation is doing business within this state." N.Y.Gen.Corp.Law, § 225. But this is but a general grant of jurisdiction applying to all actions within the defined classes, whether the corporation has properly qualified to do business or not and whether it is acting legally or illegally. Since, therefore, this general grant of jurisdiction operates independently of any designation of an agent to accept process, it cannot be construed to extend the consent which the corporation has made by affirmatively complying with the requirements of law as to doing business within the state. Appellants also claim that the New York statute has been construed as one requiring the corporation's consent to be sued in the local courts, citing Smolik v. Philadelphia & Reading C. & I. Co., D.C. S.D.N.Y., 222 F. 148, and Bagdon v. Philadelphia & Reading C. & I. Co., 217 N.Y. 432, 111 N.E. 1075, L.R.A.1916F, 407, Ann. Cas.1918A, 389. These cases are relied on as showing the corporation's consent, by its designation of an agent to accept process, to being sued on all transitory actions, whereas without such designation, suit would lie only in the jurisdiction where it had done the business out of which the cause of action arose. But this concerns the jurisdiction of the court over the case, not the personal privilege as to the place of the suit accorded the defendant by Jud. Code § 51, 28 U.S.C.A. § 112. Jurisdiction over the causes was obtained, since personal service could be had on the defendants through their agents designated to accept process. Beech-Nut Packing Co. v. P. Lorillard Co., supra. So here, had plaintiffs been residents of the Southern District of New York, so that the venue was properly laid, service of process upon the defendant would have been had by service upon its agent. The cases do not go beyond this or affect the requirement of venue. We conclude, therefore, that under existing law appellee was entitled to claim its privilege not to be sued in the Southern District of New York. When it did so,[7] there was no other course of action open to the court below but to dismiss the action as to it. There seems little hardship involved to the plaintiffs, for appellee can be sued in the appropriate federal districts, while the entire action as now conceived by the plaintiffs can be brought in the state courts. And if a change in policy is desirable, it must be sought from Congress. It follows that the order of dismissal as to appellee must be affirmed. Affirmed. NOTES [1] Among proposals to limit the jurisdiction of the federal courts before the Congress in 1932 was one drafted by the then Attorney General Mitchell and sponsored by President Hoover which would not have eliminated any of the language of Jud.Code § 24 (1), 28 U.S. C.A. § 41 (1), defining the original jurisdiction of the federal courts over suits between citizens of different states, but would have added to it a provision that a foreign corporation carrying on business in a state other than the one wherein in it was organized should be treated as a citizen of the former state for suits by residents thereof arising out of the business carried on in such state. S.B. 937, 72d Cong., 1st Sess. (1932). It failed of passage. See Comment by members of the faculty of the University of Chicago Law School, Limiting Jurisdiction of Federal Courts, 31 Mich.L.Rev. 59 (1932), and Clark, Diversity of Citizenship Jurisdiction of the Federal Courts, 19 A.B.A.J. 499 (1933), for discussion of the proposal and for other relevant citations. [2] The Patten case has recently been questioned in its own circuit for this reason. Hamilton Watch Co. v. George W. Borg Co., N.D.Ill.E.D., Mar. 6, 1939, 27 F.Supp. 215, Wilkerson, D.J. [3] N.Y.Gen.Corp.Law, §§ 15, 16, Consol. Laws of 1909, c. 23. These statutes were later changed to provide for the designation of the secretary of state as the agent of the corporation upon whom process might be served, but all prior designations of particular agents were continued. N.Y.Gen.Corp.Law, §§ 210, 213. [4] Cf. also statements in Bogue v. Chicago, B. & Q. R. Co., D.C.S.D.Iowa, 193 F. 728, U. S. v. Sheridan, C.C.W.D.Ky., 119 F. 236, and O'Donnell v. Slade, D.C. M.D.Pa., 5 F.Supp. 265. [5] Certiorari was granted April 17, 1939, 59 S.Ct. 789, 83 L.Ed. ___. [6] This is the wording of the present statute, N.Y.Gen.Corp.Law, § 210, under which the secretary of state is the agent to be designated; the language of the earlier statute was similar. See note 3, supra. [7] The cumbersome method of claiming the privilege resorted to here — special appearance and motion to set aside service of the subpœna and the Marshal's return of service of the subpœna — may now be superseded by a simple motion to dismiss, under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

444 So.2d 121 (1984) June M. ROBERTS v. SONIC DRIVE INN OF MARKSVILLE INC. and North River Insurance Co. No. 83-C-2520. Supreme Court of Louisiana. January 16, 1984. Denied. BLANCHE and LEMMON, JJ., would grant the writ.

15-2088 Funes Menjivar v. Sessions BIA A095 041 878 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 16th day of February, two thousand seventeen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 PETER W. HALL, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MANUEL DE JESUS FUNES MENJIVAR, 14 Petitioner, 15 16 v. 15-2088 17 NAC 18 JEFF SESSIONS, UNITED STATES 19 ATTORNEY GENERAL,1 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Maggy T. Duteau, New York, NY. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Greg D. 27 Mack, Senior Litigation Counsel; 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is automatically substituted for former Attorney General Loretta E. Lynch as the Respondent in this case. 1 Christina P. Greer, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9 DISMISSED. 10 Petitioner Manuel De Jesus Funes Menjivar, a native and 11 citizen of El Salvador, seeks review of a May 29, 2015 decision 12 of the BIA denying his motion to reopen. In re Manuel De Jesus 13 Funes Menjivar, No. A095 041 878 (B.I.A. May 29, 2015). We 14 assume the parties’ familiarity with the underlying facts and 15 procedural history in this case. 16 In the main, Funes challenges the IJ’s reasoning for 17 denying cancellation. But he did not petition for review of 18 that decision. See Stone v. INS, 514 U.S. 386, 405 (1995) 19 (requiring separate timely petitions for review of the final 20 removal order and the denial of a motion to reconsider or 21 reopen); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per 22 curiam) (same). Funes’s contentions that the IJ failed to 23 consider the implications of El Salvador’s temporary protective 24 status or his country conditions evidence are therefore not 25 before the Court. 2 1 Funes also challenges the BIA’s denial of his motion to 2 reopen. As a general matter, we review such a decision “for 3 abuse of discretion, mindful that motions to reopen ‘are 4 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) 5 (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). But we 6 lack jurisdiction to review the agency’s denial of cancellation 7 of removal based on an alien’s failure to establish “exceptional 8 and extremely unusual hardship,” 8 U.S.C. 1229b(b)(1)(D), 9 because that is a discretionary determination reserved for the 10 agency, see 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. 11 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). We nevertheless 12 retain jurisdiction to review constitutional claims and 13 questions of law with respect to cancellation, 8 U.S.C. 14 § 1252(a)(2)(D), which may “‘arise for example in fact-finding 15 which is flawed by an error of law’ or ‘where a discretionary 16 decision is argued to be an abuse of discretion because it was 17 made without rational justification or based on a legally 18 erroneous standard,’” Barco-Sandoval, 516 F.3d at 39 (quoting 19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d 20 Cir. 2006)). To ascertain whether a petitioner raises 21 constitutional challenges or questions of law over which this 22 Court has jurisdiction, we “study the argument[] asserted 3 1 [and] . . . determine, regardless of the rhetoric employed in 2 the petition, whether it merely quarrels over the correctness 3 of the factual findings or justification for the discretionary 4 choices, in which case the court would lack jurisdiction.” 5 Xiao Ji Chen, 471 F.3d at 329. For example, we have found an 6 error of law in a hardship determination where “facts important 7 to the subtle determination of ‘exceptional and extremely 8 unusual hardship’ have been totally overlooked and others have 9 been seriously mischaracterized.” Mendez v. Holder, 566 F.3d 10 316, 323 (2d Cir. 2009). 11 Here, we lack jurisdiction over the petition: Funes’s 12 assertion that the BIA failed to consider his daughter’s speech 13 condition merely employs the rhetoric of a question of law to 14 challenge the agency’s discretionary hardship determination. 15 See Xiao Ji Chen, 471 F.3d at 329. The BIA reviewed Funes’s 16 evidence and concluded that reopened proceedings would not 17 reach a different outcome. See Matter of Coelho, 20 I. & N. 18 Dec. 464, 473 (B.I.A. 1992); 8 C.F.R. § 1003.2(c). That 19 determination, in any event, was reasonable. Some of the 20 school reports predated the merits hearing and therefore were 21 not new evidence. Those that postdated the hearing did not 22 reflect substantial impairment. The BIA likewise had the 4 1 discretion to find that the reports failed to demonstrate that 2 Funes’s daughter’s educational needs, such as they are, will 3 go unaddressed if she remains in the United States without her 4 father. Diminished educational opportunities rarely 5 constitute exceptional and extremely unusual hardship. See In 6 re Andazola-Rivas, 23 I. & N. Dec. 319, 323 n.1 (B.I.A. 2002) 7 (“[A] finding that diminished educational opportunities result 8 in ‘exceptional and extremely unusual hardship’ would mean that 9 cancellation of removal would be granted in virtually all cases 10 involving [applicants] from developing countries who have young 11 United States citizen or lawful permanent resident children[, 12 which] . . . is not consistent with congressional intent.”). 13 For the foregoing reasons, the petition for review is 14 DISMISSED. As we have completed our review, any stay of removal 15 that the Court previously granted in this petition is VACATED, 16 and any pending motion for a stay of removal in this petition 17 is DISMISSED as moot. Any pending request for oral argument 18 in this petition is DENIED in accordance with Federal Rule of 19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 20 34.1(b). 21 FOR THE COURT: 22 Catherine O=Hagan Wolfe, Clerk 5 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7985 DOMINICK THOMAS, Plaintiff - Appellant, versus MARK L. HARMON, Officer; ASTRID S. ROBINSON, Officer, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CA-04-1145-1-LMB) Submitted: June 28, 2006 Decided: July 28, 2006 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Dominick Thomas, Appellant Pro Se. Mary Alice Rowan, COUNTY ATTORNEY’S OFFICE, Prince William, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Dominick Thomas appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Thomas v. Harmon, No. CA-04-1145-1-LMB (E.D. Va. Dec. 7, 2005).* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Although the last name of the defendant/appellee is apparently Harman rather than Harmon, we have retained the spelling employed by the district court. - 2 - 

871 N.E.2d 376 (2007) Daniel E. HOAGLAND, Karen Hoagland, and Hoagland Family Limited Partnership, Appellants-Plaintiffs, v. TOWN OF CLEAR LAKE BOARD OF ZONING APPEALS, Appellee-Defendant. No. 76A03-0609-CV-444. Court of Appeals of Indiana. August 8, 2007. *377 J. Michael Loomis, Fort Wayne, IN, Attorney for Appellants. W. Erik Weber, Neal R. Blythe, Mefford and Weber, Auburn, IN, Attorneys for Appellee. OPINION SHARPNACK, Judge. Daniel and Karen Hoagland and the Hoagland Family Limited Partnership (collectively, the "Hoaglands") appeal the trial court's dismissal of their petition for judicial review regarding a decision by the Town of Clear Lake Board of Zoning Appeals ("BZA") and the trial court's denial of their motion to correct error. The Hoaglands raise four issues, which we consolidate *378 and restate as whether the trial court erred by dismissing the Hoaglands' petition for judicial review of a decision by the BZA based upon the Hoaglands' failure to provide the statutorily required notice. We affirm.[1] In this appeal, the Hoaglands challenge the trial court's dismissal of their petition for judicial review regarding an Improvement Location Permit ("ILP") issued concerning property owned by Jim and Cathlene Nevin. Today, we also issue a decision in Hoagland v. Town of Clear Lake Bd. of Zoning Appeals, ___ N.E.2d ___, No. 76A03-0610-CV-495, 2007 WL 2257214 (Ind.Ct.App.2007). In that appeal, the Hoaglands challenge the trial court's dismissal of their petition for a writ of certiorari. That appeal relates to the BZA's denial of their appeal regarding a second ILP issued to Steven Tagtmeyer to rebuild an existing garage and add a shed to property owned by the Nevins. The relevant facts concerning the first ILP follow. On September 7, 2004, the zoning inspector for the Town of Clear Lake, Indiana, issued an ILP to Jim and Cathlene Nevin for the remodeling of their residence at 1120 Lake Dr. at Clear Lake. On August 26, 2005, the Hoaglands, who are the Nevins' neighbors, appealed the issuance of the ILP to the BZA. A public hearing was held on October 26, 2005, regarding the Hoaglands' appeal. The hearing was continued on December 20, 2005, and the BZA apparently denied the Hoaglands' appeal at that hearing but did not issue written findings. On January 19, 2006, the Hoaglands filed a "Verified Petition for Judicial Review" of the BZA's denial of their appeal, but the Hoaglands did not serve notice upon the Nevins. The BZA responded on February 6, 2006, by filing a motion to dismiss because the Hoaglands cited the wrong statutory authority in their petition and filed a petition for judicial review rather than the required petition for writ of certiorari. At a hearing on the matter, the BZA also argued that the Hoaglands' petition should be dismissed because the Hoaglands did not serve notice of the petition upon the Nevins. On February 8, 2006, the Hoaglands filed a motion to amend their petition for judicial review and filed an "Amended Verified Petition and Request for Writ of Certiorari." Appellants' Appendix at 114, 117. After a hearing on the motion to dismiss, the trial court entered an order dismissing the Hoaglands' petition as follows: 1. On December 20, 2005 the BZA entered its Order approving the grant of [an] Improvement Location Permit requested by Jim and Cathlene Nevins ("Nevins"). Subsequent thereto, Hoagland sought review of the action taken by the BZA by filing on January 19, 2006 a Verified Petition for Judicial Review pursuant to Ind.Code 4-21.5-5-1, et seq. 2. At the time Hoagland [sic] the Verified Petition for Judicial Review the Nevins were not notified of the filing. 3. On February 7, 2006 the BZA filed its Motion to Dismiss for Lack of Jurisdiction. 4. On February 8, 2006 Hoagland filed a Motion to Amend Verified Petition for Judicial Review. *379 5. Therein, Hoagland sought leave of Court to change the format of the Petition originally filed on January 19, 2006 to a Petition for Writ of Certiorari, and be granted leave to provide notice as required by statute to all adverse parties. 6. Hoagland seeks review of an adverse decision made by the BZA. 7. The statutory procedure to seek review of such a decision is set forth at Ind.Code 36-7-4-1005 not Ind.Code 4-21.5-5-1, et seq. 8. In the case of Bagnall v. Town of Beverly Shores, 726 N.E.2d 782 (Ind. 2000), the Indiana Supreme Court at page 785 observed: "Decisions by boards of zoning appeals are subject to court review by certiorari. Ind.Code Sec. 36-7-4-1003(a) (Supp.1995). A person aggrieved by a decision of a board of zoning appeals may present to the circuit or superior court in the county in which the premises are located a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. Id. Sec. 36-7-4-1003(b). The petition must be presented to the court within 30 days of the board's decision. Id. The court does not gain jurisdiction over the petition until the petitioner serves notice upon all adverse parties as required by Ind.Code Sec. 36-7-4-1005(a) which provides in pertinent part: On filing a petition for a writ of certiorari with the clerk of the court, the petitioner shall have a notice served by the sheriff of the county on each adverse party, as shown by the record of the case in the office of the board of zoning appeals. . . . No other summons or notice is necessary when filing a petition. . . . The Code defines an adverse party as `any property owner whose interests are opposed to the petitioner for the writ of certiorari and who appeared at the hearing before the board of zoning appeals either in person or by a written remonstrance or other document that is part of the hearing record.' Ind. Code Sec. 36-7-4-1005(b). We read the language of statutes pursuant to the codified rules of statutory construction, which provide that `[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense.' Ind.Code Sec. 1-1-4-1(1) (1998). As the trial court noted, "[t]he plain and ordinary meaning of the word `on' in the statute's phrase `on filing the petition' is taken to mean `at the time of `filing the petition." . . . To comply with the statute, a petitioner must file, with the clerk, notices to adverse parties contemporaneously to the filing of the writ petition. Because "strict compliance with the requirements of the statute governing appeals from decisions of boards of zoning appeals is necessary for the trial court to obtain jurisdiction over such cases," . . . (Emphasis Added) (Case Citations Omitted) (Citations to Record Omitted) 9. The [Nevins] are adverse parties to this proceeding. 10. The [Nevins] were not timely provided with any form of notice that Hoagland was seeking review of the decision made by the BZA on December 20, 2005. 11. To grant Hoagland the relief he has requested would require the Court to nullify the clear statutory *380 language regarding notice to adverse parties as set forth at Ind.Code 36-7-4-1005. A trial court quite simply does not gain jurisdiction over a Petition Seeking Review of an action taken by the BZA until the petitioner serves notice of the Petition upon all adverse parties as required by Ind. Code 36-7-4-1005. See, Citizens v. Brazil Bd. Of Zoning Appeals, 565 N.E.2d 380 (Ind.App.1991). IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows: 1. Hoagland's Motion to Amend Verified Petition for Judicial Review is denied. 2. BZA's Motion to Dismiss for Lack of Jurisdiction is granted. Appellants' Appendix at 135-138. The Hoaglands then filed a motion to correct error. The Hoaglands contended "that a final reviewable decision ha[d] not yet been made by the BZA sufficient to trigger the running of the thirty (30) day rule within which time an aggrieved person must file his Petition for Writ of Certiorari with the trial court. The reason being the BZA has not performed its statutory duties pursuant to Ind.Code 36-7-4-915 and Ind.Code 36-7-4-919(f)." Id. at 5. Relying upon Biggs v. Board of Zoning Appeals, 448 N.E.2d 693 (Ind.Ct.App. 1983), the trial court entered findings of fact and conclusions thereon in which it found that the "failure of the BZA to make written Findings of Fact does not toll the running of the thirty (30) days within which it is necessary for an aggrieved person to file a Writ of Certiorari in order to properly invoke the jurisdiction of the trial court when seeking judicial review." Id. at 7. Consequently, the trial court denied the Hoaglands' motion to correct error. On appeal, the issue is whether trial court erred by dismissing the Hoaglands' petition for judicial review of a decision by the BZA based upon the Hoaglands' failure to provide the statutorily required notice. The standard of appellate review of rulings on motions to dismiss on jurisdictional grounds depends on whether the trial court resolved disputed facts, and if so, whether the trial court conducted an evidentiary hearing or ruled on a paper record.[2]Wayne County Property Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind.2006). We review de novo a ruling on a motion to dismiss for lack of jurisdiction if the facts are not disputed or, as here, the court rules on a paper record. Id. The Hoaglands argue that the trial court erred by: (1) determining that it did not have jurisdiction; (2) applying Biggs rather than Holmes v. Bd. of Zoning Appeals, 634 N.E.2d 522 (Ind.Ct.App. 1994); and (3) finding that the 30-day requirement within which to file a petition for a writ of certiorari and serve the adverse parties was triggered.[3] *381 Decisions by boards of zoning appeals are subject to court review by certiorari. Ind.Code § 36-7-4-1003(a). A person "aggrieved by a decision of a board of zoning appeals . . . may present to the circuit or superior court in the county in which the premises are located a verified petition setting forth that the decision is illegal in whole or in part and specifying the grounds of the illegality." I.C. § 36-7-4-1003(a). The petition must be presented to the court within 30 days of the board's decision. I.C. § 36-7-4-1003(b) & (c). Moreover, the petitioner must give notice of the petition as follows: * * * * * (1) If the petitioner is the applicant or petitioner for the use, special exception, or variance, the petitioner shall have a notice served by the sheriff of the county on each adverse party as shown by the record of the case in the office of the board of zoning appeals. (2) If the petitioner is not the applicant for the use, special exception, or variance and is a person aggrieved by the decision of a board of zoning appeals as set forth in section 1003 of this chapter, the petitioner shall have a notice served by the sheriff of the county on: (A) each applicant or petitioner for the use, special exception, or variance; and (B) each owner of the property that is the subject of the application or petition for the use, special exception, or variance. The service of the notice by the sheriff on the chairman or secretary of the board of zoning appeals constitutes notice of the filing of the petition to the board of zoning appeals, to the municipality or county, and to any municipal or county official or board charged with the enforcement of the zoning ordinance. No other summons or notice is necessary when filing a petition. (b) An adverse party under this section is any property owner whose interests are opposed to the petitioner for the writ of certiorari and who appeared at the hearing before the board of zoning appeals either in person or by a written remonstrance or other document that is part of the hearing record. If the petitioner was an unsuccessful appellant in the administrative appeal, or an unsuccessful petitioner or applicant for a variance, special exception, or special or conditional use, and the record shows a written remonstrance or other document opposing the interest of the petitioner that contains more than three (3) names, the petitioner shall have notice served on the three (3) property owners whose names appear first on the remonstrance or document. Notice to the other persons named is not required. (c) Notice given under subsection (a) must state: (1) that a petition for a writ of certiorari, asking for a review of the decision of the board of zoning appeals, has been filed in the court; (2) the premises affected; and (3) the date of the decision. (d) An adverse party who is entitled to notice of a petition for writ of certiorari under subsection (a) is not required to be named as a party to the petition for writ of certiorari. Ind.Code § 36-7-4-1005. The Indiana Supreme Court has held that "[t]he court does not gain jurisdiction *382 over the petition until the petitioner serves notice upon all adverse parties" as required by Ind.Code § 36-7-4-1005. Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 785 (Ind.2000). In Bagnall, the court noted: "To comply with the statute, a petitioner must file, with the clerk, notices to adverse parties contemporaneously to the filing of the writ petition." Id. "[S]trict compliance with the requirements of the statute governing appeals from decisions of boards of zoning appeals is necessary for the trial court to obtain jurisdiction over such cases."[4]Id. Here, the BZA held a hearing on the Hoagland's appeal on December 20, 2005. The Hoaglands filed their "Verified Petition for Judicial Review" on January 19, 2006. The Hoaglands do not dispute that they did not serve the Nevins at that time. Further, the Hoaglands did not argue to the trial court and did not argue in their appellant's brief that notice to the Nevins was not required under Ind.Code § 36-7-4-1005.[5] After the BZA filed a motion to dismiss, on February 8, 2006, the Hoaglands filed a motion to amend their petition for judicial review and an "Amended Verified Petition and Request for Writ of Certiorari." Appellants' Appendix at 114, 117. The CCS indicates that the petition for writ of certiorari was served on the Nevins on February 13, 2006. If the BZA's decision was issued on December 20, 2005, pursuant to Bagnall, the Hoaglands were required to file a petition for writ of certiorari and serve notice of the petition upon the Nevins within thirty days. However, notice was not served upon the Nevins until February 13, 2006. The Hoaglands attempt to argue *383 that the BZA's decision was not issued on December 20, 2005, because the BZA failed to issue written findings of fact as required by Ind.Code § 36-7-4-1003. However, this same argument was addressed in Biggs v. Bd. of Zoning Appeals of City of Wabash, 448 N.E.2d 693 (Ind.Ct. App.1983). There, the petitioner's request for a variance was denied at a meeting on September 17, 1981. 448 N.E.2d at 694. The minutes of the September meeting were approved by the Board at their October 15, 1981, meeting. Id. The petitioner filed a petition for writ of certiorari on November 13, 1981. Id. The trial court then dismissed the petition because the petitioner failed to file the petition within thirty days of the Board's decision. Id. This court held that the date of the Board's decision was September 17, 1981, even though written findings of fact were not issued on that date. Id. Thus, the November 13th petition was not timely, and "[f]ailure to comply with the statute is fatal." Id. Even though the BZA in this case did not issue written findings of fact, the Hoaglands were aware of the BZA's December 20, 2005, decision. See Appellants' Appendix at 11-25 (Hoagland's Petition for Judicial Review, which alleges that the BZA rendered a "final decision" on December 20, 2005). As a result, under Biggs, the Hoaglands were required to file a petition for writ of certiorari and serve the required notices within thirty days of the BZA's December 20, 2005, decision, and they failed to do so.[6] Their failure to comply with the statute is fatal, and the trial court did not err by dismissing the Hoaglands' petition.[7]See, e.g., Bagnall, 726 N.E.2d at 785 (holding that the petitioners did not "secure jurisdiction" where they failed to serve notice of the petition upon adverse parties); Town of Cedar Lake Bd. of Zoning Appeals v. Vellegas, 853 N.E.2d 123, 126-127 (Ind.Ct.App.2006) (holding that the trial court did not have jurisdiction to consider a petition for writ of certiorari where the petitioner failed to serve notice upon an adverse party). *384 For the foregoing reasons, we affirm the trial court's dismissal of the Hoaglands' petition for judicial review. Affirmed. MAY, J., and BAILEY, J., concur. NOTES [1] The BZA filed a Request for Leave to Supplement Record to include the transcript of the October 26, 2005, BZA hearing, exhibits submitted at the hearing, and a document submitted by the Hoaglands at the December 20, 2005, hearing. The supplemental record is unnecessary given our resolution of the issue in this case. Consequently, we deny the BZA's motion. [2] In United Ancient Order of Druids-Grove, the Indiana Supreme Court held that such an issue "is properly raised by means of a motion under Rule 12(B)(1) for lack of jurisdiction or 12(B)(6) for failure to state a claim, depending on whether the claimed defect is apparent on the face of the petition." Wayne County Property Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove # 29, 847 N.E.2d 924, 926 (Ind.2006). [3] The Hoaglands also argue that the trial court should have treated the BZA's motion to dismiss as a motion for summary judgment. However, the Hoaglands did not raise this issue to the trial court. "A party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court." GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 652 (Ind.Ct.App.2002). Consequently, the Hoaglands waived this argument. [4] We note that the Indiana Supreme Court clarified jurisdiction concepts in K.S. v. State, 849 N.E.2d 538 (Ind.2006). The court held: Like the rest of the nation's courts, Indiana trial courts possess two kinds of "jurisdiction." Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties. Where these two exist, a court's decision may be set aside for legal error only through direct appeal and not through collateral attack. Other phrases recently common to Indiana practice, like "jurisdiction over a particular case," confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations. 849 N.E.2d at 540. The notice requirements in Ind.Code § 36-7-4-1005 implicate what courts have previously called "jurisdiction over a particular case" rather than subject matter or personal jurisdiction. See, e.g., Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006) (holding that statutory deadlines for filing a petition for judicial review in the Tax Court referred to what was previously known as "jurisdiction over a particular case"); United Ancient Order of Druids-Grove # 29, 847 N.E.2d at 926 ("The timing of filing the agency record implicates neither the subject matter jurisdiction of the Tax Court nor personal jurisdiction over the parties. Rather, it is jurisdictional only in the sense that it is a statutory prerequisite to the docketing of an appeal in the Tax Court."). Consequently, although the court in Bagnall referred to this concept as jurisdiction over the case, we will not do so. [5] The Hoaglands argue for the first time in their reply brief that notice to the Nevins was not required under Ind.Code § 36-7-4-1005. The Hoaglands did not make this argument to the trial court and did not raise the issue in their appellants' brief. "A party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court." GKC Indiana Theatres, Inc., 764 N.E.2d at 652. Moreover, "[t]he law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived." Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind.2005). Consequently, the Hoaglands waived this issue. [6] The Hoaglands argue that the trial court should have relied upon Holmes v. Bd. of Zoning Appeals, 634 N.E.2d 522 (Ind.Ct.App. 1994), rather than Biggs. In Holmes, the BZA failed to make written findings, and this court held that "[t]he proper procedure by the trial court is to remand to the BZA for specific findings of fact." 634 N.E.2d at 525. However, in Holmes, there was no dispute regarding the timeliness of the petitioner's petition for writ of certiorari or notice to adverse parties. Here, the trial court could not remand to the BZA for findings because the Hoaglands failed to meet the statutory requirements regarding the notice to adverse parties. [7] The Hoaglands also argue that the trial court had "jurisdiction" because at least one of the issues presented fell within the trial court's "jurisdiction." Appellants' Brief at 15-16 (relying upon M.C. Welding & Machining Co., Inc. v. Kotwa, 845 N.E.2d 188 (Ind. Ct.App.2006), and Austin Lakes Joint Venture v. Avon Util., Inc., 648 N.E.2d 641, 644 (Ind. 1995)). Each of the allegations were presented as part of the Hoaglands' request for judicial review of the BZA's action. The Hoaglands presented no separate issue against the BZA for the trial court's review. In fact, the relief requested in the petition related only to the BZA's denial of the Hoaglands' appeal. We conclude that the Hoaglands presented no separate issues for the trial court's review, and the Hoaglands' failure to follow the statutory notice requirements was fatal to their claims. See, e.g., Johnson Oil Co., Inc. v. Area Plan Comm'n of Evansville and Vanderburgh County, 715 N.E.2d 1011, 1013-1014 (Ind.Ct. App.1999) (rejecting the petitioner's argument that the trial court had jurisdiction over its civil rights claims, inverse condemnation claim, and estoppel claim and that the trial court erred by dismissing its complaint "based upon [the court's] [apparent] belief that Johnson Oil had failed to exhaust its administrative remedies").

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON BURTON WELCH, ) ) Petitioner, ) C. C. A. NO. 02C01-9807-CC-00222 ) vs. ) LAKE COUNTY STATE OF TENNESSEE, ) ) No. 98-7802 FILED ) Respondent. ) October 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk ORDER This matter is before the Court upon motion of the state to affirm the judgment of the trial court by order rather than formal opinion. See Rule 20, Rules of the Court of Criminal Appeals. This case represents an appeal from the trial court’s denial of the petitioner’s petition for writ of habeas corpus. On December 17, 1996, the petitioner pled guilty to four counts of sale of cocaine under 0.5 grams and received a six year sentence. No appeal was taken. In his present petition, the petitioner claims: 1) the chancellor lacked jurisdiction to render judgment in this case; 2) his arrest was the result of an unlawful entrapment; 3) he received ineffective assistance of counsel; and 4) the convicting evidence was insufficient.1 The trial court found that these allegations are not proper subject for habeas corpus relief. Habeas corpus relief is available in Tennessee only when “it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered” that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Pursuant to T.C.A. § 17-2-203 (Repealed 1997), the chancellor had jurisdiction to render the judgments in this case. Though recently repealed, this statute was in effect on the date of judgments in this 1 The petitioner makes the additional argument on appeal that the judgm ents do not specify und er wh ich st atute he wa s co nvicte d. Sin ce th e pet itione r failed to rais e the issue below , this C ourt is preclud ed from conside ring it on app eal. See T.R.A.P. 36(a). Nonetheless, this argument is without merit. The judgments clearly state the crime for which the petitioner was convicted. case. Additionally, the judgments in this case clearly establish that the convicting court had jurisdiction to convict the petitioner of an existing criminal offense, i.e., the sale of cocaine under 0.5 grams. Nor has the petitioner’s sentence expired. Review of the other claims raised by the petitioner would necessarily involve investigation beyond the face of the judgment or record, and they are, therefore, inappropriate for consideration in a habeas corpus proceeding. Accordingly, for the reasons stated above, it is hereby ORDERED that the state’s motion is granted and the judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. _________________________ PAUL G. SUMMERS, JUDGE _________________________ DAVID G. HAYES, JUDGE _________________________ JOE G. RILEY, JUDGE 2 

729 F.2d 1449 U.S.v.Carducci (Hugo J.) NO. 83-5480 United States Court of Appeals,third Circuit. FEB 09, 1984 1 Appeal From: W.D.Pa., 566 F.Supp. 1116 2 AFFIRMED.

65 Ill.2d 244 (1976) 357 N.E.2d 530 HELEN W. WALLING, Appellant, v. KAREN LINGELBACH et al. — (Lottie Strahorn, Appellee.) No. 48188. Supreme Court of Illinois. Opinion filed November 24, 1976. North, North & Ohlson and Charles H. Davis, both of Rockford (Larry E. Ohlson, of counsel), for appellant. Maynard, Brassfield & Cowan, of Rockford (Eugene E. Brassfield, of counsel), for appellee. Judgment affirmed. *245 MR. JUSTICE KLUCZYNSKI delivered the opinion of the court: Helen Walling, plaintiff, was seriously injured when the automobile in which she was riding collided head on with an approaching vehicle driven by Karen Lingelbach. At trial, the jury found both drivers guilty of negligence, and the circuit court of Winnebago County entered a judgment on the verdict against both defendant drivers in favor of plaintiff for $82,500. Lottie Strahorn, the driver of the vehicle in which Walling was a passenger, appealed and the appellate court reversed without remandment, holding that the evidence was insufficient to sustain any verdict for Walling against Strahorn. (33 Ill. App.3d 949.) Defendant Lingelbach, however, did not appeal. We granted Walling leave to appeal in which she contends that there was sufficient evidence to allow this case to go to the jury and to sustain a jury verdict under the rule stated in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 513. She also contends that the appellate court improperly substituted its opinion for that of the jury and trial judge on the credibility of witnesses, the conflicts in the evidence and the weight of evidence, and ignored the jury's findings of proximate cause. The following facts were presented at trial: On November 14, 1973, at 6:20 a.m., Lottie Strahorn was driving her husband and Helen Walling to work. She was traveling northbound on Springfield Avenue, a paved two-lane highway, at approximately 30 to 35 miles per hour. At the same time, Lingelbach was alone in her vehicle, driving southbound on the same road. The day was hazy with intermittent patches of fog ranging from light to very heavy. Strahorn testified that the visibility averaged 25 feet except in areas of heavy fog, where visibility was greatly reduced. Lingelbach observed that the fog got heavier as she traveled further south. Both drivers claimed *246 to have had their headlights on. Lingelbach stated that she was in the right lane and was traveling 50 miles per hour when she entered an intersection 700 feet north of the collision. However, she did not know in which lane the collision occurred. She first saw the other vehicle when it was three or four feet in front of her, and she immediately swerved left just before impact. Strahorn testified that Lingelbach's vehicle was in the southbound lane, but just prior to the collision entered her lane. At this time she exclaimed, "Look at that crazy fool, he must be drunk!" Then she applied her brakes, slowed down, and made a right turn onto the shoulder. Lingelbach's car was 10 feet away when last observed by Strahorn. Her exclamation was somewhat corroborated by Walling's testimony relating that Strahorn stated, "They are going to hit us!" However, Strahorn's husband, also a passenger, had no recollection that his wife made this statement. The two officers that had responded to the call regarding the accident testified that visibility was very poor due to fog and that the pavement was damp. One of the officers, John Markley, observed that Lingelbach's vehicle was facing south on the east shoulder of Springfield Avenue and Strahorn's car was facing north but positioned southeast of the other automobile. No skid marks were found on the road. Markley observed glass and debris from the crushed headlights, and turn signals were scattered in the northbound lane and formed a two-foot circle with a quarter section missing. The center of the circle was one or two feet west of the edge of the pavement, 727 feet south of the intersection, and 58 feet north of the right front tire of defendant's vehicle. The distance between the vehicles after the collision was measured at 264 feet, but Markley, believing the measurement to be a miscalculation, stated that the actual distance was closer to 150 feet. He further observed that no windshields were broken and no glass or debris *247 was found within the proximity of the vehicles or in the southbound lane. The only statement he recalled having been made by parties to the accident was Strahorn saying something to the effect that she looked up and saw the car coming at her. However, she did not remember making any statements to police. Also he noted that neither party knew what happened. A co-worker of both Walling and Strahorn's husband testified that the former, while in the hospital, made the statement that the accident was not Strahorn's fault. This statement was also heard by Strahorn's niece, but Walling denied making this statement. Strahorn's husband stated that he saw the other vehicle "one block away" just prior to the accident, that it had crossed the center lane and was traveling in the middle of the road. He further testified that the fog was light where the collision occurred. In Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 504-05, before formulating its rule governing directed verdicts and judgments, this court observed: "* * * the presence of some evidence of a fact which, when viewed alone may seem substantial, does not always, when viewed in the context of all of the evidence, retain such significance. * * * Constitutional guaranties are not impaired by direction of a verdict despite the presence of some slight evidence to the contrary * * *." With the above as its premise the court presented the following rule: "In our judgment verdicts ought to be directed and judgments entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Emphasis added.) 37 Ill.2d 494, 510. Under the Pedrick rule, we view all the evidence in a *248 light most favorable to Walling. We cannot speculate and will not supply facts in void areas to complete the reconstruction of an accident. The controlling issue in this case is in which lane the collision occurred. If both vehicles had remained in their respective lanes, the accident would not have happened. Conversely, the collision would not have occurred but for one vehicle having crossed the center line. Lingelbach admitted that she did not know in which lane she was at the time of impact, whereas both Mr. and Mrs. Strahorn testified that their automobile never crossed into the southbound lane and that the oncoming vehicle crossed the center line when it approached them. This testimony was not refuted or contradicted. There was no evidence presented that Strahorn was in the improper lane, that the impact occurred in the southbound lane, or that both drivers straddled the center line. All the debris discovered was found scattered on the far eastern portion of the northbound lane. Credibility of witnesses has minimum import in this case. The lack of evidence supporting Walling's case exists whether or not the jury believed Mr. and Mrs. Strahorn's testimony. Although Walling argued that it could be inferred that Strahorn was negligent by exercising improper control and lookout and by speeding, none of these alleged acts were the proximate cause of appellant's injury. We feel that the jury abandoned the domain of allowable inferences and entered the area of speculation in determining that Strahorn's negligence was one of the proximate causes of Walling's injury. Therefore, under these circumstances we hold that the appellate court properly applied the rule expressed in Pedrick in concluding that the evidence was insufficient to present a jury question. Accordingly, we affirm the judgment of the appellate court. Judgment affirmed.

430 P.2d 783 (1967) 78 N.M. App. 286 STATE of New Mexico, Plaintiff-Appellee, v. Henry SILVA, Defendant-Appellant. No. 29. Court of Appeals of New Mexico. June 23, 1967. *784 Reuben E. Nieves, Gore & Nieves, Clovis, for appellant. Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee. OPINION OMAN, Judge. Defendant has appealed from a judgment and sentence of the district court, entered pursuant to jury verdicts finding him to be the same person who had theretofore been convicted of the three felonies as alleged in the information charging him as an habitual offender. Sections 40A-29-5 to -7, N.M.S.A. 1953, provide for sentencing, prosecution, and procedures for prosecution of habitual offenders. Defendant relies upon seven separate points for reversal. The first five of these points concern themselves primarily with attacks upon the information, and the remaining two points relate to claimed errors on the part of the trial court in admitting certain evidence. The points will be considered in the order of their presentation in the brief in chief. In count 1 of the information it was alleged that the defendant had been convicted of "Assault with a deadly weapon — Bernalillo County, New Mexico, October 5, 1963." After the jury had been impaneled and sworn, the State requested leave to amend to change the date of October 5, 1963 to April 6, 1964. The trial court observed that "October 5 was, the arrest date of the defendant. The date of April 6 was the date that judgment and sentence was actually entered." It is not apparent upon what the court based his observation, but he granted opportunity to defendant to voice his objections and present argument. Defendant contended that this last-minute change prejudiced his rights. The court specifically announced that he would grant a delay if additional time were needed to prepare a defense by reason of the change, and asked if defendant requested any such delay. Defendant announced that he had no such request to make. The court granted the amendment. We observe that an information under the habitual offender statutes does not purport to charge a criminal offense, *785 but constitutes only a charge of prior convictions by defendant, which, if true, operates to enhance the penalty to be imposed. Lott v. Cox, 75 N.M. 102, 401 P.2d 93 (1965); State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965). The proceedings are, however, penal in nature, and, insofar as applicable, criminal procedures are to be followed. See State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966); Johnson v. Cox, 72 N.M. 55, 380 P.2d 199 (1963); State v. Knight, supra, 5 Wharton, Criminal Law and Procedure (Anderson) § 2221 at 441 (1957). Defendant contends he was prejudiced by the amendment, and relies upon the provisions of § 41-6-37, N.M.S.A. 1953, and upon the decision in State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951). In State v. Ardovino, the defect was the failure of the information to allege a criminal offense under the statutes of the State of New Mexico, and it was more than a mere error in a date. Here the defendant has failed to demonstrate how he was in any way prejudiced by the amendment showing the correct date of his prior conviction in Bernalillo County. Although the trial court made it clear to defendant and his counsel that additional time would be granted to explore the possibilities of a defense, or to prepare for the presentation of any defense defendant might have, defendant advised the court he did not wish to request any delay, or additional time. In State v. Krebs, 336 Mo. 576, 80 S.W.2d 196 (1935), it was appellant's contention that a certain date contained in the information was the date of his discharge from the penitentiary, and not the date of commission of a subsequent offense. Thus, he argued that the information was defective, because it failed to show that this subsequent offense was committed after his discharge from the penitentiary under his prior convictions. The Supreme Court of Missouri gave it as their opinion that the date in question referred to the date of the commission of the subsequent offense, and not to the date of his discharge from the penitentiary, but stated that it made no difference, because that part of the information concerned started out by expressly alleging that "after the said discharge." Section 40A-29-6, N.M.S.A. 1953, provides in part: "If * * * it shall appear that a person convicted of a felony has previously been convicted of a crime amounting to a felony in this state, * * * it shall be the duty of the district attorney * * * to file an information charging the person as a habitual offender." The present case was conducted as a separate proceeding, as authorized by our statutes (Lott v. Cox, supra; State v. Tipton, supra), and it was expressly alleged in the information that "Henry Silva * * * having been convicted of the following felonies." This language was then followed immediately by the above-quoted language relating to the charge in question. The amendment allowed by the trial court in no way changed the substance of the allegations concerning the previous conviction in Bernalillo County of a crime amounting to a felony. No prejudice having been shown as a result of the amendment, we find defendant's position under this point to be without merit. Defendant next contends the information should have been quashed because, after reciting the felonies of which he had allegedly been convicted, it is alleged: "And that Henry Silva is an habitual offender contrary to Section 40A-29-7, and should be sentenced pursuant to 40A-29-7, NMSA, 1953 Compilation, as amended." It is defendant's contention that he should have been charged, and could properly have been charged, only under the provisions of § 40A-29-5, N.M.S.A. 1953, or under §§ 40A-29-5 to -6, N.M.S.A. 1953. As above stated, an information under the habitual offender statutes does not charge a separate offense. Section 40A-29-5, *786 provides for enhanced sentences to be imposed on habitual offenders; § 40A-29-6, imposes the duty on the district attorney to prosecute habitual offenders; and § 40A-29-7, provides for the proceedings to be followed in the prosecution of habitual offenders. There can be no doubt that defendant was clearly informed that he was being proceeded against as an habitual offender. We disagree with defendant that the information failed to meet the requirements of § 41-6-7, N.M.S.A. 1953. This section of our statutes provides: "Charging the offense. — (1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one [1] or more of the following ways: "(a) By using the name given to the offense by the common law or by a statute. "(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged. "(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference." Here the defendant was expressly informed that the State was contending he was "an habitual offender," and a reference to § 40A-29-7 shows it to be entitled "Proceedings for prosecution of habitual offenders." The court and the defendant were given notice of precisely what was intended to be charged. Under his point 3 defendant contends: "THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO QUASH THE INFORMATION AS BEING UNCERTAIN, INDEFINITE AND INARTLY DRAWN, AND NOT CHARGING AS CONTEMPLATED BY THE STATUTE." The trial court conceded that the information was inartfully drawn, but observed that he thought the meaning is clear. We agree with the trial court. We do observe that the information is certainly no model of proper pleading, and would suggest that more care be taken in drafting and proof-reading of informations prior to trial, rather than being confronted by constant attacks thereon for inaccuracies which could easily have been discovered by careful reading and a little study. However, we have no trouble in finding the meaning of the information to be plain. Assuming the meaning to be plain, the information or indictment is not rendered insufficient because of improper grammatical construction. See State v. Cabodi, 18 N.M. 513, 138 P. 262 (1914). As provided in § 41-6-7, N.M.S.A. 1953, above-quoted, the purpose of the information is to give the court and the defendant notice of what offense is intended to be charged. Defendant next contends the information was defective and should have been quashed because it failed to name the court or courts in which he had previously been convicted. The first conviction, as above shown, was alleged to have been in Bernalillo County, New Mexico. The second is alleged to have been in "Curry County, New Mexico, Docket No. 5491, October 11, 1965." The third is alleged to have been in "Curry County, New Mexico, Docket No. 5571, April 20, 1966." The offenses listed in the information, all of which are felonies, could only have been tried in the district courts of Bernalillo and Curry counties, because they are, and at all times since statehood have been, the only trial courts in New Mexico with jurisdiction over such causes. N.M.Const. art. 6, §§ 13 and 23; State v. Klantchnek, 59 N.M. 284, 283 P.2d 619 (1955); State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). *787 Our habitual offender statutes do not require that the court or courts in which a defendant has been previously convicted be named. See also People v. Carkeek, 35 Cal. App.2d 499, 96 P.2d 132 (1939); State v. Krebs, supra. We are not suggesting that proper pleading, in most instances, does not require that the court or courts be named, but only that in the present case there can be no doubt that defendant was informed of the courts in which the State was contending he had previously been convicted. Defendant next contends that there is a fatal variance between the dates of the two alleged convictions in Curry County and the proof in regards thereto. The clerk of the district court, called as a witness by the State, testified that her records showed defendant was sentenced on November 2, 1965 in Cause No. 5491. The transcript of sentencing, which was offered and received into evidence as a part of one of the State's exhibits, shows the sentence was imposed on November 3, 1965, and was apparently filed in the office of the clerk on November 8, 1965. The information in the present cause charges that defendant was convicted on October 11, 1965. A portion of the same exhibit, in which is contained the said transcript of sentencing, consists of a transcript of arraignment and plea of guilty. This shows clearly that defendant pleaded guilty in Cause No. 5491 on October 11, 1965. As to cause No. 5571, the clerk testified that the records in her office showed defendant was sentenced on April 21, 1966. This is confirmed by a judgment and sentence of the court which appears as a portion of the State's exhibit relative to this cause. Other portions of this same exhibit clearly show he was tried and found guilty by a jury in this cause on April 20, 1966. The information in the present cause charges he was convicted on April 20, 1966. Defendant apparently takes the position that the imposition of sentence constitutes a conviction, or at least is an essential element of conviction. Conviction means the establishment of guilt by a plea of guilty, by a verdict of the jury in a jury case, or by a finding by the court in a non-jury case. The imposition of sentence is not an element of the conviction, but is rather a declaration of the consequences of the conviction. State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967). Defendant next contends that the trial court erred in admitting over objection certain testimony of the sheriff of Curry County and in admitting into evidence two exhibits. The testimony and the exhibits relate to the question of the identity of the defendant as the person charged in Causes Nos. 5491 and 5571. If we understand defendant's position correctly, he first contends that the testimony and the exhibits do "not come under the best evidence rule." We are not sure what he means by the best evidence rule. See 4 Wigmore, Evidence §§ 1173, 1174, 1177 at 301, 302, 307 (3d ed. 1940); McCormick, Evidence, §§ 195, 196 at 408, 409 (1954). In his objection he states that "the records of the district court are proper records to prove any alleged conviction." It is apparent that the testimony and the two exhibits were offered not to prove the prior convictions, but to establish the identity of defendant, which the State was required to do. Lott v. Cox, supra. If by the best evidence rule defendant means the "original document rule," then certainly some doubt as to its efficacy in New Mexico arises by reason of the provisions of § 20-2-20, N.M.S.A. 1953 (1965 Supp.). In any event, this rule is not here applicable, because the exhibits were the original records kept by the sheriff. He testified that these records, which he calls commitment cards, were kept and maintained by his secretary directly under his control and supervision, and that they were maintained as public records. These cards reflect the reason the named person was jailed, date of arraignment, nature of plea, date and disposition of the charge in both the justice of the peace and district courts, *788 as well as personal data such as name, address, age, sex, race, weight, date of birth, place of birth, height, color of hair, color of eyes, scars, etc. The court permitted the witness to use the cards to refresh his recollection, and admitted into evidence only the face of the cards which contains the name, address, and other personal data. The objection made at that time was that the information contained on the face of these cards was not the best evidence and immaterial. Defendant fails to specifically point out wherein the information contained on the cards is immaterial, or why they are not the best evidence, or what he means by best evidence. He admits that the identity of the defendant was material and essential. All the matters on the face of these cards relate to the question of identity. Evidence which is offered to prove an issue in a case, and which sheds light on that issue, is material and should be admitted. McCormick, Evidence, § 152 at 315 (1954); Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448 (1961). Evidence, though relevant and material, may be inadmissible for other reasons, but no contention is here made that the evidence with which we are here concerned was inadmissible for reasons other than materiality and that the same was not the best evidence. As his final point, defendant contends the trial court erred in admitting, over his objection, certain testimony of the district probation and parole officer. This officer testified that he had made a pre-sentence report just prior to November 2, 1965, at the request of the district judge. In so doing, he secured information as to defendant's prior criminal record. When asked what he had ascertained, defendant objected on the ground that it was "immaterial and improper." He also stated the best evidence had already been introduced. The court overruled the objection on the ground that it was admissible to establish identity. Defendant then made a further objection that a "proper foundation" had not been laid in that the time, place, and persons present at the time the information was secured had not been established. The district attorney then made inquiry of the witness as to the time, place and persons present. Only the defendant and the witness were present, and defendant told the witness of his arrest and conviction in Albuquerque, and of the fact that he had received a suspended sentence, except for confinement for a period of six months in the county jail. As we understand defendant's present contention, it is that this information, disclosed to the probation and parole officer, was confidential and privileged under the provisions of § 41-17-18, N.M.S.A. 1953. We find nothing in this statute which makes privileged a communication made by a criminal to a probation and parole officer in the course of a pre-sentence investigation. However, defendant cannot be heard to complain on this basis on appeal, when no claim of privilege was ever raised in the trial court. People v. Kroeger, 61 Cal.2d 236, 37 Cal. Rptr. 593, 390 P.2d 369 (1964); Strader v. Collins, 280 App.Div. 582, 116 N.Y.S.2d 318 (1952); McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632 (1953), sustained on rehearing, Northern Pac. R. Co. v. Department of Public Works, 257 P.2d 636 (1953). See also Tietjen v. McCoy, 24 N.M. 94, 172 P. 1042 (1918); Alvarado Min. & Mill Co. v. Warnock, 25 N.M. 694, 187 P. 542 (1919); Bishop v. Mace, 25 N.M. 411, 184 P. 215 (1919); McKenzie v. King, 14 N.M. 375, 93 P. 703 (1908); Rupp v. Summerfield, 161 Cal. App.2d 657, 326 P.2d 912 (1958); Bank of America Nat'l T. & S. Ass'n. v. Taliaferro, 144 Cal. App.2d 578, 301 P.2d 393 (1956). The judgment and sentence should be affirmed. It is so ordered. SPIESS and WOOD, JJ., concur.

419 F.Supp. 1123 (1976) Duane BERTRAND, Plaintiff, v. ORKIN EXTERMINATING COMPANY, INC., Defendant. No. 76 C 1337. United States District Court, N. D. Illinois, E. D. August 26, 1976. *1124 John C. Ruppert, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff. Fred R. Kimmel, Arvey, Hodes, Costello & Burman, Chicago, Ill., for defendant. MEMORANDUM OPINION DECKER, District Judge. Duane Bertrand, the plaintiff in this action, has brought suit against Orkin Exterminating Company, Inc., alleging that he was demoted and constructively discharged by the defendant because of his age in violation of the Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. The defendant has moved to dismiss the complaint or in the alternative to strike portions thereof and for a more definite statement. I. Motion to Dismiss The motion to dismiss charges that the plaintiff has failed to allege satisfaction of a purported jurisdictional prerequisite set forth in § 14(b) of the Act, 29 U.S.C. § 633(b).[1] This provision, which is headed "Limitation of Federal action upon commencement *1125 of State proceedings", applies when two conditions are satisfied. (1) The state must have a law prohibiting age-based discrimination. (2) There must be a state authority authorized to grant or seek relief from age-discrimination. The defendant asserts that Illinois law satisfies these two conditions and that as a result this court cannot obtain jurisdiction in an age-discrimination case until sixty days after the commencement of proceedings under the state law. The construction of § 633(b) has been the subject of considerable dispute. While various courts have attempted to harmonize their opinions, it is nonetheless evident that there is a substantial split of authority on this matter. At one extreme may be found a case such as Vaughn v. Chrysler Corporation, 382 F.Supp. 143 (E.D.Mich.1974), which analogizes § 633(b) to the jurisdictional deference provisions of Title VII, 42 U.S.C. § 2000e-5(c), thereby constituting a bar to plaintiff's cause of action. Somewhat less harsh is the conclusion of the majority in Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974), that while § 633(b) is a jurisdictional requirement, it nonetheless will not compel dismissal of an action where a plaintiff can present an equitable claim justifying the hearing of his cause. Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975), also utilized the analogy of Title VII law to find jurisdictional import in § 633(b), but it strictly construed the words of that section to require a specific legislative mandate to the state authority concerning age-discrimination. At the other extreme is the more recent opinion in Vazquez v. Eastern Airlines, Inc., 405 F.Supp. 1353 (D.P.R.1975), which concluded that § 633(b) did not establish resort to state law as a jurisdictional prerequisite for a federal age discrimination action. This opinion closely relies on the concurring opinion of Judge Garth in Goger, supra. A similar, but not identical, conclusion was reached in Skoglund v. Singer Co., 403 F.Supp. 797 (D.N.H.1975). Vazquez and the Goger concurrence maintain that the language of § 633(b) applies only to those cases where the plaintiff had already sought relief under state law prior to filing the federal action. This viewpoint holds that in such a situation the plaintiff must give the state authority the required sixty days to attempt to resolve the dispute. However, there is no obligation to utilize the state remedy. Skoglund holds that "although Section 633(b) requires timely resort to state remedies before a complaint may be filed in federal court, this requirement is not jurisdictional; therefore, plaintiff's failure to notify the Massachusetts Commission Against Discrimination in a timely fashion does not bar him from this court." 403 F.Supp. at 802-03. This holding differs from Vazquez in that it does not expressly treat § 633(b) as applying solely to actions in which the state remedy had previously been invoked. Instead it construes § 633(b) as an expression of congressional deference to the concept of federalism, but not as a formal jurisdictional precondition. This survey of recent judicial opinion makes it apparent that no commonly accepted construction of § 633(b) has of yet emerged. This court has found no indication that the Seventh Circuit has expressed a view on this controversy. As noted, the courts that view § 633(b) as a jurisdictional requirement are greatly influenced by the similarity of the language of that provision to language found in Title VII at § 2000e-5(c).[2] The latter provision has been generally perceived as a jurisdictional *1126 requirement. Abshire v. Chicago and Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972). Judge Hunter cited in Goger, supra, portions of the legislative history indicating that Title VII served as a model for the drafting of this portion of the Age Discrimination in Employment Act. 492 F.2d at 16 (fn. 13). Although this is a well argued position, the court finds that a persuasive argument has also been made by Judge Pesquera in Vazquez, supra, and by Judge Garth in his concurrence to Goger for the proposition that § 633(b) does not mandate resort to state procedures as a jurisdictional prerequisite for an action under the Act. These arguments agree that Title VII was a significant model for the Act, but note that various provisions from Title VII procedure were considered and specifically rejected by Congress in the drafting of the 1967 Age Discrimination Act. Congress evidently was concerned about the impact of bureaucratic delay imposed by the establishment of an additional administrative impediment to adjudication of grievances. The concept of age discrimination itself made it clear that the typical plaintiff under the Act would be elderly, and thus particularly afflicted by the burdens of administrative tardiness. See the statement of Senator Javits in the hearings on the Act quoted in part at 405 F.Supp. 1355. Vazquez correctly notes that the jurisdictional requirements for a suit brought under the 1967 Age Discrimination Act are found in § 7 of that Act, 29 U.S.C. §§ 626(c)-(e). These provisions bear the express label of "jurisdiction" in the United States Code, and are the more likely analogue to § 2000e-5(b)-(d) of Title VII. Both Title VII and the Age Discrimination Act establish as a jurisdictional requirement the filing of notice of a proposed action prior to the commencement of the suit. But while the jurisdictional notice requirement appears in the same section of Title VII with the language dealing with deference to state law remedies, the reference to state law deference in § 633(b) is isolated from the other jurisdictional provisions and is removed to the tail end of the Act. It is found only after the section establishing an annual report from the Secretary of Labor to Congress on age discrimination matters. While the provisions of § 626 are expressly labeled jurisdictional, § 633(b) is part of a section entitled "Federal State relationship", and is captioned "Limitation of Federal Action upon commencement of State proceedings." The language of this section, which admittedly is not artfully worded, does not expressly command the commencement of proceedings under state law. Semantically the sentence "no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law . . ." can be read to accord with an interpretation that after the commencement of proceedings under the state law, no suit may be brought under § 626 for sixty days. Thus a construction that "the limitation upon the right to file suit under the ADEA would be applicable only if proceedings had already been initiated under existing State law", 405 F.Supp. at 1356, makes grammatical sense and is consistent with the concerns expressed by Senator Javits. *1127 Judge Garth and Judge Pesquera both gave substantial deference to the construction of the statute given by Secretary of Labor Wirtz, which was summarized by Judge Garth as an assertion "that the sole Congressional purpose underlying the enactment of 29 U.S.C. § 633(b) was to give the State time to act on a complaint if an aggrieved individual chose to proceed there first." 492 F.2d at 17-18. This interpretation does buttress the non-jurisdictional thesis, and comports with congressional concern to provide concurrent federal and state alternatives for victims of age discrimination. It is noteworthy that § 633(a) of the Age Discrimination Act,[3] a provision with no exact counterpart in Title VII, mandates that an action under the 1967 Act will supersede any state action. Judge Garth's comment upon the interaction of these sections is particularly cogent: "I do not believe that it was the intent of Congress to require, prior to the institution of a Federal action, the commencement of a State proceeding which, under § 633(b), need not be concluded and which in any event would be superseded by the filing of the Federal action under § 633(a)." 492 F.2d at 18. A construction of § 633(b) as a jurisdictional prerequisite implies a belief that Congress would choose to defer to federalism by burdening victims of age discrimination with an obligation to file what will ordinarily be nothing more than a pro forma gesture. Mandatory recourse to state remedies, which need not be exhausted, would normally be a dilatory exercise or a "procedural pitfall for unsuspecting individuals." 405 F.Supp. at 1357. The history of litigation over this section underscores how easily problems may arise from such a construction. Judge Pesquera and Judge Garth find it more credible to assume that Congress sought by drafting § 633(b) to affirm its commitment to a federal system by enabling a complainant to initially elect a pursuit of state remedies, and to give substance to such an election by assuring state authorities at least a minimum period in which to accomplish their objectives. Thus, there is considerable controversy over whether § 633(b) constitutes a jurisdictional precondition for an action under the Age Discrimination Act. But it is not necessary for the court to resolve this dispute since the court finds substantial grounds for its conclusion that the applicable Illinois laws do not provide the remedies contemplated by the Act. Thus § 633(b) does not in any case require initial resort to Illinois statutory remedies for age discrimination. As noted, § 633(b) has two separate requirements. There must be a state law against age discrimination, and there must also be a state authority charged with granting or seeking relief against such discrimination. Illinois does have "an Act to prohibit unjust discrimination in employment because of age and providing for penalties." Ill.Rev.Stat. ch. 48 §§ 881-7. Section 884(1) renders unlawful the conduct complained of by the plaintiff.[4] The parties agree that this satisfies the first requirement of § 633(b). However, there is a dispute as to whether Illinois law "authoriz[es] a State authority *1128 to grant or seek relief from such discriminatory practice[s]." The defendants contend that Ill.Rev.Stat. ch. 14 § 9 satisfies the second requirement. This statute states: "There is created in the office of the Attorney General a Division for the Enforcement of Civil and Equal Rights. The Division, under the supervision and direction of the Attorney General, shall investigate all violations of the laws relating to civil rights and the prevention of discriminations against persons by reason of race, color, creed, or physical or mental handicap, and shall, whenever such violations are established, undertake necessary enforcement measures." The defendant notes that the Illinois statute against age discrimination refers to a "right to employment otherwise lawful without discrimination because of age", Ill. Rev.Stat. ch. 48 § 881(c) and as a consequence argues that Ill.Rev.Stat. ch. 48 § 884(1) is one of the "laws relating to civil rights" which the Division for the Enforcement of Civil and Equal Rights may enforce. Both parties have sought to clarify the scope of the authority of the Division by means of affidavits which relate the contents of telephone conversations between their attorneys and the current director of the Division. The contents of these affidavits lead to divergent implications as to the fundamental issue facing the court. In any case, they are both clearly reconstructions of unsworn, out-of-court conversations, related by a third party. Both are inadmissible hearsay. As a result the court must look to the language of the statutes and the constructions given them by the courts. While the legislature has called freedom from age-based discrimination a right, it is also clear that it has repeatedly failed to refer to the age discrimination act in its specific list of types of statutes that the Division is authorized to enforce. By common statutory construction a listing of specific items will take precedence over a general phrase such as "laws relating to civil rights". Similarly, the inclusion of specific categories of laws implies a conscious exclusion of those other specific categories omitted from the statute. Inclusio unius est exclusio alterius. Reference to the Illinois age discrimination law buttresses the conclusion that this is not a statute which can be enforced by the Division to grant relief to a victim of discrimination. The statute provides a penalty of $50-100 against a perpetrator of illegal age discrimination and denominates a violation of the law a "petty offense". There is no express indication that the victim may obtain damages or other relief. The cases annotated in Smith-Hurd Illinois Annotated Statutes reveal only one reported case where an alleged victim sought relief under this act. In Kennedy v. Com. Unit Sch. Dist. # 7, 23 Ill.App.3d 382, 319 N.E.2d 243 (4th Dist. 1974), the court disposed of the claim based on the age discrimination act by finding that the statute did not cover the specific situation raised by that action. This was a private action, and was not brought by the Division. There is thus no reported case authority affirming that the Division could grant or seek relief under this act, and considerable reason to doubt that such relief is available. And, more pertinent to this action, there is no evidence that the Division has ever attempted to bring any enforcement action under the Illinois Act. The court therefore finds no basis to conclude that Illinois has provided the state law remedies against age discrimination contemplated by the Federal Age Discrimination in Employment Act. The material before the court indicates that there is no statutory basis for relief, and that the Division neither has statutory authority to seek or grant relief, nor has it ever attempted to assert any such authority. The conclusion that Illinois lacks the state remedies contemplated by § 633(b) is buttressed by the opinion of the Ninth Circuit in Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975), which held that the federal act required a "showing of state concern in the specific area of age discrimination", at 694 (emphasis in original). The *1129 California law considered in Curry made age discrimination in unemployment unlawful and a misdemeanor violation. The California Department of Human Resources Development was given the power of investigation over violations of the Unemployment Insurance Code, which contained the age discrimination provision. The Department also possessed the power to "prosecute actions" with respect to matters within its jurisdiction. While the Ninth Circuit noted that the Department did not assign any personnel to handle age discrimination complaints and referred complainants to local and federal agencies,[5] it emphasized that there was not "any specific legislative mandate directing the Department to act in the field of age discrimination". 513 F.2d at 693. The Illinois statute establishing the Division for the Enforcement of Civil and Equal Rights, Ill.Rev.Stat. ch. 14 § 9, is cast in the same generalized language. A fortiori the court cannot find a specific legislative mandate to act in the field of age discrimination where the statute specifies various anti-discrimination laws which the Division is required to enforce, and where age discrimination is not to be found among the enumerated categories. Finally, the court emphasizes that it would not dismiss the instant complaint even if it could be shown that the Illinois remedies satisfy the intent of § 633(b) and that this provision in fact establishes a jurisdictional prerequisite for an action under the Federal Age Discrimination Act. As the heading under which it is included in the statute indicates, § 633 reflects a congressional intent to preserve federal-state comity by expressing some deference to state created remedies. The defendant emphasizes in its briefs the minimal nature of that deference, citing language from Pacific Maritime Association v. Quinn, 465 F.2d 108, 110-11 (9th Cir. 1972), that "[t]he federal purpose is to give respectful but modest deference to a state that has evidenced interest." The defendant concedes that the alleged jurisdictional requirement is limited to the formality of giving the state agency sixty days to resolve the dispute. Not only would a complainant be permitted to look to the federal courts if he were not satisfied with the work of the state agency after two months, but § 633(a) would cut off the efforts of the state agency in medias res. A review of the litigation spawned by § 633(b) reveals that this section has proved more successful as a trap to the unwary litigant than as a gesture of respect towards state remedies. It is also evident that the federal judiciary has proved extremely reluctant to permit such an obscure technicality, such a token tip of the hat towards federalism, to deprive complainants of the congressionally intended remedy for age-based discrimination. Of the cases cited by the parties to construe the import of § 633(b), it is significant that only in Vaughn v. Chrysler Corporation, supra, was the action actually dismissed. And Chief Judge Kaess agreed in Vaughn that the requirements of § 633(b) may be waived under the principles of equity. The majority in Goger v. H. K. Porter Co., Inc., supra, vacated the district court's dismissal of the action because the plaintiff had relied upon the advice of the Secretary of Labor and because the jurisdictional nature of § 633 had not been clearly indicated by the courts. As the court noted in Skoglund v. Singer Co., supra, many of the requirements of Title VII and the Age Discrimination Act have been treated as "jurisdictional but subject to equitable modification." Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). The Age Discrimination Act is a remedial statute enacted by Congress to combat an unjust and injurious employment practice. Such statutes are liberally construed to achieve their ends. Skoglund, supra, at 804. *1130 As the Vazquez court noted, defendants frequently seek to utilize § 633(b) as a "procedural pitfall for unsuspecting individuals which could easily serve . . . to deprive aggrieved individuals of their day in court, thereby thwarting the objective of this remedial legislation." 405 F.Supp. at 1357 (citations omitted). The court will not allow this to happen in the instant case. As the discussion of the law, supra, reveals the construction of the provisions of § 633(b) as well as the relevant state statutes is not easy, and there have been no definitive interpretations of these laws either from the Illinois courts or the Seventh Circuit. In these circumstances it would not be equitable to deprive plaintiff Bertrand of his day in court because he failed to comprehend the details of these laws better than many judges.[6] The court therefore notes that, regardless of the jurisdictional significance of § 633(b), under equitable principles it would not have dismissed the instant action. Rather, it would have retained jurisdiction for a period sufficient to allow the plaintiff to defer to the available state administrative procedures for the sixty days indicated in § 633(b). The plaintiff would be allowed to return to the federal remedy after the expiration of the token sixty-day deference period. This accords with the favored practice of other courts when confronted with the failure of a plaintiff to comply with the Title VII deferral requirements. Oubichon v. North American Rockwell Corporation, 482 F.2d 569 (9th Cir. 1973); Parker v. General Telephone Co. of the Northwest, Inc., 476 F.2d 595 (9th Cir. 1973); Mitchell v. Mid-Continent Spring Co. of Kentucky, 466 F.2d 24 (6th Cir. 1972); Motorola, Inc. v. EEOC, 460 F.2d 1245 (9th Cir. 1972). See also, Crosslin et Vir v. Mountain States Tel. & Tel., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). The motion to dismiss the complaint is therefore denied since, even if § 633(b) were to be viewed as a jurisdictional requirement, that section does not require any prior resort to the laws and agencies of Illinois because the Illinois remedies do not specifically grant any Illinois agency the authority to grant or seek relief from age discrimination. II. Jury Trial The defendant has moved, in the alternative to its motion to dismiss the complaint, for an order striking Bertrand's demand for a jury trial. Again making an analogy to Title VII law, Orkin Exterminating argues that there is no right to a jury trial under the Age Discrimination Act. In fact, the language of the Act differs substantially from the equivalent passages in Title VII and reveals an evident congressional consent to jury determinations of issues under the Act. Thus § 626(b) reads in part "In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter . . ." (Emphasis added.) Similarly, § 626(c) reads in part "Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter . . ." (Emphasis added.) In contrast, Title VII states at 42 U.S.C. § 2000e-5(g) ". . . the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate." (Emphasis added.) The language of the statute thus expressly contemplates the availability of "legal" relief which, in contrast to "equitable" rights, are protected by the Seventh *1131 Amendment guarantee of adjudication by a jury. Statutory rights may be "legal rights", Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), and in actions raising both legal and equitable claims the issues underlying a legal claim for damages must be tried to a jury. Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The Supreme Court has endorsed a three-pronged test for the determination of whether an action can be characterized as "legal" or "equitable". ". . . the `legal' nature of an issue is determined by considering first, the premerger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries." Ross v. Bernhard, 396 U.S. 531 at 538, fn. 10, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970). The Court has also indicated that the strong federal policy favoring jury trials requires that all doubts should be resolved in favor of granting a trial by jury. Ross v. Bernhard, supra; Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). The relief sought in the complaint includes the following: (1) an order reinstating the plaintiff in his former position with full seniority and status; (2) damages for lost wages; (3) damages for physical and mental suffering; (4) costs of the suit; (5) attorneys' fees; (6) other just and appropriate relief. The parties agree that the injunctive relief sought and attorneys' fees and costs of the action remain within the province of the judge and do not entitle a plaintiff to a jury trial. However, there is considerable dispute over the classification of the demand for back wages and as to the availability of damages for physical and mental suffering under the Age Discrimination Act. As in the case with many critical aspects of litigation under this statute, there is a dearth of precedent on these matters. However, the two cases most closely in point both concur that back pay should be treated as a "legal" claim, triable by jury. Chilton v. National Cash Register Co., 370 F.Supp. 660 (S.D.Ohio 1974), and Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D. Mo.1975), are both thoughtful and detailed opinions which focus on the availability of a jury trial in private actions for back pay under the Age Discrimination Act. Applying the Ross v. Bernhard, supra, test, the claim for back pay was analogized to the common law action for breach of contract by wrongful damage, or as an action sounding in tort with the statute merely creating a new legal duty on the part of the employer. Chilton, supra, 370 F.Supp. at 665; Cleverly, supra, 69 F.R.D. at 350-51. The courts then concluded that, since damages are a traditional form of relief in courts of law, and since the calculation of damages is a standard function of a jury, a private action for back pay raises a jury issue. The defendant has not cited any case that reaches a contrary conclusion with respect to the Age Discrimination Act. Of the cases cited, the most interesting is O'Connell v. Ford Motor Co., 11 F.E.P. Cases 1474, 1475 (E.D.Mich.1975), which says in dicta that "[b]asically, an award of back pay has been held to be equitable when it is statutorily part of the restitution remedy of reinstatement." However, the court did not decide this issue because it found that the plaintiff had indicated in his complaint that he only sought equitable remedies. Furthermore, the analogy to Title VII upon which Judge Pratt relied is of doubtful validity in light of the different language of the statutes. Accord, Cleverly, supra, 69 F.R.D. at 351. For the same reason, the host of Title VII cases cited by Orkin Exterminating are not in point. The defendant argues that because Bertrand has also demanded reinstatement, his claim for back wages should not be viewed as a legal action for monetary damages but should be treated as part of the equitable remedy of restitution. However, Cleverly was brought by a plaintiff seeking reinstatement as well as back pay. Nor is the very brief order of Judge Lynch in Brennan v. International Harvester, 7 E.P.D. ¶ 9171 *1132 (N.D.Ill.1974), persuasive that Cleverly is wrongly decided on this point. While the latter case holds that the inclusion of a prayer for back wages does not transform an equitable proceeding into a case legal in nature, International Harvester was tried pursuant to the powers, remedies, and procedures provided in § 17 of the Fair Labor Standards Act, which establishes an equitable proceeding. However, the instant action seeks enforcement pursuant to § 16 of FLSA, as is permitted under 29 U.S.C. § 626(b).[7] Actions under the latter section afford the right to a jury trial. Chilton, supra, 370 F.Supp. at 664. Thus, in accordance with the thoughtful opinions in Chilton and Cleverly, the court holds that the complaint has raised claims which may be tried by a jury, and the motion to strike the jury demand must therefore be denied. III. Damages for Physical and Mental Suffering Defendant has also moved to strike those portions of the complaint which demand damages for physical and mental suffering, alleging that such relief is not authorized under the Act. Orkin Exterminating does not cite any cases expressly barring such claims, and again relies on purportedly analogous Title VII actions. It also cites several cases under the Age Discrimination Act in which the plaintiff was awarded only back wages. However, none of these cases discussed the availability of this type of damages, and it is apparent that the plaintiffs did not recover for physical and mental suffering because they did not seek such relief. In contrast, the plaintiff cites Rogers v. Exxon Research and Engineering Co., 404 F.Supp. 324 (D.N.J.1975), which contains a long discussion of this very issue. Rogers concludes that a plaintiff under the Age Discrimination Act is entitled to demonstrate damages for pain and suffering. Noting that the statute sought to "make whole" victims of discrimination, the court stressed that "the most pernicious effect of age discrimination is not to the pocketbook, but to the victim's self-respect. . . . [T]he out-of-pocket loss occasioned by such discrimination is often negligible in comparison to the physiological and psychological damage caused by the employer's unlawful conduct." 404 F.Supp. at 329. The court noted that a discharged elderly worker is often able to find alternative employment because of his experience and skills, and thus mitigate his pecuniary injury. The real injury suffered by a discriminatee may thus be poorly compensated by an award of mere back wages. The Rogers court distinguished those Title VII cases, also cited by defendant Orkin Exterminating, on the grounds that these Title VII cases were decided on the basis that relief under that statute is limited to "equitable relief in the form of restitution." As Judge Stern noted in Rogers, the language of the Age Discrimination Act is much more expansive, providing "such legal or equitable relief as will effectuate the purposes of this chapter." 29 U.S.C. § 626(c). Similarly, § 626(b) allows the court "jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement, or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section." (Emphasis added.) It is apparent that Congress, recognizing the subtle forms that age discrimination may take, afforded plaintiffs a wide arsenal of remedies for the diverse injuries that may result from such discrimination. Rogers is the only case in point on this issue, and the court finds it persuasive. Accordingly, *1133 the motion to strike those portions of the complaint seeking damages for physical and mental suffering is hereby denied.[8] IV. Motion for a More Definite Statement The final aspect of defendant Orkin Exterminating's motion is a contention that paragraphs 5, 11 and 12 are insufficiently precise. The defendant asks that the complaint be dismissed or that the plaintiff be required to provide a more definite statement. Paragraph 5 asserts that the defendant is an employer within the meaning of § 630(b) of the Act. Paragraph 11 asserts that the plaintiff suffered great humiliation and embarrassment and was curtailed in his duties and ultimately constructively discharged by the defendant. Paragraph 12 asserts that Orkin Exterminating's conduct was wilful. The court fails to perceive how these allegations do not satisfy the requirements of F.R.Civ.P. 12(e) of a pleading sufficiently clear to permit an opponent to frame a responsive pleading. Certainly, if Orkin Exterminating is not an employer within the contemplation of the Act, the defendant has no need of facts pleaded by the plaintiff to obtain the information regarding its own business necessary to raise a jurisdictional defense. Shultz v. Manor House of Madison, Inc., 51 F.R.D. 16 (W.D.Wisc.1970). The basis for the allegations of paragraphs 11 and 12 may be understood by a perusal of the entirety of the complaint. To the extent that Orkin Exterminating is surprised by these allegations, it has the right to aver that it is without knowledge or information sufficient to form a belief as to the truth of the allegation. EEOC v. Wah Chang Albany Corp., 499 F.2d 187, 190 (9th Cir. 1974). In any case, it is manifestly improper to burden a plaintiff with an obligation to amend a complaint as a means of obtaining discovery. Hodgson v. Orson E. Coe Pontiac, Inc., 55 F.R.D. 133, 134 (W.D. Mich.1971); Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126 (5th Cir. 1959). The defendant's motion for a more definite statement is therefore denied. NOTES [1] § 633(b) provides: "In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority." [2] 42 U.S.C. § 2000e-5(c) provides: "In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority." [3] § 633(a) provides: "Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action." [4] Ill.Rev.Stat. ch. 48 § 884(1) provides: "It is an unlawful employment practice for an employer: (1) to refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment, otherwise lawful, because of such individual's age, when the reasonable demands of the position do not require such an age distinction; however, subsection (1) shall not be construed to make it unlawful to reject any applicant for a particular job when the consideration of safety makes it impractical to train an applicant over 45 years of age for the duties of that particular job." [5] The hearsay affidavits excluded by the court sought to introduce evidence concerning the manpower allocated by the Division for the Enforcement of Civil and Equal Rights to age discrimination cases, and the practices of the Division with respect to such complaints. There is no admissible evidence before the court with respect to these questions of fact. [6] The court notes that if this action were dismissed, the statute of limitations would bar the plaintiff from reinstituting suit following recourse to the state law remedies. [7] § 626(b) provides in part: "The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." [8] Since the question of damages for physical and mental suffering raises a legal issue which is triable by a jury, the conclusion that the Act permits such relief provides an alternate basis for the court's denial of defendant's motion to strike Bertrand's jury demand.

962 F.2d 543 60 USLW 2798, 27 Collier Bankr.Cas.2d 119 In the Matter of PENGO INDUSTRIES, INC., Pengo Finance,N.V., Debtors.TEXAS COMMERCE BANK, N.A., Indenture Trustee, Appellee,v.Dr. Seymour LICHT, and Official Committee of UnsecuredCreditors of Pengo Industries, Appellants. No. 91-1769. United States Court of Appeals,Fifth Circuit. June 12, 1992.Rehearing Denied July 10, 1992. Richard H. Kuh, Edgar H. Booth and Donald L. Kuba, Warshaw, Burstein, Cohen, Schlesinger & Kuh, New York City, for Official Committee. Edward L. Rothberg, Weycer, Kaplan, Pulaski & Zuber, Houston, Tex., for Texas Commerce Bank. Appeals from the United States District Court for the Northern District of Texas. Before GOLDBERG, DUHE, and BARKSDALE, Circuit Judges. GOLDBERG, Circuit Judge: 1 A company finds itself unable to meet its debt obligations. Its bondholders fear bankruptcy, with its inherent delays, costs, and complications. But perhaps the company can work out its financial problems before capitulating to the bankruptcy courts. The company proposes an exchange: Bondholders can tender an old bond and receive a new bond of equal face value, but on terms more favorable to the company. The incentive for the bondholder is two-fold: an increased likelihood that the company can meet its obligations on the new bonds and the avoidance of bankruptcy proceedings. Although many bondholders do exchange their old bonds, the company nevertheless lands in bankruptcy court. The issue then becomes the amount of the new bondholder's claim against the debtor: Is it the full face value of the new bond or is it some lesser, discounted amount reflecting the fair market value of the old bond at the time of the exchange? 2 This particular query has fascinated not only creditors of companies engaging in consensual workouts, but also bankruptcy commentators and practitioners: Whether a face value exchange of debt instruments in a consensual out-of-court workout creates original issue discount that constitutes unallowable "unmatured interest" under section 502(b)(2) of the Bankruptcy Code. We affirm the district court and hold that such an exchange does not generate "unmatured interest." I. BACKGROUND 3 The Pengo companies manufacture equipment for the petroleum industry, explosives, rubber products and earth-boring augers and teeth. In late 1988 and early 1989, involuntary petitions for relief under Chapter 11 of the Bankruptcy Code were filed against Pengo Industries, Inc. and its subsidiary, Pengo Finance, N.V. (collectively, "Pengo"). The Official Unsecured Creditors Committee and Dr. Seymour Licht, an individual creditor, objected to two proofs of claim filed by Texas Commerce Bank National Association ("TCBNA") on behalf of the holders of two securities, the Class A and Class B debentures. TCBNA served as indenture trustee for holders of Class A and Class B debentures. 4 Back in 1980, Pengo Finance issued $22,500,000 of 8 1/2% convertible debentures due in 1995. The public purchased these Old Debentures for the full face amount of $1,000 each. Neither Pengo Finance, nor Pengo, the guarantor, could make interest payments to the Old Debenture holders in 1983. Pengo merely accrued the interest expense on its books. Several years later, in 1985, a standstill agreement between Pengo and its senior secured lenders required an exchange offer as part of an out-of-court workout designed to enable Pengo to restructure its indebtedness. In the First Exchange Offer, Pengo Finance offered to exchange one 0% $500 face amount Class A debenture and one 0% $500 face amount Class B debenture for each 8 1/2% $1,000 face amount Old Debenture. Each participating Old Debenture holder received two New Debentures with a total face value of $1,000 for each of their Old Debentures with a face value of $1,000. The Old Debentures were subordinated to payment in full of the New Debentures. And, while the Old Debentures mature in 1995, the New Debentures matured in 1991. The Old Debentures could be redeemed for Pengo's common stock at a much less favorable rate than that for the New Debentures. About $13,205,000 of the Old Debentures--58.7% of the issue--were exchanged for the same face amount of New Debentures. Although holders of the New Debentures waived the payment of past due interest on the Old Debentures, Pengo remained in default on the Old Debentures outstanding after the exchange because it continued to fail to make interest payments. 5 The reorganization plan placed all unsecured creditors into a single class, which included holders of both Old and New Debentures. Those creditors will share in a limited distribution. Since the total claims of the unsecured creditors exceed the amount of the limited distribution, the amount of the New Debenture holders' claims directly alters the funds available to all other unsecured creditors. 6 The two proofs of claim filed by TCBNA on behalf of the holders of Class A and Class B debentures in the Pengo bankruptcy represented the full face amount of the outstanding New Debentures. TCBNA did not deduct any amount for unamortized original issue discount. The Committee and Dr. Licht, who holds Old Debentures, objected to the amounts of the claims, arguing that the exchange created unamortized original issue discount and, thus, a portion of the claims constituted "unmatured interest" not allowable under 11 U.S.C. § 502(b)(2).1 7 After a hearing and upon stipulated facts, the bankruptcy court sustained the objections and reduced the New Debenture holders' two proofs of claim to eliminate what the court considered to be unamortized original issue discount--unmatured interest under section 502(b)(2). The district court reversed the bankruptcy court and held that the proofs of claim did not include a claim for original issue discount. Texas Commerce Bank Nat'l Ass'n v. Licht (In re Pengo Indus., Inc.), 129 B.R. 104 (N.D.Tex.1991).2 The Committee and Dr. Licht appeal from the judgment of the district court reversing the judgment of the bankruptcy court. We review the bankruptcy court's conclusion of law de novo. Stoker v. Smith (In re Moody), No. 91-2156, Slip op. 4091, 4092 (5th Cir. Apr. 29, 1992) (citing Jordan v. Southeast Nat'l Bank (In re Jordan), 927 F.2d 221, 224 (5th Cir.1991)). II. DISCUSSION 8 A. "Unmatured Interest" and Original Issue Discount. 9 Section 502(b) of the Bankruptcy Code requires the bankruptcy court to determine the amount of a claim objected to by a party in interest under section 502(a). Congress has provided specific standards to guide the bankruptcy court in making this determination. 11 U.S.C. § 502(b)(1)-(8) (1979 & Supp.1991). One established statutory rule is that the bankruptcy court must disallow any claim "for unmatured interest." 11 U.S.C. § 502(b)(2) (Supp.1991). This rule flows from the legal principle that "interest stops accruing at the date of the filing of the petition." S.Rep. No. 989, 95th Cong., 2d Sess. 63, reprinted in 1978 U.S.C.C.A.N. 5787, 5849. 10 In this case, the bankruptcy rule meets an economic acronym: OID. OID--original issue discount--presents a definitional concept generally unfamiliar to those not bonded to the world of economics. As ably explained by the Second Circuit, "[o]riginal issue discount results when a [debt instrument] is issued for less than its face value. The discount, which compensates for a stated interest rate that the market deems too low, equals the difference between a [debt instrument]'s face amount (stated principal amount) and the proceeds, prior to issuance expenses, received by the issuer." LTV Corp. v. Valley Fidelity Bank & Trust Co. (In re Chateaugay Corp.), 961 F.2d 378, 380 (2nd Cir.1992); see Marc S. Kirschner, Dan A. Kusnetz, Laurence Y. Solarsh & Craig S. Gatarz, Prepackaged Bankruptcy Plans: The Deleveraging Tool of the '90's in the Wake of OID and Tax Concerns, 21 Seton Hall L.Rev. 643, 648-50 (1991) [hereinafter Deleveraging Tool ]; see also Nicholas P. Saggese, Gregg A. Noel & Michael E. Mohr, A Practitioner's Guide to Exchange Offers and Consent Solicitations, 24 Loy. L.A. L.Rev. 527, 548 n. 100 (1991) ("[A] debt security is issued with OID to the extent its stated redemption price at maturity exceeds its issue price.") [Hereinafter Practitioner's Guide ]. The discount on a debt instrument, deduced from a purchase price lower than the face value of the instrument, "is 'in the nature of additional interest.' " Deleveraging Tool, supra, at 649 & n. 28 (citations omitted). The borrower amortizes the OID, "for accounting and tax purposes, over the life of the [debt instrument]," then the company pays back the face value to the holders on the maturity date. Chateaugay, 961 F.2d at 380. 11 The "unmatured interest" bankruptcy rule and the economic notion of "original issue discount" intersect to form the legal nexus for our decision-making. The term "unmatured interest," which is not defined by the Bankruptcy Code, encompasses OID. The economic reality of original issue discounting bolsters this conclusion. Chateaugay, 961 F.2d at 380, ("As a matter of economic definition, OID constitutes interest.") (citations omitted). For OID constitutes a "method of providing for and collecting what in economic fact is interest to be paid to compensate for the delay and risk involved in the ultimate repayment of monies loaned." In re Public Serv. Co., 114 B.R. 800, 803 (Bankr.D.N.H.1990). Moreover, the legislative history verifies our inclusion of OID in the category of unallowable "unmatured interest." The Senate and House Reports both state that "[i]nterest disallowed under [§ 502(b)(2) ] includes postpetition interest that is not yet due and payable, and any portion of prepaid interest that represents an original discounting of the claim, yet that would not have been earned on the date of bankruptcy." S.Rep. No. 989, 95th Cong., 2d Sess. 62, reprinted in 1978 U.S.C.C.A.N. 5787, 5848; H.R.Rep. No. 595, 95th Cong., 2d Sess. 352, reprinted in 1978 U.S.C.C.A.N. 5963, 6308. Since Congress considered unamortized OID "the economic equivalent of 'unmatured interest,' " we agree with both the bankruptcy court and the district court in concluding that any unamortized OID created in the Pengo exchange represents a disallowable claim in bankruptcy under section 502(b)(2). Deleveraging Tool, supra, at 650; see Chateaugay, 961 F.2d at 380, ("[C]ourts that have considered the issue under section 502(b)(2) have held that unamortized OID is unmatured interest and therefore unallowable as part of a bankruptcy claim.") (citations omitted). 12 B. The Debt-for-Debt Face Value Exchange. 13 The 1980's spawned trouble--trouble for companies encumbered by massive amounts of debt. Not surprisingly, this crisis has fused into "an explosion of debt defaults, out-of-court debt restructuring and bankruptcies." Deleveraging Tool, supra, at 643. A company confronted with debt default can choose to rearrange its finances out of court as an alternative to obtaining relief under the bankruptcy laws. 14 A debtor in financial trouble may seek to avoid bankruptcy through a consensual out-of-court workout. Such a recapitalization, when it involves publicly traded debt, often takes the form of a debt-for-debt exchange, whereby bondholders exchange their old bonds for new bonds. The debtor hopes that the exchange, by changing the terms of the debt, will enable the debtor to avoid default. The bondholders hope that by increasing the likelihood of payment on their bonds, the exchange will benefit them as well. The debtor and its creditors share an interest in achieving a successful restructuring of the debtor's financial obligations in order to avoid the uncertainties and daunting transaction costs of bankruptcy. 15 Chateaugay, 961 F.2d at 381. The Pengo exchange offer, like that in Chateaugay, constituted a "face value exchange," for Pengo simply substituted "new indebtedness for an existing debenture, modifying terms or conditions but not reducing the principal amount of the debt." Id.; see Deleveraging Tool, supra, at 646.3 Pengo, as would any other offerer of a face value exchange, obtained "more time to recover from its financial problems," Deleveraging Tool, supra, at 646, but "remain[ed] fully liable for the original funds borrowed." Chateaugay, 961 F.2d at 381. 16 The 1989 bankruptcy court decision of In re Chateaugay created an enormous disincentive for investors to participate in consensual out-of-court restructurings and, thus, spurred movement of financially troubled companies into the bankruptcy courts. LTV Corp. v. Valley Fidelity Bank & Trust Co. (In re Chateaugay Corp.), 109 B.R. 51 (Bankr.S.D.N.Y.1990), aff'd, 130 B.R. 403 (S.D.N.Y.1991), aff'd in part and rev'd in part, 961 F.2d 378, (2nd Cir.1992). Before we explain why we choose not to follow the rule formulated by the Chateaugay bankruptcy court and urged by Appellants and, instead, adopt the rule of the Chateaugay court of appeals, we pause to further highlight the context of the Chateaugay and Pengo debt-for-debt face value exchange offers. The legislative history to section 502 supplies an example of how the pre-bankruptcy issuance of a note for cash generates OID: "[A] claim on a $1,000 note issued the day before bankruptcy would only be allowed to the extent of the cash actually advanced. If the original discount was 10 percent so that the cash advanced was only $900, then notwithstanding the face amount of note, only $900 would be allowed." S.Rep. No. 989, reprinted in 1978 U.S.C.C.A.N. at 5848; H.R.Rep. No. 595, reprinted in 1978 U.S.C.C.A.N. at 6308. In the illustration, the debtor issued a note for cash, while in Chateaugay and Pengo the debtor issued the debt instruments as part of an exchange of debt securities. See Practitioner's Guide, supra, at 550 n. 108. Although we conclude that the statutory rule excludes original issue discount to "prevent creditors from claiming disguised, unearned interest"--regardless of context--the legislative history simply does not provide guidance to courts considering section 502(b)(2) objections based on the notion of OID in the context of an exchange in a consensual out-of-court workout. Id. (emphasis in original); see Gary B. Wilcox & David M. Rievman, Restructuring Troubled Debt Under the New Debt Exchange Rules, 10 Va. Tax Rev. 665, 669 n. 28 (1991) [hereinafter Restructuring ]. 17 The Chateaugay bankruptcy court, then, faced a narrow issue, but one of national first impression: Whether a face value exchange of debt instruments in a consensual out-of-court workout generated original issue discount not allowed under section 502(b)(2). In Chateaugay the LTV Corporation offered to exchange $1,000 face amount of new 15% senior notes and shares of common stock for each $1,000 face amount of old 13 7/8% debentures. After the face value exchange in Chateaugay, LTV filed for Chapter 11 protection. The indenture trustees filed proofs of claim for the face value of the new notes. The bankruptcy court first held, as we do, that unamortized OID constituted "unmatured interest" under section 502(b)(2). Chateaugay, 109 B.R. at 55. The court also held, however, that the exchange represented the issuance of new debt because "[m]aturity dates, interest rates, and sinking fund requirements have all been changed in the New Notes." Id. at 56. According to the Chateaugay bankruptcy court, LTV issued the new notes at a discount gauged by the difference between the face amount of the new notes and the value paid for the new notes. The court reasoned that the fair market value of the "property given up in the exchange transaction"--the old debentures--constituted the proper measure of the issue price of the new notes.4 Id. at 58 (holding that unamortized OID on the new notes could not be resolved on motion for summary judgment because dispute existed as to the value of the old debentures on the exchange date). 18 The Committee and Dr. Licht urge this Court to endorse the Chateaugay bankruptcy court's analysis and hold that the Pengo exchange created OID measured by the difference between the face amount of the New Debentures and the value given for the New Debentures, measured by the unamortized portion of the fair market value of the Old Debentures on the exchange date. The Chateaugay decision, however, produced a swift response from commentators who aggressively scrutinized its analysis of the original issue discount question in the face value exchange context and observed its effect on consensual out-of-court restructurings. See Deleveraging Tool, supra, at 647-48; Richard L. Epling, Exchange Offers, Defaults, and Insolvency: A Short Primer, Bankr.Devs.J. 15, 42-47 (1991) [hereinafter Primer ]; Practitioner's Guide, supra, at 548-51; Restructuring, supra, at 669 n. 28. This is so because the decision translated, in general terms, into the rule that when a financially troubled company exchanges new debt for old debt of equal face value, exchanging holders "will have a lower claim than those who did not [exchange], even though the overall debt obligation of the company has not been altered." Deleveraging Tool, supra, at 647. Under the rationale of the Chateaugay bankruptcy court, the claim of an exchanging holder of a debt instrument in a subsequent bankruptcy proceeding equals not the face amount of the new debt instrument, but the face amount of the new debt instrument minus the value paid for the new debt instrument, measured by the unamortized portion of the market value of the old debt instrument on the exchange date. For example, if we were to follow the Chateaugay bankruptcy court rule in this case, the claims of the exchanging holders of New Debentures would not be $1,000, the face amount of the New Debentures, but about $680, the face amount of the New Debentures ($1,000) minus the unamortized OID (approximately $320). This illustration makes it quite understandable that creditors of financially troubled companies are eager for the courts to provide them with guidance as to the post-bankruptcy ramifications of their workout decisions. 19 Until one month ago, the bankruptcy court's decision in Chateaugay represented the only school of judicial thought on the issue of whether a debt-for-debt face value exchange in a consensual out-of-court restructuring generated "unmatured interest" within the meaning of section 502(b)(2). But the Chateaugay bankruptcy and district court decisions did not reveal the complete interpretive scenario. A unanimous panel of the Second Circuit recently reversed the Chateaugay district court's judgment affirming the bankruptcy court and held, inter alia, that a face value exchange of debt obligations in a consensual workout does not generate OID. Chateaugay, 961 F.2d at 383. This holding injected a new theory of OID into the bankruptcy jurisprudence. The legal landscape eloquently pictured by the Second Circuit persuades us that, like the LTV exchange, the debt-for-debt face value exchange in the Pengo consensual workout did not create original issue discount for purposes of section 502(b)(2). We discuss the factors that support our holding. 20 1. The Debt-for-Debt Face Value Exchange and Section 502(b)(2). 21 Bankruptcy policy strongly favors the "speedy, inexpensive, negotiated" adjustment of creditor-company relations afforded by out-of-court procedures. Chateaugay, 961 F.2d at 382, (citing In re Colonial Ford, 24 B.R. 1014, 1015 (Bankr.D.Utah 1982)). The Bankruptcy Code promotes out-of-court "workouts in the first instance, with refuge in bankruptcy as a last resort." Id. (citing Colonial Ford, 24 B.R. at 1015). See generally Colonial Ford, 24 B.R. at 1015-17 (extensively detailing the advantages of out-of-court workouts and explaining how the Code favors such restructurings). We endorse the reasoning of the Second Circuit, which aims to align the resolution of the OID issue with this bankruptcy policy. If the exchange of debt generates OID for the purposes of section 502(b)(2) and the unamortized portion of that OID is not allowed under section 502(b)(2), "then creditors will be disinclined to cooperate in a consensual workout that might otherwise have rescued a borrower from the precipice of bankruptcy." Id. A rule that a debt-for-debt face value exchange in a consensual out-of-court workout creates OID concomitantly reduces the likelihood that creditors will "cooperate with a struggling debtor" because such a rule lowers the exchanging creditors' claims in bankruptcy. Id. Creditors faced with the choice of either refusing to exchange or accepting the exchange offer would certainly realize that if they choose to exchange, their claim in a subsequent bankruptcy proceeding would shrink by the amount of unamortized OID. Primer, supra, at 44 & n. 178 ("The financial press has noted this development with some dismay."). This creditor awareness would surely translate into "fewer out-of-court debt exchanges and more Chapter 11 filings." Chateaugay, 961 F.2d at 382. 22 Such a rule also would "grant[ ] a ... windfall ... to holdouts who refuse to cooperate." Id. (citation omitted). The resulting dynamic is not difficult to prophesy. As the exchanging creditors' claim to a piece of the distributional pie shrinks, the corresponding portion of the pie actually recovered by the holdouts grows. Practitioner's Guide, supra, at 549-50 & n. 106. Since a rule recognizing the creation of OID in the context of a debt-for-debt face value exchange not only penalizes the exchanging creditors by revaluing their claims downward, but also rewards the non-exchanging holdouts by increasing the chance of receiving the total amount of their fully-intact claims, it "gives creditors a disincentive to cooperate with a struggling debtor." Deleveraging Tool, supra, at 658 (emphasis in original); see Practitioner's Guide, supra, at 549. We strongly disfavor a judicial interpretation of the Bankruptcy Code that contravenes the substantial Congressional policy favoring out-of-court consensual workouts. We hold, therefore, that the debt-for-debt face value exchange in the Pengo consensual out-of-court restructuring did not create "unmatured interest" in the form of original issue discount under section 502(b)(2) of the Bankruptcy Code. 23 2. Distinguishing Inapposite Scenarios. 24 As heretofore discussed, we decide only the narrow issue of whether a debt-for-debt face value exchange generates OID not allowed under section 502(b)(2). The parties offer cases and arguments discussing OID in contexts other than the one presented by the facts of this case. In closing, we think it is important to briefly state what this case is not about. First, we decline to consider when an original issue of debt might create a discount and, instead, appropriately confine our decision to whether the exchange of debt instruments in a consensual out-of-court restructuring creates a discount. See supra page 547 (contrasting how OID can arise when a debtor issues a debt instrument for an amount less than its face value with the suggestion that OID is generated when a debtor exchanges a debt instrument for another debt instrument of equal face value in a consensual out-of-court workout). 25 Next, we express no opinion as to whether a fair market value exchange creates OID not allowed under § 502(b)(2). In a "fair market value exchange," the holders exchange a debt instrument for a new debt instrument with a lower face amount. In the face value exchange involved in this workout, Pengo simply exchanged new indebtedness for old indebtedness with the same face amount. 26 We also refuse to investigate debt-for-stock exchanges and merely consider the debt-for-debt exchange presented by the facts of this case. In reducing the claims of the New Debenture holders, the bankruptcy court relied on In re Allegheny Int'l, Inc., 100 B.R. 247 (Bankr.W.D.Pa.1989). That case, however, concerned a pre-bankruptcy debt-for-equity swap, not a debt-for-debt exchange. Allegheny offered to exchange new debentures for old preferred stock. Id. at 248. Since the equity holders merely "had an interest in, but not a claim against" the debtor prior to the exchange, commentators have suggested that the exchange constituted an original issue of debt that created not only a claim against the debtor, but also a discount. Deleveraging Tool, supra, at 654 n. 43 (emphasis in original); see Practitioner's Guide, supra, at 549 n. 103 ("stockholder who exchanges his outstanding stock for debt has elevated his status to that of creditor"); Primer, supra, at 43 ("debentureholders had stepped up from an equity position as a result of the exchange"); Restructuring, supra, at 669 n. 28 ("preferred stockholders were elevated to creditor status"). We emphasize, as did the Second Circuit in Chateaugay, that we need not decide the distinct issue of whether OID arises from a debt-for-equity exchange. Chateaugay, 961 F.2d at 383, (noting that debtor Allegheny's balance sheet reflected an increase in overall liabilities after the debt-for-equity exchange). 27 Finally, this is not a tax case. We stress that the tax treatment of original issue discounting does not control our inquiry, which is placed firmly within the bankruptcy framework. The Second Circuit firmly rebuked the Chateaugay bankruptcy court for its reliance on tax cases for the proposition that a debt-for-debt exchange offer in a consensual out-of-court restructuring generates OID. Id. 961 F.2d at 383. While we might consider the tax treatment of a transaction persuasive authority in determining the bankruptcy treatment of that transaction, the tax rules applicable to a transaction certainly do not circumscribe those devised in bankruptcy. Chateaugay, 961 F.2d at 383, (citations omitted); Deleveraging Tool, supra, at 655 & n. 46 (citations omitted). The bankruptcy system revolves around the policy that all creditors who are similarly situated are entitled to fair and equitable treatment. Deleveraging Tool, supra, at 655 & 660 n. 56. The tax system, however, usually requires that whenever a "realization event" has occurred and the taxpayer can measure the amount of realizable gain or loss, the taxpayer must include the consequences of that transaction in calculating the taxpayer's income. Id. at 656. Just because an exchange offer may constitute a realization event justifying the taxation of the participants, it does not follow that the transaction demands a corresponding transformation in the relationship of similarly situated creditors. Chateaugay, 961 F.2d at 383; Deleveraging Tool, supra, at 656. As bluntly stated by the Second Circuit, the reasoning underlying the tax treatment of debt-for-debt exchanges "simply does not apply in the bankruptcy context."5 Chateaugay, 61 F.2d at 383. Especially when polestar bankruptcy policy militates against doing so, we do not feel compelled to interpret the Bankruptcy Code so as to parallel the tax rules for a transaction. III. CONCLUSION 28 For the foregoing reasons, we AFFIRM the judgment of the district court. 1 Section 502(b)(2) provides in relevant part that if such objection to a claim is made [under § 502(a) ], the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that--(2) such claim is for unmatured interest. 11 U.S.C. § 502(b)(2) (Supp.1991). 2 The district court opinion contains all the stipulated facts. For an exhaustive rendition of the events involved in this dispute, see Pengo, 129 B.R. at 105-08 3 This case differs from Chateaugay in one respect. In Chateaugay the old debentures were originally issued at a discount. Because the original discount carried over from the old debt to the new debt, the Second Circuit found OID on the new debt, although no new OID was created by the face value debt-for-debt exchange. Chateaugay, 961 F.2d at 384. Here, the Old Debentures were not issued at a discount; we confine our analysis to whether the exchange of the Old Debentures for the New Debentures generated OID 4 The court disregarded the value of the acquired stock in determining the value of the new notes; it compared the exchanged debentures with the acquired debt 5 The parties quarrel over whether this Court should consider certain statements contained in the Offering Circular about the reporting of interest income by holders of the New Debentures. We need not reach the issue of whether these statements are properly before this Court. Even if we resolved that issue affirmatively, we repeat that the tax treatment of a transaction does not determine its treatment in bankruptcy

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-18-00278-CR LEVI STUART NICHOLS AKA LEVI STUART NICHOLAS, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 108th District Court Potter County, Texas Trial Court No. 74,586-E, Honorable Douglas R. Woodburn, Presiding February 26, 2020 ORDER Before QUINN, C.J., and PIRTLE and DOSS, JJ. Pending before the Court is appellant’s motion for rehearing. We clarify one matter addressed in the motion and otherwise deny it. The matter concerns the first footnote in our opinion. Through it, we observed that 1) the circumstances could raise suspicions about whether the sole purpose of the inventory was to search for drugs, and 2) appellant did not so argue below or on appeal as grounds for suppressing the contraband eventually found. Appellant replied to those observations by arguing that: In addition, the substance of footnote 1 of this Court’s opinion seems to imply that trial counsel below should have requested the trial court to issue  fact findings on whether the totality of the circumstances evinced an intent on the part of the police to conduct a pretextual inventory search. However, pretextual seizures are permitted under the current state of the law. Therefore, to request such a finding in the instant case would have accomplished little. We make no comment on whether “pretextual seizures are permitted under the current state of the law.” Rather, our intent was to indicate that appellant did not question whether the inventory was undertaken in good faith or merely as a subterfuge to justify a general search for contraband. As said in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.” Id. at 374 (emphasis added). Similarly, our United States Supreme Court in Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990), explained that inventory searches were permissible due to “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4 (emphasis added). Because appellant did not contend that, under the circumstances at bar, the inventory procedures were not administered in “good faith” or were invoked merely as “a ruse for a general rummaging . . . to discover incriminating evidence,” that topic fell outside the scope of our review. See Washington v. State, 152 S.W.3d 209, 213 (Tex. App.—Amarillo 2004, no pet.) (holding that the issue of whether the trial court erred in refusing to suppress evidence was waived because the grounds asserted on appeal did not comport with those proffered to the trial court). With that, we deny the motion for rehearing. Per Curiam Do not publish. 2 

759 P.2d 186 (1988) 107 N.M. 399 RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A., Petitioner, v. REVENUE DIVISION OF THE DEPARTMENT OF TAXATION AND REVENUE OF the STATE of NEW MEXICO, Respondent. No. 17617. Supreme Court of New Mexico. August 10, 1988. Rodey, Dickason, Sloan, Akin & Robb, P.A., Richard C. Minzner, Paul D. Barber, James O. Browning, Albuquerque, for petitioner. Hal Stratton, Atty. Gen., Frank D. Katz, Daniel Yohalem, Sp. Asst. Attys. Gen., Santa Fe, for respondent. OPINION STOWERS, Justice. We granted certiorari in this case to determine whether the New Mexico gross receipts tax applies to legal services performed by a non-Indian law firm off a reservation on behalf of Indian Tribes for claims against the United States pursuant to the Indian Claims Commission Act of 1946, (the Act) 25 U.S.C. Sections 70 to -70v-3 (1976), as amended Pub.L. No. 95-69 § 29(a), 91 Stat. 273 (July 20, 1977). The district court held that federal law preempted the state tax imposed by the respondent Revenue Division of the Department of Taxation and Revenue (Revenue Division) and granted summary judgment to petitioner Rodey, Dickason, Sloan, Akin & Robb, P.A. (Rodey). The court of appeals reversed, holding that the Act did not preempt the imposition of the tax and the tax did not constitute an impermissible infringement on tribal self-government or *187 Indian sovereignty, and remanded back to the district court to determine what portion of the legal services performed by Rodey took place outside New Mexico. We granted certiorari and affirm the court of appeals' decision but on different grounds. We affirm only the result reached by the court of appeals insofar as it held that the Revenue Division properly imposed a gross receipts tax on the legal services performed by Rodey. We do not agree with the court of appeals' reasoning that the New Mexico gross receipts tax imposed on legal services performed by a non-Indian law firm off the reservation requires a federal preemption by implication analysis. The federal preemption by implication doctrine created by the United States Supreme Court to protect Indian interests on the reservation does not apply to activities of non-Indians occurring off Indian reservations. See Ramah Navajo School Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982) (Ramah). The material facts, set forth in the court of appeals' opinion, are as follows. Rodey represented the Navajo Tribe in claims before the Federal Indian Claims Commission and the United States Court of Claims under the Act. The claims initially were filed in 1950 and 1951 and Rodey was retained in 1973 to prosecute those claims. In 1982 the parties reached a settlement resulting in two judgments in favor of the Tribe for $36,800,000. The statutory maximum, or ten percent of the judgments, was allocated as attorney fees in accordance with the Act. Rodey received a portion of this allocation amounting to $2,286,000. It paid the New Mexico gross receipts tax on that amount totalling approximately $93,000, and then filed for a refund. No portion of the tax was paid by the Tribe. Rodey performed at least fifty percent of its legal services in connection with these claims outside of the tribal reservation but within the State of New Mexico, and in addition, Rodey claims it performed some work on the reservation, some in Arizona, Utah and in Washington D.C. The Revenue Division denied the refund and Rodey filed suit in the district court. The Revenue Division argues that based on the preemption cases, Ramah, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982), White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (White Mountain), Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (Mescalero), and Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965) (Warren Trading Post), the tax imposed on Rodey for legal work performed off the reservation is not preempted by federal law. And, the preemption by implication doctrine, which balances federal, state and tribal interests, is inapplicable to activities taking place off the reservation. Rodey, on the other hand, claims that the preemption by implication analysis applies whenever the taxed activity deals with reservation Indians in a federally-regulated area, irrespective of whether the activity takes place on or off the reservation. "Absent federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Mescalero, 411 U.S. at 148-49, 93 S.Ct. at 1270. Exemptions from state taxes are not granted by implication, Oklahoma Tax Commission v. United States, 319 U.S. 598, 606, 63 S.Ct. 1284, 1287-88, 87 L.Ed. 1612 (1943); United States Trust Co. v. Helvering, 307 U.S. 57, 60, 59 S.Ct. 692, 693-94, 83 L.Ed. 1104 (1939). Trotter v. Tennessee, 290 U.S. 354, 356, 54 S.Ct. 138, 139, 78 L.Ed. 358 (1933), only an actual conflict with explicit provisions of a federal statute will preempt a state tax. In the instant case no federal statute exists that expressly forbids state taxation of the attorney fees received by counsel pursuant to the Act. Because there is no explicit preemption, Rodey bases its claim for a tax exemption on the preemption by implication doctrine, which evolved as an exception to the requirement of explicit tax exemption. In White Mountain the Supreme Court stated *188 the basis of the preemption by implication doctrine with respect to Indian tribes. The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of preemption that have emerged in other areas of the law * * *. We have thus rejected the proposition that in order to find a particular state law to have been pre-empted by operation of federal law, an express congressional statement to that effect is required. White Mountain, 448 U.S. at 143-44, 100 S.Ct. at 2583 (citations omitted). This analysis includes two independent but related barriers to the assertion of state taxing authority over Indian tribes, their reservations and their activities. First, the exercise of such authority may be pre-empted by federal law. Second, it may unlawfully infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 [79 S.Ct. 269, 270-71, 3 L.Ed.2d 251] (1959). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important "backdrop," McClanahan v. Arizona State Tax Comm'n, [411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973)], against which vague or ambiguous federal enactments must always be measured. Id. at 142-43, 100 S.Ct. at 2583 The Supreme Court repeatedly has stated however that exemptions from state tax by implication are permitted only where the taxed activity of the non-Indian occurred on the reservation. Ramah, 458 U.S. at 838, 102 S.Ct. at 3398-99, (imposition of New Mexico's gross receipts tax on receipts earned by a non-Indian contractor from the construction of a school for Indian children on the reservation was preempted by federal laws). A distinction has been made between the activities of non-Indians as opposed to Indian activities on reservations. Indian activities on reservations cannot be taxed by the state absent congressional consent. Mescalero, 411 U.S. at 148, 93 S.Ct. at 1270. Where the non-Indian activities occur on the reservation, a tax exemption by implication requires the balancing of federal interests determined from the relevant federal laws, with tribal interests as revealed by "traditional notions of tribal sovereignty," and with state interests to raise revenues from those to whom it provides governmental services. Id.; see also Annotation, Indians — State or Local Taxation, 73 L.Ed.2d 1506, 1509-14 (1984). Relying on White Mountain, Warren Trading Post, Ramah and Mescalero, the court of appeals reasoned that an Indian tribe in all instances did not shed its constitutionally protected rights of tribal sovereignty and independence upon crossing outside its reservation boundaries. Therefore, the court went on to examine whether preemption by implication occurred when the taxed activity involved a non-Indian law firm assisting an Indian tribe asserting a claim under the Act where the activity, subject to taxation, took place off the reservation. Applying this preemption analysis, the court held that the New Mexico gross receipts tax sought to be imposed by the Revenue Division on the attorney fees paid by the Tribe to Rodey did not significantly impact tribal or federal interests. The Tribe received 90% of the judgments awarded it in the settlement; Rodey received the maximum 10% contracted for as attorney fees. The gross receipts was computed from and paid entirely out of the 10%. The Tribe received no more or less due to the imposition of the tax. Moreover, Rodey performed a considerable amount of its legal services on behalf of the Tribe in New Mexico. The state therefore has a legitimate interest in raising revenues as compensation for the services it provides Rodey, namely the privilege of engaging in business within the state. The *189 state's interests are strongest when the taxpayer is the recipient of state services. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 157, 100 S.Ct. 2069, 2083, 65 L.Ed.2d 10 (1980). Thus, the court of appeals concluded that even though the federal preemption by implication analysis applies to this case, the gross receipts tax sought to be imposed by the Revenue Division did not impermissibly infringe on the Tribe's self-government or sovereignty. As noted already, we do not agree that the preemption by implication doctrine applies to the activity of non-Indians occurring off the reservation. The Supreme Court held in Ramah, White Mountain and Warren Trading Post that the state taxes sought to be imposed on activities of non-Indians that took place on the reservation were implicitly preempted by federal laws. We have been unable to discover any direction by the Supreme Court that preemption by implication, an exception to the general doctrine that preemption must be by an explicit Act of Congress, would apply to activities which occur off reservations. Certain privileges of tribal sovereignty do not extend beyond the political and geographical boundaries of the sovereign. See Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Thus, tribal activity beyond reservation boundaries would be susceptible to taxation by the state in the "absence of express federal law to the contrary." Mescalero, 411 U.S. at 148, 93 S.Ct. at 1270. In Mescalero, the Court held that New Mexico may collect its nondiscriminatory gross receipts tax on a ski resort operated by the Mescalero Apache Tribe on off-reservation land. Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state laws that are otherwise applicable to all citizens of the state. Id. at 148-49, 93 S.Ct. at 1270-71. The preemption by implication doctrine does not extend to insulate a non-Indian from state taxes for work performed off the reservation. When reviewing state taxation of activities of non-Indians off the reservation, an actual conflict with an express federal provision is required. Mescalero, 411 U.S. at 149-50, 93 S.Ct. at 1270-71. Since no federal statute explicitly forbids state taxation of the attorney fees in this case, we decline to extend the preemption by implication doctrine to situations involving off-reservation business activities. We also need not apply the infringement test here, since the impact of the state tax fell solely on Rodey. Therefore, Rodey is not entitled to any refund from the Revenue Division for work it performed in New Mexico in connection with the lawsuit on behalf of the Indian tribes. Whether Rodey is entitled to any refund of the gross receipts tax it paid as a result of legal services performed outside New Mexico is a factual matter to be determined by the trial court upon remand. The judgment of the trial court granting summary judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. IT IS SO ORDERED. SCARBOROUGH, C.J., SOSA, Senior Justice, and WALTERS and RANSOM, JJ., concur.

Severability of Legislative Veto Provision A legislative veto provision in the S elective Service Act, w hich w ould authorize either H ouse o f C ongress to disapprove contracts in excess o f $25,000,000, is unconstitutional under Im m igration a n d N aturalization Service v. Chadha, but is severable from the rest o f the statute. T his unconstitutional provision m ust be severed from the statute in its entirety, including its language callin g fo r notification to C ongress o f proposed contracts. February 28, 1991 M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l F ed era l Em ergency M anagem ent A gency This responds to your request for the opinion of this Office concerning the severability of an unconstitutional legislative veto provision in section 18(a) of the Selective Service Act of 1948, 50 U.S.C. app. § 468(a). The statute authorizes the President to secure expedited delivery of materials procured for the military forces of the United States. It also contains a provision added in 1973 that would enable one House of Congress to disap­ prove contracts of more than twenty-five million dollars. We conclude that the unconstitutional legislative veto is severable from the statute’s grant of authority to the President to obtain expedited delivery of military contracts. We further conclude that the better view, under the unsettled authority, is that the portion of the statute added by the 1973 amendment constitutes the provision that must be severed from the statute. I. Section 18(a) of the Selective Service Act of 1948 provides: Whenever the President after consultation with and receiv­ ing advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of 49  the United States, or for the use o f the Atomic Energy Com­ mission, he is authorized, through the head o f any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate, except that no order which re­ quires payments thereunder in excess of $25,000,000 shall be placed with any person unless the Committees on Armed Ser­ vices of the Senate and the House of Representatives have been notified in writing of such proposed order and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Commit­ tees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such order. 50 U.S.C. app. § 468(a). Section 18(b) of the Act directs contractors to give precedence to orders placed pursuant to the statute. 50 U.S.C. app. § 468(a). The statute did not contain a legislative veto as originally enacted. Congress added the clause in section 18(a) that begins “except that no order” in 1973. See Department of Defense Appropriation Authorization Act, 1974, Pub. L. No. 93-155, § 807(d)(1), 87 Stat. 605, 616 (1973). II. The provision authorizing one House of Congress to disapprove an order of more than twenty-five million dollars is unconstitutional. Immigration and N aturalization Service v. Chadha, 462 U.S. 919 (1983). Chadha states that congressional “action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,” id. at 952, must comply with the constitutional requirements of passage by both Houses of Congress and presentment to the President for approval or veto. U.S. Const, art. I, §§ 1, 7. The resolution of disapproval authorized by the 1973 addition to section 18(a) authorizes one House of Congress to limit the President’s legal powers. The congressional disap­ proval mechanism, therefore, may not constitutionally be employed. III. A. The next question is whether the legislative veto may be severed from the remaining provisions of the statute that grant the President authority to order articles and materials on an expedited basis. The Supreme Court has de­ cided the severability of a legislative veto provision on two occasions. See 50 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987); Chadha, 462 U.S. at 931-35. Both cases employ the standard test for severability questions: “Unless it is evident that the Legislature would not have enacted those pro­ visions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, 480 U.S. at 684; Chadha, 462 U.S. at 931-32.1 Writing with specific reference to legislative vetoes, the Court in Alaska Airlines emphasized that “ [t]he more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress.” 480 U.S. at 685. Additionally, unconstitutional provisions are presumed to be severable from the remainder of a statute. See Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion). Finally, unconsti­ tutional provisions are further presumed to be severable if they are contained in a statute that includes a severability clause. See, e.g., Alaska Airlines, 480 U.S. at 686; Chadha, 462 U.S. at 932. The absence of such a clause, however, does not give rise to a presumption against severability. See Alaska Airlines, 480 U.S. at 686.2 The grant of authority to the President in section 18(a) would remain fully operative as a law if the congressional disapproval language is excised. The language authorizing the President to order materials needed for na­ tional security was part of the statute as originally enacted in 1948. It was fully operational in its original form. The congressional disapproval mecha­ nism was added by Congress in 1973 to provide congressional review o f a Presidential decision to place orders over $25,000,000. As the Court ex­ plained in Alaska Airlines, provisions of this sort are by their “very nature . . . separate from the operation of the substantive provisions of a statute,” and do not affect the capacity of the balance of the legislation to function indepen­ dently. 480 U.S. at 684-85. Next, the law that results when the legislative veto provision is severed is not one that Congress would not have enacted. See Alaska Airlines, 480 U.S. at 685 (severance improper where it would produce a statute that Con­ gress would not have accepted). O f course, “the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government,” Alaska Airlines 480 U.S. at 685, but that is not enough to preclude severance. Rather, the appropriate inquiry is whether the delegation to the President of the power to enter into these military contracts is “so controversial or so broad that Congress would have been unwilling to make the delegation without a strong oversight mechanism.” Id. There is no reason to believe that Congress would have refused to grant this power. Congress made such a grant in 1948, and added the legislative veto provision only in 1973. In this case, then, the proper question is whether in 1973 Congress would have repealed the 1948 law if it had known that the 1 This is the C ourt’s longstanding test for severability. See Champlin Refining Co. v. Corporation Comm 'n, 286 U.S 2 1 0 ,2 3 4 (1932). 2 Neither the 1948 act nor the 1973 amendments include a severability clause. 51 legislative veto provision was impermissible. We are aware of no indication that Congress would have taken such a step, and the legislative history of the 1973 amendment strongly suggests that it would have done no such thing. Congress added the legislative veto to the statute in 1973 as one of a group o f amendments to four statutes giving the President emergency pow­ ers in an attempt to “reassert congressional control over backdoor financing of defense contractors.” 119 Cong. Rec. 30,873 (1973) (statement of Sen. Proxmire). The initial Senate version of the 1973 amendment would have provided that no order over twenty-million dollars could be placed “except with the prior approval of the Congress.” Id. at 30,872. The Conference Committee changed this and the other three provisions because “[w]hile the House conferees were sympathetic to the purposes of the amendment, they were concerned that the language was unduly restrictive and could result in delays on important weapons programs.” H.R. Conf. Rep. No. 588, 93d Cong., 1st Sess. 44 (1973) (explaining amendment to 10 U.S.C. § 2307). In short, Congress wanted a legislative veto, but not at the price of destroying the President’s authority to act in an emergency. Refusal to sever the legislative veto would produce the harsh result Congress was careful to avoid. Accord­ ingly, the legislative veto may be severed from the remainder of the statute. 1. Because of the way in which this statute is phrased, we must determine the proper way in which to sever the unconstitutional provision. The 1973 am endment reads: except that no order which requires payments thereunder in excess of $25,000,000 shall be placed with any person unless the Committees on Armed Services of the Senate and the House o f Representatives have been notified in writing of such pro­ posed order and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Con­ gress has adopted, within such 60-day period, a resolution disapproving such order. 50 U.S.C. app. § 468(a). If the entire provision were severed, the statute would return to the form it had when first enacted. The language also permits another line of severance. If only the disapproval mechanism — i.e., the words “and neither House of Congress has adopted, within such 60- day period, a resolution disapproving such order” — were removed, the provision would in effect be transformed into a report-and-wait requirement.3 3 T here is at least one other alternative: severance of the words "and 60 days of continuous session of C ongress have expired following the date on which such notice was transmitted to such Com mittees and neither House o f Congress has adopted, within such 60-day period, a resolution disapproving such order.” Severance o f this clause would elim inate the sixty-day delay period and the disapproval require­ m ent but would preserve the reporting requirement. The C ourt’s decisions, however, lend no support to this choice. 52  In order to decide this question, we must identify the portion of the statute that constitutes the unconstitutional legislative veto. Neither Alaska Airlines nor Chadha addressed this as a separate issue, although each case in some sense decided it, because each case described the statute that would remain after severance. The Court’s unexplained decisions in the two cases point in opposite directions: Alaska Airlines supports severance of the entire provi­ sion added in 1973, but Chadha supports the line of severance that would leave a report-and-wait requirement. While the existing authorities thus do not provide a certain answer, we believe the better view to be that the entire clause added in 1973 constitutes the legislative veto that must be severed from the valid remainder of the statute. Severance o f the entire provision is supported by textual analysis and by Alaska Airlines. First, the legislative veto is most naturally read as a single requirement; it is only an accident of phrasing that makes it possible to produce a report-and-wait procedure by deleting certain words. The require­ ment of a report to Congress is integral to the operation of the legislative veto itself. It gives each House of Congress the notice and information needed to exercise its veto power, and provides a time-table for the one- house veto procedure. Without these, the legislative veto could not function, but they have no independent importance. There is therefore no reason to give the notification rule any independent status. Nothing in the legislative history demonstrates any perception of separate requirements for reporting, waiting, and disapproval. Instead, Congress seemingly viewed the entire clause as indivisible, with the reporting requirement and the sixty-day delay period operating only to facilitate the exercise of the disapproval power. The 1973 amendment therefore would not operate in the manner that Con­ gress intended if only the disapproval mechanism is removed from the statute. Alaska A irlines , in which the Supreme Court most recently considered questions of severability in depth, reinforces this conclusion. The statute at issue in that case authorizes the Secretary of Labor to issue regulations for the administration of an airline employee protection program. 49 U.S.C. app. § 1552(0(1)- The statute further provides: The Secretary shall not issue any rule or regulation as a final rule or regulation under this section until 30 legislative days after it has been submitted to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Public Works and Transportation of the House of Repre­ sentatives. Any rule or regulation issued by the Secretary under this section as a final rule or regulation shall be submit­ ted to the Congress and shall become effective 60 legislative days after the date of such submission, unless during that 60- day period either House adopts a resolution stating that that House disapproves such rules or regulations, except that such rules or regulations may become effective on the date, during 53  such 60-day period, that a resolution has been adopted by both Houses stating that the Congress approves o f them. 49 U.S.C. app. § 1552(f)(3). The Court characterized the entire second sentence o f this subsection as the “legislative-veto provision which gave rise to this litigation,” 480 U.S. at 682, and severed that provision from the rest of the statute. Likewise, the legislative veto provision added to the Selective Service Act in 1973 has the same three components: a report requirement, a wait requirement, and a disapproval mechanism. According to the opinion in A laska A irlines, those provisions together constitute the legislative veto and should be treated as a unit for purposes of severance. W hile we take some guidance from Alaska Airlines, we do not suggest that the case is dispositive. For one thing, the disputed question in that case was whether the regulatory authority the statute gives to the Secretary of Transportation survived the invalidation of the legislative veto. Once the Court determined that the legislative veto could be severed from the grant of authority to issue regulations, the Court did not have to decide what the “legislative veto” was. Also, the statute at issue in Alaska Airlines already contains a report-and-wait requirement (the first sentence of 49 U.S.C. app. § 1552(0(3)) distinct from the provision the Court severed (the second sen­ tence of 49 U.S.C. § 1552(0(3)). Thus, severance did not eliminate all statutorily-mandated congressional oversight, a point the Court made in its opinion. See 480 U.S. at 689 (“should Congress object to the regulations issued, it retains a mechanism for the expression o f its disapproval that re­ duces any disruption of congressional oversight caused by severance of the veto provision”). By contrast, severance of the entire provision added to section 18(a) of the Selective Service Act in 1973 would eliminate any statu­ tory oversight procedure. Severance of the disapproval mechanism alone is supported by other strands o f the C ourt’s severability analysis and by the Court’ opinion in Chadha. Severance of the last clause of the 1973 amendment instead of the whole 1973 amendment results in legislation that Congress might have en­ acted. If the purpose of the 1973 amendment was to facilitate congressional oversight, preservation of a report-and-wait requirement would further this goal, albeit less successfully than the legislative veto Congress drafted.4 Chadha lends some support to this line of severance. In Chadha, the Court’s mode of severance removed the congressional disapproval mechanism while 4 It also m ight be argued that this line o f severance is most faithful to the Court’s command to “refrain from invalidating more of the statute than is necessary.” Alaska Airlines, 480 U.S. at 684. We doubt, however, that the C ourt’s point is to save as many words as possible. Rather, the goal is to preserve “unobjectionable provisions separable from those found to be unconstitutional.” Id. at 684 (quoting Regan v. Time, Inc., 468 U.S. at 652) (em phasis added). That rule cannot be applied until we have decided w hether the words that would produce a report-and-wait procedure constitute a separate “pro­ vision." 54 leaving a report-and-wait requirement.5 Application of this technique to sec­ tion 18(a) of the Selective Service Act would eliminate the congressional disapproval mechanism but preserve the rest of the section, thus effectively creating a report-and-wait requirement. Chadha , however, can be distinguished from the situation we confront here. The history of the Immigration and Nationality Act indicates that Congress sought to confer substantial power on the Attorney General but also to retain some active role in the deportation process, whether or not that role involved the specific legislative veto in force at the time of Chadha.6 The Court concluded on the basis of this history that the legislative veto was severable because Congress would not have simply returned to the private- bill system had it known the one-house veto to be impermissible. 462 U.S. at 934. The history also supported the conclusion that Congress was deter­ mined to retain an active role, and thus accorded with the Court’s decision to sever the legislative veto so as to produce a report-and-wait mechanism. There is no similar evidence concerning the 1973 amendment to the Selec^ tive Service Act. Congress had not tinkered with the relative powers of the two branches and gave no indication that it had any strong separate interest in being involved in the decision if the legislative veto was unavailable. Under these circumstances, to change the legislative veto into a report-and- wait mechanism would represent a rewriting of the statute based on nothing more than speculation as to Congress’s probable preferences. The C ourt’s approach in Alaska Airlines avoids these difficulties. To the extent the two cases are in tension, Alaska Airlines is authoritative, both because it is more recent and because it deals with severability in greater detail and therefore is more likely to represent the Court’s consid­ ered judgment on the matter. The outcome in Alaska Airlines may represent a judgment (or at least an intuition) by the Court that the severance of entire legislative-veto mechanisms is less likely to produce statutes that Congress would never have written than is the speculative process of removing the portion of a single mechanism that seems to contain the legislative veto in isolation. 5 The legislative veto appeared in section 244(c) of the Immigration and Nationality Act, 8 U.S.C. A. § 1254(c) (1970), which has since been amended, see 8 U S C. § 1254(c) Section 244(c)(1) of the Act required the Attorney General to report to Congress when he suspends the deportation o f an alien. 8 U.S.C. § 1254(c)(1) (1970). Section 244(c)(2) of the Act provided. [T]f during the session of the Congress at which a case is reported, or prior to the close of the session o f the Congress next following the session at which a case is reported, either the Senate or the House o f Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien’s voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings. 8 U.S.C. § 1254(c)(2) (1970). Thus, the first subsection contained a report requirement, and the second subsection contained both a wait requirement and a disapproval mechanism In Chadha the Court ex­ cised the disapproval mechanism but retained the wait requirement contained in the sam e subsection, observing that “ [wjithout the one-House veto, § 244 resembles the ‘report and w ait’ provision approved by the Court in Sibbach v. Wilson <6 Co., 312 U.S. 1 (1941).” 462 U.S. at 935 n.9. 55  CONCLUSION In sum, the one-House veto clause added to section 18(a) of the Selective Service Act in 1973 is unconstitutional. The legislative veto is severable from the remainder of the section 18(a). Under the best understanding of the Supreme Court’s approach to severability, the 1973 amendment should be severed in its entirety, thus returning the statute to the form it had when originally adopted in 1948. As a matter of comity, however, you may wish to inform Congress of a contract of more than twenty-five million dollars. More­ over, depending on the urgency of the situation, you may wish to allow Congress time to decide if it wants to take legislative action concerning a contract. JOHN C. HARRISON Deputy Assistant Attorney General Office o f Legal Counsel * As the Court explained. Congress originally permitted deportable aliens to remain in the United States through private bills. 462 U.S. at 933. In 1940, Congress authorized the Attorney General to suspend deportations but provided that Congress could overrule a suspension by a concurrent resolution. Id. at 933-34. W hen the concurrent resolution mechanism also proved burdensome, it was replaced with the schem e at issue in Chadha, under which the Attorney G eneral’s decision could be overridden by a one-H ouse resolution. Id. at 934. 56 

458 U.S. 832 (1982) RAMAH NAVAJO SCHOOL BOARD, INC., ET AL. v. BUREAU OF REVENUE OF NEW MEXICO No. 80-2162. Supreme Court of the United States. Argued April 28, 1982. Decided July 2, 1982. APPEAL FROM THE COURT OF APPEALS OF NEW MEXICO *833 Michael P. Gross argued the cause for appellants. With him on the briefs were Carl Bryant Rogers and Neal A. Jackson. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, Elinor Hadley Stillman, Edward J. Shawaker, and Maria A. Iizuka. Jan Unna, Special Assistant Attorney General of New Mexico, argued the cause for appellee. With him on the brief were Jeff Bingaman, Attorney General, and Gerald B. Richardson, Assistant Attorney General.[*] *834 JUSTICE MARSHALL delivered the opinion of the Court. In this case, we address the question whether federal law pre-empts a state tax imposed on the gross receipts that a non-Indian construction company receives from a tribal school board for the construction of a school for Indian children on the reservation. The New Mexico Court of Appeals held that the gross receipts tax imposed by the State of New Mexico was permissible. Because the decision below is inconsistent with White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980) (White Mountain), we reverse. I Approximately 2,000 members of the Ramah Navajo Chapter of the Navajo Indian Tribe live on tribal trust and allotment lands located in west central New Mexico. Ramah Navajo children attended a small public high school near the reservation until the State closed this facility in 1968. Because there were no other public high schools reasonably close to the reservation, the Ramah Navajo children were forced either to abandon their high school education or to attend federal Indian boarding schools far from the reservation. In 1970, the Ramah Navajo Chapter exercised its authority under Navajo Tribal Code, Title 10, § 51 (1969), and established its own school board in order to remedy this situation. Appellant Ramah Navajo School Board, Inc. (the Board), was organized as a nonprofit corporation to be operated exclusively by members of the Ramah Navajo Chapter. The Board is a Navajo "tribal organization" within the meaning of 25 U. S. C. § 450b(c), 88 Stat. 2204. With funds provided by the federal Bureau of Indian Affairs (BIA) and the Navajo Indian Tribe, the Board operated a school in the abandoned public school facility, thus creating the first independent Indian school in modern times.[1] *835 In 1972, the Board successfully solicited from Congress funds for the design of new school facilities. Pub. L. 92-369, 86 Stat. 510. The Board then contracted with the BIA for the design of the new school and hired an architect. In 1974, the Board contracted with the BIA for the actual construction of the new school to be built on reservation land. Funding for the construction of this facility was provided by a series of congressional appropriations specifically earmarked for this purpose.[2] The contract specified that the Board was the design and building contractor for the project, but that the Board could subcontract the actual construction work to third parties. The contract further provided that any subcontracting agreement would have to include certain clauses governing pricing, wages, bonding, and the like, and that it must be approved by the BIA. The Board then solicited bids from area building contractors for the construction of the school, and received bids from two non-Indian firms. Each firm included the state gross receipts tax as a cost of construction in their bids, although the tax was not itemized separately. Appellant Lembke Construction Co. (Lembke) was the low bidder and was awarded the contract. The contract between the Board and Lembke provides that Lembke is to pay all "taxes required by law." Lembke began construction of the school facilities in 1974 and continued this work for over five years. During that time, Lembke paid the gross receipts tax and, pursuant to standard industry practice, was reimbursed by the Board for the full amount paid. Before the second contract between Lembke and the Board was executed in 1977, a clause was inserted into the contract recognizing that the Board could *836 litigate the validity of this tax and was entitled to any refund. Both Lembke and the Board protested the imposition of the gross receipts tax. In 1978, after exhausting administrative remedies, they filed this refund action against appellee New Mexico Bureau of Revenue in the New Mexico District Court. At the time of trial, the parties stipulated that the Board had reimbursed Lembke for tax payments of $232,264.38 and that the Board would receive any refund that might be awarded. The trial court entered judgment for the State Bureau of Revenue. After noting that the "legal incidence" of the tax fell on the non-Indian construction firm, the court rejected appellants' arguments that the tax was pre-empted by comprehensive federal regulation and that it imposed an impermissible burden on tribal sovereignty. The Court of Appeals for the State of New Mexico affirmed. 95 N. M. 708, 625 P. 2d 1225 (1980). Although acknowledging that the economic burden of the tax fell on the Board, the Court of Appeals concluded that the tax was not preempted by federal law and that it did not unlawfully burden tribal sovereignty. The Board filed a petition for rehearing in light of this Court's intervening decisions in White Mountain, supra, and Central Machinery Co. v. Arizona State Tax Comm'n, 448 U. S. 160 (1980). The Court of Appeals denied the petition, stating only that this case did not involve either "a comprehensive or pervasive scheme of federal regulation" or "federal regulation similar to the Indian trader statutes." App. to Juris. Statement 36. After initially granting discretionary review, the New Mexico Supreme Court quashed the writ as improvidently granted. 96 N. M. 17, 627 P. 2d 412 (1981). We noted probable jurisdiction. 454 U. S. 1079 (1981). II In recent years, this Court has often confronted the difficult problem of reconciling "the plenary power of the States over residents within their borders with the semi-autonomous *837 status of Indians living on tribal reservations." McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 165 (1973). Although there is no definitive formula for resolving the question whether a State may exercise its authority over tribal members or reservation activities, we have recently identified the relevant federal, tribal, and state interests to be considered in determining whether a particular exercise of state authority violates federal law. See White Mountain, 448 U. S., at 141-145. A In White Mountain, we recognized that the federal and tribal interests arise from the broad power of Congress to regulate tribal affairs under the Indian Commerce Clause, Art. I, § 8, cl. 3, and from the semi-autonomous status of Indian tribes. 448 U. S., at 142. These interests tend to erect two "independent but related" barriers to the exercise of state authority over commercial activity on an Indian reservation: state authority may be pre-empted by federal law, or it may interfere with the tribe's ability to exercise its sovereign functions. Ibid. (citing, inter alia, Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685 (1965); McClanahan v. Arizona State Tax Comm'n, supra; and Williams v. Lee, 358 U. S. 217 (1959)). As we explained in White Mountain: "The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important `backdrop,'... against which vague or ambiguous federal enactments must always be measured." 448 U. S., at *838 143 (quoting McClanahan v. Arizona State Tax Comm'n, supra, at 172). The State's interest in exercising its regulatory authority over the activity in question must be examined and given appropriate weight. Pre-emption analysis in this area is not controlled by "mechanical or absolute conceptions of state or tribal sovereignty"; it requires a particularized examination of the relevant state, federal, and tribal interests. 448 U. S., at 145. The question whether federal law, which reflects the related federal and tribal interests, pre-empts the State's exercise of its regulatory authority is not controlled by standards of pre-emption developed in other areas. Id., at 143-144. Instead, the traditional notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts promoting tribal independence and economic development, inform the pre-emption analysis that governs this inquiry. See id., at 143, and n. 10. Relevant federal statutes and treaties must be examined in light of "the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence." Id., at 144-145. As a result, ambiguities in federal law should be construed generously, and federal pre-emption is not limited to those situations where Congress has explicitly announced an intention to pre-empt state activity. Id., at 143-144, 150-151. In White Mountain, we applied these principles and held that federal law pre-empted application of the state motor carrier license and use fuel taxes to a non-Indian logging company's activity on tribal land. We found the federal regulatory scheme for harvesting Indian timber to be so pervasive that it precluded the imposition of additional burdens by the relevant state taxes. Id., at 148. The Secretary of the Interior (Secretary) had promulgated detailed regulations for developing "`Indian forests by the Indian people for the purpose of promoting self-sustaining communities.'" Id., at 147 (quoting 25 CFR § 141.3(a)(3) (1979)). *839 Under these regulations, the BIA was involved in virtually every aspect of the production and marketing of Indian timber. 448 U. S., at 145-148. In particular, the Secretary and the BIA extensively regulated the contractual relationship between the Indians and the non-Indians working on the reservation: they established the bidding procedure, set mandatory terms to be included in every contract, and required that all contracts be approved by the Secretary. Id., at 147. We found that the state taxes in question would "threaten the overriding federal objective of guaranteeing Indians that they will `receive ... the benefit of whatever profit [the forest] is capable of yielding....'" Id., at 149 (quoting 25 CFR § 141.3(a)(3) (1979)). We concluded that the imposition of state taxes would also undermine the Secretary's ability to carry out his obligations to set fees and rates for the harvesting and sale of the timber, and it would impede the "Tribe's ability to comply with the sustained-yield management policies imposed by federal law." 448 U. S., at 149-150. Balanced against this intrusion into the federal scheme, the State asserted only "a general desire to raise revenue" as its justification for imposing the taxes. Id., at 150. In this context, this interest is insufficient to justify the State's intrusion into a sphere so heavily regulated by the Federal Government. Ibid. B This case is indistinguishable in all relevant respects from White Mountain. Federal regulation of the construction and financing of Indian educational institutions is both comprehensive and pervasive. The Federal Government's concern with the education of Indian children can be traced back to the first treaties between the United States and the Navajo Tribe.[3] Since that time, Congress has enacted numerous *840 statutes empowering the BIA to provide for Indian education both on and off the reservation. See, e. g., Snyder Act, 42 Stat. 208 (1921), 25 U. S. C. § 13; Johnson-O'Malley Act, 48 Stat. 596 (1934), 25 U. S. C. § 452 et seq.; Navajo-Hopi Rehabilitation Act, 64 Stat. 44 (1950), 25 U. S. C. § 631 et seq.; Indian Self-Determination and Education Assistance Act, 88 Stat. 2203 (1975), 25 U. S. C. § 450 et seq. (Self-Determination Act). Although the early focus of the federal efforts in this area concentrated on providing federal or state educational facilities for Indian children, in the early 1970's the federal policy shifted toward encouraging the development of Indian-controlled institutions on the reservation. See 6 Weekly Comp. of Pres. Doc. 894, 899-900 (1970) (Message of President Nixon). This federal policy has been codified in the Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq., and most notably in the Self-Determination Act. The Self-Determination Act declares that a "major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being." 88 Stat. 2203, as set forth in 25 U. S. C. § 450a(c). In achieving this goal, Congress expressly recognized that "parental and community control of the educational process is of crucial importance to the Indian people." 88 Stat. 2203, as set forth in 25 U. S. C. § 450(b)(3). Section 450k empowers the Secretary to promulgate regulations to accomplish the purposes of the Act. 88 Stat. 2212, 25 U. S. C. § 450k. Pursuant to this authority, the Secretary has promulgated detailed and comprehensive regulations respecting "school construction for previously private *841 schools now controlled and operated by tribes or tribally approved Indian organizations." 25 CFR §274.1 (1981). Under these regulations, the BIA has wide-ranging authority to monitor and review the subcontracting agreements between the Indian organization, which is viewed as the general contractor, and the non-Indian firm that actually constructs the facilities. See 25 CFR § 274.2 (1981).[4] Specifically, the BIA must conduct preliminary on-site inspections, and prepare cost estimates for the project in cooperation with the tribal organization. 25 CFR § 274.22 (1981). The Board must approve any architectural or engineering agreements executed in connection with the project. 25 CFR § 274.32(c) (1981). In addition, the regulations empower the BIA to require that all subcontracting agreements contain certain terms, ranging from clauses relating to bonding and pay scales, 41 CFR § 14H-70.632 (1981), to preferential treatment for Indian workers. 25 CFR § 274.38 (1981). Finally, to ensure that the Tribe is fulfilling its statutory obligations, the regulations require the tribal organization to maintain records for the Secretary's inspection. 25 CFR § 274.41 (1981). This detailed regulatory scheme governing the construction of autonomous Indian educational facilities is at least as comprehensive as the federal scheme found to be pre-emptive in White Mountain.[5] The direction and supervision provided *842 by the Federal Government for the construction of Indian schools leave no room for the additional burden sought to be imposed by the State through its taxation of the gross receipts paid to Lembke by the Board. This burden, although nominally falling on the non-Indian contractor, necessarily impedes the clearly expressed federal interest in promoting the "quality and quantity" of educational opportunities for Indians by depleting the funds available for the construction of Indian schools.[6] *843 The Bureau of Revenue argues that imposition of the state tax is not pre-empted because the federal statutes and regulations do not specifically express the intention to pre-empt this exercise of state authority. This argument is clearly foreclosed by our precedents. In White Mountain we flatly rejected a similar argument. 448 U. S., at 150-151 (citing Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685 (1965); Williams v. Lee, 358 U. S. 217 (1959); and Kennerly v. District Court of Montana, 400 U. S. 423 (1971)). There is nothing unique in the nature of a gross receipts tax or in the federal laws governing the development of tribal self-sufficiency in the area of education that requires a different analysis. In this case, the State does not seek to assess its tax in return for the governmental functions it provides to those who must bear the burden of paying this tax. Having declined to take any responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education—a scheme which has "left the State with no duties or responsibilities." Warren Trading Post Co. v. Arizona Tax Comm'n, supra, at 691.[7] Nor has the State asserted any specific, legitimate regulatory interest to justify the imposition of its gross receipts tax. The only arguably *844 specific interest advanced by the State is that it provides services to Lembke for its activities off the reservation. This interest, however, is not a legitimate justification for a tax whose ultimate burden falls on the tribal organization.[8] Furthermore, although the State may confer substantial benefits on Lembke as a state contractor, we fail to see how these benefits can justify a tax imposed on the construction of school facilities on tribal lands pursuant to a contract between the tribal organization and the non-Indian contracting firm.[9] The New Mexico gross receipts tax is intended to compensate the State for granting "the privilege of engaging in business." N. M. Stat. Ann. §§ 7-9-3(F) and 7-9-4(A) (1980). New Mexico has not explained the source of its power to levy such a tax in this case where the "privilege of doing business" on an Indian reservation is exclusively bestowed by the Federal Government. *845 The State's ultimate justification for imposing this tax amounts to nothing more than a general desire to increase revenues. This purpose, as we held in White Mountain, 448 U. S., at 150, is insufficient to justify the additional burdens imposed by the tax on the comprehensive federal scheme regulating the creation and maintenance of educational opportunities for Indian children and on the express federal policy of encouraging Indian self-sufficiency in the area of education.[10] This regulatory scheme precludes any state tax that "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67 (1941). C The Solicitor General, in an amicus brief filed on behalf of the United States, suggests that we modify our pre-emption analysis and rely on the dormant Indian Commerce Clause, Art. I, § 8, cl. 3, to hold that on-reservation activities involving a resident tribe are presumptively beyond the reach of state law even in the absence of comprehensive federal regulation, thus placing the burden on the State to demonstrate that its intrusion is either condoned by Congress or justified by a compelling need to protect legitimate, specified state interests other than the generalized desire to collect revenue. He argues that adopting this approach is preferable for several reasons: it would provide guidance to the state courts addressing these issues, thus reducing the need for our case-by-case review of these decisions; it would avoid the tension *846 created by focusing on the pervasiveness of federal regulation as a principal barrier to state assertions of authority when the primary federal goal is to encourage tribal self-determination and self-government; and it would place a higher burden on the State to articulate clearly its particularized interests in taxing the transaction and to demonstrate the services it provides in assisting the taxed transaction. We do not believe it necessary to adopt this new approach—the existing pre-emption analysis governing these cases is sufficiently sensitive to many of the concerns expressed by the Solicitor General. Although clearer rules and presumptions promote the interest in simplifying litigation, our precedents announcing the scope of pre-emption analysis in this area provide sufficient guidance to state courts and also allow for more flexible consideration of the federal, state, and tribal interests at issue. We have consistently admonished that federal statutes and regulations relating to tribes and tribal activities must be "construed generously in order to comport with ... traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence." White Mountain, supra, at 144; see also McClanahan v. Arizona State Tax Comm'n, 411 U. S., at 174-175, and n. 13; Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S., at 690-691. This guiding principle helps relieve the tension between emphasizing the pervasiveness of federal regulation and the federal policy of encouraging Indian self-determination. Although we must admit our disappointment that the courts below apparently gave short shrift to this principle and to our precedents in this area, we cannot and do not presume that state courts will not follow both the letter and the spirit of our decisions in the future. III In sum, the comprehensive federal regulatory scheme and the express federal policy of encouraging tribal self-sufficiency in the area of education preclude the imposition of the *847 state gross receipts tax in this case. Accordingly, the judgment of the New Mexico Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE STEVENS join, dissenting. The Court today reproves the New Mexico Court of Appeals for failing to heed our precedents, much as a disappointed parent would rebuke a wayward child.[1] I do not think the Court of Appeals deserves the rebuke; it seems to me that the state court applied our precedents at least as faithfully, and coherently, as the Court itself. In its desire to reach a result that it evidently finds quite salutary as a matter of policy, the Court finds "indistinguishable" a case that is considerably off the mark, and it finds "pervasively regulated" an activity that is largely free of federal regulation. It ultimately accords a dependent Indian tribal organization greater tax immunity than it accorded the sovereignty of the United States a short three months ago in a case involving the precise state taxes at issue here. I The general question presented by this case has occupied the Court many times in the recent past, and seems destined to demand its attention over and over again until the Court sees fit to articulate, and follow, a consistent and predictable rule of law. This insistent question concerns the extent to which the States can tax economic activity on Indian reservations within their borders. I believe the dominant trend of *848 our cases is toward treating the scope of reservation immunity from nondiscriminatory state taxation as a question of pre-emption, ultimately dependent on congressional intent. In such a framework, the tradition of Indian sovereignty stands as an independent barrier to discriminatory taxes, and otherwise serves only as a guide to the ascertainment of the congressional will. The principles announced in White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980), are consistent with this trend.[2] Thus, the Court in White Mountain recognized federal pre-emption as a principal barrier to the assertion of state regulatory authority over tribal reservations and members, id., at 142, and specifically invalidated the challenged assertion of taxing authority on that basis, id., at 148, 151, n. 15. The Court also recognized that in some instances a state law may be invalid because it infringes "`the right of reservation Indians to make their own laws and be ruled by them.'" Id., at 142 (quoting Williams v. Lee, 358 U. S. 217, 220 (1959)). But apart from those rare instances in which the State attempts to interfere with the residual sovereignty of a tribe to govern its own members, the "tradition of tribal sovereignty" merely provides a "backdrop" against which the pre-emptive effect of federal statutes or treaties must be assessed. See 448 U. S., at 143. The Court today pays homage to these principles but then promptly bestows its favors on a new analytical framework in which the extent of economic burden on the tribe, and not the pre-emptive effect of federal regulations, appears to be the paramount consideration. Such a shift is necessary, for the *849 Court's purported reliance on White Mountain will not withstand even superficial scrutiny. II The Court declares that "[t]his case is indistinguishable in all relevant respects from White Mountain." Ante, at 839. This statement is quite inaccurate. White Mountain involved an attempt by the State of Arizona to apply its motor carrier license and use fuel taxes to the logging operations of a non-Indian company doing business exclusively on the reservation. The Court concluded that application of the State's taxes was inconsistent with the pervasive federal regulation of the very activity subject to taxation. The Court repeatedly emphasized the comprehensiveness of the regulations on which it relied. "Under these regulations, the Bureau of Indian Affairs exercises literally daily supervision over the harvesting and management of tribal timber. In the present case, contracts between [the tribal organization] and [the non-Indian contractor] must be approved by the Bureau; indeed, the record shows that some of those contracts were drafted by employees of the Federal Government. Bureau employees regulate the cutting, hauling, and marking of timber by [the tribal organization and the contractor]. The Bureau decides such matters as how much timber will be cut, which trees will be felled, which roads are to be used, which hauling equipment [the contractor] should employ, the speeds at which logging equipment may travel, and the width, length, height, and weight of loads. "The Secretary has also promulgated detailed regulations governing the roads developed by the Bureau of Indian Affairs.... On the Fort Apache Reservation the Forestry Department of the Bureau has required [the tribal organization] and its contractors ... to repair and *850 maintain existing Bureau and tribal roads and in some cases to construct new logging roads.... A high percentage of [the contractor's] receipts are expended for those purposes, and it has maintained separate personnel and equipment to carry out a variety of tasks relating to road maintenance." 448 U. S., at 147-148. But the Court in White Mountain did not merely review the comprehensiveness of the regulations and conclude, ipso facto, that state taxes on the logging operations were pre-empted. It found, with considerable attention to specifics, that "the assessment of state taxes would obstruct federal policies." Id., at 148. "At the most general level, the taxes would threaten the overriding federal objective of guaranteeing Indians that they will `receive ... the benefit of whatever profit [the forest] is capable of yielding. . . .' 25 CFR § 141.3(a)(3) (1979). Underlying the federal regulatory program rests a policy of assuring that the profits derived from timber sales will inure to the benefit of the Tribe subject only to administrative expenses incurred by the Federal Government.... "In addition, the taxes would undermine the Secretary's ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber. The Secretary reviews and approves the terms of the Tribe's agreements with its contractors, sets fees for services rendered to the Tribe by the Federal Government, and determines stumpage rates for timber to be paid to the Tribe. Most notably in reviewing or writing the terms of the contracts between [the tribal organization] and its contractors, federal agents must predict the amount and determine the proper allocation of all business expenses, including fuel costs. The assessment of state taxes would throw additional *851 factors into the federal calculus, reducing tribal revenues and diminishing the profitability of the enterprise for potential contractors. "Finally, the imposition of state taxes would adversely affect the Tribe's ability to comply with the sustained-yield management policies imposed by federal law." Id., at 149-150. As noted, the Court thinks that this case is "indistinguishable in all relevant respects from White Mountain." Ante, at 839. It finds that "[f]ederal regulation of the construction and financing of Indian educational institutions is both comprehensive and pervasive." Ibid. But the regulations on which the Court relies do not regulate school construction, which is the activity taxed. They merely detail procedures by which tribes may apply for federal funds in order to carry out school construction. The purpose of the regulations, which the Court quotes only in part, ante, at 840-841, "is to give the application and approval process for obtaining a contract or services from the Bureau for school construction for previously private schools now controlled and operated by tribes or tribally approved Indian organizations ...." 25 CFR § 274.1 (1981) (emphasis added). The regulations that follow explain the procedures by which tribes may obtain, complete, and file application forms for federal funding or services. §§ 274.12-274.18. As the Court observes, ante, at 841, the regulations also authorize the BIA to approve or disapprove plans and specifications for construction as well as construction contracts let by the tribe, which are treated as subcontracts of the funding contract between the tribe and the BIA. The contracts are required to contain a clause establishing a hiring preference for Indians. § 274.38. And the BIA is given access to the tribe's records for auditing purposes. § 274.41. That is the extent of the regulations. In this case the BIA "contracted" with the School Board in order to convey federal funds for the construction project. *852 It also approved the Board's construction "subcontract" with the construction contractor. It played no role in the selection of the contractor and it played no role in regulating or supervising the actual construction of the school. The Court concludes that this scheme, which is little more than a grant application process, "is at least as comprehensive as the federal scheme found to be pre-emptive in White Mountain." Ante, at 841. I simply cannot agree. More important, the Court concludes in the very next sentence that "[t]he direction and supervision provided by the Federal Government for the construction of Indian schools leaves no room for the additional burden sought to be imposed by the State through its taxation of the gross receipts paid to Lembke by the Board." Ante, at 841-842. This statement constitutes the sum total of the Court's pre-emption analysis in this case. In White Mountain the Court engaged in a detailed examination of the extent to which state taxes would interfere both with the Secretary's ability to carry out his congressional mandate and with the tribe's ability to carry out federal policy. In the place of such careful analysis, the Court today relies on ipse dixit. It does so because there is no realistic basis for concluding that the State's taxes would interfere with a "pervasive" regulatory scheme. The BIA simply does not regulate the construction activity which the State seeks to tax. It provides federal money to eligible tribes and tribal organizations and it establishes a contract-approval and auditing mechanism as a means of attempting to ensure that the money is put to the use for which it is earmarked.[3] *853 III A careful reading of the Court's opinion demonstrates that the single, determinative factor in its judgment is the fact that the challenged state taxes have increased the financial burden of constructing a tribal school. Whether the federal regulations are detailed and comprehensive or largely a matter of bookkeeping is an irrelevancy, for the Court concludes that the tax burden "impedes the clearly expressed federal interest in promoting the `quality and quantity' of educational opportunities for Indians by depleting the funds available for the construction of Indian schools." Ante, at 842 (emphasis added). The Court recognizes that the legal incidence of the tax is on the non-Indian contractor, but asserts that "in White Mountain ... we found it significant that the economic burden of the asserted taxes would ultimately fall on the Tribe, *854 even though the legal incidence of the tax was on the non-Indian logging company." Ante, at 844, n. 8. The Court in White Mountain did indeed note that "the economic burden of the asserted taxes will ultimately fall on the Tribe." 448 U. S., at 151. But in a footnote immediately following that sentence, which is today ignored, the Court declared: "Of course, the fact that the economic burden of the tax falls on the Tribe does not by itself mean that the tax is pre-empted, as Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), makes clear. Our decision today is based on the pre-emptive effect of the comprehensive federal regulatory scheme, which ... leaves no room for the additional burdens sought to be imposed by state law." Id., at 151, n. 15. Despite its references to the supposed "comprehensive and pervasive" regulatory scheme in this case, the Court clearly has chosen to bar the State from taxing Lembke's gross receipts principally because the tax imposes an indirect economic burden on the tribal organization. As the Court in White Mountain recognized, our precedents undeniably view that as an insufficient basis for the recognition of an Indian tax immunity. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 156 (1980) ("Washington does not infringe the right of reservation Indians to `make their own laws and be ruled by them,' ... merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving"); Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 481-482 (1976) (upholding tax on cigarette sales from Indians to non-Indians because the legal incidence of the tax was on the consumer); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 156-157 (1973) (refusing to imply tax immunity despite economic burden on tribal enterprise).[4] Even under the *855 modified form of pre-emption doctrine applicable to state regulation of reservation activities, there must be some affirmative indication that Congress did not intend the State to exercise the sovereign power challenged in the suit. Until today, the mere fact that the asserted power will impose an economic burden on a tribal endeavor has not provided that affirmative indication. I do not disagree with the Court's judgment that congressional enactments such as the Indian Financing Act and the Indian Self-Determination and Education Assistance Act embody a federal policy encouraging the development of Indian-controlled educational institutions. But it is a considerable leap to infer from that policy the independent principle that all state laws which might increase the cost of such an endeavor are to be considered null and void. It is perfectly conceivable that Congress favored Indian education, but also contemplated that all costs of obtaining that end would be paid in a normal fashion. State taxes are as much a normal cost of school construction as the cost of cement and labor. The cost of taxes was included in the bids submitted to the Board by the construction contractors, and it apparently was also included in the funding requests submitted by the Board to Congress. The Board cannot be faulted for attempting to stretch its federal construction funds as far as possible, but that is a woefully inadequate basis for interfering with the sovereign prerogatives of the State of New Mexico. IV A short three months ago, this Court considered whether the State of New Mexico could impose its gross receipts and *856 compensating use taxes on private contractors that conduct business with the Federal Government. We concluded that tax immunity was appropriate in only one circumstance: "when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned." United States v. New Mexico, 455 U. S. 720, 735 (1982). In reaching this conclusion, we held that "immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy." Id., at 734. If the legal incidence of the tax is on the contractor, it is to be considered valid, absent specific congressional action, as long as "the contractors can realistically be considered entities independent of the United States." Id., at 738.[5] In this case, as in United States v. New Mexico, the legal incidence of the New Mexico tax is on the private contractor, not on the entity whose status might be the source of a tax immunity. And, as in United States v. New Mexico, it is evident that Lembke is a separate taxable entity completely independent of the tribal school board. Were the tax immunity of the Tribe no greater than that of the United States, it seems plain that New Mexico's tax would have to be upheld as applied to the gross receipts of the non-Indian contractor. But the Court reaches a different conclusion because it finds that the tax imposes an economic burden on the Tribe's effort to build a school with federal funds. Thus, the Court accords *857 an Indian Tribe, whose sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance," United States v. Wheeler, 435 U. S. 313, 323 (1978), greater immunity from state taxes than is enjoyed by the sovereignty of the United States on whom it is dependent.[6] For these reasons, I dissent from the Court's judgment. NOTES [*] Briefs of amici curiae urging reversal were filed by George P. Vlassis and Katherine Ott for the Navajo Tribe of Indians; and by Richard W. Hughes for the Pueblo of Santa Ana. Helena S. Maclay and Deirdre Boggs, Special Assistant Attorneys General of Montana, Leland T. Johnson, Assistant Attorney General of Washington, Warren Spannaus, Attorney General of Minnesota, Mark V. Meierhenry, Attorney General of South Dakota, and Richard H. Bryan, Attorney General of Nevada, filed a brief for the State of Montana et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by George Deukmejian, Attorney General, and Neal J. Gobar, Deputy Attorney General, for the State of California; and by Arthur Lazarus, Jr., for the Association of American Indian Affairs, Inc. [1] On July 8, 1970, in his Message to the Congress on Indian Affairs, President Nixon referred specifically to these efforts of the Board to assume responsibility for the education of tribal children abandoned by the State as a "notable exampl[e]" of Indian self-determination. 6 Weekly Comp. of Pres. Doc. 894, 899 (1970). [2] See Pub. L. 93-245, 87 Stat. 1073 (1973) (amending Pub. L. 93-120, 87 Stat. 431 (1973) to specifically earmark funds appropriated there for the construction of the Ramah school facility); Pub. L. 93-404, 88 Stat. 810 (1974); Pub. L. 94-165, 89 Stat. 985 (1975); Pub. L. 95-74, 91 Stat. 293 (1977). [3] Article VI of the 1868 Treaty between the United States and the Navajo Tribe, 15 Stat. 669, provides that "[i]n order to insure the civilization of the Indians entering into this treaty, the necessity of education is admitted." [4] Although these regulations did not become effective until several months after the BIA and the Board had executed the initial contracts, the Secretary and the BIA had applied similar requirements under the authority of the Johnson-O'Malley Act, 48 Stat. 596, 25 U. S. C. § 452 et seq. In any event, the two subsequent agreements between the BIA, the Board and Lembke, accounting for two-thirds of the total construction, were signed after the effective date of these regulations, which clearly authorize the BIA to monitor these construction agreements. [5] JUSTICE REHNQUIST asserts that the comprehensive federal regulatory scheme outlined above "do[es] not regulate school construction, which is the activity taxed." Post, at 851. The dissent fails to explain, however, how this fact distinguishes this case from White Mountain. In that case, we struck down Arizona's use fuel tax and motor carrier license tax, not because of any federal interest in gasoline, licenses, or highways, but because the imposition of these state taxes on a non-Indian contractor doing work on the reservation was pre-empted by the "comprehensive regulation of the harvesting and sale of tribal timber." 448 U. S., at 151. We find that New Mexico is similarly precluded from impeding the federal interest in the construction of autonomous Indian educational institutions by imposing its gross receipts tax on Lembke. JUSTICE REHNQUIST's contention that the New Mexico tax is somehow compatible with this federal interest because such taxes "are as much a normal cost of school construction as the cost of cement and labor," post, at 855, is also foreclosed by White Mountain. Surely, state use fuel and motor carrier license taxes are considered part of the cost of harvesting and marketing timber. Yet in White Mountain, we concluded that these taxes impeded the federal interest in "guaranteeing Indians that they will `receive ... the benefit of whatever profit [the forest] is capable of yielding,'" 448 U. S., at 149, despite the dissent's argument that the taxes amounted to less than 1% of the annual profits produced by the logging operation. Here, as in White Mountain, JUSTICE REHNQUIST continues to press this argument. [6] Appellee would have us impute congressional awareness and approval of the state gross receipts tax from appropriations bills which earmarked funds for the construction of these facilities, see n. 2, supra. Brief for Appellee 21-22. Appellee strains to find this awareness and approval by arguing that the same architects who prepared the cost estimates and requests that the Board submitted to Congress also prepared the bid specifications pursuant to which Lembke submitted its bid. However, as we have indicated, the bid specifications only required prospective bidders to include "all taxes required by law," and the submitted bids did not specify the gross receipts tax as a separate line item. Supra, at 835. Therefore, it is by no means clear, and the Board disputes the contention, that the Board ever intended to have these state taxes included in the construction costs of its school facilities. Furthermore, there is absolutely no indication that Congress was even made aware of the existence of these taxes when it appropriated funds for the construction of the Ramah Navajo school. In any event, as we have noted in a related context, courts should be wary of inferring congressional intent to alter the force of existing law from an appropriations Act. Cf. TVA v. Hill, 437 U. S. 153, 189-191 (1978). [7] Of course, these statutes and regulations do not prevent the States from providing for the education of Indian children within their boundaries. Indeed, the Self-Determination Act specifically authorizes the Secretary to enter into contracts with any State willing to construct educational institutions for Indian children on or near the reservation. 88 Stat. 2214, 25 U. S. C. § 458. This case would be different if the State were actively seeking tax revenues for the purpose of constructing, or assisting in the effort to provide, adequate educational facilities for Ramah Navajo children. [8] The Bureau of Revenue invites us to adopt the "legal incidence" test, under which the legal incidence and not the actual burden of the tax would control the pre-emption inquiry. Of course, in some contexts, the fact that the legal incidence of the tax falls on a non-Indian is significant. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 150-151 (1980); Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976). However, in White Mountain, 448 U. S., at 151, we found it significant that the economic burden of the asserted taxes would ultimately fall on the Tribe, even though the legal incidence of the tax was on the non-Indian logging company. Given the comprehensive federal regulatory scheme at issue here, we decline to allow the State to impose additional burdens on the significant federal interest in fostering Indian-run educational institutions, even if those burdens are imposed indirectly through a tax on a non-Indian contractor for work done on the reservation. [9] In Central Machinery Co. v. Arizona State Tax Comm'n, 448 U. S. 160 (1980), we held that the Indian trader statutes, 19 Stat. 200, 25 U. S. C. § 261 et seq., pre-empted the State's jurisdiction to tax the sale of farm machinery to the Indian Tribe, notwithstanding the substantial services that the State undoubtedly provided to the off-reservation activities of the non-Indian seller. Presumably, the state tax revenues derived from Lembke's off-reservation business activities are adequate to reimburse the State for the services it provides to Lembke. [10] We are similarly unpersuaded by the State's argument that the significant services it provides to the Ramah Navajo Indians justify the imposition of this tax. The State does not suggest that these benefits are in any way related to the construction of schools on Indian land. Furthermore, the evidence introduced below by the State on this issue is far from clear. Although the State does provide services to the Ramah Navajo Indians, it receives federal funds for providing some of these services, and the State conceded at trial that it saves approximately $380,000 by not having to provide education for the Ramah Navajo children. App. 95, 105-106, 108. [1] "Although we must admit our disappointment that the courts below apparently gave short shrift to this principle and to our precedents in this area, we cannot and do not presume that state courts will not follow both the letter and the spirit of our decisions in the future." Ante, at 846. [2] Nevertheless, the Solicitor General has again suggested that on-reservation activities affecting resident tribes be considered presumptively beyond the reach of state law by operation of the "principle of tribal sovereignty." See Brief for United States as Amicus Curiae 17-24. The same suggestion was urged, and rejected, in White Mountain. It has proved no more appealing in this case. [3] The Court ignores other distinctions between this case and White Mountain. For example, the logging contractor in the latter case, although a non-Indian corporation, operated exclusively to harvest timber on the reservation; it conducted no off-reservation activities whatsoever. See 448 U. S., at 139. The contractor in this case is a general building contractor doing business throughout the State of New Mexico, and enjoying state services to the same extent as any other commercial enterprise in New Mexico. The Court dismisses this factor with the statement that "[p]resumably, the state tax revenues derived from Lembke's off-reservation business activities are adequate to reimburse the State for the services it provides to Lembke." Ante, at 844, n. 9. The Court's "presumptions," however, are no substitute for the considered judgment of the state taxing authority. Indeed, in assessing the validity of a state tax, the Court has previously recognized that the State's interests are strongest when the taxpayer is the recipient of state services. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 157 (1980). To the extent presumptions are relevant, the Court has inverted the one that ought to apply. Another distinction is also relevant. The activity taxed in White Mountain was the exploitation of natural resources located on the reservation and devoted to the beneficial use and enjoyment of reservation Indians. Indeed, over 90% of the total profits generated by tribal enterprises were derived from the Tribe's logging operations. 448 U. S., at 138. In this case, the state taxes diminish, not the income generated by the Tribe for its own preservation and welfare, but federal funds appropriated by Congress for the purpose of school construction. No tribal funds are devoted to this endeavor, and congressional appropriations were based on funding requests that included the gross receipts tax as part of the estimated construction cost. [4] In other areas of tax immunity, the Court has steadfastly refused to assess the validity of a tax by reference to the economic burdens it imposes if those burdens are nondiscriminatory and comport with due process. See United States v. New Mexico, 455 U. S. 720 (1982) (state taxation of federal contractors); United States v. County of Fresno, 429 U. S. 452 (1977) (state taxation of Federal Government); New York v. United States, 326 U. S. 572 (1946) (federal taxation of state government); Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976) (state taxation of imports and exports). [5] We recognized one possible exception to this general rule: "In the case of a sales tax ... it is arguable that an entity serving as a federal procurement agent can be so closely associated with the Government, and so lack an independent role in the purchase, as to make the sale—in both a real and a symbolic sense—a sale to the United States, even though the purchasing agent has not otherwise been incorporated into the Government structure." 455 U. S., at 742. In this case, there is no basis for arguing that Lembke has acted merely as a purchasing agent for the Board or the BIA. [6] Of course, the Court purports to rest its decision on the pre-emptive effect of federal law. But the immunity of federal contractors from state taxes is also dependent on "generalized notions of federal supremacy." United States v. New Mexico, supra, at 730. The critical question, both in United States v. New Mexico and in this case, is what factors will the Court examine to determine whether the State has exceeded limits imposed by the Supremacy Clause and by Congress. I think it is evident that in the area of federal tax immunity the Court has required evidence of more than mere economic burdens before it will invalidate a state tax as applied. As this case demonstrates, tribal tax immunity may be invoked on no greater showing than the fact of economic burdens on a federally supported tribal endeavor. Since both immunities derive from precisely the same source—the supremacy of federal law—I find the Court's decision today inexplicable. "With the abandonment of the notion that the economic—as opposed to the legal—incidence of the tax is relevant, it becomes difficult to maintain that federal tax immunity is designed to insulate federal operations from the effects of state taxation." United States v. New Mexico, supra, at 735, n. 11.

104 F.3d 361 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jimmy Lee HARVEST, Plaintiff-Appellee,v.John RANDOLPH, Defendant-Appellant, andState of Tennessee, Department of Transportation, Defendant. No. 95-6319. United States Court of Appeals, Sixth Circuit. Dec. 18, 1996. On Appeal from the United States District Court, for the Eastern District of Tennessee, No. 94-00497; Thomas W. Phillips, United States Magistrate Judge. E.D.Tenn. REVERSED. Before: LIVELY and NELSON, Circuit Judges, and HACKETT*, District Judge. PER CURIAM. 1 The defendant John Randolph appeals from the district court's denial of his motion for summary judgment on the ground of qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511 (1985). I. 2 Represented by an attorney, Jimmy Lee Harvest, who is an African-American, sued the Tennessee Department of Transportation (TDOT), his former employer, and John Randolph, his immediate supervisor at TDOT, in a Tennessee state court, alleging that the defendants discriminated against him on the basis of his race. The complaint charged both defendants with violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and a Tennessee civil rights statute, and of conspiracy to force his resignation in violation of 42 U.S.C. §§ 1983 and 1985. Though not clearly stated, the claim under § 1983 appears to have charged violation of the Equal Protection Clause of the Fourteenth Amendment. The prayer for relief demanded damages against both defendants in the amount of $250,000 and reinstatement to his former position, with full back pay and benefits. As an action under federal civil rights laws, the case was removed to district court. See 28 U.S.C. § 1443. 3 The defendants filed a motion to dismiss and for summary judgment. With consent of the parties, the case was transferred to a magistrate judge for final disposition. After some discovery, the magistrate judge issued an order granting in part and denying in part the defendants' motion. The court concluded that the plaintiff had failed to make out a prima facie case for recovery under Title VII and had failed to establish a conspiracy in violation of 42 U.S.C. § 1985. The court held that TDOT was immune from suit for damages under the Eleventh Amendment, but that Randolph had been sued in his individual capacity and was not entitled to qualified immunity. 4 In accordance with these rulings, the district court dismissed all claims against TDOT and the claims against Randolph predicated on a Title VII violation and a conspiracy. It also dismissed the state law claim without prejudice. Randolph appeals from the refusal of the court to dismiss the claims against him brought under 42 U.S.C. § 1983. The plaintiff conceded in a memorandum filed in the district court that he had not satisfied the requirements of a Title VII claim or established the existence of a conspiracy. He also conceded that TDOT was immune from suit under the Eleventh Amendment. The only claim remaining is the § 1983 claim against Randolph. 5 The parties waived oral argument, and the appeal was submitted on the district court record and Randolph's brief. The appellee, Harvest, did not file a brief. Although Randolph has challenged several of the district court's rulings, only one need be addressed here: the district court's denial of Eleventh Amendment immunity based on its belief that Randolph was sued in his personal, rather than official, capacity. We have interlocutory appellate jurisdiction over a denial of Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir.), cert. denied, 115 S.Ct. 358 (1994). II. A. 6 As he did before the district court, Randolph argues on appeal that he was sued only in his official capacity and therefore shares the absolute Eleventh Amendment immunity of TDOT. We agree. 7 The complaint in this case did not specify the capacity in which Harvest sued Randolph. Under the settled law of this Circuit, where a complaint seeking monetary damages against a state official under 42 U.S.C. § 1983 does not clearly state that the official is sued in his individual or personal capacity, the court must treat the lawsuit as one against the defendant in his official capacity. Wells v. Brown, 891 F.2d 591, 592 (6th Cir.1989). See also Wittington v. Milby, 928 F.2d 188, 193 (6th Cir.), cert. denied, 502 U.S. 883 (1991); Hardin v. Straub, 954 F.2d 1193, 1199 (6th Cir.1992); Thiokol Corp. v. Department of Treasury, 987 F.2d 376, 383 (6th Cir.1993), all to the same effect. The court recognized this rule in Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir.), cert. denied, 115 S.Ct. 2269 (1995), but found that the plaintiff had taken steps shortly after filing the complaint to make it clear that the defendant was sued in his individual capacity. Thus the individual defendant in that case had sufficient notice that the plaintiff was seeking damages from him individually, not as a state official. B. 8 The magistrate judge recognized the Wells rule, but stated, "Giving plaintiff the benefit of the doubt, the court accepts plaintiff's argument that he is suing defendant Randolph in his individual capacity." We can find no basis for this ruling. Then Chief Judge Merritt's language cannot be misunderstood and is not subject to interpretation. He wrote in Wells that plaintiffs seeking damages under § 1983 must "set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply in their capacity as state officials." Wells, 891 F.2d at 592. 9 This case differs from the situation in Pelfrey where a panel of this court found Wells distinguishable. Here the defendants TDOT and Randolph filed their joint motion to dismiss and for summary judgment on May 26, 1995. The magistrate judge filed his dispositive order on September 5, 1995. Although the Tennessee Attorney General filed an answer and the motion to dismiss and for summary judgment on behalf of both defendants, the plaintiff did not amend his complaint to state clearly that he was suing Randolph in his individual capacity though he had more than three months in which to do so. Nor did he take any other steps to notify Randolph that he was being sued individually for damages. In Pelfrey, on the other hand, the court found that the plaintiff gave sufficient notice to defendants who were state officials that they were being sued individually for damages. The notice stemmed from the fact that shortly after filing the complaint Pelfrey filed a motion to prohibit the Ohio Attorney General from representing the individual defendants because they were being sued in their individual capacities. Pelfrey, 43 F.3d at 1038. Thus, the present case is not analogous to the situation in the only published decision where this court has not applied the Wells rule strictly. III. 10 Since the Supreme Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58 (1989), it is settled law that state officials sued for damages under § 1983 in their official capacities are absolutely immune under the Eleventh Amendment. This is so because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Id. at 71 (citations omitted). Concluding as we do that Harvest sued Randolph in his official capacity only, Randolph is entitled to absolute immunity. We need not discuss qualified immunity, as that defense applies only to state actors sued in their individual capacities. 11 The judgment of the district court is REVERSED and the case is REMANDED to the district court with directions to remand the 42 U.S.C. § 1983 claim against Randolph to the state court from which it was removed. See Henry v. Metropolitan Sewer District, 922 F.2d 332, 338 (6th Cir.1990). * The Honorable Barbara Hackett, United States District Judge for the Eastern District of Michigan, sitting by designation

538 F.2d 332 Soft-Touch Saunasv.Anderson No. 75-1675 United States Court of Appeals, Eighth Circuit 4/1/76 1 D.Minn. AFFIRMED

FILED NOT FOR PUBLICATION AUG 02 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LOUIS EUGENE CUNNINGHAM, No. 08-35913 Plaintiff - Appellant, D.C. No. 1:05-cv-00515-FVS v. MEMORANDUM * SGT. FLETCHER, Sgt. Mail Room Operations; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Idaho Fred L. Van Sickle, District Judge, Presiding Submitted July 19, 2010 ** Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges. Louis Eugene Cunningham, an Idaho state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to effect service of process. We have jurisdiction under 28 U.S.C. § 1291. We * 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). review for an abuse of discretion. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). We reverse and remand. Cunningham substantially complied with Rule 4 of the Federal Rules of Civil Procedure by serving the summons and the original complaint on a Deputy Attorney General, and attempting to serve the operative complaint on Michael J. Elia, who was appointed Special Deputy Attorney General for the purpose of representing defendants in this case. See Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (so long as there is substantial compliance with Rule 4 and the defendant receives sufficient notice of the complaint, Rule 4 is to be liberally construed to uphold service); Idaho Admin. Code r.06.01.01.106 (2010) (requiring service of summons, complaints, and subpoenas against or upon the Idaho Department of Corrections and its employees to be made upon the deputy attorneys general assigned to the Department in the manner and form required by state and federal rules of procedure). Accordingly, we reverse the judgment and remand for further proceedings. REVERSED and REMANDED. 2 08-35913 

220 F.Supp.2d 1330 (2002) John KLEJA, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security,[1] Defendant. No. 6:01-CV-160-ORL-JGG. United States District Court, M.D. Florida, Orlando Division. February 14, 2002. *1331 *1332 Mary Ann Sloan, Chief Counsel, Dennis R. Williams, Deputy Chief Counsel, Paul Jones, Assistant Regional Counsel, Office of the General Counsel, Region IV, Social Security Administration, Atlanta, GA. Susan Roark Waldron, Assistant United States Attorney, Tampa. ORDER GLAZEBROOK, United States Magistrate Judge. Plaintiff appeals to the district court from a final decision of the Commissioner of Social Security [the "Commissioner"] finding that the Commissioner had properly applied a workers' compensation offset to his back benefits and that his disability insurance benefits would be subject to off-set with the month of attainment of age 62. I. PROCEDURAL HISTORY On August 2, 1993, Plaintiff protectively filed his claim for disability benefits, claiming disability as of November 9, 1992. R. 12. The claim was denied initially and on reconsideration, but by an "on the record" Administrative Law Judge (ALJ) decision of February 27, 1995, Plaintiff was found disabled beginning November 9, 1992. R. 12. Subsequent to the favorable ALJ decision, *1333 Plaintiff received an award letter dated April 11, 1995, stating that a weekly rate of $425.00 was used to compute the workers' compensation offset and that the offset would apply beginning May 1993. Plaintiff filed a request for reconsideration, and after the reconsideration denial, a request for an on-the-record review by an ALJ, challenging these determinations. R.13. On January 22, 1997, the Honorable Apolo Garcia issued a decision finding that the application of workers' compensation offset was correct, that the Commissioner was not bound by a subsequent addendum to the lump sum settlement dated April 14, 1994, and that Plaintiff's monthly disability benefits would be subject to offset effective with the month Plaintiff attained age 62. R. 107-14. Plaintiff requested review of this hearing decision. R. 116-124. In a decision dated June 18, 1999, the Appeals Council vacated the 1997 hearing decision "because neither the workers' compensation settlement document nor the first addendum are in the record," and remanded the case to the ALJ for further proceedings. R. 125-127. In a decision dated September 18, 1999, the ALJ determined that Plaintiff's benefits were subject to offset using the periodic weekly rate received from May 1993 to July 1993. R.12-20. He further determined that the Commissioner, in computing the offset applicable from August 1993 through February 1995, properly relied on the weekly rate of $418.27 specified in the original addendum to Plaintiff's July 20, 1993, lump sum settlement agreement. The ALJ also found that the Commissioner was not bound by the later, April 14, 1994, addendum, and that Plaintiff's disability insurance benefits would be subject to offset with the month he attained age 62. R. 12-20. This became the final decision of the Commissioner when the Appeals Council determined on December 29, 2000, that there was no basis for granting Plaintiff's request for review. R. 4-5. On February 6, 2001, Plaintiff timely appealed the Appeals Council's decision to deny review to the United States District Court. Docket No. 1. On September 21, 2001, Plaintiff filed a memorandum of law in support of his appeal of the denial of review. Docket No. 11. On November 20, 2001, the Commissioner filed a memorandum in support of her decision regarding the workers' compensation offset. Docket No. 12. This Court heard oral argument on January 30, 2002. Docket No. 17. The appeal is ripe for determination. II. THE PARTIES' POSITIONS Plaintiff assigns two errors to the Commissioner. Plaintiff claims that the Commissioner erred in failing to use the rate specified in the 1994 addendum to the lump sum settlement in computing Plaintiff's workers' compensation offset. Second, Plaintiff claims that the Commissioner erred by concluding that his disability insurance benefits would be subject to off-set with the month of attainment of age 62. The Commissioner argues that substantial evidence supports her calculation of the workers' compensation offset. III. THE STANDARD OF REVIEW A. Affirmance The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant *1334 evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n. 3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). B. Reversal and Remand Congress has empowered the district court to reverse the decision of the Commissioner without remanding the cause. 42 U.S.C. § 405(g)(Sentence Four). The district court will reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). This Court may reverse the decision of the Commissioner and enter an order awarding disability benefits where the Commissioner has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.1993); accord, Bowen v. Heckler, 748 F.2d 629, 631, 636—37 (11th Cir.1984). The district court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both. Jackson v. Chater, 99 F.3d 1086, 1089—92, 1095, 1098 (11th Cir.1996). To remand under sentence four, the district court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Jackson, 99 F.3d at 1090—91 (remand appropriate where ALJ failed to develop a full and fair record of claimant's residual functional capacity); accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to find claimant disabled). Where the district court cannot discern the basis for the Commissioner's decision, a sentence-four remand may be appropriate to allow her to explain the basis for her decision. Falcon v. Heckler, 732 F.2d 827, 829-30 (11th Cir.1984) (remand was appropriate to allow ALJ to explain his basis for determining that claimant's depression did not significantly affect her ability to work) (treating psychologist *1335 acknowledged that claimant had improved in response to treatment and could work in a supportive, non-competitive, tailor-made work environment). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir.1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals Council); Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984) (ALJ should consider on remand the need for orthopedic evaluation). After a sentence-four remand, the district court enters a final and appealable judgment immediately, and then loses jurisdiction. Jackson, 99 F.3d at 1089, 1095. In contrast, sentence six of 42 U.S.C. § 405(g) provides: The court ... may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; 42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish that: 1.) there is new, non-cumulative evidence; 2.) the evidence is material — relevant and probative so that there is a reasonable possibility that it would change the administrative result; and 3.) there is good cause for failure to submit the evidence at the administrative level. See Jackson, 99 F.3d at 1090-92; Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir.1988); Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir.1986); Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986); see also Keeton, 21 F.3d at 1068. A sentence-six remand may be warranted even in the absence of an error by the Commissioner if new, material evidence becomes available to the claimant. Jackson, 99 F.3d at 1095. With a sentence-six remand, the parties must return to the district court after remand to file modified findings of fact. Jackson, 99 F.3d at 1095. The district court retains jurisdiction pending remand, and does not enter a final judgment until after the completion of remand proceedings.[2]Id. IV. THE LAW A. Definition of Disability The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505 — 404.1511. B. Social Security and Workers' Compensation Offsets The Social Security Act provides that when an individual is eligible for both Social *1336 Security disability benefits and workers' compensation benefits, the combined benefit amount cannot exceed 80 percent of the individual's pre-disability earnings. 42 U.S.C. § 424a; see Swain v. Schweiker, 676 F.2d 543, 547 (11th Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982). Other circuits have consistently held that an ordinary, lump sum award is to be regarded as a substitute for periodic payments, and, thus, subject to the federal offset. Campbell v. Shalala, 14 F.3d 424 (8th Cir.1994); Black v. Schweiker, 670 F.2d 108 (9th Cir.1982). The Social Security Act provides that an offset due to workers' compensation benefits applies during any month prior to the month the worker attains age 65, if the worker's total disability insurance benefits and workers' compensation benefits exceed eighty percent of his pre-disability benefits, and the offset reduces federal benefits by the excess. 42 U.S.C. § 424a(a). There is, however, an exception for "reverse offset" states, i.e., states whose laws provided for the workers' compensation benefits to be reduced when the worker also received Social Security disability benefits, and the state's law so provided on February 18, 1981. Florida Statutes contain a reverse offset provision; however, § 440.15(10)(c) provides that reverse offset does not apply (and no workers' compensation benefits are reduced by Florida) until the SSA determines the amount payable to the employee and the employee has begun receiving such Social Security benefit payments. Fla. Stat. § 440.15(10)(c) (2001). Florida's reverse offset provisions apply until the month the recipient attains age 62. Id. at § 440.15(10)(a). The Courts have noted Congress' purpose in avoiding a double offset so both state and federal plans would not offset the benefits provided by each other. See Swain, 676 F.2d at 547 (11th Cir.), cert denied, 459 U.S. 991, 103 S.Ct. 349, 74 L.Ed.2d 388 (1982). To fulfill this purpose, the Social Security workers' compensation offset applies (1) to benefits paid for the period prior to Social Security's adjudication because Florida would not have taken an offset during that period; and (2) to the period following the month an individual attains age 62, when Florida's reverse offset would cease to apply. See 42 U.S.C. § 424a; Fla. Stat. Ann. § 440.15(10)(a) and (c). Title 42 U.S.C. § 424a(b) authorizes the Commissioner of Social Security to determine the appropriate method of prorating a lump sum award. The Commissioner has adopted Program Operations Manual System (POMS) guidelines that explain how SSA adjudicators must calculate the appropriate benefit. The POMS establish a descending order of priority for prorating a lump sum award: (1) the rate specified in the award; (2) the periodic rate paid prior to the lump sum award if no rate is specified in the award; or (3) the state workers' compensation maximum in effect in the year of injury. POMS DI 52001.55C.4. V. APPLICATION AND ANALYSIS A. The Facts Plaintiff sustained a work related injury on January 4, 1989. R. 149. Following his injury, Plaintiff received periodic workers' compensation benefits from January 5, 1989, until July 20, 1993. R. 108. Plaintiff settled his workers' compensation claim for a lump sum of $180,000.00, and, on July 20, 1993, the Judge of Compensation Claims (JCC) approved the June 15, 1993, *1337 stipulation for settlement and accompanying addendum. R. 143-156. Each page of the stipulation, addendum, and accompanying Affidavit of Release is initialed and dated by Plaintiff. R. 128-39, 143-56. The stipulation provided for a weekly compensation rate of $362.00. The addendum stated that the lump sum settlement contemplated a working life expectancy of seven years to age 65, thus providing for a weekly compensation rate of $418.72. R. 144, 156. In August 1993, Plaintiff applied for Social Security disability benefits. R. 168. Plaintiff sought to amend the lump sum settlement in a second addendum dated April 12, 1994. R. 39. This addendum altered the terms of the 1993 stipulation, stating that the net settlement of $152,000 contemplated a working life expectancy of seventeen years to age 75, thus lowering the weekly compensation rate to $172.21. R. 39. After Plaintiff was awarded disability, the Commissioner calculated his back benefits and workers' compensation setoff. In determining how to prorate the workers' compensation settlement for purposes of offset, the Commissioner applied the rate specified in the original 1993 addendum appended to the Joint Petition and Stipulation when the JCC approved the Petition. Plaintiff disputed this determination, claiming the Commissioner should have used the rate specified in the 1994 addendum, or the amount in the original 1993 Joint Petition and Stipulation. B. The Analysis The ALJ properly found that the Commissioner's reliance on the weekly rate of $418.27, specified in the original 1993 addendum of the workmen's compensation settlement agreement, to compute the workmen's compensation offset applicable beginning August 1993 through February 1995, was within the Commissioner's discretionary authority under 20 C.F.R. § 404.408(g). R. 19, Finding No. 5. The ALJ also correctly found that the Commissioner was not bound by the later addendum to the stipulated lump sum agreement signed on April 14, 1994. R. 20, finding 6. Furthermore, the ALJ correctly found that the Commissioner's notice that the Plaintiff's disability benefits would be subject to offset with the month of attainment of age 62 was correct. The ALJ's decision is supported by substantial evidence and is decided by the proper legal standards. The ALJ's determination that Social Security correctly applied the rate specified in the original 1993 addendum was consistent with the Program Operations Manual System (POMS) guidelines explaining how SSA adjudicators must calculate the appropriate benefit. See POMS DI 52001.555C.4. Consistent with POMS guidelines, the SSA and ALJ applied the rate specified in (the addendum to) the lump sum award. The ALJ decision and reconsideration determination both questioned whether the 1994 addendum was contemplated as part of the original settlement agreement. The ALJ referenced Social Security Ruling 97-3, which states that the "SSA will evaluate both the original and amended stipulations and disregard any language which has the effect of altering the terms of the original lump-sum settlement where the terms in the amended document are illusory or conflict with the terms of the first stipulation concerning the actual intent of the parties, and where, as here, the terms in the amended document would have the effect of circumventing the WC offset provisions of section 224 of the Act." *1338 It is clear that the primary, if not sole, purpose of the 1994 addendum was to circumvent the workers' compensation offset provisions of § 224 of the Act, as the sole change was to increase Plaintiff's working life expectancy.[3] The effects of that sole change would increase the number of years over which the lump sum would be prorated, decrease the weekly compensation rate, and decrease the amount of offset to which Social Security would be entitled. Thus, the terms of the second addendum, if applied, would have the effect of circumventing the offset provisions of § 424a and of congressional intent to avoid duplication of federal and state payments based on disability. Accordingly, the ALJ properly applied the law and his determination to apply the terms of the 1993 addendum, instead of the 1994 addendum, is supported by substantial evidence. The SSA applied the offset to Plaintiff's past due benefits from May 1993 through March 1995 (the month Plaintiff's benefits were processed) because Plaintiff received workers' compensation benefits for that period. The SSA did not apply the offset to ongoing benefits, but indicated its intent to reimpose the offset in January 1997 when Plaintiff attained age 62. The reinstatement of the offset when Plaintiff attained age 62 was pursuant to, and consistent with, federal and Florida state law. Essentially, the SSA is permitted to take an offset pursuant to federal law if a reverse offset does not apply until a benefits recipient reaches age 65. 42 U.S.C. § 424a(a). In Florida, the reverse offset applies until Plaintiff reaches age 62. Fla.Stat. § 440.15(10). Accordingly, the SSA is permitted to reinstate the offset from the month Plaintiff reaches age 62 until he reaches age 65. Thus, the ALJ correctly found the Commissioner's notice reinstating the offset with the month of attainment of age 62 was proper and his decision is supported by substantial evidence. VI. CONCLUSION For the reasons stated above, the decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment accordingly and to close the file. NOTES [1] Jo Anne B. Barnhart became Commissioner of Social Security on November 9, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Jo Anne B. Barnhart should be substituted, therefore, for Larry G. Massanari, as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). [2] The time for filing an application for attorneys fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ["EAJA"] differs in remands under sentence four and sentence six. Jackson, 99 F.3d at 1089, 1095 n. 4 and surrounding text. In a sentence-four remand, the EAJA application must be filed after the entry of judgment before the district court loses jurisdiction. Id. In a sentence-six remand, the time runs from the post-remand entry-of-judgment date in the district court. Id. [3] The Court notes that Plaintiff conceded at oral argument that there was no evidence in the record supporting any other intent, but rather, that after Plaintiff filed his Social Security disability application in 1993, the Joint Petition and Stipulation was amended in an attempt to avoid this very problem.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1951 In Re: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION (MDL No. 2327) -------------------------------------- SHARON WEER; THOMAS WEER, Plaintiffs – Appellants, v. ETHICON, INCORPORATED; ETHICON, L.L.C.; JOHNSON & JOHNSON, Defendants - Appellees. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:13-cv-03792; 2:12-md-02327) Submitted: March 30, 2016 Decided: April 6, 2016 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Douglas R. Plymale, DUGAN LAW FIRM, PLC, New Orleans, Louisiana, for Appellants. David B. Thomas, Daniel R. Higginbotham, THOMAS COMBS & SPANN PLLC, Charleston, West Virginia; Christy Jones, John C. Henegan, Sr., Susanna Moore Moldoveanu, BUTLER SNOW LLP, Ridgeland, Mississippi, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Sharon Weer and Thomas Weer appeal the district court’s order dismissing this action without prejudice because the Weers failed to timely effect service of process. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Weer v. Ethicon, Inc., Nos. 2:13-cv-03792; 2:12-md-02327 (S.D. W. Va. July 23, 2015). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

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T.C. Summary Opinion 2003-52 UNITED STATES TAX COURT DAK, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 4335-01S. Filed May 15, 2003. Kenneth R. Chiate (an officer), for petitioner. Angelique Neal, for respondent. DINAN, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in  - 2 - effect for the fiscal year in issue. All Rule references are to the Tax Court Rules of Practice and Procedure. Respondent determined a deficiency in petitioner’s Federal income tax of $30,447 for the taxable year ended May 31, 1995, and an addition to tax pursuant to section 6662(a) in the amount of $6,089.40. The issues for decision are: (1) Whether petitioner failed to report income in the amount of $120,371 for the year ended May 31, 1995; and (2) whether petitioner is liable for an accuracy- related penalty pursuant to the provisions of section 6662(a) in the amount of $6,089.40. Some of the facts have been stipulated and are so found. The stipulations of fact and the attached exhibits are incorporated herein by this reference. Petitioner’s principal place of business was in California on the date the petition was filed in this case. Background DAK, Inc. (hereinafter petitioner) operates a restaurant in Malibu, California, known as Moonshadows Restaurant (Moonshadows). The restaurant is located on the Pacific Coast Highway in Malibu and overlooks the Pacific Ocean. The Moonshadows premises is owned by Dr. Robert Shlens (Dr. Shlens). On October 1, 1991, Mr. Marvin Kelson (Mr. Kelson) was the principal of petitioner and entered into a lease with Dr. Shlens  - 3 - to operate Moonshadows for a period of 15 years. The lease provided that petitioner would pay a minimum rent of $120,000 per year. The lease also required the payment of a percentage rent of 7-1/2 percent of annual gross sales if that amount exceeded the minimum rent of $120,000 per year. The lease also provided that Dr. Shlens had the right to conduct an audit of Moonshadows’s operations to verify the amount of its gross sales for any given period. In 1992, Kenneth R. Chiate (Mr. Chiate) purchased Moonshadows from Mr. Kelson. Mr. Chiate is an attorney. He is now the president and sole shareholder of Moonshadows and purchased the business for reasons other than running the restaurant. He has had nothing to do with the operation of the restaurant since he purchased it. After Mr. Chiate purchased the restaurant from Mr. Kelson in 1992, Mr. Kelson became Moonshadows’s accountant and bookkeeper from 1992 through 1995. In early 1995, Dr. Shlens hired a certified public accountant, Ms. Cecy Groom (Ms. Groom) to audit petitioner’s financial records. She was to verify the gross sales reported to Dr. Shlens by petitioner in order to confirm that the amount of rent being paid to Dr. Shlens by petitioner was correct. Ms. Groom’s audit was initially directed to the period June 1994 through May 31, 1995 (the applicable period), but was extended to  - 4 - include the years 1992 through 1996. Upon completing her audit, Ms. Groom submitted a comprehensive report to Dr. Shlens. Moonshadows has a dining room and a bar area. During the applicable period, Moonshadows utilized two cash registers that recorded dining room sales (register 1) and bar sales (register 2). To conduct her audit, Ms. Groom used the cash register tapes from registers 1 and 2 to determine petitioner’s gross sales for the applicable period. She compared daily sales reported on sales journals, sales tax returns, financial statements, and petitioner’s monthly reports that were given to Dr. Shlens. Ms. Groom also compared the cash register tapes with the daily dinner and bar sales tickets. She determined that Moonshadows had sales in the dining area of $1,298,418 from June 1, 1994, through April 30, 1995, and sales in the bar area of $380,520, for the same period. Ms. Groom’s audit did not include the month of May 1995, because petitioner’s records for that month were not available for analysis. Ms. Groom also determined that for the period June 1, 1994, through April 30, 1995, the register tapes reported “other voids” and “voids and overrings” of $23,085 and $237,342, respectively. In 1997, respondent commenced his audit of petitioner’s tax year ended May 31, 1995. At that time, representatives of petitioner informed respondent that petitioner’s sales records  - 5 - for the fiscal year ended May 31, 1995, had been destroyed or misplaced. Having become aware of Ms. Groom’s audit, respondent examined her audit report for the applicable period and adopted it in principal to determine petitioner’s gross sales for the period June 1, 1994, through April 30, 1995. Respondent also relied upon petitioner’s “Statement of Revenues, Expenses and Retained Earnings” for the month ended May 31, 1995. After reviewing Ms. Groom’s audit report and petitioner’s “Statement of Revenues, Expenses and Retained Earnings” for the month ended May 31, 1995, respondent determined that petitioner had gross sales of $1,808,423 for the fiscal year ended May 31, 1995. From that amount, respondent allowed the following deductions: Sales tax $108,318 Other voids 23,085 Voids and overrings 237,342 $368,745 Respondent deducted from the amount of gross sales ($1,808,423) the foregoing amount of $368,745 and calculated an amount of net gross sales of $1,439,678 for the applicable period. The record shows that petitioner does not challenge the amounts determined as deductions for sales tax, other voids, and voids and overrings. On its Federal income tax return for the fiscal year ended May 31, 1995, petitioner reported income of $1,319,308. In his notice of deficiency dated January 3, 2001, respondent determined  - 6 - that petitioner failed to report income for its fiscal year ended May 31, 1995, in the amount of $120,371. Discussion We are asked to decide (1) whether petitioner may deduct from its gross sales for the taxable year ended May 31,1995, “double-ups” in the amount of $120,371 and (2) whether petitioner is liable for an accuracy-related penalty pursuant to the provisions of section 6662(a) in the amount of $6,089.40. Deductions are a matter of legislative grace, and a taxpayer bears the burden of proving that it is entitled to any deduction claimed.1 Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Deputy v. du Pont, 308 U.S. 488 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Section 6001 requires all taxpayers to maintain sufficient records to determine their tax liabilities. When a taxpayer fails to maintain adequate books and records, respondent is entitled to reconstruct the taxpayer’s income by any reasonable method. Holland v. United States, 348 U.S. 121 (1954); Ferenc v. Commissioner, T.C. Memo. 1991-617, affd. without published opinion 9 F.3d 120 (11th Cir. 1993); sec. 1.6001-1(a), Income Tax Regs. 1 Because the examination of petitioner began prior to July 22, 1998, sec. 7491 burden of proof and production provisions do not apply. See sec. 7491.  - 7 - Testimony of Kenneth R. Chiate Mr. Chiate is president and sole shareholder of Moonshadows. He described the restaurant and how it operated. There is a bar in Moonshadows that seats between 40 to 50 people. There is a cash register in the bar (register 2). That register would ring up drinks ordered by bar patrons. If a patron were to leave the bar and go to the dining room for a meal, the bar ticket would follow the patron from the bar to the dining room. There was a cash register in the dining room (register 1). The server would then serve the patron his meal at the dinner table. If he wanted another drink during his meal, the server would go back to the bar with the patron’s bar ticket and the bartender would add the drink to the bar ticket. The server would retain possession of the bar ticket. At the end of the meal, the server would add up the amount of the patron’s dinner ticket and his bar ticket to compute the total owed by the patron for his meal and drinks. Mr. Chiate testified that you cannot determine the total sales of the restaurant by adding up the dinner and bar cash register tapes because there would be “double-ups”, i.e., the same charge for a drink would appear on the bar cash register tape and the dining room cash register tape. Respondent asked Mr. Chiate if it were not true that you could look at the cash register tapes from the bar and determine  - 8 - the amounts transferred to the cash register tapes in the dining room. He was shown what had been received in evidence as Exhibit 15-P, a reconciliation of a bar register tape with the dining room register tape. That exhibit reads as follows: Gross $1,035.81 Key V 156.06 O.R. 12.00 Comp 0.00 Net 867.75 Mr. Chiate was able to identify the gross as gross income from bar sales, the O.R. as overrings, the comp as complimentary drinks and the net as the result of subtracting the Key V, O.R., and comp amounts from gross sales to arrive at net bar sales. He professed ignorance of the Key V code, however, stating: “I can’t identify that code, Your honor. I don’t personally know what that code stands for.” Upon further cross examination by respondent, Mr. Chiate testified as follows: Q. Okay. Mr. Chiate, you just testified you don’t know what a key V transaction is? A. I don’t know what that code is on the cash register, that’s correct. Q. Okay. Do you know what O/R stands for on this document? A. I believe O/R--on that document, I’m not certain, but I know that O/R was an abbreviation for over-ring that was frequently used in other documents. It may or may not be for this purpose. Q. And comp? A. Comp is when the bartender decided to complimentary provide a drink to a good customer, or  - 9 - somebody who was unhappy with a meal, and a manager authorized a complimentary beverage, or meal. Q. This is a reconciliation of the bar register, isn’t that correct? A. I’d have to look at the document. I don’t know. I mean I’d have to compare all the tapes to determine for this particular day whether this is just the bar or not. Q. Okay. So you’re not able to identify what’s a bar tape and what’s the register tape? A. That’s correct. Finally, respondent asked: Q. Okay. So, just to clarify, it’s your testimony today, well, essentially that you cannot tell from the register tapes if there’s a double up? A. Well, I think you can tell. You may not be able to do it as precisely and certainly as the Service has requested, but I think that you can tell-- Q. Okay. A. --that there’s a double up. Mr. Chiate then assumed the role of interrogator on behalf of petitioner.2 He called as petitioner’s witness, Mr. Michael Ozenne. Testimony of Michael Ozenne. Mr. Ozenne is a C.P.A. who has an M.B.A. He has had his own practice since 1971. He began working for petitioner in 1997. His assignment was to “monitor” the audit being conducted by 2 “A corporation or an unincorporated association may be represented by an authorized officer of the corporation”. Rule 24(b).  - 10 - respondent and to refute respondent’s proposed deficiency. Respondent had substantially completed his audit of petitioner at that time, and Mr. Ozenne was called upon to negotiate with Revenue Agent Caprio, who was conducting the audit of petitioner. When Mr. Chiate called Mr. Ozenne as a witness for petitioner, Mr. Ozenne took the witness stand, carrying with him a bundle of notes. Mr. Chiate asked Mr. Ozenne to explain to the Court what he had done to document the fact that there was no deficiency for the year at issue. He was asked to “start from the beginning, and just explain to the Court what you’ve done in that respect.” Counsel for respondent was otherwise occupied, and the Court asked the witness what he was referring to. The Court was informed that the witness had made notes of points that he wanted to cover in his testimony although he opined that he probably could not cover his material if Mr. Chiate did not inquire. Mr. Chiate agreed with Mr. Ozenne’s observation and then informed the Court that he would be using Mr. Ozenne’s notes for examination. Respondent did not object, and the interrogation proceeded. Mr. Ozenne testified that he met with Mr. Caprio, respondent’s auditing agent, and they discussed the subject of overrings. Mr. Caprio agreed that overrings were included in respondent’s determination of unreported income, and he reduced  - 11 - respondent’s original determination of unreported income of $380,000 to $120,371, the amount proposed in the notice of deficiency. Mr. Ozenne then testified that, in his opinion, the $120,371 was principally due to the double-ups, discussed supra. By analyzing restaurant records from periods other than the applicable period (June 1994 through May 31, 1995), he could prove that the “$120,000” unreported income could be accounted for by showing that the entries from the bar tapes were duplicated on the entries from the back end of the restaurant where the dinner tapes included the entries on the bar tapes. Mr. Ozenne explained his double-up theory as follows: Well, what I did, if you take the IRS’s proposed adjustment of $120,000 and you divide by 365 days, because they were open every day except Christmas and Thanksgiving, you get an average of $328. So our contention is that approximately $328 worth of drinks every day were added to tape two (2) and to tape one (1) which are double counted. What we did initially is we took the day of July 2nd and we added up all the double counts on that one and it came to $183. Because that was a small group of tapes, it was probably a weekday that was slow for some reason. We also took July 14th and came up with $542 as the total for that particular day. So I felt that between those two, substantiating a $328 average of the prior year was within reason. Mr. Chiate continued to lead Mr. Ozenne through their presentation of petitioner’s theory of the case by asking Mr. Ozenne if, in his opinion, the dinner checks, and cash register  - 12 - tapes that he examined for periods outside the applicable period, established the double-ups theory proposed by petitioner, and Mr. Ozenne agreed--absolutely. Mr. Chiate further inquired of Mr. Ozenne: Q. Okay. So in addition to the actual dinner checks for the period immediately after the fiscal year (the applicable period) did you determine that that was also true for the months immediately preceding the year in question? A. Yes. Q. Okay. And did that support your opinion as to the reasonableness of concluding that double-ups account for the claimed deficiency of $120,000. A. For the lion’s share of it. As I said earlier, the gift certificates and the comps would have accounted for a very small part of that. And I think the real proof of that is Ms. Groom came out and finished, I believe in May, the first part of May of 1995, and the questions that arose as to the accuracy of her schedule. Well, shortly after those questions arose, the bookkeeper at the restaurant instituted a procedure whereby they reconciled the total of the two adding machine tapes to the daily tickets on a daily basis. Now that was not available in our year under audit, or prior, because no one thought it was important. [Emphasis added.] Testimony of Cecy Groom Ms. Groom is a C.P.A. who has a bachelor’s degree in business administration. She majored in accounting. At the time of trial she was a business owner, managing and operating an International House of Pancakes (IHOP) and was also an affiliate  - 13 - C.P.A. with William and Ribbs (W&R), a C.P.A. firm in Long Beach, California. She was an independent contractor with W&R. She had her own clients and shared clients with the firm. She specialized in restaurant clients because she had owned a number of national franchises such as El Pollo Loco, Sizzler and, at the time of trial, IHOP. She became involved with DAK, Inc. in March 1995, when Dr. Shlens, the owner of the premises on which Moonshadows operated, retained her services to analyze the sales revenues. Ms. Groom was aware that, in 1991, Dr. Shlens entered into a lease with Marvin Kelson who was then the principal of DAK, Inc., to operate the restaurant for a period of 15 years. The lease provided that petitioner would pay a minimum rent of $120,000 per year. The lease also required the payment of a percentage rent of 7-1/2 percent of annual gross sales in excess of the minimum annual rental amount of $120,000. Ms. Groom started her audit in April or May of 1995. The audit was mainly conducted on the premises of the restaurant. Before beginning her audit, Ms. Groom visited the restaurant as a patron on a number of occasions to observe the restaurant’s operations. When she first began her audit, Ms. Groom met with Marvin Kelson, the restaurant’s accountant and bookkeeper who formerly owned the restaurant. Mr. Kelson explained to Ms. Groom how the restaurant recorded its daily sales.  - 14 - The basic source of information for recording daily sales was the meal tickets. The meal tickets were kept on a daily basis in an envelope coded by the day of the week, and the daily cash register tapes from cash registers 1 and 2 were placed in the envelope together with manual calculations prepared by Mr. Kelson to compute net daily sales in the bar area (register 2). Those are some of the records that Ms. Groom analyzed to determine the restaurant’s daily net sales. Ms. Groom prepared various summaries of her findings. Those summaries were received in evidence as Exhibits 3-J through 13-J. For example, Exhibit 8-J is a summary of Ms. Groom’s analysis of Moonshadows’s sales for the month of November 1994. For November 18, 1994, Ms. Groom reported that sales of $3,348 were recorded on the dining area register tape (register 1), and sales of $926 were recorded on the bar area register tape (register 2). The source of the $3,348 reported as register 1 sales was the register 1 tape given to Ms. Groom by the restaurant’s accountant and bookkeeper, Mr. Kelson. The source of the $926 reported for register 2 sales was the register 2 tape and a reconciliation of the register 2 tape that was prepared by Mr. Kelson. There was introduced into evidence Exhibit 18-R, which consisted of the above-mentioned register 1 and register 2 tapes,  - 15 - together with a reconciliation of the register 2 tape prepared by Mr. Kelson. The reconciliation of the register 2 tape showed that Mr. Kelson determined that the gross sales reported on the register 2 bar tape was $1,580.90. He then determined that the Code V (5) transactions recorded on the tape totaled $628.65. Code V transactions are the bar sales recorded on the register 2 tape that are carried over onto the register 1 tape in the dining area. Mr. Kelson deducted the $628.65 from gross sales of $1,580.90, leaving a balance of $952.25. This step in Mr. Kelson’s reconciliation process eliminated any double-ups between the dining room and bar area tapes. Mr. Kelson then deducted “comps” of $12 and overrings of $14, resulting in net sales of $926.25, the amount entered by Ms. Groom as the net sales recorded on register 2. This procedure was followed by Ms. Groom during her entire audit of petitioner’s taxable year ended May 31, 1995. Petitioner contends that it carefully maintained adequate books and records for several years to determine its income. The only records the petitioner was unable to produce for examination are the records for the applicable period. Petitioner, through Messrs. Chiate and Ozenne, then fabricated a scenario orchestrated to prove that the determined unreported income of $120,371 can be explained away by showing that the entries on the  - 16 - bar cash register tapes were duplicated on the dinner cash register tapes, thus accounting for the “double-ups” theory upon which petitioner relied to invalidate respondent’s determination of $120,371 of unreported income. In following Mr. Chiate’s leading questions, Mr. Ozenne testified that by analyzing the restaurant’s records from periods other than the applicable period (June 1994 through May 31, 1995) he could prove that the “$120,000” unreported income could be accounted for by showing that there were “double-ups” on the bar and dinner cash register tapes. Mr. Ozenne explained the basis for his double-ups theory as follows: Well, what I did, if you take the IRS’s proposed adjustment of $120,000 and you divide by 365 days, because they were open every day except Christmas and Thanksgiving, you get an average of $328. So our contention is that approximately $328 worth of drinks every day were added to tape two (2) and to tape one (1) which are double counted. Having computed the amount of $328 as the base figure needed to arrive at $120,000,3 Mr. Ozenne then incredibly explained how he arrived at a $328 day double-up: What we did initially is we took the day of July 2nd and we added up all the double counts on that one and it came to $183. Because that was a small group of 3 To be more accurate, Mr. Ozenne should have divided $120,000 by 363 days because the restaurant was closed on Christmas and Thanksgiving Day. He would then have a base figure of $331 to work with, but the Court is confident the discrepancy would not have slowed Mr. Ozenne down.  - 17 - tapes, it was probably a weekday that was slow for some reason. We also took July 14th and came up with $542 as the total for that particular day. So I felt that between these two, substantiating a $328 average of the prior year was within reason. As we said in Diaz v. Commissioner, 58 T.C. 560, 564 (1972): This case epitomizes the ultimate task of a trier of the facts--the distillation of truth from falsehood which is the daily grist of judicial life. We must be careful to avoid making the Courtroom a haven for the skillful liar or a quagmire in which the honest litigant is swallowed up. Truth itself is never in doubt, but it often has an elusive quality which makes the search for it fraught with difficulty. That this is so is clearly illustrated by the situation herein. * * * We closely observed Mr. Chiate and Mr. Ozenne at trial. We find the testimony of each of them to have been contrived and untrustworthy, and we completely disregard it. On the other hand, we found Ms. Groom to be a credible, forthcoming witness whose professionalism was evidenced by the documentation admitted at trial to credit her audit of petitioner for the applicable period. She consulted with the restaurant’s accountant and bookkeeper, Mr. Kelson (the original owner of Moonshadows). She reviewed the daily meal tickets, the daily cash register tapes from cash registers 1 (dining room) and 2 (bar), and, in particular, the manual computations prepared by Mr. Kelson on a daily basis to reconcile cash register tape l with cash register  - 18 - tape 2. As noted supra, the purpose of Mr. Kelson’s reconciliations was to assure that, in determining net sales, no bar sales were duplicated on the dining room cash register tapes. Ms. Groom clearly demonstrated that no double-ups were included in her summaries (Exhibits 3-J through 13-J) in which she determined petitioner’s income for the taxable year ended May 31, 1995. Petitioner did not call Mr. Kelson as a witness. He was petitioner’s accountant and bookkeeper who prepared the daily cash register tape 2 (the bar) reconciliation that assured there would be no double-ups on cash register tape 1 (the dining room). Under Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947), we infer that Mr. Kelson’s testimony, if offered at trial, would have clearly disproved petitioner’s “double-ups” theory. Petitioner’s “double-ups” theory is patently bogus, and we reject it. Respondent determined that petitioner is liable for an accuracy-related penalty of $6,089.40 for failure to report income in the amount of $120,371. Section 6662(a) imposes a 20-percent penalty on the portion of an underpayment attributable to any one of various factors, one of which is negligence or disregard of rules or regulations. Sec. 6662(b)(1). “Negligence” includes any failure to make a  - 19 - reasonable attempt to comply with the provisions of the Internal Revenue Code, including any failure to keep adequate books and records or to substantiate items properly. Sec. 6662(c); sec. 1.6662-3(b)(1), Income Tax Regs. Section 6664(c)(1) provides that the penalty under section 6662(a) shall not apply to any portion of an underpayment if it is shown that there was reasonable cause for the taxpayer’s position and that the taxpayer acted in good faith with respect to that portion. The determination of whether a taxpayer acted with reasonable cause and in good faith is made on a case by case basis, taking into account all the pertinent facts and circumstances. Sec. 1.6664- 4(b)(1), Income Tax Regs. The most important factor is the extent of the taxpayer’s effort to assess his proper tax liability for the year. Id.; Neely v. Commissioner, 85 T.C. 934, 947 (1985). We find that petitioner was negligent and lacked due care in preparing its Federal income tax return for the year ended May 31, 1995. We are confident that petitioner was aware that its accountant and bookkeeper, Mr. Kelson, on a daily basis, reconciled cash register tapes 1 and 2 to eliminate any “double- ups”. Respondent is sustained on this issue. Reviewed and adopted as the report of the Small Tax Case Division.  - 20 - To reflect the foregoing, Decision will be entered for respondent. 

807 F.2d 1560 55 USLW 2407, 8 Employee Benefits Ca 1033 Vann K. HOWARD and Kathryn D. Howard, Plaintiffs-Appellants,v.PARISIAN, INC., etc.; Parisian Employees Health Care Plan;Hahn Shoe Company, et al.; Protective LifeInsurance Company, Defendants-Appellees. No. 86-7401. United States Court of Appeals,Eleventh Circuit. Jan. 20, 1987. Stephen D. Heninger, Hare, Wynn, Newell & Newton, Birmingham, Ala., for plaintiffs-appellants. Lee H. Zell, Berkowitz, Lefkovits, Isom & Kushner, Birmingham, Ala., for defendants-appellees. Appeal from the United States District Court for the Northern District of Alabama. Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and ESCHBACH*, Senior Circuit Judge. JOHNSON, Circuit Judge: 1 This case involves an appeal from two orders dismissing a count alleging certain state law claims and striking a jury demand for the other count. We affirm the dismissal of the count alleging the state law claims and dismiss the appeal concerning the jury demand for lack of jurisdiction. BACKGROUND 2 On February 28, 1986, Vann K. Howard and his wife ("Howard") filed a complaint in Alabama state court against Parisian, Inc., Parisian Employees' Health Care Plan ("Plan"), and Hahn Shoe Company. Howard, an employee of Parisian and a beneficiary of the Plan, was severely injured in an automobile accident. A few days later Parisian terminated Howard's employment, causing Howard's coverage under the Plan to cease six months later. Parisian refused to pay any of Howard's medical expenses after his coverage ceased. In his suit, Howard sought the recovery of additional health care benefits under the Plan (Count I). Howard also sought compensation for the bad faith refusal to pay such benefits and the outrageous and intentional infliction of emotional distress (Count II). He demanded a jury trial for both counts. 3 Because the Plan is regulated under the Employee Retirement Income Security Act of 1974 ("ERISA"), the defendants removed the case to the United States District Court for the Northern District of Alabama. Parisian and the Plan then filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss Count II and a motion to strike the jury demand as to Count I. Before ruling on these motions, the district court granted Howard leave to file an amended complaint. In his amended complaint, Howard joined Protective Life Insurance Company ("Protective"), the claims administrator of the Plan, as a defendant and added a conspiracy count as to all of the defendants. 4 After Howard filed his amended complaint, the court granted both motions in the same order. Concluding that the Plan was an "employee welfare benefit plan" within the meaning of ERISA, the court dismissed Count II because it asserted state law claims preempted by Section 514(a) of ERISA, 29 U.S.C.A. Sec. 1144(a). The court also struck the jury demand for Count I. The court entered final judgment on this order under Fed.R.Civ.P. 54(b). The court denied Howard's motion to reconsider the striking of the jury demand. 5 Parisian, the Plan, and Protective then moved to dismiss the amended complaint. The court dismissed without prejudice all claims against them added by the amended complaint. However, the court required Protective to answer the allegations of Count I of the original complaint charging it with a violation of ERISA. The court also certified this order as a final judgment under Rule 54(b). Howard now appeals both orders. DISCUSSION A. PREEMPTION OF STATE LAW CLAIMS 6 There is no doubt that the Plan is governed by ERISA. ERISA applies to all employee benefit plans established by any employer engaged in interstate commerce or in any industry affecting interstate commerce. 29 U.S.C.A. Sec. 1003(a)(1). An employee benefit plan can be either an employee welfare benefit plan or an employee pension benefit plan. 29 U.S.C.A. Sec. 1002(3). An employee welfare benefit plan is: 7 any plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, [or] death.... 8 29 U.S.C.A. Sec. 1002(1). 9 Established by Parisian in order to provide health care benefits to participating employees, the Plan is a self-funded employee welfare benefit plan. Parisian is engaged in interstate commerce. Therefore, the Plan constitutes an employee benefit plan established by an employer engaged in interstate commerce and is governed by ERISA. 10 With exceptions that are irrelevant here,1 ERISA "supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." 29 U.S.C.A. Sec. 1144(a). Because Congress intended the regulation of employee benefit plans to be exclusively a federal concern, Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981), the Supreme Court has broadly interpreted the "relate to" language of Section 1144(a) as encompassing any state law that has a "connection with or reference to" employee benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Thus ERISA preempts all state laws insofar as they apply to employee benefit plans even if those laws do not expressly concern employee benefit plans and amount only to indirect regulation of such plans. Id. at 98, 103 S.Ct. at 2900; Alessi, 451 U.S. at 523-25, 101 S.Ct. at 1906-07. Furthermore, ERISA preempts all such laws regardless of whether they conflict with any specific provision of ERISA. Otherwise, the regulation of employee benefit plans would not be exclusively a federal concern. Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); Shaw, 463 U.S. at 98-99, 103 S.Ct. at 1900-01. 11 Admittedly some state laws affect employee benefit plans too tenuously to be characterized fairly as relating to employee benefit plans. See, e.g., Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1465-70 (5th Cir.1986) (corporate officer's fiduciary duties to shareholders not preempted simply because employee benefit plan is shareholder); Lane v. Goren, 743 F.2d 1337, 1339-41 (9th Cir.1984) (state anti-discrimination laws apply to employees of benefit plan); Bowen v. Bowen, 715 F.2d 559, 560-61 (11th Cir.1983) (per curiam) (garnishment of spouse's benefit plan income in order to enforce alimony payment not preempted). Nor are state laws preempted merely because they have an economic impact on employee benefit plans. See, e.g., Rebaldo v. Cuomo, 749 F.2d 133, 137-40 (2d Cir.1984), cert. denied, 472 U.S. 1008, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985) (state statute establishing hospital rates chargeable to employee benefits plans not preempted). 12 However, if a state law claim arises out of the administration of benefits under a plan, the claim is preempted. Scott v. Gulf Oil Corp., 754 F.2d 1499, 1505 (9th Cir.1985). Thus this Circuit and other circuits have uniformly held that state law challenges to the denial of benefits under an employee benefit plan are preempted. See, e.g., Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 326-28 (2d Cir.1985), aff'd, --- U.S. ----, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986) (state law claim seeking to obtain severance pay provided by employee benefit plan preempted); Powell v. Chesapeake & Potomac Telephone Co., 780 F.2d 419, 421-22 (4th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2892, 91 L.Ed.2d 558 (1986) (state law claims for intentional infliction of emotional distress, breach of covenant of good faith and fair dealing, breach of contract, and unfair trade practices arising out of denial of disability benefits preempted); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1214-16 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (state law claims for tortious interference with contract and fraud arising out of denial of severance pay preempted); Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1095 (9th Cir.1985) (state law claims to recover wrongfully withheld retirement benefits preempted); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1469-70 (11th Cir.1986) (state fraud claim seeking damages for lost benefits preempted). Howard's state law claims seek compensation for the termination of health care benefits under the Plan. Although the state law causes of action on which Howard relies do not exclusively concern the regulation of employee benefit plans, their use here "relates to" an employee benefit plan regulated by ERISA, thus Howard's state law claims are preempted. 13 Howard argues that, even if his state law claims are preempted against the Plan and Parisian, they are not preempted against Protective. As indicated above, Protective is the Plan administrator, performing only claim-processing, investigatory, and record-keeping duties. Protective performs these duties under an independent contract with Parisian. Thus, Protective is not a fiduciary of the Plan, and it has no obligation governed by ERISA. See 29 U.S.C.A. Sec. 1002(21)(A). Therefore, Howard concludes, ERISA does not preclude the assertion of state law claims against Protective. 14 Admittedly ERISA does not regulate the duties of non-fiduciary plan administrators. Thus in Munoz v. Prudential Insurance Company of America, 633 F.Supp. 564, 570-72 (D.Colo.1986), the court found that ERISA does not preempt state law claims seeking compensation for wrongfully denied medical benefits against non-fiduciary plan administrators. However, in Light v. Blue Cross And Blue Shield of Alabama, 790 F.2d 1247, 1248-49 (5th Cir.1986), the Fifth Circuit reached the opposite result, squarely holding that ERISA preempts the assertion of such claims against non-fiduciary administrators of self-funded employee benefit plans. 15 The Fifth Circuit's reasoning in Light is persuasive and relies on the broad language of both Section 1144(a) and the Supreme Court's opinions interpreting that section. Section 1144(a) preempts all state laws insofar as they relate to employee benefit plans and is not limited to state laws as applied only to plan fiduciaries. Congress endowed ERISA with this broad preemptive effect to ensure exclusive federal regulation of employee benefit plans. Alessi, 451 U.S. at 523, 101 S.Ct. at 1906. Allowing plan beneficiaries to assert state law claims against non-fiduciary plan administrators for the wrongful termination of benefits would upset the uniform regulation of plan benefits intended by Congress. Preemption is required if the assertion of a state law claim would contravene the structure and purpose of a federal statute. Shaw, 463 U.S. at 95, 103 S.Ct. at 2898; Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Therefore, Howard's state law claims against Protective are preempted.2 Howard argues in response that prohibiting his state law claims against Protective would leave a "gap" in the law because Protective would not be liable under either ERISA or state law for the wrongful termination of benefits. However, as this Court observed in Phillips, 799 F.2d at 1470, such a gap is legitimate if it is the result intended by Congress. 16 Howard's other arguments are unavailing. Howard attaches considerable importance to the fact that the Plan agreement adopts Alabama law as the governing law. However, the Plan agreement explicitly adopts state law only to the extent not preempted by ERISA. Furthermore, even if the Plan agreement purported to be governed exclusively by state law, it could not override the preemptive effect of ERISA. Light, 790 F.2d at 1248. Therefore, it has no bearing on whether ERISA preempts Howard's state law claims. 17 Howard also argues that this Court should hold that extra-contractual relief is available under ERISA for the fraudulent and malicious denial of medical benefits under an employee welfare benefit plan and should fashion that relief to parallel the relief available under state law. See Helms v. Monsanto Co., 728 F.2d 1416, 1420 (11th Cir.1984) (ERISA intends courts to develop federal common law concerning rights and obligations under employee benefit plans). In Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 3089-94, 87 L.Ed.2d 96 (1985), the Supreme Court held that Section 409(a) of ERISA, 29 U.S.C.A. Sec. 1109(a), does not create a private right of action in favor of a plan beneficiary against a plan fiduciary for extra-contractual compensatory or punitive damages on account of the improper refusal to pay benefits. However, the Court did not address whether such relief was available under any other provision, Russell, 473 U.S. at ---- n. 5, 105 S.Ct. at 3089 n. 5, and Justice Brennan, in his concurrence in which three other Justices joined, strongly indicated that Section 502(a)(3), 29 U.S.C.A. Sec. 1132(a)(3), which allows a beneficiary to "obtain other appropriate equitable relief," permits a beneficiary to recover such extra-contractual damages. Russell, 473 U.S. at ----, 105 S.Ct. at 3094-99 (Brennan, J., concurring). Nonetheless, even assuming arguendo that such extra-contractual relief is available under ERISA, the assertion of claims arising under state law is still preempted. Therefore, the district court properly dismissed Count II of the complaint.B. RIGHT TO JURY TRIAL 18 This Court lacks jurisdiction to review the district court's order striking Howard's demand for a jury trial on Count I. Although the district court certified this order as a final judgment under Rule 54(b), the district court lacked authority to do so. A district court can enter a final judgment on an order under Rule 54(b) only if that order completely disposes of a claim. Rule 54(b) does not empower a court to transform an interlocutory order into a final order for purposes of appeal. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956); Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368-69 (11th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983). Because an order denying a jury demand does not dispose entirely of a claim but leaves the claim pending for a bench trial, it is an interlocutory order. City of Morgantown v. Royal Insurance Co., 337 U.S. 254, 256-58, 69 S.Ct. 1067, 1068-69, 93 L.Ed. 1347 (1949). Therefore, the order was not subject to certification under Rule 54(b). 19 Nor does such an order fall within the narrow confines of the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Cohen vests this Court with jurisdiction to review an otherwise interlocutory order if that order (1) conclusively determines a disputed question; (2) resolves an issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 531 (1978). All three criteria must be met to satisfy Cohen. Mitchell v. Forsyth, 472 U.S. 511, 527-30, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985). 20 An order denying a jury trial in a civil action fails to satisfy at least the second prong of this test. As the Supreme Court recently held, if establishing a violation of a right requires a showing of prejudice, then a pretrial order denying that right is not independent of the issues to be tried because its validity cannot be assessed until the trial is concluded. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 2764-65, 86 L.Ed.2d 340 (1985), Flanagan v. United States, 465 U.S. 259, 268-69, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 808 (1984). An order denying a plaintiff's demand for a jury trial in a civil action is harmless error if the evidence presented at trial is insufficient to withstand a motion for a directed verdict. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 144-45 (5th Cir.1979). Therefore, such an order is not completely separate from the merits of the action and fails to qualify as a collateral order under Cohen. 21 The "conceptually distinct" standard used in Mitchell, 472 U.S. at 527-29, 105 S.Ct. at 2816-17, does not require a different result. In Mitchell, the Supreme Court held that the issue of a defendant's entitlement to qualified immunity is collateral to the merits even though the court must consider the plaintiff's factual allegations in resolving the issue. Likewise, a court determining whether a plaintiff is entitled to a jury trial in a civil action must consider the plaintiff's allegations. However, a defendant's entitlement to qualified immunity is not subject to the harmless error doctrine; therefore, the relaxed standard in Mitchell did not modify Richardson-Merrell and Flanagan. 22 Although neither Rule 54(b) nor Cohen vests this Court with jurisdiction, a district court can certify an interlocutory order for appeal under 28 U.S.C.A. Sec. 1292(b) if the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation...." However, even if the district court had relied on Section 1292(b), we would have exercised our discretion under that provision not to entertain this appeal. The district court properly characterized Count I as an action to recover benefits due under the Plan; therefore, Howard's claim arises under Section 502(a)(1)(B) of ERISA, 29 U.S.C.A. Sec. 1132(a)(1)(B). The former Fifth Circuit squarely held that such actions are not entitled to trial by jury. Calamia v. Spivey, 632 F.2d 1235, 1236-37 (5th Cir.1980). Every other circuit addressing the issue has reached the same conclusion. See, e.g., Katsaros v. Cody, 744 F.2d 270, 278-79 (2d Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); Turner v. CF & I Steel Corp., 770 F.2d 43, 47 (3d Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1006-07 (4th Cir.1985); Wardle v. Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d 820, 828-30 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); In re Vorpahl, 695 F.2d 318, 319-22 (8th Cir.1982). Therefore, there is no basis for concluding that a substantial ground for a difference of opinion exists as to whether Howard is entitled to a jury trial on Count I. Nor do we see any reason why an immediate appeal of the order is necessary to advance materially the termination of the litigation. Furthermore, there is an insufficient overlap in issues with the dismissal of Count II to assume pendent appellate jurisdiction over the appeal of this order. See, San Filippo v. U.S. Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). 23 Accordingly, the orders dismissing Howard's state law claims are AFFIRMED, and the appeal of the district court's order striking Howard's jury demand is DISMISSED for want of jurisdiction. * Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit sitting by designation 1 The exceptions in general concern (1) causes of action that accrued prior to January 1, 1975; (2) state insurance, banking, and securities laws; (3) state criminal law; and (4) state domestic relations law. 28 U.S.C.A. Sec. 1144(b) 2 We observe here that the insurance exception to Sec. 1144(a) is inapplicable even though Protective is an insurance company. 29 U.S.C.A. Sec. 1144(b)(2)(A) provides that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." This exception applies only to state laws that regulate the business of insurance and not to state laws that merely affect insurance companies in some way. An insurance company acting as an administrator for a self-funded plan is not acting as an insurance agent. Powell, 780 F.2d at 423-24. Therefore, this exception is inapplicable

FILED UNITED S'I`ATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 s G|I'L U.S. D|strlct & Banlcrnp|ny Courts for the Dlstnct of Gollroil¢ Surf Moore, ) ) Plaintiff, ) ) v. ) civil A¢rion N@. /{/- -' 70 7 ) U.S. Justice Dep’t., ) ) Defendant. ) ) MEMORANDUM OPINION This matter is before the Court on its initial review of plaintiff`s pro se Complaint and application to proceed fn forma pauperis. The Court will grant the in forma pauperis application and dismiss the case because the complaint fails to meet the minimal pleading requirements of Rule S(a) of the Federal Rules of Civil Procedure. Pro se litigants must comply with the Federal Rules of Civil Procedure. jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Rule S(a) ofthe Federal Rules of Civil Procedure requires complaints to contain "(l) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. S(a); see Ashcrofr v. Iqbal, 556 U.S. 662, 678-79 (2009)', Cira[sky v. CIA, 355 F.Bd 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair notice of the claim being asserted so that they can prepare a responsive answer and an adequate defense and determine whether the doctrine of res judicata applies. Brown v. Caftfctno, 75 F.R.D. 497,493(1).:).€. 1977). The plaintiff, a resident of Jacl<son, Mississippi. purports to sue the United States Department of Justice. See Compl. Caption. Plaintiff alleges that defendant has violated the first, second and fourteenth amendments to the Constitution and federal law. He seeks $100 million in damages The complaint consists of recitations of constitutional amendments, federal statutes, and excerpts from case law; it contains no supporting facts to provide adequate notice of a claim and, thus, will be dismissed A separate Order accompanies this Memorandum Opinion. Z//% /MW /['~ United S‘fates D'istrict judge Date: May , 2014

People v Williams (2020 NY Slip Op 00755) People v Williams 2020 NY Slip Op 00755 Decided on January 31, 2020 Appellate Division, Fourth 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 January 31, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ. 1131 KA 17-01993 [*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, vJASHUA WILLIAMS, DEFENDANT-APPELLANT. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered October 13, 2016. The judgment convicted defendant upon a nonjury verdict of murder in the second degree, criminal possession of a weapon in the second degree (two counts) and endangering the welfare of a child. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of murder in the second degree (Penal Law § 125.25 [1]), endangering the welfare of a child (§ 260.10 [1]), and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). We reject defendant's contention that the evidence is legally insufficient to establish his liability as an accessory with respect to those charges. "Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime[s], intentionally aid another in the conduct constituting the offense[s]" (People v Pizarro, 151 AD3d 1678, 1681 [4th Dept 2017], lv denied 29 NY3d 1132 [2017] [internal quotation marks omitted]; see § 20.00). Here, viewing the evidence in the light most favorable to the People (see People v Fox, 124 AD3d 1252, 1253 [4th Dept 2015]), the factfinder could have reasonably concluded that defendant and the man alleged by defendant to have shot the victim shared "a common purpose and a collective objective" (see People v Cabey, 85 NY2d 417, 422 [1995]), and that defendant "shared in the intention of" the shooter (People v Morris, 229 AD2d 451, 451 [2d Dept 1996], lv denied 88 NY2d 990 [1996]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although an acquittal would not have been unreasonable, upon "weigh[ing] conflicting testimony, review[ing] any rational inferences that may be drawn from the evidence and evaluat[ing] the strength of such conclusions" (People v Courteau, 154 AD3d 1317, 1318 [4th Dept 2017], lv denied 30 NY3d 1104 [2018]), we conclude that County Court did not fail to give the evidence the weight it should be accorded (see People v O'Neill, 169 AD3d 1515, 1515 [4th Dept 2019]; see generally Bleakley, 69 NY2d at 495). Contrary to defendant's contention, the trial testimony tending to establish his guilt was not incredible as a matter of law (see generally People v Washington, 160 AD3d 1451, 1452 [4th Dept 2018]; People v Moore [appeal No. 2], 78 AD3d 1658, 1659-1660 [4th Dept 2010]), and any inconsistencies in that testimony merely presented issues of credibility for the factfinder to resolve (see generally People v Withrow, 170 AD3d 1578, 1579 [4th Dept 2019], lv denied 34 NY3d 940 [2019], reconsideration denied 34 NY3d 1020 [2019]; People v Graves, 163 AD3d 16, 23 [4th Dept 2018]). We also reject defendant's contention that he received ineffective assistance of counsel [*2]due to counsel's failure to adduce evidence at trial that one of the People's witnesses had received a specific promise of consideration in exchange for that witness' truthful testimony. At trial, however, that witness testified that he hoped his cooperation would be considered at his upcoming sentencing on an unrelated charge, and that no specific promise had been made to him. The record on appeal contains no evidence of any agreement beyond the general hope for leniency described by the witness at trial, and thus defendant has failed to "demonstrate the absence of strategic or other legitimate explanations for" defense counsel's failure to adduce additional proof of a specific agreement (People v Kurkowski, 117 AD3d 1442, 1443 [4th Dept 2014] [internal quotation marks omitted]). Finally, the sentence is not unduly harsh or severe. Entered: January 31, 2020 Mark W. Bennett Clerk of the Court

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 16, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-20300 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERTO GARZA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-M-165-2 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Roberto Garza appeals from an order of the district court denying his motion to revoke the magistrate judge’s pretrial detention order. The district court’s decision, which effectively adopted the reasoning of the magistrate judge, rests upon its conclusion that Garza has not rebutted the presumption that no condition or combination of conditions will reasonably assure the * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. safety of the community.1 The district court’s conclusions are supported by the record.2 AFFIRMED. 1 18 U.S.C. § 3142(e) & (f). 2 See United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992) (“[T]he risk of continued narcotics trafficking on bail does constitute a risk to the community.”). 2 

117 Ga. App. 385 (1968) 160 S.E.2d 668 JACKSON v. KIGHT et al. 43411. Court of Appeals of Georgia. Argued February 7, 1968. Decided March 12, 1968. *388 Richardson, Doremus & Karsman, Ogden Doremus, for appellant. Lewis & Javetz, Emanuel Lewis, Pierce, Ranitz, Lee, Berry & Mahoney, Thomas J. Mahoney, Jr., for appellees. PANNELL, Judge. Waldo Kight brought an action against Hugh Jackson and J. M. Aycock seeking to recover damages for injuries sustained by him when he ran into a large road grader on an expressway, alleging that the defendants were the owners and operators of the road grader negligently left without lights at night on the expressway. Answers were filed by both *386 defendants, and the defendant Jackson amended his answer, setting out, among other things, that the plaintiff had executed a covenant not to sue, copy of which was attached to the amendment to the answer, claiming that the covenant not to sue precluded the asserting of any claim by the plaintiff against the defendant Jackson because of the provisions of the Act approved April 17, 1963 (Ga. L. 1963, p. 643; Code Ann. § 56-408.1). Subsequently, the defendant Jackson made a motion for summary judgment on several grounds, one of which was the above ground set forth in the answer, which motion for summary judgment stated "that on October 20, 1967, the plaintiff herein entered an agreement with J. M. Aycock and with his liability insurance carrier" as shown by exhibits attached, and that J. M. Aycock was dismissed as a party defendant, and contended that because of the terms of the covenant not to sue no claim could be asserted by the plaintiff against the movant. The motion for summary judgment was sworn to by the defendant Jackson, the oath stating "that the facts set forth in the foregoing motion for summary judgment and the exhibits attached thereto are true to the best of his knowledge and belief." The trial judge denied the motion and Jackson appealed. Held: 1. Irrespective of whether or not the affidavit of the defendant (the sworn-to motion for summary judgment) could be considered as against the contention made in this court that it did not affirmatively appear therefrom that the affiant was testifying as to facts within his own knowledge (see Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); Planters Rural Tel. Co-op. v. Chance, 108 Ga. App. 146, 148 (132 SE2d 90)), and irrespective of whether or not the exhibit attached, a photostat of a covenant not to sue purportedly signed by the plaintiff, was "sworn and certified" as required by Section 5 of the Summary Judgment Act ((Ga. L. 1959, pp. 234, 235; Code Ann. § 110-1205); see also Section 56 (e) of the Georgia Civil Practice Act (Ga. L. 1966, pp. 609, 661; Code Ann. § 81A-156 (e)), and regardless of the effect of the fact that no objection was made to the exhibits or to the lack of proper proof as to the execution thereof by the plaintiff, and regardless of the effect of the fact that there was no affidavit on the part of the plaintiff denying the execution of such covenant not to sue, it appears in the brief of the appellant (the defendant *387 Jackson) that one of the issues is whether or not the covenant not to sue released the defendant Jackson, and the brief of the appellee (plaintiff in the court below) agrees that is an issue in this court, and the appellant's brief recited as a fact the execution of the covenant not to sue by the plaintiff, and that this was the agreement so entitled and set forth as an exhibit to the summary judgment, and this fact was not controverted, but, on the contrary, the brief of the appellee admitted the fact. Accordingly, this court will, under all these circumstances, accept the statement of fact as to the execution of the agreement as being prima facie true and will determine the outcome of this case in the light of that fact. See Rule 17 (b) (1) of this court effective August 1, 1965, 111 Ga. App. 890. 2. The covenant not to sue the defendant Aycock and his insurance carrier and signed by the plaintiff referred expressly to the present suit and recited that the insurance carrier was paying the consideration of a covenant not to sue without prior notice to or consent of its insured, Aycock. The second paragraph of Section 1 of the Act of 1963 expressly provides: "If such third persons [the plaintiff here] execute a release, covenant not to sue, or other instrument in settlement of their claims after such notice of the lack of consent of the insured, the same shall be deemed and construed as a bar to the further assertion by such third persons of such claims against all persons whomsoever, and such third persons shall not plead such release, covenant not to sue or settlement in bar of any action or claim asserted by such insured." (Emphasis supplied.) This language is unambiguous and is not amenable to a construction contrary to its plain and express terms. While one of the purposes of this Act was to ameliorate the effect of the decision of the Supreme Court in Aetna Cas. &c. Co. v. Brooks, 218 Ga. 593 (129 SE2d 798), this was accomplished by the last phrase (which is not italicized) in the above quoted portion of the Act. The language italicized deals with an entirely different subject and is plain in its terms. It follows that the execution of the covenant not to sue by the plaintiff with knowledge that the insured, Aycock, had not consented thereto, barred the plaintiff's claims, arising out of the collision in question, "against all persons whomsoever," which includes the defendant Jackson. The trial court erred in overruling this defendant's motion for summary judgment. Judgment reversed. Jordan, P. J., and Deen, J., concur.

Motion Granted; Dismissed and Memorandum Opinion filed May 22, 2014. In The Fourteenth Court of Appeals NO. 14-13-00901-CV BARBARA ULMER, Appellant V. DEREK ANTHONY JENKINS, SR., Appellee On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2012-44247 MEMORANDUM OPINION This is an appeal from a final decree of divorce signed July 26, 2013. On May 16, 2014, appellant filed a motion to dismiss the appeal. See Tex. R. App. P. 42.1. The motion is granted. Accordingly, the appeal is ordered dismissed. PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Brown. 

305 F.3d 456 Lloyd D. ALKIRE, Plaintiff-Appellant,v.Judge Jane IRVING, et al., Defendants-Appellees. No. 00-4567. United States Court of Appeals, Sixth Circuit. Argued: March 6, 2002. Decided and Filed: September 18, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Gary M. Smith (argued and briefed), Equal Justice Foundation, Columbus, OH, Edward A. Icove (briefed), Smith & Condeni, Cleveland, OH, for Appellant. 1 Timothy T. Reid (argued and briefed), Reid, Berry, Marshall & Wargo, Cleveland, OH, for Appellees. 2 Before MOORE and COLE, Circuit Judges; TARNOW, District Judge.* OPINION 3 TARNOW, District Judge. I. INTRODUCTION 4 Plaintiff Lloyd D. Alkire was arrested for drunk driving and held almost seventy-two hours without a probable cause hearing. He was subsequently incarcerated for failure to appear for show cause hearings and failure to pay fines and court costs. Alkire sued defendants Holmes County, Judge Jane Irving, Holmes County Court, and Sheriff Timothy Zimmerly under 42 U.S.C. § 1983, arguing that his constitutional rights were violated by his warrantless detention and civil debt-related incarceration. After a partial settlement disposed of several issues in the case, the district court denied Alkire's summary judgment motion and granted defendant's summary judgment motion on the remaining constitutional issues raised. The district court also denied Alkire's class certification motion. This appeal followed. 5 Alkire raises five issues in his appeal. The first four ask whether the district court properly denied Alkire's summary judgment motion and granted defendant's summary judgment motion as to the liability of Holmes County and Sheriff Zimmerly for violating Alkire's: (1) Fourth Amendment right not to be held on a warrantless arrest without arraignment for forty-eight hours; (2) Thirteenth Amendment right not to be imprisoned for a civil debt; (3) Fourteenth Amendment right to due process and equal protection for failing to allow credit toward fines and costs for time served; and (4) Fourteenth Amendment right not to lose his liberty due to indigency. The fifth issue on appeal is whether the district court properly denied Alkire's motion for class certification. For the reasons stated below, we REVERSE the district court on the first issue and REMAND to the district court for further proceedings. We AFFIRM the district court on the second, third, fourth, and fifth issues. II. FACTUAL HISTORY 6 On Saturday, August 19, 1995 at 9:40 a.m., plaintiff Lloyd Alkire was arrested for driving while intoxicated ("DWI"). Alkire was taken to the Holmes County Jail where he remained all weekend. There was a warrant for Alkire from another jurisdiction. The parties dispute whether Alkire was held on the DWI arrest or the warrant. Alkire was arraigned in Holmes County Court before Judge Jane Irving on Tuesday morning, August 22, 1995—almost seventy-two hours after his arrest. No probable cause hearing was held prior to the August 22nd hearing. 7 At a subsequent hearing on September 1, 1995, Alkire pleaded no contest to the DWI charges. He was sentenced to fifteen days in jail and fined $575 and court costs of $45, for a total of $620. Alkire signed a payment contract agreeing to pay $50 monthly installments starting September 11, 1995. No inquiry was made into Alkire's ability to pay, but it appears from the record that he signed the contract voluntarily. 8 Alkire did not make any payments toward the money owed. Due to Alkire's failure to pay, on November 15, 1995, Judge Irving signed a show cause letter ordering him to appear at a hearing on December 13, 1995 at 11:00 a.m. The letter advised that failure to appear or to pay the amount owed ($635.00)1 in full would result in the issuance of a bench warrant for Alkire's arrest. Alkire responded with a letter dated November 22, 1995, which informed Judge Irving that he was disabled and explained his financial difficulties.2 9 Alkire did not appear for the December 13, 1995 hearing. Judge Irving issued a bench warrant for his arrest. Alkire sent a second letter, dated December 15, 1995, explaining his failure to appear at the hearing. The letter stated that he was in the hospital on the hearing date, further explained his financial difficulties, and outlined his inability to find employment. 10 On May 20, 1996, Alkire was arrested on the outstanding bench warrant. At a hearing on May 21, 1996, Judge Irving found Alkire in contempt and sentenced him to thirty days in jail for "failing to pay any fine or costs." The Judge further stated that Alkire could work off the fine and costs. There was no inquiry at the hearing into Alkire's ability to pay. 11 Alkire served the thirty day sentence from May 21, 1996, to June 20, 1996. During that time, he worked at a recycling center, receiving the current minimum wage rate of $4.25 per hour, which was credited toward his fine. As a result, according to Alkire, he was able to work off his entire fine. In fact, he says that he worked 4.75 more hours than his fine, but he received no compensation for that extra work. The county's policy does not allow defendants to work off their court costs, so Alkire calculates that after the thirty days in jail, he still owed court costs in the amount of $173.30. However, Holmes County Court records indicate he owed $295.22. 12 Five days after his release, on June 25, 1996, another show cause letter was sent to Alkire for failure to pay the $295.22 amount. The letter set a hearing date of July 24, 1996, and stated that he was required to either pay in full before the date or appear. Alkire again failed to appear. Judge Irving found him in contempt for "failure to obey a previous order" and issued another bench warrant. Alkire was arrested on July 29, 1996, and released on his own recognizance on July 31, 1996. The bond notice set a hearing date of August 28, 1996, to answer the charges of "contempt of court-non-payment of costs." The bond also noted that Alkire must pay the court costs in the amount of $156.603 by the next court date. 13 Alkire sent a letter dated August 27, 1996, which explained that he lost his job as a result of his last stay in jail. He also stated he had just started a new job on August 27th. He said that, since he cannot pay the fines without a job, it would make no sense to arrest him and cause him to lose the new job. Alkire proposed a payment schedule based on his anticipated earnings from the new job. 14 Alkire again failed to appear at the August 28, 1996, hearing. Judge Irving again held Alkire in contempt and issued a third bench warrant for "failure to obey a previous order of this court." He was arrested on October 22, 1996, on the third warrant. At a hearing on the same day, he was found guilty of contempt and ordered to serve thirty days in the Holmes County Jail. There was no inquiry at the hearing regarding his ability to pay. Also, no credit was given toward the money owed during this period of incarceration. 15 On October 24, 1996, while Alkire was still serving the thirty day sentence, a third show cause letter was issued demanding payment of $173.30 or an appearance on November 20, 1996. The hearing was continued to December 18, 1996. After the present action was filed, the final show cause hearing date was postponed indefinitely. III. PROCEDURAL HISTORY 16 Plaintiff Alkire filed a complaint and a motion for class certification on December 16, 1996, in the U.S. District Court for the Northern District of Ohio, alleging violations of his constitutional rights for the extended warrantless detention and debt-related imprisonment. Alkire filed an amended complaint on January 7, 1997. Alkire filed summary judgment motions against all the defendants on December 1, 1998. Defendants Holmes County, Holmes County Court, and Sheriff Zimmerly filed summary judgment motions on December 1, 1998. Judge Irving filed her summary judgment motion on December 3, 1998. 17 The parties agreed to a stipulation of settlement, but it did not resolve all the issues between the parties; it only purported to settle the declaratory and injunctive portions of the suit. Thus, in a June 30, 2000, order accepting the stipulation of settlement, the district court dismissed all the pending motions without prejudice to their being resubmitted to reflect the settlement between the parties. The class certification and summary judgment motions were resubmitted, but the parties merely re-filed their initial motions, so they do not reflect the settlement as ordered by the district court.4 18 The district court denied the motion for class certification on September 26, 2000. On November 9, 2000, the court denied Alkire's summary judgment motions and granted defendants' summary judgment motions. Alkire timely appealed the district court's judgment on December 4, 2000. IV. STANDARD OF REVIEW 19 We review the district court's order granting defendants' and denying Alkire's motions for summary judgment de novo using the same summary judgment test as the district court. See Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995).5 Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 20 We review a class certification decision for abuse of discretion. Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.1998) (en banc). An abuse of discretion is present when the district court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th Cir.1996). V. DISCUSSION 21 There are five issues for our consideration as framed by Alkire. The first four ask whether the trial court erred in failing to find Holmes County and Sheriff Zimmerly in his official capacity liable: (1) under the Fourth Amendment for the policies and customs that resulted in Alkire's warrantless detention for nearly seventy-two hours; (2) under the Thirteenth Amendment for the policies and customs that resulted in Alkire being arrested three times and jailed for 60 days for failing to pay civil debts owed the county; (3) under due process and equal protection for the policy and custom of not allowing credit toward fines and costs for time served, so that Alkire was incarcerated 16 days in excess of the maximum otherwise permitted under state law; and (4) under due process and equal protection for the policies and customs that resulted in Alkire being arrested three times and jailed for 60 days in connection with non-payment of fines and court costs without any inquiry into his ability to pay. The fifth issue asks whether the trial court abused its discretion by refusing to certify a class action. 22 A. Whether the district court erred in finding no violation of Alkire's Fourth Amendment rights not to be held for seventy-two hours on a warrantless arrest. 23 Alkire argues that the district court erred as a matter of law by not granting his summary judgment motion that Holmes County and Sheriff Zimmerly were liable under § 1983 for violating his Fourth Amendment right against being detained without a prompt probable cause determination. Section 1983 provides that: 24 Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured in an action at law ... [or] suit in equity. 25 42 U.S.C. § 1983. To state a § 1983 claim, Alkire must establish (a) deprivation of a right secured under the Constitution or federal law; and (b) that deprivation was caused by a person acting under color of state law. Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.1996). 26 As for the first prong of this test, since Alkire has alleged he was held in violation of the Fourth Amendment, we must ask what the Fourth Amendment requires. It requires a "fair and reliable determination of probable cause," which must be made promptly after a warrantless arrest. Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). A judicial determination of probable cause within forty-eight hours of arrest, "will, as a general matter, comply with the promptness requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). If the probable cause hearing is not held within forty-eight hours, the burden shifts to the government "to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id. The Supreme Court specifically mentioned that intervening weekends do not count as an `extraordinary circumstance." Id. On the other hand, if the defendant is held on a valid warrant, he "is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial." Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). 27 Alkire argues he was being held on the warrantless DWI arrest. Defendants argue he was being held on the warrant from another jurisdiction. If Alkire is correct, then his Fourth Amendment rights were violated, since he was entitled to a probable cause hearing within forty-eight hours. However, if defendants are correct, then holding Alkire nearly seventy-two hours, while questionable, does not automatically violate his Fourth Amendment rights. 28 Even after careful review of the record, it is unclear as to which party is correct. Alkire states in his brief that the Holmes County records demonstrate that he was held on the DWI arrest.6 The defendants counter by citing Sheriff Zimmerly's affidavit, where he states that the State Highway Patrol discovered the outstanding warrant from another jurisdiction at the time of Alkire's arrest. However, Sheriff Zimmerly's statement falls short of stating that the warrant, rather than the DWI arrest, was the reason Alkire was detained seventy-two hours. This dispute between the parties constitutes a material factual dispute, which is inappropriate for resolution on summary judgment. 29 Applying the second part of the test for a § 1983 claim, we must also examine whether the possible deprivation of Alkire's Fourth Amendment rights was caused by a person acting under color of state law. Brock, 94 F.3d at 244. Local governments, counties, and municipalities are considered under this definition of person, and "may be sued for constitutional deprivations." Monell v. Dep't of Social Servs. City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). State governments, and their "arms, officers, and instrumentalities," however, are immune from suits for money damages under the Eleventh Amendment. Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir.1997) (citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). In Ohio, a county common pleas court "is not a segment of county government, but an arm of the state for purposes of section 1983 liability and Eleventh Amendment immunity analysis." Mumford, 105 F.3d at 269. 30 As for those actors not immune under the Eleventh Amendment, § 1983 claims cannot be premised on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. Instead, the plaintiff must "identify a municipal `policy' or `custom' that caused the plaintiff's injury," and the municipality through this policy must have been the "`moving force' behind the injury alleged." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Where a government "custom has not received formal approval through the body's official decisionmaking channels," such a custom may still be the subject of a § 1983 suit. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. 31 Applying this test, Judge Irving and the Holmes County Court are protected by Eleventh Amendment immunity, since Ohio law considers county courts arms of the state for this purpose. However, neither Sheriff Zimmerly nor Holmes County have Eleventh Amendment immunity, since Sheriff Zimmerly is a county employee and Holmes County can be liable for constitutional deprivations where a county policy or custom was the moving force behind the deprivation. 32 According to Alkire, in 1994, after a new Holmes County jail opened, Sheriff Zimmerly established the policy of detaining persons in the county jail until their initial appearance, since they now had adequate jail space. The record reflects that, because the Holmes County Court is a part-time court, the first available court date was often not until Tuesday mornings; court was never held on weekends or holidays. As a result, any warrantless arrest from late afternoon Friday through Sunday morning would very likely run afoul of the forty-eight hour requirement mandated by Riverside. This is the very sort of `policy or custom' that was envisioned in Brown. Liability extends to Holmes County because any policy of county employee Sheriff Zimmerly on holding detainees until trial was also a county policy, and this policy was the `moving force' behind the injury alleged. It is not necessary that Holmes County officially endorsed this policy through legislative action for it to carry its imprimatur. 33 In addition, neither Sheriff Zimmerly nor Holmes County can claim absolute, quasi-judicial, or qualified immunity for their policy that resulted in the detention of prisoners beyond the forty-eight hour threshold. As for absolute immunity, the proponent seeking such immunity bears the burden of establishing the justification for it. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, 433 n. 4, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993) ("The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been quite sparing in our recognition of absolute immunity, and have refused to extend it any further than its justification would warrant."). One type of absolute immunity is judicial immunity. Mireles v. Waco, 502 U.S. 9, 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) ("A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages.") (collecting cases). However, neither Judge Irving nor the Clerk's Office appears to have played any role in the decision to detain prisoners beyond forty-eight hours. Nor was Sheriff Zimmerly acting under the official orders of Judge Irving in carrying out the policy. 34 As for quasi-judicial immunity, which is extended to those persons performing tasks so intertwined with the judicial process that they are considered an arm of the judicial officer, Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.1994), it does not apply here. According to Bush: 35 The Supreme Court has endorsed a "functional" approach in determining whether an official is entitled to absolute immunity. Under this approach, a court "looks to `the nature of the function performed, not the identity of the actor who performed it.'" For example, a prosecutor who undertakes acts in the preparation or initiation of judicial proceedings is entitled to absolute immunity. On the other hand, when a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available. 36 Id. (citations omitted). Again, Sheriff Zimmerly's policy was not dictated by Judge Irving, and it can be described as administrative in nature. The record demonstrates that it was his decision, beginning in 1994, to keep those arrested in jail until their initial appearance. Judge Irving often does not discover that someone has been arrested until they arrive for a hearing before her. 37 Finally, we conclude that neither Holmes County nor Sheriff Zimmerly enjoy qualified immunity from this claim. According to the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity involves a two-step inquiry. First, the court must determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiff show that the defendants violated his constitutional rights. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a favorable view of the facts does demonstrate a constitutional violation, the next step is to ask whether the right was clearly established at the time of the defendants' actions. Id. 38 Qualified immunity, of course, offers no protection for Holmes County. It is well established that municipalities are not entitled to qualified immunity. Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir.1992). We also conclude that Sheriff Zimmerly is not entitled to qualified immunity as to the plaintiff's Fourth Amendment claim. We have already determined that, if plaintiff's version of the facts is believed, a constitutional violation has occurred. There is little doubt, moreover, that the relevant law was clearly established at the time of defendants' actions. The constitutional violation in the instant case follows directly from the Supreme Court's 1991 decision in McLaughlin. Since the events at issue in the instant case occurred more than four years after McLaughlin was decided, it seems apparent that the plaintiff's constitutional right to receive a probable cause determination within forty-eight hours of his arrest was clearly established at the time of his arrest. 39 Therefore, the district court's dismissal on this issue is reversed. Because there are genuine issues of material fact concerning Alkire's Fourth Amendment claim, however, the district court's denial of Alkire's motion for summary judgment is affirmed. This case is remanded for further proceedings to determine whether Alkire was being held on the arrest warrant or the DWI arrest. 40 B. Whether the district court erred in finding no violation of Alkire's Thirteenth Amendment right not to be imprisoned for a civil debt. 41 Alkire argues that the district court erred as a matter of law in not granting his summary judgment motion that Holmes County and Sheriff Zimmerly were liable under § 1983 for violating his Thirteenth Amendment right not to be imprisoned for civil debt. As stated above, to state a § 1983 claim, Alkire must establish (a) deprivation of a right secured under the Constitution or federal law; and (b) that deprivation was caused by a person acting under color of state law. Brock, 94 F.3d at 244. 42 The constitutional right against imprisonment for civil debt is well established. The State may not "`impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.'" Bearden v. Georgia, 461 U.S. 660, 667, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (quoting Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971)). Ohio law is even more stringent: 43 no member of a class of judges can, under the Ohio law, impose a fine in a criminal case until he has assured himself that the defendant has made a knowing and intelligent waiver of his right to have his ability to pay the fine determined. 44 Karr v. Blay, 413 F.Supp. 579, 583 (N.D.Ohio 1976). This rule does not apply to willful refusal to pay a fine, only inability to pay or indigency. Bearden, 461 U.S. at 668, 103 S.Ct. 2064 (citing Williams v. Illinois, 399 U.S. 235, 242 n. 19, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970)). Criminal contempt, though, is a separate crime from the punishment on the underlying offense; it is designed to be punitive and "vindicate the authority of the court." Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827-28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). 45 Applying the law to these facts, first, the lack of a judicial determination of Alkire's ability to pay appears to be a violation of Ohio law. Second, even though it is appropriate to impose a jail term for criminal contempt, it is unconstitutional to impose a jail term when an indigent person is unable to pay a fine. Judge Irving's orders give conflicting rationales for her bench warrants and contempt orders. For example, the first bench warrant was issued for Alkire's "failure to obey a previous order of this court" and "fail[ure] to appear." However, her first contempt order sentenced him to thirty days for "failing to pay any fine or costs." 46 Despite the conflicting rationales given for the orders, Judge Irving is shielded from suit by absolute judicial immunity. Judicial immunity is immunity from suit, and is only overcome for non-judicial acts, or where the judge acted in complete absence of jurisdiction. Mireles, 502 U.S. at 11-12, 112 S.Ct. 286. This immunity extends to the Clerk's Office, which processed her orders and bench warrants. Foster v. Walsh, 864 F.2d 416, 417 (6th Cir.1988) ("a clerk who issues a warrant at the direction of a judge is performing a function to which absolute immunity attaches."). Sheriff Zimmerly, who executed the judge's orders, and Holmes County, as his employer, also enjoy this immunity. Bush, 38 F.3d at 847 ("enforcing or executing a court order is intrinsically associated with a judicial proceeding"). Thus, Alkire's § 1983 suit is unable to reach Holmes County and Sheriff Zimmerly for monetary damages. 47 Accordingly, the district court's denial of Alkire's summary judgment motion and grant of defendants' summary judgment motion with regard to the Thirteenth Amendment claim survive de novo review. While there appear to be possible constitutional violations, the district court recognized the problem and encouraged a settlement agreement to resolve these practices. The resulting stipulated settlement appears to end the questionable practices and obviates the need for injunctive relief. Damages are clearly barred due to Judge Irving's absolute judicial immunity, and the immunity extends to the other defendants who were executing her orders. 48 C. Whether the district court erred in finding no violation of Alkire's due process and equal protection rights where defendants failed to allow credit toward fines and costs for time served. 49 Alkire asserts that the district court erred as a matter of law in not granting summary judgment against Holmes County and Sheriff Zimmerly for violation of his rights to due process and equal protection by not crediting his time served in jail toward his fines and court costs. Once again, to state a § 1983 claim, Alkire must establish (a) deprivation of a right secured under the Constitution or federal law; and (b) that deprivation was caused by a person acting under color of state law. Brock, 94 F.3d at 244. 50 Section 2947.14(D) of the Ohio Revised Code states: 51 No person shall be ordered to be committed to a jail or workhouse or otherwise be held in custody in satisfaction of a fine imposed as the whole or a part of a sentence except as provided in this section. Any person imprisoned pursuant to this section shall receive credit upon the fine at the rate of thirty dollars per day or fraction of a day. If the unpaid fine is less than thirty dollars, the person shall be imprisoned one day. 52 OHIO REV.CODE ANN. § 2947.14(D) (amount raised from thirty to fifty dollars per day effective September 6, 2002, see 2002 Ohio Laws 149). 53 Applying thirty dollars per day to his fine, Alkire argues he was held sixteen days longer than he should have been during his first incarceration. Then, in addition, he was arrested two more times and incarcerated another thirty days. The Ohio Supreme Court has held that, as applied to an indigent, imprisonment for non-payment of a fine, crediting only three dollars per day toward the fine, is unconstitutional. Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749, 753 (1969). Alkire argues that, "[a.]fortiori, Holmes County's custom of no credit is as fundamentally unfair and discriminatory" as three dollars per day. Defendants reply that Alkire was jailed for criminal contempt rather than failure to pay the fine. As noted above, criminal contempt is a separate crime from punishment for the underlying offense. Bagwell, 512 U.S. at 827-28, 114 S.Ct. 2552. 54 The district court's denial of Alkire's summary judgment motion and grant of defendants' summary judgment motion survive de novo review. Even assuming that Alkire was imprisoned for non-payment of his debts, he is unable to reach the responsible parties in a § 1983 suit. The Clerk's office is the defendant responsible for accounting, crediting, and collecting the fines and costs. The Clerk's office operates in close conjunction with Judge Irving, and as such, is cloaked in her absolute judicial immunity, its own Eleventh Amendment immunity, and its own quasi-judicial immunity. Mireles, 502 U.S. at 11, 112 S.Ct. 286; Mumford, 105 F.3d at 267. While Sheriff Zimmerly and Holmes County are not protected from § 1983 suits by the Eleventh Amendment, they played no role in the accounting and crediting of Alkire's debt in relation to his time served. Notably, when Judge Irving's order specifically mentioned that Alkire was allowed to work off his fines, he was allowed to do so. In the absence of such an order, he was not allowed to do so. Sheriff Zimmerly was acting on a valid bench warrant that ordered Alkire to be arrested and incarcerated for thirty days. Consequently, he and Holmes County are protected by quasi-judicial immunity and qualified immunity. Bush, 38 F.3d at 847; Hunter, 502 U.S. at 227, 112 S.Ct. 534. 55 Accordingly, the district court's denial of Alkire's summary judgment motion and grant of defendant's summary judgment motion as to Holmes County and Sheriff Zimmerly survive de novo review. If Alkire were incarcerated for criminal contempt, he is not entitled to monetary credit for his time served. If he were incarcerated for non-payment of fines, neither Sheriff Zimmerly nor Holmes County are liable under § 1983. 56 D. Whether the district court erred in finding no violation of Alkire's Fourteenth Amendment right not to lose his liberty due to indigency. 57 Alkire argues that the district court erred as a matter of law by not granting summary judgment against Holmes County and Sheriff Zimmerly for violating Alkire's right not to suffer incarceration due to indigency. This is basically a restatement of the argument in Section B, supra. As discussed in Section B, both the United States Constitution and Ohio statute prohibit a loss of liberty for those who are unable to pay their civil debts. Bearden, 461 U.S. at 674, 103 S.Ct. 2064; Karr, 413 F.Supp. at 583. Alkire's appellate brief documents the policies of the Clerk's Office, including requiring payment of fines and costs within two years, making no inquiry into financial ability to pay, and never having found an inability to pay in the past six years. He also points to the practices and customs of Sheriff Zimmerly, who "never" questions the legality of arrest or incarceration in connection with failure to pay. Alkire argues that these practices and customs further the violation of his right not to suffer incarceration due to indigency. 58 Unlike the unlawful detention of prisoners after a warrantless arrest for longer than forty-eight hours before a probable cause hearing is held, Sheriff Zimmerly and Holmes County are acting at the direction of Judge Irving and the County Court in enforcing bench warrants and incarcerating prisoners for the term of their criminal contempt sentence. The Clerk's Office may be complicit in blurring the line between failure to appear and failure to pay, but it is ultimately Judge Irving who decides to issue criminal contempt sanctions. 59 Sheriff Zimmerly, Holmes County, and the Clerk's Office all derive their authority and orders from the actions of Judge Irving. Judge Irving enjoys absolute judicial immunity, Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Sheriff Zimmerly, Holmes County, and the Clerk's Office have quasi-judicial immunity and qualified immunity because they are performing quasi-judicial duties under the direction of a judicial officer. Bush, 38 F.3d at 847; Hunter, 502 U.S. at 227, 112 S.Ct. 534. These duties are intimately "intertwined with the judicial process" to the degree that "these persons are considered an arm of the judicial officer who is immune." Bush, 38 F.3d at 847 (citing Scruggs v. Moellering, 870 F.2d 376 (7th Cir.1989)). 60 Accordingly, the district court's denial of Alkire's summary judgment motion and grant of defendants' summary judgment motion on this issue survive de novo review. The Clerk's Office merely refers cases of non-payment to Judge Irving who makes her own determination about how to proceed. Sheriff Zimmerly and Holmes County merely execute the orders issued by Judge Irving when incarcerating individuals. The defendants are not exceeding the § 1983 immunity afforded to them. 61 E. Whether the district court abused its discretion in refusing to certify a class. 62 Alkire argues that the district court abused its discretion by denying his motion for class certification on damages and restitution. There are four prerequisites to a class action, found in Fed.R.Civ.P. 23(a): 63 One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. 64 Although Rule 23(a)(2) refers to common questions of law or fact, in the plural, there need only be one question common to the class-though that question must be a "common issue the resolution of which will advance the litigation." Sprague, 133 F.3d at 397. See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Ultimately, the class may only be certified if, "after rigorous analysis," the district court is satisfied that these prerequisites have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The burden is on the plaintiff "to establish his right" for class certification. Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir.1976). 65 If Alkire can satisfy the four prerequisites for class certification found in Rule 23(a), then he must show that, in addition, he satisfies one the three types of class actions found in Fed.R.Civ.P. 23(b). Only two of the three types found in Rule 23(b) are relevant here, types II and III. A type II class action requires that the plaintiff seek primarily injunctive or declaratory relief. Fed.R.Civ.P. 23(b)(2). Type III requires that "the court find[] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). 66 The district court's denial of Alkire's motion for class certification survives abuse of discretion review. On the first prerequisite, numerosity, the district court found it was "highly improbable" that the Alkire could make such a showing. While Alkire postulates that there are hundreds of potential plaintiffs, defendants' search of jail records produced only nine potential class members who were incarcerated due to failure to pay a civil debt or court costs. The district court did not abuse its discretion by believing defendants' asserted number of class members over Alkire's speculative one. 67 The second prerequisite of Rule 23(a) requires common questions of law and fact among the class, and the third prerequisite looks to the typicality of the claims or defenses of the representative party. The district court found that the potential class members are too diverse to warrant class treatment, that the "varying reasons for the arrests, varying lengths of stay in jail, varying financial situations, vary reasons for contempt adjudications... would impact on the amount of damages any individual class member might be entitled to." The district court expressly found that Alkire's proposed class lacks the "common questions of fact" required under the second prong and the "typicality" required under the third prong of Rule 23(a).7 68 Alkire argues that the district court abused its discretion because only one common question of law or fact is required. He points to a common question of fact, "the existence and routine application of the illegal policies ultimately proven by the [defendants' own] depositions," and common questions of law, including issues one through four presented in this appeal. 69 Our review is for abuse of discretion, and the district court did not abuse its discretion in applying the class action prerequisites. There are enormous variations in the factual and legal backgrounds surrounding the hundreds of cases Alkire asserts might qualify for class membership. A class action cannot be certified unless the resolution of the common issues "will advance the litigation." Sprague, 133 F.3d at 397. The district court neither applied the wrong legal standard in examining these two elements, nor did it misapply the correct legal standard. The court correctly placed the burden of demonstrating his right to class certification and concluded that Alkire did not meet his burden. Such a conclusion was not an abuse of discretion. 70 Even if we agreed with Alkire that the district court abused its discretion in applying the prerequisites, we would still not find in his favor because he has not satisfied either the type II or III requirements for maintaining a class action. Alkire, in his initial motion for class certification, asserted his right to class certification under a type II class action only. As the district court noted, though, the stipulated settlement regarding declaratory and injunctive relief demonstrates that Alkire has "obtained all the relief future potential plaintiffs would want or need." Alkire even agrees with the district court's conclusion on this point, stating the he does not dispute the district court's holding "as to a class of future members.... The stipulations do provide sufficient protection for their interests." Thus, Alkire cannot maintain a type II class action. 71 Alkire's quarrel with the district court, then, is its failure to certify a type III class action, where monetary damages predominate. However, he ignores the requirements of a type III class action, which include a showing that the common questions predominate over the individual ones and that the class action is a superior method for adjudication. Consequently, Alkire's argument that only one common question is necessary for class certification does not apply under the type III analysis. The district court's finding that numerous factual issues, such as varying reasons for arrest, varying lengths of stay, and varying financial situations "do not warrant class treatment" is even stronger when reviewed under the type III requirements. Accordingly, we affirm the district court's denial of Alkire's motion for class certification. VI. CONCLUSION 72 For the foregoing reasons, we REVERSE the district court with respect to its grant of defendant's summary judgment motion as to the liability of Sheriff Zimmerly and Holmes County for potentially violating Alkire's Fourth Amendment right not to be detained more than forty-eight hours without a probable cause hearing and REMAND for further proceedings. We AFFIRM the district court on its grant of defendants' summary judgment motions on the other three constitutional issues. We also AFFIRM the district court's denial of Alkire's motion for class certification. Notes: * The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation 1 There is no explanation in the record for the discrepancy between $620 and $635 2 The date stamp indicates that the letter was filed on September 26, 1995, which would be before the court sent the first show cause letter. Alkire argues that this demonstrates he was being proactive about his inability to meet the payment schedule. However, the letter itself is dated November 22, 1995. In addition, the letter refers to "your letter last week," apparently referencing the Judge's show cause letter, which was signed on November 15, 1995. Thus, we will assume that the date stamp was inaccurate and the correct date is November 22, 1995, as listed in the letter 3 Again there is no explanation in the record for the discrepancy between this amount and the $295.22 amount 4 Consequently, it is not clear whether the settlement regarding prospective relief is in effect, or whether Alkire is still seeking declaratory and injunctive relief. Since the District Court assumed he was not, and the parties did not address declaratory and injunctive relief, we will assume that the settlement resolved the prospective portions of the case 5 Alkire is appealing both the grant of defendants' summary judgment motions and the denial of his summary judgment. Normally, the denial of a summary judgment motion indicates that there is a genuine issue of material fact for trial. As such, denials are considered interlocutory appeals from which no appeal is available until the entry of a final judgment after a trial on the meritsUnited States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105 (1941). "However, when the appeal from a denial of summary judgment is presented together with an appeal from a grant of summary judgment, we have jurisdiction to review the appropriateness of the district court's denial." Thomas v. U.S., 166 F.3d 825, 828 (6th Cir.1999). The denial of summary judgment based purely on legal grounds is reviewed de novo. Id. 6 In support, Appellant cites three documents from an evidentiary appendix, which was filed in the district court with his motion for class certification. While Appellant included some of the evidentiary appendix in the joint appendix provided to this Court, he did not provide the specific pages he cites for this point 7 The fourth element of Rule 23(a), whether the representative parties will fairly and protect the interests of the class, is not addressed by the district court or in the briefs. Therefore, we will also not address it

Case: 16-11174 Document: 00513946985 Page: 1 Date Filed: 04/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fif h Circuit No. 16-11174 FILED April 10, 2017 Lyle W. Cayce LONNY ACKER, Clerk Plaintiff - Appellant v. GENERAL MOTORS, L.L.C., Defendant - Appellee Appeal from the United States District Court for the Northern District of Texas Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges. EDITH H. JONES, Circuit Judge: Appellant Lonny Acker is a General Motors, L.L.C. (“GM”) employee who was approved for intermittent Family and Medical Leave Act (“FMLA”) leave but on several occasions was absent from work and did not follow company protocol for requesting FMLA leave. He suffered several weeks of disciplinary unpaid layoff. He sued GM for FMLA interference and retaliation and for disability discrimination under the Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA”). The district court entered summary judgment for GM. We AFFIRM, principally because the FMLA and accompanying regulations require employees to follow their  Case: 16-11174 Document: 00513946985 Page: 2 Date Filed: 04/10/2017 No. 16-11174 employer’s “usual and customary” procedures for requesting FMLA leave absent “unusual circumstances,” 29 C.F.R. § 825.303(c). BACKGROUND Acker began working for GM in the fall of 2000 at its automobile plant in Kokomo, Indiana. In summer 2014, he voluntarily transferred to the GM assembly plant in Arlington, Texas. He is an electrician who typically works third shift. Acker suffers from acute iron-deficiency anemia that sometimes causes him to experience blackouts, grayouts, heart palpitations, and fatigue. As a consequence, Acker was certified for intermittent medical leave under the FMLA by his physician. GM has a detailed attendance policy. The product of collective bargaining between GM and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, this attendance policy is codified in what is known as “Document No. 8—Memorandum of Understanding—Special Procedure for Attendance” (“Doc. 8”). As a current electrician covered by the collective bargaining agreement, Acker is subject to Doc. 8. For an unplanned absence, the collective bargaining agreement simply requires employees to notify GM at least thirty minutes before the shift starts. Failure to call by the deadline is considered an “instance” under Doc. 8, unless the employee can explain the untimeliness satisfactorily to management. When absences are unexcused, GM allocates up to eight hours per instance of that employee’s “Vacation Restricted” hours to each hour that the employee was absent. Under this arrangement, employees are permitted up to five “instances” of unexcused absence before they become subject to discipline under the policy. Acker testified that he understood this use of “Vacation Restricted” time as a “free pass.” After the “free” absences are used up, Doc. 8 imposes “Attendance Improvement Steps” for additional unexcused absences 2  Case: 16-11174 Document: 00513946985 Page: 3 Date Filed: 04/10/2017 No. 16-11174 through a six-step program that moves from two written warnings to unpaid disciplinary layoff to termination. GM also has a policy for requesting FMLA leave. Union benefit representatives at each GM facility assist employees with FMLA leave requests. Employees must make an initial request for FMLA leave with GM’s Benefits & Services center, administered by third-party vendor Sedgwick Claims Management Services, Inc. (“Sedgwick”). Once an employee has requested intermittent FMLA leave, Sedgwick sends the employee a letter reiterating GM’s policies for requesting and taking leave. This policy is described in an employee letter as follows: If you have requested intermittent leave, you are required to report any time taken under the Family and Medical Leave Act (FMLA), at least 30 minutes PRIOR to the start of your normal scheduled work shift, by calling the GM Absence Call In Line [redacted] and selecting the “FMLA” option when prompted (option #8). You are also required to call the GM Benefits & Services Center at [redacted] by the end of your normally scheduled work shift to report your FMLA absence. When calling, select the prompt for “FMLA”. Acker testified that he was familiar with this procedure and received a packet including this letter. By September 2014, Acker testified, he had used all of his “free pass” days. In mid-November 2014, Acker contacted Sedgwick to request FMLA leave. Acker received instruction from Sedgwick to obtain a medical certification by November 28, and he complied. On December 9, Sedgwick notified him that he was approved for intermittent FMLA leave from November 11, 2014 to May 11, 2015. Nevertheless, he began receiving discipline for several unapproved absences according to GM’s procedures. The record is undisputed concerning the disciplinary procedure GM followed and the facts underlying the discipline. Acker was absent from work on September 29 and received his first written disciplinary warning under Doc. 3  Case: 16-11174 Document: 00513946985 Page: 4 Date Filed: 04/10/2017 No. 16-11174 8 on October 7. Acker testified that he did not request FMLA leave for the September 29 absence. Acker was absent a month later, on October 30, and was disciplined with a second written warning a day later. Acker testified that he did not request FMLA leave for this absence, either. Acker was absent again November 12, 13, and 14, which were counted as two “instances” of unexcused absence under GM’s policy. Combined with the first two unexcused absences, Acker became subject to two weeks’ unpaid suspension as a disciplinary layoff. Acker contacted Sedgwick to request FMLA leave for the November 12 and 13 absences, and his request was approved by Sedgwick. When GM was made aware of this approval, GM rescinded its disciplinary action for November 12 and 13. However, Acker testified that, for the November 14 absence, he failed to call in 30 minutes before his shift began and missed the FMLA absence call-in time by over an hour. For this November 14 default, GM treated the first week of the earlier disciplinary layoff, which Acker had already undergone, as discipline pursuant to Doc. 8. Acker was also absent on November 22 and 23. Phone records produced by Acker confirm that none of his three calls to the GM shift absence line were timely. Acker was issued another disciplinary layoff with two weeks of unpaid suspension for these unexcused absences, in line with the Doc. 8 policy of progressive discipline. Acker was absent again on December 6, 7, and 8. His absence for December 7 was approved because Acker timely called both the GM absence line and the GM Benefits & Services line. While Acker did contact the GM absence line for December 6 and December 8, he failed to contact the Benefits & Services line in time on both occasions. Thus on January 14, 2015, Acker was denied FMLA coverage for both days and issued a disciplinary layoff under GM policy, this time a 30 day unpaid suspension. Although the Doc. 8 policy 4  Case: 16-11174 Document: 00513946985 Page: 5 Date Filed: 04/10/2017 No. 16-11174 required Acker’s termination for these additional unexcused absences, GM retained him with an opportunity to correct his attendance issues. The last disciplinary action GM had to take with respect to Acker’s attendance was on January 14. Since February 2015, Acker testified, he has taken more than 30 days of intermittent FMLA leave and managed to timely call the GM Absence and Benefits & Services lines according to the collective bargaining agreement. Nevertheless, Acker filed suit against GM in September 2015 for damages concerning the unpaid suspensions. After discovery, GM moved for and was granted summary judgment by the district court. Acker timely appealed. STANDARD OF REVIEW “Summary judgment is required ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). Summary judgment cannot be defeated through “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002). DISCUSSION Acker raises three issues on appeal. First, regarding his FMLA interference claim, he contends that his calls to GM and the Benefits & Services lines were sufficient to raise a genuine issue of material fact as to whether he provided reasonable notice of his need for unplanned FMLA leave. Second, he claims that the disciplinary layoffs were in retaliation for exercising his FMLA rights. Third, he argues that his request for FMLA leave was also a request for a reasonable accommodation for a disability under the ADA and TCHRA, and that the disciplinary layoffs thus also constituted disability discrimination. 5  Case: 16-11174 Document: 00513946985 Page: 6 Date Filed: 04/10/2017 No. 16-11174 A. FMLA Interference To prove an interference claim, a plaintiff “must at least show that [the defendant] interfered with, restrained, or denied [his] exercise or attempt to exercise FMLA rights, and that the violation prejudiced [him].” Bryant v. Tex. Dep’t of Aging & Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015) (quoting Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 347 (5th Cir. 2013)). An “interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006). While the employee has a right to take leave under the FMLA, the employee must give his employer notice of his intention to take leave in order to be entitled to it. See 29 U.S.C. § 2612(e)(1) (“Requirement of notice”); (2) (“Duties of employee”). See also 29 C.F.R. § 825.303. When the need for leave is foreseeable, the employee generally “must provide the employer at least 30 days advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). If 30 days’ notice is not practicable, “notice must be given as soon as practicable.” Id. In all instances, “an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Id. § 825.302(d). “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA–protected leave may be delayed or denied.” Id. This regulation “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2013). Even when an employee’s need for leave is unforeseeable, the regulations make clear the employee’s duty to comply with the employer’s policy. “When 6  Case: 16-11174 Document: 00513946985 Page: 7 Date Filed: 04/10/2017 No. 16-11174 the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.303(c). “[A]n employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008–09 (10th Cir. 2011). See also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008) (“Employers who enforce [call-in] policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”). An employer may thus require that an employee hew to the employer’s usual and customary procedures for requesting FMLA leave. Discipline resulting from the employee’s failure to do so does not constitute interference with the exercise of FMLA rights unless the employee can show unusual circumstances. “Formal notice-of-absence policies serve an employer’s legitimate business interests in keeping apprised of the status of its employees and ensuring that it has an adequate workforce to carry out its normal operations.” Twigg, 659 F.3d at 1009; Goff v. Singing River Health Sys., 6 F. Supp. 3d 704, 711 (S.D. Miss. 2014) (summary judgment is appropriate in FMLA case without evidence of unusual circumstances excusing employee’s failure to call employer timely). It is undisputed that Acker’s phone records show he failed to call in timely under GM’s procedure on the dates for which he received disciplinary layoff: November 14, 22, 23, and December 6 and 8. Acker cannot rely on his deposition testimony, inconsistent with phone records that he described as the “universe” of his calls during the relevant period, to create a fact issue on timeliness. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (“vague, self-serving statements” are “not sufficient to raise a genuine issue of material 7  Case: 16-11174 Document: 00513946985 Page: 8 Date Filed: 04/10/2017 No. 16-11174 fact”); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). Thus, in order to establish FMLA interference, Acker has to show that for each of these non-FMLA-approved absences, unusual circumstances prevented him from following the union-negotiated procedures. This he has not done. Acker testified that his disability causes him to experience severe disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue when in the acute phase, and that his disability can reach the acute phase suddenly and could constitute a sudden medical issue or emergency. He offered no factual support, however, that he reached the acute stage or experienced a medical emergency on the days in question. Indeed, he testified that he was too “dizzy” to follow GM’s call-in procedure only on November 14, but he was given FMLA leave and was not disciplined under Doc. 8 for that absence. He did not explain why “unusual circumstances” left him capable of calling one line, but not the other: on November 22, December 6, and December 8, Acker timely called the GM absence line, but failed to call the GM Benefits & Services line. There is no proof that unusual circumstances arising from his condition prevented him from complying with GM’s call-in policy with respect to one line but not the other. Relying on Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576 (5th Cir. 2010) as well as Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir. 2011), Acker argues that failure to comply with an employer’s usual and customary procedures cannot be grounds for discipline when the employee provides “reasonable” notice of an unforeseen absence. He thus argues that there is a fact issue whether his (untimely) phone calls provided reasonable notice to GM irrespective of company policies. Acker’s reliance on these cases is misplaced. First, the holdings in each of those cases are predicated on outdated, materially different regulations. The 8  Case: 16-11174 Document: 00513946985 Page: 9 Date Filed: 04/10/2017 No. 16-11174 Sixth Circuit noted the material changes to the FMLA regulations that went into effect on January 16, 2009. See Srouder, 725 F.3d 608. Based on the previous regulations, the Sixth Circuit had held that the “FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Id. at 613–614 (citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003). But the revised regulations explicitly allow employers to condition FMLA leave on following the employer’s policy. Srouder, 725 F.3d at 614. Indeed, this court in Saenz acknowledged that the post-2009 regulations, if applicable, could have required summary judgment for the employer: the 2009 revisions to the FMLA regulations governing notice should not apply to the instant case . . . the most salient regulatory change—the revisions to 29 C.F.R. § 825.303—arguably increases the duties imposed upon employees seeking FMLA leave. Were we to apply the new regulations, [the employer] might very well be entitled to summary judgment . . . we decline to retroactively apply the new regulations, and all citations to the governing FMLA regulations refer to the pre-2009 Code of Federal Regulations edition. Saenz, 613 F.3d at 582 n.9. The new regulations control the standard for this case, and Acker has not raised a fact issue for FMLA interference. 1 B. FMLA Retaliation To prove FMLA retaliation, the employee must demonstrate: “1) he was protected under the FMLA; 2) he suffered an adverse employment action; and 3) he was treated less favorably than an employee who had not requested leave under the FMLA or the adverse decision was made because he sought 1 Likewise Millea involved an incident in 2006, three years before the material change in the regulations. See 658 F.3d at 159–60 (describing the relevant incident in 2006). In addition, that case is factually distinct because unlike here, where Acker did not follow the timing requirements of his employer’s FMLA request policy, the employer in Millea “received timely, although indirect, notice of Millea’s use of FMLA leave.” Id. 9  Case: 16-11174 Document: 00513946985 Page: 10 Date Filed: 04/10/2017 No. 16-11174 protection under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 583 (5th Cir. 2006). The third element requires the employee to show “there is a causal link” between the FMLA-protected activity and the adverse action. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005). Acker cannot make a prima facie case. He has not shown how his disciplinary leave was caused by his attempts to seek protection under the FMLA instead of his failure to follow GM’s attendance and absence approval process. Acker is still employed by GM. He has taken more than 30 days of intermittent FMLA leave since his last disciplinary layoff by following GM’s call-in procedure. It is undisputed that GM’s policy should have resulted in Acker’s termination for his absence on December 6, but GM offered Acker the opportunity to correct his attendance problems. These undisputed facts belie any casual connection between his claimed adverse action and his attempt to seek FMLA leave. C. ADA/TCHRA Acker also argues that in disciplining him for violation of the Doc. 8 procedures, GM failed to accommodate his disability by means of FMLA leave. He contends that his requests for FMLA leave, although made outside of the process GM provided, were simultaneously requests for a reasonable accommodation under the ADA, and concomitantly, the TCHRA. 2 Acker argues that because a request for medical leave generally is a request for an accommodation in some instances, a request for FMLA leave is also a request 2 The Texas Supreme Court has held that the TCHRA can be interpreted in lockstep with the federal ADA. By adopting the TCHR, “the Legislature intended to correlate state law with federal law in employment discrimination cases . . . Therefore, we look to federal law to interpret the Act’s provisions.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (quotations and citations omitted). 10  Case: 16-11174 Document: 00513946985 Page: 11 Date Filed: 04/10/2017 No. 16-11174 under the ADA. The district court disagreed and held that Acker did not make a request for a reasonable accommodation. Employees who require accommodation due to a disability are responsible for requesting a reasonable accommodation. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216 (5th Cir. 2011) (quoting E.E.O.C. v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 621 (5th Cir. 2009)). However, a request for FMLA leave is not a request for a reasonable accommodation under the ADA. “The ADA and the FMLA have divergent aims, operate in different ways, and offer disparate relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). “FMLA leave is not a reasonable accommodation under the ADA; rather it is a right enforceable under a separate statutory provision.” Harville v. Tex. A&M Univ., 833 F. Supp. 2d 645, 661 (S.D. Tex. 2011) (citing Trevino v. United Parcel Serv., No. 3:08–CV–889–B, 2009 WL 3423039, *12 (N.D.Tex. Oct. 23, 2009)). Textual comparison of the FMLA with the ADA demonstrates why requesting FMLA leave alone is not a request for an ADA reasonable accommodation. An employee who requests FMLA leave asserts he has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D) (“Entitlement to leave”). A request for a reasonable accommodation under the ADA is a claim that the employee “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (“Definitions: Qualified Individual”). See Capps v. Mondelēz Global LLC, 147 F. Supp. 3d 327, 340–41 (E.D. Penn. 2015) (“an employee who requests leave does not clearly communicate to her employer that she is disabled and desires an accommodation.”) (quoting Rutt v. City of Reading, Pa., No. CIV.A. 13–4559, 2014 WL 5390428, *4 (E.D. Pa. Oct. 22, 2014). Thus, an employee seeking 11  Case: 16-11174 Document: 00513946985 Page: 12 Date Filed: 04/10/2017 No. 16-11174 FMLA leave is by nature arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation communicates that he can perform the essential functions of the job. Acker has not demonstrated any dispute of material fact that his untimely phone calls could have sought a reasonable accommodation under the ADA. He failed to follow GM’s absence procedure, was disciplined, and has successfully followed GM’s absence procedure since. As a consequence, Acker has not proved how GM denied him any accommodation. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. 12 

215 Cal.App.2d 826 (1963) ROBERT T. GRIFFITH, Plaintiff and Appellant, v. PETER B. ZAVLARIS, Defendant and Respondent. Civ. No. 20675. California Court of Appeals. First Dist., Div. One. May 8, 1963. Hollander, Lipian & Horwitz and Jack H. Lipian for Plaintiff and Appellant. Hadsell, Murman & Bishop and G. William Filley for Defendant and Respondent. BRAY, P. J. Plaintiff appeals from judgment of dismissal. Question Presented In an action for alleged legal malpractice, when does the statute of limitations commence to run? *827 Record December 30, 1960, plaintiff filed a complaint against defendant attorney for malpractice. The complaint alleged that on or about February 8, 1956, plaintiff employed defendant to advise him with regard to "the purchase of a one-third share interest" in a certain corporation; that pursuant to such employment defendant advised that the promissory note, copy of which is set forth in the complaint, could "be executed by the plaintiff for the establishment of his one-third interest" in the said corporation. The note is dated March 29, 1956, is for $7,000, payable to plaintiff one year after date and executed by Robert Rohrig. The note gives an alternative to payment of money "or to be payable by the transfer of seventy (70) shares of stock of the Quality Beverage Company of Santa Clara, Inc., when said stock issued to Robert Rohrig." The complaint further states that defendant "could, by exercise of due diligence and skill, have advised the plaintiff the California Corporate Securities Act, Corporation Code 25000 et seq. does not permit any Company to obtain money for the issuance of securities prior to the obtaining of a permit to issue from the Division of Corporations and that any and all violations of the said Corporation Act are made criminal offenses by the said Corporate Securities Act, Corporation Code 26102, 26103"; that defendant negligently and carelessly advised plaintiff that the note could properly be executed, that the corporation could receive funds pursuant to his prepayment of $7,000 to the said corporation and that the execution of the note and the payment by plaintiff of $7,000 to the corporation was not in violation of the act and that plaintiff could receive stock pursuant to his prepayment of $7,000 to the Quality Beverage Corporation of Santa Clara, Inc.; that on May 6, 1958, plaintiff brought suit on the promissory note for $7,000 in the Santa Clara County Superior Court; that on December 31, 1959, that court ordered that neither plaintiff nor the defendant Robert Rohrig have judgment against the other because said promissory note was against the policy of law; that both parties were at fault and were in pari delicto with one another. That court ordered "No recovery." Plaintiff then alleged that thereby he lost the means of recovering said $7,000 and was required to pay court costs and attorneys' fees. Plaintiff seeks judgment for the $7,000 and all attorneys' fees and costs in that action. Defendant demurred generally and on the ground that the *828 action was barred by section 339, subdivision 1, Code of Civil Procedure. The court sustained the demurrer granting plaintiff 15 days to amend. [fn. 1] Plaintiff failing to amend, defendant moved for a dismissal. The court granted the motion and judgment of dismissal was entered thereon. Commencement of Statute of Limitations [1a] The applicable statute is section 339, subdivision 1, Code of Civil Procedure, which reads, in pertinent part, that the time for commencing action is "Within two years: (1) An action upon a contract, obligation or liability not founded upon an instrument of writing. ..." But the question is: within two years of what? Heretofore, the only cases determining the time of commencement of the two years have held that in actions for legal malpractice the statute commences to run from the date the negligent act occurs. Among these are Hays v. Ewing (1886) 70 Cal. 127 [11 P. 602], failure of the attorney to plead absence of the defendants from the state to toll the statute of limitations set up as a defense to an action on a promissory note; Jensen v. Sprigg (1927) 84 Cal.App. 519 [258 P. 683], neglect of duty of the attorney in the management of a law suit; De Garmo v. Luther T. Mayo, Inc. (1935) 4 Cal.App.2d 604 [41 P.2d 366], negligence of attorney in obtaining a judgment in less amount than that to which the plaintiff claimed to be entitled. There the court said, "The negligence if any occurred prior to entry of the judgment. ..." (P. 606.) In Wheaton v. Nolan (1934) 3 Cal.App.2d 401 [39 P.2d 457], an action for failure of attorneys "to diligently and promptly commence suit and attachment proceedings," the court did not state when the statute started to run, but based its decision upon its finding that "the allegations made to overcome the running of the statute of limitations were insufficient under the decisions of this state to accomplish that purpose. Means and sources of knowledge of the alleged breach and injury were at all times available to plaintiffs and ordinary *829 diligence on their part in consulting such means and sources would have furnished them with all the information sufficient to discover the breach and commence suit within the two-year period" (P. 403.) The action against the attorneys was filed more than four years after the plaintiffs claimed to have been damaged by the negligence of the attorneys. There is nothing in this case which gives comfort to plaintiff's contention that the true rule is that the statute does not start to run from the date of the negligent act but from the date of discovery thereof. In Lally v. Kuster (1918) 177 Cal. 783 [171 P. 961], an action against an attorney for negligence in allowing an action for the foreclosure of a note and mortgage to be dismissed for delay in prosecuting it, the attorney contended that the plaintiffs' right of action against him accrued at the time he first disobeyed the orders of his client to proceed diligently. This was approximately three years before the action was dismissed. The plaintiff claimed that the right of action against the attorney did not accrue until the dismissal of the other action. The court said that the question is not "free from difficulty, and yet where the disobedience complained of consists in delay only, the cause of action cannot be said to arise until such delay has resulted in some injury, as it did when the court dismissed the case because of the delay." (P. 791; italics added.) At first blush, Lally would appear to be opposed to the rule of the other cases, namely, that the statute runs from the time of the negligent act. On the contrary, it supports the rule. There the negligent act out of which a cause of action arose, was allowing the action to be dismissed for lack of prosecution. The attorney's delay in prosecuting the action did not become a negligent act for which redress might be sought, until the time when the action became dismissible because of that delay. Jensen v. Sprigg, supra, 84 Cal.App. 519, states that the appellant urged that the cause of action against the attorney did not accrue until the delay resulted in damages or injury to the plaintiff, citing Lally, supra. The court then stated that it agreed with the plaintiff's contention and pointed out that the plaintiff's loss of remedy in the action being prosecuted by the attorney did not occur until the action was delayed to the point where the defendant therein was adjudged a bankrupt. It was at that point that the attorney's act of *830 negligence occurred, and the statute of limitations in any action against the attorney started to run. [2] In the case at bench, the act of negligence alleged occurred when the attorney misadvised plaintiff, even though plaintiff did not discover the negligence nor the fact that he had been damaged thereby until later. [1b] Plaintiff cites no authorities supporting his contention that the statute does not commence to run in a legal malpractice case until the discovery of the loss. He states in his brief: "Appellant is well aware that the cases of De Garmo v. Luther T. Mayo, Inc. (1935) 4 Cal.App.2d 604 [41 P.2d 366], and Hays v. Ewing (1886) 70 Cal. 127 [11 P. 602], appear to establish the principle that the statute begins to run at the time of the occurrence of the negligence, and not at the time of the discovery of the negligence." However, he contends that the proviso in section 339, subdivision 1, applies. That proviso, however, does not apply because by its very terms it is limited to actions founded upon contracts of title insurance and allied contracts or obligations, for the proviso states, "provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder." Obviously liability for legal malpractice is not included in this proviso. Moreover, the fact that the proviso is limited to certain contracts and obligations indicates that the Legislature intended not to place such a limitation upon contracts, obligations or liabilities not founded upon instruments in writing. Plaintiff urges that the rule of medical malpractice cases be applied to legal malpractice cases, citing Huysman v. Kirsch (1936) 6 Cal.2d 302 [57 P.2d 908], holding in spite of earlier cases which held that the statute of limitations ran from the date of the physician's act, that the statute does not begin to run until the discovery by the patient of the negligence of the physician. However, medical malpractice is governed by section 340, subdivision 3, Code of Civil Procedure (one year) while legal malpractice is governed by section 339, subdivision 1 (two years). The Legislature has in no way made these two malpractice actions analogous. Although the application of the rules of legal malpractice actions may seem harsh, nevertheless it would appear that if the time-honored rule as to the commencement of the limitation provided in section *831 339, subdivision 1, is to be changed, it should be changed by the Legislature with appropriate conditions, so that the liability of an attorney would not exist indefinitely. Judgment affirmed. Sullivan, J., and Molinari, J., concurred. NOTES [fn. 1] 1. The allegations of the complaint are uncertain in that it is alleged that defendant advised that the promissory note could be executed by plaintiff when apparently it was to be and was executed by Rohrig. Further, it is alleged, in effect, that the $7,000 which by the note was to be repaid by Rohrig was paid to the corporation and the shares which the note states were to be delivered by Rohrig to plaintiff were to be issued to plaintiff by the corporation. However, as the parties mainly present the question as to whether, if a cause of action existed, it is barred by the statutes of limitation, and we determine herein that it is so barred, we deem it unnecessary to determine upon what other grounds the demurrer was sustained.

592 F.2d 832 2 ITRD 1078, 50 A.L.R.Fed. 372 INGRAM CONTRACTORS, INC., Plaintiff-Appellant,v.UNITED STATES of America, Michael Blumenthal, Secretary ofthe Treasury, the Department of the Treasury,Robert E. Chason, Commissioner ofCustoms and U. S. CustomsService, Defendants-Appellees. No. 78-2542 Summary Calendar*.United States Court of Appeals,Fifth Circuit. April 4, 1979. Monroe & Lemann, Robert J. Fritz, Benjamin R. Slater, Jr., Richmond Eustis, New Orleans, La., for plaintiff-appellant. John P. Volz, U.S. Atty., Michaelle F. Pitard, Asst. U.S. Atty., New Orleans, La., for defendants-appellees. Appeal from the United States District Court for the Eastern District of Louisiana. Before GOLDBERG, RONEY and TJOFLAT, Circuit Judges. PER CURIAM: 1 Ingram Contractors, Inc. (Ingram), brought suit in the district court to avoid payment of over $200,000 in customs duties. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331(a)1 and 1355 (1976).2 The defendants moved for dismissal for want of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), on the ground that Congress has given controversies such as this one exclusively to the United States Customs Court to resolve. The district court granted the motion and entered final judgment dismissing the action. We affirm. 2 On March 5, 1970, Derrick Barge No. 3, owned by Ingram and documented under the laws of the United States, arrived at Orange, Texas. The barge had been outside the United States and had undergone certain repairs in a foreign country. On March 6, 1970, Vessel Repair Entry No. 10006, covering these foreign repairs, was made with the Bureau of Customs (now the United States Customs Service, hereinafter referred to as Customs). Ingram subsequently urged Customs to exempt the barge from duty, claiming, alternatively, that the vessel was not subject to duty and that the repairs had been brought about by stress of weather. Customs granted Ingram several extensions of time, through September 30, 1972, to file an application for relief from the duties. On September 28, 1972, Ingram wrote Customs reiterating its position that the barge was not subject to duty. On February 2, 1977, Customs denied Ingram's application for relief and advised Ingram that the duties would be finally computed. On March 4, 1977, Ingram replied that the Government's claim for duties had become time-barred. 3 On April 4, 1978, Customs demanded payment of the duties; on May 3, it refused to grant Ingram any further extension and advised Ingram that the matter would be forwarded to the United States Attorney's Office for collection. Five days later Ingram instituted this suit to enjoin the Government's collection effort. Ingram also filed a petition with Customs requesting that the Secretary of the Treasury review the imposition of the duties. That petition is still pending. 4 Ingram contends that its claim "arises under" the laws of the United States; therefore, the district court's subject matter jurisdiction was properly invoked under 28 U.S.C. § 1331(a) (1976). Congress has provided, however, that the Customs Court shall have exclusive jurisdiction of all civil actions challenging an administrative decision of Customs. 28 U.S.C. § 1582(a) (1976).3 As this court has noted, the purpose of section 1582 is to provide " 'a complete system of corrective justice with respect to matters arising under the customs laws.' " Argosy Ltd. v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968). Thus, the exclusive jurisdictional grant of section 1582 overrides the general grant of jurisdiction conferred on district courts by sections 1331 and 1355 and any other statute. This court did note in Argosy that "in exceptional or extraordinary circumstances a district court may properly enjoin acts by (the Customs Service), when such acts threaten irreparable injury." We explained there, however, that "the term 'exceptional or extraordinary circumstances' implies the unavailability of an adequate remedy at law." Id. at 21. The remedy provided by Congress in the customs regulatory scheme is generally deemed adequate, even though it may impose some hardship on the claimant, See Horton v. Humphrey, 146 F.Supp. 819, 821 (D.D.C.), Aff'd, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). 5 Ingram contends that it has no adequate remedy at law because it has not met the procedural jurisdictional prerequisites of the Customs Court, See19 C.F.R. § 4.14 (1978). It is debatable whether Ingram has filed a proper protest with Customs and, if it has, whether the protest has been disposed of administratively in such a manner that Ingram is now entitled to institute proceedings in the Customs Court.4 Ingram suggests that any inability on its part to satisfy the prerequisites to Customs Court jurisdiction has been caused by Customs's failure to abide by its own regulations. This failure, Ingram says, may have prevented it from filing a valid protest and operated as a denial of due process. 6 These arguments, as well as the other objections Ingram has interposed to avoid payment of the duties in question, should be addressed to the Customs Court, not to the district court and this court of appeals. See J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63, 68 (2d Cir.), Cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). The Customs Court has full power to rule on the constitutional and procedural questions Ingram has raised. Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, 671-72, Cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956); See, e. g., Cottman Co. v. Dailey, 94 F.2d 85, 89 (4th Cir. 1938). 7 In sum, Ingram still has an adequate remedy in Customs Court; or it had an adequate remedy that it failed to pursue. Moreover, once Ingram's pending petition with Customs has received final disposition, that decision can be appealed to the Customs Court. See Suwannee Steamship Co. v. United States, 354 F.Supp. 1361, 1369 (Cust.Ct.1973). Ingram has failed to demonstrate that it has no adequate remedy at law or that Customs has deprived him of the remedies provided him by law. It has not presented the "exceptional circumstances" that must exist before a district court may exercise jurisdiction over a matter committed to the Customs Court for resolution. 8 Because we are convinced that the district court lacked subject matter jurisdiction, it is unnecessary for us to discuss the last argument pressed by Ingram in this appeal the propriety of the district court's stay of discovery pending its disposition of the jurisdictional issue. Therefore, the judgment of the district court is AFFIRMED. * Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I 1 28 U.S.C. § 1331(a) (1976) provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. 2 28 U.S.C. § 1355 (1976) provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress. 3 28 U.S.C. § 1582(a) (1976) provides: The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery under any provisions of the customs laws; (5) the liquidation or reliquidation of an entry, or a modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under section 520(c) of the Tariff Act of 1930, as amended. 4 28 U.S.C. § 1582(c) (1976) provides: The Customs Court shall not have jurisdiction of an action unless (1) either a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended, and denied in accordance with the provisions of section 515 of the Tariff Act of 1930, as amended, or if the action relates to a decision under section 516 of the Tariff Act of 1930, as amended, all remedies prescribed therein have been exhausted, and (2) except in the case of an action relating to a decision under section 516 of the Tariff Act of 1930, as amended, all liquidated duties, charges or exactions have been paid at the time the action is filed.

576 F.3d 810 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Gary McMULLIN, Defendant-Appellant. No. 08-3477. United States Court of Appeals, Eighth Circuit. Submitted: April 15, 2009. Filed: August 17, 2009. *811 John M. Albright, argued, Poplar Bluff, MO, for Appellant. Paul W. Hahn, AUSA, argued, Keith D. Sorrell, AUSA, on the brief, Cape Girardeau, MO, for Appellee. Before MURPHY, BRIGHT, and BYE, Circuit Judges. *812 BRIGHT, Circuit Judge. Defendant-appellant Gary McMullin appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), challenging the district court's denial of his motion to suppress firearms evidence discovered during a United States Marshal's second entry into McMullin's house. McMullin asserts that the marshal lacked legal authority to re-enter his house, while the government contends that McMullin never withdrew the consent he granted for the initial entry. Having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court and remand for further proceedings. I. Factual Background United States Marshals Sean Newlin and Dave Davis had received an assignment to locate Daryl Crowder, for whom the state of Illinois had issued several arrest warrants in 2006. During the assignment, Marshal Newlin learned that Crowder had placed telephone calls from a residence in Missouri. After checking the address, Marshal Newlin discovered that another sex offender and felon, McMullin, resided there. On October 10, 2007, Marshals Newlin and Davis drove to McMullin's residence in an attempt to locate Crowder. The marshals did not have a search warrant for the house. They arrived early in the morning in an unmarked vehicle but wore jackets marked "U.S. Marshal." As the marshals drove up the driveway to the residence, Marshal Newlin observed a person looking out of the front window of the house. After stopping the vehicle, Marshal Davis walked around to the back of McMullin's house, while Marshal Newlin headed toward the front of the house. Around this time, Marshal Newlin heard a person yell from within the house, "The U.S. Marshals are here." Marshal Newlin climbed the steps to the front door, which McMullin opened. Marshal Newlin recognized him from a photo on the sex offender registry website. Marshal Newlin and McMullin exchanged greetings. Marshal Newlin asked if anybody else was in the house. McMullin replied, "You know, I'm just having coffee with my uncle." Marshal Newlin asked, "May I come in and talk with you?" McMullin replied, "Yeah, sure, come on in. We're just having coffee." McMullin stepped back inside the house and started walking through the house. Marshal Newlin followed him down a hallway to a kitchen table. As they were walking down the hall, Marshal Newlin again asked if anyone else was in the house. McMullin replied, "No. I'm just having coffee with my uncle." Marshal Newlin asked for the uncle's name and McMullin responded, "Carroll." When they arrived at the kitchen, Marshal Newlin saw an older man sitting at the table. McMullin said, "This is my uncle. We're just sitting here having coffee." Marshal Newlin again asked if anyone else was present in the house. McMullin replied, "No. It's just my uncle and I." However, Marshal Newlin noticed three cups of coffee on the table and asked about the third cup. McMullin reiterated that only he and his uncle were in the house. This conversation lasted between two to three minutes. At this point, Marshal Newlin heard Marshal Davis yell from outside the house, "Get down. Get down on the ground." Marshal Newlin attempted to leave the house through a back door, but could not find his way through the house. McMullin showed Marshal Newlin the way to the back door. Marshal Newlin emerged from the house into the backyard and saw Marshal *813 Davis and Daryl Crowder in an area near the back door. Crowder was prone on the ground, with his hands on top of his head. Marshal Newlin asked Crowder for his identity; Crowder replied with his correct name. McMullin also emerged from the back door of the house. Marshal Newlin asked McMullin about Crowder's identity. McMullin first said he did not know, and then said his name was Thomas Junior. Marshal Newlin told McMullin to turn around because he was being detained. McMullin complied and Marshal Newlin handcuffed him. Marshal Newlin again asked about the man's identity. McMullin said that "he told me his name was Thomas Junior." Marshal Newlin then warned McMullin about obstruction of justice. Although it was an early morning in October, McMullin wore only gym shorts and sandals. Marshal Newlin then said, "Well, let's go back into the house and talk." Marshal Newlin had to physically bring the handcuffed McMullin into the house before following him into the breakfast area. By this time, Evelyn Moore, McMullin's aunt, also sat at the kitchen table.[1] Marshal Newlin asked McMullin if he felt comfortable talking in front of his aunt and uncle. McMullin replied, "Yeah, that's fine, I'll talk. You know I don't have a problem talking in front of them." Marshal Newlin told McMullin that he knew the identity of the man in the backyard. McMullin dropped his shoulders and said, "Yeah, that's Daryl Crowder." When he returned to the kitchen, Marshal Newlin noticed some ammunition in an ashtray sitting on a desk. He then told McMullin that he had seen the bullets and asked whether there were guns in the house. McMullin said, "Yes, there are," motioning his head toward a wall by the kitchen. Marshal Newlin looked in that direction and observed seven long guns lined up along the wall. Additionally, Moore told Marshal Newlin about the location of a handgun in a desk drawer. The marshals seized these firearms, which Marshal Newlin had not noticed during his first visit to the house. Marshal Newlin had not drawn his service weapon during these events, nor did he give Miranda warnings to McMullin. II. Procedural History Following an investigation, a grand jury indicted McMullin for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After his initial appearance, McMullin moved to suppress the firearms evidence seized from his house, asserting that the search violated his reasonable expectation of privacy in his house as guaranteed by the Fourth Amendment to the United States Constitution. In the motion to suppress, McMullin argued that Marshal Newlin had no legal authority to be in his house. In his reply to the government, McMullin further stated that Marshal Newlin's re-entry fell outside the scope of consent. Meanwhile, the government argued that McMullin gave Marshal Newlin consent to enter the house and never revoked it. At the suppression hearing, the government presented its evidence, and McMullin testified on his own behalf. He testified, contrary to his grand jury testimony, that he never gave consent for the marshal to enter his house. Instead, McMullin stated that just after Marshal Newlin arrived at his front door, McMullin heard shouts coming from the *814 rear of the house. After hearing this shouting, Marshal Newlin allegedly drew his service pistol and ran into the house, looking for the back door. In his Report and Recommendation, the magistrate judge recommended denying McMullin's motion to suppress and found McMullin's version of the facts to lack credibility. McMullin filed an objection to the report. In June 2008, the district court issued its order, adopting the magistrate's recommendation and denying McMullin's motion to suppress. McMullin filed a motion to reconsider, asking the district court to accept Marshal Newlin's report on the firearms seizure as additional evidence, and then raised a new ground for suppression: that the consent did not continue for Marshal Newlin to re-enter the house. In July 2008, the district court denied McMullin's motion to reconsider. On July 24, 2008, McMullin pleaded guilty to being a felon in possession of a firearm as charged in the indictment. However, McMullin reserved his right to appeal the district court's ruling on his motion to suppress. The district court sentenced McMullin to fifty-six months' imprisonment, three years' supervised release, and a $100 special assessment. McMullin timely appealed, arguing, among other things, that Marshal Newlin had no legal authority to re-enter McMullin's house. III. Discussion The dispositive issue presented on appeal is whether the second warrantless entry into McMullin's house by Marshal Newlin violated the Fourth Amendment. We turn to that issue. This Court reviews factual findings underlying the district court's denial of a motion to suppress for clear error and the question of whether the Fourth Amendment has been violated de novo. See United States v. Hughes, 517 F.3d 1013, 1016 (8th Cir.2008). In this case, it is important to recall the Fourth Amendment to the United States Constitution: 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. This amendment fundamentally protects a person from unreasonable searches. Id. In particular, Fourth Amendment law recognizes the inherent sanctity of a person's house. "The caselaw has consistently recognized that considerably more protection is to be afforded a home than other premises. The leading decisions ... are each heavily predicated upon the ancient precept that `a man's home is his castle.'" United States v. Agrusa, 541 F.2d 690, 700 (8th Cir.1976); see also Payton v. New York, 445 U.S. 573, 588-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Therefore, "to search a private place, person, or effect, law enforcement must obtain from a judicial officer a search warrant supported by probable cause." United States v. Williams, 346 F.3d 796, 798 (8th Cir.2003). It is therefore well-established that the police may not invade a person's house without a warrant except under very limited circumstances, such as the presence of exigent circumstances or an occupant's consent. Exigent circumstances permit warrantless entries when "lives are threatened, a suspect's escape is imminent, or evidence is about to be destroyed." United States v. Ball, 90 F.3d 260, 263 (8th Cir.1996). Additionally, the consent of a *815 house's occupant makes a warrantless entry into a house reasonable for the purposes of the Fourth Amendment. See United States v. Spotted Elk, 548 F.3d 641, 652 (8th Cir.2008). In this circuit, we recognize that when an occupant of the house gives consent for entry, he must make an unequivocal act or statement to indicate the withdrawal of the consent. See United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005). "Withdrawal of consent need not be effectuated through particular `magic words,' but an intent to withdraw consent must be made by unequivocal act or statement." United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.2004). If equivocal, police officers may reasonably continue their search in the premises entered pursuant to the initial grant of authority. See Sanders, 424 F.3d at 774. Additionally, "[t]he standard for measuring the scope of a [person's] consent under the Fourth Amendment is that of `objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In assessing the scope of a person's consent, we must examine the totality of the circumstances, which includes the language of a person's consent and his actions during the officers' search. See United States v. Starr, 533 F.3d 985, 996 (8th Cir.2008). After reviewing de novo the constitutionality of the search of McMullin's house, we conclude that the search violated McMullin's Fourth Amendment rights. Neither party contests on appeal that Marshal Newlin received McMullin's consent to enter the house the first time, making the initial warrantless entry valid. In dispute, however, is Marshal Newlin's second entry into McMullin's house, following the handcuffing of McMullin in the backyard.[2] The government contends that McMullin's initial consent continued to the second entry because McMullin never effectively withdrew the consent. The cases relied upon by the government for this proposition, however, are distinguishable in that Marshal Newlin actually left and then re-entered the house after detaining McMullin in the backyard, having to physically bring him into the house. For example, in United States v. Parker, 412 F.3d 1000, 1001 (8th Cir.2005), the officers remained in the house during the entire search. In Sanders, 424 F.3d at 771-72, the agent also never left the hotel room being searched. The government further relies on United States v. Diaz, 814 F.2d 454, 459 (7th Cir.1987), in which the Seventh Circuit permitted a second entry when the officer originally entered with consent, established the existence of probable cause to effectuate an arrest or search, and momentarily stepped out to seek help from other officers. Here, however, Marshal Newlin did not leave McMullin's house to seek help, did not establish probable cause to search the house, and in fact fulfilled his visit's purpose by arresting Crowder and detaining McMullin outside of the house in the backyard. None of these cases support the government's proposition that Marshal Newlin had legal authority to re-enter McMullin's house under the circumstances. In fact, *816 the language of one of the cases cited by the government does not necessarily support the second entry in this case. See id. ("We do not intend to suggest by our analysis that one consensual entry means that law enforcement agents may thereafter enter and exit a home at will."). The precise issue here is not withdrawal of consent, but whether, as McMullin argues, a new consent was required for the second entry. By the time Marshal Newlin sought re-entry into McMullin's house, it is undisputed that the marshals had already completed their task of arresting Crowder in the backyard. There was no necessity or legal basis for the officer to re-enter the house. Under the circumstances of this case, we determine that Marshal Newlin's re-entry exceeded the scope of McMullin's consent and therefore violated the Fourth Amendment prohibition against unreasonable entries into a person's house. Cf. United States v. Jones, 269 F.3d 919, 929 (8th Cir.2001) (determining that a trooper's detention of defendant "past the point necessary to complete his traffic stop investigation exceeded the scope of a lawfully initiated traffic stop."). We have examined the second entry cases in this circuit, none of which support a second, warrantless entry under the facts presented by the record. For example, in United States v. Carter, 854 F.2d 1102, 1104-06 (8th Cir.1988), the officers first entered the motel room without a search warrant but with consent, and a second time, pursuant to a warrant issued based on plain view observation of cocaine on a table. Carter suggests that the proper procedure here should have been to secure a search warrant prior to the second entry. Carter also discusses exigent circumstances relating to an officer's entry to a motel room to obtain clothes, mentioning similar circumstances in United States v. Gilbert, 774 F.2d 962, 963-64 (9th Cir. 1985), but these entries were made pursuant to consent as well. See 854 F.2d at 1106. Importantly, however, Carter notes the expectation of privacy associated with a person's house. Id. at 1105. Furthermore, in United States v. Weston, 443 F.3d 661, 665 (8th Cir.2006), a first search occurred pursuant to consent, while a subsequent search followed the issuance of a search warrant. Finally, in United States v. Lakoskey, 462 F.3d 965, 974 (8th Cir. 2006), this Court concluded that an officer's second warrantless entry without consent or exigent circumstances violated the Fourth Amendment. The government further argues that exigent circumstances, in the form of Marshal Newlin's safety, made the re-entry reasonable under Fourth Amendment law. Although officer safety indeed constitutes exigent circumstances permitting a warrantless search, see United States v. Hill, 430 F.3d 939, 941 (8th Cir.2005), this exception is inapplicable in light of the facts presented by the record. There was no testimony that the marshals feared Crowder and McMullin, and in any event, both had been detained and handcuffed in the backyard.[3] As for the other occupants of the house, Marshal Newlin's testimony is insufficient to justify his re-entry into the house on grounds of officer safety. For example, Marshal Newlin did not testify that the occupants of the house acted belligerently or in a hostile manner. He did not testify that Crowder or McMullin signaled to the occupants in the house for *817 help. Marshal Newlin did testify, however, that he observed no firearms or ammunition during his first visit in the house. On this record, it is not apparent that officer safety required re-entering the house, as opposed to keeping Crowder and McMullin in the backyard or taking them to the marshals' vehicle. The government also urges this Court to join several other circuits in recognizing a defendant's scant clothing to constitute exigent circumstances permitting a warrantless entry in search of proper clothing for the defendant.[4]See, e.g., United States v. Gwinn, 219 F.3d 326, 335 (4th Cir.2000) (determining that a defendant's lack of shirt and shoes while outdoors justified an officer's warrantless re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir.1992) (permitting police to retrieve a defendant's shoes from his house, but noting that entry into the house does not immediately follow from "the desire of law enforcement officers to complete the arrestee's wardrobe"); United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir.1977) (allowing an officer's entry into a bedroom solely for the purpose of maintaining control over defendant while she dressed herself). However, McMullin wore shorts and sandals, missing only a shirt. Marshal Newlin did not reenter the house to retrieve a shirt for McMullin in a "carefully circumscribed [area] to minimize the intrusion," as in Gwinn, 219 F.3d at 330, or to maintain control over McMullin while he dressed himself, as in Di Stefano, 555 F.2d at 1101. Instead, he brought McMullin into the house as part of a further investigation. This record does not establish circumstances considered exigent which would validate a re-entry into McMullin's house. IV. Conclusion For the foregoing reasons, we reverse the district court, vacate its judgment, and remand for further proceedings in accordance with this opinion. MURPHY, Circuit Judge, dissenting. I respectfully dissent from the majority's conclusion that appellant McMullin's consent to Deputy U.S. Marshal Newlin's presence in his kitchen ended before appellant pointed out the firearms that were present in his home. The Fourth Amendment suppression issue here cannot be resolved without careful consideration of how the fast moving events unfolded within minutes after Newlin's consented entry into McMullin's home. Sounds from Crowder's apprehension in the backyard caused Newlin and McMullin to step outside. Then, after McMullin had clearly lied about Crowder's identity, Newlin warned him about obstruction of justice, handcuffed him, and said "Well, let's go back into the house and talk." McMullin said nothing in response. He made no objection of any kind to Newlin's reentry, only indicating that because of the handcuffs he needed assistance to manage the high step. Back inside the house, McMullin did not protest or ask Newlin to leave. Instead, McMullin sat down at the kitchen table with the deputy and his aunt and uncle. Deputy Newlin asked McMullin whether he minded answering questions in front of his aunt and uncle. McMullin said "Yeah, that's fine, I'll talk," and then admitted that he had known the man staying in his home was Crowder. After Newlin noticed ammunition in an ashtray, he asked McMullin whether there were firearms in the house. McMullin pointed to seven *818 firearms lined up against the wall, and his aunt volunteered that a handgun was stashed in a desk drawer. Knowing that McMullin had a felony record, the deputy arrested him and seized the firearms. It is undisputed that there was valid consent by McMullin for Deputy Newlin to enter his home at the outset. Once consent is given, it may be withdrawn, but only by an "unequivocal act or statement." United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.2004) (expressions of impatience do not amount to an unequivocal statement of withdrawal); United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir.1993) (passively watching in silence as search was expanded not sufficient to withdraw consent); see also United States v. Sanders, 424 F.3d 768, 775 (8th Cir.2005) (repeated use of hands to block officer's search of pockets demonstrated unequivocal withdrawal of consent). Newlin left the house only to go into the backyard to assist his partner who was attempting to arrest Crowder. In the yard McMullin incriminated himself which gave Newlin reason to talk to him further. McMullin made no objection to his returning inside, and Newlin's reason for reentering was within the scope of the consent granted by McMullin which was to talk and ask questions. See United States v. Castellanos, 518 F.3d 965, 970 (8th Cir. 2008) (distinguishing consent for officer merely to enter from consent to a search). Newlin's reentry was thus a continuation of his consented presence in the house.[5] The burden remained on McMullin to withdraw affirmatively and unequivocally his consent for Newlin to be inside his home. The district court found that McMullin never withdrew his consent—a factual finding that we review for clear error, see Gray, 369 F.3d at 1026-27, and I see none. To ascertain whether McMullin withdrew his consent, we ask what "the typical reasonable person [would] have understood by the exchange between the officer and the suspect." Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). There is no evidence in the record to indicate that McMullin ever withdrew his consent, much less that he did so by an "unequivocal act or statement." Gray, 369 F.3d at 1026. McMullin had the opportunity to communicate that he did not consent to Newlin's reentry, but he did nothing of the sort. He nevertheless now argues that Newlin should have understood that his consent had been withdrawn because he had to help McMullin back into the house and because McMullin would have been afraid to refuse him entry after watching the deputies arrest Crowder. This explanation is not only late, but it is unpersuasive because McMullin did not take any action to communicate that his consent was withdrawn. After Newlin suggested that the two men go back into the house, McMullin indicated that he physically could not make the step. This could reasonably have been interpreted as a request for Newlin's assistance and continuing consent to Newlin's presence. Moreover, McMullin never told Newlin that he was afraid not to let him in. Withdrawal of consent requires an "unequivocal act or statement" which makes an officer aware that it has been withdrawn. Gray, 369 F.3d at 1026. McMullin also acquiesced in Newlin's questioning after they were back inside. See United States v. Parker, 412 F.3d 1000, 1002 (8th Cir.2005) (holding that a *819 suspect's assistance to officers conducting a search was inconsistent with having withdrawn consent for that search). Under these circumstances a reasonable person could conclude that McMullin had not withdrawn his consent, and in fact, McMullin himself testified before the grand jury that he had "allowed [the deputies] to search [his] bedroom and every other area of the house they wanted to." (emphasis added). None of the cases cited by the majority, including United States v. Weston, 443 F.3d 661 (8th Cir.2006), United States v. Lakoskey, 462 F.3d 965 (8th Cir.2006), and United States v. Carter, 854 F.2d 1102 (8th Cir.1988), involve facts remotely analogous to those in this case. In Weston and Carter, the police saw contraband during a consented entry but seized it only after obtaining a search warrant. 443 F.3d at 665, 854 F.2d at 1105. The suggestion that Newlin should have obtained a search warrant ignores the critical fact that he had not entered the home in order to search, but rather only to question McMullin. Lakoskey, 462 F.3d at 974, is inapposite because there the defendant specifically refused to allow officers to enter his home. Given the lack of evidence that McMullin ever made an unequivocal act or statement to withdraw his consent for Deputy Newlin to be in his house, the majority seeks to reframe the question to be whether McMullin ever granted a second consent to enter. As support for that theory, it urges that the purpose for the deputies' visit had been accomplished once Crowder was arrested. That approach overlooks the fact that the intervening events had raised reasonable suspicion about whether McMullin had violated the law by knowingly harboring Crowder or by obstructing justice in lying about his identity. The deputies were not required to ignore evidence that another crime may have been committed. McMullin told Newlin several lies about Crowder's presence and identity, raising a reasonable suspicion that McMullin had made a false statement to a federal agent. See 18 U.S.C. § 1001 (2009); United States v. Lanier, 578 F.2d 1246, 1249 (8th Cir.1978) (knowingly and willfully making a false statement related to a material matter within federal jurisdiction). Newlin was therefore justified in detaining McMullin for further questioning. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). McMullin's house was a practical and appropriate location for further questioning, and Newlin had a legal basis for reentering the house. McMullin and Newlin had been standing within the curtilage, McMullin had left the back door open, and was only wearing gym shorts on a chilly morning. See United States v. Montano— Gudino, 309 F.3d 501, 503-04 (8th Cir. 2002) (reasonable to move a suspect inside for questioning when it was snowing heavily). Newlin would have been justified in arresting McMullin for making false statements, and his decision to question McMullin inside his house was not unreasonable. Once inside, Newlin did not conduct a protective sweep or search of the residence, and there is no evidence that his reentry was a pretext to search. It was only when he saw the ammunition in plain view that he asked if there were any firearms. Since Newlin had legal authority to be in McMullin's house when he saw the ammunition in plain view and McMullin pointed out the firearms, I would affirm the district court and respectfully dissent from the suppression of this legally obtained evidence. NOTES [1] The record does not clearly reveal when the aunt entered McMullin's kitchen. The third coffee cup may have been hers, or possibly Crowder's. The record does not disclose this information. [2] Although McMullin does not claim Marshal Newlin arrested him in the backyard, the detention of McMullin may well have required Miranda warnings, which were not given, because Marshal Newlin talked to McMullin about obstruction of justice and handcuffed him. However, we do not rest our decision on whether the handcuffing constituted an arrest. [3] In the context of vehicle searches, the Supreme Court recently held that "Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009) (emphasis added). [4] In the district court, however, the government did not contend that McMullin's partially clothed status created an exigent circumstance. [5] The majority expresses concern about any rule that would permit law enforcement officers to "enter and exit a home at will" after once obtaining consent to enter. The facts of this case, however, have nothing to do with "at will" entries.

58 B.R. 38 (1986) In the Matter of GLAUBINGER MACHINERY CO., INC., Debtor. Bankruptcy No. 84-02971. United States Bankruptcy Court, D. New Jersey. January 23, 1986. Ravin, Greenberg & Zackin, P.A. by Gary N. Marks, Roseland, N.J., for debtor. Tai Cho, New York City, for Daewoo Intern. OPINION DeVITO, Bankruptcy Judge. The above captioned debtor moves to reclassify a secured claim filed by Daewoo International (America) Corporation ("Daewoo") to the status of a general unsecured claim. For the reasons set forth below, this Court grants the within motion. The facts of the case are relatively straightforward. Daewoo possessed a perfected security interest in certain milling machines held by the debtor on consignment. One machine, identified as Number *39 180014, was sold to the Southern California Edison Company in or about January of 1983. The debtor was obligated to remit net proceeds of $29,000 to Daewoo. Upon receipt by the debtor of the total payment ($29,000) from Southern California Edison, the debtor actually transmitted $7,500 of the proceeds to Daewoo. The remaining $21,500 due to Daewoo was deposited in the debtor's general operating account. The debtor filed its petition for reorganization under the Bankruptcy Code on June 1, 1984. Daewoo filed a proof of claim in the sum of $21,500, said sum being the balance of the final payment due on the purchase of the machine noted above, and presently held by the debtor. It is important to note here that the above recitation of facts is based upon the statements contained in the brief filed by debtor's counsel in support of debtor's motion, at 1-2. In re Glaubinger Machinery Co., Inc., (Bankr.D.N.J. Oct. 2, 1985). Daewoo admits that the debtor's version of the facts is correct, subject only to two exceptions. Daewoo takes exception to the statements that the debtor deposited the funds in question in its general operating account and debtor's stated allegation that Daewoo does not have a secured interest in the proceeds. Affidavit in Opposition by K.J. Chea at 1-2, In re Glaubinger Machinery Co., Inc., (Bankr.D.N.J. Nov. 27, 1985). However, the affidavit fails to explain why Daewoo takes the exceptions as noted above, nor does it offer its own version of the disputed statements. The debtor relies upon the Uniform Commercial Code, as adopted in this jurisdiction; specifically, that Daewoo lost its secured claim when the monies resulting from the sale of the milling machine were commingled with other funds of the debtor, the effect of which reduced Daewoo's claim to that of a general unsecured claim; thus the instant motion to reclassify the claim filed. Daewoo essentially argues that the debtor's motion is misdirected and that the Uniform Commercial Code is still supportive of Daewoo's secured position. The instant matter concerns the administration of the debtor's estate and is unquestionably a core proceeding. 28 U.S.C. § 157[b][2][A]. This Court is thus empowered to hear and determine the issues at hand. 28 U.S.C. § 157[b][1]. The issue here is one requiring an interpretation of state law. Following the longstanding doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this Court shall apply the law controlling in the forum state of New Jersey. The specific state statutory provision in question is § 9-306[4] of the Uniform Commercial Code, codified in chapter 12A of the New Jersey Statutes Annotated, which provides: In the event of insolvency proceedings instituted by or against a Debtor, a secured party with a perfected security interest in proceeds has a perfected security interest only in the following proceeds: . . . . . [b] In identifiable cash proceeds in the form of money which is neither commingled with other money nor deposited in a deposit account prior to the insolvency proceedings; [c] In identifiable cash proceeds in the form of checks and the like which are not deposited in a deposit account prior to the insolvency proceedings; and [d] In all cash and deposit accounts of the Debtor in which proceeds have been commingled with other funds, but the perfected security interest under this paragraph [d] is: [i] Subject to any right of set-off; and [ii] Limited to an amount not greater than the amount of any cash proceeds received by the Debtor within ten days before the institution of the insolvency . . . N.J.Stat.Ann. 12A:9-306[4] (West Pocket Part 1985) (subsection [a] omitted as it addresses only non -cash proceeds and is, therefore, irrelevant herein). The impact of this statute is clear. Even for a holder of a perfected security interest in proceeds, the intervention of a bankruptcy filing acts *40 to limit the secured interest only to proceeds which meet the conditions as enumerated above. Id. If it can be demonstrated that the proceeds in question do not meet the conditions set forth above, the secured status of the creditor is lost and, ergo, the claim is a general unsecured one. Assuming arguendo that Daewoo held a perfected security interest in the proceeds, the instant matter meets the requirements of subparagraph [4] and is within the ambit of § 9-306[4]. Proceeding with a step-by-step analysis, both subsections [b] and [c] are of no help to Daewoo, since the proceeds received by the debtor were deposited in a deposit account prior to the bankruptcy. The Court takes note of the general rule that "proceeds will have been rendered unidentifiable by having been commingled with other funds in a single bank account." Morrison Steel Co. v. Gurtman, 113 N.J.Super. 474, 481, 274 A.2d 306 (App.Div.1974). Returning to the facts presented here, the Court is reminded of the debtor's assertion that it did indeed commingle these proceeds with other funds in its general operating account. While it is true Daewoo took exception to that statement, the Court does not find the opposition to be credible. Daewoo's exception is bereft of any explanation of why Daewoo objects to the allegation. Moreover, Daewoo failed to offer any evidence sufficient to demonstrate what the debtor did with the proceeds, if it indeed did not deposit them in its general fund as claimed. The Court shall accept the debtor's factual allegations on that point as true, and thus, by necessity, determines that Daewoo has no secured interest in proceeds that have been deposited and commingled with other monies, pursuant to the rule of § 9-306[4][b] and [c]. Turning to the final subsection, subsection [d], the Court finds that this portion of the statute does not terminate the secured interest where proceeds have been commingled. However, it is strictly limited to instances where the cash proceeds were received by the debtor within the ten days preceding the bankruptcy. § 9-306[4][d][ii]. It is undisputed that the proceeds were received by the debtor on July 12, 1983, almost a year before the petition in bankruptcy was filed. This being the case, Daewoo loses its secured claim to the proceeds under this subsection as well. In conclusion, based upon the credible evidence proffered and the law of the Uniform Commercial Code as adopted in New Jersey, Daewoo does not hold a secured claim in the cash proceeds ($21,500) held by the debtor. The claim is properly classified as a general unsecured claim. The Court grants the debtor's motion to reclassify it as such. Submit an order in accordance with the above.

788 F.Supp. 539 (1992) Homer BRANCH, et al., Plaintiffs, v. MOBIL OIL CORPORATION, Citation Oil and Gas Corporation, Texaco, Inc., and Atlantic Richfield Company, Defendants. No. CIV-90-723-R. United States District Court, W.D. Oklahoma. March 13, 1992. Gina L. Hendryx, John W. Norman, Norman & Edem, Robert N. Barnes, Patranell Britten, Roy Short, Jacqueline M. Short, Stack & Barnes, Oklahoma City, Okl., Phillip R. Scott, Waurika, Okl., for plaintiffs. Gary W. Davis, Paul D. Trimble, L. Mark Walker, Crowe & Dunlevy, George E. Sneed, Verland E. Behrens, R. Steven Haught, Daugherty, Bradford, Fowler & Moss, Oklahoma City, Okl., J. Randall Miller, Moyers, Martin, Santee, Imel & Tetrick, Tulsa, Okl., Randle Jones, Denver, Colo., for defendants. ORDER DAVID L. RUSSELL, District Judge. Before the Court is yet another motion by Defendant Atlantic Richfield Company ("ARCO"), this time a motion to dismiss *540 Plaintiffs' Third Amended Complaint for failure to join what Defendant contends are non-diverse indispensable parties to Plaintiffs' claim for unjust enrichment. Defendant ARCO's argument proceeds as follows. A claim for unjust enrichment is a quasi-contract claim which is based in contract. Defendant ARCO and other owners in the Healdton One Unit are either partners or joint venturers, according to Plaintiffs. Plaintiffs' claim against ARCO for unjust enrichment is based upon an implied contract with the partnership or joint venture. Rule 19, F.R.Civ.P., requires that all partners or joint venturers must be joined where the relief sought is based on contract, citing Federal Resources Corp. v. Shoni Uranium Corp., 408 F.2d 875, 878-79 (10th Cir.1969) and Purcel v. Wells, 236 F.2d 469, 472 (10th Cir.1956). The Court agrees with Plaintiffs that the alleged conduct of Defendants which Plaintiffs claim unjustly enriched Defendants is delictual rather than contractual in nature. The conduct is expressly alleged to be negligence and negligence per se. See Third Amended Complaint at ¶¶ 25-28. As a remedy for such alleged conduct, Plaintiffs seek disgorgement of gains flowing from Defendants' alleged wrongdoing, in the form of the money saved by Defendants by not complying with state law and Oklahoma Corporation Commission rules and regulations. Disgorgement is a restitutionary remedy or remedy for restitution. See Warren v. Century Bankcorporation, Inc., 741 P.2d 846, 852 (Okla.1987). See also Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365, 377 (1987). The underlying basis for disgorgement and other restitutionary remedies or tools like quasi-contracts is the prevention of unjust enrichment.[1]See Warren v. Century Bankcorporation, Inc., 741 P.2d at 852 & nn. 19 & 21. "[R]estitution may be sought in contract actions, tort actions, statutory actions and others...." D. Dobbs, Law of Remedies § 4.1 at 223 (1973). See also 1 Palmer, The Law of Restitution § 1.1, p. 2 (1978). Plaintiffs' claim for unjust enrichment against ARCO for conduct occurring after formation of the Healdton One Unit is either limited to that amount by which Defendant ARCO as a unit owner has been unjustly enriched, i.e., to that amount of expenses attributable to ARCO's unit interest which were saved, in which event ARCO's and other unit interest owners' potential liability must be considered several, not joint, or is for the amount by which the unit has been unjustly enriched, in which case because the conduct which is the basis of the claim is tortious in nature, the unit owners' potential liability as principals of the operator is joint and several. Cf. Phoenix Airline Services, Inc. v. Metro Airlines, Inc., 194 Ga.App. 120, 390 S.E.2d 219, 225-26 (1989) (dicta) (the theoretical basis for imposition of joint and several liability on joint tortfeasors "would appear to be of doubtful applicability where the sole purpose of the award is to prevent unjust enrichment rather than to compensate the claimant for actual loss"), rev'd on other grounds, 260 Ga. 584, 397 S.E.2d 699 (1990). See generally 3 Am.Jur.2d Agency § 280; 59A Am.Jur.2d Partnership § 712. In neither situation are all of the unit owners necessary or indispensable parties under Rule 19, F.R.Civ.P. See generally 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1623 (1966) at pp. 342-345. Defendant Atlantic Richfield Company's motion to dismiss Plaintiffs' Complaint for failure to join indispensable parties under Rule 19 is DENIED. IT IS SO ORDERED. NOTES [1] Plaintiffs' Third Amended Complaint does not use the term quasi-contract.

43 F.3d 675 Brown (Theodis, Sr.)v.Pagedale MO Police NO. 94-1959 United States Court of Appeals,Eighth Circuit. June 28, 1994 Appeal From: E.D.Mo., No. 4:92MC289 JCH 1 AFFIRMED.

537 U.S. 1090 FISHERv.BUTLER ET AL. No. 02-6840. Supreme Court of United States. December 16, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 153.

265 B.R. 681 (2001) In re Marjorie Margolies MEZVINSKY, Debtor. David G. Sonders, Plaintiff, v. Marjorie Margolies Mezvinsky, Defendant. First Union National Bank, Plaintiff, v. Marjorie Margolies Mezvinsky, Defendant. Bankruptcy No. 00-11767DWS. Adversary Nos. 00-0462, 00-0463. United States Bankruptcy Court, E.D. Pennsylvania. August 1, 2001. *682 *683 *684 *685 Zachary L. Grayson, Esquire, Jennifer L. Myers, Esquire, Philadelphia, PA, for Defendant/Debtor. Steven J. Adams, Esquire, Reading, PA, for Plaintiff First Union National Bank. Leonard P. Goldberger, Esquire, White & Williams, LLP, Philadelphia, PA, for Plaintiff David G. Sonders. Marvin Krasny, Esquire, Philadelphia, PA, Chapter 7 Trustee. Dave P. Adams, Esquire, Philadelphia, PA, United States Trustee. OPINION DIANE WEISS SIGMUND, Bankruptcy Judge. Before the Court are the Motions of (1) David G. Sonders ("Sonders") for Partial Summary Judgment ("Sonders Motion") and (2) First Union National Bank ("First Union") for Summary Judgment (the "First Union Motion") on their respective Complaints objecting to discharge of the Debtor pursuant to 11 U.S.C. § 727(a)(5).[1] In support of his Motion, Sonders presents his affidavit to support documents obtained from the official records filed with the United States Bankruptcy Court and the Office of Public Records of the United States Senate.[2] In response to the Sonders Motion, Debtor presented her affidavit[3] and certain *686 documents.[4] First Union's record consisted of its Complaint and the Debtor's Answer, the transcripts of Debtor's testimony at (i) her first meeting of creditors conducted on April 24, 2000 ("341 Transcript"); (ii) her Rule 2004 examination conducted on March 22, 2000 and June 6, 2000 ("Rule 2004 Testimony") and (iii) her deposition testimony given on February 6, 2001 and April 10, 2001 and exhibits MMM-1 through MMM-28 attached thereto ("Debtor's Dep."). First Union also incorporated by reference portions of the Sonders Motion. Memorandum in Support of First Union Motion ("First Union Mem.") at 15. Debtor provided no additional evidence in opposition to the First Union Motion but rather also incorporates portions of her response to the Sonders Motion, including her Affidavit therein.[5] For the reasons that follow below, the Court finds that Sonders and First Union (collectively the "Movants") have met their burden for entry of judgment. I will therefore sustain their objection to, and deny entry of, the Debtor's Chapter 7 discharge pursuant to § 727(a)(5). BACKGROUND The Debtor is a former member of the United States House of Representatives (One Hundred Third Congress January 3, 1993-January 3, 1995). A graduate of the University of Pennsylvania and former CBS New Foundation fellow (Columbia University), she worked as a television journalist for twenty-five years, has written three books, and has offered testimony before United States House of Representative and Senate Subcommittees on family issues. After her Congressional term concluded, she was named the head of the American delegation to the United Nation Fourth World Congress on Women in Beijing and later became the President of the Women's Campaign Fund. Debtor's Dep. at 73-75 and Exhibit MMM-5. She filed this voluntary petition for bankruptcy (the "Petition") on February 10, 2000 (the "Petition Date").[6] Sonders and First Union are creditors of the Debtor and filed their adversary proceedings on April 4 and June 23, 2001, respectively, alleging that the Debtor has failed to explain satisfactorily the disposition of significant assets in violation of § 727(a)(5) of the Bankruptcy Code. The following facts are undisputed: I. In May 1996,[7] the Debtor and her husband purchased a homeowners's insurance *687 policy from Nationwide Insurance Company ("Nationwide") obtaining coverage for personal property in which they claimed an interest valued at $810,535. First Union Complaint and Answer ("FU Compl. and Ans.") ¶ 14; Rule 2004 Exam at 287. In January 1995, Debtor's husband represented to the Pennsylvania Housing Finance Agency that he and the Debtor owned furniture and other personal property having a value of $725,000. FU Compl. and Ans. ¶ 11. At the first meeting of creditors held on April 24, 2000, Debtor did not recall any significant dispositions of personal property by herself or her husband since 1989. Id. ¶ 15. Yet in her Amended Schedule B, the Debtor claims her one-half interest in the personal property in which she and her husband claim an interest as of the Petition Date plus her interest in wearing apparel and clothing to be valued at approximately $19,217.[8] Ex. MMM-3 to Debtor's Dep.; FU Compl. and Ans. ¶ 9. II. The Debtor sold 15,595 shares of Charming Shoppes stock in February 1999 and another 1847 shares in January 2000, for which she received a total of $63,771 (the "Charming Shoppes Proceeds"). Amended Statement of Financial Affairs ¶ 10. III. On January 7, 2000, the Debtor sold ten shares of General Electric stock and seventy-one shares of PNC Bank Stock for $1,382.61 and $2,772.98, respectively (collectively the "Misc. Stock Proceeds"). Ex. MMM-24 to First Union Mot. The Misc. Stock Proceeds are not listed in the Debtor's Amended Bankruptcy Schedules nor is the sale of or disposition of the Misc. Stock Proceeds disclosed in her Amended Statement of Financial Affairs. IV. Between 1997 and 1999, the Debtor and her husband borrowed money from various friends and acquaintances in various amounts, totaling $1,477,500 (the "Personal Loan Assets").[9] The Debtor concedes that these loans were made to her and her husband jointly.[10] The Personal Loan Assets are not listed in the Debtor's Amended Bankruptcy Schedules nor are any transfers of the Personal Loan Assets *688 disclosed in her Amended Statement of Financial Affairs. V. On August 15, 1999 and February 25, 2000, the Debtor signed and filed personal financial statements, prepared by her husband, with the United States Senate in connection with her candidacy for the Senate (the "Senate Financial Disclosure"). The Senate Financial Disclosure indicates an ownership interest in various securities and note receivables valued at a minimum of $1.3 million. Rule 2004 Exam at 175; Ex. E to Sonders Motion.[11] VI. On or about September 24, and October 24, 1999, the Debtor wrote two checks in the amounts of $7,500 and $5,000, respectively, from a Prime Bank account in the name of the Debtor and her husband, to her housekeeper Roberta McClean ("the McClean Payments"). Ex. "J" to Sonders Mot. The McClean Payments are not disclosed in the Debtor's Amended Statement of Financial Affairs. VII. In January 2000, the Debtor sold several personal items to Nancy Chasen (the "Chasen Transaction") for $5,000 (the "Chasen Proceeds"). Amended Statement of Financial Affairs. ¶ 10. The Chasen Proceeds are not listed in the Debtor's Amended Schedules, but her discovery responses indicate that Ms. Chasen paid the proceeds directly to Northfield Mount Herman School, the school attended by the Debtor's son, Andrew. Debtor's Obj. and Resp. to Sonders' First Set of Interrogs. ¶ 27, Ex. "G" to Sonders Mot. DISCUSSION Summary judgment is warranted only where "the pleadings, depositions, answers to interrogatories and admissions on file, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).[12] Thus, when deciding a summary judgment motion, the court's task is not to resolve questions of fact, but to determine whether there is in fact any genuine issue of fact to be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In doing so, the court should view all facts in the light most favorable to the opposing party, Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982), including any factual inferences, and refrain from resolving a genuine issue of credibility, Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 268 (3d Cir.2001) (citation omitted); Boyle v. Allegheny County, Pa., 139 F.3d 386, 393 (3d Cir.1998). It is the moving party's burden to demonstrate the absence of genuine issues of material fact. Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir.1978). Once the moving party has shouldered this burden, however, "the adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). A party opposing summary judgment cannot hold back his evidence until trial, McIntyre v. Delaware Division of Youth Rehabilitation Services, 795 F.Supp. 668, 673, (D.Del.1992) (citations *689 omitted), nor may he demand trial on the speculative possibility that a material issue of fact may emerge at that time, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 391 (D.Puerto Rico 1981) (rejecting assertion that discoverable evidence might arise from cross-examination at trial of the moving party's affiant). Statements in legal memoranda and oral argument are not evidence and cannot create an issue of fact. Id. Section 727(a)(5) of the Bankruptcy Code states that a court will grant the debtor a discharge unless "the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities." 11 U.S.C. § 727(a)(5). Movants, as plaintiffs, bear the burden of proof. Fed. R. Bankr.P. 4005 ("At a trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the objection"). Further, under § 727(a)(5), the plaintiff also bears the initial burden of production: i.e., to establish, by a preponderance of the evidence, that the debtor had a cognizable interest in a specific identifiable property at a time not too far removed from the bankruptcy which she now no longer possesses.[13]Pyramid Technology Corp. v. Cook (In re Cook), 146 B.R. 934, 940-41 (Bankr.E.D.Pa.1992); McGowan v. Beausoleil (In re Beausoleil), 142 B.R. 31, 37 (Bankr.D.R.I.1992); M.R. Toupin, Inc. v. Turpin (In re Turpin), 142 B.R. 491, 496 (Bankr.M.D.Fla.1992). It is insufficient to merely allege that the debtor has failed to explain losses, the plaintiff must produce some evidence of an identifiable asset loss. Carter Engineering Co. v. Carter (In re Carter), 236 B.R. 173, 180 (Bankr.E.D.Pa. 1999); La Brioche, Inc. v. Ishkhanian (In re Ishkhanian), 210 B.R. 944, 953 (Bankr. E.D.Pa.1997). Once the plaintiff has met this burden and thus made out a prima facie case, the burden of production (i.e., coming forward with evidence) shifts to the debtor to explain satisfactorily the losses or deficiencies. Cook, 146 B.R. at 941. The plaintiff's ultimate burden of proof does not obviate the debtor's obligation to come forward with a satisfactory explanation. Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 619 (11th Cir.1984). What constitutes a "satisfactory" explanation is a matter of discretion for the court, Buzzelli, 246 B.R. at 117, but one of the better enunciations of this amorphous concept can be found in Slocum v. Wheeler (In re Wheeler), 38 B.R. 842 (Bankr.E.D.Tenn.1984). There, the court said: The word "satisfactorily," . . . may mean reasonable, or it may mean that the court, after having heard the excuse, the *690 explanation, has that mental attitude which finds contentment in saying that he believes the explanation — he believes what the [debtors] say with reference to the disappearance or the shortage. . . . He no longer wonders. He is contented. Id. at 846 (quoting In re Shapiro & Ornish, 37 F.2d 403 (N.D.Tex.1929)). Similarly, in this circuit, it has been held that the explanation must "convince the judge" that the explanation is worthy of belief. Chusid v. First Union National Bank (In re Chusid), 1998 WL 42292, at *4 (E.D.Pa. Jan.21, 1998); Buzzelli, 246 B.R. at 117; Carter, 236 B.R. at 180 (both quoting Chalik, 748 F.2d at 619). It is important to note that, for the purposes of a § 727(a)(5) inquiry, the court is not concerned with whether the disposition of the assets was proper under the Bankruptcy Code, but rather only whether the explanation satisfactorily describes what happened to the assets. Buzzelli, 246 B.R. at 117. It is not surprising, therefore, that explanations of a generalized, vague, indefinite nature such as assets being spent on "living expenses," unsupported by documentation, are unsatisfactory. Id.; Carter 236 B.R. at 180-81. Equally unavailing is mere identification of a person with knowledge, such as an accountant or other individual who handled the financial affairs of the debtor. Chusid, 1998 WL 42292 at *5; Cook, 146 B.R. at 942. While the objections to discharge found in § 727 are to be strictly construed against the creditor and liberally in favor of the debtor, Rosen v. Bezner, 996 F.2d 1527, 1533 (3d Cir.1993), a discharge in bankruptcy is a privilege — not a right — which must be earned. Upon filing for bankruptcy, it is the debtor's obligation to be forthright in providing financial information. "No one is obligated to recreate the Debtor's financial affairs; that task is his alone." Goldberg ex rel. Lawrence v. Lawrence (In re Lawrence), 227 B.R. 907, 915 (Bankr.S.D.Fla.1998) (citing legislative history of 11 U.S.C. § 521 (debtor's duties)). The Bankruptcy Code makes complete financial disclosure a "condition precedent" to discharge. Id. (citing Broad Nat'l Bank v. Kadison, 26 B.R. 1015, 1018 (D.N.J.1983)). See also Meridian Bank v. Alten, 958 F.2d 1226, 1230 (3d Cir.1992) (discussing § 727(a)(3)). To that end, § 727(a)(5) works in conjunction with the other subsections of § 727 to reflect this legislative policy decision. Buzzelli, 246 B.R. at 116. For example, § 727(a)(3) ensures that the debtor maintain and supply records which are adequate to provide the creditors with sufficient information to ascertain the debtor's financial condition and track his past and present dealings. Lawrence, 227 B.R. at 916. Other subsections ensure that a debtor does not provide false oath or withhold information. Id. (citing 11 U.S.C. §§ 727(a)(4)(A) and (a)(4)(D)). In short, the global purpose of § 727 is to relieve creditors from the burden of "discovering" assets and to place it where it rightfully belongs, upon the debtor. Id. So important is this concept of disclosure, that § 727(a)(5) includes no subjective element of proving wrongful scienter such as an intent to defraud or hinder creditors. See Cook, 146 B.R. at 943 (comparing §§ 727(a)(3) and (a)(5) to §§ 727(a)(2) and (a)(4)). Further, unlike § 727(a)(3), pertaining to a debtor's duty to maintain records, which can be satisfied by a justification for the debtor's failure to do so, "the plain language of § 727(a)(5) makes clear that a debtor cannot prevail thereunder by similarly offering a justification for his or her failure to satisfactorily explain the loss or disappearance of assets." Buzzelli, 246 B.R. at 118. Thus, a debtor facing an objection to discharge under § 727(a)(5) may very well have to *691 gather or produce documents and records which she might otherwise not ordinarily keep and in fact may be justified for failing to keep under § 727(a)(3). Id. She may well have to hire professionals to locate her assets if she is unable to do so herself. See Cook, 146 B.R. at 934 (debtor had obligation to hire an accountant to explain the disappearance of assets not readily apparent from records). Applying these standards, I now examine the alleged loss and/or deficiency of assets upon which the Movants base their motions. I. Diminution of Personal Property The Movants rely upon the fact that the Debtor represented to her insurance company having an interest in personal property worth $810,535 in May 1996 and not recalling any significant dispositions of her property since 1989, while attributing approximately $19,217 of value to the personal property in which she claims an interest in her Amended Schedule B. First Union Mem. at 8-9. There is no genuine issue of fact that the Debtor made these representations as they are admitted in her Answer to the Complaint. A plaintiff makes out a prima facie case where it shows that the debtor has listed assets in her bankruptcy schedules less than she has previously presented herself to be worth. Buzzelli, 246 B.R. at 116.[14] The burden now shifts to the Debtor to explain why property valued at over $810,000 four years before the Petition Date is now worth less than five percent of that amount. Id. Before turning to the Debtor's explanation, it is clear that the comparisons urged by Movants are not completely accurate nor for that matter is the Debtor's explanation of the support for her latest estimate of value. The $810,535 valuation purports to be the value in 1996 of all tangible personal property owned by Debtor and her husband. The $19,217 value is derived from the Slosberg Appraisals which provide the orderly liquidation value of the Debtor's property as of February and April of 2000. Ex. MMM-3 to Debtor's Dep. (Amend.Sched.B).[15] To arrive at the Debtor's interest in the household goods and artwork and collectibles which represent the items appraised by Slosberg, the Schedule B attachment reflects a calculation which deducts from the total appraised value of such property approximately $15,585 of assets Debtor asserts to be holding for third parties[16] and divides *692 the remainder by two to conclude that Debtor's interest in the joint property is $16,217. By adding the $3,000 scheduled clothing and jewelry, Debtor's interest in tangible personal property is fixed at $19,217. However, a fair comparison with the $810,535 would be approximately a value of $35,434 ($16,217 × 2 + $3,000). The Debtor attributes the disparity between the property value provided to Nationwide and the value recorded in her schedules to her reliance on two different appraisals secured at different times and for different purposes.[17] Rule 2004 Exam at 287-88; Debtor's Dep. at 176. She claims that the representation to Nationwide in 1996 is based upon the Young Inventory done subsequent to a 1992 fire in her residence and supplemented by the opinion of her husband. The Young Inventory is a 93-page, hand-written document reflecting a meticulously detailed room by room listing of household items on a form dated February 2 through 6, 1992.[18] Ex. "C" to Mem. Opp. Sonders Mot.[19] While it *693 evidences under the preprinted column labeled "value" a dollar amount represented as "ACV" or "FMV or ACV" or "EST ACV" for each item listed, the document is totally devoid of explanation as to the significance of these entries nor does it in any way cumulate or present the data so any conclusions can be drawn therefrom. Instead it merely proffers 93 pages of raw data without commentary. Indeed without going through the list, item by item with a calculator, I cannot even ascertain whether this appraisal supports the representation to Nationwide that the property was valued at $810,535. The Debtor when examined about the Young Inventory had little recollection or understanding of its significance. Other than stating that it was created after a fire in the marital home, she never elucidates what its purpose was. She testifies that after the fire numerous items of furniture, rugs, clothing, and other possessions were replaced or repaired, some at great expense. Debtor's Dep. at 122, 126-27, 132, 139. However, the significance of that statement as relates to the Young Inventory was never clarified. The Slosberg Appraisal makes no mention of, much less any attempt to reconcile, itself with the Young Inventory, and the Debtor's testimony is simply too vague to bridge the gap. If the Debtor is claiming that the Young Inventory and Slosberg Appraisals explain the loss in value in her personal property, "the burden [is] on the Debtor to prove what [s]he alone claim[s] was obvious from [her] records." Cook, 146 B.R. at 942-43. See also Hughes v. Lieberman (In re Hughes), 873 F.2d 262, 264 (11th Cir.1989) (rejecting attempt to satisfy §§ 727(a)(3) and (5) by placing mass of disorganized records before the court). I recognize that a difference in valuation methodology can be a satisfactory explanation for a diminution of assets when supported by evidence. Kramer v. Poland (In re Poland), 222 B.R. 374, 382 (finding testimony and exhibits adequately explaining loss in value as the difference between "liquidation value" on bankruptcy schedules as opposed to "full value" on financial statement). However, I find the difference between $810,000 and $35,000 of asset value to be too great to be satisfied by this explanation by the Debtor without further corroboration. The Debtor argues that she has identified individuals from Slosberg and Young as well as her husband who have knowledge and whom she will subpoena for trial to provide testimony on this issue. Memorandum in Opposition to First Union Motion ("Mem. Opp. First Union Mot.") at 3-4; Mem. Opp. Sonders Mot. at 5. In relying on this response, the Debtor has misconstrued her burden of production both under the Bankruptcy Code and Rules. Under § 727(a)(5), merely identifying persons with knowledge will not suffice. Once the plaintiff has made out a prima facie case, as the Movants have here, the Debtor must come forward with a satisfactory *694 explanation as to why her personal property is now worth only a fraction of its value four years before the Petition Date. Rule 56(e), and Bankruptcy Rule 7056 by incorporation, demand that the Debtor "must, by affidavit or as otherwise provided in this rule" set forth facts showing an issue for trial. Holding back evidence until trial is not an option where the moving party has met its burden under Rule 56. McIntyre, 795 F.Supp. at 673. The Debtor has not provided any affidavit or deposition testimony from either the appraisers or her husband which might raise an issue of fact that different valuation methodologies will provide a satisfactory explanation. She cannot demand trial on mere speculation that a material issue of fact may emerge at that time. Frito-Lay, 92 F.R.D. at 391. For these reasons, I find that the Debtor has failed to satisfactorily explain the loss of approximately $775,000 worth of assets (the difference between the $810,000 represented in May 1996 and the $35,000 now claimed in her Amended Schedule B).[20] II. Loss of the Stock Proceeds 1. The Charming Shoppes Proceeds The Movants have correctly noted that the Debtor made two separate sales of Charming Shoppes stock, aggregating receipts of $63,771 (the "Charming Shoppes Proceeds"), within a year of the Petition Date. Despite disclosing the sale of the stock, the Debtor failed to account for the Charming Shoppes Proceeds in her Schedules. Amend. Statement of Fin. Affairs, ¶ 10; Amend. Sched. B. These facts are not contested by the Debtor. The Movants have thus made out a prima facie case under § 727(a)(5) by identifying a specific asset in which the Debtor had a cognizable interest (i.e., the Charming Shoppes Proceeds) at a time not too far removed from the bankruptcy and which is now no longer available. I find, however, that with respect to this asset the Debtor's testimony is sufficient to meet her burden of production. She testified, in relevant part, as follows: Q: And why did you sell [15,595 shares of] that stock in February 1999? A: It was at the request of my husband. Q: Do you know why he requested you do that? A: He needed the money. Q: And did you give that $50,140 [representing the proceeds from the 15,595 shares] to him? A: Yes Debtor's Dep. at 71-72. At this point, the Court is not concerned with whether such a transfer to her husband was proper. My inquiry under § 727(a)(5) is only whether the explanation satisfactorily describes what happened to this asset. With regard to the February 1999 proceeds, her testimony satisfactorily explains the disposition *695 of the $50,140, namely that she transferred the proceeds to Mr. Mezvinsky. The Debtor's deposition testimony as to the January 2000 sale is ambiguous when read in conjunction with her earlier testimony: Q: [You sold] 1,847 shares of Charming Shoppes and received $13,631; is that accurate? A: To the best of my knowledge. Q: Why did you sell that stock? A: For the same reason. Q: And what did you do with the $13,631? A: My husband handled it. Id. (emphasis added). The Debtor authorized the January 2000 sale of stock for the same reason as the first, because her husband needed the money. Although she fails to state as much, one could therefore infer that she also gave these proceeds to Mr. Mezvinksy. Given that I must make all inferences in favor of the Debtor and refrain from any determination as to credibility, Boyle v. Allegheny County, Pa., 139 F.3d at 393, there is at least a question of fact as to whether the Debtor can provide a satisfactory explanation, that she did in fact transfer the proceeds from the second sale of the Charming Shoppes to her husband.[21] 2. The Misc. Stock Proceeds First Union also presented brokerage account statements showing that, on January 7, 2000, the Debtor sold ten shares of General Electric stock and seventy-one shares of PNC Bank Stock for $1,382.61 and $2,772.98, respectively (collectively the "Misc. Stock Proceeds"). Ex. MMM-24 to First Union Mot. The sale of this stock is not disclosed in the Debtor's Amended Statement of Financial Affairs, nor are the Misc. Stock Proceeds accounted for in her amended schedules. First Union has thus made out a prima facie case by showing the Debtor's cognizable interest in the Misc. Stock Proceeds of $4,155.59 as of January 7, 2000, which the Debtor no longer possesses. The burden now shifts to the Debtor to satisfactorily explain the loss of the Misc. Stock Proceeds. The Debtor, however, fails to address the Misc. Stock Proceeds in her opposition to the First Union Motion. Indeed, her deposition testimony is that she has no recollection of ever having owned or sold the General Electric or PNC Bank stock. Debtor's Dep. at 16365. In light of the account statements evidencing otherwise, I find that the Debtor has failed to satisfactorily explain the loss of the Misc. Stock Proceeds, totaling $4,155.59. III. Loss of Inheritance First Union alleges that, although the Debtor disclosed a beneficial interest in the estate of her deceased mother, Mildred Margolies, estimated at $7,500 in her Amended Schedule B, her interest in the estate should have been much greater. First Union Mem. at 12. First Union relies upon account statements from brokerage accounts held by Mildred Margolies and showing that (1) Mrs. Margolies had investments worth $257,156.31 as of December 31, 1998, (2) that the accounts *696 were liquidated at some point thereafter for $312,864.28, and (3) that only $1,732.47 remained as of December 31, 1999. Exs. MMM-19, MMM-20. to Debtor's Dep. These documents fail to prove First Union's point. Under Pennsylvania law, "an interest in property established by a will takes effect at the time of the testator's death unless the testator expresses a contrary intent." Doyle v. U.S., 358 F.Supp. 300, 305 (E.D.Pa.1973) (construing Pennsylvania law). See also In re Kenin's Trust Estate, 343 Pa. 549, 555, 23 A.2d 837, 840 (1942) (all wills are ambulatory and become effective only when the will's maker dies). The relevant inquiry then is what property interest did the Debtor have at the time of her mother's death? Here, First Union has neglected to mention, much less provide evidentiary support, as to (1) when Mrs. Margolies died in order to establish when the Debtor had a cognizable interest in her estate; or (2) what the value of that estate was at the time of her death. The Debtor's testimony, however, indicates her mother passed away sometime in the year 2000. Debtor's Dep at 68. Her death then occurred after the time that the account was liquidated and before the time the Debtor's interest attached to it. It is irrelevant that Mrs. Margolies' accounts may have been liquidated at a time when the Debtor had no property interest in those accounts. With regard to the inheritance, First Union has failed to meet its initial burden of production under § 727(a)(5), namely showing that the Debtor had a cognizable property interest in an identifiable asset not too far removed from the Petition Date which she no longer possesses. IV. Loss of the Personal Loan Assets First Union correctly notes that the uncontested facts show that the Debtor and her husband borrowed the Personal Loan Assets aggregating $1,477,500 between 1997 and 1999.[22] It is likewise undisputed that the Personal Loan Assets are not accounted for anywhere in her bankruptcy schedules. Thus, First Union has made out a prima facie case by showing the Debtor had a cognizable interest in the Personal Loan Assets at a time not too far removed from the Petition Date which she no longer possesses. The burden of production now shifts to the Debtor to provide a satisfactory explanation as to the loss of or deficiency in the Personal Loan Assets. The Debtor's testimony is that, "to the best of [her] recollection," $27,500 was used for general living expenses. Rule 2004 Exam at 147. General and vague assertions that money was spent on living expenses, however, are insufficient under § 727(a)(5) absent documentary corroboration. Carter, 236 B.R. at 181. See also First Texas Savings Ass'n v. Reed (In re Reed), 700 F.2d 986, 993 (5th Cir.1983) (debtor's explanation that $19,586 was consumed by business and household expenses and gambling debts was unsatisfactory). Here, the Debtor has failed to present any corroboration to support her assertion that $27,500 was used for living expenses. Moreover, even given my discretion to assume a portion of the Personal Loan Assets was applied to living expenses, I will not do so here given that the disposition of the overwhelming bulk of $1.4 million remains shrouded in mystery. Compare Prentiss v. Gagnon (In re Gagnon), 40 B.R. 951, 952-53 (Bankr.D.Maine 1984) (allowing $3,000 to $3,500 to be attributed to *697 living expenses without corroboration where debtor accounted with specificity for almost $15,000 of the $18,000 in question). Other than the foregoing, the Debtor's testimony regarding the Personal Loan Assets is either that (a) she lacks knowledge as to how the assets were used or (b) her husband handled her financial affairs. Rule 2004 Exam at 148-49, 152-55, 209. "[T]he law, [however,] forbids the debtor from absolving himself of the responsibility of explaining the loss . . . by merely pointing the finger at another." Chusid, 1998 WL 42292 at *5 (rejecting as insufficient under § 727(a)(5) the debtor's assertion that his son handled all his finances); Cook, 146 B.R. at 942 (rejecting debtor's attempt to blame bookkeeper for inadequate records and thus his inability to explain loss of assets).[23] Finally, the Debtor asserts in her opposition brief that her husband will be subpoenaed to testify at trial and will be able to provide explanations as to what happened to the Personal Loan Proceeds. Mem. Opp. First Union Mot. at 6. This assertion, as noted above, disregards her burden of production at this stage. Once a plaintiff establishes a prima facie case of lost assets under § 727(a)(5), as First Union has here, the Debtor is obligated to provide a satisfactory explanation. Moreover, since First Union has met its burden in the context of a summary judgment motion, the Debtor cannot simply defer her response until trial. She must provide that explanation, with evidence, here and now. McIntyre, supra, 795 F.Supp. at 673; Frito-Lay, 92 F.R.D. at 391. Here, the Debtor has failed to do so and accordingly there is no basis for trial on this issue. V. Loss of Interest Under Deed of Trust First Union alleges, that on August 22, 1997, the Debtor executed an Irrevocable Deed of Trust, under which the Debtor's husband, as settlor, was to transfer certain undisclosed assets to the trust created by this document (the "Trust") and under which the Debtor was a beneficiary and co-trustee. First Union Mem. at 14-15. The Debtor authenticated her signature on the Deed of Trust, but lacked any recollection and denied understanding what the document was. Debtor's Dep. at 173-75. Although the Deed of Trust states that the settlor will transfer assets listed in "Schedule A," to the Trustees, there is no such schedule attached to the Deed of Trust. Ex. MMM-28 to Debtor's Dep. Nor has First Union provided any evidence that any assets were, in fact, ever deposited into the Trust. If there is no trust res, the trust never comes into existence. In re Cavalier, 399 Pa.Super. 637, 582 A.2d 1125, 1127 (1990). Absent evidence of a specifically identifiable asset, First Union has failed to make out a prima facie case under § 727(a)(5) with regard to the Trust. VI. The Senate Financial Statement Assets The Movants have shown that in latter *698 part of 1999[24] and on February 25, 2000, the Debtor filed the Senate Financial Disclosure with the United States Senate in connection with her candidacy for Senate,[25] disclosing the ownership interest by her, her husband or dependent child in various securities and notes receivable valued at least at $1.3 million (the "Senate Financial Disclosure Assets"). Ex. "E" to Sonders Mot. The Debtor admits to signing these statements, although she asserts, and the Court takes this assertion as true for these purposes, that her husband prepared the statements and that she did not verify the accuracy of the statements before signing them. Rule 2004 Exam at 171-75. It is undisputed that the Senate Financial Disclosure Assets are not listed or accounted for in the Debtor's Schedules or Statement of Financial Affairs. Thus, The Movants have made a prima facie case under § 727(a)(5), namely that the Debtor has at a time proximate to the filing of the Petition presented herself to be worth more than she has represented in her bankruptcy papers. The burden now shifts to the Debtor to provide a satisfactory explanation for the disposition of the Senate Financial Disclosure Assets. Turning to her deposition testimony, her sole explanation is that her husband handled her finances and prepared the Senate Financial Disclosure.[26] Rule 2004 Exam at 173. As discussed above, mere identification of an individual with knowledge is wholly insufficient to meet the burden under both § 727(a)(5) and Bankruptcy Rule 7056. I therefore find that the Debtor has failed to satisfactorily explain the disposition of the Senate Financial Statement Assets, valued at over $1.3 million. VII. The Ivory Coast Assets The Movants allege that, five months before the Petition Date, the Debtor and her husband made representations in a "Settlement Agreement" with First Union that the Mezvinskys had substantial assets in the Ivory Coast of Africa worth at least $460,000 (the "Ivory Coast Assets"). Ex. "F" to Sonders Mot. The Settlement Agreement, however, is simply too vague and unclear to make out a prima facie case for the Movants. The referenced portion of the Settlement Agreement simply states that: "The Mezvinskys have a right, title and interest in the Ivory Coast Funds and that the amount of such funds is sufficient to satisfy their payment obligations as set forth in paragraph 4 of this Agreement." Ex. "F" to Sonders Mot. at ¶ 11(c); Sonders Mem. at 13 (emphasis added). Paragraph 4, in turn, gives the Mezvinskys the option of paying either: (1) $100,000 on or before September 30, 1999; or (2) $120,000 at any time between October 1-31, 1999, plus interest at a daily per diem rate of $25.97, beginning October 1, 1999; or (3) $120,000 at any time between November 1-30, 1999, plus interest at a daily per diem of $28.33, beginning October 1, 1999; or (4) $130,000 at any time between December 1-31, 1999, plus interest at a daily per diem of $30.69, beginning October 1, 1999. Ex. "F" to Sonders Mot. at ¶ 4(b). It would thus *699 appear that, at most, the Settlement Agreement shows that the Mezvinskys represented that the Ivory Coast Assets were sufficient to cover an obligation of approximately $132,760 ($130,000 principal plus $30.69 times 90 days). This is a far cry from the $460,000 representation asserted by the Movants. Nor does the Settlement Agreement's definition of "Ivory Coast Funds" — as "all funds from investments in the Ivory Coast" in which the Mezvinskys have any legal or equitable interest — help meet Movants' burden under § 727(a)(5) of showing a "specifically identifiable" asset. Moreover, the definition includes a space for insertion of a bank name and account number which was never filled in, raising questions as to whether the exhibit is in fact the final agreement between the parties. Ex. "F" ¶ 10(e). The Movants have failed to make out a prima facie case with respect to the Ivory Coast Assets. VIII. Transfers to Roberta McClean The Movants also allege that the Debtor has failed to satisfactorily explain the loss of the McClean Payments totaling $12,500. First Union Mem. at 15; Sonders Mem. at 13-14. This argument is without merit. The Court's concern under § 727(a)(5) is solely a matter of identifying where assets went, not whether the transfer of assets was proper. There is perhaps no better an explanation as to where specific funds went than a check which clearly identifies a payee. In short, Movants' own allegation provides a satisfactory explanation as to where the funds went; if they existed, they went to Roberta McClean. IX. The Chasen Proceeds Finally, as it is unclear from his motion whether Sonders is raising the Chasen Transaction in the context of his § 727(a)(5) argument or simply characterizing it as a fraudulent conveyance, I address it briefly herein. As noted above, the Debtor disclosed the Chasen Transaction in her Amended Statement of Financial Affairs and explained in discovery that the Chasen Proceeds were paid by Ms. Chasen directly to Northfield Mount Herman School, the school attended by the Debtor's son, Andrew. Sonders Mem. at 14-15 (citing Debtor's response to Interrogatories). Sonders does not present any evidence, or even allege, that the Chasen Proceeds did not in fact go to Northfield Mount Herman School. As my inquiry at this point is solely whether the Debtor's explanation satisfies the Court as to where the proceeds went, not whether the payment to the school was a fraudulent transfer under the Code, I find that Sonders' own averments and supporting evidence are a satisfactory explanation under § 727(a)(5) as to the disposition of the Chasen Proceeds. CONCLUSION Sonders and/or First Union[27] have established that: (1) the Debtor represented she and her husband to have furnishings, art and other tangible personal property worth $810,535 as of May 1996; (2) the Debtor represented the value of this category of personal property to be only $35,434 in her bankruptcy schedules; (3) the Debtor borrowed $1,477,500 within two to three years of the Petition Date; (4) these loan proceeds are not accounted for in her bankruptcy schedules; (5) the Debtor made representations in August 1999 *700 and February 2000, pursuant to federal disclosure laws, regarding the ownership by her, her husband and dependent children of securities and note receivables valued at over $1.3 million; (6) the Debtor's bankruptcy schedules failed to identify any interest in these assets; (7) the Debtor owned and sold stock for $4,155.59 on January 7, 2000; and (8) the Debtor's bankruptcy statements and schedules failed to identify the sale or disposition of these assets. The above facts are not disputed, and they established a prima facie case under § 727(a)(5), placing the burden upon the Debtor to provide a satisfactory explanation for the loss of or deficiency in these assets. The Debtor's responses have failed to set forth specific facts showing there is a genuine issue for trial, namely her ability to provide a satisfactory explanation. Moreover, her reliance on a proffer that the witnesses she intends to call at trial will provide satisfactory explanations, is insufficient to defeat the entry of summary judgment under Rule 56. For these reasons, I find that the Movants have met their burden of proof that there are no genuine issues of material fact regarding the Debtor's failure to explain satisfactorily the loss or deficiency of assets under 11 U.S.C. § 727(a)(5) and that they are entitled to a judgment as a matter of law. While it is well accepted that § 727 is to be construed liberally in favor of a debtor, the benefit of the discharge nevertheless comes with the condition of complete candor with the court and creditors. The Debtor is an intelligent, highly educated and sophisticated professional person. Her background is in communications. As a journalist and author, she explained the affairs of the day to the public. As a Congresswoman, she analyzed and made determinations regarding the expenditure of public funds and this nation's budget. Yet her consistent response to questions asked by her creditors about the disposition of her assets is lack of knowledge or "my husband handled it," a mantra that is completely at odds with her public persona, background, and accomplishments. In her memoranda filed in both adversary cases, she disputes the "sophisticated" label advanced by Movants contending that "she like many women of her generation, relied upon her husband, Edward Mezvinsky, to handle the financial affairs of their family." Mem. Opp. First Union Mot. at 3; Mem Opp. Sonders Mot. at 3. To the extent that this explanation could ever be found sufficient to discharge a debtor's duty to satisfactorily explain the loss or depreciation of her assets, it certainly would not be found to do so here.[28] Debtor is not at all like the women of her generation that she seeks to identify with. She was a Congresswoman, and thereafter headed the United Nation Fourth World Congress on Women in Beijing and later *701 became the President of the Women's Campaign Fund. Her deference to her husband on financial matters, especially with knowledge that he was not managing them well, Debtor's Dep. at 173, is at best puzzling, and her attempts to justify her continued ignorance of her finances as gender related are inconsistent with her clear competency to discover the surrounding facts. It is not for this Court to pass judgment on how the Debtor chose to manage her financial affairs prior to this bankruptcy case. However, when she filed for bankruptcy relief and invoked the protection of this Court, she forfeited the right to remain ignorant of the disposition of her assets. Without regard to her credibility, I must assume as true in the context of a summary judgment motion her testimony that her husband, not she, handled her financial matters without consultation with or disclosure to her of any details. However, her failure as a debtor seeking discharge to make any attempt to discover and disclose the facts surrounding the transactions put at issue by the Movants is fatal to her cause. I can only conclude that her continued ignorance and/or lack of understanding of the facts that surround the loss and deterioration of millions of dollars of assets and funds owned by her with her husband is a matter of choice. While this approach may serve her well in connection with matters in litigation elsewhere, her failure to provide a satisfactory explanation regarding the transactions at issue will preclude her from earning a discharge in this bankruptcy case. Finding that the Debtor here has not fulfilled her duty of disclosure as a debtor under the bankruptcy law, the objections of Sonders and First Union to the Debtor's discharge are granted. NOTES [1] The Sonders Motion seeks to deny the Debtor a discharge on the grounds of 11 U.S.C. §§ 727(a)(2),(a)(3), (a)(4) as well as (a)(5). At argument on the First Union Motion, Debtor's counsel acknowledged that an adverse decision on the identical (a)(5) grounds pressed by First Union and Sonders would render a decision on the other issues raised by the Sonders Motion unnecessary. I concur. Accordingly, I do not reach those other grounds. [2] Those documents are as follows: Exhibit A Schedule B, Personal Property; Exhibit B Schedule C, Property Claimed as Exempt; Exhibit D Statement of Financial Affairs; and Exhibit E United States Senate Public Financial Disclosure Report for New Employee and Candidate Reports. In re Leonard, 151 B.R. 639 (Bankr.N.D.N.Y.1992) (same), some of the Debtor's bankruptcy schedules were amended after Sonders filed his motion. As noted herein, to the extent I rely upon documents filed with this Court, I rely upon the amended versions. "Factual assertions in pleadings are judicial admissions against the party that made them", Larson v. Groos Bank, 204 B.R. 500, 502 (W.D.Tex.1996) (statements in schedules). See also In re Musgrove, 187 B.R. 808 (Bankr.N.D.Ga.1995) (same); [3] Rather than submit an affidavit of specific sworn facts, Debtor presents a general affidavit in which she swears to the truth of the facts set forth in the Memorandum in Opposition to the Sonders' Motion ("Mem. Opp. Sonders Mem."). Since much of the Memorandum is argument and many of the facts not within her first hand knowledge, it is hard to know what she is swearing to. However, for the purposes of this Motion, I will accept her attestation of facts that are capable of being known to her. [4] The documents submitted are the following: Exhibit A Indictment in United States of America v. Edward M. Mezvinsky; Exhibit B Appraisal Reports prepared by Barry S. Slosberg Inc. ("Slosberg Appraisals") and Exhibit C Young Adjustment Co. inventory ("Young Inventory"). [5] Since no similar attestation or any other evidence was submitted in opposition to the First Union Motion, Debtor relies entirely on the Sonders Motion record to support her response. Since both First Union and Debtor have utilized this "incorporation" approach, I shall deem them to have waived any objection to this evidentiary shortcut. [6] I shall take judicial notice of the docket entries in this case. Fed.R.Evid. 201, incorporated in these proceedings by Fed.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n. 3 (3d Cir.1991); Levine v. Egidi, 1993 WL 69146, at *2 (N.D.Ill.1993); In re Paolino, 1991 WL 284107, at *12 n. 19 (Bankr.E.D.Pa.1991); see generally In re Indian Palms Associates, Ltd., 61 F.3d 197 (3d Cir.1995). [7] The Complaint and Answer pinpoint the date of this representation to the insurance company as occurring in May 1996 while the deposition testimony refers to May 1999. Rule 2004 Exam at 287. Giving the Debtor the benefit of the doubt, I am assuming for the purpose of this adjudication that the former is correct as it would be harder to justify a major deterioration in the value of assets over the period of one year or the use by the Debtor of a 1992 appraisal some seven years later. [8] For purposes of comparison with the $810,535 insurance estimate, the Debtor's scheduled values must be doubled as to property owned jointly by her and her husband. See discussion infra § II.A. [9] The individual loans consist of the following: (1) $27,500 from Connie Williams (the "Williams Loan") within two years of filing the Petition. Rule 2004 Exam at 145-47; (2) $100,000 from Janet Boyle (the "Boyle Loan") sometime in 1998 or 1999. Rule 2004 Exam at 148-49; (3) $1,100,000 from Richard Snyder (the "Snyder Loan") in 1998 or 1999. Rule 2004 Exam at 208-09; (4) $150,000 from Gerald Segal (the "Segal Loan") over several months in 1999. Rule 2004 Exam at 153-54, 198-99; and (5) $100,000 from Donald Spero (the "Spero Loan") in 1997. Rule 2004 Exam at 152-53. [10] The Debtor expressly testified that both she and her husband signed for the Williams, Segal and Boyle Loans. Rule 2004 Exam at 196-99, 203-04. Her testimony regarding the Spero Loan does not make it entirely clear whether it was made either to her directly or to both her and her husband. Id. at 152-53. The Debtor testified as to her status as co-debtor on the Segal and Snyder Loans. Id. at 206-08. Finally, all five lenders are listed as unsecured creditors on the Debtor's Schedule F in the same amounts as the loans discussed above, and the Debtor has not contested her status as co-debtor on these loans. [11] Exhibit E to the Sonders Motion is the completed form "United States Senate Public Financial Disclosure Report for New Employee and Candidate Reports." The form requires assets to be disclosed within a range of values. The $1.3 million aggregate value represents the minimum value for each asset disclosed therein by the Debtor. [12] Federal Rule of Civil Procedure 56 is incorporated by Federal Rule of Bankruptcy Procedure 7056. [13] With respect to the time period for which a debtor is required to account for her financial condition under § 727(a)(5), one court, after reviewing Code and Act cases, that found long-term inquiry to be relevant stated: Thus, it is clear that the temporal depth of the inquiry permissible under §§ 727(a)(3) and 727(a)(5) cannot be set according to a rigid rule; it must be determined only on a case-by-case basis, bearing in mind that, under the statute, ". . . the interests protected are those of creditors and . . . the [debtor] is required to take such steps as ordinary fair dealing and common caution dictate to enable the creditors to learn what he did with his estate." Koufman v. Sheinwald, 83 F.2d 977, 980 (1st Cir.1936); In re Kinney, 33 B.R. 594, 596 (Bankr.N.D.Ohio 1983). In re Losinski, 80 B.R. 464, 473 (Bankr. D.Minn.1987) (inquiring six years before petition date). See also PNC Bank v. Buzzelli (In re Buzzelli), 246 B.R. 75, 117 (Bankr.W.D.Pa. 2000) (quoting Losinski supra) (while in the ordinary consumer case, it is probably reasonable to limit the inquiry to two years before the commencement of the filing, there is no "hard and fast rule" that dictates the time period prior to a bankruptcy filing which is relevant to an inquiry under § 727(a)(5)). [14] Notably Debtor does not contend that this alleged unexplained loss is too far removed from the filing of the bankruptcy case to be probative. If, however, the representation occurred in 1996 (see n. 2 supra), the statement to the insurance company may have occurred almost four years before the petition was filed, unlike the other representations considered here which were made within one or two years of the commencement of this case. However, the age of the representation is mitigated by the extent of the loss and the existence of other unexplained losses, and thus will be considered even if made four years ago. [15] There are actually two appraisals as exhibits to Amended Schedule B. The first lists property appraised at a total liquidation value of $34,260 as of February 5, 2000. The second appraisal is much shorter and lists personal property appraised at a total liquidation value of approximately $5,050 as of April 12, 2000. The second appraisal consisting of art and antiques is labeled an "addendum." In an attachment to Amended Schedule B, Debtor refers to the later addendum as adding value of $5,359 (versus $5,050) and includes two additional addenda to the Slosberg Appraisals which add another $8,500 to the property valued. The additional addenda are not attached. No explanation is provided for the multiple addenda. [16] Again for the purpose of § 727(a)(5), it is the existence of an explanation, not the propriety of the transfer, that is at issue. Whether these assets were transferred after 1996 so as to have been part of the $810,535 was not stated and indeed Debtor does not attribute the third party items as relevant to this inquiry. [17] The only other explanation provided by the Debtor is that some items of furniture were not as valuable as she originally thought. Debtor's Dep. at 117-21, 176. However these statements alone are too vague and generalized to provide evidence to rebut the demonstrated erosion of value of her personal property. Since the Debtor provided no specific details as to the basis of her misperception nor quantified the impact on the valuation of the furniture, the testimony is insufficient to create a factual issue for trial. [18] This is consistent with the Debtor's testimony that the fire occurred in January 1992. Debtor's Dep. at 104, 115. [19] I note that exhibits and other papers supporting and opposing summary judgment "must be of such a quality as to be admissible at trial." Kohr v. Johns-Manville Corp., 534 F.Supp. 256, 257-58 (E.D.Pa.1982). Documents attached to a summary judgment brief, absent affidavit support attesting to their validity, are not evidence. Berk v. Ascott Inv. Corp., 759 F.Supp. 245, 249, (E.D.Pa.1991) (affidavits attesting to authenticity of documents is necessary in order to present the documentation on a motion for summary judgment). While the Slosberg Appraisals are sworn and notarized and thus self-authenticating, Fed.R.Evid. 902(8), the Young Inventory is not authenticated by affidavit or deposition testimony. Thus, the Young Appraisal is inadmissable. However, it is a well accepted principle that "[a]s is true with other material introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged." 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2722, at 384 (1998). Accord Johnson v. United States Postal Service, 64 F.3d 233, 237 (6th Cir.1995) (ruling that the "failure to object to evidentiary material submitted in support of a summary judgment motion constitutes a waiver of those objections."); H. Sand & Co., Inc. v. Airtemp Corporation, 934 F.2d 450, 454-55 (2d Cir.1991) (Rule 56 does not require parties to authenticate documents "where appellee did not challenge the authenticity of the documents in the district court."); Dautremont v. Broadlawns Hospital, 827 F.2d 291, 294-95 (8th Cir.1987) (affirming summary judgment where appellant failed to object in district court to its consideration of documents not in compliance with Rule 56 and failed to demonstrate that district court's consideration of documents constituted reversible error); Giovacchini v. Perrine, 1995 WL 80102, at *3 n. 1 (E.D.Pa. Feb.27, 1995) (citing Federal Practice and Procedure § 2722) (holding that unauthenticated medical reports would be considered in ruling on motion for summary judgment since no objection was raised thereto). Another treatise offers the following insight: Rule 56(e) does not require parties to authenticate documents where the appellant failed to challenge the authenticity of the documents in district court. An evidentiary objection, not raised in district court, is waived on appeal. This rule is equally applicable to a summary judgment motion as it is for a trial. Consequently, Rule 56(e) defects such as unsworn or uncertified affidavits, deposition testimony or unauthenticated documents, are waived and those pieces of evidence will be admissible in a summary judgment proceeding if no motion to strike has been made at the district court level. 11 James Wm. Moore et al., Moore's Federal Practice § 56.14[2][c], at 56-184.1-56-185 (3d ed.2001). Neither Sonders nor First Union challenged the authenticity of the Young Inventory and thus while it has other deficiencies as evidentiary support, I will consider its lack of authenticity waived. This evidentiary flaw was apparent in a number of the documents placed of record not only by the Debtor but by Sonders and First Union as well. In no case was an objection lodged and thus the authenticity deficiencies of these documents are likewise considered waived by Debtor. [20] First Union also alleges that, while the Debtor's Amended Schedules show only $523 in cash holdings, prior to the Petition Date, she and her husband represented to various financial institutions that they had cash holdings between $50,000 and $70,000. First Union Mem. at 8. In support of this allegation, First Union simply points to a mass of financial statements and handwritten notes which appear to span the time period 1987 to 1999, Ex. MMM-6 to Debtor's Dep., making no attempt to explain how it reaches the amount of $50,000 to $75,000 or to identify when the Debtor allegedly represented herself as having these cash holdings. As noted above, it is not for this Court to make sense out of a mass of disorganized records to evaluate a party's position. Thus with respect to the alleged loss of cash, I find on this record that First Union has failed to identify an asset with sufficient specificity so as to trigger the Debtor's duty to explain. [21] I acknowledge First Union's argument that the Debtor's testimony appears somewhat inconsistent, namely that it appears that the Charming Stock Proceeds from the January 2000 sale may have been wired directly to the account of her mother, Mildred Margolies. Debtor's Dep. at 160-61. There was no questioning or testimony, however, as to whether Mr. Mezvinsky had access or control over this account. This simply raises an additional issue of material fact as to whether she can provide a credible and satisfactory explanation. [22] The Debtor concedes that these loans were made to her and her husband. See supra n. 10. [23] Debtor supports her response by reference to the U.S. Attorney's indictment against her husband: "It is clear from the allegations of that indictment that the funds at issue were handled by Edward Mezvinsky." Mem. Opp. First Union Mot. at 5-6 and Ex. A to Sonders Motion. While there is no evidentiary challenge to use of this hearsay document, see Ruffalo's Truck Serv. v. National Ben-Franklin Ins. Co., 243 F.2d 949, 953 (2d Cir.1957), it nonetheless does nothing to advance her cause. The purpose for which the indictment is offered, to prove that the Debtor's husband handled the loan proceeds in which she had a joint interest, is still an insufficient explanation of what happened to them. [24] The first page of the statement is dated by the Debtor on August 15, 1999, but the date and time stamp from the Senate indicates receipt on October 29, 1999. Ex. "E" to Sonders Mot. [25] Such disclosure, made under penalty of civil and criminal penalty for knowingly and willfully filing false testimony, is required pursuant to the Ethics in Government Act of 1978, as codified, 5 U.S.C. app. 4, § 101 et. seq. [26] The Debtor fails to address these assets whatsoever in her memoranda opposing the First Union and Sonders Motions. [27] Sonders and First Union have proven that the Debtor has failed to satisfactorily explain the loss of tangible and intangible personal property of approximately $2.0 million. First Union has also proven that the Debtor has failed to satisfactorily explain the loss of loan proceeds and miscellaneous stock of another $1.5 million. [28] Compare Wilmington Trust Co. v. Jarrell (In re Jarrell), 129 B.R. 29 (Bankr.D.Del.1991) (Debtor wife who was mere employee of business with no bookkeeping expertise would not be denied Chapter 7 discharge for failure to satisfactorily explain loss of assets, where debtor husband had acted as sole proprietor of business and had failed to satisfactorily explain loss of thousands of dollars of assets); Equibank, N.A. v. Ward (In re Ward), 92 B.R. 644, 647 (Bankr.W.D.Pa.1988) (Denial of discharge to debtor wife on grounds that she could not explain loss of equipment used by the debtors' business was not warranted given that her sole relationship to the business was employment as a sales clerk and her testimony as to her lack of knowledge that she owned any of the equipment might lack credibility if she were a "woman of the 80's"); First City Bank-Central Park v. Powell (In re Powell), 88 B.R. 114 (Bankr.W.D.Tex.1988) (Chapter 7 debtor, a housewife who took no part in conduct of husband resulting in unexplained diminution in assets of jewelry business and lack of adequate records, would be granted discharge where husband was 90% owner of company and company's officer, operator, and prime employee).

183 F.3d 110 (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee,v.RAYMOND RICHARD STEPHENSON, aka Andrew McCurvin, aka Anthony McCurvin, Defendant-Appellant. Docket No. 98-1490August Term, 1998 UNITED STATES COURT OF APPEALSSECOND CIRCUIT Argued March 1, 1999Decided June 30, 1999 Appeal from a conviction and sentence in the United States District Court for the District of Connecticut (Alfred V. Covello, Judge). We reverse one of two money laundering convictions for legally insufficient evidence of intent to conceal. Otherwise, we affirm. [Copyrighted Material Omitted] ALEX V. HERNANDEZ, Assistant United States Attorney for the District of Connecticut (Stephen C. Robinson, United States Attorney, of counsel), Bridgeport, Connecticut, for Appellee. CONRAD O. SEIFERT, Seifert & Hogan, Old Lyme, Connecticut, for Defendant-Appellant. Before: WINTER, Chief Judge, JACOBS, Circuit Judge, and SAND, District Judge.* WINTER, Chief Judge: 1 Andrew McCurvin, also known as Raymond Richard Stephenson, appeals from his conviction after a jury trial and from a sentence of 336 months' imprisonment imposed by Judge Covello. At issue are convictions for conspiracy to possess with intent to distribute cocaine and cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1) and 846; of possession with intent to distribute cocaine and crack, in violation of 21 U.S.C. § 841(a)(1); of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(5); of money laundering in connection with the purchase of an Acura Legend, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and of money laundering in connection with McCurvin's wife's placement of drug proceeds in a safe deposit box, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).1 2 We hold that the government failed to prove money laundering in connection with McCurvin's purchase of a 1992 Acura Legend and therefore vacate the guilty verdict on Count 28. We remand for whatever proceedings are appropriate. Finding no merit in McCurvin's other arguments, we otherwise affirm. BACKGROUND 3 We view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80 (1942). In July 1992, FBI Special Agent William S. Reiner, Jr. began a narcotics investigation of McCurvin, a convicted felon and Jamaican national illegally in the United States. Court-authorized wiretaps of his portable cellular and residential telephones played a major role in the investigation and trial. 4 As a result of information provided by a confidential informant, Reiner arranged a meeting between McCurvin and another FBI undercover agent, Juan Jackson, who held himself out as the informant's friend. On February 25, 1993, McCurvin made his first of a total of ten crack sales to Jackson. These sales are not seriously disputed and involved over 1300 grams of crack. On April 29, 1993, Jackson and appellant traveled together to a car dealership called Tri Auto, located in Milford, Connecticut, to negotiate the purchase of an automobile. Jackson was wearing recording and transmitting devices at the time. Appellant told Jackson he could pay cash for the vehicle "without any particular Id. or driver's license." When McCurvin and Jackson arrived at Tri Auto, a car salesman by the name of Greg Mallard explained to Jackson that the dealership was "a big laundromat." 5 On May 7, 1993, Jackson and McCurvin again traveled together to Tri Auto. Jackson was again wearing recording devices. They first discussed the need to conceal drug proceeds. McCurvin explained that he stored his proceeds in a safe deposit box for that purpose. They also talked about the need to avoid triggering the $10,000 cash reporting requirement when purchasing an automobile: 6 JJ: Yeah, cuz there, there's a law they got to do something about a certain amount of money. 7 AM: Yeah, 10,000. 8 JJ: Yeah. 9 AM: But you ain't going to give it at one time. That's when you give it to the person one time. 10 JJ: Right. 11 AM: If you come in today and give me 5 and come tomorrow and give me 5. There's nothing. You know what I mean. But when you just come in one time and hand $10,000. 12 JJ: But that's the way Greg and them do it. They're cool. 13 On May 12, 1993, while conducting surveillance of McCurvin, Special Agent Joseph McTague of the Internal Revenue Service followed McCurvin's wife, Antoinette, to the Bank of Boston in Waterbury, Connecticut. He watched as she descended stairs to the area of the bank that contains safe deposit boxes. Later that day, Antoinette was recorded having the following conversation with a Claudia Pringle: 14 CP: Hello. 15 ANT: This one call has him getting back at me. We had a big fight this morning, you know. Right. 16 CP: That's why you never called back. 17 ANT: Yeah, we had a big fight. I done broke three nails, whatever. He told me to go get his money out of the safe deposit box, so I did. . . . 18 CP: Where you been this morning? 19 ANT: I went to the bank. . . . 20 On May 18, 1993, McCurvin was intercepted discussing the possible purchase of an Acura Legend with someone by the name of Dave: 21 A: Um. Dave, listen now what I'm sayin, now all these cars lists now for 15-5. 22 D: That's what they're callin for. 23 A: Yeah. 24 D: That's a lot of money. 25 A: Lotta money, no, the Legend is a 92 Legend, and light flood. 26 D: Yup. 27 . . . 28 A: They want 17-5 for it. 29 D: Yeah, but you can go down there with 15 and you gotta car. You know what I mean? 30 A: Go down there with 15? 31 D: Yeah. 32 A: But that's what I'm saying. I mean, you know, you can't give them over 10,000, they gotta report it. 33 D: Oh, really. 34 A: You never know that. 35 D. No. 36 A: Yeah, I went to go fuckin look at this 300E. 37 D: Yeah. 38 A: They say once I give them over 10,000, they gotta report it. 39 D: No shit? 40 A: Um hum. So that's what I'm trying to figure. Now how would I do that? You know what I'm saying? That shit is crazy. 41 D: How would you do that? I would buy the car. 42 A: Huh? 43 D: Put the . . . go down there as Gravel's Automotive and buy the car. And then this way, it never hits you then, ah, then we fuckin sell it to you for fucking under ten whatever. 44 That same day, McCurvin was again intercepted discussing the possible purchase of an Acura Legend with a person named Chris: 45 A: Chris? 46 C: Yeah. 47 A: Yeah, um, I'm trying to figure if you still get a 92 Legend . . . . 48 . . . 49 C: Yeah, I have it. 50 A: You got that 92 Legend, light flood? 51 C: No, that has been sold. 52 A: That been sold? 53 C: I have a 91, 91, um, Acura Legend, flood doesn't drive. 54 A: How much you want for that? 55 C: 16-5. 56 A: 16-5? 57 C: Yeah. 58 . . . 59 A: But you basically, listen to what I'm sayin, um, how about like you could use credit card, right? 60 C: No, everything is cash and carry. 61 . . . 62 A: How about the stuff that is like 22,000. I mean if you come up with that 22,000, then you ain't gotta report to the federal government. 63 C: Yeah, that's the law. That or a certified check, whatever easier for you. Cash or certified check. 64 A: Cash or certified check? 65 C: Yeah. 66 A: Damn. All right then, so, um, I think I'm come down later then. 67 On May 19, 1993, McCurvin purchased a 1992 Acura Legend under a financing agreement with Tri Auto. Later that evening, Antoinette was intercepted over her residential telephone discussing with Claudia Pringle how to structure cash payments for an automobile in order to avoid federal cash transaction reporting requirements: 68 ANT: You know how much he told me his car payments are a month? $500 and somethin. Can you fuckin believe that, Claudia? 69 CP: You gotta pay car payments on it? That fuckin car is $37,000. 70 . . . 71 ANT: It's pissin me off but [he said] Antoinette, I'm just gonna pay $2,000 a month and just pay it off until I pay it off. . . . 72 CP: Antoinette, listen, even though Andrew got the money, you see, you know. What the car dealer told me up here? If you fuckin pay $7,000 and over, give them cash, 73 ANT: No $10,000. 74 CP: They tell the Feds on you. 75 ANT: They did, they have to. They have to, so that's why he said couldn't put no more down than what he did that's why the car payments are high. Because you can't give them more than a certain amount of money or they have to call it in. 76 That same day, Antoinette was again intercepted over her residential telephone explaining to her friend: 77 But listen, now, so, what's today, Wednesday. yesterday he beeped Shabba. No called down the store cuz I said I just said I saw Shabba at the bank so he gave me the money back to go put back in the safe deposit box, right. So I told him, look, you can get in an argument with me if you want I'm not going back down there. I'm not running down there every time you get in an argument. You tell me go run and get your money, I'm not doing it. So, I saw Shabba now in the bank when I went down to put the money. 78 On July 13, 1993, the FBI and members of other law enforcement agencie executed a search warrant at McCurvin's residence and arrested McCurvin and Antoinette. During the search, approximately ten ounces of cocaine were seized from the kitchen cabinet. Two microwave ovens, each of which contained trace amounts of cocaine, were seized from the kitchen. The agents also recovered baking soda, an ingredient necessary for the production of crack; an empty box for a portable cellular phone; a triple beam scale; a 64-ounce glass coffee pot containing crack residue; an electronic paging device; two safe deposit keys corresponding to a Bank of Boston safe deposit box located in Waterbury, Connecticut; a photographic identification card with defendant's photograph made out in the name of Anthony McCurvin; identification cards in the name of Antoinette McCurvin; documents reflecting the purchase of a number of automobiles; Western Union wire transfer receipts totaling $3,534; and a receipt made out in the name of Antoinette McCurvin for Bank of Boston safe deposit box number 3557. 79 Later that day, the FBI executed a search warrant at the Bank of Boston in Waterbury and opened safe deposit box number 3557. Inside the box, they discovered $27,800 in cash and a birth certificate for the McCurvins' child. Eighty-one bills totaling $1,710 were identified as prerecorded "buy money" that Jackson had used to purchase crack from McCurvin. 80 On the morning of January 18, 1995, after the case had been submitted to the jury, but before the jury had begun deliberations for that day, Reiner and McTague -- both of whom had testified for the government -- were instructed to carry trial evidence into the jury deliberation room. The agents knocked on the door and, hearing no answer, walked in. Eight jurors were present. When a juror wished them "good morning," the agents returned the greeting and left. They immediately informed the district court and the parties of their interaction with the jury. The court then conducted a Remmer hearing at which it asked each juror if he or she was prejudiced by this encounter. See Remmer v. United States, 347 U.S. 227 (1954). Each juror replied in the negative. Based on this voir dire, the court concluded that it was 81 simply unable to find a factual basis for a conclusion that a private communication, a contact or a tampering with the jury has, in fact, occurred. The bringing of exhibits into a jury room, and the response 'Good morning,' to a salutation made by a juror, just does not, in the Court's view, rise to the level of private communication, contact, or tampering that is contemplated by the cases that have addressed this kind of circumstance. Assuming arguendo that this, in fact, did constitute such a contact, the Court . . . conclude[s] that the presumption [of prejudice] . . . is, in fact, rebutted and that the contact was harmless to the defendants. 82 The jury ultimately convicted McCurvin on all counts but for two money laundering counts involving the purchase of a Honda Accord and a Nissan Maxima from the Tri Auto dealership. The district court later vacated the gun counts relating to narcotics transactions. See Note 1, supra. 83 After holding a Fatico hearing, see United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), the district court concluded that McCurvin was responsible for the distribution of 1,340 grams of crack, warranting a base offense level of 36, see U.S.S.G. §2D1.1(c)(2). The court added four levels pursuant to U.S.S.G. §3B1.1(a) on the ground that McCurvin was a manager and organizer of criminal activity involving five or more persons, and it added two levels pursuant to U.S.S.G. §2D1.1(b)(1) on the ground that a firearm was possessed in connection with the offense. McCurvin's offense level of 42 and Criminal History Category III yielded an imprisonment range of 360 months to life. The court sentenced McCurvin to a prison term of 360 months. 84 On or about April 22, 1998, the government learned that a government witness, one of McCurvin's coconspirators, had lied about his identity. The government promptly notified the district court and defense counsel of this fact. 85 At McCurvin's July 20, 1998 resentencing, new counsel, see Note 1, supra, argued that McCurvin should not have received a four-level upward adjustment for his role in the offense because he did not control or manage those to whom he sold crack. Counsel also maintained that McCurvin should receive a downward adjustment for acceptance of responsibility. Finally, he argued that McCurvin should receive a downward departure because of his status as a deportable alien and because of his post-arrest efforts at rehabilitation. Counsel did not, however, move the court for a new trial based on the perjured testimony of the government's witness. 86 The district court granted McCurvin a two level downward departure based upon his post-arrest rehabilitation and agreed that a four-level upward adjustment based upon McCurvin's role in the offense was not warranted. However, the court found that a two-level upward adjustment was appropriate because McCurvin had managed and directed his wife, Antoinette. The court then denied McCurvin's motion for a downward departure based upon his status as a deportable alien, stating "that on the facts of this case, the requested departure is not warranted." McCurvin's request for an adjustment for acceptance of responsibility was similarly rejected. In light of the adjustment and downward departure, the district court found McCurvin's adjusted offense level to be 38. With McCurvin's Criminal History Category of III, this resulted in an imprisonment range of 292 to 365 months. The court then resentenced McCurvin to 336 months' imprisonment. DISCUSSION 87 On appeal, McCurvin contends that: (i) the district court should have granted his motion for a mistrial because of the interaction between law enforcement agents and the jury; (ii) the perjured testimony of a government witness requires a new trial; (iii) the testimony of coconspirators pursuant to cooperation agreements violated the anti-gratuity statute, 18 U.S.C. § 201(c)(2); (iv) the disparity in the sentences for cocaine and crack under the Sentencing Guidelines is unconstitutional; (v) there was inadequate evidence that McCurvin was involved with 1,314 grams of crack; (vi) the sentence on the conspiracy conviction was miscalculated; (vii) the district court erred in refusing to depart downwardly; and (viii) the evidence proffered by the government did not support either of the money laundering convictions.2 We examine each of these contentions in turn. 88 a) Agents' Interaction with Jury 89 McCurvin contends first that the district court erred in concluding that the jury's interaction with Reiner and McTague was harmless. He maintains that although the jurors might have been sincere in stating that they remained impartial, they were in fact prejudiced. In his view, the agents' act of carrying into the jury-deliberation room a cart containing $27,000 in cash and narcotics improperly enhanced the credibility of their testimony in the jurors' eyes because of their possession of the evidence. Moreover, McCurvin contends that "'[i]t is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce.'" Appellant Br. At 10 (quoting Peters v. Kiff, 407 U.S. 493, 504 (1972)). We find no merit in this claim. 90 As an initial matter, McCurvin failed to argue in the district court that the voir dire was insufficient to detect juror prejudice. He has, therefore, forfeited this claim, and we may reverse only if there was plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731 (1993). There was not. To be sure, government witnesses should not be used to carry evidence into a jury deliberation room when the jury may be present because of the risk that an improper communication might occur. However, the contact in the instant case was extremely brief and inconsequential. In light of these facts and the district court's voir dire, we fail to see how the brief exchange of "good mornings" could have prejudiced the jurors. Moreover, there was another reason to believe that no prejudice occurred. McTague was, as one of the defense attorneys argued in the trial court, "the man who put on, as a witness, basically the government's case with respect to the money laundering charges." Nevertheless, the jury acquitted McCurvin on two of these charges. These acquittals show the jury's open-mindedness on the counts associated with McTague and bolster the district court's and our conclusion that the brief exchange of greetings was entirely harmless. 91 b) Perjured Testimony of Government Witness 92 Although McCurvin was notified three months before resentencing that one of the government's witnesses had committed perjury by misidentifying himself, he did not move in the district court for a new trial. On appeal, McCurvin claims that a new trial should nevertheless be ordered because the witness's perjury destroyed the fairness of his trial. By not requesting a new trial in the district court, however, McCurvin forfeited this claim. See Olano, 507 U.S. at 731. 93 In any event, there was no error. Where, as here, the government was unaware of a witness's perjury, a court must order a new trial only if it finds that "the jury probably would have acquitted in the absence of the false testimony." United States v. Sanchez, 969 F.2d 1409, 1413-14 (2d Cir. 1992); see also United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (new trial is required only if newly discovered evidence is "material, non-cumulative, and would probably lead to an acquittal" (internal quotation marks omitted)). Here, the witness's true identity was not material, much less central, to the government's case. Moreover, even without the witness's testimony, the evidence of McCurvin's guilt was overwhelming, consisting of ten hand-to-hand crack sales to an undercover FBI agent, the interception of narcotics-related conversations pursuant to court-authorized wiretaps, other recorded conversations, narcotics and drug trafficking paraphernalia seized from his residence, and the testimony of another coconspirator. 94 c) Anti-gratuity Statute 95 McCurvin next argues that the admission of coconspirator testimony at his trial violated the so-called "anti-gratuity statute," 18 U.S.C. § 201(c)(2), because the government promised these witnesses leniency in exchange for their truthful testimony. We disagree. 96 Section 201(c)(2) provides that "[w]hoever . . . directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both." 18 U.S.C. § 201(c)(2) (1994). We agree with the reasoning of the Tenth Circuit's en banc opinion, see United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc) cert denied, U.S., 119 S.Ct. 2371,L.Ed.2d (1999), and hold that 18 U.S.C. § 201(c)(2) does not apply to the United States or to any Assistant United States Attorney acting within his or her official capacity. 97 d) Sentencing Disparity Between Crack and Cocaine 98 McCurvin next claims that the disparity in the Guidelines sentences for cocaine and crack is unconstitutional. We have already rejected this argument, see United States v. Canales, 91 F.3d 363, 368 (2d Cir. 1996); United States v. Montoya, 87 F.3d 621, 623 (2d Cir. 1996) (per curiam), and decline to revisit the issue. 99 McCurvin alternatively urges application of the rule of lenity because the distinction between crack and cocaine is, he maintains, inherently ambiguous. However, the record provided the district court with ample evidence to find that McCurvin prepared and distributed crack. Thus, "[n]o ambiguity arose from the manner in which the statute was narrowly applied to" McCurvin. Canales, 91 F.3d at 368 (quoting United States v. Martinez, 49 F.3d 1398, 1404 (9th Cir. 1995)). 100 e) Evidence of Drug Quantity 101 According to McCurvin, the evidence that he was involved with 1,314 grams of crack was legally insufficient because the crack he distributed contained caffeine. However, Section 2D1.1(c) of the Sentencing Guidelines provides that offense levels are to be determined by the weight of the mixture containing the narcotics. Except for certain circumstances not relevant here, the weight of the mixture is determined without regard to the drug's purity. See U.S.S.G. §2D1.1(c), Note A to Drug Quantity Table ("the weight of a controlled substance . . . refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance"). 102 f) Propriety of Sentence on Conspiracy Conviction 103 McCurvin further argues that we should remand for resentencing because his sentence on the conspiracy conviction was miscalculated. He contends that, under United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984), and United States v. Barnes, 158 F.3d 662 (2d Cir. 1998), he should have received a ten-year minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B) (applicable to an offense involving cocaine when defendant has prior drug felony conviction), rather than a twenty-year minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A) (applicable to an offense involving crack when defendant has prior drug felony conviction), because he was convicted of conspiracy to possess and distribute both cocaine and crack, and the jury returned a general guilty verdict. Both Orozco-Prada and Barnes are, however, inapposite. 104 In Orozco-Prada, the defendant was convicted of conspiracy to distribute cocaine and marijuana. The jury's verdict did not specify whether the defendant had been found guilty of a cocaine conspiracy, which carried a statutory maximum 15-year term of imprisonment, or of a marijuana conspiracy, which carried a statutory maximum 5-year term of imprisonment. We held that, in the absence of a special verdict, the defendant was entitled to the more lenient statutory maximum sentence. Accordingly, we gave the government a choice of having the defendant resentenced to a maximum 5-year term or having his conviction vacated and the case remanded for a new trial on that count. In the instant case, by contrast, the statutory maximum term is lifetime imprisonment regardless of whether McCurvin had been found guilty of a cocaine conspiracy or a crack conspiracy. The nature of the offense of conviction thus has no impact on the maximum term of imprisonment permitted by statute. 105 In Barnes, the defendant was convicted of conspiracies to distribute, inter alia, heroin and crack. Although the district court arrived at a Guidelines sentencing range lower than the 20-year minimum sentence applicable to a conspiracy involving crack, it imposed the 20-year minimum. However, the statutory minimum sentence applicable to a conspiracy involving heroin was only 10 years, and we held that the district court should have "assume[d] that the conviction is for conspiracy to possess the controlled substance that carries the most lenient statutorily prescribed sentence." Barnes, 158 F.3d at 668. Accordingly, we again gave the government "the option of retrying the defendant (and seeking a special verdict if he chooses not to amend the indictment) or having him resentenced . . . for conspiracy to possess heroin, the controlled substance carrying the lowest mandatory minimum and permissive maximum penalty." Id. at 674. 106 Unlike Barnes, the Guidelines imprisonment range in the instant case was 292 to 365 months' imprisonment -- higher than both the statutory 10-year minimum term urged by McCurvin and the statutory 20-year minimum term urged by the government. Thus, regardless of which statutory minimum prison term applies, McCurvin's Guidelines imprisonment range would not be altered. There is, therefore, no need to remand for resentencing on this ground. See Edwards v. United States, 523 U.S. 511 (1998) (jury's understanding of nature of drug conspiracy is irrelevant where sentencing scheme would be same in either event). 107 g) Denial of Motion for Downward Departure 108 McCurvin contends that the district court erred in denying his motion for a one-level downward departure based upon his stipulation to deportation. However, because there is no indication that the court misapprehended its authority to depart, its denial of the downward departure motion is not appealable. See United States v. Brown, 98 F.3d 690, 692 (2d Cir. 1996) (per curiam). 109 h) Money Laundering Convictions 110 McCurvin was charged with violating Section 1956(a)(1)(B)(i) of the federal money laundering statute, which provides that: 111 Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity . . . knowing that the transaction is designed in whole or in part - (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity [shall be guilty of an offense]. 112 One money-laundering count alleged that McCurvin violated this Section by causing his wife to put drug proceeds in a safe deposit box; another alleged that his purchase of the 1992 Acura violated the statute. 113 McCurvin asserts that there was legally insufficient evidence to support the jury's finding that his wife's placement of cash proceeds of narcotics trafficking into a safe deposit box held in her name was part of his design to conceal or disguise the nature, location, source, ownership, or control of the proceeds of specified unlawful activity. We disagree. 114 In reviewing a jury verdict for sufficiency of the evidence, we must uphold the conviction if "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, 443 U.S. 307, 319 (1979) (emphasis in original). A defendant who challenges a jury's findings on the ground of sufficiency of the evidence "bears a very heavy burden." United States v. Gonzalez, 110 F.3d 936, 940 (2d Cir. 1997) (internal quotation marks omitted). 115 The statute provides that covered transactions include "use of a safe deposit box." 18 U.S.C. § 1956(c)(3). The only question, therefore, is whether the use of the safe deposit box was caused by McCurvin and whether he caused it with the requisite intent. A rational jury could easily so find. There was ample evidence that the money in the safe deposit box was the fruit of McCurvin's drug transactions and that Antoinette placed it there at his direction so as to conceal it. Indeed, he was recorded saying just that to Jackson, and the box contained prerecorded money. 116 McCurvin also argues that the evidence was inadequate to establish that his purchase of a 1992 Acura Legend was designed to conceal or disguise drug proceeds. McCurvin was charged only with violating subsection (i) of Section 1956(a)(1)(B), and not subsection (ii) which prohibits transactions intended "to avoid a . . . reporting requirement under State or Federal law." As noted, McCurvin maintains that his purchase of the car was an ordinary commercial transaction and that a money laundering conviction under Section 1956(a)(1)(B)(i) requires more than proof of the spending of the ill-gotten gains. We agree. 117 Joining a number of other circuits, we hold that Subsection (i) of the money laundering statute does not criminalize the mere spending of proceeds of specified unlawful activity. See, e.g., United States v. Dobbs, 63 F.3d 391, 398 (5th Cir. 1995) ("where the use of the money was not disguised and the purchases were for family expenses and business expenses . . . , there is . . . insufficient evidence to support the money laundering conviction"); United States v. Rockelman, 49 F.3d 418, 422 (8th Cir. 1995) (money laundering statuteshould not be interpreted to criminalize ordinary spending of drug sale proceeds); United States v. Garcia-Emanuel, 14 F.3d 1469, 1476 (10th Cir. 1994) (Section 1956(a)(1) "is a concealment statute -- not a spending statute"); United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (money laundering statute should not be interpreted to criminalize ordinary spending of drug proceeds). By its express terms, the statute requires proof that a financial transaction involving drug proceeds was designed "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity." 18 U.S.C. § 1956(a)(1)(B)(i). Thus, absent proof of intent to conceal, an ordinary purchase made with ill-gotten gains does not violate the money laundering statute. 118 The government claims that it established the requisite intent to conceal by showing that McCurvin laundered money through the purchase of the Acura "by employing a bogus payment schedule" with Tri Auto. According to the government's brief on appeal, McCurvin allegedly made a large, cash downpayment in excess of the $10,000 cash reporting requirement in exchange for the automobile. Tri Auto in turn issued two receipts: one for the amount actually paid and one that reflected a payment of less than $10,000. Employment of this phony installment scheme, the government contends, evidences intent to conceal. 119 Had such conduct been shown, it would have been sufficient to support the jury's finding of intent to conceal. See United States v. Kinzler, 55 F.3d 70, 74 (2d Cir. 1995) (upholding money laundering conviction on ground that defendant "did not engage in 'ordinary' commercial transactions that happened to involve the proceeds of [illicit activity], but rather employed an elaborate plan precisely to conceal the unwelcome source of those proceeds from the credit card companies with which he dealt"). However, there is no evidence that McCurvin engaged in any such scheme when he purchased the Acura Legend.3 To the contrary, the record reflects that McCurvin's purchase was "open and notorious," Dobbs, 63 F.3d at 397, that he personally closed the transaction, took title to the Acura in his name, and conspicuously used the car. There is no indication, therefore, that the drug proceeds were spent "to create the appearance of legitimate wealth" or for any purpose other than "present personal benefit." Garcia-Emanuel, 14 F.3d at 1474. 120 McCurvin may have intentionally made a downpayment of less than $10,000 in order to avoid triggering federal transaction reporting requirements. However, we hold that such a purpose is not sufficient to satisfy the "intent to conceal" requirement of Section 1956(a)(1)(B)(i). "Conceal" implies conduct entailing deception that goes beyond merely acting in a way that avoids compulsory disclosure. 121 Moreover, Subsection (ii) expressly criminalizes transactions designed to evade state or federal reporting requirements. A statute should be construed so that all of its parts are given effect, see Mobil Oil Corp. v. Karbowski, 879 F.2d 1052, 1055 (2d Cir. 1989), and "a construction ascribing to two separate statutory provisions the same meaning and scope is [therefore] disfavored." United States v. Yip, 930 F.2d 142, 148 (2d Cir. 1991). In light of these customary guides to statutory interpretation, the government's view that an intent to avoid government reporting requirements by itself establishes intent to conceal must be rejected. To give effect to both subsections 1956(a)(1)(B)(i) and (B)(ii), each must proscribe conduct distinct from the other. See id. Evidence of intent to evade a reporting requirement cannot, therefore, in and of itself satisfy the "intent to conceal" element of subsection (B)(i). The evidence proffered in the instant case thus failed as a matter of law to satisfy the scienter requirement of Subsection 1956(a)(1)(B)(i).4 CONCLUSION 122 For the foregoing reasons, we vacate the money laundering conviction on Count 28 and remand to the district court for proceedings consistent with this opinion. We otherwise affirm in part and dismiss in part. NOTES: * The Honorable Leonard B. Sand, of the United States District Court for the Southern District of New York, sitting by designation. 1 The jury acquitted McCurvin on two counts of money laundering in connection with his purchase of two other automobiles. The district court subsequently vacated, pursuant to Bailey v. United States, 516 U.S. 137 (1995), the guilty verdicts regarding the use and carrying of a firearm during and in relation to a narcotics trafficking offense and, on April 4, 1996, sentenced McCurvin on the remaining counts to 360 months' imprisonment and ten years of court- supervised release. Trial counsel failed to file a timely notice of appeal. On January 27, 1997, McCurvin filed a Section 2255 motion in order to reinstate his right to appeal. See 28 U.S.C. § 2255. Substitute counsel was thereafter appointed to represent McCurvin, and his motion to vacate the sentence was granted. After downwardly departing on the ground of post- arrest rehabilitation, the district court resentenced McCurvin on July 20, 1998, to 336 months' imprisonment and a ten- year term of supervised release. 2 Initially, McCurvin also objected to the Section 3B1.1(a) enhancement, contending that a four-level adjustment was inappropriate. However, in his reply brief, he acknowledged that the district court had in fact imposed only a two-level enhancement. 3 In United States v. Wisniewski, 121 F.3d 54, 56 (2d Cir. 1997), we upheld the money laundering conviction of the owner of Tri Auto because the evidence showed that "the dealership sold cars to a number of drug dealers, who frequently purchased cars with cash, often using names other than their own" and that "Tri Auto routinely substituted checks for the cash payments, apparently in order to avoid cash- reporting requirements." In the instant case, however, the government proffered no evidence establishing either Tri Auto's or McCurvin's employment of such money laundering schemes. 4 We do not reach the issue of whether the evidence in the instant case - - a downpayment below the report-triggering level and installment payment arrangement in an otherwise egitimate consumer purchase - - would be sufficient to support a conviction under subsection 1956(a)(1)(B)(ii).

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 01-50232 _____________________ MARTIN ALVAREZ; PETE ALVAREZ; SERGIO ARMENDARIZ; ANDREW BROOKS; TAYLOR BARKLEY; GARY CADD; HECTOR JESUS CANO; PEDRO A. CHAVEZ; BRUCE A. CRUMP; MARIO D’AGOSTINO; ROBERTO FLORES; RAUL GARCIA-FLORES; DAVID GONZALEZ; GREG HERNANDEZ; MARIO HERNANDEZ; RICHARD HOLGUIN; MARK KLINE; LORENZO MARQUEZ; ANTONIO MURO, JR.; MICHAEL NELIGH; CARLOS A. PIEDRA; ERIC SODEMANN; MICHAEL A. STUBBLEFIELD; DANIEL TARIN; JOSEPH A. TELLEZ; MIGUEL A. TORRES; DAVE VALERO All individually and on behalf of all other employees similarly situated, Plaintiffs - Appellants, versus CITY OF EL PASO, Defendant - Appellee. _________________________________________________________________ Appeal from the United States District Court for the Western District of Texas No. EP-00-CV-103-H February 14, 2002 Before GARWOOD, JOLLY, and DAVIS, Circuit Judges. PER CURIAM:1 Martin Alvarez and twenty-seven other firefighters brought 1 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. suit against the City of El Paso based on the Fair Labor Standards Act (FLSA). They claimed that the City had violated the FLSA, 29 U.S.C. § 207(a)(1), by refusing to pay compensation for their lunch hour. They argued that, because the City placed so many restrictions on the firefighters’ activities during lunch, it was impossible to derive any personal benefits from the lunch hour. Thus, because the lunch hour did not qualify as a bona fide meal period under the FLSA, they were entitled to be compensated for the hour. The district court granted the City’s motion for summary judgment. Alvarez now appeals. We have studied the briefs, heard the argument of the parties, and considered the issues raised in this appeal. It is now clear to us that the finding and conclusions of the district court are not reversible. In deciding whether a lunch hour qualifies as a bona fide meal period, the courts apply a “predominant benefit test.” See Bernard v. IBP, Inc. of Nebraska, 154 F.3d 259, 264 (5th Cir. 1998). “The critical question [under this test] is whether the meal period is used predominantly or primarily for the benefit of the employer or for the benefit of the employee.” Id. at 264-65. In resolving this question, we must decide whether the employee can use the time during lunch for his or her own purposes. Id. at 266. The restrictions placed here on the employees’ dress and use of city-owned automobiles were more in the nature of inconveniences than restrictions on the free use of the time at 2 issue. The district court therefore did not err when it determined, as a matter of law, that the firefighters could use the lunch hour time primarily for their own personal benefit. Accordingly, the judgment of the district court is AFFIRMED. 3 

Case: 17-31006 Document: 00514796956 Page: 1 Date Filed: 01/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-31006 United States Court of Appeals Fifth Circuit FILED January 16, 2019 UNITED STATES OF AMERICA, Lyle W. Cayce Plaintiff-Appellee, Clerk v. ERNESTO MORENO, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:15-CR-76-7 Before JONES, HAYNES, and OLDHAM, Circuit Judges. PER CURIAM:* On the eve of trial, Ernesto Moreno pleaded guilty to knowingly conspiring to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. This drug-trafficking crime triggers a mandatory minimum sentence of 120 months and a maximum of life. See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sentenced Moreno to 372 * 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: 17-31006 Document: 00514796956 Page: 2 Date Filed: 01/16/2019 No. 17-31006 months. Moreno argues the district court misapplied the Guidelines. We affirm. I. A grand jury indicted Moreno for knowingly conspiring to distribute (and possess with intent to distribute) 500 or more grams of methamphetamine. The district court set the case for trial. On the scheduled first day of trial, however, Moreno pleaded guilty. He did so without a plea agreement. Moreno signed a nine-page factual basis to support his plea. In it, Moreno admitted participating in a drug-trafficking conspiracy from 2011 to 2015. He further admitted he was a “leader” of the conspiracy. He admitted conspiring with family members and others to distribute drugs from California to Louisiana, Texas, and Tennessee. At times, Moreno shipped the drugs himself. Other times, he directed one of his co-conspirators to ship the drugs. The factual basis did not, however, identify the quantity of drugs Moreno trafficked. The final presentence report (“PSR”) did. The PSR described a series of narcotics seizures and undercover purchases on various dates and in various places. It specified the types and weights of the various drugs attributable to Moreno. The PSR concluded the “conspiracy involved the trafficking of at least 17.95941 kilograms of methamphetamine, 3.34 kilograms of cocaine hydrochloride, 17.38 grams of marijuana, and 5.10 grams of alprazolam.” Based on those drug quantities, the PSR assigned a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). The PSR applied a four-level enhancement for Moreno’s leadership role and recommended a two-level reduction for acceptance of responsibility. That yielded a total recommended offense level of 38. 2  Case: 17-31006 Document: 00514796956 Page: 3 Date Filed: 01/16/2019 No. 17-31006 At the sentencing hearing, the district court started with the PSR. It accepted the PSR’s estimate of the drug quantities attributable to Moreno. Moreno did not object. Then the district court considered whether Moreno was a “leader” of his family’s drug-trafficking organization. Moreno admitted as much in the factual basis for his plea. But the initial PSR had failed to recommend a four- level leadership enhancement under U.S.S.G. § 3B1.1(a). The Government objected. The probation officer reconsidered and revised the final PSR to recommend the four-level leadership enhancement. That obviously mooted the Government’s objection to the initial PSR. But it also confused the record of who objected to what: [THE COURT:] [T]he probation officer’s response [to the Government’s objection] indicates that the role assessment in the offense level computation sections for the final PSR have been amended to reflect a four-level enhancement pursuant to guidelines, Section 3B1.1(a). Thus, [the Government’s] objection would also be moot. Is that correct? [AUSA]: Correct. THE COURT: And, likewise, any objection from the defendant. [MORENO’S ATTORNEY]: Yes. It is unclear whether Moreno’s attorney was saying “Yes, I agree any objection is moot,” or “Yes, I object.” In all events, Moreno’s attorney said nothing else. And the district court acted as if no objection was made. It imposed the four- level leadership enhancement. The district court next considered whether Moreno was entitled to a reduction for acceptance of responsibility. The Guideline on acceptance of responsibility has two subsections. See U.S.S.G. § 3E1.1(a)–(b). The PSR recommended a two-level reduction under subsection (a) because the probation officer believed Moreno “clearly demonstrate[d] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Subsection (b) allows the Government to 3  Case: 17-31006 Document: 00514796956 Page: 4 Date Filed: 01/16/2019 No. 17-31006 request an additional one-level reduction where the defendant “timely” accepts responsibility, “thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” U.S.S.G. § 3E1.1(b). The Government did not request the subsection (b) reduction because it “had fully prepared for . . . trial and expended countless hours and significant government resources,” including flying two state witnesses to the trial location, prior to Moreno’s “change of heart.” The district court accepted the Government’s explanation under subsection (b). The district court also concluded the same rationale precluded a two-level reduction under subsection (a). Moreno did not object. Accordingly, he received no reduction under either subsection of § 3E1.1. Finally, the district court received evidence on whether Moreno possessed a firearm during his drug deals. A witness testified that he saw Moreno pull out a firearm and place it on a table while delivering drugs. The Government also presented evidence that Moreno posted pictures of drugs and firearms on a social media page. After considering this evidence, the district court concluded by a preponderance of the evidence that Moreno possessed a firearm during drug-trafficking activity. It therefore applied a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1). That brought Moreno’s offense level to 42. That’s 36 (base offense) plus 4 (leadership role) plus 2 (firearm). Moreno’s criminal history placed him in category III. That yielded a guideline range of 360 months to life. The district court sentenced Moreno to 372 months in prison. Moreno timely appealed. II. Moreno raises four claims on appeal. He argues the district court erroneously found (A) the quantity of Moreno’s drugs, (B) Moreno was a “leader” of the drug-trafficking organization, (C) Moreno possessed a firearm, 4  Case: 17-31006 Document: 00514796956 Page: 5 Date Filed: 01/16/2019 No. 17-31006 and (D) Moreno did not timely accept responsibility. Some of these claims are preserved. Others are not. All are meritless. A. We start with drug quantity. The PSR attributed to Moreno 14.68 kilograms of methamphetamine recovered from a stash house in El Centro, California. Moreno argues those drugs should be excluded from his sentence. Doing so would reduce his base offense level from 36 to 32. Moreno affirmatively waived his right to appeal this issue. When a defendant “intentionally relinquishe[s] or abandon[s] a known right, the issue is waived.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017). And when a defendant waives an objection, it is “entirely unreviewable” and “we cannot address it.” Id. (citation omitted). In Moreno’s sentencing memorandum, he argued the applicable base level was 30 and sought to “preserv[e] his right to argue” that not all of the drugs should be attributed to him. But at the sentencing hearing, Moreno twice told the district court he had no objection to a sentence based on the drug amounts included in the PSR. This shows that Moreno “consciously decided to forgo that objection at sentencing.” Id. Accordingly, this issue is entirely unreviewable. See id.; United States v. Cupit, 670 F. App’x 273, 273 (5th Cir. 2016) (per curiam). B. Next, we turn to Moreno’s leadership enhancement. Moreno argues he was merely a drug supplier, not a drug-trafficking leader. He also attacks the reliability of the Government’s evidence. As an initial matter, the standard of review is unclear. If Moreno properly preserved the issue, “[a] trial court’s finding that a defendant is a leader or organizer is a factual finding reviewed for clear error.” United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). But where the defendant fails to preserve a claim, we are “strictly circumscribed” to plain-error review. Puckett 5  Case: 17-31006 Document: 00514796956 Page: 6 Date Filed: 01/16/2019 No. 17-31006 v. United States, 556 U.S. 129, 134–35 (2009). That is because the defendant’s failure to object at sentencing deprives the district court of the “opportunity to clarify its reasoning or correct any potential errors in its understanding of the law at sentencing.” United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). Plain-error review likewise applies to “objections that are too vague [to] . . . alert the court to the legal argument [the party] now presents.” United States v. Dominguez-Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012) (quotation omitted). Here, the district court confirmed the Government’s objection to the initial PSR was mooted by the probation officer’s decision to include a leadership enhancement. Then the district court said, in a declarative sentence, “And, likewise, any objection from the defendant.” To which Moreno’s attorney replied “Yes.” We think plain error applies. That’s for two reasons. First, it appears that Moreno’s attorney was simply agreeing the Government’s previous objection had been mooted in the final PSR. Second, in any event, an unadorned one-word “yes” is insufficient to alert the district court to the basis for the objection. In either event, plain error would apply. See id. But Moreno’s claim would fail under either standard of review. The aggravating-role “sentencing enhancement is applicable if the defendant is a leader and not the leader.” United States v. Olguin, 643 F.3d 384, 402 (5th Cir. 2011). Several factors are relevant in assessing whether the defendant is one of the leaders of a conspiracy: [1] the exercise of decision making authority, [2] the nature of participation in the commission of the offense, [3] the recruitment of accomplices, [4] the claimed right to a larger share of the fruits of the crime, [5] the degree of participation in planning or organizing the offense, [6] the nature and scope of the illegal activity, and [7] the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, cmt. n. 4. Being “a buyer and seller of illegal drugs” alone is 6  Case: 17-31006 Document: 00514796956 Page: 7 Date Filed: 01/16/2019 No. 17-31006 not enough to show a defendant is a leader. United States v. Betancourt, 422 F.3d 240, 245 (5th Cir. 2005). But “[a] person’s status as a distributor in a drug conspiracy is relevant in determining both the degree of participation in planning or organizing the offense and the nature and scope of the illegal activity.” Haines, 803 F.3d at 744 (quotation omitted). In this case, several factors support the district court’s imposition of the aggravating-role enhancement. Moreno admitted he was a “leader” of the drug-trafficking organization. A Government witness also testified to that effect. Furthermore, the PSR detailed an instance where Moreno instructed a co-conspirator to “find a safe location to store the narcotics and await further instructions.” See United States v. Akins, 746 F.3d 590, 610 (5th Cir. 2014) (concluding the district court did not err in applying an aggravating-role sentencing enhancement when the defendant provided instructions “on what to do with the drugs”). The PSR also detailed Moreno’s responsibilities for the drug-trafficking organization’s financial affairs, including directing deposits of funds and planning a potential expansion to Nashville. See United States v. Benavidez, 360 F. App’x 525, 527 (5th Cir. 2010) (per curiam) (explaining “[s]omeone with major responsibilities on the financial side of a criminal enterprise” qualifies for “the leadership enhancement under Section 3B1.1(a)”). And at least on one occasion, Moreno “fronted” some drugs to a co- conspirator so he could make enough money to repay Moreno a previous debt. See United States v. Wilson, 622 F. App’x 393, 402–03 (5th Cir. 2015) (per curiam) (considering a defendant’s fronting of drugs to be evidence of control). Based on this evidence, it was not clear error, much less plain error, for the district court to impose the four-level sentencing enhancement. Moreno argues this evidence was too unreliable or conclusory for the district court to rely on it. We disagree. The PSR did not merely conclude Moreno was a leader; it provided detailed examples of how Moreno organized 7  Case: 17-31006 Document: 00514796956 Page: 8 Date Filed: 01/16/2019 No. 17-31006 the conspiracy and exercised control over co-conspirators. And “[f]indings of fact included in a ‘PSR are considered reliable and may be adopted without further inquiry if the defendant fails to present competent rebuttal evidence.’ ” United States v. Tisdale, 264 F. App’x 403, 409 (5th Cir. 2008) (quoting United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998)). Moreno did not do so. C. We turn now to Moreno’s gun possession. Under the Guidelines, “the defendant’s sentence should be increased by two levels whenever, in a crime involving the manufacture, import, export, trafficking, or possession of drugs, the defendant possessed a dangerous weapon.” United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001) (citing U.S.S.G. § 2D1.1(b)(1)). This two-level enhancement should be applied if the Government shows “by a preponderance of the evidence that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” Id. (quotation omitted). Moreno preserved this claim of error, so our review is for clear error. There is none. A witness testified he saw Moreno take out a gun while Moreno was delivering drugs. Moreno contends that testimony was unreliable, in part because the witness was a drug addict. But “[c]redibility determinations in sentencing hearings are peculiarly within the province of the trier-of-fact.” United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (quotation omitted). And the district court did not clearly err by crediting the witness’s testimony despite his drug use. Cf. United States v. Armendariz, 663 F. App’x 350, 352–53 (5th Cir. 2016) (affirming judgment of district court when it was based, in part, on an admission made by a defendant who used heroin). Furthermore, separate photographs posted on social media of Moreno, drugs, money, and guns corroborated Moreno’s use of a firearm in connection with his drug transactions. Because it is more than plausible Moreno used a gun while distributing methamphetamine, the district court did not clearly err by 8  Case: 17-31006 Document: 00514796956 Page: 9 Date Filed: 01/16/2019 No. 17-31006 applying the firearm enhancement. See Cooper, 274 F.3d at 238 (“A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.”). D. Finally, Moreno argues the district court clearly erred by declining to award a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Again, we disagree. As a threshold matter, our standard of review is something tougher than clear error. That’s for two reasons. First, “[t]his Court will affirm a sentencing court’s decision not to award a reduction [under § 3E1.1(a)] unless it is without foundation, a standard of review more deferential than the clearly erroneous standard.” United States v. Hott, 866 F.3d 618, 620 (5th Cir. 2017) (alteration omitted) (quotation omitted). Second, plain-error review applies whenever a defendant forfeits his objection—as Moreno did here. See Puckett, 556 U.S. at 134. When the district court sua sponte declined to apply the two-level reduction, Moreno did not object. Nor did he object later in the sentencing hearing when the district court gave the parties a final opportunity to present arguments or objections to the Guidelines calculations. Under either standard—“without foundation” or plain error—Moreno’s claim fails. “This court has routinely upheld the denial of a reduction for acceptance of responsibility when a defendant waits until the eve of trial to enter a guilty plea.” United States v. Taylor, 331 F. App’x 287, 288 (5th Cir. 2009) (per curiam) (collecting cases). That is what happened here. And that is more than enough to warrant rejecting Moreno’s claim. Moreno’s only counterargument is out-of-circuit precedent suggesting a late guilty plea alone is insufficient to deny a reduction under § 3E1.1. See United States v. Hollis, 823 F.3d 1045, 1049 (6th Cir. 2016) (per curiam); United States v. Kumar, 617 F.3d 612, 637 (2d Cir. 2010). It is not obvious that 9  Case: 17-31006 Document: 00514796956 Page: 10 Date Filed: 01/16/2019 No. 17-31006 either case stands for that proposition. See Hollis, 823 F.3d at 1049 (acknowledging a guilty plea “on the eve of or during trial” might indicate a defendant is not truly accepting responsibility); Kumar, 617 F.3d at 637 (acknowledging that “under certain circumstances the lateness of a plea might indeed weigh against the defendant”). Moreover, even assuming (without deciding) a court may not deny a § 3E1.1(a) reduction solely due to a late guilty plea, other reasons support the denial here. See United States v. Diaz, 39 F.3d 568, 571 (5th Cir. 1994) (explaining that if a valid reason supports the district court’s ruling, it can be affirmed). The most obvious reason is Moreno “blame[d] others”—namely, his family—“for his criminal activity” during his statement at sentencing. See United States v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994) (concluding a defendant did not show “sincere contrition” when he blamed others and downplayed his own participation in the offense). Moreno therefore “[has] not show[n] plain error and, in any event, the district court had foundation to deny the reduction.” Hott, 866 F.3d at 620. AFFIRMED. 10 

129 P.3d 497 (2006) 212 Ariz. 208 ARIZONA COMMERCIAL DIVING SERVICES, INC., an Arizona corporation, Plaintiff/Appellant, v. APPLIED DIVING SERVICES, INC., an Arizona corporation; Israel G. Torres, Registrar of Contractors; Arizona Registrar of Contractors, Defendants/Appellees. No. 1 CA-CV 05-0082. Court of Appeals of Arizona, Division 1, Department E. March 2, 2006. *498 Freeman & St. Clair PLLC, by Norman R. Freeman, II, Tucson, Attorneys for Plaintiff/Appellant Arizona Commercial Diving Services, Inc. Carmichael & Powell PC, by David J. Sandoval, Attorneys for Defendant/Appellee Applied Diving Services, Inc. *499 OPINION OROZCO, Judge. ¶ 1 Arizona Commercial Diving Services (ACDS) appeals the judgment in favor of Applied Diving Services, Inc. (ADS) and the Arizona Registrar of Contractors ("the ROC") on ACDS's appeal and ADS's and the ROC's cross-appeals from the decision of the Administrative Law Judge (ALJ). The trial court upheld the ALJ's decision that ACDS did not meet the standards to satisfy the "substantial compliance" exception to the licensing requirement. It reversed the ALJ's decision that the requirements contract at issue was exempt from the licensing requirements because it might be worth less than $750 per year. It further directed the ROC to rescind ACDS's license, and not reissue the license for one year. For the following reasons, we affirm the trial court's decision. FACTS AND PROCEDURAL HISTORY ¶ 2 Kurt Hankes, a former employee of ADS, started a new business, ACDS, in March 2003. Before transacting business, ACDS contacted the ROC regarding licensing requirements. On May 15, 2003, ACDS applied for a license by submitting its financial statement and evidence of license bond and insurance. On June 5, 2003, the ROC issued ACDS's class K-05 license. ¶ 3 Meanwhile, on May 23, 2003, ACDS submitted a bid in response to the City of Phoenix's ("the City's") Invitation for Bids (IFB). The City's IFB requested sealed bids for a three-year diving services requirements contract to provide inspection and preventive maintenance services at several of the City's wastewater treatment plants and water reservoirs. The City estimated that the average annual expenditure under the contract would be $125,000. ACDS's bid was the low bid, and on June 20, 2003, the City notified ACDS that its bid had been recommended for approval. ¶ 4 On June 10, 2003, ADS filed a Complaint with the ROC, alleging that ACDS had violated Arizona Revised Statutes (A.R.S.) section 32-1151 (2002). That section provides in relevant part: It is unlawful for any person . . . [or] corporation. . . to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person . . . [or] corporation. . . unless the person . . . [or] corporation. . . is exempt. A.R.S. § 32-1151. ACDS admitted that it did not hold a contractor's license when it submitted its bid to the City, but argued that it had substantially complied with the ROC's licensing provisions, and therefore had not violated the statute. See City of Phoenix v.Super. Ct., 184 Ariz. 435, 909 P.2d 502 (App.1995). ¶ 5 The ROC conducted an administrative hearing. The ALJ concluded that ACDS had violated A.R.S. § 32-1151, and recommended that ACDS's contractor's license be suspended for a period of three months. The ROC adopted the ALJ's decision, and ACDS filed a complaint for judicial review of the decision in the superior court. ACDS also requested a stay of the ROC's order suspending its license for three months, which the trial court granted. ADS counterclaimed asserting that A.R.S. § 32-1123 mandates a one-year suspension of ACDS's license and requested that the trial court require such a suspension. ¶ 6 The superior court affirmed the ALJ's decision that ACDS had violated A.R.S. § 32-1151, and concluded that under A.R.S. § 32-1123.A, ACDS should not have been issued a contractor's license for a period of one year from the date of the bid. Because that time had already passed and ACDS's license had remained effective, the trial court ordered that the ROC rescind ACDS's license effective January 26, 2005, and directed the ROC not to reissue the license for a period of one year from that date. ACDS timely appealed the judgment. This court granted ACDS's request for a stay pending the outcome of the appeal. *500 DISCUSSION ¶ 7 On review of an administrative agency's decision pursuant to the Administrative Review Act, the superior court determines whether the administrative action was supported by substantial evidence or was contrary to the law, arbitrary and capricious, or an abuse of discretion. Siegel v. Ariz. St. Liq. Bd., 167 Ariz. 400, 401, 807 P.2d 1136, 1137 (App.1991). The trial court does not reweigh the evidence. Plowman v. Ariz. St. Liq. Bd., 152 Ariz. 331, 335, 732 P.2d 222, 226 (App.1986). On appeal, "we review the superior court's judgment to determine whether the record contains evidence to support the judgment." Smith v. Ariz. Long Term Care Sys., 207 Ariz. 217, 221, ¶ 19, 84 P.3d 482, 486 (App.2004)(citing Ethridge v. Ariz. St. Bd. of Nursing, 165 Ariz. 97, 100, 796 P.2d 899, 902 (App.1989)). We review de novo the superior court's decision "whether the administrative action was illegal, arbitrary, capricious or involved an abuse of discretion." Id. (citation omitted). We are free to reach our own legal conclusions if resolution of the case requires the interpretation of any law. Id. A. Substantial Compliance ¶ 8 ACDS first contends that the superior court erred in affirming the ALJ's decision that ACDS did not substantially comply with the statutory requirement that it be licensed before submitting a bid for contracting work to the City of Phoenix. This court, in City of Phoenix, 184 Ariz. at 438, 909 P.2d at 505, concluded that the doctrine of substantial compliance may apply to the statute at issue in this case, A.R.S. § 32-1151. Specifically, if the statute's purpose "to protect the public from unscrupulous, unqualified and financially irresponsible contractors" is satisfied, then substantial compliance suffices. Id. ¶ 9 Several factors must be considered in determining whether a contractor has substantially complied with the statutory requirements. The factors are: (1) whether the ROC's failure contributed to the contractor's noncompliance; (2) whether the contractor was financially responsible while its license was suspended or not yet issued; (3) whether the contractor knowingly ignored the registration requirements; (4) whether the contractor immediately remedied the statutory violation; and (5) whether the failure to comply with the statute prejudiced the party the statute seeks to protect. Id. (citing Aesthetic Prop. Maint., Inc. v. Capitol Indem., 183 Ariz. 74, 77, 900 P.2d 1210, 1213 (1995)). Aesthetic Property Maintenance further provides that knowingly ignoring the registration requirements is fatal to a claim of substantial compliance. 183 Ariz. at 78, 900 P.2d at 1214 ("Did the contractor knowingly ignore the registration requirements? If so, this is fatal to a claim of substantial compliance."); see also Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, 116, ¶ 10, 41 P.3d 651, 654 (App.2002) (citing Aesthetic Prop. Maint., 183 Ariz. at 78, 900 P.2d at 1214). ¶ 10 In City of Phoenix, the contractor possessed a Class A license, but had failed to obtain a Class B license because it had not been thought necessary. After the contractor had submitted a bid on a project for the City of Phoenix, the ROC issued a contrary opinion. 184 Ariz. at 438, 909 P.2d at 505. This court held that the contractor had "substantially complied" with the statute because the error was caused in part by the ROC, the contractor obtained a Class B license as soon as it discovered that it needed to do so, and the City was not prejudiced by the temporary failure to comply. Id. ¶ 11 Similarly, in Aesthetic Property Maintenance, our Supreme Court held that a contractor had substantially complied with the statute even though its license had been suspended by operation of law for failure to pay a renewal fee. The contractor's failure to timely pay the fee was caused, in part, by the ROC's failure to send the renewal notice to the correct address, even though the contractor had provided the ROC with its new address. Moreover, the contractor had paid the late fee and had the license reinstated as soon as it learned of the suspension. Furthermore, the contractor had remained financially responsible by keeping current its surety bond, workers' compensation insurance, liability insurance and financial documents. 183 Ariz. at 78, 900 P.2d at 1214. *501 ¶ 12 Unlike the contractors in Aesthetic Property Maintenance and City of Phoenix, in this case, the ALJ found that ACDS was aware of its need for a Class K-05 license (as evidenced by the fact that it had applied for one), but had knowingly ignored this requirement and failed to obtain the license before submitting its bid. ACDS contends that the facts do not support the conclusion that it "ignored" the licensing requirements because it had applied and qualified for a license but merely had not received the formal document showing issuance of the license. ACDS admits that it did not possess an actual license, yet knowing that it had not yet received the actual license, ACDS submitted a bid to the City of Phoenix.[1] There was sufficient evidence in the record to support the ALJ's and the superior court's conclusion that ACDS knew that it did not actually possess the required license when it submitted its bid to the City of Phoenix. ¶ 13 ACDS nevertheless contends that the ALJ and the superior court erred in considering only this one factor, rather than balancing all of the factors, in determining that ACDS did not substantially comply with the statute. But our Supreme Court clearly stated that a knowing violation of the licensing requirements is "fatal" to a claim of substantial compliance. Aesthetic Prop. Maint., 183 Ariz. at 78, 900 P.2d at 1214. We are bound by decisions of the Arizona Supreme Court. Myers v. Reeb, 190 Ariz. 341, 343, 947 P.2d 915, 917 (App.1997); McKay v. Indus. Comm'n, 103 Ariz. 191, 193, 438 P.2d 757, 759 (1968). Therefore, the superior court properly upheld the ALJ's decision that ACDS did not substantially comply with the licensing statutes. B. Exemption for "Requirements Contract" ¶ 14 ACDS contends that the superior court erred in overruling the ALJ's decision that the contract was a "requirements contract" with a potential aggregate net worth of less than $750 and thus subject to the exemption from the licensing requirement set forth in A.R.S. § 32-1121.A.14 that provides: A. This chapter shall not be construed to apply to: . . . 14) Any person other than a licensed contractor engaging in any work . . . for which the aggregate contract price . . . is less than seven hundred fifty dollars. The work or operations which are exempt under this paragraph shall be of a casual or minor nature. The ALJ concluded that although the City estimated that its annual expenditure on the contract would be $125,000, the price was not a term of the contract, which was a requirements contract at an hourly rate. The ALJ reasoned that "there exists the possibility, however small, that the City would not have any requirements, and would not, therefore, be obligated to pay." The ALJ thus was "unable to conclude . . . that the contract has an aggregate worth of more than $750.00." The ALJ therefore concluded that A.R.S. § 32-1123, requiring a one-year suspension of the license, did not apply, and instead ordered a three-month license suspension. ¶ 15 The superior court, however, concluded that the contract was estimated to be worth $375,000 over the course of its three-year duration and the contract was not "of a casual or minor nature." A.R.S. § 32-1121.A.14. Thus, the superior court concluded that the exemption did not apply. ACDS contends that the superior court erred in overruling the ALJ's finding that the contract did not have a value of more than $750. ¶ 16 As noted above, in reviewing an administrative agency's decision, the superior court must determine whether the administrative action was supported by substantial evidence or was contrary to the law, arbitrary and capricious, or an abuse of discretion. Siegel, 167 Ariz. at 401, 807 P.2d at 1137. The superior court correctly concluded that the ALJ's decision that the contract *502 did not have "an aggregate worth of more than $750.00" was not supported by substantial evidence. Although it was a requirements contract, the contract estimated that 1,250 hours would be required over the three-year term, and the record showed that in prior years (1996 to 2003) the services required by the City had fluctuated, ranging from $49,197 to more than $250,000 per year. Thus, the evidence was uncontradicted that well over $750 in services would be required and that the City expected to require approximately $375,000 in services over the three-year contract period. No evidence supported a conclusion that the City would require less than $750 in services under the contract. Additionally, the ALJ did not consider the portion of the statute providing that to be exempt, the work must be "of a casual or minor nature." A.R.S. § 32-1121.A.14. As the superior court concluded, a three-year contract with an expected value of $375,000 is not "of a casual or minor nature," even if it somehow turned out that the City did not require more than $750 in services. The superior court properly concluded that the ALJ abused his discretion in concluding that the exemption applied. C. Authority to Rescind License ¶ 17 The superior court concluded that the exemption for minor contracts with a value of less than $750 did not apply and that A.R.S. § 32-1123.A. therefore did apply, and entered an order directing the ROC not issue ACDS a license for one year from the date of the bid. Because the ROC had issued the license before discovering the violation, and because ACDS had obtained a stay of the three-month suspension ordered by the ROC, ACDS had not been subjected to any loss of its license to date. Thus, the superior court directed the ROC to "rescind the license issued to Arizona Commercial Diving Services and to not reissue the license for a period of one year from the date of this Judgment." ACDS contends that the ROC and superior court lack the authority to order that its license be rescinded. ¶ 18 Specifically, ACDS contends that the plain language of the statute provides that the penalty for bidding on a contract without a valid contractor's license is that the ROC "shall not issue the entity a license . . . for one year after the date of the bid." A.R.S. § 32-1123.A. Because the statute does not specifically provide that the ROC or the court may suspend or revoke an existing license, ACDS contends that no such authority exists. ¶ 19 In this case, the ROC violated the statute by issuing the license. The statute provides that the ROC "shall not" issue a contractor's license for a period of one year following the violation at issue, but the ROC erroneously issued the license after ACDS violated the law, although before the ROC was aware that ACDS violated the law. ¶ 20 The ROC has authority under A.R.S. § 32-1154 to suspend or revoke a contractor's license for violation of that section. The ALJ specifically concluded that by bidding on a contract without the proper license, ACDS violated A.R.S. §§ 32-1151,-1154.A.7, thus subjecting ACDS to the ROC's authority to suspend or revoke its license. A.R.S. § 32-1154.A.21 clearly allows the ROC to suspend or revoke a license based on "[s]ubsequent discovery of facts which if known at the time of issuance of a license . . . would have been grounds to deny the issuance . . . of a license." ¶ 21 Moreover, the clear intent of the legislature is to subject unlicensed contractors who bid on qualifying contracts to a one-year penalty period during which time they cannot obtain a license. A.R.S. § 32-1123.A. Thus, the ROC is authorized to suspend or to revoke ACDS's license and to disallow reinstatement of the license for a period of one year. Moreover, the superior court, in reviewing the ALJ's decision for an abuse of discretion or improper application of the law, was authorized to modify the ALJ's decision and state what the proper penalty for ACDS's violation should be. A.R.S. § 12-911.A.5 (2003). ¶ 22 The superior court did not exceed its authority in directing the ROC to rescind ADCS's license and not to reissue it for a period of one year. *503 D. Attorneys' Fees ¶ 23 ADS requests an award of reasonable attorneys' fees and costs incurred in this appeal. As the prevailing party on appeal, ADS is entitled to an award of costs. A.R.S. § 12-341. However, because ADS has provided no argument, or any citation to authority for its request for attorneys' fees and none is apparent, we deny the request. See Kelly v. NationsBanc Mortgage Corp., 199 Ariz. 284, 289, ¶ 26, 17 P.3d 790, 795 (App. 2001). CONCLUSION ¶ 24 For the foregoing reasons, we affirm the judgment. The stay issued by this court on April 14, 2005, is hereby lifted. ADS's request for attorneys' fees is denied, but ADS is directed to file a statement of its costs in accordance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. CONCURRING: ANN A. SCOTT TIMMER and SUSAN A. EHRLICH, Judges. NOTES [1] Moreover, the ALJ rejected as "not credible" Hankes' testimony that he had been advised and believed that the receipt for taking the written examination served as a "temporary" license. We defer to the ALJ's credibility determinations. Adams v. Indus. Comm'n, 147 Ariz. 418, 421, 710 P.2d 1073, 1076 (App.1985) (administrative law judge's assessment of the credibility of witnesses is generally binding upon the reviewing court.)

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1977 SANDRA WILLIAMS, Plaintiff - Appellant, v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:11-cv-01231-PJM) Submitted: January 23, 2014 Decided: February 19, 2014 Before SHEDD, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Sandra Williams, Appellant Pro Se. Robert Judah Baror, Linda Hitt Thatcher, THATCHER LAW FIRM, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sandra Williams appeals the district court’s order granting summary judgment to the Defendant in Williams’ employment discrimination action. We have reviewed the record and find no reversible error. ∗ Accordingly, we affirm the final judgment for the reasons stated by the district court at the hearing held on July 2, 2013. Williams v. Bd. of Educ. of Prince George’s Cnty., No. 8:11-cv-01231-PJM (D. Md. July 3, 2013). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED ∗ In addition to challenging the district court’s rejection of her claims on the merits, Williams also asserts that the district court’s order should be vacated because her counsel was ineffective. However, a litigant in a civil action has no constitutional or statutory right to effective assistance of counsel. Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986); see Pitts v. Shinseki, 700 F.3d 1279, 1284-86 (Fed. Cir. 2012) (collecting cases recognizing rule), cert. denied, 133 S. Ct. 2856 (2013). 2 

771 N.W.2d 762 (2009) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy O'Neil HOPKINS, a/k/a Eric Mosley, Defendant-Appellant. Docket No. 138655. COA No. 283610. Supreme Court of Michigan. September 11, 2009. Order On order of the Court, the application for leave to appeal the February 26, 2009 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.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1375 B & J ENTERPRISES, LTD, trading as Washington Talent Agency, Plaintiff – Appellant, v. KEN GIORDANO; ALBRECHT ENTERTAINMENT SERVICES, INCORPORATED, Defendants – Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Marvin J. Garbis, Senior District Judge. (8:06-cv-01235-MJG) Argued: March 24, 2009 Decided: May 18, 2009 Before MICHAEL, MOTZ, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Louis Fireison, LOUIS FIREISON & ASSOCIATES, PA, Bethesda, Maryland, for Appellant. William D. Day, GILL, SIPPEL & GALLAGHER, Rockville, Maryland, for Appellees. ON BRIEF: Vincent T. Lyon, Patricia H. Ley, LOUIS FIREISON & ASSOCIATES, PA, Bethesda, Maryland, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Plaintiff B & J Enterprises, Ltd, appeals from a summary judgment award in favor of defendants Ken Giordano and Albrecht Entertainment Services, Incorporated, with respect to B & J’s trademark infringement and cybersquatting claims. In its appeal, B & J contends that the district court erred in two respects: (1) by striking various letters and affidavits submitted by B & J on the summary judgment issue; and (2) by awarding summary judgment to the defendants and denying B & J’s cross-motion for such relief. As explained below, we agree with the district court and affirm. I. B & J operates a business that provides entertainment talent for events in the greater Washington, D.C. area (the relevant geographic area), using the name “Washington Talent Agency.” Although B & J had used this name since 1967, it did not seek registration of the “Washington Talent Agency” mark until July 2006, after the initiation of this lawsuit. 1 In 1 In July 2006, B & J filed an application to register “Washington Talent Agency” with the Patent and Trademark Office (the “PTO”). The PTO subsequently published the mark for opposition, and the defendants opposed B & J’s application, which remained pending during the district court proceedings. In this opinion, we use the terms “mark,” “service mark,” and “trademark” somewhat interchangeably, referring to a mark that (Continued) 2 January 2005, Albrecht, doing business as “USA Talent Agency,” and Giordano, Albrecht’s owner and chief executive officer, registered four separate domain names: “WashingtonTalentAgency.com,” “MarylandTalentAgency.com,” “VirginiaTalentAgency.com,” and “ColoradoTalentAgency.com.” 2 Each of these domain names is associated with a specific internet website, and each of the websites is a portal for Albrecht’s parent website, “USATalentAgency.com.” 3 Sometime after June 2005, B & J contacted the defendants, explained that B & J had been using the name “Washington Talent Agency” for almost forty years, informed the defendants that they were infringing on such use, and requested that such infringement activities cease. B & J also unsuccessfully sought to buy the is federally registered or otherwise protected under federal law. 2 A domain name is “any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.” 15 U.S.C. § 1127. 3 When a consumer accesses the website of “WashingtonTalentAgency.com,” limited information regarding the services offered by Albrecht in the greater Washington, D.C. area is made available. The website instructs such a consumer to “Click Here to Enter!” and provides a hyperlink to Albrecht’s “USATalentAgency.com” website, which contains more extensive information concerning Albrecht’s services. 3 domain name “WashingtonTalentAgency.com” from the defendants. When B & J’s proposals were rejected, this lawsuit followed. On May 15, 2006, B & J filed its complaint for injunctive and other relief in the District of Maryland, alleging two claims against the defendants: trademark infringement, under § 43 of the Lanham Act, 15 U.S.C. § 1125(a) (the “trademark claim”); and cybersquatting, pursuant to the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (the “cybersquatting claim”). Pertinent to both claims, B & J alleges that it has a valid and protectable trademark in the name “Washington Talent Agency,” and that the defendants’ use of the domain name “WashingtonTalentAgency.com” is likely to cause confusion among consumers. On the cybersquatting claim, B & J also alleges that the defendants acted in bad faith in securing the “WashingtonTalentAgency.com” domain name. On June 6, 2007, following more than six months of discovery proceedings, the parties filed cross-motions for summary judgment. In their submission, the defendants maintained that they were entitled to summary judgment, under Rule 56 of the Federal Rules of Civil Procedure, on both the trademark claim and the cybersquatting claim. They asserted that “Washington Talent Agency” was not entitled to trademark protection, because it was either a generic term or a descriptive term that had not acquired secondary meaning. On 4 the cybersquatting claim, the defendants asserted that B & J had failed to show either secondary meaning or bad faith. B & J, on the other hand, sought summary judgment on its own behalf, maintaining that there was no genuine issue of material fact and that it was entitled to prevail on its claims as a matter of law. On August 22, 2007, the district court heard argument on the cross-motions for summary judgment. At the hearing’s conclusion, as reflected in its Order, the court stated that it would award summary judgment to the defendants and deny B & J’s cross-request for such relief. See B & J Enters., Ltd v. Giordano, No. 8:06-cv-01235 (D. Md. Aug. 22, 2007) (the “Summary Judgment Order”). 4 The court deferred entering a final judgment, however, authorizing B & J to seek reconsideration of the Summary Judgment Order. Such reconsideration was subject to multiple conditions: that B & J request reconsideration by October 22, 2007; that B & J pay part of the defendants’ legal fees; and that B & J “submit evidence adequate to establish the existence of a genuine issue of material fact preventing summary judgment for Defendants.” Id. at 1. 4 The Summary Judgment Order is found at J.A. 242-43. (Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.) 5  On October 17, 2007, B & J moved for reconsideration of the Summary Judgment Order. In support thereof, it submitted seven letters, containing statements and opinions concerning B & J and its business reputation in the greater Washington, D.C. area (the “Letters”). In response, the defendants moved to strike the Letters because they were unsworn and unauthenticated, and thus could not be considered on the summary judgment issue. On December 6, 2007, the district court granted the defendants’ motion to strike, directing that the Letters “shall not be part of the record in regard to Plaintiff’s pending Motion for Reconsideration.” B & J Enters., Ltd v. Giordano, No. 8:06-cv-01235, slip op. at 3 (D. Md. Dec. 6, 2007). In so ruling, the court reflected frustration with B & J and its counsel, observing that it was “unfortunate” that, “in view of the history of this case in which Plaintiff’s counsel have been given one final chance to present evidence to avoid summary judgment, they would not have taken the minimal step of having the authors of the letters add thereto an endorsement signed under penalties of perjury.” Id. at 2. Although the court recognized that “it is highly unlikely that the resolution of the instant motion will turn upon the presence or absence” of the Letters, it declined to consider them for summary judgment purposes. Id. at 2-3. 6  On December 20, 2007, two months after the reconsideration deadline had expired, B & J supplemented its reconsideration request, filing six affidavits attesting to the authenticity of the Letters (the “Affidavits”). On March 11, 2008, the district court filed an opinion denying reconsideration, striking the Affidavits, and explaining its views on the summary judgment issue. See B & J Enters., Ltd v. Giordano, No. 8:06-cv-01235 (D. Md. Mar. 11, 2008) (the “Reconsideration Opinion”). 5 In particular, the court explained that it had “excluded from the summary judgment record certain ‘evidence’” — namely the Affidavits filed on December 20, 2007 — because they were “not submitted by Plaintiff’s counsel until well after the motion filing deadline and, indeed, even after the instant motion had been briefed.” Id. at 11. The court also stated that, even if it had considered the Affidavits, its disposition of the summary judgment issue would be unaffected. In awarding summary judgment to the defendants, the district court concluded that the name “Washington Talent Agency” was a geographically descriptive term, and thus only protected from use if it had acquired a secondary meaning. As the court explained, if the name “Washington Talent Agency” had acquired secondary meaning — thus providing B & J a protectable 5 The Reconsideration Opinion is found at J.A. 287-99. 7 trademark — “[t]here is no doubt . . . Defendants would have infringed the trademark, would have to cease use of the domain name ‘WashintonTalentAgency.com,’ and possibly be subject to liability under the [cybersquatting statute].” Reconsideration Opinion 4-5. The court emphasized, however, that “there is insufficient evidence from which a reasonable fact finder could find that the words ‘Washington talent agency’ had acquired a secondary meaning so as to entitle [B & J] to a protectable trademark for the name Washington Talent Agency.” Id. at 11. Having decided that B & J did not possess a trademark in the name “Washington Talent Agency,” the court rejected both of B & J’s claims. The court thus denied the reconsideration request, awarded summary judgment to the defendants, and denied such relief to B & J. On March 11, 2008, B & J filed its timely notice of appeal in this case. We possess jurisdiction pursuant to 28 U.S.C. § 1291. II. In seeking relief on appeal, B & J maintains that the district court erred in two respects. First, B & J asserts that the court erred in excluding the Letters and Affidavits from consideration on the summary judgment issue. Second, B & J contends that, in any event, the court erred in awarding summary 8 judgment to the defendants and in failing to award summary judgment to B & J. We assess these contentions in turn. A. B & J first challenges the district court’s decision to exclude the Letters and Affidavits from the summary judgment record. On December 6, 2007, the court struck the Letters, thus declining to consider them in the summary judgment proceedings. In its Reconsideration Opinion, the court also excluded the Affidavits, explaining that they were “not submitted by Plaintiff’s counsel until well after the motion filing deadline and, indeed, even after the instant motion had been briefed.” Reconsideration Opinion 11. We review for abuse of discretion a trial court’s exclusion of evidence from a summary judgment record. See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119, 126 (4th Cir. 1995). Although a district court possesses broad discretion on whether to consider a tardy filing of summary judgment materials, see Fed. R. Civ. P. 6, a late filing should be authorized “only if cause or excusable neglect has been shown by the party failing to comply with the time provisions,” Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993). Put simply, the district court did not abuse its discretion in excluding the Letters and Affidavits from the summary judgment record. First, B & J was not entitled to have the 9 Letters considered on the summary judgment issue because they were unsworn and unauthenticated. In order to be considered on summary judgment, “‘documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).’” Orsi, 999 F.2d at 92 (quoting 10A Charles A. Wright et al., Federal Practice and Procedure § 2722, at 58-60 (1983 & Supp. 1993)). Second, the court was within its discretion in striking the Affidavits. The Affidavits were untimely — submitted two months after the court’s deadline, when B & J’s reconsideration request was already ripe for disposition. Furthermore, the Affidavits were presented without any explanation for the delay or an assertion of excusable neglect. In such circumstances, we must reject B & J’s contention that the court erred in striking the Letters and Affidavits. B. We next assess B & J’s second contention, that the district court erred — even in the absence of the Letters and Affidavits — in making the summary judgment rulings. In a trademark dispute, we review de novo a district court’s award of summary judgment. Carefirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir. 2006). Such an award is only appropriate when the summary judgment record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 10 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating a summary judgment issue, the evidence of record must be viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A mere scintilla of proof, however, will not bar a summary judgment award; the question is “not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it.” Id. at 251 (internal quotation marks omitted). Where “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case, with respect to which [it] has the burden of proof,” the moving party is entitled to summary judgment. Celotex Corp., 477 U.S. at 323. 6 1. In this proceeding, B & J seeks relief on two claims against the defendants: the trademark claim and the cybersquatting claim. Section 43(a) of the Lanham Act protects an unregistered mark from trademark infringement. See 15 U.S.C. § 1125(a) (creating action in favor of person damaged, or likely 6 Cross-motions for summary judgment are reviewed under the same standard, and we therefore consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks omitted). 11 to be damaged, by the use in commerce of “any word, term, name, symbol, or device, or any combination thereof” which “is likely to cause confusion”). 7 In order to maintain a cause of action for trademark infringement, a plaintiff must show (1) that “it has a valid, protectible trademark”; and (2) “that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers.” Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 930 (4th Cir. 1995); see also 15 U.S.C. § 1125(a). Additionally, to establish a prima facie case of cybersquatting, a plaintiff must prove (1) that it possesses a valid, protectable trademark; (2) that the defendant registered, trafficked in, or used a domain name that is “identical or confusingly similar” to the plaintiff’s trademark; and (3) that the defendant acted “with the bad faith intent to profit from the good will associated with the trademark.” Retail Servs. Inc. v. Freebies Publ’g, 364 F.3d 535, 549 (4th Cir. 2004) (internal quotation marks omitted). Thus, in order to prevail on either a trademark or cybersquatting claim, a plaintiff must “first and most 7 In contrast to an unregistered mark, a federally registered trademark is protected from infringement under § 32 of the Lanham Act. See 15 U.S.C. § 1114(1). However, only a mark characterized as “distinctive” may be federally registered as a trademark. See id. § 1052(f). 12 fundamentally prove that it has a valid and protectable mark.” U.S. Search, LLC v. US Search.com Inc., 300 F.3d 517, 523 (4th Cir. 2002) (internal quotation marks omitted); see also Retail Servs. Inc., 364 F.3d at 549 (explaining that “a prerequisite for bringing a [cybersquatting claim] is establishing the existence of a valid trademark”). This element — a valid and protectable mark — is therefore essential to each of B & J’s claims. If B & J failed to make a sufficient showing on this element, the summary judgment award in favor of the defendants was appropriate. See Celotex Corp., 477 U.S. at 323. Whether a mark is protected under federal law depends, first of all, upon its classification — either as “generic,” “descriptive,” “suggestive,” or “arbitrary/fanciful.” See U.S. Search, LLC, 300 F.3d at 523. Accordingly, the degree of protection accorded to a mark hinges on the extent of its distinctiveness. See id. In this case, the Reconsideration Opinion concluded that the name “Washington Talent Agency” should be classified as a “descriptive mark.” And, the parties do not contest this point on appeal. As a descriptive mark, however, the name “Washington Talent Agency” is eligible for legal protection only if it has been shown to have acquired a “secondary meaning” in the eyes of the public. See id. Secondary meaning is generally accepted as “the consuming public’s understanding that the mark, when used in context, 13 refers, not to what the descriptive word ordinarily describes, but to the particular business that the mark is meant to identify.” Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 125 (4th Cir. 1990). Furthermore, a trademark infringement plaintiff must show that its descriptive mark acquired such secondary meaning (1) in the defendant’s trade area, and (2) prior to the time the defendant entered the market. See id. at 125-26. In our Perini decision, we identified and spelled out six factors that are relevant to the resolution of the secondary meaning issue. See 915 F.2d at 125. Each of these factors should be assessed in a secondary meaning analysis: (1) plaintiff’s advertising expenditures; (2) consumer studies linking the mark to a source; (3) the plaintiff’s record of sales success; (4) unsolicited media coverage of the plaintiff’s business; (5) attempts to plagiarize the mark; and (6) the length and exclusivity of the plaintiff’s use of the mark. See id.; see also U.S. Search, LLC, 300 F.3d at 525. In Perini, Judge Murnaghan explained that none of the six factors is necessarily determinative of secondary meaning, and all of them need not be favorable for the plaintiff to prevail. See 915 F.2d at 125-26. A trademark plaintiff, seeking to establish secondary meaning, faces a “rigorous evidentiary standard.” U.S. Search, 14 LLC, 300 F.3d at 525. And, although a secondary meaning issue is generally for the trier of fact, when the plaintiff’s evidence is sufficiently lacking, a trial court is entitled to conclude on summary judgment that its mark lacks secondary meaning. See id. at 525-26. In order to so rule, however, the court must view the facts in the light most favorable to the nonmoving party, and then reasonably conclude that a jury could not find for the plaintiff. See id. at 522, 525-26. As we have explained, if a plaintiff “cannot clear the [secondary meaning] hurdle; that is, it cannot show that its mark . . . is entitled to service mark protection,” an award of summary judgment to the defendant is warranted. See id. at 523. 2. In order to establish secondary meaning in the name “Washington Talent Agency,” B & J was obliged to show that “a substantial number of present or prospective customers,” when hearing or reading of the “Washington Talent Agency,” would associate the name specifically with B & J’s business. See Perini, 915 F.2d at 125 (internal quotation marks omitted). B & J was also obliged to show that such secondary meaning existed in Albrecht’s trade area — the greater Washington, D.C. area — prior to January 2005 (when Albrecht entered the market). In evaluating the secondary meaning issue, the Reconsideration Opinion assessed each of the six Perini factors, analyzed the 15 relevant evidence, and concluded that “[t]he bottom line is that on the record, there is insufficient evidence from which a reasonable fact finder could find that the words ‘Washington talent agency’ had acquired a secondary meaning so as to entitle Plaintiff to a protectable trademark for the name Washington Talent Agency.” Reconsideration Opinion 11. Of the six Perini factors, the first (plaintiff’s advertising expenditures) and the last (the length and exclusivity of the plaintiff’s use of the mark) appear to be most supportive of B & J’s secondary meaning contention. We will thus first separately evaluate those Perini factors, and then turn to the other four. Because no single factor is determinative, after considering each factor separately, we will assess whether — even evaluated cumulatively — B & J’s evidence is sufficient to satisfy the secondary meaning requirement. a. On the first Perini factor (plaintiff’s advertising expenditures), the Reconsideration Opinion related that B & J had presented the following evidence: • “[T]ax returns for 17 years with deductions for advertising”; 8 8 B & J presented its income tax returns for most of the years between 1970 and 2004. Those returns reflected annual deductions for advertising of as much as $67,000. In the five years between 2000 and 2004, such advertising deductions were in the sixty-thousand-dollar range. 16  • “Profit and Loss reports for 9 years with line items for advertising expenditures”; • “16 proofs of advertisements”; and • “A letter from the Advertising Manager of The Washingtonian stating that Washington Talent Agency has run an advertisement in each issue of the Magazine since 2000.” Reconsideration Opinion 7. The district court deemed B & J’s showing on advertising to be insufficient, however, explaining that the evidence was “by no means adequate to establish significant expenditures advertising the trademark ‘Washington Talent Agency.’” Id. In reaching this conclusion on the advertising factor, the district court observed that the evidence produced by B & J showed that its advertising expenditures had been made on “business promotions of some kind,” rather than “for advertising that would tend to promote a secondary meaning” in the name “Washington Talent Agency.” Reconsideration Opinion 7. The court explained this observation further, stating that, even if it assumed “all of these expenditures were devoted to advertisements using the name ‘Washington Talent Agency,’” B & J had failed to show that its advertising expenditures were effective with consumers in the greater Washington, D.C. area, causing them to associate “Washington Talent Agency” with B & J. Id. at 8. Notably, the court concluded that, although B & J had 17 presented some advertising proofs as evidence — alleging that such advertising had appeared in various print media over the years — it failed to show the locations and dates of any publications, and had otherwise failed to present any actual advertisements. Id. 9 We must recognize, in the context of this issue, that B & J made substantial expenditures of advertising funds over a period of several years. Nevertheless, we also agree with the district court that large advertising or promotional expenditures, while relevant to the issue of secondary meaning, are not dispositive. See Am. Footwear Corp. v. Gen. Footwear Co., 609 F.2d 655, 663 (2d Cir. 1979); see also E.T. Browne Drug Co. v. Cococare Prods., Inc., 538 F.3d 185, 199 (3d Cir. 2008) (describing first factor as “extent of . . . advertising leading to buyer association”). Absent a showing that such expenditures “were effective in causing the relevant group of consumers to associate the mark with itself,” secondary meaning cannot be established. FM 103.1, Inc. v. Universal Broad. of N.Y., Inc., 9 B & J introduced evidence of only one published advertisement. It was a four-line, text-only classified advertisement (approximately three inches wide and an inch high) in The Washingtonian magazine that had appeared on a monthly basis for about five years. The district court concluded that this advertisement, viewed in the context of the surrounding ads, had only used the name “Washington Talent Agency” in a generic — rather than distinct — form. 18 929 F. Supp. 187, 196 (D.N.J. 1996); see also Dick’s Sporting Goods, Inc. v. Dick’s Clothing & Sporting Goods, Inc., No. 98- 1653, 1999 WL 639165, at *7 (4th Cir. Aug. 20, 1999) (unpublished) (citing FM 103.1, Inc., 929 F. Supp. 187). On this record, B & J failed to present the context of its advertising expenditures, and, absent such a showing, a jury would make a leap of faith to conclude that the name “Washington Talent Agency” had gained secondary meaning in the relevant geographical area. Notably, B & J’s advertising evidence, viewed in the proper light, shows only that its advertising funds were expended generally; they are not shown as advertising the name “Washington Talent Agency” in the relevant area. There was no evidence of the quality, type, location, or duration of such advertising. Put simply, B & J should have shown that the advertising occurred in the greater Washington D.C. area — a connection essential to satisfying the first Perini factor. See Perini, 915 F.2d at 126 (concluding court erred by failing “to connect the plaintiff’s nationwide statistics to the defendant’s trade area”). 10 Thus, although advertising is potentially 10 Notably, the advertisement proofs fail to remedy the evidentiary deficiency on the first Perini factor. With no showing of location, duration, and frequency of advertisements, we are unable to conclude that customers in the greater (Continued) 19 B & J’s best showing on a Perini factor, we are unable to conclude that B & J has satisfied it. b. With respect to B & J’s other potentially strong Perini factor — the sixth (the length and exclusivity of the plaintiff’s use of the mark) — the name “Washington Talent Agency” had been used in B & J’s business for almost forty years. The district court nevertheless concluded that such a period of use was alone insufficient to warrant a ruling in favor of B & J, because it had failed to show the exclusivity of such use in the relevant market. See Reconsideration Opinion 10-11. We agree — evidence of length of use, absent a showing of exclusivity, is inadequate to satisfy the sixth Perini factor. See U.S. Search, LCC, 300 F.3d at 526 n.12 (“Even assuming [plaintiff] has used ‘U.S. Search’ continuously since 1982 . . . length of time alone is insufficient to establish secondary meaning.”); see also 815 Tonawanda Street Corp. v. Fay’s Drug Co., 842 F.2d 643, 648 (2d Cir. 1988) (concluding no secondary meaning despite evidence of “long and exclusive use” of mark). Washington, D.C. area would associate the name “Washington Talent Agency” with B & J. 20  c. With respect to the other four Perini factors, the Reconsideration Opinion examined each of them and concluded that B & J’s evidence was inadequate. Under our precedent, a particular factor is not satisfied when some evidence is produced, if that evidence is minimal or limited. See U.S. Search, LLC, 300 F.3d at 526 (concluding Perini factors one and three were not satisfied despite evidence of minimal advertising expenditures and limited sales success); see also Laureyssens v. Idea Group, Inc., 964 F.2d 131, 136 (2d Cir. 1992) (concluding no secondary meaning in light of weak sales, low advertising expenditures and promotions, minimal unsolicited media coverage, and brief period of exclusive use). Importantly, with respect to the second Perini factor (consumer studies linking the mark to a source), there was a notable absence of any such studies linking the name “Washington Talent Agency” to B & J. The absence of those studies is striking, because such evidence is “generally thought to be the most direct and persuasive way of establishing secondary meaning.” U.S. Search, LLC, 300 F.3d at 526 n.13. As a result, B & J failed on the second Perini factor. We agree with the Reconsideration Opinion that the third Perini factor (the plaintiff’s record of sales success) was not satisfied because the supporting evidence was incomplete. 21 Although B & J presented some evidence concerning its sales history, it did not show sales success, if any, in the greater Washington, D.C. area. See Dick’s Sporting Goods, Inc., 1999 WL 639165, at *7 (comparing plaintiff’s gross sales to market’s total sales volume). In disposing of the fourth Perini factor (unsolicited media coverage of the plaintiff’s business), the Reconsideration Opinion characterized it as “[q]uite telling[]” that, after almost forty years, B & J had forecast evidence of only one instance of unsolicited media coverage, a reference in an article in a high school newspaper. Reconsideration Opinion 9- 10. Such media exposure was thus “an ‘isolated incident’ from which no reasonable jury could find ‘widespread recognition in the minds of the consuming public, as alleged.’” Id. at 10 (quoting Dick’s Sporting Goods, Inc., 1999 WL 639165, at *8). Finally, on the fifth Perini factor (attempts to plagiarize the mark), B & J’s President acknowledged that he was unaware of any infringement or plagiarism prior to the defendants’ activities. See id. We also agree with these assessments. d. In making a cumulative de novo assessment of the Perini factors — again in the light most favorable to B & J — the evidence shows that B & J used the name “Washington Talent Agency” in the greater Washington, D.C. area for almost forty 22 years, and that it expended substantial money on advertising. Although such evidence is relevant to establishing secondary meaning, it is insufficient to satisfy B & J’s burden in this case. According every favorable inference to B & J on the Perini factors, it has nevertheless failed on the crucial question: whether “a substantial number of present or prospective customers,” when hearing or reading of the “Washington Talent Agency,” would associate the name specifically with B & J’s business. Perini, 915 F.2d at 125 (internal quotation marks omitted); see also Anderson, 477 U.S. at 251 (requiring more than a scintilla of proof to preclude award of summary judgment); U.S. Search, LCC, 300 F.3d at 526 (explaining that despite evidence of advertising expenditures and sales success, summary judgment was appropriate). 11 Because B & J failed to establish secondary meaning — an essential element on which it has the burden of proof — the court properly awarded summary judgment to the defendants on each of B & J’s 11 B & J’s final contention, that the district court should have accorded evidentiary weight to the PTO’s publication of the “Washington Talent Agency” mark for opposition, see supra note 1, is also without merit. Although the PTO’s issuance of a certificate of registration might provide a registrant with, inter alia, prima facie evidence of the validity of a mark, see U.S. Search, LCC, 300 F.3d at 524, B & J has provided no support for the legal proposition that a PTO publication is entitled to similar weight. 23 claims, and also properly denied B & J’s summary judgment request. III. Pursuant to the foregoing, we affirm the judgment of the district court. AFFIRMED 24 

537 U.S. 1099 PONDEROSA DAIRY ET AL.v.LYONS, SECRETARY, CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, ET AL. No. 01-1018. Supreme Court of United States. January 10, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 259 F.3d 1148.

598 F.3d 40 (2010) UNITED STATES of America, Appellee, v. Troy CULBERTSON, Defendant-Appellant.[*] Docket No. 09-0485-cr. United States Court of Appeals, Second Circuit. Submitted: October 7, 2009. Decided: March 10, 2010. *41 Troy Culbertson, Brooklyn, NY, pro se. Stephen J. Meyer, Assistant United States Attorney (Benton J. Campbell, United States Attorney), United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for Appellee. Before: MINER, CABRANES, Circuit Judges, and RAKOFF,[**] District Judge. MINER, Circuit Judge: Defendant-appellant Troy Culbertson ("Culbertson" or "defendant-appellant"), charged in a superseding indictment with various narcotics offenses, moves this Court pro se for leave to proceed in forma pauperis and for appointment of counsel to pursue his interlocutory appeal from an order of the United States District Court for the Eastern District of New York (Johnson, J.). By that order, the district court denied Culbertson's motions: for dismissal of the indictment for violation of the right to a speedy trial under the Speedy Trial Act of 1974, as amended, 18 U.S.C. § 3161 et seq. ("Speedy Trial Act"); for appointment of new counsel; and for a psychiatric evaluation. The appealability of an order denying defendant's motion seeking appointment of new counsel and of an order denying a psychiatric examination are questions of first impression in our Court. For the reasons given below, we dismiss the appeal nostra sponte for lack of appellate jurisdiction and deny the motions addressed to this Court as moot. BACKGROUND Culbertson was arrested by agents of the United States Bureau of Immigration and Customs Enforcement ("ICE") on January 10, 2008, at approximately 1:30 p.m. in the lobby of Terminal 4 of the JFK Airport in New York City. The occasion of his arrest was his meeting with Patricia Lancaster ("Lancaster"), who was then known to be carrying controlled substances consisting of heroin and cocaine in her various items of luggage. In a complaint filed later that day by ICE Special Agent John Lattuca, Lancaster and Culbertson were charged with conspiracy to import into the United States 100 grams or more of a substance containing heroin and five kilograms or more of a substance containing cocaine, all in violation of 21 U.S.C. § 952(a). According to the complaint, *42 Culbertson was advised of his Miranda rights following his arrest and thereafter "stated, in sum and substance, that he was aware that LANCASTER had traveled from Trinidad to the United States transporting narcotics, and that he had introduced LANCASTER to the two individuals with whom LANCASTER agreed to transport narcotics into the United States." The complaint included the following statement by Agent Lattuca: "Because the purpose of this Complaint is to state only probable cause to arrest, I have not described all the relevant facts and circumstances of which I am aware." On the day of his arrest, an order of detention was issued for Culbertson by Magistrate Judge Marilyn D. Go, and, on January 18, 2008, Culbertson appeared before Magistrate Judge Ramon E. Reyes, Jr. for further proceedings. At that time, Judge Reyes relieved Federal Defender Mildred Whalen as counsel for Culbertson and appointed CJA panel member John F. Kaley to represent Culbertson. At a status conference hearing held before then-Magistrate Judge Kiyo A. Matsumoto on February 6, 2008, Mr. Kaley was relieved as counsel at Culbertson's request, and CJA panel member Julie Clark was appointed to represent Culbertson. The occasion for the substitution was Mr. Kaley's statement to the court that Culbertson had "a different plan and strategy [from that proposed by Kaley] and said he would like a new lawyer." On the same day, with new counsel Ms. Clark present, Culbertson applied to exclude the period from February 6, 2008, until March 7, 2008, from the Speedy Trial Act computation to allow for the conduct of plea negotiations. Judge Matsumoto granted the application, ordered the exclusion and directed that an indictment be filed at the end of the excluded period. A superseding indictment was filed as directed on March 7, 2008, and named Culbertson and four others as defendants. Culbertson was charged in four of the seven counts of the indictment. In Count One, he was charged, along with David Simpson, Sheldon Holder and Patricia Lancaster, with conspiracy to import heroin and cocaine, in violation of 21 U.S.C. § 952(a). In Count Two, he was charged, along with Holder and Lancaster, with conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. Together with Holder and Lancaster, Culbertson was charged in Count Five with importation of heroin and cocaine, in violation of 21 U.S.C. § 952(a), and in Count Seven, which also named Holder as a defendant, with attempt to possess heroin and cocaine, in violation of 21 U.S.C. § 846. On March 20, 2008, Culbertson was arraigned on the superseding indictment before Magistrate Judge Reyes, and a plea of not guilty was entered on his behalf. At that time, a status conference was set for March 29, 2008, before United States District Judge Sterling Johnson, Jr. On March 28, the district court set a date for the making of motions by defendants and for responses by the government, excluded the period of March 28, 2008, through May 15, 2008, for speedy trial computation purposes, and continued the case for a further status conference to May 15, 2008, as to various defendants including Culbertson. By letter dated March 31, 2008, Attorney Clark notified Culbertson that she would not file a motion he had prepared "because it is frivolous" and that she would be seeking removal as his counsel for "abusive behavior during several of our attorney-client meetings." Culbertson filed a motion pro se to dismiss the indictment on April 3, 2008. The gravamen of his motion was that the government *43 failed to properly and timely indict him. His claim was that he was not named in the original indictment and that his superseding indictment was therefore not appropriate. However, as the government noted, and as the district court explained in its Memorandum and Order filed on May 23, 2008, the superseding indictment was the initial indictment as to him, because it was the first and only indictment in which he was named. As far as timeliness, Culbertson was in fact indicted within the thirty-day period after arrest as required by the Speedy Trial Act. See 18 U.S.C. § 3161(b). He was arrested on January 10, 2008, and on February 6, 2008, the magistrate judge ordered the exclusion of time until March 7, 2008, the date the indictment was in fact filed. Accordingly, for Speedy Trial Act purposes, only twenty-eight days passed between arrest and indictment. In view of the foregoing, the court also rejected Culbertson's claim that the absence of an original indictment caused him to have insufficient notice of the crimes charged. At a conference hearing held before Judge Johnson on April 4, 2008, the court granted the application of Attorney Clark to be relieved as counsel, appointed CJA panel member Allen Lashley as counsel for Culbertson, directed Attorney Clark to remain as counsel until new counsel was in place, and adjourned the proceedings until April 10, 2008. On that date, Culbertson appeared before Judge Johnson with attorneys Lashley and Clark. Clark reported that all materials had been turned over to Lashley, and the court finally relieved her as counsel. The court recognized that new counsel needed adequate time to review the case and scheduled a status conference for all defendants for May 15, 2008. The court's minutes for May 15, 2008, take note of the denial of Culbertson's pro se motion and include the following: 2nd call for Defendant Troy Culbertson.... Defense counsel [Lashley] indicates defendant has fired counsel because... he will not file a motion to dismiss indictment.... Court will not relieve counsel. Defendant will proceed pro se if he so wishes. Counsel will remain as standby to assist and advise.... Govt's request for competency evaluation of defendant is DENIED. A further status conference was scheduled for June 27, 2008. By motions filed on June 12, 2008, Culbertson sought "dismissal of indictment,... appointment of counsel [and] determination of medical competency to stand trial." With respect to his motion to dismiss the indictment, Culbertson once again advanced the argument that he was not indicted within thirty days of his arrest, contending, inter alia, that he was "tricked into waiving constitutional rights." In support of his Speedy Trial Act violation argument, Culbertson cited to Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), and United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir.2000). In seeking appointment of new counsel, Culbertson alleged that he "does not want to proceed pro se and never did." As to his previous counsel, Culbertson asserted that "Mrs. Walen (sic) had to resign for a conflict of interest, Mr. Kaley wanted me to waive my indictment and he was dismissed and Ms. Clark would not file a motion." The moving papers included no allegations regarding Mr. Lashley. In support of his motion for psychiatric evaluation, Culbertson asserted that he "was receiving a disability check for the past 7 yrs. approx." and "does not know what his mental disease or defect is." In this regard, he noted that he "spent 18 yrs. in state prison from 18 yrs. old." In a letter dated July 11, 2008, responding to Culbertson's motion, the government *44 observed that the district court had previously ruled on the same Speedy Trial Act claim. The government again pointed out that Culbertson was properly indicted within thirty days of his arrest, taking into account the time excluded by the Speedy Trial Act pursuant to his agreement for the exclusion of time in an effort to enable the parties to resolve the charges against Culbertson by a plea bargain. The government argued that Zedner, cited by Culbertson, was inapposite because the Supreme Court there held that a "waiver `for all time' was ineffective" under the provisions of the Speedy Trial Act and no such waiver occurred in the case at bar. Ramirez-Cortez, also cited by Culbertson, was also characterized as inapposite by the government because there the Court concluded that the magistrate judge failed to make the findings necessary to exclude delay while, here, the magistrate judge determined that the interests of justice would be served by excluding time and would outweigh the best interests of both the public and Culbertson. That determination was based on the magistrate judge's understanding that plea negotiations were ongoing and that the parties would need time to prepare for trial if the negotiations were not successful. The government's letter stated that it "takes no position as to appointment of counsel or as to the defendant's request for a psychiatric evaluation." In a Memorandum and Order filed on September 29, 2008, the district court denied all three of Culbertson's pro se motions. The court reiterated its determination that the claim of speedy trial violation was without merit in light of Culbertson's consent to a thirty-day exclusion of time to allow for plea negotiations and a finding that the interests of justice would be served thereby. Because Culbertson was arrested on January 10, 2008, and the agreed upon exclusion commenced on February 6, 2008, twenty-seven days after the arrest, the thirty-day period did not expire until March 7, 2008, the date on which Culbertson was indicted. With regard to appointment of new counsel, the court observed that an indigent person facing criminal charges cannot be afforded counsel of his choice solely because he is dissatisfied with court-appointed counsel. Referring to its "broad discretion" in such matters, the court determined that Culbertson would proceed pro se with Mr. Lashley to serve in an advisory capacity. In rejecting the motion for a psychiatric evaluation, the court found that Culbertson "appears lucid, rational, and able to comprehend the events of each proceeding." Because there was no factual showing of probable cause for a psychiatric examination of Culbertson, the court concluded that such an examination was not warranted. In an undated letter received in this Court on January 22, 2009, Culbertson stated that he was "writing in regards to my Interlocutory Appeal I filed in this court about or around November or Dec. of 08." In the letter, Culbertson requested "a copy of the Docket Entries" and states that he had "filed an Interlocutory [Appeal] on the denial of my motion to dismiss the indictment ... in the district court." By letter dated January 30, 2009, the Clerk of this Court transmitted Culbertson's letter to the district court, designating it as a Notice of Appeal "mistakenly sent to the Court of Appeals." The district court received Culbertson's letter on February 5, 2009, and deemed it filed as an Interlocutory Notice of Appeal on January 22, 2009. ANALYSIS I. Timeliness of the Notice of Appeal A defendant's notice of appeal in a criminal case must be filed within ten days *45 after the entry of the order being appealed. Fed. R.App. P. 4(b)(1)(A)(i) (effective through Dec. 1, 2009). However, the district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal for a period not to exceed thirty days "from the expiration of the time otherwise prescribed by this Rule 4(b)." Fed. R.App. P. 4(b)(4). In addition, this Court has directed district courts to treat a notice of appeal filed after the ten-day deadline as a request for an extension if it was filed within the additional thirty-day period for requesting an extension. See United States v. Batista, 22 F.3d 492, 493 (2d Cir.1994) (per curiam). It is unclear in the present case when Culbertson filed his notice of appeal, given the indication in his January 2009 letter that he filed it in November or December of 2008. However, we have held that Rule 4(b) is not jurisdictional, see United States v. Frias, 521 F.3d 229, 234 (2d Cir.2008), and, given that Culbertson's appeal must be dismissed in any event, we decline to inquire further into the timeliness of the notice of appeal. II. The Rule of Finality The rule of finality is embodied in 28 U.S.C. § 1291, which provides that "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States." (emphasis supplied). A final order is said to "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (internal quotation marks omitted). There are limited exceptions to the rule of finality. Pursuant to 28 U.S.C. § 1292(a), courts of appeals are afforded jurisdiction over certain interlocutory orders pertaining to injunctions, receivers and admiralty matters. Discretionary jurisdiction is conferred upon courts of appeals, pursuant to 28 U.S.C. § 1292(b), to consider interlocutory orders where the district judge is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." In multi-claim or multi-party actions, Federal Rule of Civil Procedure 54(b) permits appeals from partial final judgments where the district court has "direct[ed] entry of a final judgment as to one or more, but fewer than all, claims or parties" upon the "express[ ] determin[ation] that there is no just reason for delay." See, e.g., United States v. Stanley, 483 U.S. 669, 673, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). A judicially created exception to the rule of finality was put forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). There, the "collateral order doctrine" was established to permit appeals from a limited class of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action," and "too important" and "too independent" of the cause of action to require entry of final judgment as a pre-condition. Id. at 546, 69 S.Ct. 1221. The Supreme Court later elucidated the collateral order doctrine by setting forth the three separate conditions required for its application: the order from which the appeal is sought must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454; see also Mohawk Indus., Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 605, ___ L.Ed.2d ___ (2009) (reviewing these three conditions in holding that disclosure *46 orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine). The "[Supreme] Court has long held that the policy of Congress embodied in [28 U.S.C. § 1291] is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation, and that this policy is at its strongest in the field of criminal law." United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam). This is so because "undue litigiousness and leaden-footed administration of justice," the common consequences of piecemeal appellate review, are "particularly damaging to the conduct of criminal cases." Di Bella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). In this regard, the Court has noted that "[p]romptness in bringing a criminal case to trial has become increasingly important as crime has increased, court dockets have swelled, and detention facilities have become overcrowded." Flanagan v. United States, 465 U.S. 259, 264, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Accordingly, the Supreme Court has applied the collateral order doctrine to permit interlocutory appeals in criminal cases "only when observance of [the rule of finality] would practically defeat the right to any review at all." Cobbledick v. United States, 309 U.S. 323, 324-25, 60 S.Ct. 540, 84 L.Ed. 783 (1940). To date, the Court has identified only three categories of cases that meet that standard. First, in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), an order denying a motion to reduce bail pending trial was allowed interlocutory review under the collateral order doctrine—the issue there was finally resolved, was independent of the issue of guilt or innocence and would be mooted if resolution were to await a judgment of conviction and sentence or acquittal. Also meeting the requirements of the collateral order doctrine exception and therefore justifying immediate appeal in a criminal case is an order resolving the issue of double jeopardy—the assertion of the right not to be tried at all. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). As in all such immediately appealable orders, those resolving issues of double jeopardy "finally resolve issues that are separate from guilt or innocence, and appellate review must occur before trial to be fully effective." Flanagan, 465 U.S. at 266, 104 S.Ct. 1051. The third category of criminal cases in which immediate appeal has been allowed are those cases in which the Speech or Debate Clause right is raised and resolved before trial. Orders resolving the right "not to be questioned" regarding legislative activities, like orders in the other two categories of cases, "are truly final and collateral, and the asserted rights in all three cases would be irretrievably lost if review were postponed until trial is completed." Id. More common are the criminal cases in which interlocutory appeals have been rejected. For example, an order denying a motion to dismiss for prosecutorial vindictiveness was held not appealable before trial. See Hollywood Motor Car Co., 458 U.S. at 270, 102 S.Ct. 3081. That holding was said to "reflect[] the crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." Id. at 269, 102 S.Ct. 3081. The right not to be tried was not implicated in Hollywood Motor, and the Supreme Court observed: "It is only a narrow group of claims which meet the test of being `effectively unreviewable on appeal from a final judgment,' and the claim of prosecutorial vindictiveness is, we hold, not one of them." Id. at 270, 102 S.Ct. 3081. *47 Similarly, in Flanagan, the Court held that an order denying a motion to disqualify a law firm from multiple representation of individual defendants was not appealable because "the asserted right not to have joint counsel disqualified is, like virtually all rights of criminal defendants, merely a right not to be convicted in certain circumstances." 465 U.S. at 267, 104 S.Ct. 1051. The collateral order exception does not apply because a disqualification order, though final, is not independent of the issues to be tried. Its validity cannot be adequately reviewed until trial is complete. The effect of the disqualification on the defense, and hence whether the asserted right has been violated, cannot be fairly assessed until the substance of the prosecution's and the defendant's cases is known. Id. at 268-69, 104 S.Ct. 1051. Also held to be unappealable are orders denying dismissal of an indictment where the dismissal is sought for failure to keep secret the identity of grand jury witnesses and persons under investigation, as required by Federal Rule of Criminal Procedure 6(e). See Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). The "right not to be tried" test was amplified: "Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so." Id. at 802, 109 S.Ct. 1494 (emphasis supplied). Our interpretation of Midland Asphalt led us to hold unappealable an order denying a motion to dismiss an indictment and thereby to preclude a trial where the motion was based on an agreement alleged to confer transactional immunity. See United States v. Macchia, 41 F.3d 35, 36 (2d Cir.1994). Although a successful motion would indeed preclude trial, we opined that an interlocutory appeal will lie in the criminal context only where the constitutional or statutory protection relied upon confers a right not to be tried, as distinguished from a right to be free of some adverse action for which the remedy is dismissal of the indictment. Id. at 39. With the foregoing in mind, we turn to the applicability of the rule of finality in the case at hand. III. Applicability of the Rule of Finality A. To the Order Denying Dismissal for Violation of the Right to a Speedy Trial Culbertson's motion to dismiss the indictment for violation of the right to a speedy trial is based on his claim of an excessive lapse of time between his arrest and his indictment. The Speedy Trial Act allows a period of thirty days between arrest and indictment, see 18 U.S.C. § 3161(b), except for certain periods of delay permitted by statute, see id. § 3161(h). Among the excluded periods of delay are those granted by the court sua sponte or at the request of a party, but only upon findings "that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." Id. § 3161(h)(7)(A). A prospective waiver of all rights under the Speedy Trial Act is not acceptable, nor is a defendant's acquiescence to a continuance sufficient compliance with the Act for an ends-of-justice exclusion in the absence of specific findings. See Zedner, 547 U.S. at 501-03, 126 S.Ct. 1976. The harmless error rule can never be applied where the requirement for an ends-of-justice continuance are not *48 met. See id. at 508-09, 126 S.Ct. 1976. Despite the district court's findings, Culbertson continues to argue that his speedy trial rights have been violated. The rule of finality has been applied to bar interlocutory review of orders denying dismissal of indictments on speedy trial grounds. See United States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). Reviewing its strict adherence to the rule in criminal cases, the Supreme Court "decline[d] to exacerbate pretrial delay by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review." Id. at 863, 98 S.Ct. 1547. Noting that "[f]ulfillment of this [speedy trial] guarantee would be impossible if every pretrial order were appealable," id. at 861, 98 S.Ct. 1547, the Court concluded that "[a]llowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause," id. at 862, 98 S.Ct. 1547. Addressing the "right not to be tried" argument, the Court opined that the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a "right not to be tried" which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. Id. at 861, 98 S.Ct. 1547. Also entering into the Court's reasoning was the notion that the passage of time may give rise to a claim of prejudice by the defendant and "[n]ormally, it is only after trial that that claim may fairly be assessed." Id. at 860, 98 S.Ct. 1547. The same reasons for disallowing interlocutory appeals on Speedy Trial Clause claims apply to claims under the Speedy Trial Act. As with Speedy Trial Clause claims, fulfillment of the mandate of the Speedy Trial Act would be rendered impossible if every pretrial order were appealable. Just as in Speedy Trial Clause cases, the Speedy Trial Act does not encompass a "right not to be tried" that needs to be upheld prior to trial. And just as in Speedy Trial Clause cases, any violation of the Speedy Trial Act is reviewable on appeal from a final judgment. The expansion of the exceptions to the rule of finality simply is not warranted in the case of Speedy Trial Act claims. Accordingly, we hold that a district court's order denying dismissal for an alleged violation of a defendant's right to a speedy trial is not reviewable on interlocutory appeal. We therefore decline to review Culbertson's claim seeking review of such an order. B. To the Order Denying Appointment of New Counsel After having the services of a public defender and three other attorneys appointed by the district court from the CJA panel, Culbertson once again moved for appointment of new counsel in the district court. His dissatisfaction with the last three attorneys apparently stemmed from their failure to conduct his defense in a manner that he thought proper. In this connection, we note that "decisions concerning which legal issues will be urged on appeal are uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment," Ennis v. LeFevre, 560 F.2d 1072, 1075 (2d Cir. 1977), and the same is true at the trial level. In any event, the district court ultimately directed that Culbertson proceed pro se with the last appointed attorney, Mr. Lashley, to act as standby counsel. In his motion for appointment of a new attorney that is the subject of this appeal, Culbertson asserts that he "does not want *49 to proceed pro se and never did." In its order denying the motion, the district court relied on a rule enunciated in a number of cases: "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The appealability of such an order is an open question in this Circuit. Its seems to us that an order denying the appointment of counsel does not fit within the collateral order doctrine so as to permit an interlocutory appeal. While the order (1) does conclusively determine a disputed question and (2) resolves an issue completely separate from the merits of the prosecution, it is not (3) effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454. The order denying the appointment of replacement counsel can be effectively reviewed after trial, and the claimed right to counsel here does not implicate a "right not to be tried." It certainly does not implicate a right not to be tried on account of a violation of a constitutional or statutory protection. See Macchia, 41 F.3d at 39. Although we have permitted interlocutory appeals of orders denying motions for attorneys to withdraw as counsel, such orders meet the requirements of the collateral order doctrine while orders denying the appointment of new free counsel do not. In Whiting v. Lacara, 187 F.3d 317 (2d Cir.1999) (per curiam), a civil case, we found jurisdiction to resolve the appeal of an attorney whose motion to withdraw was denied by the district court in the face of a showing that the client "desire[d] both to dictate legal strategies to his counsel and to sue counsel if those strategies [were] not followed." Id. at 322. In finding jurisdiction, we held that "[t]he injury to a counsel forced to represent a client against his will ... is irreparable, and the district court's decision would be effectively unreviewable upon final judgment." Id. at 320; see also id. ("[O]nce a final judgment has been entered, the harm to [counsel] will be complete, and no relief can be obtained on appeal."); accord United States v. Oberoi, 331 F.3d 44, 47 (2d Cir.2003) ("Because the district court's order conclusively determined the issue of the [Public] Defender's continued representation of [defendant] and cannot be effectively reviewed on final appeal, we have jurisdiction over this interlocutory appeal [from the denial of the Public Defender's motion to withdraw for conflict of interest]."). The situation is, of course, much different where, as in the instant case, a defendant-appellant has the opportunity to vindicate his claim after final judgment. As such, we hold that Culbertson's claim regarding the district court's order denying appointment of new counsel is not reviewable on this interlocutory appeal. C. To the Order Denying a Psychiatric Examination Finding "no factual showing of probable cause" to justify a psychiatric examination, see 18 U.S.C. § 4244; United States v. Oliver, 626 F.2d 254, 258 n. 6 (2d Cir.1980), the district court denied Culbertson's request for an order directing such an examination. We never have directly determined that such an order denying a psychiatric examination is immediately appealable, although we have alluded to that question in dictum. In United States v. Gold, 790 F.2d 235 (2d Cir.1986), we were confronted with the appeal of a pretrial order finding the defendant mentally incompetent to stand trial and committing him to the custody of the Attorney General for a four-month period of hospitalization pursuant to 18 U.S.C. § 4241, to determine whether it was probable that the *50 defendant would attain the capacity for trial to proceed in the foreseeable future. In allowing interlocutory appeal in that case, we found sufficient finality for immediate appellate review because the commitment order provided for an additional period of commitment until a determination be made that the defendant was competent to stand trial or the charges were disposed of. The order in Gold therefore was effectively unreviewable on appeal from a final judgment since (1) there might never be a criminal trial if the defendant never were found competent, resulting in no appellate review; (2) if the defendant were found competent and acquitted, there would be no appellate review; and (3) if the defendant were found competent and convicted, there could be appellate review "but the matter of the relief to be granted if the order were found to have been erroneous would be moot." Id. at 239. The ruling appealed from in Gold was said to be "[u]nlike a ruling that the defendant is competent and must proceed to trial, which could be effectively reviewed and remedied, if erroneous, on appeal from any final judgment against him." Id.; see also United States v. No Runner, 590 F.3d 962, 964 (9th Cir.2009) ("A pretrial competency order does not conclusively determine the question of competency and it can be effectively reviewed following the final judgment."). We now apply the dictum in Gold to the case before us and hold that the denial of a psychiatric examination, which is in effect a holding that Culbertson is competent to stand trial and must proceed to trial, is not immediately appealable.[1] IV. Conclusion The appeal is dismissed for lack of jurisdiction, and Culbertson's motions to proceed in forma pauperis and for appointment of counsel in this court are denied as moot. It is so ordered. NOTES [*] The Clerk of the Court is directed to amend the official caption in this case to conform to the listing of the parties above. [**] The Honorable Jed Rakoff, District Judge, United States District Court for the Southern District of New York, sitting by designation. [1] We note that the Gold dictum was followed in United States v. Barth, 28 F.3d 253 (2d Cir. 1994), which held that a "first-step" order committing a defendant for psychiatric evaluation following conviction was not appealable.

79 F.3d 1148 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jeffrey KNISLEY, Plaintiff-Appellant,v.DAVE DONALDSON & ASSOCIATES, INC., Defendant-Appellee. No. 94-1794. United States Court of Appeals, Sixth Circuit. March 14, 1996. Before: SILER and DAUGHTREY, Circuit Judges, and ROSEN, District Judge.* PER CURIAM. 1 In this diversity action, plaintiff Jeffrey Knisley appeals the district court's order granting summary judgment to the defendant, Donaldson & Associates, his former employer. In his complaint, Knisley alleged that his termination from his position at Donaldson & Associates constituted a breach of contract, and he also sought damages on the basis of promissory estoppel and unjust enrichment. We find no error in the district court's judgment, and we therefore affirm. 2 The opinion filed by the district judge in this case sets out the facts in detail, and they need not be reiterated at any length here. Knisley had been an in-house salesperson with the Crosman Corporation for some six years when that company decided to use outside manufacturers' representatives rather than inside sales personnel. Crosman gave Knisley the option of representing its line as an independent manufacturer's representative in a four-state geographical area or taking the line to an acceptable established firm. As a result, Knisley went to work for Donaldson & Associates, where he was to receive an annual salary of $60,000 plus an unspecified annual bonus, which was the same economic package as the other partners in the Donaldson firm had, other than Mr. Donaldson himself. In return, Knisley brought the Crosman account to the Donaldson firm, for which he received a $2,000 "signing bonus." Crosman Corporation and Donaldson & Associates agreed that Crosman could unilaterally terminate the arrangement on 30 days notice. 3 Thirteen months after Knisley went to work for Donaldson & Associates, he was terminated due to inadequate performance and "personality conflicts." During his tenure with the Donaldson firm, Knisley had sold some $4 million worth of Crosman products, yielding commissions of approximately $200,000. The record reflects, however, that Donaldson's overhead expenses ran approximately 50 percent of its gross receipts. Despite his request to the contrary, Crosman Corporation maintained its account with Donaldson & Associates after Knisley's departure. 4 Knisley subsequently filed suit against Donaldson & Associates, alleging multiple grounds for recovery of damages under Michigan law, including breach of contract, promissory estoppel, and unjust enrichment. He alleged that he was orally promised that "in exchange for Plaintiff's causing Crosman to appoint Donaldson & Associates as its representative in the four state area, Plaintiff would be permanently employed and would receive a one-sixth interest in Donaldson Associates." Instead, Knisley alleged, the defendant, Donaldson & Associates, had received the benefit of the bargain and he, Knisley, had not. 5 Donaldson & Associates denied that it had promised Knisley a one-sixth interest in the company, pointing out that under Michigan law, employment is presumptively "at will" and noting that there was nothing in writing to indicate the existence of an employment contract with Knisley. The defendant further contended that Knisley's attempts to secure partnership status had been rebuffed and pointed out that the existing "partners" at Donaldson & Associates were themselves "employees at will," who could be discharged "for any reason" upon 30 days notice and a unanimous vote of the remaining partners. Lastly, the defendant argued that delivery of the Crosman account was not a benefit conferred by Knisley because Crosman retained the right to approve Knisley's initial recommendation and to sever the relationship with Donaldson & Associates unilaterally. 6 In a full and well-reasoned opinion, the district court determined that the legal presumption that the plaintiff remained terminable at will had not been rebutted by enough evidence to create a genuine issue of fact on the breach of contract count. The district court further found that there was no evidence that Donaldson & Associates had ever promised not to fire Knisley and that there was likewise insufficient evidence that the defendant breached a promise to the plaintiff. Finally, the district court found that the plaintiff had failed to prove that the defendant was being unjustly enriched by its retention of the Crosman line, given the relative value of that portion of its sales business and the amount of compensation received by Knisley for his efforts in conjunction with the Crosman account. We find the reasoning of the district court in reaching these conclusions to be wholly supported by Michigan law and adopt the district court's analysis in reaching our determination that summary judgment in the defendant's favor was justified by the record in this case. 7 The judgment of the district court is AFFIRMED. * The Hon. Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-2456 RODNEY VICTOR HARRIS, Plaintiff - Appellant, versus BRETT RADER, Property Manager, Giles County Housing and Development Corporation, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-03-571-7) Submitted: March 11, 2004 Decided: March 17, 2004 Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Rodney Victor Harris, Appellant Pro Se. Clark Hatcher Worthy, Kenneth J. Riles, JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rodney Victor Harris appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2000) complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B) (2000). We have reviewed the record and find that this appeal is frivolous. Accordingly, we deny Harris’s motion to submit circuit court transcripts and all motions set forth therein, and we dismiss the appeal on the reasoning of the district court. See Harris v. Rader, No. CA-03- 571-7 (W.D. Va. Nov. 6, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

649 So.2d 1078 (1995) STATE of Louisiana v. Edward D. SMITH. No. 94-KA-1502. Court of Appeal of Louisiana, Fourth Circuit. January 19, 1995. *1080 Harry F. Connick, Dist. Atty. and Val M. Solino, Asst. Dist. Atty., New Orleans, for appellee. Laurie A. White and Angela A. Gerrets, Law Office of Laurie A. White, New Orleans, for appellant. Before LOBRANO, JONES and LANDRIEU, JJ. LANDRIEU, Judge. Edward D. Smith was charged by bill of information on March 30, 1990, with one count of being a convicted felon in possession of a firearm and one count of possession with the intent to distribute crack cocaine. He pleaded not guilty to both counts, and the charges were later severed.[1] On May 9, 1990, defendant was tried by a twelve-member jury on the second count and was found guilty as charged. He was sentenced on July 18, 1990, to serve twenty (20) years at hard labor, and the multiple bill was quashed. FACTS At approximately 9:00 p.m. on February 3, 1990, Officers George Chenevert and Edmond Worthy were on patrol in the vicinity of South Claiborne Avenue and Toledano Street when they heard a woman scream.[2] Immediately thereafter, they observed a *1081 man running with what appeared to be a purse. The officers pursued the man into the Magnolia Housing Project, but they lost sight of him. The officers split up to continue the search, and some four minutes later, Chenevert saw the defendant standing on a balcony. Officer Chenevert testified that the defendant, dressed in a dark long sleeve shirt and blue jeans, fit the description of the person he was pursuing. He approached the defendant to investigate. When Chenevert frisked the defendant, he found a gun in his waistband. He placed the defendant under arrest for carrying a concealed weapon and advised him of his rights. A search incident to the arrest found a plastic bag containing twenty pieces of crack cocaine in defendant's right front pants pocket. When the defendant was informed that he was being arrested for purse snatching, he stated, "I don't do robberies. I sell crack." DISCUSSION ERRORS PATENT Our review of the record reveals no errors patent. ASSIGNMENT OF ERROR NO. 5 In this assignment of error, the defendant contends that the evidence presented was insufficient to support a finding of guilty of possession with the intent to distribute cocaine. Specifically he argues that there was no evidence that he had the requisite intent to distribute cocaine. When both the sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. Because the defendant may be entitled to an acquittal or a reduction of the conviction to a judgment of guilty of a lesser and included offense if the evidence is found insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Hearold, 603 So.2d 731, 734 (La.1992). The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789; State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (1988). When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La.Rev.Stat.Ann. § 15:438 (West 1992); State v. Camp, 446 So.2d 1207 (La. 1984). This is not a stricter standard of review, but it is an evidentiary guide for the jury when it considers circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985). When circumstantial evidence is sufficient to convict beyond a reasonable doubt and a rational trier of fact reasonably rejects the defendant's hypothesis of innocence, that hypothesis fails; and, unless another hypothesis creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984). To support a conviction for possession of a controlled dangerous substance with intent to distribute, the State must prove that the defendant knowingly and intentionally possessed the contraband and that he did so with the intent to distribute it. La. Rev.Stat.Ann. § 40:967 (West 1992). Specific intent to distribute may be established by proving circumstances surrounding the defendant's possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4th Cir.1989). Factual circumstances from which such intent can be inferred include: previous distribution by the defendant; the presence of paraphernalia for distribution; possession of an amount sufficient to create a presumption of intent to distribute; and, packaging in a form usually associated with distribution rather than personal use. State v. Hechavarria, 575 So.2d 444, 448 (La.App. 4th Cir.1991). *1082 In the instant case, twenty pieces of crack were found on the defendant's person. Additionally, the defendant admitted that he sold drugs. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the defendant had the requisite intent to distribute the cocaine found on his possession. Accordingly, this assignment of error is without merit. ASSIGNMENT OF ERROR NO. 1 In his first assignment of error, the defendant contends that the trial court erred in finding that the police officers had probable cause to stop and search him. He points to Chenevert's testimony that he could not remember whether defendant was out of breath or sweating or whether defendant was wet from the rain that had been falling. A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.Code Crim.Proc.Ann. art. 215.1 (West 1991); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be free from governmental interference. State v. Albert, 553 So.2d 967 (La.App. 4th Cir.1989); State v. Smith, 489 So.2d 966 (La.App. 4th Cir. 1986). The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62, 65 (La.1993). Under Article 215.1(B), when a law enforcement officer lawfully stops a person for questioning, he may frisk the person's outer clothing for a dangerous weapon; and if the officer reasonably suspects that the person has a dangerous weapon, he may search the person. The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger. State v. Lightfoot, 580 So.2d 702 (La.App. 4th Cir.1991). In the instant case, Officer Chenevert had a reasonable suspicion that defendant had been engaged in criminal conduct, namely a purse snatching. He resembled the man Chenevert had seen running with what appeared to be a purse, and Chenevert found defendant in the same area where he had lost sight of him less than five minutes earlier. Therefore, Officer Chenevert was justified in stopping defendant. Accordingly, this assignment of error is without merit. ASSIGNMENTS OF ERROR NO. 2 & 3 In his second assignment of error, defendant contends that the trial court erred in admitting other crimes evidence, namely the gun seized from him. By his third assignment of error, he complains about the State's questioning Officer Chenevert about other crimes evidence, namely the purse snatching. Defendant argues that the gun was irrelevant evidence because its probative value was outweighed by the unfair prejudice and confusion it created. He further argues that the reference to the purse snatching was inadmissible "other crimes" evidence, which should have resulted in a mistrial under La. Code Crim.Proc.Ann. art. 770 (West 1981), as well as being irrelevant evidence. La.Code Evid.Ann. art. 404(B)(1) (West 1994) provides: B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as *1083 proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding [emphasis added]. The final phrase is a substitute for the term res gestae set forth in former La.Rev.Stat.Ann. §§ 15:447-448[3]. Official Comment (m) to La.Code Evid.Ann. art. 404. It is no longer true that whatever forms part of the res gestae is admissible, and such evidence remains subject to the balancing test of La.Code Evid.Ann. art. 403 (West 1994). Authors' Note (3) to Article 404(B), Handbook on Louisiana Evidence Law, Pugh, Force, Rault and Triche (1994 ed.). In State v. Mitchell, 572 So.2d 800 (La. App. 4th Cir.1990), writ denied, 576 So.2d 47 (La.1991), this Court, citing Article 404(B)(1), upheld the admissibility of the defendant's assaults and threats to kill the witness to a murder the defendant had committed three to four hours earlier. We stated that the prosecution could not have accurately presented its case without the testimony regarding the defendant's attack on the witness. In State v. Brewington, 601 So.2d 656 (La. 1992), the Supreme Court held that the defendant's display of crack cocaine and a pistol less than three hours after the murder victim was last seen in his company and less than two hours before her death formed an inseparable part of the State's circumstantial evidence linking the defendant to the shooting. The court stated that it had previously approved the admission of other crimes evidence when it was related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. The court further stated that the purpose served by the admission of such evidence was not to depict the defendant as a bad man but to complete the story of the crime on trial by showing it in the context of happenings near in time and place. Additionally, the court also stated that evidence of the other crimes did not affect the accused's character because if the acts were done, they were done as parts of a whole; thus, the trier of fact would attribute all or none of the criminal conduct to the defendant. In the instant case, the possession of the gun and the purse snatching were an integral part of the act or transaction for which defendant was being tried. The events were very close in time and place, and the State could not have accurately or logically presented its case against defendant without showing how and why the police came to arrest him and find the cocaine as a consequence. Accordingly, this assignment of error is without merit. ASSIGNMENT OF ERROR NO. 4 Defendant contends that he received ineffective assistance of counsel when his trial counsel failed to request a mistrial after the State improperly referred to the purse snatching and to the gun seized from defendant. Generally, the issue of ineffective assistance of counsel is raised by an application for post-conviction relief; but, the claim can be addressed on appeal if the record contains the necessary evidence to evaluate the merits of the claim. State v. Seiss, 428 So.2d 444 (La.1983); State v. Kelly, 92-2446 (La.App. 4th Cir. 7/8/94), 639 So.2d 888. Because the present record contains the necessary evidence, we can dispose of the claim of ineffective assistance based on counsel's failure to move for a mistrial. There is no merit to defendant's claim of ineffective assistance of counsel because his trial counsel had no basis on which to move for a mistrial. The trial court correctly admitted both the testimony related to the purse snatching and the gun found on defendant's person under La.Code Evid.Ann. art. 404(B)(1) as discussed above. Therefore, this assignment of error is without merit. For the foregoing reasons, defendant's conviction and sentence are affirmed. AFFIRMED. NOTES [1] As to the first count, defendant pleaded guilty pursuant to State v. Crosby, 338 So.2d 584 (La. 1976); and, he was sentenced to serve five (5) years at hard labor without benefit of probation, parole, or suspension of sentence to run concurrently with his sentence on the second count. This conviction was affirmed by this court. State v. Smith, 605 So.2d 6 (La.App. 4th Cir.1992). [2] At the defendant's motion to suppress hearing. Officer Chenevert testified that after he arrested the defendant they returned to the fast-food restaurant where the victim, Ms. West, and her boyfriend identified Smith as the man who stole her purse a short time earlier. The purse was never found. [3] Repealed by Acts 1988, No. 515, § 8, eff. Jan. 1, 1989.

734 P.2d 811 (1987) 105 N.M. 571 Johnny Wayne JOY, Petitioner-Appellant, v. Annette Christine JOY, Respondent-Appellee. No. 8658. Court of Appeals of New Mexico. February 26, 1987. *812 Richard L. Kraft, Sanders, Bruin, Coll & Worley, P.A., Roswell, for petitioner-appellant. Kevin J. Hanratty, Klipstine & Hanratty, Artesia, for respondent-appellee. OPINION DONNELLY, Chief Judge. Husband appeals from an order entered pursuant to NMSA 1978, Civ.P.Rule 60(b) (Repl.Pamp. 1980) (recompiled as SCRA 1986, Rule 1-060(B)), vacating a decree of divorce approximately six months after it was entered and dismissing the action without prejudice. The central issue raised on appeal is whether the evidence adduced at the motion to vacate the decree, indicating that the parties continued to live together and share the same residence for approximately one week after the filing of a petition for dissolution of marriage, deprived the court of jurisdiction to enter a decree dissolving the marriage of the parties. Reversed and remanded. Husband filed a petition for dissolution of marriage on November 14, 1984, in the Chaves County District Court. The verified petition alleged, among other things, that "a state of incompatibility has arisen between [the parties] making it impossible for them to live together as husband and wife." Wife did not file an answer to the petition for divorce nor did she deny husband's allegations of incompatibility. Thereafter, wife, who was unrepresented by counsel, signed a stipulated marital settlement agreement providing for division of community property, debts, and custody of the two minor children of the parties. Wife agreed in the marital settlement that a final decree of divorce could be entered "on the grounds of incompatibility." Wife also filed a waiver of notice of hearing as to any further proceedings in the cause. The trial court approved the marital settlement agreement and entered a final decree dissolving the marriage on November 29, 1984, based upon the incompatibility of the parties. On December 26, 1984, wife, through newly employed counsel, filed a motion under Civ.P.Rule 60(b), seeking to modify the decree and to set aside the property settlement agreement based upon the existence of alleged mutual mistake, unawareness of the parties of the nature and extent of community assets and other equitable grounds. At the hearing on the above motion, wife's counsel also argued that the trial court lacked jurisdiction because the parties continued living together after the filing of the petition for dissolution of marriage. Wife testified at the hearing on the motion that she had continued to live with husband, sharing the same residence and bed, for approximately one week after the petition for divorce had been filed. Wife further testified that she had no knowledge *813 that the petition for divorce had been filed until husband came home and informed her that he had been to his lawyer's office and had filed the petition. Husband was questioned as to whether he had continued to reside with wife at the time the petition for divorce was filed and he invoked his fifth amendment privilege. Thereafter, on May 24, 1985, the trial court entered an order vacating the prior judgment and dismissing the cause based upon the following finding: 1. The original petition in this cause was filed on November 14, 1984. At that time the parties were not separated; they continued to live together in cohabitation as husband and wife for at least one week following filing of the petition. 2. By reason of the foregoing, the Court lacked jurisdiction of the cause and the judgment should be set aside. On June 4, 1985, husband filed a motion to set aside the order vacating the judgment and dismissing the case. The trial court denied the motion on June 12, 1985. PROPRIETY OF DISMISSAL Husband argues that the trial court erroneously concluded that continued residence by the parties in the same home deprived the court of jurisdiction to grant dissolution of the marriage. Husband contends he satisfied all jurisdictional requisites under NMSA 1978, Sections 40-4-4 and -5 (Repl. 1986), regarding domicile and residence for granting the divorce and that no other statute or requirement deprived the trial court of jurisdiction. Husband also asserts that he presented sufficient evidence to establish that a state of incompatibility existed and continues to exist between the parties. He also argues that the fact that the parties temporarily continued to reside together after the filing of the petition for divorce only went to the weight of the evidence concerning the issue of incompatibility and not to the jurisdiction of the court. See Buckner v. Buckner, 95 N.M. 337, 622 P.2d 242 (1981); NMSA 1978, § 40-4-2 (Repl. 1986). Husband also contends that once a finding is made that the parties are incompatible, a divorce must be entered. See Buckner; Garner v. Garner, 85 N.M. 324, 512 P.2d 84 (1973). The legislature's adoption of incompatibility as a ground for dissolution of marriage carried with it the correlative effect of abolishing the traditional or common-law defenses to divorce. See Garner. The essential prerequisites to establish a party's right to a dissolution of marriage on the ground of incompatibility are proof of domicile, residence and the existence of facts showing that the parties are irreconcilably incompatible. §§ 40-4-2, -5. See also State ex rel. DuBois v. Ryan, 85 N.M. 575, 514 P.2d 851 (1973); Garner; Poteet v. Poteet, 45 N.M. 214, 114 P.2d 91 (1941). Cf. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967). New Mexico recognizes four separate grounds for divorce, including incompatibility. NMSA 1978, § 40-4-1(A) (Repl. 1986). Where petitioner seeks a dissolution of marriage on a ground other than incompatibility, cohabitation or continued residence together by the parties, following the filing of a petition for divorce, gives rise to the affirmative defense of condonation. Condonation is forgiveness, either express or implied, of antecedent matrimonial misconduct. Richardson v. Richardson, 124 Colo. 240, 236 P.2d 121 (1951) (en banc). Whether or not condonation exists, requires a factual determination based upon the evidence before the court. Zildjian v. Zildjian, 8 Mass. App. 1, 391 N.E.2d 697 (1979). Condonation, however, is a "fault defense" which no longer exists under our no-fault statute. Peltola v. Peltola, 79 Mich. App. 709, 263 N.W.2d 25 (1977). See also In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975) (en banc); Ryan v. Ryan, 277 So.2d 266 (Fla. 1973). Cf. Chester v. Chester, 76 Cal. App.2d 265, 172 P.2d 924 (1946). Husband denies that the parties' sharing of the home and sleeping in the same bed for a week amounted to cohabitation as man and wife and challenges the sufficiency of the evidence to support this finding of the trial court. Husband further argues that the fact that the parties may have continued to temporarily reside together, *814 absent a showing of reconciliation, does not constitute justification to deny dissolution of the marriage where the basis for the divorce is premised upon the incompatibility of the parties and both parties agree to the fact of incompatibility. See Smith v. Smith, 322 So.2d 580 (Fla.App. 1975) (court required clear showing of intent to reconcile to justify denying dissolution under Florida's no-fault dissolution of marriage laws). We agree with that portion of husband's argument that evidence of cohabitation or continued residence together by the parties after filing a petition for divorce based on incompatibility does not automatically deprive the court of jurisdiction or mandate dismissal of the divorce proceedings as a matter of law. Cf. McGaughy v. McGaughy, 410 Ill. 596, 102 N.E.2d 806 (1951); Claude v. Claude, 180 Or. 62, 174 P.2d 179 (1946). Continued cohabitation following commencement of a divorce action may, however, indicate that the marriage is not, after all, irretrievably broken. As a general rule, it is not the policy of the law to separate parties who have not separated themselves. See Berman v. Berman, 277 A.D. 560, 101 N.Y.S.2d 206 (1950). The actions of the parties may serve to indicate that the marriage is still viable, and a party alleging incompatibility as a basis for dissolution of marriage must present evidence to establish the fact of incompatibility. In the present case, however, wife did not file an answer to husband's complaint nor contest husband's allegation that the parties were in fact incompatible. Wife expressly agreed in the marital settlement agreement "that a final decree may be entered granting the dissolution of marriage ... on the grounds of incompatibility." Additionally, wife's written motion under Rule 60(b) for modification of the decree and property settlement did not seek nullification of the decree of divorce. Generally, where a party does not controvert a fact in a responsive pleading, the fact is not in issue. Carew v. Carew, 175 Cal. App.2d 706, 346 P.2d 845 (1959); Makovsky v. Makovsky, 158 Cal. App.2d 738, 323 P.2d 562 (1958). Cf. Romero v. S.S. Kresge Co., 95 N.M. 484, 623 P.2d 998 (Ct.App. 1981). Here, both husband and wife agreed concerning the fact of incompatibility. In New Mexico, where jurisdiction, residence and the fact of incompatibility is shown to exist, the court has no discretionary right to deny the divorce. Buckner. Public policy favors the finality of judgments and a decree of divorce once entered should not be vacated or set aside, except upon a showing of an absence of jurisdiction, or good cause supported by facts found by the court justifying the relief. See Harder v. Harder, 49 Or. App. 582, 619 P.2d 1367 (1980); see also Rule 60(b). The trial court's order vacating the decree of divorce and dismissing the action was erroneously premised upon the belief that the district court lacked jurisdiction. The cause is reversed and remanded with directions to reinstate the decree of divorce and to address wife's Rule 60(b) motion for modification of the decree and property settlement agreement on the merits. IT IS SO ORDERED. GARCIA and FRUMAN, JJ., concur.

464 A.2d 750 (1983) NORTHERN RENT-A-CAR, INC. v. William CONWAY, Commissioner. No. 82-160. Supreme Court of Vermont. June 15, 1983. *751 Paradis & Coombs, Essex Junction, for plaintiff-appellant. John J. Easton, Jr., Atty. Gen., and Thomas R. Viall, Asst. Atty. Gen., Montpelier, for defendant-appellee. Before BILLINGS, C.J., and HILL, UNDERWOOD and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned. GIBSON, Justice. Northern Rent-A-Car, Inc. [Northern] owns and operates a car rental business at the Burlington International Airport. Pursuant to V.R.C.P. 75, it appeals from an adverse determination by the Washington Superior Court, which upheld the Commissioner of Motor Vehicle's assessment of a purchase and use tax under 32 V.S.A. §§ 8901-8915. The tax was allegedly due as a result of a February 1980 transfer to Northern of rental vehicles from a sister corporation in exchange for 100% of Northern's stock. At the time of the transfer, both Northern and its sister corporation were wholly owned by a third party. In its brief, Northern correctly states the narrow issue now before this Court: "In order for [Northern] to prevail in the instant case, the word `individual' as stated in 32 V.S.A. § 8911(10) must be interpreted as including corporations." For reasons detailed herein, we agree with both Commissioner Conway and the trial court that an individual is not a corporation, and therefore, we affirm. None of the relevant facts are in issue; the parties to this appeal have stipulated to the corporate history of Northern. Further, the parties agree that, but for the possible exemption embodied in 32 V.S.A. § 8911(10), Northern would be liable for the purchase and use tax. Section 8911(10), as then in force, read: The tax imposed by this chapter shall not apply to: (10) motor vehicles registered in Vermont by the transferor and transferred between that individual and a business entity controlled by him, if the transfer is exempt under section 351 of the United States Internal Revenue Code in effect July 1, 1966; The trial court found, and we agree, that qualification for this purchase and use tax exemption requires the satisfaction of four elements: (1) the motor vehicles must be registered to the transferor prior to the transfer; (2) the transferor must be an individual; (3) the transferor must control the transferee business entity; and (4) the transfer must be exempt under I.R.C. § 351 (as codified at 26 U.S.C. § 351). Directing our attention to element two, Northern argues that although "individual" is undefined in our statutes, the "obvious purpose of this exemption is to relieve taxpayers who have already paid a purchase and use tax, from paying a subsequent tax upon a tax free reorganization of the taxpayer's business." In analyzing this issue of statutory construction, we must keep in mind that the primary objective is to give effect to the intention of the legislature. Wetterau, Inc. v. Department of Taxes, 141 Vt. 324, 327, 449 A.2d 896, 897 (1982). Further, the plain and ordinary meaning of statutory language is presumed to be intended. Id. The legislature's choice in providing a tax exemption to individuals affords us with little leeway for statutory construction. The term "individual" has a "well understood and common meaning. Words in a statute without definition are to be given their plain and commonly accepted use." Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 223, 227 A.2d 294, 295 (1967). *752 Black's Law Dictionary provides this Court with just such a common definition. As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons. Black's Law Dictionary (5th ed. 1979). Northern's suggestion that the legislature intended an unusual definition for "individual," yet neglected to provide any hint of its plan, is unpersuasive. We note that the word "person," as it applies to purchase and use taxes, is defined in 32 V.S.A. § 8902(7) as follows: "any individual, firm, partnership. . . or corporation." Clearly, the legislature intended to differentiate between individuals and corporations. Further proof that the legislature was well aware of the definition and the restrictive class of taxpayer thereby entitled to purchase and use tax relief is found in the 1982 amendment to 32 V.S.A. § 8911(10). As now amended, the exemption applies to transfers between a qualified "individual or partnership and a business entity controlled by the transferor . . . ." The legislature could easily have added an exemption for corporations by the same amendment, if it had so intended. Given the recent adjustment to the subsection in issue and the plain meaning of the terms employed, we will not judicially expand § 8911(10) to include corporations like Northern. In view of the necessity that all four statutory criteria must be met to qualify for the purchase and use tax exemptions, and our holding that Northern is not an "individual" within the ambit of 32 V.S.A. § 8911(10), we need not reach the other claims of error raised by appellant. However, we do note, finally, that the claimed equal protection violation is without merit. Where, as here, no fundamental rights or suspect classes are involved, the legislature is constitutionally permitted to grant tax exemptions to specific groups so long as it has a "rational basis" for its acts, and is not being wholly arbitrary or capricious. See Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 42, 422 A.2d 255, 258 (1980). Northern has not carried its "very weighty burden" of voiding a taxing measure on equal protection grounds. Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 245, 403 A.2d 689, 693 (1979). Affirmed.

951 F.2d 461 UNITED STATES of America, Plaintiff-Appellee,v.Johnny ENG, Claimant-Appellant,Certain Real Property and Premises, Known as 218 PantherStreet Newfoundland, Pennsylvania, 69 Gauldy Avenue, StatenIsland, New York, and 21 Norman Drive, Staten Island, NewYork, Certain Honda All-Terrain Vehicles, YamahaSnowmobiles, a Certain Yong Chang, G185 Piano, Serial Number004201, Defendants. No. 1432, Docket 91-6013. United States Court of Appeals,Second Circuit. Argued May 13, 1991.Decided May 17, 1991.Opinion: Dec. 3, 1991. Kenneth Joseph Kukec, Miami, Fla. (Albert J. Krieger, Susan W. Van Dusen, Albert J. Krieger, P.A., of counsel), for claimant-appellant. Arthur P. Hui, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., of counsel), for plaintiff-appellee. Before CARDAMONE, WALKER and FRIEDMAN,* Circuit Judges. CARDAMONE, Circuit Judge: 1 This appeal arises as a result of the efforts of a defendant, detained in a foreign jurisdiction, to avoid criminal prosecution in the United States, while attempting at the same time to assert his claim to real property in this country, allegedly purchased with the proceeds of his criminal activities. It has been a truism for nearly half a millennium that "one cannot eat his cake and have it too." Defendant of course may elect to oppose extradition, but that choice has negative consequences that he may not evade. For the reasons discussed below, we affirm the August 21, 1990 decision of the United States District Court for the Eastern District of New York (Raggi, J.) 745 F.Supp. 118, holding that appellant Johnny Eng is disentitled from contesting a civil forfeiture proceeding instituted by the government against real property Eng claims ownership of so long as he continues to fight extradition that would return him to the United States to face criminal charges pending against him. BACKGROUND 2 In August, 1989 a grand jury in the Eastern District of New York returned an indictment against Eng on charges that he operated a continuing criminal enterprise in violation of 21 U.S.C. § 848(b), and on 17 additional charges under the narcotics laws, all involving the alleged sale of heroin. The continuing criminal enterprise offense carries a mandatory term of life imprisonment without parole. Eng had been detained in Hong Kong on suspicion of violating a local ordinance, and the authorities in that British Crown Colony on August 17, 1989 arranged for his release to Interpol agents pursuant to a detainer issued under Article VIII of the Extradition Treaty between the United States and the United Kingdom. The detainer was the result of a provisional arrest warrant requested by the United States under the Treaty. Since his arrest Eng has resisted extradition to the United States where the government seeks to prosecute him on the continuing criminal enterprise and narcotics charges. 3 In December, 1989, several months after Eng's arrest, the government filed under 21 U.S.C. § 881(a)(6) (1988) a civil in rem forfeiture action in the Eastern District of New York against certain real property located in New York and Pennsylvania. An amended verified complaint filed on February 15, 1990 charged that the properties were purchased with the proceeds of the narcotics offenses for which Eng had been indicted. Arrest warrants against the properties in rem issued, listing Eng, his wife, his sister-in-law, and his uncle as potential claimants. The arrest warrants, an amended verified complaint, and a set of interrogatories were served on the properties on March 1, 1990, and copies also were served on Eng's relatives between March 7 and March 10, 1990. In addition, the government by publication on March 12-14, 1990 in the New York Post gave notice of its pending civil action. 4 On March 15, 1990 Eng's wife and uncle filed verified notices of claims to certain of the properties. Also on March 15, Eng filed a motion for an order to show cause why the subject properties should not be released summarily from arrest or, in the alternative, for a dismissal of the government's claims to the properties outside New York, or for an indefinite stay of the civil proceedings pending the conclusion of any criminal proceedings against him. Eng's motion stated that he was a potential claimant to the properties but did not identify what, if any, interest he had. He asserted in addition that the government had failed to provide him with proper notice of the action. 5 The government served notice on Eng personally in his Hong Kong prison cell on March 23, 1990. On May 1, 1990 it moved for an entry of a decree of forfeiture against the properties based on the failure of any potential claimant to file a verified answer to the complaint within the applicable 20-day period. See Mercado v. United States Customs Service, 873 F.2d 641, 644-45 (2d Cir.1989) (describing the forfeiture process). On May 25, 1990 the district court heard oral argument on the government's motion for a default judgment, on Eng's motion, and on the motions of claimants Lori Eng and Chik Kun Wong, Eng's wife and uncle, respectively, for leave to file responses to the government's amended verified complaint and interrogatories. Several days later the motions of Eng's wife and uncle to file untimely verified answers was granted, and a default judgment on those properties for which no verified claim had been filed. At the hearing the court heard argument on whether Eng himself was entitled to contest the forfeiture procedures, given his continued resistance to extradition. 6 On August 21, 1990, after further proceedings, Judge Raggi granted a default judgment against Eng, denied his application for an order to show cause or to dismiss the action, and held that Eng lacked both statutory standing and was disentitled to be heard because of his resistance to extradition. The district court opinion is reported at 745 F.Supp. 118 (E.D.N.Y.1990). A default judgment in favor of the United States was entered on August 30, 1990. It is that judgment which Eng now appeals. DISCUSSION 7 On appeal Eng raises two issues. He contends that the district court erred in finding that (1) he was a fugitive and therefore not entitled to be heard in this civil forfeiture proceeding, and (2) he lacked statutory standing to challenge the forfeiture because he failed to file his claim timely under Admiralty Rule C(6). As a preliminary matter, he asserts that the district judge confused the concept of standing--without which he is barred from maintaining his civil action--with the concept of disentitlement, which is not jurisdictional. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970). We do not view the district court's action as confusing these two concepts. Rather, it dealt with them disjunctively, stating that Eng's failure to file a claim and answer timely deprive him of standing to contest the forfeiture proceeding, and that his active opposition to extradition disentitles him, in any event, from being heard in the civil proceedings even to request a stay. See 745 F.Supp. at 122. I Disentitlement 8 The principal question before us is whether the doctrine of disentitlement--that holds a person who is a fugitive from justice may not use the resources of the civil legal system while disregarding its lawful orders in a related criminal action--should bar appellant from participating in the civil forfeiture proceedings. Appellant asserts that he is not a fugitive from justice and that, even if he is, the doctrine should not apply in his case. A. Fugitive Status 9 Eng declares in his brief that he is a fugitive, if at all, only "by the barest of legal fictions." To the contrary, that Eng is a fugitive rests on sound, legal footing, not on fictions. In United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), the defendant, an American, was convicted and sentenced for narcotics trafficking in the Southern District of New York, but fled to France prior to his surrender date. While abroad he was arrested and held to answer charges under French law, pursuant to a provisional arrest warrant issued at the request of the United States. Catino resisted United States efforts to extradite him. During the pendency of the extradition proceedings, he was convicted on the French charges and sentenced to five years in prison. The French government then opposed the United States' extradition request on the ground that Catino had already been convicted in France for the same criminal conduct alleged against him by the United States. Extradition was subsequently denied. After serving his sentence in France, Catino was expelled from that country and returned to the United States where he was promptly arrested. Id. 735 F.2d at 719-21. 10 Catino contended, in his Southern District trial on charges of bail jumping and securing a passport under a false name, that the statute of limitations barred the government from prosecuting him. The prosecution argued that the statute of limitations was tolled on these charges pursuant to 18 U.S.C. § 3290 because Catino was a fugitive during the relevant period. Fleeing from justice does not, as the words literally connote, mean a person "on the run." One may flee though confined in prison in another jurisdiction. Fleeing from justice is not always a physical act; it may be a state of mind. When a person purposely leaves the jurisdiction or decides not to return to it, in order to avoid prosecution, he is a fugitive. See 735 F.2d at 722. Thus, a defendant with notice of criminal charges who actively resists returning from abroad to face those charges is a fugitive from justice, even when he has no control over his physical movements because of being imprisoned in a foreign country. See id.; accord United States v. Marshall, 856 F.2d 896, 900 (7th Cir.1988); Schuster v. United States, 765 F.2d 1047, 1050 (11th Cir.1985); United States v. One Lot of U.S. Currency Totalling $506,537, 628 F.Supp. 1473, 1475-76 (S.D.Fla.1986). 11 Since his Hong Kong arrest in August 1989, Eng has resisted extradition and has refused to sign an affidavit stating that he wished to return to the United States to contest the civil forfeiture action. In addition, in June 1990 his counsel advised the trial court that if Eng successfully defeated extradition he would in all likelihood not return to the United States voluntarily. Plainly, appellant has not done all within his power to return to this country; rather, he has done everything possible to resist returning. Consequently, Eng was correctly held to be a fugitive from justice. B. Disentitlement Doctrine 12 We turn now to discuss the doctrine of disentitlement. In Molinaro, 396 U.S. 365, 90 S.Ct. at 498, the criminal defendant had escaped while his direct appeal was pending before the Supreme Court, which thereupon summarily and unconditionally dismissed the appeal, observing that a court should not deal with the merits of an appeal while the defendant who seeks review of the conviction deliberately absconds from the legal restraints imposed as a result of the same conviction. Such flaunting of the legal system disentitles that defendant from calling upon the system's resources to determine his claims. Id. at 366, 90 S.Ct. at 498-99; see also United States v. Baccollo, 725 F.2d 170, 171 (2d Cir.1983). The disentitlement doctrine, which may be invoked at the discretion of the court, is grounded on the impropriety of permitting a fugitive to pursue a claim in federal court where he might accrue a benefit, while at the same time avoiding an action of the same court that might sanction him. See 396 U.S. at 366, 90 S.Ct. at 498-99. 13 The Supreme Court has never extended Molinaro to civil matters relating to a criminal fugitive, though this and other circuits have done so on a number of occasions. See, e.g., United States v. $45,940 in United States Currency, 739 F.2d 792, 797-98 (2d Cir.1984); United States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, Miami, Dade County, Florida, 868 F.2d 1214, 1216-17 (11th Cir.1989); United States v. $129,374 in United States Currency, 769 F.2d 583, 587 (9th Cir.1985), cert. denied sub nom. Geiger, Conservator of the Estate of Geiger v. United States, 474 U.S. 1086, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986); Doyle v. United States Dep't of Justice, 668 F.2d 1365 (D.C.Cir.1981), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Broadway v. City of Montgomery, Alabama, 530 F.2d 657, 659 (5th Cir.1976); United States ex rel. Bailey v. United States Commanding Officer, 496 F.2d 324, 326 (1st Cir.1974). The only holding arguably to the contrary is United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir.1982). The primary concern of the Sixth Circuit in that case, as the district court noted, was that if the disentitlement doctrine is applied too broadly to in rem proceedings it might jeopardize the rights of others who, in addition to the fugitive, seek to file claims. See 682 F.2d at 576; 745 F.Supp. at 122. That danger does not exist in the case at hand where the trial court solicited claims from third parties. Accord $129,374, 769 F.2d at 589 (rejecting $83,320 's concern where notice is provided to other interested parties); $45,940, 739 F.2d at 797-98. 14 In $45,940 in United States Currency, the criminal defendant/civil claimant, McKay, was arrested, jailed, and deported for making an illegal entry into the United States from Canada. At the time he was arrested, he was carrying $45,940 in currency, which was seized. He was subsequently indicted for making a false statement to the U.S. Customs Service regarding the amount of currency he possessed when he crossed the border. Later, he filed a verified claim to the currency and answered the government's in rem complaint--seeking forfeiture of the currency--but refused to appear at his arraignment on the related criminal charge. The government contended that because McKay refused to leave Canada for his arraignment here, he was a fugitive and disentitled from contesting the civil forfeiture action. McKay's response was the government made no attempt to extradite him, and he had previously been deported from this country and barred from reentering for one year following his deportation. He asserted, as a consequence, he was not a fugitive and was entitled to participate in the forfeiture action. 15 We rejected McKay's arguments. The burden, we noted, was on the person who has absented himself from the United States--voluntarily or not--to seek readmission, even for the limited purpose of appearing at his arraignment. 739 F.2d at 795-96. Thus, we held McKay was a fugitive from justice who had waived his right to due process in the civil forfeiture proceeding. Id. at 798. See also, e.g., $129,374, 769 F.2d at 587-88. C. Application of Doctrine 16 Eng makes two substantially similar arguments as to why the doctrine should not apply in this case. Neither has merit. First, he proposes that this case is distinguishable from $45,940 in United States Currency because, unlike the claimant in that case, Eng did not initiate the proceedings below by filing a claim seeking return of his seized property. In other words, appellant's argument is that because it is the government that has initiated the proceedings by bringing the forfeiture action and seeking extradition, it is not fair to say that appellant is seeking to have it both ways by using the resources of the United States courts only when it is to his advantage. Appellant argues he was forced into this position by the government's action and should not be punished by the application of the disentitlement doctrine. 17 Who initiates the proceedings is irrelevant under Catino and $45,940. Both cases stated that when a person actively resists extradition, or refuses to appear at his arraignment, he has constructively fled the United States and thus is a fugitive. See 739 F.2d at 796; 735 F.2d at 722-23. So long as Eng continues to resist extradition, he has constructively fled the country and remains a fugitive subject to the disentitlement doctrine regardless of which party initiates the civil proceeding. See One Parcel of Real Estate, 868 F.2d at 1217; cf. $129,374, 769 F.2d at 589 (requirements for application of disentitlement doctrine satisfied where criminal defendant had notice of forfeiture proceedings and elected to flee the court's jurisdiction). 18 Second, and in a similar vein, Eng argues that, unlike McKay in $45,940, he is in a "defensive posture" in the civil forfeiture action in this case. Eng's motion filed in the district court undercuts that argument because it seeks affirmatively to litigate his as yet unidentified "interest" in the defendant properties and specifically requested the district court (1) summarily to release the properties pursuant to the Admiralty and Maritime Rules, (2) dismiss all the government claims against properties located outside the Eastern District of New York, and (3) stay the civil action pending the conclusion of the criminal proceedings. These motion papers definitively demonstrate that Eng has done more than lay supine in the face of government's efforts. 19 Even were appellant in a purely defensive posture procedurally, such is not a relevant consideration for purposes of the disentitlement doctrine. The doctrine operates as a waiver by a fugitive of his due process rights in related civil forfeiture proceedings. See $45,940, 739 F.2d at 798. Appellant by his own actions as a fugitive disentitles himself from raising an objection to the forfeiture proceeding. See One Parcel of Real Estate, 868 F.2d at 1217. 20 Consequently, Eng's arguments as to which party initiated the action and what his procedural posture is in that action have no bearing on the applicability of the disentitlement doctrine once his status as a fugitive and the relatedness of the property to the criminal activity are established. 21 The First Circuit's decision in United States v. Pole No. 3172, Hopkinton, 852 F.2d 636 (1st Cir.1988) is not to the contrary. There the court concluded that the disentitlement doctrine should not be applied and that the defendant should be permitted to maintain a claim to property seized by the government. Although the court stated that the defendant, though technically a claimant, could not "be deemed to be in the customary role of a party invoking the aid of a court to vindicate rights asserted against another," id. at 643 (quoting Societe Internationale v. Rogers, 357 U.S. 197, 210, 78 S.Ct. 1087, 1094-95, 2 L.Ed.2d 1255 (1958)), we do not read the decision to apply the doctrine as turning on the defendant's procedural posture in the case. Rather, Pole No. 3172 merely held that the disentitlement doctrine is not applicable where the defendant's status as a fugitive is not sufficiently related to the civil forfeiture and the defendant had no notice of the criminal proceeding at which he failed to appear. 852 F.2d at 644. Neither of these factors are present in the instant matter. Accord, e.g., One Parcel of Real Estate, 868 F.2d at 1216 (dismissing claim to property brought by fugitive where "[t]he in rem forfeiture action against the defendant real property is unquestionably related to the appellant's indictment for drug trafficking"). 22 In its complaint and amended verified complaint in rem, the government has detailed the transactions through which Johnny Eng purchased the subject defendant properties. It has alleged that the defendants were purchased with proceeds of narcotics transactions engaged in by Eng. Hence, the civil forfeiture action clearly involves property related to the criminal indictment against appellant and--due to Eng's fugitive status--satisfies the requirements of the disentitlement doctrine. 23 Eng next argues that, even if the disentitlement doctrine is applicable, the district court misinterpreted its nature and scope by failing to realize that its application is discretionary. Appellant insists the district court refused to exercise its discretion by default when it ruled in the government's favor. Our review of the record shows that counsel for Eng most ably argued the discretionary nature of the doctrine. The trial court was therefore well aware that it had discretion to hear Eng, and by declaring Eng disentitled, it used language indicating a discretionary decision: "Eng is a fugitive from justice, and this court will not stay a civil case pending the outcome of a criminal matter in which he hopes never to appear." 745 F.Supp. at 120. Judge Raggi did not say she had no power to hear Eng, but stated instead she had chosen not to hear him. Appellant may decide to waive extradition and return to this country to face the charges against him. In the meanwhile his refusal to do so disentitles him from litigating in federal court his civil claim to property connected to these criminal charges. 24 Eng also argues that his assertion of rights traditionally associated with due process under the terms of the United States extradition treaty with Hong Kong converts his attempt to fight extradition into an attempt to assert affirmative constitutional claims, thereby making this the sort of case in which a court should exercise its discretion to hear the fugitive's case. We disagree that the case is either unusual or that defendant's invocation of constitutional rights should tip the scales in favor of allowing his case to be heard. Appellant is entitled to all of his due process rights once he returns to stand trial. None of his constitutional rights are given up by waiving extradition. His remedy as a fugitive is to forego that status and promptly avail himself of his right to a speedy and public trial guaranteed him under the Constitution. See United States v. Weinstein, 511 F.2d 622, 629 (2d Cir.1975). II Statutory Standing 25 We address Eng's remaining assertion that he adequately met statutory standing requirements. The provision governing the seizure of property subject to civil forfeiture, 21 U.S.C. § 881(b) (1988), provides that property may be seized "upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims." Admiralty Rule C(6) states that a claimant asserting rights in property that has been seized and that is the subject of a forfeiture action in rem must file a claim within ten days after process has been executed or within such additional time as the court may allow. The filing of a verified claim is an essential element in establishing standing to challenge a forfeiture under Rule C(6). See Mercado, 873 F.2d at 645; United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir.1985). 26 Eng never filed a claim under Admiralty Rule C(6). Instead, he filed a motion for an order to show cause why the properties should not be summarily released from arrest. He now argues that the government did not provide him with notice of the forfeiture action until eight days after the period for filing a verified claim had expired. Yet, he filed his motion for an order to show cause on March 15, 1990, the very same date on which he contends the time to file a verified claim expired. It follows logically that actual notice of the forfeiture action was given within sufficient time in order for Eng to have filed a verified claim, had he so desired. Moreover, compliance with Rule C(6) is not complicated, and the trial court might well have been inclined to allow appellant to file an untimely claim, particularly in view of his incarceration in Hong Kong. 27 Claiming that he is nonetheless excused from compliance with the statutorily mandated process, he relies on United States v. Premises and Real Property at 4492 South Livonia Road, Livonia, New York, 889 F.2d 1258 (2d Cir.1989). There we held that a claimant who demonstrates sufficient interest in the property by filing motion papers with the court may be excused from technical noncompliance with the rules governing the filing of claims. But Livonia Road does not control here. Claimant there made the requisite showing that he possessed an interest in the subject property. Quite the contrary, Eng's interest in the property subject to the civil in rem action is indefinite and undetermined, described by his counsel only as his "interest, if any, in the defendant properties." 28 Appellant also declares that he did not file a verified claim, and did not move for leave of court to file an untimely claim, because filing a verified claim would have waived the motion for an order to show cause, citing Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, 756 F.2d 1103 (5th Cir.1985). Cactus Pipe stands for the proposition that the filing of a claim by the owner of property confers in rem jurisdiction over the property because the owner's unconditional claim constitutes an appearance on its behalf. Id. at 1108, 1110. We fail to see how this supports appellant's present argument that filing a claim would have waived the motion for an order to show cause. Further, Cactus Pipe stated that the filing of a claim without any jurisdictional objection within or prior to the pleading constituted an appearance on the part of the claimant. Id. at 1110. Nothing said in that case prohibited Eng from bringing his motion for an order to show cause or caused him to waive it if he chose to file a subsequent claim. In any event, before he could make such a motion, it was necessary for him to file a verified complaint in the forfeiture action in order to establish his standing in that case. Having failed to file the verified claim, Eng has no statutory standing under Rule C(6) to challenge the forfeiture of the property. 29 Because Eng is disentitled from participating in the civil forfeiture action, and lacks as well the requisite statutory standing, it is unnecessary for us to address his argument that the district court lacked jurisdiction over the defendant property not within the Eastern District of New York. CONCLUSION 30 The order dated August 21, 1990, and the resulting default judgment in favor of the United States entered by the Clerk of the Court on August 30, 1990 are, in all respects, affirmed. * Hon. Daniel M. Friedman, U.S. Circuit Judge for the Federal Circuit, sitting by designation

142 F.3d 439 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Mervyn BUTLER, Petitioner-Appellant,v.United States of America, Respondent-Appellee. No. 95-3340. United States Court of Appeals,Seventh Circuit. .Submitted Mar. 12, 1998*.Decided Apr. 1, 1998. Appeal from the United States District Court for the Central District of Illinois. No. 95-3340 Richard Mills, Judge. Before Hon. FRANK H. EASTERBROOK, Hon. ILANA DIAMOND ROVNER, Hon. DIANE P. WOOD, Circuit Judges. ORDER 1 Mervyn Butler appeals the denial of his motion to vacate, 28 U.S.C. § 2255, claiming that the holding in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), invalidates his conviction for using and carrying a firearm during a drug trafficking offense. 18 U .S.C. § 924(c). We affirm. 2 Initially, we must address a challenge to our jurisdiction. The government contends that because the Central District of Illinois docketed this collateral attack as a continuation of the criminal case, instead of as a separate civil action, a separate document of judgment was not entered as required by Federal Rule of Civil Procedure 58. Thus, the government asserts, under Armstrong v. Ahitow, 36 F.3d 574 (7th Cir.1994), we lack jurisdiction over this appeal. The government misunderstands the import of the separate document rule of Rule 58, which is to protect the appellant's opportunity to appeal by providing certainty as to the deadline for filing a notice of appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); Armstrong, 36 F.3d at 575. 3 A Rule 58 entry, however, is not essential to an appeal. Mallis, 435 U.S. at 387; Otis v. City of Chicago, 29 F.3d 1159, 1165 (7th Cir.1994). If the district court clearly intended the order from which an appeal is taken to be a final decision, and if the appellee would not be misled or prejudiced as a result, the appellant may waive entry of a separate judgment. Mallis, 435 U.S. at 387; Armstrong, 36 F.3d at 575. The government does not argue that it has been misled or that it would suffer prejudice; nor does it argue that the district court did not intend the order from which Butler appeals to be final. If we dismissed this appeal, the district court would simply enter a separate judgment. In other words, "[w]heels would spin for no practical purpose." Mallis, 435 U.S. at 385. We conclude, therefore, that we have jurisdiction over this appeal. 4 The facts relevant to the substantive issue on appeal are as follows. Butler and two co-conspirators were arrested during a sting operation. The three conspirators planned to purchase cocaine from a supplier named Scott who was a government agent. The three men drove to a pre-arranged meeting and paid Scott with cash supplied by Butler and guns supplied by one of the co-conspirators. Immediately thereafter the three men were arrested. Throughout the transaction Butler remained sitting in the back seat of the car. A search of the car revealed a .22 caliber semi-automatic pistol on the floor of the back seat. Butler was charged with conspiracy to distribute cocaine, 21 U.S.C. § 846, attempt to possess and distribute cocaine, 21 U.S.C. § 841(a), and using or carrying the .22 caliber pistol during a drug trafficking offense ("weapon count"), 18 U.S.C. § 924(c). Butler was tried by a jury, which convicted Butler on all three counts. We affirmed the conviction and sentence. United States v. Butler, No. 93-1095 (7th Cir. Nov.29, 1993) (unpublished order). 5 Butler then filed the motion at issue in this appeal. He brought a Bailey challenge to the jury instruction on the weapon count. The district court denied Butler's motion on the ground that the jury necessarily believed that Butler personally carried the gun when it found him guilty on the weapon count. Butler appeals, arguing that the jury could have convicted him of mere possession simply because the gun was in the car.1 He also argues that he could not be convicted under the "carrying" prong of § 924(c) because he was not the person driving the car and the evidence was insufficient to prove he ever carried the gun on his person.2 6 An erroneous instruction under Bailey does not necessarily entitle a petitioner to a new trial. Wilson v. United States, 125 F.3d 1087, 1090 (7th Cir.1997); United States v. Cooke, 110 F.3d 1288, 1293-94 (7th Cir.1997). In fact, if "all the evidence presented [at trial] qualifies as either active-employment 'use' or 'carry,' [this] court will affirm a conviction despite the bad instruction." Cooke, 110 F.3d at 1294 (quoting United States v. Cotton, 101 F.3d 52, 56 (7th Cir.1996). If, however, some of the evidence qualifies as "use" or as "carry," but other evidence "points to mere possession or some type of now-defunct, inactive 'use,' the court will reverse and remand for a new trial." Id. Essentially, this court looks to whether a properly instructed jury could have convicted the defendant under § 924(c). Id. 7 "[P]ossession of [a] firearm coupled with the affirmative act of transporting it" constitutes carrying under § 924(c). Cooke, 110 F.3d at 1297; see Wilson v. United States, 125 F.3d 1087, 1090 (7th Cir.1997); United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.1996). Whether Butler personally possessed and transported (and therefore "carried") the gun is irrelevant because he was convicted of conspiracy. "[T]he rule of co-conspirator liability announced in Pinkerton [v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ] applies to § 924(c) convictions." Woodruff, 131 F.3d at 1243; cf. Cooke, 110 F.3d at 1297 n. 9 (noting that because the defendant was not charged with conspiracy, it was unnecessary to consider whether he would have been properly convicted for his cohort's activities). Thus, even if the gun was carried by one of his co-conspirators, Butler is responsible as long as the gun was carried in furtherance of the conspiracy and it was reasonably foreseeable to Butler that the gun would be carried. Woodruff, 131 F.3d at 1243. That the gun was carried in furtherance of the conspiracy is necessarily established because the jury found that the gun was carried "during and in relation to" the drug transaction. See Broadway v. United States, 104 F.3d 901, 903-04 (7th Cir.1997). Likewise, the evidence showed that it was reasonably foreseeable to Butler that one of his co-conspirators would carry a gun to the drug transaction; after all the conspiracy involved trading guns for drugs. Moreover, "the inherently violent nature of the drug trade makes the presence of firearms ... reasonably foreseeable." United States v. Edwards, 36 F.3d 639, 644 (7th Cir.1994); see also United States v. Sandoval-Curiel, 50 F.3d 1389, 1393 (7th Cir.1995) ("[T]he presence of firearms in transactions involving a sizeable amount of money and drugs is reasonably foreseeable."). Finally, that Butler was not driving the car is irrelevant: either he or one of his co-conspirators carried the gun during the drug transaction. Under Woodruff, that is enough. 8 Butler also argues that, based on the wording of the indictment, the government was required to prove that he both used and carried the .22 caliber pistol. We rejected an identical claim in Stanback, 113 F.3d at 656 n. 3. The remainder of Butler's assertions go to the credibility of various witnesses. We do not review credibility determinations. United States v. Earnest, 129 F.3d 906, 913 (7th Cir.1997). 9 Butler's final argument is that the district court erred in denying his motion for reconsideration. In the motion, Butler argued that the district court should not have decided his case before he filed his traverse, arguably delayed through no fault of his own. The only new argument presented in Butler's traverse is that the mere presence of the gun in the car should not necessarily satisfy the carrying prong of § 924(c). Because resolution of this case does not depend on the answer to this question, the district court did not abuse its discretion by denying reconsideration. 10 For these reasons, the district court's judgment is AFFIRMED. * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R.App. P. 34(a); Cir. R. 34(f) 1 This court will address Bailey claims on collateral attack because convictions obtained before Bailey "may have been premised on conduct that is no longer regarded as criminal." Stanback v. United States, 113 F.3d 651, 654 (7th Cir.1997). Thus, petitioners alleging error under Bailey may establish a complete miscarriage of justice. See id.; Woodruff v. United States, 131 F.3d 1238, 1241 (7th Cir.1997) 2 The Supreme Court has recently granted certiorari to three cases involving Bailey challenges. Muscarello v. United States, --- U.S. ----, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997); Hohn v. United States, --- U.S. ----, 118 S.Ct. 361, 139 L.Ed.2d 281; Bousley v. Brooks, 118 S.Ct. 31 (1997). In Muscarello, the Court will address the question of whether a weapon must be "readily accessible" in order to be carried under § 924(c). The question presented by Hohn is whether the Supreme Court has jurisdiction to review the court of appeals' denial of a petitioner's request for a certificate of appealability. Bousley involves the question of whether a guilty plea waives a Bailey challenge when the plea was entered before Bailey was decided. The outcome of this case does not depend upon the answer to any of these questions

533 S.W.2d 204 (1976) INSURANCE COMPANY OF NORTH AMERICA et al., Appellants, v. Billy B. NICHOLAS, Administrator, Appellee. No. 75-238. Supreme Court of Arkansas. March 1, 1976. *205 Plegge, Lowe & Whitmore, Little Rock, for Fireman's Fund American Ins. Co. Wright, Lindsey & Jennings, Little Rock, for Ins. Co. of North America. Kay L. Matthews, Little Rock, for appellee. GEORGE ROSE SMITH, Justice. This multi-party lawsuit arose as a result of there having been two concurrent fire insurance policies upon a house in Little Rock that was partially damaged by fire on December 2, 1972. The record owner, Hallie B. Nicholas, died some months later. The appellee, as the administrator of Mrs. Nicholas's estate, brought this suit against the two insurance companies (joining as defendants the other beneficiaries of the policies). The chancellor's decree held each insurer liable in the amount sued for, with penalty and attorney's fee. For reversal each insurer contends that it is not liable to the extent found by the chancellor. The facts are not in dispute. Mrs. Nicholas originally owned the house, subject to a mortgage not in controversy. She sold the property, by an installment contract, to Edward D. Briscoe, Jr. At that time one of the insurers, Fireman's Fund, insured the property for $10,000, naming Mrs. Nicholas and Briscoe as the insureds. That policy contained a "pro rata" other insurance clause (a term explained in Ark. Grain Corp. v. Lloyd's, 240 Ark. 750, 402 S.W.2d 118 [1966]). Briscoe later contracted to sell the property to Cleaster Coates. The other insurer, INA, then insured the property for $11,000, naming Briscoe and Coates as the insureds. That policy contained an "escape" other insurance clause (also explained in Lloyd's). The fire damage amounted to $13,153.47. The two insurers took different courses. INA, without invoking its escape clause, simply paid the full amount of its policy, $11,000, to its insureds, Briscoe and Coates, who presumably divided the money as they saw fit. Briscoe, before this suit was filed, fell behind in his payments to Mrs. Nicholas and reconveyed his interest to her. While the suit was pending Briscoe was adjudicated a bankrupt and was dismissed from the case. The other insurer, Fireman's Fund, invoked the benefit of its pro rata clause by tendering to its insureds, Nicholas and Briscoe, its proportionate part (10/21sts) of the loss. Nicholas rejected the tender and brought this suit, successfully contending in the trial court that Fireman's Fund is liable to him for its full $10,000 and that INA is liable to him for the remaining $3,153.47 of the loss. We first consider INA's appeal. Here the issue is comparatively simple. An insurance policy is ordinarily a personal contract, upon which the insured alone is entitled to recover. Langford v. Searcy College, 73 Ark. 211, 83 S.W. 944 (1904). INA was therefore justified in admitting liability, waiving its escape clause, and paying the full amount of its coverage to its named insureds, Briscoe and Coates. It makes no difference that INA knew of Mrs. Nicholas's interest in the property when it paid the loss. Whatever claim Mrs. Nicholas *206 might have asserted against INA was necessarily derived from Briscoe and was extinguished when INA paid Briscoe in full. Mrs. Nicholas could not claim the benefits of Briscoe's INA policy without also being subject to its burdens. Nicholas also asserts an equitable lien against the proceeds of the INA policy, but that also was a matter between Mrs. Nicholas and Briscoe. It is argued that this lien theory is supported by the presence of a standard mortgage clause in the INA policy. That clause, however, was never activated, because no mortgagee was named in the policy (as the clause required). We conclude that the chancellor erred in holding INA liable to Nicholas. As to Fireman's Fund, the pivotal question is whether the INA policy constituted other insurance within the meaning of Fireman's Fund's pro rata clause. Such double insurance exists when the two policies cover the same interests in the same property, against the same risks, and for the benefit of the same person. Couch on Insurance 2d, § 37:1394 (1962). Here the questions are whether the two policies covered the same interests for the benefit of the same person. Briscoe's insured interest under the two policies was evidently the same. What he purchased from Mrs. Nicholas is what he sold to Coates—nothing more, nothing less. That he was paying Mrs. Nicholas and being paid by Coates did not divide his estate into two ownerships. It must be remembered that the purpose of the pro rata clause is to protect the insurer against the hazards of overinsurance. Such a hazard would have existed if Briscoe had insured the full value of his estate with two different insurers. By the same reasoning the two policies were for the benefit of the same person —Briscoe. This particular point seems to have arisen very infrequently, but the cases are uniform in holding that there is double insurance where the same person is an insured in each policy. Horridge v. Dwelling-House Ins. Co., 75 Iowa 375, 39 N.W. 648 (1888); Pitney v. Glen's Falls Ins. Co., 65 N.Y. 6 (1875); Mussey v. Atlas Mut. Ins. Co., 14 N.Y. 79 (1856). Again the hazard of overinsurance would exist if Briscoe could recover in full under each policy. As a matter of fact, owing to INA's waiver of its escape clause, the two insurers will pay $11,000 plus $6,263.56, a total that exceeds the physical damage of $13,153.47. If the Nicholas estate sustains a loss it will be attributable to Mrs. Nicholas's not having taken out a policy by herself, instead of with Briscoe, and to the latter's insolvency after he was paid by INA. Needless to say, principles of law that reach a sound result with respect to solvent litigants cannot be abrogated simply because the fortuitous intervention of insolvency may cause a hardship. Reversed and remanded for the entry of a decree in harmony with this opinion. BYRD, J., dissents. FOGLEMAN, J., not participating. BYRD, Justice (dissenting). I disagree with so much of the majority opinion as holds that the INA policy constituted other insurance to Mrs. Nicholas. The Fireman's Fund policy lists the insured's name and address as follows: "Mrs. Hallie Nicholas, Vendor and Ed Briscoe, Vendee Arkansas Abstract Company 212 Center Street Little Rock, Arkansas" In 44 Am.Jur.2d Insurance § 1808 it is stated: "It is generally held that in order for a proportionate recovery clause to operate in the insurer's favor, there must, under the policies, be both an identity of the insured interest and an identity of risk; and the requirement with respect to an identity of risk is not obviated by the fact that the apportionment clause refers to other insurance `whether concurrent or not.'" *207 In 6 Appleman, Insurance Law And Practice § 3905 (1972), the author states: "The apportionment of loss between concurrent insurers is proper, where the policy so provides. Proration provisions are inserted in insurance policies to relieve the insurer from the burden of litigating with the insured as to the validity of other policies, and to eliminate any inducement to the insured to commit fraud. But every rule of construction in apportioning losses must yield to the right of the insured to be fully indemnified, and it must always be remembered that the contribution clause in an insurance policy should not be so applied as to diminish the protection of the insured." [Emphasis mine] In Couch on Insurance 2d § 37:1394 (1962), the author states: "By definition, other or double insurance exists where two or more policies of insurance are effected upon or cover the same interests in the same property, against the same risks, and in favor of, or for the benefit of, the same person. As all of these conditions must concur, it follows that if different persons have different interests in the same subject of insurance, each may insure his interest without effecting other or double insurance. Likewise a policy of insurance containing a stipulation against `other insurance' is not invalidated by the fact that at the time of its issuance a prior policy covering the same property is in existence, unless the insured has an interest in such prior policy, or will derive a benefit under it, in the event of the destruction of the property." Also, in 5 Appleman, Insurance Law And Practice § 3057 (1970), the author states: "The better rule is to the effect that the interests of vendor and vendee are distinct and different, and that an insurance by such vendee upon his own interest will not nullify insurance previously taken out by the vendor...." Furthermore, the trial court found: (Decree of Oct. 10, 1974) "16. That the plaintiff was never at any time informed by any of the parties of the existence of the policy coverage issued by the defendant, Insurance Company of North America, and had no actual knowledge of that fact until after payment had been made by Insurance Company of North America to Coates and Briscoe." Thus, while I would prefer that the proration be denied on the theory that it should yield to the right of Mrs. Nicholas to be fully indemnified, there is another basis upon which it should be denied—i. e. another policy obtained without the knowledge of the insured does not constitute other insurance. See Hall v. Concordia Fire Ins. Co., 90 Mich. 403, 51 N.W. 524 (1892), St. Paul Fire & Marine Insurance Co. v. Crutchfield, 162 Tex. 586, 350 S.W.2d 534 (1961) and 6 Appleman, Insurance Law And Practice § 3909 (1972). Therefore, I would enter judgment against Fireman's Fund for the full amount of the policy, the 12% statutory penalty and a $2,500 attorney's fee. For the reasons stated, I respectfully dissent.

J-S59010-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MARLON BROWN, : : Appellant : No. 2562 EDA 2013 Appeal from the Judgment of Sentence Entered May 31, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0011141-2008. BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.* MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2014 Appellant, Marlon Brown, appeals nunc pro tunc from the judgment of sentence entered following his conviction for a violation of the Uniform Firearms Act, 18 Pa.C.S. § 6105(a)(1), persons prohibited from possessing firearms. We affirm. On June 26, 2008, Appellant was arrested and charged with the aforementioned firearms offense, possession with intent to deliver, and conspiracy. Appellant’s first jury trial commenced on November 16, 2010 and Appellant was found not guilty of possession with intent to deliver and conspiracy. The jury could not agree on the firearms charge, and a motion for a mistrial was granted on that charge. ______________________________ *Retired Senior Judge assigned to the Superior Court. J-S59010-14 Appellant’s second trial on the firearms violation was held on March 20–21, 2012. The trial court summarized the facts adduced at that trial as follows: Detective Andrew Callaghan of the Philadelphia Narcotics Unit testified that in 2008 he was on loan to the FBI Violent Crime and Gang Task Force. Notes of Testimony from March 20, 2012 (Hereinafter, N.T. 3/20/12), p. 64–65. Detective Callaghan received information that marijuana was being sold by a male known as Peanut at 1902 South 23rd Street in Philadelphia. Id., at p. 67. Detective Callaghan testified that he worked with Officer Reginald Graham of the Philadelphia police, who sent a confidential informant to that location on June 23, 2008. Id., at p. 67-68. The confidential informant purchased two packets of marijuana from Eloise Brown. Id. On June 24, 2008, Detective Callaghan conducted a surveillance of the property and observed Eloise Brown sitting on a plastic lawn chair in front of the house. Id., at p[.] 72-73. Ms. Brown engaged in two transactions wherein she was observed accepting a small item from an individual, entering the house briefly, and emerging from the house to hand a small item to them. Id., at 73–74. Detective Callaghan then prepared a search and seizure warrant for the property at 1902 South 23rd Street. Id., at p. 78. On June 26, 2008, Detective Callaghan and several backup officers arrived at the property to conduct the search pursuant to the warrant. Id., at p. 88. As the officers approached the screen door of the property, Detective Callaghan observed Ms. Eloise Brown, inside of the door, look up and yell “Police, clean up.” Id. Detective Callaghan and other officers moved to the second floor of the home and encountered Appellant and another male, identified as Matthew Love, emerging from the second floor rear bedroom. Id., at p. 89-90. Appellant stated that he lived at the location, and Mr. Love stated that he did not. Id., at p. 91. Detective Callaghan brought Appellant to the dining room table to elicit his biographical information. Id., at p. 92. Appellant reiterated that he lived at 1902 South 23rd Street while giving Detective Callaghan biographical information. Id., at p. 97. -2- J-S59010-14 Officer Marilyn Brown asked Detective Callaghan to join her in the kitchen, which she was searching while Detective Callaghan questioned Appellant. Id., at p. 100. Officer Brown drew Detective Callaghan’s attention to a blue soft cooler in a kitchen cabinet. Id. Inside the cooler was a Smith & Wesson Model 629 .44 caliber revolver loaded with six live rounds. Id., at p. 100–101, 108. Detective Callaghan told Officer Brown not to touch the revolver and that it should be guarded for fingerprints. Id., at p. 101. Detective Callaghan testified that when Officer Brown called him over to the kitchen, Appellant “kind of slouched clown in his chair, like this, and his shoulders went down.” Id., at p. 103. Based on his observations, Detective Callaghan decided to read [A]ppellant his Miranda warnings at that time. Id., at p. 103-104. Appellant agreed to answer Detective Callaghan’s questions. Id., at p. 105. Appellant said that he knew about the firearm and that he was “holding it for a guy named Rob,” but that he did not know Rob’s last name. Id., at p. 105-106. Detective Callaghan told Appellant that he would be submitting the firearm for fingerprints and asked Appellant if he had touched it. Id. Appellant responded that he had touched the firearm. Id. The firearm was placed on a property receipt and submitted to the Firearm Identification Unit of the Philadelphia Police. Id., at p. 111–113. Detective Callaghan searched the second floor rear bedroom where Appellant was first encountered. Id., at p. 116– 117. Detective Callaghan observed male clothing in the room and recovered one packet of marijuana, numerous unused packets, bags with marijuana residue, and $268 in United States Currency. Id. Officer Joanne Gain of the Philadelphia Police Crime Scene Unit testified that she swabbed the .44 caliber revolver and the live and spent rounds for DNA. Id., at p. 193-194. Counsel stipulated that an oral swab was taken from [Appellant] and submitted to the Philadelphia Police criminalistics lab for comparison with the firearm. Id., at p. 207–208. Counsel also stipulated that the .44 caliber revolver was examined by the Firearms Identification Unit, was found to be operable, and had a barrel length of six inches. Id. -3- J-S59010-14 Forensic Investigator Benjamin Levin testified that he was a DNA Analyst employed by the Philadelphia Police Department, and was admitted as an expert in DNA analysis. Id., at p. 210– 213. Mr. Levin testified that he performed the DNA analysis from the samples taken from Marlon Brown and the revolver. Id., at p. 219. Mr. Levin’s scientific conclusion based on the analysis was that Marlon Brown was included as a contributor to the DNA sample detected on a swab from the firearm, and that the probability of randomly selecting an unrelated individual who could be included as a contributor to the DNA was approximately 1 in 50,610 in the African American population, 1 in 545,900 in the Caucasian population, and 1 in 281,500 in the Hispanic population. Id., at p. 227. Trial Court Opinion, 11/4/13, at 2–5. The jury found Appellant guilty of violating the Uniform Firearms Act, and on May 31, 2012, he was sentenced to a five–to–ten year term of incarceration. Appellant filed a motion for extraordinary relief on June 6, 2012. The trial court never ruled on the motion nor does the record indicate that it was denied by operation of law. On April 9, 2013, Appellant filed a notice of appeal. The post–trial unit of the First Judicial District informed Appellant’s counsel that the notice was untimely and suggested filing a petition under the Post Conviction Relief Act requesting that Appellant’s appellate rights be reinstated. On August 30, 2013, the court granted Appellant’s motion to reinstate his appellate rights. The instant appeal was filed on September 4, 2013. Appellant raises the following issues for review: -4- J-S59010-14 A. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUPPORT THE VERDICT WHERE IT FAILED TO SHOW THAT THE APPELLANT WAS IN POSSESSION OF THE FIREARM? B. DID THE PROSECUTION COMMIT MISCONDUCT WHEN IT INFORMED APPELLANT ON THE DAY THAT THE JURY TRIAL WAS SET TO BEGIN THAT IF THE APPELLANT'S MOTHER TESTIFIED SHE WOULD FACE PROSECUTION ON RELATED CHARGES THAT HAD ALREADY BEEN DISMISSED WITHOUT PREJUDICE? Appellant’s Brief at 6. We first consider Appellant’s claim regarding the sufficiency of the evidence supporting his conviction. Appellant contends that the Commonwealth failed to prove that he possessed the firearm that was discovered in the kitchen at 1902 South 23rd Street. When examining a challenge to the sufficiency of the evidence: The standard we apply . . . is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. -5- J-S59010-14 Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This standard is similarly applicable in cases where the evidence is circumstantial rather than direct, “so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)). Section 6105(a) of the Uniform Firearms Act, 18 Pa.C.S. § 6105(a), prohibits a person convicted of any of thirty–eight specified offenses enumerated in section 6105(b) from possessing, using, or controlling a firearm. The parties stipulated that Appellant had a prior conviction for murder, one of those defined offenses, and the jury was advised that the prohibited person element of the offense had been satisfied. N.T., 3/21/12, at 25. Thus, the sole challenge to the sufficiency of the evidence supporting Appellant’s conviction is whether the Commonwealth proved that he possessed the firearm. In the instant matter, because the subject firearm was not found on Appellant's person, the Commonwealth was required to establish that Appellant constructively possessed the gun. Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super. 2009) (“Possession can be found by proving actual possession, constructive possession or joint constructive possession”) (quoting Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999)); see also Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. -6- J-S59010-14 1983); Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011). “Constructive possession is an inference arising from a set of facts that establishes that possession of the contraband was more likely than not.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (quoting Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001) (internal citations omitted)). Constructive possession is defined as “conscious dominion” which in turn, is defined as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Hopkins, 67 A.3d 817, 820– 821 (Pa. Super. 2013). Constructive possession may be established by the totality of the circumstances, Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012), and can be proven by circumstantial evidence. Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992) (quoting Macolino, 469 A.2d at 134). Furthermore, the fact that another person might have equal access and control to an object does not exclude a defendant’s constructive possession. Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996). Appellant challenges the sufficiency of the evidence supporting the jury’s constructive–possession finding for three reasons: 1) there were other people living at the house and present when the search warrant was executed; 2) the gun was recovered from a common area, the kitchen, -7- J-S59010-14 which was accessible by anyone in the house; and 3) the DNA evidence linking the gun to Appellant was suspect because its presence could be explained by Appellant’s sweat inadvertently dripping on the weapon. Our application of the legal fiction of constructive possession occasionally arises when, as here, contraband is found in a common area where others have access. In these situations, all the attendant facts and circumstances are weighed to determine whether the Commonwealth proved the defendant’s ability and intent to exercise control over the item in question. Miking, 17 A.3d at 926. In the present case, Appellant, Appellant’s mother, Eloise Brown, and a third person, Matt Love, were present at 1902 South 23rd Street when the search warrant was executed. Appellant told Detective Callaghan that he lived in the house with his mother. Matt Love, on the other hand, represented that he did not live in the house. While the search of the premises was being conducted, Appellant displayed behavior that the investigating detective construed as indicative of guilt. When Officer Brown summoned Detective Callaghan to the kitchen, Appellant reacted physically by hunching his shoulders and slouching in his chair. Appellant then told Detective Callaghan that he knew about the gun, stated that he was holding it for “Rob,” and admitted touching the gun. -8- J-S59010-14 These uncontested facts refute each of Appellant’s challenges to the sufficiency of the evidence. First, the testimony established that Appellant and Eloise Brown were the only residents of the subject premises. Second, the fact that Ms. Brown had equal access to the area where the firearm was discovered does not diminish the extent of Appellant’s ability and intent to exercise control over the gun. See Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (quoting Valette, 613 A.2d at 550) (“constructive possession may be found in one or more actors where item in issue is in area of joint control and equal access”). Third, Appellant admitted that he was holding the gun for a third person and, more significantly, admitted to touching the firearm—an activity highly probative of his control over the object. So, too, does this admission explain the presence of Appellant’s DNA on the gun and defeat his assertion that its presence occurred by inadvertent and unwitting contact with the weapon. Examining this evidence in its totality, and in a light favorable to the Commonwealth, we find that the jury could reasonably conclude that Appellant had both the ability and intent to exercise control of the firearm located in the cooler in the kitchen. Accordingly, there is no basis to disturb the jury’s verdict that Appellant constructively possessed a firearm in violation of section 6105(a)(1) of the Firearms Act. -9- J-S59010-14 Appellant’s second argument is that the prosecutor committed misconduct when she informed Appellant’s counsel that Eloise Brown would be prosecuted on previously–withdrawn charges if she testified in her son’s behalf. Appellant characterizes the prosecutor’s activity as bullying the witness into not testifying. Appellant, however, has failed to preserve this issue for meaningful appellate review. On the day before trial, the parties litigated a motion in limine. During the hearing on the motion, Appellant’s counsel indicated that he would be calling Eloise Brown as his sole defense witness. Motion in Limine, 3/19/12, at 31. The following morning, additional in limine motions were presented to the trial court, including whether certain defense–proffered documents were admissible. Defense counsel explained that he had intended to call Eloise Brown to authenticate the documents, but that Ms. Brown recently had decided against testifying. N.T., 3/20/12, at 8. This decision was occasioned by the prosecutor’s representation to Ms. Brown’s attorney that her client could be re–arrested on the dismissed charges if she opted to testify. When Ms. Brown’s counsel advised Ms. Brown of the possible consequences of her testimony, she invoked her Fifth Amendment right and elected not to testify. Id. at 38. Appellant orally motioned for a mistrial, which the trial court denied. N.T., 3/20/12, at 27, 31. While the specific basis for the motion is muddled, -10- J-S59010-14 it did implicate the evidentiary fallout resulting from Ms. Brown’s last-minute decision not to testify. Appellant complained that he was not given adequate notice of Ms. Brown’s potential unavailability, id. at 27, and in the absence of her testimony, he was now unable to authenticate documents that might prove that Appellant did not live at 1902 South 23rd Street during the relevant period. Id. at 31. At no point, however, did Appellant allege that prosecutorial misconduct reasoned Ms. Brown’s choice to remain silent. Consequently, his claim is waived for purposes of appeal. Pa.R.A.P. 302(a); Commonwealth v. Sanchez, 82 A.3d 943, 969 (Pa. 2013) (issues not raised in lower court are waived). We make the additional observation that this Court rejected a similar claim of prosecutorial misconduct in Commonwealth v. Smallhoover, 567 A.2d 1055 (Pa. Super. 1989). In Smallhoover, the defendant in a criminal tax prosecution intended to call his father as a witness. At a sidebar conference, the prosecutor informed the court that the father’s proposed testimony contradicted his prior statement to a revenue agent and could subject him to criminal liability. The prosecutor requested the court to advise the father of his right against self-incrimination and to have the father consult with his counsel. After conferring with his counsel, the father declined to testify. -11- J-S59010-14 On appeal, this Court rejected the appellant’s argument that the prosecutor’s statement to the court was improper and deprived him of a key witness. The Smallhoover Court observed that the Commonwealth’s recommendation to the trial court that the defendant should consult with counsel about his privilege against self–incrimination could not be considered coercive. Smallhoover, 576 A.2d at 1060. Additionally, the Court found it “significant” that, as here, the witness decided not to testify only after consultation with counsel and was not approached directly by the prosecutor. Id. Appellant’s waived and meritless claim of prosecutorial misconduct does not provide a basis for appellate relief. Accordingly, the judgment of sentence is affirmed. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/21/2014 -12- J-S59010-14 -13- 

513 N.E.2d 1214 (1987) In the matter of William C. Erbecker. Nos. 380S82, 585S197. Supreme Court of Indiana. October 5, 1987. Duge Butler, Owen Mullin, Indianapolis, for respondent. William G. Hussman, Clifford R. Courtney, Staff Attys., Indianapolis, for the Indiana Supreme Court Disciplinary Com'n. PER CURIAM. On October 30, 1981, this Court found the Respondent to be a disabled lawyer and imposed certain restrictions on his practice of law. These conditions were slightly modified on April 8, 1982, but otherwise remain in full force and effect. By reason of alleged violations of the restrictions imposed on the Respondent, the Disciplinary Commission, under Cause Number 380 S 82, now petitions this Court for further consideration of whether Respondent remains a disabled lawyer. Contemporaneous with the filing of their petition, the Disciplinary Commission further requested that the Respondent be suspended during the deliberation of this cause. Additionally, under Cause Number 585 S 197, the Disciplinary Commission has filed a Verified Complaint for Disciplinary Action, pursuant to Admission and Discipline Rule 23, Section 12, (accompanied by a petition for suspension pending prosecution) charging the Respondent with two counts of misconduct, namely, neglect of a legal matter and damaging his client, in violation of Disciplinary Rules 6-101(A)(3) and 7-101(A)(3) of the Code of Professional Responsibility. After a consolidated hearing, the Hearing Officer appointed to hear both proceedings has submitted his Findings and Recommendations. On the issue of temporary suspension pending final prosecution, the Hearing Officer determined that the evidence does not warrant immediate suspension. Thus, the case is now before this Court for a final determination on the question of disability and the petition for disciplinary action. Neither party has challenged the Hearing Officer's report. Upon review of the matters before this Court, we now find, in regard to the issue of disability, that by an Order of October 30, 1981, and a subsequent amendment of April 8, 1982, the Respondent was allowed to continue practicing law, but only upon the following conditions: a) That the Respondent's conduct as an attorney be monitored and supervised by the Indianapolis Bar Association Committee for Impaired Lawyers under a program approved by this Court on August 19, 1980, and b) That the Respondent continue to be treated as an out-patient hospital patient and that the attending physician of the Respondent make periodic reports of the Respondent's physical and mental condition to the Disciplinary Commission, and c) That the Respondent be regularly enrolled in the rehabilitation program of Alcoholics Anonymous, and d) That the Chairman of the Indianapolis Bar Association Committee for Impaired Lawyers make quarterly written reports of the Committee's supervision of Respondent's practice of law to the Disciplinary Commission and to this Court, and e) That the Respondent's practice be limited to the geographic region of Indianapolis, Indiana, with the exception of *1215 cases which are venued out to other counties in this State. Accepting the Hearing Officer's report, this Court now further finds that the Respondent did not continue to be treated as an out-patient hospital patient for alcoholism or mental illness following the order of October 30, 1981, and provided no reports to the Commission in that regard. Furthermore, Respondent has never provided to the Disciplinary Commission the required reports by his attending physician. Between September 14, 1984 and October 24, 1984, the Respondent suffered a "nervous breakdown". He did not cause any report of his condition and treatment to be reported to the Commission until July, 1986. The Respondent's Discharge Report from the hospital in October, 1984 required him to be seen regularly by Dr. Masbaum. Respondent has not done so. No Final Report has been received by the Commission from Dr. Masbaum. Respondent was not continually enrolled in the rehabilitation program of Alcoholics Anonymous, although he has, since April, 1986, become active in AA. No quarterly reports of the supervision of Respondent's practice have been received since March of 1983. In light of the foregoing findings, we conclude that the Respondent has failed to comply with this Court's Order of October 30, 1981 and April 8, 1982. Under Count I of the Verified Complaint for Disciplinary Action, we find that, on November 29, 1983, the Respondent was retained to perfect an appeal for John Lett. The Respondent filed a Motion to Correct Error which was overruled on January 6, 1984. On February 7, 1984, he filed a Motion for Entire Praecipe, but said motion was denied on February 17, 1984 because it was filed late or 31 days after the ruling on the Motion to Correct Error. Lett's mother, Sylvia Lawson, had sent checks to the Respondent for the purchase of a transcript. However, after the Respondent failed to return her calls or to take other action on behalf of Lett, Lawson stopped payment on the checks and the Respondent was unable to purchase a transcript. The Respondent failed to seek permission from the Court to file a belated appeal and took no other action in the case after February 17, 1984. He did not formally withdraw or seek permission for Lett to proceed in forma pauperis. These findings clearly demonstrate that the Respondent violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(3) of the Code of Professional Responsibility by neglecting a legal matter and prejudicing and damaging his client. As to Count II, we find that the Respondent defended Michael Franklin in a criminal matter for which, on July 1, 1983, Franklin was sentenced to five years. At such time, the Respondent agreed to begin the appeal process and to file a Motion to Correct Error. The Respondent failed to file the Motion to Correct Error within the 60-day period provided by Trial Rule 59 of the Indiana Rules of Court. On November 2, 1983, the Respondent requested permission to file a belated Motion to Correct Error which request was granted on November 4, 1983. Thereafter, he filed a one-page Belated Motion to Correct Error which was denied on January 3, 1984. In light of the foregoing findings, we conclude that the Respondent violated Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility by failing to file a Motion to Correct Error for approximately six (6) months after his client was sentenced to a five (5) year term of imprisonment. The evidence before us clearly establishes that, since our determination of disability and imposition of restrictions, the Respondent has not only failed to comply with the proscribed conditions, but has also engaged in further acts of misconduct. This Court has a responsibility to safeguard the public from unfit lawyers, whatever the cause of unfitness may be. In re Runyon (1986), Ind., 491 N.E.2d 189; In re Hayes, Jr. (1984), Ind., 467 N.E.2d 20; In re Vincent (1978), 268 Ind. 101, 374 N.E.2d 40; In re Connor (1976), 265 Ind. 610, 358 N.E.2d 120. In light of the ineffectiveness of restricting Respondent's practice and his continued misconduct, this Court would be remiss in our duty to the public were we to allow the Respondent to continue practicing law. Under these circumstances, a period *1216 of suspension from the practice of law is warranted. IT IS, THEREFORE, ORDERED that the Respondent, William C. Erbecker, is hereby suspended from the practice of law for a period of not less than one (1) year, beginning November 6, 1987. Costs of this proceeding are assessed against the Respondent. DeBRULER, J., dissents and would impose a suspension for a period of six (6) months.

Case: 14-13556 Date Filed: 11/26/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13556 Non-Argument Calendar ________________________ D.C. Docket Nos. 5:14-cv-00343-TJC; 6:13-bk-14410-KSJ In Re: CELIA ELLA CORRAD, Debtor. __________________________________________________________________ BANK OF AMERICA, N.A., Plaintiff-Appellant, versus CELIA ELLA CORRAD, Defendants-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (November 26, 2014) Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.  Case: 14-13556 Date Filed: 11/26/2014 Page: 2 of 4 PER CURIAM: This appeal concerns an order of the bankruptcy court permitting a debtor to “strip off” an “underwater” second mortgage under § 506(d) of the Bankruptcy Code. I. BACKGROUND Appellee Celia E. Corrad is a Chapter 7 debtor. She owns real property in Yalaha, Florida that is encumbered by two mortgages. The balance of the first lien exceeds the fair market value of the property, rendering the second lien, which appellant Bank of America, N.A. holds, completely “underwater.” On November 26, 2013, Corrad moved the bankruptcy court to declare Bank of America’s interest in her property to be unsecured and void under § 506(d) of the Bankruptcy Code. 11 U.S.C. § 506(d). Relying on In re McNeal, 735 F.3d 1263 (11th Cir. 2012), the bankruptcy court granted Corrad’s motion on May 12, 2014. Bank of America appealed that order to the district court, where it moved for a summary affirmance. The district court granted Bank of America’s motion on July 21, 2014, and this appeal followed. II. STANDARD OF REVIEW When the district court affirms an order of the bankruptcy court, we review the bankruptcy court’s decision independently of the district court. In re TOUSA, 2  Case: 14-13556 Date Filed: 11/26/2014 Page: 3 of 4 Inc., 680 F.3d 1298, 1310 (11th Cir. 2012). We review de novo the bankruptcy court’s legal conclusions. Id. III. ANALYSIS Section 506(d) of the Bankruptcy Code provides, in pertinent part, that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.” 11 U.S.C. § 506(d). In Folendore v. United States Small Business Administration, we interpreted the above statutory language to hold that even an allowed claim can be deemed voidable if it is wholly unsecured. 862 F.2d 1537, 1538-40 (11th Cir. 1989). Thus, under Folendore, a debtor can move a bankruptcy court to strip off an underwater lien. Id. Three years after the Folendore decision, the Supreme Court issued its opinion in Dewsnup v. Timm, 502 U.S. 410 (1992), which Bank of America argues “squarely repudiated Folendore’s interpretation of section 506(d).” Bank of America claims that “Folendore [] could not have survived Dewsnup.” Unfortunately for Bank of America, we considered and rejected this same argument in our 2012 McNeal decision. 735 F.3d at 1265-66. There, although we acknowledged Dewsnup’s seeming disavowal of Folendore’s “plain language analysis” of § 506(d), we declined to deviate from that opinion because Dewsnup was “not ‘clearly on point,’” as it “disallowed only a ‘strip down’ of a partially 3  Case: 14-13556 Date Filed: 11/26/2014 Page: 4 of 4 secured mortgage lien and did not address a ‘strip off’ of a wholly unsecured lien.” Id. at 1265. Consequently, McNeal held that Folendore remained the controlling precedent within this Circuit. Id. Under our prior precedent rule, we are bound by this Court’s prior decisions “unless and until [they are] overruled by this court en banc or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Bank of America argues that Folendore was wrongly decided, but concedes that it and McNeal remain binding precedent and control this case. Accordingly, the bankruptcy court did not err by permitting Corrad to strip off Bank of America’s underwater lien, and the decision of the district court is therefore affirmed. AFFIRMED. 4 

737 N.W.2d 740 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kewayne Hersel CARTER, Defendant-Appellant. Docket No. 133614. COA No. 266550. Supreme Court of Michigan. September 10, 2007. On order of the Court, the application for leave to appeal the February 13, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we *741 are not persuaded that the questions presented should be reviewed by this Court.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRYCE A. CROMARTIE, Plaintiff, v. Civil Action No. 09–1355 (CKK) DISTRICT OF COLUMBIA, et al., Defendants. MEMORANDUM OPINION (August 30, 2011) Plaintiff Bryce Cromartie (“Plaintiff”) filed this action against Defendants Miguel Rodriguezgil and J. Brown, both Metropolitan Police Officers, and the District of Columbia asserting claims for false arrest, assault & battery, intentional infliction of emotional distress, and deprivation of his civil rights in violation of 42 U.S.C. § 1983. Presently pending before the Court is Plaintiff’s [30] Motion to Alter or Amend Judgment. Plaintiff asks the Court to reconsider its August 6, 2010 order granting summary judgment for Defendants. The Court granted Defendants’ motion for summary judgment as conceded because Plaintiff failed to file a timely opposition, and the Court alternatively ruled that Defendants were entitled to judgment as a matter of law based on the factual record produced by Defendants, which went unrebutted by Plaintiff. In his motion to alter or amend the judgment, Plaintiff argues that his failure to file a timely opposition was the result of a technical error and that the record produced by Defendants does not support an award of summary judgment. For the reasons explained below, the Court shall DENY Plaintiff’s motion to alter or amend the Court’s judgment of August 6, 2010.  I. BACKGROUND This case was removed to this Court from the Superior Court for the District of Columbia by Defendants on July 22, 2009. After Defendants filed their answer to the complaint, the Court held an Initial Scheduling Conference on September 14, 2009 and issued a Scheduling and Procedures Order setting forth deadlines for the completion of discovery. See Docket No. [9]. Pursuant to that scheduling order, discovery was to be completed by February 26, 2010. The Court also referred the parties to the Court’s ADR program for mediation. On March 12, 2010, the Court held a Status Hearing in which the parties indicated that ADR had been unsuccessful and that discovery had not been completed. See Min. Order (Mar. 12, 2010). The Court issued an order adopting the deadlines proposed by the parties for the completion of discovery and scheduled a Status Hearing for April 16, 2010. See Min. Order (Mar. 18, 2010). The parties were unable to complete discovery without incident. On April 1, 2010, Defendants filed a [14] Motion to Compel further deposition testimony from Plaintiff and a [15] Motion for Protective Order to maintain the confidentiality of certain information responsive to Plaintiff’s requests for production of documents. Pursuant to LCvR 7(m) and Fed. R. Civ. P. 37(a)(1), Defendants’ counsel certified that she attempted in good faith to resolve these issues with Plaintiff’s counsel by notifying him by email but stated that he did not respond to her emails or to her follow-up phone messages. The Court ordered Plaintiff to file a written response to these motions, and Defendants filed oppositions to these motions on April 9, 2010. On April 16, 2010, the Court held a Status Hearing in which the parties discussed their various discovery disputes. See [21] Order (Apr. 16, 2010). The Court granted Defendants’ Motion to Compel further deposition testimony from the Plaintiff on the ground that Plaintiff’s counsel had 2 improperly obstructed Defendants’ counsel’s questioning. During the Status Hearing, the parties suggested that the continued deposition be taken at the courthouse with a judge available to resolve any objections asserted by Plaintiff’s counsel. Accordingly, the Court ordered the parties to confer and agree on a date for the deposition and then contact the Court to make further arrangements. See id. The Court scheduled a further Status Hearing for May 27, 2010. The parties ultimately scheduled the continued deposition of Plaintiff for May 24, 2010, and it was conducted in a spare courtroom in the E. Barrett Prettyman Federal Courthouse. Although the parties initially proceeded without a judge present, the parties were unable to complete the deposition without contacting this Court’s chambers to resolve objections asserted by Plaintiff’s counsel. This Court presided over the remainder of the deposition. On May 27, 2010, the Court held a Status Conference with counsel for both parties present. During the hearing, Defendants indicated that they planned to file a dispositive motion. Accordingly, the Court set forth the following briefing schedule (requested by the parties), which the Court also memorialized in a written order: Defendants shall file their Motion for Summary Judgment on or before July 9, 2010; Plaintiff shall file his Opposition to Defendants’ Motion for Summary Judgment on or before July 23, 2010; and Defendants shall file their Reply in support of their Motion for Summary Judgment on or before August 2, 2010. See [23] Order (May 27, 2010). The Court’s Order also reminded the parties of their duty to comply with Local Rule LCvR 7(h) regarding motions for summary judgment. See id. On July 9, 2010, Defendants filed a [24] Consent Motion for Additional Time to Move for Summary Judgment, citing Defendants’ counsel’s illness. Defendants agreed to complete the motion over the weekend and file on Monday, July 12, 2010. Defendants also stated that they “will work cooperatively with plaintiff 3 if the delay in filing causes him to need additional time to respond to the motion.” The Court granted the motion for extension of time in a minute order, allowing Defendants to file their motion on July 12, 2010. See Min. Order (July 9, 2010). Because Plaintiff did not request an extension of time for his opposition, the Court did not change the other deadlines set by the Court. On July 12, 2010, Defendants filed their [25] Motion for Summary Judgment. In their motion, Defendants argued that (1) Plaintiff’s constitutional claims fail because Defendants Rodriguezgil and Brown had probable cause to arrest Plaintiff, did not use excessive force, and were entitled to qualified immunity; (2) Plaintiff’s common law claim for false arrest fails because defendants Rodriguezgil and Brown had probable cause to arrest Plaintiff and a reasonable officer could believe that their actions were legal; (3) Plaintiff’s common law assault and battery claim fails because Defendants Rodriguezgil and Brown used no more force than necessary to arrest Plaintiff; and (4) Plaintiff’s claim for intentional infliction of emotional distress fails because Plaintiff cannot prove that Defendants intended to cause him severe emotional distress or that Defendants’ conduct was so extreme and outrageous that it caused Plaintiff severe emotional distress. Plaintiff failed to file a timely opposition to Defendants’ motion for summary judgment. According to the schedule ordered by the Court, Plaintiff’s opposition was due on or before July 23, 2010.1 On August 6, 2010—two weeks after Plaintiff’s opposition was due—the Court issued a Memorandum Opinion and Order granting Defendants’ motion for summary judgment 1 Plaintiff mistakenly claims that his opposition was due on or about July 28, 2010 because Defendants filed their motion on July 12, 2010. However, the Court never extended Plaintiff’s original deadline of July 23, 2010 because Plaintiff did not request any extension. 4 as conceded. The Court exercised its discretion to enforce Local Civil Rule 7(b), which provides as follows: Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded. LCvR 7(b). The Court alternatively reviewed the merits of Defendants’ motion for summary judgment based on the factual record provided by Defendants and which Plaintiff had failed to rebut. The Court ruled that there was probable cause for Plaintiff’s arrest based on his admissions that he disobeyed Defendant Rodriguezgil’s instructions to be quiet and continued to argue with him. The Court also ruled that according to Plaintiff’s own description of events, the force used on him did not amount to force that a reasonable officer would find to be excessive in light of the circumstances. Finally, the Court ruled that there was no evidence in the record of outrageous conduct that could support Plaintiff’s claim for intentional infliction of emotional distress. Accordingly, the Court alternatively ruled on the merits that Defendants were entitled to judgment as a matter of law. II. LEGAL STANDARD Plaintiff’s motion to alter or amend the judgment is governed by Federal Rule of Civil Procedure 59(e). Rule 59(e) allows a district court to correct its own mistakes in the period immediately following the entry of a mistaken order. White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982). “A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v. 5 Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (internal quotation marks omitted). A motion to reconsider under Rule 59(e) “is [neither] . . . an opportunity to reargue facts and theories upon which a court has already ruled nor a vehicle for presenting theories or arguments that could have been advanced earlier.” SEC v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010) (internal quotation marks and citations omitted). “Such motions are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances.” Harrison v. Fed. Bureau of Prisons, 681 F. Supp. 2d 76, 84 (D.D.C. 2010) (internal quotation marks and citations omitted). III. DISCUSSION Plaintiff argues that the Court should reconsider its prior judgment because his failure to file an opposition was the result of an honest mistake by his counsel and because Defendants’ motion for summary judgment lacks merit. The Court shall review each of Plaintiff’s arguments. A. Plaintiff’s Failure to File a Timely Opposition Plaintiff offers the following explanation for his failure to file a timely opposition. At the time Defendants filed their motion (July 12, 2010), Plaintiff’s counsel was engaged in a wrongful death trial before the United States District Court for the District of Maryland. Shortly after that trial concluded, Plaintiff’s counsel went on a previously arranged family vacation on July 27, 2010 and did not return to the office until August 4, 2010. As a consequence of these events, Plaintiff’s counsel “inadvertently overlooked” Defendants’ motion. Plaintiff’s counsel has provided an affidavit from the employee at his office who is responsible for keeping his calendar; she explains that in order to maintain an accurate and timely calendar of deadlines, she reviews all cases in litigation on a weekly basis on Fridays. See Pl.’s Mot., Ex. 1 (Aff. of Susan Berk) 6 ¶ 2. However, she explains that she did not perform this function during the week that Defendants’ motion was filed because she was busy assisting Plaintiff’s counsel with his wrongful death trial. Id. ¶ 3. She did perform this function the following Friday, July 23, 2010, although she did not complete the task on that date. Id. ¶ 4. She continued to work on updating the deadlines on Sunday, July 25, 2010, but her work was interrupted by a thunderstorm that caused a loss of power and resulted in a shutdown of the computer server. Id. When she reconstructed the calendar on Monday, July 26, 2010, she believed that the calendaring work she had performed on Sunday had not been lost when the server shut down. Id. After being out of the office between July 27 and August 2, 2010, she discovered on Friday, August 6, 2010 that the deadline for this case had been missed. Id. ¶ 5. Plaintiff’s excuse for his failure to file a timely opposition is completely inadequate. As an initial matter, the Court ordered the briefing schedule that was requested by the parties on May 27, 2010. Therefore, if Plaintiff’s counsel believed that he would need additional time to respond to Defendants’ motion due to his wrongful death trial, he could have simply asked for a later date to respond, and the Court likely would have granted it. He also could have filed a motion for extension of time after the Court ordered the briefing schedule or requested that his deadline be extended when Defendants filed their motion for extension of time; he failed to do either. Furthermore, the affidavit submitted by Plaintiff demonstrates that Plaintiff’s counsel failed to calendar the deadline for his opposition until after Defendants’ motion was actually filed, despite the fact that the Court explicitly ordered Plaintiff on May 27, 2010 to file his opposition by no later than July 23, 2010. Plaintiff’s counsel should have calendared this deadline immediately after the Court ordered it. The record also indicates that the employee responsible for keeping 7 track of Plaintiff’s counsel’s calendar did not check the deadlines for this case until almost two weeks after Defendants’ motion was filed, meaning that by the time she checked the deadline, Plaintiff’s opposition was already overdue. These are sloppy timekeeping practices that should not be excused by this Court. In Fox v. American Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004), the D.C. Circuit affirmed the district court’s invocation of Local Civil Rule 7(b) to grant a motion to dismiss as conceded. The plaintiffs had argued that their failure to file an opposition should be excused because, due to an alleged malfunction in the Court’s electronic case filing system, their counsel never received an email notifying him that the defendants had filed a motion to dismiss. See id. at 1294. The court rejected this as “an updated version of the classic ‘my dog ate my homework’ line” and explained that, regardless of whether plaintiffs’ counsel received the email notice, he had an obligation to monitor the court’s docket. Id. In affirming the district court’s denial of the plaintiffs’ motion for reconsideration, the court wrote, “[w]e can hardly say that the district court abused its discretion in declining to vacate its judgment of dismissal to prevent ‘manifest injustice’ flowing from the appellants’ failure to receive notice given that, as discussed above, the dismissal of their suit might have been avoided through the exercise of due diligence.” Id. at 1296 (citing Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004)). The failure of Plaintiff’s counsel to file an opposition in this case is even less justified than in Fox because the Court told Plaintiff’s counsel in open court what his deadline would be and enshrined that deadline in a written order. Plaintiff’s counsel attempts to pass the blame to his calendaring assistant, but he truly has no one to blame but himself. Plaintiff also argues that the Court should reconsider its decision to grant the motion as 8 conceded because, on the same day but before the Court issued its order, Defendants’ counsel consented to Plaintiff’s request for an extension of time to file his opposition. However, this Court is not bound by Defendants’ counsel’s professional courtesy, and Defendants’ counsel did not consent later to Plaintiff’s motion to alter the judgment. Plaintiff’s counsel has demonstrated a disregard for this Court’s rules, and he must live with the consequences of his actions. Plaintiff’s counsel’s disregard was reaffirmed when he attempted to file his reply brief in support of his motion to alter or amend judgment; his electronic filing consists of a single blank page with one sentence fragment at the bottom. See Docket No. [32]. Pursuant to LCvR 5.4(c)(2), “[a] person filing a document by electronic means is responsible for insuring the accuracy of the official docket entry generated by the CM/ECF software.” Although the Clerk of the Court directed Plaintiff to refile the document, he has failed to do so to date. In light of the foregoing, the Court declines to reconsider its decision to grant Defendants’ motion for summary judgment as conceded. B. The Merits of Defendants’ Motion for Summary Judgment Plaintiff next argues that the Court should reconsider its alternative ruling on the merits of Defendants’ claims. Because a Rule 59(e) motion is not a proper vehicle for raising arguments that could have been raised in a timely filed opposition, the Court focuses on the errors alleged by Plaintiff to have been made by the Court in ruling that summary judgment was appropriate. Plaintiff argues that the Court improperly treated two factual assertions propounded by Defendants as true and that the record does not support a finding of probable cause for Plaintiff’s arrest. Plaintiff also argues that the record does not support the award of summary judgment based on the reasonableness of the force used during Plaintiff’s arrest or the lack of 9 egregious conduct in the record. The Court shall review these claims below. First, Plaintiff contends that the Court improperly relied on two assertions of fact that Defendants allegedly failed to support with record evidence, namely, that Plaintiff had failed to heed officers’ instructions to place his hands on the car and to be quiet. Plaintiff argues that Defendants violated LCvR 7(h) when they asserted these facts in their statement of material facts that are not in dispute without citing to supporting evidence in the record.2 However, a review of the excepts of the transcripts Defendants attached to their motion for summary judgment clearly reveals that according to Plaintiff’s own testimony, he did not place his hands on the car or comply with Defendant Rodriguezgil’s request that he be quiet. See Defs.’ Mot. for Summ. J., Ex. C (Trial Tr.) at 119-20 (explaining that after Plaintiff heard the request to put his hands on the car, he walked back towards Officer Rodriguezgil, who told him to “shut the fuck up,” and Plaintiff continued to “go[] at it” with him). Therefore, the Court did not accept any factual assertions that lacked support in the record provided by Defendants. Second, Plaintiff argues that there was no probable cause for the arrest because it is not a crime to fail to place one’s hands on a car or to fail to “shut the fuck up.” However, as the Court explained in its prior opinion, D.C. Code makes it unlawful for a person to, “without justifiable and excusable cause, assault[], resist[], oppose[], impede[], intimidate[], or interfere[] with a law enforcement officer” while that officer is engaged in official duties. D.C. Code § 22-405(b). Whether or not Plaintiff was actually guilty of this offense, his failure to comply with police 2 The Court notes that Defendants did provide the Court with the relevant excerpts of transcribed testimony that supported the facts they asserted, but they did not fully identify the pages and lines of the transcript as required. However, the relevant pages and lines of the transcript were contiguous with other portions of the record that were cited by Defendants. 10 officers’ instructions, even if stated in profane terms, was clearly sufficient to establish probable cause for his arrest. See In re T.H., 898 A.2d 908, 912 (D.C. 2006) (“Generally, probable cause exists where the facts and circumstances within the arresting officer’s knowledge . . . are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed.”) (quoting Rucker v. United States, 455 A.2d 889, 891 (D.C. 1983)). Plaintiff also argues that the arresting officer did not intend to arrest Plaintiff for resisting an officer at the time; however, “an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Therefore, the Court did not err by finding probable cause based on Plaintiff’s conceded failure to heed officers’ instructions. The Court is also not persuaded that it clearly erred in concluding that based on the record produced by Defendants, the amount of force used during Plaintiff’s arrest was not excessive. Plaintiff argues that the Court ignored Plaintiff’s own deposition testimony about the blows allegedly delivered by Defendant Rodriguezgil during his arrest. However, Plaintiff’s testimony does not clearly establish that the amount of force used by Defendant Rodriguezgil was more force than was reasonably necessary to effect the arrest. See Scott v. District of Columbia, 101 F.3d 748, 760 (D.C. Cir. 1996) (“[T]he proper inquiry here is whether the officers’ actions were so excessive that no reasonable officer on the scene could have believed that they were lawful.”). Similarly, the Court is not persuaded that it overlooked evidence of “outrageous” conduct in the record that would be sufficient to support Plaintiff’s claim for intentional infliction of emotional distress. Therefore, the Court declines to reconsider its alternative ruling on the merits of Defendants’ motion for summary judgment. 11  IV. CONCLUSION For the foregoing reasons, the Court finds that Plaintiff has failed to demonstrate that there is an intervening change of controlling law or new evidence available that would justify the Court’s reconsideration of its prior judgment. Because Plaintiff failed to file a timely opposition and the record produced by Defendants supported their motion for summary judgment, reconsideration is not necessary to correct a clear error or prevent manifest injustice. Accordingly, the Court shall DENY Plaintiff’s [30] Motion to Alter or Amend Judgment. An appropriate Order accompanies this Memorandum Opinion. Date: August 30, 2011 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 12 

Filed 11/23/15 (unmodified opn. attached) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051368 v. (Super. Ct. No. 14HF1375) JUSTIN ANDREW CUEN, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT The opinion filed October 8, 2015 and certified for publication on October 30, 2015, is modified as follows: On page 5, delete the following paragraph: “And, in any event, Cuen mistakenly assigns the burden of proving the amount of the loss to the People. The trial court was required to determine Cuen’s eligibility for resentencing under section 1170.18, subdivision (a) based on the record of conviction. (Cf. People v. Bradford (2014) 227 Cal.App.4th 1322, 1338.) The record of Cuen’s conviction, including the factual basis for his guilty plea to counts 5 and 7, omitted any reference to value. Cuen simply admitted he ‘unlawfully acquire[d] and retain[ed] possession of [an] access card.’ So Cuen was also ineligible for resentencing on counts 5 and 7, as a matter of fact.” This modification does not change the judgment.  The petition for rehearing is denied. THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J. 2 Filed 10/8/15 Certified for Publication 10/30/15 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051368 v. (Super. Ct. No. 14HF1375) JUSTIN ANDREW CUEN, OPINION Defendant and Appellant. Appeal from a postjudment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird, Deputy Attorneys General, for Plaintiff and Respondent.  Justin Andrew Cuen appeals from an order denying his petition to recall and resentence as misdemeanors (Pen. Code, § 1170.18, subds. (a), (b); all further statutory references are to the Penal Code) his two felony convictions for theft of access card information (§ 484e, subd. (d) (§ 484e(d)). The trial court ruled a conviction under section 484e(d) is not subject to recall and resentencing, because it is not one of the offenses listed in section 1170.18, subdivision (a). We agree and affirm. FACTS In July 2014, Cuen was charged with six felonies: two counts of possession of a controlled substance (counts 1, 2), one count receiving stolen property (count 3), possession of blank checks (count 4), two counts of theft of access card information (§ 484e(d); counts 5, 7), and forgery (count 6). It was also alleged he had served a prior prison term. A few months later, Cuen pled guilty to counts 1, 3, 5, and 7 and admitted the prior prison term in exchange for dismissal of the remaining counts and a three-year split sentence. Section 1170.18 was adopted as part of the “Safe Neighborhoods and Schools Act” (Proposition 47). After Proposition 47 passed, Cuen filed a petition for recall and resentencing under section 1170.18, subdivision (a). All but one of Cuen’s offenses is among those listed as qualified for relief under 1170.18, subdivision (a). The outcast offense being theft of access card information (§ 484e(d)), counts 5 and 7. Analogizing theft of access card information to uttering fictitious instruments and forged checks, and relying on the $950 line dividing grand and petty theft (§ 490.2), Cuen argued the People had to prove a theft of more than $950. Cuen then pointed out the factual basis for his plea merely stated he “unlawfully possessed . . . access card account information belonging to two different people with intent to use that for unlawful purposes,” with no facts showing the value of the loss exceeded $950. Thus, Cuen claimed the court had to apply section 490.2, and reduce his felony theft of access card information convictions to misdemeanor petty thefts. 2  The People argued the omission of section 484e(d) from the list of theft crimes subject to recall under section 1170.18, subdivision (a) was purposeful. They noted proof the access card information Cuen took had a value over $950 was not an element of the offense. The People pointed out the object of section 484e(d) was the protection of consumers from “the injury, expense, and inconvenience arising from the fraudulent use of their access card account information” (People v. Molina (2004) 120 Cal.App.4th 507, 516 (Molina)), and they urged the court to rely on the plain language of section 1170.18, subidivision (a) and deny Cuen’s petition as to counts 5 and 7. The court observed, “The statutory language in § 490.2(a) is relatively clear. In application, however, the statutory language seemingly reveals a latent ambiguity warranting further analysis.” Then, utilizing rules of statutory construction, the court reasoned Proposition 47 focused on reclassifying theft-related offenses “of property of a certain monetary value.” The court concluded a violation of section 484e(d), which the court described as “grand theft as the taking of certain property regardless of monetary value,” fell outside the letter and the spirit of Proposition 47. In short, the court ruled a violation of section 484e(d) is a species of grand theft, which was “unaffected by Proposition 47.” Ultimately, the court granted Cuen’s petition as to counts 1 and 3, denied it as to counts 5 and 7, and resentenced Cuen to the two-year midterm on count 5, a concurrent two-year term on count 7, and concurrent misdemeanor sentences on counts 1 and 3. Cuen filed a timely appeal. DISCUSSION Section 1170.18, subdivision (a) allows petitioners to, “request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code . . . .” Section 484e(d) is conspicuous by its absence from the list of enumerated crimes. That is why Cuen relies on section 490.2. 3  Section 490.2, also added by Proposition 47, states, “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor. . . .” (Italics added.) Cuen contends section 484e(d) is now subject to the value-specific definition of grand theft contained in section 490.2.1 Based on the broad introductory language of section 490.2,Cuen asserts that unless the People proved he fraudulently acquired access card information worth more than $950, his section 484e(d) convictions must now be reduced to misdemeanor petty thefts. We disagree for several reasons. First, “‘If the language [of a statute] is unambiguous, the plain meaning controls.’” (People v. Leiva (2013) 56 Cal.4th 498, 506.) Section 1170.18, subdivision (a) is unambiguous. It lists several theft-related offenses, but not theft of access card information. Section 490.2 is also unambiguous. It applies to thefts of “money, labor, real or personal property.” And, while the definition of personal property could be stretched to include access card information, we resist. Theft of intangible access card account information presents a qualitatively different personal violation than theft of more tangible items. (See Molina, supra, 120 Cal.App.4th at pp. 518-519.) Second, “[A] specific statutory provision relating to a particular subject controls over a more general provision.” (Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 270.) Section 484e(d) is the more specific statute, and it describes grand theft without reference to value. It is deemed serious enough to trigger felony punishment. (Molina, supra, 120 Cal.App.4th at p. 518.) 1 Section 484e(d) states: “Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.” 4  Third, the logical understanding of the interplay between the various statutes—and the one that seems to give each statute its plain meaning and avoid the most pitfalls—is that section 490.2 applies solely to crimes involving the theft of “money, labor, real or personal property” with a value less than $950. Thus, the court correctly determined it lacked the statutory authority to resentence Cuen on counts 5 and 7, as a matter of law. And, in any event, Cuen mistakenly assigns the burden of proving the amount of the loss to the People. The trial court was required to determine Cuen’s eligibility for resentencing under section 1170.18, subdivision (a) based on the record of conviction. (Cf. People v. Bradford (2014) 227 Cal.App.4th 1322, 1338.) The record of Cuen’s conviction, including the factual basis for his guilty plea to counts 5 and 7, omitted any reference to value. Cuen simply admitted he “unlawfully acquire[d] and retain[ed] possession of [an] access card.” So Cuen was also ineligible for resentencing on counts 5 and 7, as a matter of fact. DISPOSITION The order is affirmed. THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J. 5 Filed 10/30/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051368 v. (Super. Ct. No. 14HF1375) JUSTIN ANDREW CUEN, ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Appellant. Respondent requested that our unpublished opinion, filed on October 8, 2015, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The request for publication is GRANTED. The opinion is ordered published in the Official Reports. THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J. 

People v Gutierrez (2019 NY Slip Op 03809) People v Gutierrez 2019 NY Slip Op 03809 Decided on May 15, 2019 Appellate Division, Second 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 May 15, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. HECTOR D. LASALLE VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ. 2016-10810 (Ind. No. 2796/14) [*1]The People of the State of New York, respondent, vEdwin Gutierrez, appellant. Laurette D. Mulry, Riverhead, NY (Lisa A. Marcoccia of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Glenn Green and Thomas C. Costello of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (William J. Condon, J.), rendered September 7, 2016, convicting him of murder in the second degree (two counts), robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. On November 28, 2014, in a parking lot in Bay Shore, while attempting to steal a sport utility vehicle, the defendant drove the vehicle into its owner, killing him. A short time earlier in the same parking lot, the defendant had attempted to steal a different vehicle owned by someone else. The defendant testified that he had been drinking and did not remember the incidents or being in the parking lot at the time the incidents occurred. The defendant was convicted of two counts of murder in the second degree, robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and was sentenced to 25 years to life imprisonment on each count of murder in the second degree, 25 years imprisonment plus 5 years of postrelease supervision on the count of robbery in the first degree, and 2 to 4 years imprisonment on the count of attempted grand larceny in the third degree, the sentences to run concurrently. The defendant's contentions regarding the legal sufficiency of the evidence are unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492), and in any event, are without merit (see People v Danielson, 9 NY3d 342, 349). In conducting an independent review of the weight of the evidence with regard to the defendant's convictions (see CPL 470.15[5]; People v Danielson, 9 NY3d at 348-349), we find that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's contention that the County Court failed to properly charge the jury on attempted grand larceny in the third degree is unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 19), and we decline to reach it in the exercise of our interest of justice jurisdiction. We agree with the defendant that the County Court should not have permitted testimony from the victim's wife and from a police detective which had no bearing on the materiality of the issues before the jury and which was calculated to appeal to the passion and sympathy of the jury (see People v Harris, 98 NY2d 452, 490-491; People v Miller, 6 NY2d 152; People v Caruso, 246 NY 437; People v Holiday, 142 AD3d 625, 626). However, the error was harmless beyond a reasonable doubt (see People v Harris, 98 NY2d at 490-491; People v Crimmins, 36 NY2d 230, 237). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

151 B.R. 900 (1993) In re Doris L. MORRIS, Debtor. Barry M. BARASH, Chapter 7 Trustee for Doris L. Morris, Plaintiff, v. Doris L. MORRIS (Deceased), Marilynne L. McCready, Samuel S. McHard, Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., and First of America Trust Company, formerly First National Bank of the Quad Cities, as Trustee of The Morris Irrevocable Living Trust, Defendants. Marilynne L. McCREADY, and First of America Trust Company, formerly First National Bank of the Quad Cities, as Trustee of the Morris Irrevocable Living Trust, Appellants, v. Barry M. BARASH, Chapter 7 Trustee for Doris L. Morris, Appellee. No. 92-4086. United States District Court, C.D. Illinois. February 18, 1993. *901 Samuel S. McHard, Dale G. Haake, Katz, McAndrews, Balch, Lefstein & Fieweger PC, Rock Island, IL, for appellants. Barry M. Barash, Barash Stoerzbach & Henson, Galesburg, IL, for appellee. ORDER McDADE, District Judge. This matter is before the Court on appeal from a ruling by United States Bankruptcy Judge William v. Altenberger. The Court has jurisdiction over this appeal pursuant to Bankruptcy Rule 8001(a). The standard of review of a bankruptcy court ruling is governed by Bankruptcy Court Rule 8013, which states: On [an] appeal the district court or bankruptcy appellate panel may affirm, modify or reverse a bankruptcy court's judgment, order of decree or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness. 11 U.S.C. Rule 8013. The Seventh Circuit in Matter of Boomgarden, 780 F.2d 657 (7th Cir.1985), states: "[W]e must accept the bankruptcy court's findings of fact unless they are clearly erroneous. . . . We can, however, apply de novo review to conclusions of law of any lower court." Id. at 660 (citations omitted). BACKGROUND To properly understand the issues involved in this case, it is necessary to go back to February 26, 1971, when Frances Park McGown executed her last will and testament. Mrs. McGown bequeathed a life estate in her 383 acre farm, located in Mercer County, Illinois, to her only child, Doris Morris, the Debtor. Upon the Debtor's death, the will provided that the estate would go to Mrs. McGown's three grandchildren: *902 Douglas Edmund Morris; Richard Stephen Morris; and Marilynne Louise Morris. These three individuals are also the Debtor's children. The will also contained a "spendthrift" clause, which reads as follows: I direct that neither the income from said life estate nor the principal fund be liable for the debts, present or future, of any beneficiary, his heirs, devisees and legatees, and shall not be subject to the right on the part of any creditor to seize or reach the same under any writ or any proceeding at law or equity. And no beneficiary shall have any power to give, grant, sell, convey, mortgage, pledge or incumber, or anticipate the income, or any installment thereof, or any shares in the principal thereof, except the residuary beneficiaries may dispose of their interests by Will in case of death. (Trustee's Ex. # 1). The first line of the above clause originally referred to a "trust" estate, but the word "trust" was crossed out and the word "life" inserted. The change was initialed by Mrs. McGown. (Id.) In the fall of 1971, Mrs. McGown died and her daughter, the Debtor, received a life estate in the McGown Farm. Despite the limitations placed on the life estate in the will, Debtor and her children executed a mortgage on the farm to secure a $77,000.00 note from The Mutual Benefit Life Insurance Company. This occurred in September of 1972. In re Morris, 144 B.R. 401, 402 (Bankr.C.D.Ill.1992). Several years later, in 1981, debtor's husband Edmund and her son Steve became indebted in the amount of nearly $530,000.00 to two Oklahoma banks, the Bank of Custer and the Bank of Thomas. The indebtedness arose from an ill-fated oil scheme and other bad loans for which Steve Morris, Debtor's son, was held responsible. As a result of the financial difficulty in which Debtor's son and husband found themselves, Debtor, her husband, her two sons, Douglas and Steve, and her daughter, Marilynne L. McCready, an Appellant in this action, signed mortgages in January of 1982 giving the Oklahoma Banks mortgage liens on the farm to secure the aforesaid borrowing. Id. Again, the mortgage was on Debtor's life estate, despite the will provision to the contrary. In this appeal, the Court's primary concern is with the mortgages to the Oklahoma Banks and issues arising therefrom. Within a few months, in September of 1982, the Oklahoma Banks filed a complaint to foreclose the mortgages. The Debtor and her daughter, Marilynne McCready raised a variety of defenses to the action, the most notable being that the spendthrift clause in the will prevented the Debtor from mortgaging the farm. Id. In February of 1983, pursuant to a receivership provision in the mortgages, the Oklahoma Banks had a receiver appointed to: [T]ake possession of the [farm] during the pendency of this litigation with full power and authority to operate, manage and conserve the property, to secure tenants therefor and lease the same, to collect rents, issues of profits thereof . . . to pay taxes which have been levied against the property." (Vol. VIII, Def. Ex. # 6). The receiver followed these directives from 1983 to 1987 (Appellants' brief p. 10), and leased the farm to third parties. Over the course of the years, the receiver received $150,960.00 in rent. In re Morris, 144 B.R. at 402. After paying taxes and other expenses, the receivership account contained $120,147.02. Id. Eventually, the parties settled the matter, with the Oklahoma Banks agreeing to pay the Debtor $80,000.00. (BR. Ex. # 23). The Oklahoma Banks' attorney stated in a letter to Debtor's attorney that the "$80,000.00 would be paid to Doris Morris, [the Debtor]." (Id.) Debtor's attorney responded to the letter by stating that "the $80,000.00 was to be placed in a spendthrift trust for Doris Morris [the Debtor] with the remainder at her death payable to Marilynne McCready. . . ." (BR. Ex. # 22). Subsequently, the state court approved the following settlement agreement: [The Oklahoma Banks] shall pay the sum of $80,000.00 into an irrevocable *903 spendthrift trust of usual form with Doris L. Morris [the Debtor] as the beneficiary. . . . Upon the death of Doris L. Morris, the remaining principal balance and accrued interest shall be paid as a lump sum to Marilynne McCready or per stirpes to her descendants who survive her in the event she predeceases Doris L. Morris. Once the principal falls below $10,000.00, this trust shall terminate and all funds held by the trustee shall be paid to the persons then entitled to the income therefrom. 144 B.R. at 402. The money to fund the trust came from the receivership which, when closed, had a final balance of $121,538.73. (BR. Ex. # 51). An attorney for the Oklahoma Banks then sent two checks to the Oklahoma Banks, one for $80,000.00 and one for $41,538.73. (BR. Ex. # 14). The check for $80,000.00 was specified as the "money that will eventually be distributed to the Doris Morris Trust." (Id.) On June 15, 1988, the attorney for the Oklahoma Banks drew a trust account check payable to the First National Bank of the Quad Cities as Trustee of the Morris Irrevocable Trust. (BR. Ex. # 55). That Bank is now known as the First of America Trust Company, an Appellant in this action. The check was in the amount of $80,622.65, and reflected the interest the money had earned while in a separate account with the Oklahoma Banks. (BR. Ex. # 12). The evidence shows that the money to fund the Morris Irrevocable Trust originated from the receivership account which drew its funds from the rents of the McGown farm. The money was then transferred to the Oklahoma Banks where it was kept in a separate account before being sent to First National Bank of The Quad Cities where it was deposited in the Morris Irrevocable Trust. The trust, now funded, had the following purpose: This Trust is being created in good faith pursuant to Stipulation and Order of court in Mercer County Circuit court Case No. 82 CH 81 and pursuant to the provisions of § 2-1403 of the Illinois Code of Civil Procedure (1987). The $80,000.00 fund which forms the corpus of this Trust has proceeded from the First National Bank of Thomas, Oklahoma, and the First National Bank of Custer, Oklahoma, in good faith settlement of the aforesaid lawsuit with the intention that it shall operate as Frances Park McGown intended for her will to operate . . . that is, with the income of the corpus passing through a spendthrift trust to Doris Morris; however, the sole remainder interest under this Trust shall be vested from the loans and mortgages which ultimately caused the loss of the "McGown Farm." . . . . . The interest of all beneficiaries of any trust shall not in any way be subject to the claims of creditors or others nor to legal process, including claims for alimony, child support, or separate maintenance, and may not be voluntarily alienated or encumbered. . . . . . If the value of the trust created hereunder shall be less than $10.000.00, the trustee may, at any time, in its sole and absolute discretion, pay the entire property of the trust, as it shall then be constituted, to the beneficiary or beneficiaries thereof, as their interests then appear, whereupon such trust shall terminate. (Vol. VII Def. # 10). Jack Dickey, President of the Oklahoma Banks signed the document as settlor of the trust. (Id.) Thus, the Morris Irrevocable Trust was funded in June of 1988. Meanwhile, in 1987, the Bank of Viola, now Farmers State Bank of Western Illinois, had obtained a deficiency judgment against Debtor, Doris Morris, in the amount of $355,290.22. This resulted from a mortgage foreclosure on a second farm, the Morris Farm which was Debtor's husband's family farm. That deficiency judgment precipitated a bankruptcy petition which Debtor filed in June of 1989. 144 B.R. at 403. Debtor died one year after she filed the bankruptcy petition. Prior to her death, however, her trustee in bankruptcy *904 brought an adversary action against Debtor, her daughter Marilynne McCready, and the First National Bank of the Quad Cities. The Bankruptcy Trustee alleged that the Debtor was the settlor of a spendthrift trust which was created for her own benefit. The Bankruptcy Trustee alleged that this occurred when the Debtor took $80,000.00 of farm income, which she was entitled to through her life estate in the farm, and created the spendthrift trust, of which she was a beneficiary, at the First National Bank of the Quad Cities. 144 B.R. at 404. See, In re Silldorff, 96 B.R. 859 (C.D. Ill.1989) (The law does not permit a person to create a spendthrift trust with her own property for her own benefit.). The bankruptcy court ruled in favor of the bankruptcy trustee, and found that the entire funds in the spendthrift trust were property of the bankruptcy estate and ordered the First of America Trust Company, formerly the First National Bank of the Quad Cities, to turn over the funds to the bankruptcy trustee. It is from this order that the Appellants, Marilynne McCready and The First of America Trust Company appeal. ANALYSIS As framed by the parties and the bankruptcy court, "the crucial issue in this case is who created the spendthrift trust, the [Oklahoma] Banks or the Debtor." 144 B.R. at 404. Initially, the bankruptcy court found that Debtor was in violation of Ill. Rev.Stat. ch. 59, para. 4, which states: Every gift, grant conveyance, assignment or transfer of, or charge upon any estate, real or personal, or right or thing in action, or rent or profit thereof, made with intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, or judgment entered, with like intent, shall be void as against creditors, purchasers and other persons. Id. In applying the facts to the above statute, the bankruptcy court stated that Debtor had always treated her life estate as one which could be subject to the claims of creditors. The bankruptcy court noted that Debtor mortgaged her life estate soon after her mother's death to the Mutual Benefit Life Insurance Company, and later to the Oklahoma Banks. The bankruptcy court then noted that "when the litigation with the [Oklahoma] Banks was over, $80,000.00 was available to meet [Debtor's] needs in a spendthrift trust shielded from her creditors. Such a manipulation surely constitutes action taken with the intent to `disturb, delay, hinder or defraud' [Debtor's] creditors." 144 B.R. at 404. This alone would be sufficient to void the trust according to the statute. However, the bankruptcy court went on to find that the spendthrift provision of the will was invalid ab initio. Id. By so ruling, the bankruptcy court found that spendthrift provisions were not enforceable without a trust arrangement. To create a valid spendthrift trust, "the will must manifest an intention to do so, although no particular form of words is required. The interest of the beneficiary cannot exceed an equitable estate in the income of the property, the legal title must be vested in a trustee and the trust must be an active one." 96 C.J.S. Wills § 1007. A review of Frances McGown's will shows that she did not vest title to the McGown Farm in a trustee, nor did she "manifest an intention to do so." Consequently, a spendthrift trust was not created by the "spendthrift clause" of Frances McGown's will. See Henderson v. Harness, 176 Ill. 302, 310, 52 N.E. 68, 70 (1898) (Except by the intervention of trustees, an estate cannot be devised for the benefit of the legatee in such a manner that it cannot be seized for the debts of one having a life estate therein.). Appellants argue that it is incorrect to state that a spendthrift provision is not enforceable absent a trust agreement and refer the Court to a case in which a limitation over alienation of a legal life estate was held valid. See Brumsey v. Brumsey, 351 Ill. 414, 184 N.E. 627 (1933). However, neither this Court nor the bankruptcy court has found that restrictions placed on a life *905 estate are invalid. Rather, the bankruptcy court and this Court have simply found that Frances McGown's will did not create a spendthrift trust. Appellants argue that the Court must determine the intent of the will to determine if a valid spendthrift trust was created. Upon review, the Court finds that Frances McGown intended to create a life estate in the McGown farm in favor of Debtor with certain restrictions on alienation. The Court notes that Frances McGown specifically deleted the word "trust" from the "spendthrift clause" and inserted the word "life" instead. Appellants argue that the attorney who drafted the will testified that Mrs. McGown intended to have a spendthrift trust in the will. The Court notes, however, that the attorney specifically testified that "[t]he document we prepared in this particular case included a spendthrift clause, not a spendthrift trust. . . ." (Appellant's Brief p. 21). Furthermore, the bankruptcy court had ample opportunity to consider the testimony of the attorney who drafted the will, and there is no showing by Appellants that any credibility determinations made by the bankruptcy court regarding the attorney were clearly erroneous. Even if this Court were to find that a valid spendthrift trust was a part of Frances McGown's will, which it specifically does not, the Court notes that Debtor and her three children essentially agreed to vitiate the terms of the will when they twice agreed to mortgage the property. As previously noted, Debtor and her children mortgaged the property to the Mutual Benefit Life Insurance Company shortly after Frances McGown's death, and Debtor and her children subsequently agreed to mortgage the property to the Oklahoma Banks. The bankruptcy court aptly described this pattern of mortgaging property subject to a supposed "spendthrift clause" by stating: During the entire period of ownership, the Debtor treated her life estate as subject to the claims of her creditors. . . . Many people mortgage their property for the debts of others which in retrospect turns out to be a bad decision. The Debtor has ignored the spendthrift provision when it was to her benefit to do so— when she mortgaged the property—and then she sought its protection when she needed it. Such opportunistic flip-flopping will not be accepted by the Court. 144 B.R. at 405. Appellants also argue that because the state court sanctioned the settlement agreement, which included the spendthrift trust, the trust must be legitimate. In addressing this issue, the bankruptcy court stated: "[i]t is safe to assume that the state court placed its stamp of approval on the order because the parties said it was settled. Under Illinois law, settlement agreements are approved if fair and reasonable." 144 B.R. at 405 citing, In re Marriage of Burch, 205 Ill.App.3d 1082, 150 Ill.Dec. 922, 563 N.E.2d 1049 (1990). On appeal, Appellants argue that the state court judge went through each recitation of the settlement agreement point by point and that his approval of the agreement was no mere formality. However, there has been no evidence presented that the state court judge was asked to determine the meaning of Frances McGown's will, construe the effect of repeated mortgages on the property, determine who in fact was the settlor of the spendthrift trust in the settlement, or test the "legality of each and every provision contained in the settlement agreement." 144 B.R. at 405. Rather, the evidence shows that the state court judge simply read the settlement agreement and approved it. See Johnson v. Belleville Radiologists, Ltd., 221 Ill.App.3d 100, 163 Ill. Dec. 596, 581 N.E.2d 750 (1991) (Once the parties represent to the court that they have reached a good faith settlement, a presumption of validity exists.). This court further notes, as did the bankruptcy court, that the same state court had the opportunity to determine whether the spendthrift trust shielded the Debtor's interest when it considered the case involving the Bank of Viola. The state court determined that no such protection was available. 144 B.R. at 405. Having worked through the preceding arguments, the Court finally arrives at *906 what was termed the crucial question: Who created the spendthrift trust, the Oklahoma banks or the Debtor? The bankruptcy court found that the spendthrift provision in the settlement agreement was drafted to support the position that the trust was validly created. The bankruptcy court further found that the documentation was drafted by the Debtor's attorney and contains self-serving language. These findings are findings of fact, and the Appellants, by simply arguing to the contrary, have not shown that those findings were clearly erroneous. As the bankruptcy court noted, "[t]he bottom line is that the Debtor had a substantial interest in the settlement fund and agreed to, if not insisted upon, an arrangement whereby a spendthrift provision was impressed upon her interests in the fund." 144 B.R. at 405. Furthermore, the bankruptcy court heard from a number of witnesses on the issue of whether the trust was self-settled. Due regard must be given to the bankruptcy court to judge the credibility of the witnesses, and the appellants have not shown that the bankruptcy court's determinations regarding the credibility of the witnesses, in relation to the creation of the trust, were clearly erroneous. Appellants also argue that the Court must apply the doctrine of cy pres to carry out the intention of Frances McGown as nearly as possible if it is impossible to give the intentions of her will legal effect. The bankruptcy court disposed of this argument by stating that the cy pres doctrine is only applicable in cases where a charitable purpose becomes impossible to carry out. On appeal, the Appellants argue that the cy pres doctrine must not be limited to situations involving charitable purposes, but must be applied to all situations in which it is impossible to carry out the intent of the will. However, the bankruptcy court's conclusion of law on this issue was correct. A long line of cases have held that under Illinois law, the equitable doctrine of cy pres applies when the settlor's charitable purposes become impossible to fulfill. In re St. Joseph's Hospital, 133 B.R. 453 (Bankr.S.D.Ill.1991); Riverton Area Fire Protection District v. Riverton Volunteer Fire Department, 208 Ill. App.3d 944, 153 Ill.Dec. 165, 566 N.E.2d 1015 (1991); Matter of Village of Mt. Prospect, 167 Ill.App.3d 1031, 118 Ill.Dec. 667, 522 N.E.2d 122 (1988); Matter of Estate of Offerman, 153 Ill.App.3d 299, 106 Ill.Dec. 107, 505 N.E.2d 413 (1987); Burr v. Brooks, 83 Ill.2d 488, 48 Ill.Dec. 200, 416 N.E.2d 231 (1981); Graham Hospital Ass'n v. Talley, 29 Ill.App.3d 190, 329 N.E.2d 918 (1975). Accordingly, there being no charitable intent in the will, the doctrine of cy pres is inapplicable to the case at bar. Appellants also argue that the spendthrift trust which arose from the settlement agreement had the effect of a family settlement agreement which was designed to give full effect to the intent of the will. The Court has previously found, however, that it was not the intent of the will to create a spendthrift trust. Furthermore, even if that was the intent, the spendthrift trust which arose from the settlement agreement "drastically altered the distribution provided for in the McGown will." 144 B.R. at 406. Furthermore, as noted by the bankruptcy court, the beneficiaries of the will never sought to reform the will and in fact disregarded the terms of the will until it became apparent that the beneficiaries, by their mishandling of the property, would be left with nothing. Id. For all of the above stated reasons, the Court finds that the spendthrift provision in the settlement agreement was self-settled, and therefore, invalid. In re Silldorff, 96 B.R. 859 (C.D.Ill.1989). Appellants also argue that even if the Court finds that the trust was self-settled, the trustee can only reach the income from the trust and not the remainder interest. Appellants argue that a trustee cannot compel turnover of funds when the debtor has no present right to the funds. Because Debtor died after she filed for bankruptcy, Appellants assert that she did not have a present right to the funds. See Matter of Lyons, 957 F.2d 444 (7th Cir. 1992). Appellants argument, however, ignores the principle that if a settlor creates *907 a spendthrift trust for her own benefit, it is void as to existing or future creditors, and they can reach her interests under the trust. Matter of Witlin, 640 F.2d 661, 663 (5th Cir.1981). Additionally, in the trust in the case at bar, the trustee had discretion to pay Debtor such amounts from the principal as necessary to maintain Debtor's standard of living. Because the trustee was entitled to apply the entire corpus for the support of Debtor, the entire corpus was subject to the claims of creditors. In re Robbins, 826 F.2d 293 (4th Cir.1987); Restatement (Second) of Trusts § 156(2). See Farmers State Bank v. Janish, 410 N.W.2d 188 (S.D.1987) (Where a settlor is the beneficiary of the spendthrift trust, the spendthrift provision is ineffective against creditors who may reach the trust funds.). Thus, not only may Debtor's interest in the trust be reached, but also the interest of Appellant Marilynne McCready. Finally, Appellants argue that as a matter of law the bankruptcy court erred in ordering the turnover of the entire funds in the spendthrift trust because income taxes, trustee's fees and trustee's attorneys' fees must be paid from the trust. These issues were not raised before the bankruptcy court and are not reflected in the record on appeal. Accordingly, they are not reviewable by this Court. Matter of Kroner, 953 F.2d 317 (7th Cir.1992). CONCLUSION For the above stated reasons the decision of the bankruptcy court is AFFIRMED.

460 Mass. 24 (2011) KRISTEN CONNOLLY v. DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.[1] SJC-10821. Supreme Judicial Court of Massachusetts, Essex. May 2, 2011. June 16, 2011. Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ. Sheila C. Casey (James Breslauer with her) for the plaintiff. John P. McLafferty (Claudia T. Centomini with him) for Verizon New England, Inc. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. IRELAND, C.J. We granted the plaintiff claimant's application for direct appellate review to determine whether the board of review of the division of unemployment assistance (board) erred when it concluded that the claimant should be denied unemployment benefits because she accepted an incentive-based *25 voluntary termination package offered by her employer, the defendant Verizon New England, Inc. (Verizon). G. L. c. 151A, § 25 (e) (1). The claimant appealed to the District Court where a judge affirmed the decision of the board. She timely appealed and argues that the board made a legal error because, under this court's holding in Morillo v. Director of the Div. of Employment Sec., 394 Mass. 765 (1985) (Morillo), Verizon took the "last step" in the termination process that entitled her to unemployment benefits. Because we agree with the board's conclusion that the claimant did not meet her burden of showing that her decision to leave was involuntary where she was not compelled to apply for the termination, did not believe her job was in jeopardy, and left in part for personal reasons, we affirm the District Court judge's decision. General Laws c. 151A, § 25 (e) (1). The general purpose of the unemployment statute is to "afford benefits to [individuals] who are out of work and unable to secure work through no fault of their own." LeBeau v. Commissioner of the Dep't of Employment & Training, 422 Mass. 533, 538 (1996), quoting Cusack v. Director of the Div. of Employment Sec., 376 Mass. 96, 98 (1978). We interpret the unemployment statute liberally to achieve its purpose "to lighten the burden ... on the unemployed worker and his family." Morillo, supra at 766, quoting G. L. c. 151A, § 74. However, under G. L. c. 151A, § 25 (e) (1), an employee who leaves her job voluntarily is disqualified unless she can prove by substantial and credible evidence that she had "good cause for leaving attributable to the employ[er]."[2] See Leone v. Director of the Div. of Employment Sec., 397 Mass. 728, 733 (1986). This court has held that a resignation that might otherwise appear voluntary will be deemed involuntary if the employee reasonably believed that his discharge was imminent. White v. Director of the Div. of Employment Sec., 382 Mass. 596, 598-599 (1981) (White). Facts and background. We set forth the undisputed facts as found by the review examiner and adopted by the board. *26 The claimant was a customer service representative for Verizon at its facility in Lowell and a union member. In 2008, the claimant's department was going to be absorbing more employees from a different customer service group in the Lowell facility; that group had a surplus of employees. Consequently, Verizon offered union employees an opportunity to participate in a voluntary separation agreement that provided them with certain benefits in exchange for their termination.[3] The claimant applied for and accepted the voluntary separation package. At the time, the claimant was not compelled to apply, nor did she believe that her job was in jeopardy, nor was there a surplus of employees in her department. The claimant's decision to accept the package was influenced by her dislike of the job, the length of her commute, and a concern that she would be transferred to the Verizon facility in Andover.[4] There were no layoffs in her department after the claimant left Verizon. The claimant applied for unemployment benefits and her application was approved. Verizon appealed. After a hearing on the merits, the review examiner denied the claimant's application for benefits. The review examiner concluded that the claimant left work without good cause attributable to Verizon because she did not prove that she had a reasonable belief that her job was in jeopardy because of pending layoffs or work performance. The claimant appealed to the board and it ultimately affirmed the decision of the review examiner. Relying on State St. Bank & Trust Co. v. Deputy Director of the Div. of Employment & Training, 66 Mass. App. Ct. 1 (2006) (State St.), the board concluded that, because the claimant did not have a reasonable belief that her job was in jeopardy at the time she accepted Verizon's separation agreement, as a matter of law, she left work without good cause attributable to the employer. She appealed. Discussion. In reviewing a decision of the board concerning an individual's entitlement to benefits, we determine whether it "contains sufficient findings [and] whether those findings are *27 supported by substantial evidence." Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984). Agency determinations of law are subject to de novo review. Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974). The claimant argues that the board erred as a matter of law in relying on State St. to determine whether she voluntarily left her job at Verizon. She asserts that the decision in State St. relied incorrectly on this court's holding in White, supra. She claims that the Morillo case should control because Verizon initiated a workforce reduction and took the final step in the process by terminating her, making her termination involuntary within the meaning of the statute. We disagree. In White, supra at 597, the claimant accepted his employer's early retirement incentive offer of $3,000. There was evidence that White had heard a rumor that there was an impending layoff if the work force was not reduced by early retirement. Id. "He thought he would be the second person laid off, based on seniority, and that close to forty people would have to go." Id. at 598. However, it turned out that White would not have been laid off, had he chosen to stay. Id. at 597. The court directed the case be remanded to the board for further findings as to whether White reasonably believed that a layoff was imminent when he retired and, if so, "a finding was required that the claimant did not leave his employment voluntarily." Id. at 598-599. In Morillo, an employer announced that it was going to lay off twelve people. Morillo volunteered to be among that number because he was "dissatisfied with the safety of the machines" he operated. Morillo, supra at 765-766. He was denied unemployment benefits on the ground that he left work "voluntarily without good cause attributable" to his employer. Id. at 766, quoting G. L. c. 151A, § 25 (e) (1). The court disagreed, stating that "the first and last steps in the termination process in this case were by the employer"; that the purpose of the unemployment statute was to permit employees to offer to be among those laid off; and that the employer would not be penalized because its "account will be charged regardless of the identity of the employees who are laid off." Id. at 766. In State St., the employer announced that there was going to *28 be a workforce reduction of 1,800 employees in two phases. State St., supra at 3. The first phase was a voluntary separation package; the second was involuntary termination. Because the number of employees offering to accept the voluntary separation exceeded 1,800, the second phase was never implemented. Id. at 4. The Appeals Court considered and rejected an argument similar to the one the claimant asserts here: that Morillo stands for the proposition that any employee who leaves voluntarily after an employer announces a workforce reduction plan is entitled to unemployment benefits and, therefore, Morillo effectively overruled White. State St., supra at 8. The Appeals Court stated that the key differences between Morillo and White were that there were no incentives offered to Morillo and there would be no economic impact on the employer "flowing from the precise identity of the twelve employees" who were laid off. State St., supra at 9. The court concluded that the holding in Morillo "is reserved for situations in which an employer announces that layoffs are to occur and accepts volunteers without offering them any incentives.... [It was] highly unlikely that the [Supreme Judicial Court] would have intended in Morillo to overrule what was then its four-year-old decision in White without even mentioning the case." Id. The claimant argues that, in State St., the Appeals Court erred in assuming that early retirement and incentive-based termination packages should be treated the same analytically. She also argues that the key difference between White and Morillo is not that an incentive was offered, but who made the final decision, what she refers to as the "last act." We are not persuaded. The inquiry in White, Morillo, as well as State St., was whether the employees, who apparently had volunteered to leave their employment due, respectively, to an early retirement incentive, an announced layoff, or a voluntary separation package, had "good cause ... attributable to the employ[er]." In White, the case was remanded to determine whether the employee reasonably believed a layoff was imminent when he accepted the retirement package. White, supra at 598-599. In Morillo, the court held that the actual identity of an individual employee who was part of an involuntary layoff did not matter. Morillo, supra at 766. In State St., the court concluded that the employer *29 hindered the ability of two of its employees to make a realistic assessment about whether the announced involuntary terminations would take place if they did not accept the voluntary separation package. State St., supra at 11-12. Thus in all three cases, the facts were such that the leaving could be attributable to the employer. However, Morillo is distinguishable on its facts because the employer announced and carried out a twelve person layoff, whereas in White and State St., whether leaving could be attributable to the employer was less obvious, given that the claimants received incentives and there were no layoffs. In this case, although the claimant asserts that she was "laid off," the record shows that Verizon never mentioned a layoff,[5] and she received the incentive package. Thus the board did not err in applying the analysis of State St. (and White) to this case. Here, the claimant does not dispute the board's findings that, at the time she applied for the voluntary termination package, she was not compelled to apply, did not believe her job was in jeopardy, and left in part for personal reasons. Based on these undisputed facts, the board did not err in concluding that the claimant did not prove by "substantial and credible evidence" that her leaving was attributable to Verizon.[6] Cf. Uvello v. Director of the Div. of Employment Sec., 396 Mass. 812, 816-817 (1986), and cases cited (remanding case for further findings on determination whether change in employee's duties constituted good cause to terminate employment). Conclusion. For the reasons set forth above, we affirm the District Court judge's decision affirming the board's denying the claimant unemployment benefits pursuant to G. L. c. 151A, § 25 (e) (1). So ordered. NOTES [1] Verizon New England, Inc. [2] General Laws c. 151A, § 25 (e) (1), states, in relevant part, that a person is disqualified from receiving unemployment benefits if "the individual has left work ... voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent." [3] The record shows that, among other benefits, the employee would receive a $10,000 voluntary termination bonus. [4] The claimant testified that no one at Verizon suggested that she would be transferred and the commute to the Andover facility would be about the same for her as the commute to Lowell. [5] The single reference to a layoff occurred at the hearing. However, it was posed as a hypothetical by the review examiner to the Verizon representative. [6] The claimant also discusses the economic impact of voluntary separation packages on employers. Because of our conclusion, we need not address her arguments, except to note that they were not raised below.

47 Cal.App.4th 899 (1996) THE PEOPLE, Plaintiff and Respondent, v. DIANE LORRAINE DUNN-GONZALEZ, Defendant and Appellant. Docket No. F022116. Court of Appeals of California, Fifth District. June 27, 1996. *902 COUNSEL Cleary & Sevilla and Charles M. Sevilla for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[*]] OPINION MARTIN, Acting P.J. On February 15, 1994, the Kern County District Attorney filed an information charging defendant as follows: count I — taking money or personal property in excess of $400 (Pen. Code, § 487, subd. (a));[1] count II — fraudulent appropriation in excess of $400 (§ 506); and count III — fraudulent appropriation of personal property in excess of $400 from an elder adult within her care and custody (§ 368, subd. (c)). The district attorney alleged as to each count the defendant took funds or property aggregating over $50,000 (§ 12022.6, subd. (a)). On May 20, 1994, the court granted defendant's motion to set aside count I (§ 995) and struck the excessive taking allegations on the remaining counts. *903 On May 24, 1994, the court denied defendant's motion to dismiss for delay in charging. The court specifically held: "THE COURT FINDS THE DEFENDANT HAS BEEN PREJUDICED BY THE PASSAGE OF TIME AND THAT ATTORNEY TOM CLARK SUBMITTED PAPERWORK TO THE DISTRICT ATTORNEY'S OFFICE THAT WAS COMPLETE AND LAID OUT ISSUES BUT THE DELAY WAS NOT DUE TO LACK OF INTEREST OR INTENTIONAL. "THE COURT FINDS NO INTENTIONAL DELAY UPON THE OFFICE OF THE DISTRICT ATTORNEY AND THE DELAY WAS JUSTIFIED DUE TO THE LACK OF PERSON[N]EL AND NO NEGLIGENCE UPON THE OFFICE OF THE DISTRICT ATTORNEY." On May 25, 1994, the court renumbered counts II and III as counts I and II and amended count II to include appropriation. The defendant then pleaded not guilty to the latter charge and jury trial commenced. On June 14, 1994, the jury found defendant guilty of both counts. On August 3, 1994, the court denied defendant probation and sentenced her to the three-year middle term on count II and the two-year middle term on count I. The court stayed the latter sentence (§ 654) and ordered her to pay $225 for the cost of preparing the presentence investigation report. The court also ordered that direct restitution to the victim would be determined at a hearing scheduled for September 21. Defendant filed a timely notice of appeal. FACTS Facts From the Hearing on Motion to Dismiss In 1991, the relatives of Mary LaBarre retained Bakersfield attorney Thomas Clark in connection with her pending conservatorship proceeding. The relatives instructed Clark to oppose the nomination of defendant, LaBarre's financial planner, as conservator, but not to oppose the conservatorship. On December 17, 1991, Clark, a former Kern County deputy district attorney, prepared a memorandum summarizing the evidence and analyzing the potential criminal charges that could be brought against defendant. The evidence primarily consisted of defendant's deposition. The memo was lengthy and included case and statutory authority. *904 Two days later, Clark met with Kern County Sheriff's Detective Lawrence Emhoff and Kern County Conservator Investigator Randall Dickow to provide information and discuss the possible criminal investigation of defendant. Clark did not recall if he gave Detective Emhoff a copy of his December 17 memo but believed he did. In any event, he discussed the contents of the memo at length with Emhoff. Investigator Dickow's case notes documenting the meeting stated the trio met: "[R]e criminal charges & KCSO's investigation. Also discussed was the ability to use Prob. Code § 2616 to further question Diane & all members of her family. KCSO to pursue investigation and take to DA when ready." On December 23, 1991, Attorney Clark wrote Emhoff, at the latter's request, and provided copies of declarations of Suzanne Toothman, social services designee, and Diane Lopez, housekeeping supervisor, at LaBarre's care facility, Pacific Regency Care Center of Bakersfield (Pacific Regency). These declarations had previously been filed in the conservatorship action. Shortly before April 30, 1992, Clark met with Assistant District Attorney Stephen Tauzer. On April 30, Clark wrote Tauzer at the latter's request and supplied additional information. At some point, Clark delivered a copy of his December 17 memo and portions of defendant's deposition to Tauzer. The memo referred to follow-up work that needed to be done, particularly the need for statements from various witnesses and bank and medical records. Tauzer testified Clark had left records and/or transcripts with him some months prior to March 26, 1993. However, at that time there had been no police involvement in the investigation and Tauzer maintained the case was not sufficiently prepared to be filed as a criminal matter. Clark agreed the case needed investigation when he referred the matter to the district attorney's office. Tauzer further testified there was some indication the case should go to the sheriff's department for investigation. Tauzer discussed the matter with Investigator Dickow. Dickow agreed to investigate further but he was later terminated from public employment for theft from an elder adult (§ 368, subd. (c)). Tauzer said he intended to do something with Clark's information but the case was one of numerous matters referred directly by victims to the district attorney's office. Tauzer explained the district attorney's office tries to fit such cases into its resources and the sheriff's department's resources when possible. At the time Clark submitted his information, the district attorney's staff was reduced by 15 attorneys, the misdemeanor attorneys were cut from 15 to 3, the office had no more fraud attorneys, and the sheriff's department was experiencing similar personnel cuts. On March 26, 1993, Clark wrote District Attorney Edward Jagels about the documents he had left with Tauzer and complained about the latter's *905 inaction. At that point, the matter was given to Deputy District Attorney Terry Pelton for review. On April 14, 1993, Pelton wrote a memo indicating there was a prosecutable case and the matter should be sent to the Bakersfield Police Department (BPD) or one of the district attorney investigators for investigation. On April 16, 1993, Pelton requested an investigation by one of the district attorney investigators. In late April or early May 1993, Deputy District Attorney Catherine Goetz received the case file — a bundle of papers which had not been assigned a case number. Goetz was assigned to a grant program, the prison section, and was not as busy as other deputies in the district attorney's office. At the request of Investigator Cheryl Gottesman, one Dan Sparks of the district attorney's office asked Goetz to look at the case and determine whether criminal charges could be filed. Goetz briefly looked through the papers, talked with Gottesman, and determined further investigation was needed. Goetz concluded the case was not ready for filing because the district attorney's office needed to interview witnesses and secure doctor's reports. In early June 1993, Goetz and Gottesman interviewed Mary LaBarre. Goetz had the case for another three weeks and then became involved in the trial of a high profile case requiring investigation. She asked Gottesman to inform Dan Sparks she did not have time to follow through the intricacies of this matter. She then referred the case back to Gottesman. On July 15, 1993, Gottesman sent Goetz a memorandum indicating she had partially completed her investigation and had received some of the missing records. Goetz was still involved in the unrelated case and advised Gottesman she would be unable to put the case together. Goetz returned the case to Dan Sparks. On August 14, 1993, Pelton generated an office memorandum concerning the case. On September 27, 1993, Clark wrote Gottesman, stating, "I haven't heard from you for some time, can you please advise me as to the status of the investigation." Pelton ultimately filed the case after the investigation was complete. The filing form was dated November 11, 1993. On November 18, 1993, Clark wrote District Attorney Jagels a letter, offered his assistance in the criminal investigation, and expressed his hope that charges would be filed. The district attorney's office issued the complaint on November 22, 1993, and Clark wrote Jagels again the following day. *906 Assistant District Attorney Tauzer testified there was no conscious or deliberate delay in the investigation of this case. Tauzer said any delay was due solely to the lack of resources. Tauzer said he was the only person handling major fraud cases at the time and he had several that were in trial. One of the cases was a $20 million fraud matter and the district attorney's office was conducting the original investigation. The court took judicial notice that Tauzer also tried a complicated case involving a "Ponzi scheme"[2] during this period. Tauzer said the instant case was investigated faster than normal because of "the squeaky wheel syndrome." At the hearing on motion to dismiss, Deputy District Attorney Lynn Strom, the prosecutor in this matter, claimed her case file consisted of two boxes of material and her witness list contained twenty-six names. Defendant testified she would have been available for service of an arrest warrant between December 1991 and November 1993. She had lived at the same address in Bakersfield since 1986. Although her office address changed in 1991, defendant had telephone service listed to her offices in her name. In her moving papers, defendant included a copy of the September 21, 1992, deposition of Robert LaBarre, the ex-husband of Mary LaBarre, for purposes of the conservatorship proceeding. At the deposition, Robert, age 91, testified he wed Mary in 1978 and left her on August 4, 1991, because they did not get along. Their dissolution was pending at the time of the deposition. Robert did not know what Mary and defendant did after he left, although he briefly spoke to Mary on one occasion. During their marriage, the couple had limited visits with some of Mary's relatives, including Michael Otten, Helen Leake, John Simco, Barbara Simco, and Rosemary Pinkstaff. They had more frequent visits with Mary's sister, Frances Howard. Robert said Mary did not get along with Frances but still visited her when the latter was in the hospital. Robert said Mary was not close to her sister Barbara. Moreover, Robert did not believe Mary loved her sisters, based upon her general attitude. Nevertheless, Mary called her sisters occasionally. Roberta Simco was the only relative who visited Mary when the latter was in the hospital. In June 1990, Mary consulted Attorney George Manolakas to make her first will. She told Robert she wanted to leave money to her sisters and the *907 Oildale church and priest. Mary's will also left money to Robert's son and included a trust to pay Robert investment interest for life. Robert no longer expected the trust income at the time of the deposition. Robert said Mary had a good understanding of her assets and what she wanted to do with them. She occasionally kept jewelry and some bonds in her safe deposit box and generally knew where the key was during their marriage. Mary was frugal with money and shared trash cans with a neighbor and raised food in a garden to save expenses. Robert and Mary had a close relationship with some neighbors but not with others. Mary had a restricted driver's license and Robert did most of the driving. Mary had a 1978 Lincoln Continental with low mileage but it was in "pretty bad shape." The couple discussed the possible purchase of a new vehicle before Robert left. Robert said Mary bought "top of the line" items such as clothes and cars and gave "top of the line" gifts but he was unaware of any sizable monetary gifts. Robert knew Mary gave gifts to defendant. Mary made independent investment decisions and was in control of her decisionmaking faculties when she and Robert separated. Defendant performed well as Mary's financial adviser and made profitable investments for her. In his opinion, Mary's relationship with defendant was closer than that with her own sisters. Robert trusted defendant. Mary had been a schoolteacher and had a strong interest in seeing youth advance in education. Although Mary helped Rosemary Pinkstaff's son, Roger Pinkstaff, Robert never heard Mary discuss helping defendant's son. He also heard defendant took pretty good care of Mary after he left her. Defendant and Mary bought a Lexus and defendant used the new vehicle to run errands for Mary. Defendant and Mary also took $10,000 from Mary's checking account and gave it to one of defendant's sons. Defendant's moving papers contained a declaration by defense counsel. In that declaration, counsel stated defense investigator Charles Feer had learned of the death of Robert LaBarre. At the hearing, counsel claimed he had a printout from the National Witness Death Index indicating the death of Mr. LaBarre on July 19, 1993, in Arkansas. Counsel stated at the hearing he had requested a certified copy of LaBarre's certificate of death but had not yet received it. Defense counsel asked and the court allowed him to introduce the rest of the evidence subject to receipt of the certificate of death. Defendant's moving papers also referred to the preliminary hearing testimony of Antonio Perelli-Minetti, M.D., a psychiatrist who evaluated Mary on November 2, 1991. Dr. Perelli-Minetti testified a radiologist found Mary *908 suffered from a moderate amount of central and cortical atrophy. Such atrophy usually indicates an Alzheimer's type of process. The radiologist also found multiple deep white matter infarctions and encephalomalacia, which were little strokes. Perelli-Minetti further testified that Alzheimer's disease, in general, is a slowly progressing disease. At the hearing, defense counsel claimed he had subpoenaed Mary but she was not present. Counsel said Coroner-Public Guardian Helen Frankel was appearing to tell the court that Mary was physically and mentally frail. Therefore, it would not be in her best interest to appear in court. Defense counsel did not put on any evidence relating to Mary's condition because the court said it found prejudice based upon Robert's deposition and his alleged unavailability. The court nevertheless denied the motion to dismiss, stating in relevant part: "In this particular case, I do not agree wholeheartedly with the position asserted by either side. I did find prejudice. I still find prejudice. Curiously that works both ways. ".... .... .... .... .... .... .... "I don't think there was a lack of interest on the part of the District Attorney's Office. I do not find that this was a case where there was justifiable delay, because there was a lot of investigation work to be done. ".... .... .... .... .... .... .... . "This really was, quite frankly, pretty well laid out. Certainly there was a lot more that needed to and could have been done, and should have been done. But, I'm not finding that the delay was justified because of the need for the extensive further investigation. I think the basic bare bones of it, and a lot of the delay, supporting detail, were certainly all laid out. "To the extent that the Arch[e]rd ... case requires a finding of intentional delay, I do not find intentional delay. "When Mr. Tauzer testified about the squeaky wheel getting the oil, or the grease, as I had always heard the phrase, I do not think that indicated a lack of interest, but instead a lack of personnel. "To the extent that the standard is negligence, negligence to me requires not perfection, but requires someone falling below a standard of a reasonable *909 practitioner. And, a reasonable practitioner can only do that which can be accomplished within the twelve working hours per day that I think we expect or demand that the professionals put in every day. "I find, in this particular case, that there was justification for the delay, and I find this to be certainly a case of first impression.... There was unrefuted evidence with regard to the inattention to this particular case, and that is the lack of personnel. "I had well in mind the testimony of Mr. Tauzer indicating that, due to budgetary restraints, the number of Deputy District Attorneys had been reduced. "Certainly he did testify that, at the time this particular matter was presented by Mr. Clark, there was only one deputy assigned to doing this type of crime. I think he was the one, in fact, and as I recall, he did testify that during a considerable period of time there, he was involved in trying one of these cases. Nobody asked him. ".... .... .... .... .... .... .... "I'm going to find that the delay in this case was not intentional, in terms of blatantly or with a willful purpose ignoring it, hoping that it would go away. "Also, I find that it was not negligent, because, in order to do that, I would have to find that there were sufficient Deputy District Attorneys available to evaluate, and to do that which was necessary in order to get subpoenas out, and do all the other things necessary to be able to proceed to a preliminary hearing within ten days from the date that the Complaint was filed in the Municipal Court and the arrest warrant was issued and served. "As I say, I do not find either to be the situation. This was not a lack of interest. It was not a matter of negligence. It was a lack of money. "I found no case, there is no case that supports that justification that I've indicated, which means that if the matter goes to trial, and there is an adverse result to the Defendant ... she clearly has an appealable issue...." Facts From the Jury Trial[*] .... .... .... .... .... .... .... . *910 DISCUSSION I. Did the Trial Court Erroneously Deny Defendant's Motion to Dismiss for Undue Delay in Charging? (1a) Defendant contends she was denied fundamental fairness by the prosecution's almost two-year delay in bringing charges. Defendant maintains this denial was particularly acute where (a) former prosecutor Thomas Clark apprised the district attorney's office of the relevant facts via a detailed writing with supporting documentary evidence and (b) the district attorney's office was on notice the alleged victim's mental state was deteriorating. (2) The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution, which provides "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." Essentially the same right is guaranteed by article I, section 15 of the California Constitution, which provides: "The defendant in a criminal cause has the right to a speedy public trial...." The federal speedy trial right attaches once a defendant is accused. A person stands accused once a formal indictment or information is filed or he or she is subject to the actual restraints imposed by arrest and holding to answer a criminal charge. The California speedy trial right has been held to be broader than the federal right in that it attaches as early as the filing of a complaint, and thus covers prearrest delay. (People v. Hannon (1977) 19 Cal.3d 588, 608 [138 Cal. Rptr. 885, 564 P.2d 1203]; People v. Belton (1992) 6 Cal. App.4th 1425, 1428-1429 [8 Cal. Rptr.2d 669].) (3) The First District Court of Appeal has held there are two elements to consider in discussing the right to a speedy trial. The first is the stage at which the right attaches. The second is the stage at which the presumption of prejudice arises. (People v. Lawson (1979) 94 Cal. App.3d 194, 198 [156 Cal. Rptr. 226].) During the period between the crime and the arrest or the filing of the complaint, the speedy trial doctrine does not apply. The right to due process is involved during that period. However, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against the justification for that delay. Upon arrest or filing of the complaint, the right to a speedy trial attaches but at this stage there is no presumption of prejudice. The presumption of prejudice does not arise until the filing of an indictment or information. (People v. Butler (1995) 36 Cal. App.4th 455, 462-464 [42 Cal. Rptr.2d 279]; People v. Belton, supra, 6 Cal. App.4th at p. 1429; Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505 [149 Cal. Rptr. 597, 585 P.2d 219]; People v. Archerd (1970) 3 Cal.3d 615, 639-640 [91 Cal. Rptr. 397, 477 P.2d 421].) *911 If the alleged delay occurs prior to the filing of an indictment or information, there is no presumption and a three-step analysis is employed to determine whether the defendant's rights have been violated. First, the defendant must show he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification. (People v. Lawson, supra, 94 Cal. App.3d at p. 198, citing Jones v. Superior Court (1970) 3 Cal.3d 734 [91 Cal. Rptr. 578, 478 P.2d 10]; People v. Archerd, supra, 3 Cal.3d at pp. 639-642; People v. Pellegrino (1978) 86 Cal. App.3d 776, 779-781 [150 Cal. Rptr. 486].) If the delay occurs after the filing of the indictment or information, prejudice is presumed and the prosecution must then show justification for the delay. (People v. Lawson, supra, 94 Cal. App.3d at p. 198.) (4) In the instant case, there is no claim of postinformation delay and in California, prejudice will not be presumed from delay which occurs before arrest or the filing of an indictment or information. Thus, the burden is on defendant to show such prejudice. Prejudice may be shown by loss of material witnesses due to lapse of time or loss of evidence because of fading memory attributable to the delay. (People v. Butler, supra, 36 Cal. App.4th at p. 466.) If the defendant makes such a showing, the burden shifts to the prosecution to justify the delay. (People v. Pellegrino, supra, 86 Cal. App.3d at p. 779.) If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to "weigh" such justification against. This is particularly true when there is no evidence the delay was for the purpose of weakening the defense. (People v. Lawson, supra, 94 Cal. App.3d at pp. 198-199.) Finally, if defendant has met his burden, the court must balance the harm to the defendant against the justification for the delay. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505; Jones v. Superior Court, supra, 3 Cal.3d at p. 740.) The facts and circumstances must be viewed in light of (1) time involved; (2) who caused the delay; (3) the purposeful aspect of the delay; (4) prejudice to the defendant; and (5) waiver by the defendant. If the government deliberately uses delay to strengthen its position by weakening that of the defense or otherwise impairs a defendant's right to a fair trial, an inordinate preindictment delay may be shown to be prejudicial. However, a prosecutor is entitled to a reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted. (People v. Archerd, supra, 3 Cal.3d at p. 640.) This court has held police negligence in evidence gathering or case preparation for evaluation by the district attorney cannot justify a lengthy prearrest delay. (Penney v. Superior Court (1972) 28 Cal. App.3d 941, 953 [105 Cal. Rptr. 162].) Whether prearrest *912 delay is unreasonable and prejudicial to the defendant is a question of fact. If the court concludes the defendant's speedy trial right has been abridged, the remedy is dismissal of the charge. (People v. Belton, supra, 6 Cal. App.4th at p. 1431, fn. 3.) The trial court's ruling must be upheld on appeal if it is supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167 [104 Cal. Rptr. 348, 501 P.2d 916].) As noted above, the trial court denied defendant's motion for dismissal on the grounds of charging delay, stating in relevant part: "In this particular case, I do not agree wholeheartedly with the position asserted by either side. I did find prejudice. I still find prejudice [because Robert LaBarre was no longer available]. Curiously that works both ways.... ".... .... .... .... .... .... .... "I find, in this particular case, that there was justification for the delay.... ".... .... .... .... .... .... .... "I had well in mind the testimony of Mr. Tauzer indicating that, due to budgetary restraints, the number of Deputy District Attorneys had been reduced. "Certainly he did testify that, at the time this particular matter was presented by Mr. Clark, there was only one deputy assigned to doing this type of crime. I think he was the one, in fact, and as I recall, he did testify that during a considerable period of time there, he was involved in trying one of these cases. Nobody asked him. ".... .... .... .... .... .... .... "I'm going to find that the delay in this case was not intentional, in terms of blatantly or with a willful purpose ignoring it, hoping that it would go away. "Also, I find that it was not negligent, because, in order to do that, I would have to find that there were sufficient Deputy District Attorneys available to evaluate, and to do that which was necessary in order to get subpoenas out, and do all the other things necessary to be able to proceed to a preliminary hearing within ten days from the date that the Complaint was filed in the Municipal Court and the arrest warrant was issued and served. *913 "As I say, I do not find either to be the situation. This was not a lack of interest. It was not a matter of negligence. It was a lack of money." Defendant contends on appeal: "Prejudice was unquestionably present here. While the prosecution spent its time ignoring Tom Clark's letters, calls and the evidence he presented, Robert LaBarre, Mary LaBarre's ex-husband and a vital witness for appellant, died. The alleged victim, Mary LaBarre, so declined in mental health that her ability to confirm that she made gifts to appellant was forever lost during the time interval between the alleged acts and the formal charges (i.e., between mid-to-late 1991 and November of 1993[).] "In balancing these factors, the prejudice suffered by appellant far outweighs the `justification' for the delay offered by the prosecution. In fact, the justification, be it labeled deliberate indifference or negligent avoidance, boils down to `we were too busy.' Given the time-sensitive case facts, `too busy' is not an acceptable excuse when it is certain that the loss of evidence will inevitably result from delays in pursuing the case. "... By any standard, a heavy caseload is not a sufficient reason to put an accusation against someone on the `back burner' for two years, especially when that delay causes such an insurmountable detriment to the ability of that person to defend herself. "Applying the five-part test of Archerd, cited above, the court must weigh and balance the following: (1) the delay here was at least eighteen months between notice to the District Attorney and the commencement of the investigation; during this time, Mr. Clark repeatedly contacted the office to get the investigation moving; (2) the delay was caused by the inattention of the District Attorney during this time period despite acknowledging early on that the case looked prosecutable and that, as Mr. Tauzer said in his 1993 memorandum to District Attorney Jagels, not much would be required of the police to put the case together; (3) the purposeful aspect of the delay is demonstrated because of the documented deliberate inattention to it despite knowledge of the facts of the case, the time-sensitive nature of the evidence (the age of the major witness and her ongoing mental deterioration), and the repeated contacts by Mr. Clark urging investigation; (4) prejudice to the defendant was found (and virtually conceded by the prosecution); and (5) there was no waiver by appellant. "The loss of Robert and Mary LaBarre as witnesses, resulting directly from the delay by the prosecutor's office, is one that prejudiced the defendant and violated her due process rights. Because of this loss, appellant lost *914 the most effective way to prove that Mary LaBarre's gifts to appellant were given in a gesture of loving friendship for a mutually satisfying relationship.... The charges must be dismissed." (1b) The actual amount of time between the commission of the suspected crime and the filing of charges is not the critical issue in determining prejudice. Prejudice sufficient to sustain dismissal has resulted after a delay of five months, while charges filed after ten years have been upheld. Here, the trial court found prejudicial precharging delay. Under the three-step test for determining a due process violation, the prosecution must show justification for the delay. (People v. Hartman (1985) 170 Cal. App.3d 572, 579 [216 Cal. Rptr. 641].) Assistant District Attorney Tauzer testified he intended to investigate further with the information Clark had furnished but the case was one of many referred directly to the district attorney's office by crime victims. Tauzer said the district attorney's office tries to fit such cases into its resources and the resources of the Kern County Sheriff's Department where possible. However, the resources of both agencies were becoming more and more limited at the time Clark submitted his memorandum. The district attorney's office sustained a reduction in 15 staff attorneys. Budget cuts resulted in the elimination of misdemeanor fraud attorneys. The sheriff's department experienced similar personnel cuts. Tauzer further explained he was the only person handling major fraud cases at the time of the cuts and he had several matters in trial. One of those matters was a $20 million fraud case and the district attorney's office was handling the original investigation in that matter. Tauzer emphasized there was no conscious or deliberate delay in investigating the instant case and any delay was due solely to lack of resources. (5) The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Rather, the task of the reviewing court is to determine whether precharging delay violates the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency. Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. Imposition of such a duty would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused because investigative delay is not so one-sided. A prosecutor abides by elementary *915 standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of orderly expedition to that of mere speed. In sum, to prosecute a defendant following investigative delay does not deprive the defendant of due process, even if his or her defense might have been somewhat prejudiced by the lapse of time. (United States v. Lovasco (1977) 431 U.S. 783, 790-796 [52 L.Ed.2d 752, 759-763, 97 S.Ct. 2044], rehg. den. 434 U.S. 881 [54 L.Ed.2d 164, 98 S.Ct. 242].) Moreover, the necessity of allocating prosecutorial resources may cause delays valid under the Lovasco analysis. (United States v. Medina-Arellano (5th Cir.1978) 569 F.2d 349, 353.) (1c) Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) was a valid justification for delay in the instant case. In evaluating a claim of preaccusation delay, any prejudice to the defendant resulting from the delay must be weighed against the justification for the delay. (People v. Butler, supra, 36 Cal. App.4th at p. 466.) Even a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal. Therein lies the delicate task of balancing competing interests. (People v. Hartman, supra, 170 Cal. App.3d at pp. 582-583.) Here, the delay between notice to the office of the district attorney and commencement of investigation was actually 12 months. During that one-year period, Assistant District Attorney Tauzer spoke with Investigator Dickow and the latter agreed to investigate. However, Dickow was later terminated from public employment. The lower court reviewed the evidence and reasonably concluded the delay in investigation and charging was caused by lack of adequate personnel to investigate and prosecute the case. Defendant nevertheless claims the delay was marked by "deliberate inattention" or "negligent avoidance." However, this characterization of the district attorney's conduct ignores Tauzer's testimony about the severe cuts in personnel handling fraud cases in his office. As to prejudice to the defendant, the People properly point out there were 21 witnesses who could testify to some degree as to Mary's competence at the time of the alleged offenses. These witnesses included Attorney Manolakas, Dr. Anderson, Mr. and Mrs. Somers, Ombudsman Parks, Dr. Perelli-Minetti, Ms. Toothman, Ms. Kelty, Ms. Lopez, Ms. Pacheco, Ms. Barkalow, Ms. Knapp, Mr. Timmons, Attorney Fillerup, Mrs. Fillerup, Dr. Hsu, Mr. *916 Dunn, Attorney Russell, Mr. Bensusen, Attorney Thompson, and Dr. Matis. Moreover, a number of these witnesses (Parks, Fillerup, Dunn, Russell, Bensusen, and Thompson) were available to testify to the affection between defendant and Mary. Although defendant did not waive any delay, the People maintain she waived any claim of prejudice attributable to Mary's alleged unavailability because she did not present any evidence of Mary's condition at the hearing on motion to dismiss. The lower court carefully examined the foregoing factors, acknowledged on the record the extreme difficulty of the task before it, and ultimately concluded the delay was justified given the severe budgetary restraints upon the offices of the Kern County District Attorney and sheriff at the time of Clark's initial contact. The lower court's finding was primarily based upon the testimony of Assistant District Attorney Tauzer. The direct evidence of one witness entitled to full credit is sufficient for proof of any fact except where additional evidence is required by statute. (Evid. Code, § 411.) Defendant's argument is rejected. II.-IV[*] .... .... .... .... .... .... .... . The judgment is affirmed. The trial court is ordered to strike the order directing defendant to reimburse the County of Kern $225 for preparation of the presentence investigation report and to amend the abstract of judgment accordingly. A certified copy of the abstract is to be sent to the Department of Corrections. Stone (W.A.), J., and Harris, J., concurred. A petition for a rehearing was denied July 23, 1996, and appellant's petition for review by the Supreme Court was denied October 2, 1996. Kennard, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted. NOTES [*] It is ordered that the introductory text summarizing the case background, "Facts From the Hearing on Motion to Dismiss," part I of the Discussion, and the dispositional paragraph of the opinion are certified for publication. [1] All statutory references are to the Penal Code unless otherwise indicated. [2] A "Ponzi scheme" is a fraudulent arrangement in which an entity makes payments to investors from moneys obtained from later investors rather than from any "profits" of the underlying business venture. The fraud consists of funneling proceeds received from new investors to previous investors in the guise of profits from the alleged business venture, thereby cultivating an illusion a legitimate profitmaking business opportunity exists and inducing further investment. (In re United Energy Corp. (9th Cir.1991) 944 F.2d 589, 590, fn. 1.) [*] See footnote, ante, page 899.

154 Wis.2d 821 (1990) 454 N.W.2d 51 STATE of Wisconsin, Plaintiff-Respondent, v. Bill SCHLEUSNER, Defendant-Appellant. No. 89-1444-CR. Court of Appeals of Wisconsin. Submitted on briefs December 14, 1989. Decided February 27, 1990. *823 For defendant-appellant there were briefs by William E. Schmaal, Madison. For plaintiff-respondent there was a brief by Donald J. Hanaway, attorney general and David J. Becker, assistant attorney general of the Wisconsin Department of Justice, Madison. Before Cane, P.J., LaRocque and Myse, JJ. MYSE, J. Bill Schleusner appeals his conviction for nonsupport, contrary to sec. 940.27(2), Stats. (1985-86). He argues that the jury instructions unconstitutionally relieved the state of its burden to prove intent and to prove his inability to pay support. Schleusner also argues that there was insufficient evidence to support the guilty verdict. We conclude that the jury instructions did not relieve the state of its burden of proof and that there was sufficient evidence to support the verdict. We affirm the conviction. After Schleusner's divorce, his former wife retained custody of their three children and he was ordered to pay $145 per month child support. Schleusner made no payments between July 20, 1985, and June 30, 1986. Schleusner's former employer testified that on August 2, 1985, Schleusner voluntarily terminated his job at a dairy farm where he was earning room and board plus $125 per week. The employer testified that a few days after Schleusner learned that the employer was to deduct $145 per month from his wages for payment of his child support obligations, Schleusner chose to quit his job *824 without explanation. The employer testified that she would have continued to employ him. From November 1985 until May 1986, Schleusner received welfare. In May 1986, he started employment at Wayne's Palletts, Inc., at $3.50 per hour for forty hours per week. Schleusner voluntarily terminated his employment with Wayne's on July 26, 1986, after learning that child support payments were to be withheld from his paycheck. The employer testified that Schleusner left voluntarily and without explanation, but she also would have continued to employ Schleusner had he not quit. After a jury trial, Schleusner was found guilty of nonsupport, pursuant to sec. 940.27(2), Stats. (1985-86). I Schleusner first argues that the jury instructions unconstitutionally relieved the state of its burden to prove intent. We conclude that the jury instructions incorporated a permissive inference that was rationally based, and therefore did not relieve the state of its burden to prove intent. [1, 2] In order to obtain a conviction, the state is required to prove beyond a reasonable doubt every element of the charged offense. See Muller v. State, 94 Wis. 2d 450, 473-74, 289 N.W.2d 570, 582 (1980). "Intent" is an element of the offense of felony nonsupport under sec. 940.27, Stats. (1985-86). Section 940.27(2), Stats. (1985-86), provides that "any person who intentionally fails for 120 or more consecutive days to provide . . . child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E Felony."[1] *825 [3] Section 940.27(4), Stats. (1985-86), defines prima facie evidence of intentional failure to provide support as failure to pay any child support payment required under a court order.[2] The jury was instructed as follows: Evidence has been received that the defendant failed to pay support payments required by a court order. If you are satisfied beyond a reasonable doubt that the defendant failed to pay support payments required by a court order, you may find that the failure to provide support was intentional but you are not required to do so. You must not find that the failure to support was intentional unless you are so satisfied beyond a reasonable doubt from all the evidence in the case. (Emphasis added.) Schleusner argues that the incorporation of the presumption created by sec. 940.27(4), Stats. (1985-86), into the jury instructions violated his rights to due process because the jury instruction may have been interpreted as relieving the state of its burden to prove intent beyond a reasonable doubt. We review the validity of a statutory presumption such as the one involved here as applied to the record before this court. We do not review the statutory presumption on its face. See County Court v. Allen, 442 U.S. 140, 161-63 (1979). *826 [4-6] The jury instruction here created a permissive inference. A permissive inference allows, but does not require, the trier of fact to find an element of the crime from proof of another fact. It places no burden on the defendant. State v. Vick, 104 Wis. 2d 678, 693, 312 N.W.2d 489, 496 (1981) (citing Allen, 442 U.S. at 157). A permissive inference is invalid only where there is no rational connection between the proven facts and the inferred facts. Id. at 694-95, 312 N.W.2d at 497. In determining whether there is a rational connection, the test is whether the ultimate fact inferred is more likely than not to flow from the basic fact proved. Allen, 442 U.S. at 165. A jury may find a presumed fact based upon the rational inferences from basic facts that themselves must be proved beyond a reasonable doubt. State v. Dyess, 124 Wis. 2d 525, 548, 370 N.W.2d 222, 234 (1985). [7] The connection between the proven fact and the fact to be inferred was rational. Intent may be inferred from one's conduct. State v. Stewart, 143 Wis. 2d 28, 35, 420 N.W.2d 44, 47 (1988). It is more likely than not that one intends what one does. Also, the instructions did not require the jury to reach any specific result. Instead, the jury was directed to assess the evidence independently and to accept or reject the inference based upon the strength of the evidence presented. See sec. 903.03(3), Stats. (1985-86). [8] We conclude that no reasonable jury could have misinterpreted the instruction. Because the instructions allowed the jury to independently assess the evidence, and because the connection between the basic fact proved and the fact to be inferred was rational, the *827 instructions did not unconstitutionally relieve the state of its burden to prove intent beyond a reasonable doubt. II [9] Next, Schleusner argues that the jury instructions relieved the state of its burden to prove beyond a reasonable doubt that he had the ability to pay after he raised the affirmative defense. We disagree. The jury instruction properly allocated this burden to the state after Schleusner presented evidence that he had received welfare and therefore lacked ability to pay support. In State v. Duprey, 149 Wis.2d 655, 439 N.W.2d 837 (Ct. App. 1989), this court held that no constitutional violation resulted from requiring the defendant to demonstrate the existence of the affirmative defense of ability to pay.[3] Accordingly, the state was not required to disprove the existence of the affirmative defense in order to show a prima facie case. Id. at 659-60, 439 N.W.2d at 839. However, once the defendant demonstrates the existence of an affirmative defense, Wisconsin law, independent of the federal due process requirements, requires the state to bear the burden of disproving the asserted defense beyond a reasonable doubt. Moes v. State, 91 Wis. 2d 756, 765, 284 N.W.2d 66, 70 (1979); sec. 939.70, Stats. *828 The trial court properly instructed the jury with respect to the state's burden of proof: Evidence has been received that the defendant lacked abilities to provide support. Before you may find the defendant guilty, the state must prove by evidence which satisfies you beyond a reasonable doubt that the defendant had the ability to provide support or by working would have had the ability to provide support, but intentionally failed to do so to the extent of his ability. A person may not demonstrate inability to provide child support if the person is employable but without reasonable excuse, either fails to diligently seek employment, terminates employment, or reduces his or her earnings. (Emphasis added.) The instruction correctly allocated the state's burden of proof and stated the circumstances when the affirmative defense is unavailable. See sec. 940.27(6), Stats. (1985-86). We discern no error. III Finally, we address Schleusner's argument that there was insufficient evidence at trial to support his felony nonsupport conviction beyond a reasonable doubt. Schleusner argues that his failure to pay pursuant to the court order was not indicative of his intent. Schleusner further argues that although he quit his farmhand job, the state failed to show the job would have been available for a total of 120 days. He contends that because he qualified for public assistance from November 8, 1985, through March 31, 1986, he demonstrated inability to pay for the entire eleven-month period (July 20, 1985-June 30, 1986) under prosecution. He claims that no 120-consecutive-day period existed during which *829 he had the ability to pay. In addition, he argues that his voluntary termination of the woodworking job was immaterial because he quit after the time period for which he was charged had expired. [10] Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could find that the state proved the essential elements of the crime of felony nonsupport beyond a reasonable doubt. See Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725, 728 (1981). Whether Schleusner's failure to pay was intentional was an issue for the jury. The jury was entitled to consider all the facts and circumstances in determining Schleusner's intent. That Schleusner voluntarily and without reasonable excuse quit two jobs shortly after he learned that child support payments were to be withheld and made no payments for an eleven-month period, despite the court order, is certainly indicative of Schleusner's intent. That Schleusner quit the woodworking job subsequent to July 26, 1986, may not be relevant to the issue of ability to pay before that date, but it is relevant to intent during the time period for which he was charged. The jury was not required to find that because he received public assistance, he lacked the ability to make the required payments. The record showed that Schleusner was healthy and capable of doing work. The evidence was sufficient for the jury to believe that Schleusner avoided employment for the purpose of intentionally avoiding his support obligations. Also, the state is not required to demonstrate that Schleusner's job as a farmhand would have been available for 120 consecutive days. The affirmative defense of inability to pay is unavailable to one who is employable but, without reasonable excuse, voluntarily terminates *830 his employment. Sec. 940.27(6), Stats. (1985-86). The statute does not require that the inability to pay exists for any period of time or that voluntary termination of employment involves a job that would exist for some defined period in the future. Here, there was undisputed evidence that Schleusner voluntarily terminated his dairy farm job without explanation, although he was capable of working. This evidence was sufficient to preclude Schleusner from escaping liability on the basis of the affirmative defense. Without proof that his employment would terminate in the future, the state was not required to show ability to pay for 120 days or any time period whatsoever once it demonstrated that Schleusner voluntarily terminated his employment. By the Court.—Judgment affirmed. NOTES [1] Section 940.27, Stats. (1985-86), has been amended and renumbered sec. 948.22, Stats., effective July 1, 1989, by sec. 33, 1987 Wis. Act 332. [2] Section 940.27(4)(a), Stats. (1985-86), provides: Before January 1, 1990, under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support: (a) Before January 1, 1990, for a person subject to a court order requiring child, grandchild or spousal support payments, failure to pay any child, grandchild or spousal support payment required under the order. [3] Section 940.27(6), Stats. (1985-86), provides in part: [A]ffirmative defenses include but are not limited to inability to provide . . . support. A person may not demonstrate inability . . . if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets.

146 Cal.App.3d 1019 (1983) 194 Cal. Rptr. 691 THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MENCHACA, Defendant and Appellant. Docket No. 41643. Court of Appeals of California, Second District, Division One. September 12, 1983. *1020 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Patra Woolum, Deputy State Public Defender, for Defendant and Appellant. *1021 John K. Van de Kamp, Attorney General, Carol Wendelin Pollack, Susan Lee Frierson and Gelacio L. Bayani, Deputy Attorneys General, for Plaintiff and Respondent. OPINION SPENCER, P.J. — INTRODUCTION Defendant Francisco Menchaca appeals from a judgment of conviction entered after a jury trial. Prior to trial, the People's motion to admit in evidence certain out-of-court statements of the victim under the recent complaint doctrine was granted and defendant's motion to suppress his out-of-court admissions was denied. The jury found defendant guilty of burglary (Pen. Code, § 459) and rape (Pen. Code, § 261, subd. (2)), after which defendant was sentenced to state prison for the term prescribed by law. PROCEDURAL BACKGROUND Defendant is a Spanish-speaking Mexican national; he is illiterate and neither speaks nor understands English. At the preliminary hearing on September 9, 1981, interpreter Maria Bowen was sworn for the purpose of interpreting the testimony of the Spanish-speaking complaining witness; no separate interpreter was present at the defense table. On September 23, 1981, interpreter Peter Lopez was sworn, after which defendant waived arraignment and entered a plea of not guilty. A pretrial conference was held on October 26, 1981, at which time interpreter Peter Lopez was sworn and the matter was set for trial. Thereafter, on November 2, November 5 and November 12, the matter was continued; no interpreter was present on these occasions. At 9 a.m. on November 16, 1981, the matter was declared ready for trial. In that no interpreter was present, the matter was held until 11 a.m., at which time it was once again called. Interpreter Maria Bowen was sworn, after which the matter was trailed until 9 a.m. of the following day. On November 17, the trial court assigned the matter for trial and found no court then available; interpreter Maria Bowen, previously sworn, was present. Trial commenced on November 18, 1981, with interpreter Maria Bowen present. On this occasion, the trial court granted defendant's motion to provide a separate interpreter for non-English-speaking witnesses. On November *1022 19, with interpreter Maria Bowen present, the trial court heard defendant's motion to suppress his out-of-court admissions. In the course of the hearing, Maria Bowen was sworn as a witness and testified to the meaning of the Spanish words, "Bueno, si"; thereafter, trial continued. When Spanish-speaking witness, Geronimo De Haro, was sworn, no witness interpreter was available; accordingly, over defendant's objection, Maria Bowen was sworn as a witness interpreter. In an effort to determine whether defendant understood the witness, defense counsel utilized investigator James Henry as an interpreter. Mr. Henry was unsworn. Approximately one-half hour later, well into the direct examination of the witness, the scheduled witness interpreter, Alicia Luper, arrived and was sworn; Maria Bowen resumed interpreting for defendant. Thereafter, at all times in the presentation of the People's case during which a non-English-speaking witness was testifying, a separate witness interpreter was utilized. During the presentation of the defense, defendant waived a separate witness interpreter for the testimony of Anastasia Munoz Rosales, defendant's wife. STATEMENT OF FACTS Inasmuch as defendant does not challenge the sufficiency of the evidence, we briefly summarize the facts as follows: On August 8, 1981, between 8 and 8:30 p.m., Rosa R., who was employed as a general household helper by the De Haro family, asked to use the telephone in Geronimo De Haro's ground floor room. At the time, Geronimo De Haro was playing pool in the adjacent pool room with defendant and Filiberto Nunez (Nunez). After using the telephone, Rosa retired to her nearby room for the night. Later, Rosa was awakened by a man's voice outside her door; she recognized the man as Nunez. He asked to come in, offered her money, and said he would pay for a hotel. When Rosa refused, Nunez began to apologize. Shortly, defendant fetched Nunez and Rosa thereafter heard two automobiles drive away. She fell asleep once again. Some time later, Rosa was awakened by someone pulling off her bed covers. Unable to see in the darkness, she asked who it was, but received no response. The man placed his hand over Rosa's mouth, after which she became frightened. Trying to rise, she struck her head, whereupon the naked man fell on top of her. After several minutes of struggle, during which the man struck her, he removed her underwear and forcibly engaged in sexual intercourse. When the man finished he rose and turned on the light, at which point she recognized him as defendant. *1023 After defendant left her room, Rosa dressed, then spent the remainder of the night awake, frightened and tearful. Her underwear had been torn, her leg was bruised and she had a lump on her head. She was afraid to report the incident to her employers or to the police, due to her status as an illegal alien. However, approximately 10 days later, after confronting defendant once again in the pool room, she told Geronimo De Haro. Approximately two weeks later, Rosa summoned the courage to tell Mrs. De Haro and to speak to the police. The defense was one of consent and nonviolent character. CONTENTIONS I Defendant contends he was denied his constitutional right to an interpreter throughout the proceedings and thereby denied due process of law. II Defendant further contends the trial court erred in finding a knowing and intelligent waiver of his Miranda rights. III Finally, defendant asserts three instances of evidentiary error: A. Rosa's out-of-court statements to Geronimo De Haro were inadmissible as a recent complaint of a sexual offense; B. Rosa's testimony regarding her out-of-court exchange with Nunez was inadmissible hearsay; and C. Rosa's testimony as to why she did not relate the incident to defendant's wife was improper opinion evidence. DISCUSSION (1a) We find merit in defendant's contention he was denied his constitutional right to an interpreter throughout the proceedings and thereby denied due process of law. Article I, section 14 of the California Constitution provides in pertinent part: "A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." The essence of the issue presented is whether the presence of an *1024 interpreter who is facilitating communication between witnesses testifying in defendant's native language, counsel and the trial court fulfills the constitutional mandate; we think not. We take judicial notice that when a witness interpreter is utilized, the interpreter and witness are speaking to each other at relatively close range, after which the interpreter translates for the benefit of counsel and the trial court. Under such circumstances, it cannot be assumed a defendant clearly hears and understands the question and answer exchange in Spanish. Indeed, during those portions of Geronimo De Haro's direct examination at trial which were handicapped by the presence of a witness interpreter only, defense counsel expressed considerable apprehension on this point. Moreover, it is manifest from the record that on occasion, counsel was unable to understand the initial English translation of a witness's answer. Even if we were to assume defendant could hear and understand the answers given in Spanish by the complaining witness at the preliminary hearing and by Geronimo De Haro at trial, because their voices carried or were amplified, it is not thereby established that he spontaneously understood the testimony. As is generally the case, the record is replete with monosyllabic witness answers. Without a clear understanding of the questions, such testimony is essentially meaningless. Defendant's spontaneous understanding of the testimony has vital importance in determining whether he was denied due process of law. As the Arizona Supreme Court noted in State v. Rios (1975) 112 Ariz. 143 [539 P.2d 900, 901]: "`A defendant's inability to spontaneously understand testimony being given would undoubtedly limit his attorney's effectiveness, especially on cross-examination. It would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his freedom in jeopardy. Such a trial comes close to being an invective against an insensible object, possibly infringing upon the accused's basic "right to be present in the courtroom at every stage of his trial."' [citations omitted] State v. Natividad, 111 Ariz. at 194, 526 P.2d at 733." People v. Chavez (1981) 124 Cal. App.3d 215, 226 [177 Cal. Rptr. 306] cites Rios approvingly in holding that a defendant is denied his constitutional right to an interpreter when his attorney is forced to act as one. While the impairment of defense counsel's effectiveness is far more obvious and grave in those circumstances, the consequences to the defendant are the same whenever his ability to spontaneously understand testimony is impaired. Accordingly, we conclude that a third party witness interpreter cannot effectively discharge the translating responsibilities owed to a defendant. *1025 Moreover, a defendant's "presence," his sensibility and comprehension of the criminal trial process, is impaired in other ways by sole reliance on a witness interpreter. When acting in that capacity, an interpreter does not provide the defendant with translations of the court's rulings or of open-court colloquy between the bench and counsel. These are integral parts of "the proceedings." (2) A preliminary hearing is a vital stage in criminal proceedings, at which a defendant's presence is mandatory. (Pen. Code, § 977; Coleman v. Alabama (1970) 399 U.S. 1, 7 [26 L.Ed.2d 387, 395, 90 S.Ct. 1999].) The devastating prejudice to counsel's effectiveness from defendant's impaired understanding is obvious at the preliminary hearing held in the instant matter. Defendant was indeed reduced to an insensible object, unable to assist or even communicate with counsel. That lack is so fundamental as to result in a denial of due process. Hence, the issue is not, as the People assert, waived on appeal by a failure to raise it below. (See People v. Mills (1978) 81 Cal. App.3d 171, 176 [146 Cal. Rptr. 411].) Further, the fundamental and gross nature of the defect was no less during portions of the trial. Defense counsel's desperation measure of attempting to utilize Mr. Henry, the district attorney's investigator, as a stop-gap interpreter neither served to waive defendant's right nor to cure the defect. (3) Mr. Henry was unsworn; Evidence Code sections 750 and 751 require the administration of a particular oath to any individual who is to serve as an interpreter. The requirements are mandatory in a criminal proceeding; thus, the failure to administer such an oath is fatal to the constitutional effectiveness of an interpreter. (People v. Chavez, supra, 124 Cal. App.3d 215, 225.) (1b) Finally, the trial court's willingness to permit defense counsel to interrupt the proceedings should he desire to communicate with defendant was inadequate to fulfill the constitutional mandate. It is the defendant's ability to instantaneously communicate with counsel upon a spontaneous understanding of the testimony and the proceedings which must be protected. In our view, nothing short of a sworn interpreter at defendant's elbow will suffice. In sum, defendant was denied his constitutional right to an interpreter "throughout the proceedings." In view of the conclusion we reach, we need not address defendant's remaining contentions which are, in any event, meritless. *1026 The judgment is reversed. Lillie, J., and Dalsimer, J., concurred. A petition for a rehearing was denied October 13, 1983, and respondent's petition for a hearing by the Supreme Court was denied November 10, 1983.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004 Charles R. Fulbruge III Clerk No. 04-40471 Conference Calendar DAVID J. DAVIS, Plaintiff-Appellant, versus H.C. BRYANTT; KENNETH LEE, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:03-CV-564-JKG -------------------- Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. PER CURIAM:* David J. Davis, Texas state prisoner # 582332, is appealing the magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983 complaint. Davis argues that the magistrate judge erred in determining that his allegations did not reflect that prison officials acted with deliberate indifference to his safety in making his housing assignment. Davis has not addressed the magistrate judge’s determination that Davis failed to exhaust his administrative remedies prior to filing suit or the dismissal of his complaint on that basis. * 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. 04-40471 -2- An appellant’s brief must contain an argument on the issues that are raised so that this court may know what action of the district court is being complained of. Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995). Because Davis has briefed no argument with respect to the magistrate judge’s determination that he failed to exhaust administrative remedies prior to filing suit, he has waived any such argument. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9). This court need not address the magistrate judge’s alternative basis for dismissal. Davis’s appeal is without arguable merit and, thus, is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2. The magistrate judge’s dismissal of the present case and this court’s dismissal of the appeal count as two strikes against Davis for purposes of 28 U.S.C. § 1915(g). See 28 U.S.C. § 1915(g); see, e.g., Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Davis is CAUTIONED that if he accumulates three strikes he may not 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 28 U.S.C. § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED. 

6 Ariz. App. 459 (1967) 433 P.2d 639 Corylss FLYNN, by her next best friend, Elna Eicke, Appellant, v. William LINDENFIELD and Darlene Lindenfield, husband and wife, Appellees. No. 2 CA-CIV 371. Court of Appeals of Arizona. November 20, 1967. Rehearing Denied December 18, 1967. Review Denied January 30, 1968. *460 Feldman & Wolin, by Marvin Wolin, Tucson, for appellant. Chandler, Tullar, Udall & Richmond, by James L. Richmond, Tucson, for appellees. MOLLOY, Judge. This is an appeal from a summary judgment rendered against the plaintiff in a personal injury action. The plaintiff at the time of her injury was a 15-year old girl employed as a baby-sitter (for her board and room only) at a country home or ranch at which livestock was kept. She was injured in an encounter with a mare. The plaintiff in her complaint predicates liability on five possible theories: (1) strict liability in maintaining a dangerous animal; (2) negligence in maintaining a dangerous animal; (3) not containing an animal in a secure and safe place; (4) not providing the plaintiff with a safe place to work; and (5) not warning the plaintiff of the dangers of the premises where she was employed. A motion for summary judgment should be denied if there is any doubt as to whether there are issues of fact to be litigated under any theory of liability advanced. Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 368 P.2d 317 (1962). The facts as developed by the plaintiff's affidavit and answer to interrogatories indicate that she had been working at this home for approximately a month and a half when she was seriously injured in a livestock corral or enclosure upon the subject property. She had been left in charge of the defendants' three children, a girl of 11, a boy of 5, and a girl of 2 years of age. The corral in question was about a quarter of a mile from the family home, and on this afternoon, the children wanted to go over to see the animals in the enclosure. In the corral was a mare with a colt of about 5 months of age. The plaintiff had never been told by the mother and father (defendants) to stay out of the corral, either with or without the younger children, and the father had indicated that it was permissible to take the children to this corral to see the colt. The structure of the corral was such that a 2-year old child could slip under the lower board of the corral easily, and on this particular afternoon, Lory, the 2-year old baby girl, went into the corral and headed for the mare which was standing near her colt — approximately 25 feet from the corral fence. When the child entered the corral, the mare lowered her ears and advanced menacingly toward the child. At this point, the plaintiff went into the corral and hastily pushed the child back under the fence. Seeing the mare, ears lowered, approaching at a lope, the plaintiff attempted to hasten out of the corral and in the process either stumbled over some concrete blocks in the corral, and/or was knocked down and/or kicked by the mare, the incident resulting in a bad break to her right leg. When she fell, the plaintiff lost consciousness. In resisting the motion for summary judgment, the plaintiff submitted an affidavit of two persons experienced in animal husbandry. One of these affidavits stated: "* * * that female horses show a great deal of protective instinct for their young; that a mare which is normally *461 gentle can become a dangerous animal if she thinks her offspring or colt are in danger; that it is quite likely that a mare would attack or tend to protect her offspring from an intruder if she felt her colt were in danger. "3. That in his opinion any person who had been around horses or who owned a ranch or a place where horses were raised, would know or should know that a mare with a colt can be a dangerous animal and is likely to inflict bodily harm upon any persons who attempted to touch or pet her colt." It is the law in Arizona that any person who keeps or harbors a domestic animal with knowledge of its vicious tendencies or propensities is liable in damages to another for any injury caused by it unless it is shown that the injured person, with knowledge of its viciousness, did something to such animal which caused it to injure him. Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 143, 267 P.2d 1076, 1078 (1954). See also Arizona Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588 (1938). The determinative factor here is knowledge of vicious propensities, and this question must be viewed in the light most favorable to the plaintiff. Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Here, there was evidence that approximately three weeks before the plaintiff's injury, while the mare was being loaded on a horse trailer, the animal jumped out and "took a couple of swings" at one of the persons handling her, "* * * reared up and came down on him," and in going over the side of the trailer "cut her chest all up." There is nothing in the record indicating that the defendants did not know of any dangerous propensities in this mare other than the testimony of the plaintiff herself, who said that on previous occasions she and the children had been into the corral to visit the animals and had petted the colt without any adverse reaction from its mother. We see no basis of recovery here under a strict liability theory because of the natural tendency of a mare to protect her colt. This is a normal hazard connected with the raising of a commonly kept domestic animal, and gives rise to no special liability, though the duty to exercise reasonable care to protect others from the normal characteristics of such an animal obtains. Restatement of Torts § 509, Comment e, at 20. However, all possibility of the defendants being liable is not eliminated by this record. It has been held that even one "previous incident" is sufficient to take a case to the jury under the doctrine of harboring an animal with "vicious propensities." Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 145, 267 P.2d 1076, 1080 (1954). Whether the one incident of misconduct on the part of the mare which was witnessed by the plaintiff is sufficiently "vicious" to meet this test, we do not pass upon, because of the procedural posture of the case. The duty to come forward with evidence to oppose a motion for summary judgment does not arise until the moving party has affirmatively shown the facts to be such that as a matter of law the moving party is entitled to judgment. See Lujan v. MacMurtrie, 94 Ariz. 273, 277, 383 P.2d 187, 190 (1963). Such an affirmative showing was never made in support of this motion for summary judgment. For all this record discloses, this mare may have had the well-established and well-known habit of attacking a human being once every six weeks. The theory of liability as to harboring a vicious animal not having been eliminated by the establishment of undisputed facts, the granting of the motion for summary judgment was erroneous. At least one other possible theory of recovery is not eliminated by this record. While this particular mare might not have been an abnormally vicious animal, the natural tendency of a mare to protect her young should have been known to the defendants better than to their 15-year-old baby-sitter, and reasonable men might come to the conclusion that the defendants were *462 negligent in not warning their young baby-sitter not to bring these children near the corral when the plaintiff was alone with them. An employer owes an employee the duty to provide a reasonably safe place to work and to warn the employee of dangers inherent in the place of employment. Cf. Wylie v. Moore, 52 Ariz. 537, 84 P.2d 450 (1938); Inspiration Consol. Copper Co. v. Lindley, 20 Ariz. 95, 177 P. 24 (1918). The age and experience of the employee should be taken into consideration by the employer in determining what warnings or safeguards are necessary. Lorden v. Stapp, 21 Ariz. 646, 192 P. 246 (1920). Whether this particular plaintiff assumed the natural risks attendant with this mare and colt and whether she was contributorily negligent are questions which cannot be disposed of on motion for summary judgment. Ariz.Const., art. 18, § 5, A.R.S. Judgment reversed. HATHAWAY, C.J., and KRUCKER, J., concur.

174 P.3d 459 (2008) IN RE B.C. No. 98503. Court of Appeals of Kansas. January 18, 2008. Decision without published opinion. Affirmed.

735 N.W.2d 192 (2007) 2007 WI App 162 STATE v. OWENS. No. 2005AP1600-CR. Court of Appeals of Wisconsin. May 8, 2007. Unpublished opinion. Affirmed.

Order Michigan Supreme Court Lansing, Michigan December 7, 2010 Marilyn Kelly, Chief Justice 138805 Michael F. Cavanagh Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman LORI CALDERON, as Guardian of ARTHUR Diane M. Hathaway KRUMM, a Legally Incapacitated Person, Alton Thomas Davis, Plaintiff/Counter-Defendant- Justices Appellee, and FUNCTIONAL RECOVERY, INC., Intervening Plaintiff/Appellee, v SC: 138805 COA: 283313 Wayne CC: 06-602100-NF AUTO-OWNERS INSURANCE COMPANY, Defendant/Counter-Plaintiff- Appellant. _________________________________________/ On November 5, 2010, the Court heard oral argument on the application for leave to appeal the March 24, 2009 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. KELLY, C.J. (concurring). I concur in the Court’s order denying Auto-Owners Insurance Company’s application for leave to appeal. I write separately to respond to the dissent. It suggests that the issue of domicile should be decided as a matter of law because the facts “are not in dispute.” However, material facts are in dispute. Arthur Krumm, age 29, was severely injured when a car in which he was a passenger was involved in a single-car accident in North Carolina on May 16, 2003. Krumm had no automobile insurance, and the driver of the car was not insured under a Michigan no-fault policy. As a result of the accident, Krumm sustained traumatic brain injuries, and plaintiff, Krumm’s sister, was appointed as his legal guardian. Krumm’s condition apparently prevented him from giving a deposition or otherwise explaining where he was domiciled at the time of the accident.  2 Auto-Owners initially paid no-fault benefits arising from Krumm’s injuries based on the theory that he was domiciled in Fife Lake, Michigan, with his grandmother, who had a no-fault policy with defendant.1 However, it discontinued the benefits and asserted that Krumm was not entitled to them because he was not domiciled with his grandmother. Plaintiff sued Auto-Owners seeking personal protection insurance benefits and underinsured motorist benefits under Krumm’s grandmother’s policy. The trial court granted Auto-Owners’ motion for summary disposition, and the Court of Appeals reversed. In concluding that the Court of Appeals erred in reversing the trial court’s grant of summary disposition, the dissent focuses mainly on Krumm’s domiciliary intent. However, additional factors must be weighed when determining a person’s domicile for purposes of MCL 500.3114(1) including: (1) the formality or informality of the relationship between the claimant and members of the insured’s household; (2) whether the claimant lives in the same house, within the same curtilage, or on the same premises as the insured; (3) the existence or lack of another lodging for the claimant; (4) the claimant’s mailing address; (5) whether the claimant maintains possessions at the insured’s home; (6) whether the insured’s address appears on the claimant’s driver’s license; (7) whether the claimant has a bedroom in the insured’s home; and (8) whether the claimant is dependent on the insured for financial support. Workman v Detroit Auto Inter-Insurance Exchange, 404 Mich 477, 496-97 (1979); Dairyland Ins Co v Auto- Owners Ins Co, 123 Mich App 675 (1983). The facts pertinent to these factors add additional support to plaintiff’s assertion that Krumm was domiciled with his grandmother in Michigan at the time of the accident. Plaintiff submitted evidence that (1) Krumm’s grandmother’s relationship to Krumm was actually that of a mother rather than grandmother. Krumm’s grandmother adopted him when he was a young boy and raised him; (2) Krumm visited Arkansas only periodically and always returned to his grandmother’s house in Michigan; (3) Krumm was estranged from his wife. He did not have a residence in Arkansas, but moved from place to place, living a transient lifestyle; (4) Krumm received mail at his grandmother’s address in Michigan; (5) Krumm kept possessions at his grandmother’s house; (6) Krumm did not have a driver’s license in any state, but he had a Michigan ID card and a voter’s registration card both listing his grandmother’s address in Michigan; and (7) Krumm had his own bedroom in his grandmother’s house. By focusing on the first factor, Krumm’s domiciliary intent, the dissent fails to consider the evidence that plaintiff presented in opposition to the motion for summary disposition. This ignores the standard of review a court must use when a defendant seeks 1 MCL 500.3114(1) provides that a person with injuries arising from a motor vehicle accident may claim Michigan no-fault benefits under the policy of a spouse or relative domiciled in the same household.  3 summary disposition under MCR 2.116(C)(10). The court must review the evidence submitted by the parties in the light most favorable to the party opposing the motion. West v General Motors Corp, 469 Mich 177, 183 (2003). In this case, plaintiff presented material facts that created a genuine issue when opposing the summary disposition motion. The facts must be viewed in the light most favorable to plaintiff. Moreover, the dissent also errs in its summary of the evidence involving plaintiff’s intent. Because the accident incapacitated Krumm, he was unable to testify about where he was domiciled. Friends and family members gave deposition testimony regarding his domiciliary intent. It was conflicting. Some witnesses testified that plaintiff intended to remain in Arkansas, at least temporarily, and some testified that he intended to return to his grandmother’s. As the Court of Appeals noted: “There was no evidence presented that Krumm planned to remain in Arkansas permanently, but there was evidence presented from multiple sources that Krumm intended to move back to Michigan and verbally declared that intent.” Calderon v Auto-Owners Ins Co, unpublished opinion per curiam of the Court of Appeals, issued March 24, 2009 (Docket No. 283313). The totality of evidence, viewed in the light most favorable to plaintiff, may not prove that Krumm resided with his grandmother. However, it provides a basis for a reasonable jury to conclude that he was domiciled with her at the time of the accident. Given the conflicting evidence regarding domiciliary intent and considering the other Workman-Dairyland factors, a genuine issue of material fact exists about Krumm’s domicile. It should be submitted to a jury. I agree with the Court of Appeals that summary disposition should not have been granted. MARKMAN, J. (dissenting). I respectfully dissent from the order denying defendant’s application. Under no circumstances, in my judgment, could it be fairly said that, at the time of the accident in this case, Arthur Krumm was “domiciled in the same household” as his grandmother in Michigan for purposes of personal protection insurance under our no-fault act. Accordingly, I would reverse the judgment of the Court of Appeals and remand to the trial court for reinstatement of its order granting summary disposition in favor of defendant. Under Michigan’s no-fault act, personal protection insurance benefits are available to “the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household . . . .” MCL 500.3114(1). “Domicile [is] that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.” Henry v Henry, 362 Mich 85, 101-102 (1960) (citation omitted). “Generally, the determination of domicile is a question of fact. However,  4 where . . . the underlying facts are not in dispute, domicile is a question of law for the court.” Fowler v Auto Club Ins Assn, 254 Mich App 362, 364 (2002). The facts here are not in dispute. Krumm, who was born and raised in Michigan by his grandmother, abandoned his ties to Michigan and moved to Arkansas in 2002, with his wife and children, where he lived and worked for 13 months prior to his accident. In each of his many encounters with Arkansas public safety authorities, Krumm identified himself as an Arkansas resident with an Arkansas address. Indeed, as best as it can be discerned from the record, from approximately 1993 to 1998, Krumm had only lived intermittently with his grandmother, and from 1999 to 2002, numerous police reports indicate that he had not lived with his grandmother. Then, in May of 2003, while searching for work in North Carolina, Krumm was injured in the accident. Krumm’s legal guardian brought suit against defendant Auto-Owners claiming that he was entitled to first-party benefits under his grandmother’s policy because he had been domiciled in her home. After extensive discovery, the trial court granted defendant’s motion for summary disposition, holding that Krumm was not “domiciled in the same household” as his grandmother. Yet, based on statements that Krumm intended to return to Michigan at some uncertain time in the future, the Court of Appeals held that a question of fact existed as to whether Krumm had been domiciled in Michigan. By denying leave to appeal, the majority leaves intact a lower court decision that holds that a 29-year-old married man with children, who had been living in another state for a significant period of time, may be considered “domiciled” in Michigan. Even viewing the evidence in a light most favorable to plaintiff, hearsay statements that Krumm intended to return to Michigan do not provide a reasonable basis for finding that he was “domiciled in the same household” as his grandmother. An intent to return to his grandmother’s house at some indefinite time in the future, or “some day,” is insufficient to find that Krumm was “domiciled in the same household” as his grandmother, in light of the understanding of domicile as that place where a person has the “present intention” of making his home. If evidence that a person has been “contemplating,” “mulling over,” “pondering,” or “speculating about,” the idea of returning to a place at which he lived intermittently in the past is deemed adequate to sustain a finding of domicile, then traditional notions of this concept will be eroded. The financial consequences of the majority’s creative understanding of “domicile” will, of course, be borne by policy holders in Michigan through higher premiums. Despite the Chief Justice’s assertion to the contrary, the facts here are not “in dispute,” only their relevance. Her concurring statement identifies a laundry-list of factors drawn from case-law that may or may not be relevant in particular cases in determining domicile, and asserts that I have failed in this dissent to mention each of these. However, even the Chief Justice’s enumeration of factors falls well short of identifying the “totality of circumstances” that conceivably could be relevant in the determination of a domicile. There is no end to the universe of factors that could be  5 relevant to such a determination in a proper case. However, what is dispositive here is the standard by which domicile is determined — domicile exists only in that place “where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.” I have set forth the entirety of factors that, in my judgment, conduce toward a finding that domicile — wherever it obtained for Krumm at the time of the accident — did not obtain at his grandmother’s house in Michigan. I do not believe that a reasonable finder of fact could have aggregated the factors collected by the Chief Justice to reasonably conclude any differently. CORRIGAN, J., joins the statement of MARKMAN, J. 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 7, 2010 _________________________________________ 1124 Clerk 

151 B.R. 542 (1993) In re Gregory D. ENGEL, Debtor. Bankruptcy No. 92-03837-13. United States Bankruptcy Court, D. Idaho. February 22, 1993. Kenneth L. Anderson, Lewiston, ID, for debtor. Derrick A. Ater, State of Idaho, Bureau of Child Support Enforcement, Dept. of Health and Welfare, Lewiston, ID. SUMMARY ORDER ALFRED C. HAGAN, Chief Judge. The State of Idaho, Department of Health and Welfare, Bureau of Child Support Enforcement, has moved for relief from the section 362 automatic stay in order to proceed with child support collection procedures against the debtor separate from the debtor's chapter 13 case. The debtor's chapter 13 plan was confirmed on February 1, 1993 without objection from any creditor or interested party. The debtor's plan provides for payment of the child support obligation as follows. 2) Classification of unsecured claims. The following unsecured claims will receive the indicated dollar amounts on their allowed value provided they file a timely allowed proof of claim: Idaho Department of Health and Welfare, Bureau of Child Support Enforcement: (for claims in Idaho and Washington): $9720 in equal monthly installments, to be credited first to current child support payments due in both states and secondarily to arrears. Relief from the section 362 automatic stay for child support purposes is governed by section 362(b)(2). That statute provides: (b) The filing of a petition, under . . . this title, . . . does not operate as a stay— (2) under subsection (a) of this section, of the collection of alimony, maintenance, or support from property that is not property of the estate; Upon confirmation of a chapter 13 plan all of the property of the estate becomes *543 vested in the debtor.[1] The child support payments as provided in the debtor's plan are thus not property of the estate and section 362(b)(2) is applicable. Further, §§ 523(a)(5) and 1328(a)(2) except child support obligations from discharge. The terms of a confirmed plan, however, bind the debtor and each creditor.[2] In re Pacana, 125 B.R. 19 (9th Cir. B.A.P.1991) is also applicable. In that case, the Ninth Circuit Bankruptcy Appellate Panel held a debtor's child support obligations were insulated from mandatory inclusion in a chapter 13 plan. In that case, Judge Volinn concluded: Thus, Congress by virtue of § 362(b)(2) specifically excepted child support obligations from the effect of the bankruptcy stay while the case is pending, and through §§ 1328(a)(2) and 523(a)(5), it specifically excepted child support obligations from the effect of confirmation in the Chapter 13 bankruptcy case. These provisions, read together, are consistent and manifest a legislative intent that child support obligations be excepted from the broad reach of §§ 1322 and 1327, and therefore from the effects of a Chapter 13 plan, as well as the post-confirmation automatic stay. And, at page 24: We recognize that various cases cited above are reacting constructively to the economic problem of a debtor who, unable to meet support or alimony obligations, turns to Chapter 13. However, the Code's treatment of child support obligations manifests Congressional intent that while a Chapter 13 plan may alter or delay the enforcement of ordinary unsecured creditors' claims, child support claimants need not wait in line with such creditors, but rather may proceed against the debtor without the hindrance of either automatic stay or discharge. Thus, the State of Idaho, Department of Health and Welfare, Bureau of Child Support Enforcement, the movant, may proceed under the exception of § 362(b)(2) and stay relief is appropriate. Accordingly, it is ORDERED: The motion for stay relief is granted. NOTES [1] 11 U.S.C. § 1327(b). [2] 11 U.S.C. § 1327(a).

Fourth Court of Appeals San Antonio, Texas January 11, 2019 No. 04-18-00874-CV CONTINENTAL MOTORS, INC., Appellant v. ENGINE COMPONENTS INTERNATIONAL, INC., Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-11291 Honorable Karen H. Pozza, Judge Presiding ORDER On January 9, 2019, Appellant filed an unopposed motion for this court to supplement the clerk’s record with a replacement copy of a deposition—and the replacement copy is attached to the motion. Appellant notes that the highlighting on the copy of the deposition in the clerk’s record obliterates rather than highlights the text. To supplement the appellate record with an uncorrupted copy of the deposition, Appellant “may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the [replacement] item.” See TEX. R. APP. P. 34.5(c)(1). _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of January, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-7082 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ROSA SORTO, Defendant - Appellant. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-96-251, CA-99-849-AM) Submitted: November 4, 1999 Decided: November 10, 1999 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Rosa Sorto, Appellant Pro Se. Rebeca Hidalgo Bellows, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rosa Sorto seeks to appeal the district court’s order denying her motion filed under 28 U.S.C.A. § 2255 (West Supp. 1999). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of ap- pealability and dismiss the appeal on the reasoning of the district court. See United States v. Sorto, Nos. CR-96-251; CA-99-849-AM (E.D. Va. June 18, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2 

IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 46748 BRANDON REYES KELLY, ) ) Boise, June 2019 Term Petitioner-Respondent, ) ) Filed: September 10, 2019 v. ) ) Karel A. Lehrman, Clerk BRANDI LEIGH KELLY, ) ) Respondent-Appellant. ) ) Appeal from the Magistrate Court of the Seventh Judicial District of the State of Idaho, Bonneville County. L. Mark Riddoch, Magistrate Judge. The magistrate court’s award of sole legal custody and primary physical custody to Brandon is vacated. On remand the magistrate court is instructed to disregard Dr. McNaught’s testimony, report, and recommendations when determining issues of custody and visitation. No attorney fees or costs are awarded. David A. Johnson, P.A., Idaho Falls, attorney for Appellant. David A. Johnson argued. Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, attorneys for Respondent on appeal. Aaron J. Woolf argued. BEVAN, Justice I. NATURE OF THE CASE This is a custody dispute. Brandi and Brandon Kelly were married and had a son. After about two years of marriage Brandon filed for divorce. Once the divorce was final the magistrate court awarded sole legal custody and primary physical custody of the boy to Brandon. Brandi filed a permissive appeal, arguing the magistrate court erred by relying on an inadmissible parenting time evaluation and following the recommendations of a biased evaluator. We vacate the child custody judgment, but we affirm certain evidentiary rulings for guidance upon remand. 1  II. FACTUAL AND PROCEDURAL BACKGROUND Brandi and Brandon started dating in March 2014. Brandon owned a home in Idaho Falls, Idaho, and in August 2014, Brandi moved in with Brandon. Brandi and Brandon married on April 20, 2015. Shortly after the parties married, in June 2015, they had a son (“Child”). Brandon is a neurosurgeon practicing in Idaho Falls. He is a 50% owner in Idaho Neurosurgery and Spine, PLLC. Brandon’s LLC has a professional services agreement with Eastern Idaho Regional Medical Center where he provides on-call services. Brandi worked as a loan officer for D.L. Evans Bank before Child’s birth, but then stayed home to care for Child, and her son from a prior relationship. Brandon filed for divorce on May 30, 2017. On the same day, Brandon filed a notice of strict compliance with the Idaho Rules of Evidence. At first, Brandon requested that the parties share legal custody of Child, with Brandi having primary physical custody and Brandon having visitation as agreed upon by the parties. The parties agreed that Brandi would remain in Brandon’s Idaho Falls home with primary physical custody of Child and that Brandon would move in with his parents who lived in the same neighborhood. In November 2017, Brandon retained Dr. Jane McNaught, a nationally renowned psychologist from Minnesota, to review certain documents and information to determine whether Brandi was engaging in conduct that constituted parental alienation. In the letter formalizing the retention of Dr. McNaught and enclosing the fee agreement and retainer fee, Brandon’s lawyer wrote: “he [Brandon] is fearful that his wife has been alienating his son from him . . . . I have enclosed a DVD which contains several pieces of documentation and information which we would like you to consider, and to determine whether or not you believe that parental alienation is taking place.” About a month later, Dr. McNaught responded to Brandon’s lawyer, explaining that she had reviewed the records the attorney had given her, but was not able to form any opinions based on those records. Dr. McNaught recommended that the trial court should consider ordering a parenting time evaluation to evaluate the best interests of the child. Three days later, Brandon filed a motion for the court to appoint a parenting time evaluator under Idaho Rule of Family Law Procedure (“IRFLP”) 719. Brandon requested that the court appoint Dr. Jane McNaught as the parenting time evaluator, or in the alternative, as his own expert under Idaho Rule of Evidence 706. Brandi objected to Brandon’s request for a 2 parenting time evaluator citing, among other things, that Brandi’s medical or mental state was not relevant and that Dr. McNaught would not likely be a neutral party. The magistrate court entered an order declining to appoint Dr. McNaught as the court’s expert; however, the court allowed Brandon to hire Dr. McNaught as his expert to conduct a parenting time evaluation consistent with IRFLP 719. The court ordered both parties to comply with any and all reasonable requests made by Dr. McNaught and any expert hired by Brandi. Brandi objected again, arguing that Brandon had failed to disclose that Dr. McNaught had been consulting and advising him in this matter. Brandi alleged that Brandon at first tried to cover up the retention of Dr. McNaught by blacking out her name on a check written in November 2017, prior to the magistrate court’s appointment. Brandi maintained that Brandon was trying to circumvent the court’s order denying Dr. McNaught as the court’s evaluator under IRFLP 719 by having Dr. McNaught as his own expert. On February 12, 2018, Brandi filed a disclosure naming Robert Engle, Ph.D., as an expert to evaluate child custody issues per the magistrate court’s order. On February 20, 2018, Brandi moved the court to appoint Dr. Engle as a parenting time evaluator under IRFLP 719. Brandon objected. The magistrate court entered an order declining to appoint Dr. Engle as the court’s expert; however, the court allowed Brandi to hire Dr. Engle to conduct a parenting time evaluation as her own expert and ordered both parties to comply with all reasonable requests made by Dr. Engle. On March 23, 2018, Brandon filed a second amended petition for divorce. The second amended petition still requested that the parties share legal custody, but now Brandon asked to be awarded primary physical custody of Child, with Brandi being awarded visitation as agreed on by the parties. Sometime before trial, Brandi moved in limine requesting that the court exclude Dr. McNaught as a witness and prohibit her from providing any testimony in the case, directly or indirectly, including through any report. 1 This motion also requested that another expert Brandon had disclosed, Dr. Woodruff, only be allowed to provide general testimony as to the areas disclosed previously. 1 Brandi’s motion in limine is cut off on page 3 in the record. As a result, it is unclear what date the motion was filed and what the extent of Brandi’s argument was. 3  On April 24, 2018, the court entered an order bifurcating the case. All the issues—except for custody, visitation, and child support—went to trial on April 24, 2018 through April 27, 2018. On May 1, 2018, the magistrate court entered a judgment and decree of divorce. At a hearing on August 28, 2018, the magistrate court denied Brandi’s motion in limine to strike Dr. McNaught’s report. The court clarified that it was treating Dr. McNaught as Brandon’s expert who was not under the direction of the court, recognizing that under IRFLP 719 a parenting time evaluator may be involved in a case either by order or by stipulation. The court explained its earlier order: Now here what I did is I authorized each side to have an expert, and I ordered that each side cooperate with that [expert] . . . each side would have knowledge of what the other side was submitting to that person. So I distinguish that in my mind. The custody and visitation trial took place from September 11, 2018 through September 14, 2018. Dr. McNaught testified at trial about the parenting time evaluation she had conducted. Dr. McNaught was largely concerned with her belief that Brandi suffered from untreated mental health issues. As such, Dr. McNaught recommended that Brandi be evaluated by a board- certified psychiatrist and comply with any suggested medications as long as her psychiatrist advised she do so. Dr. McNaught proposed that until Brandi complied with these recommendations that she not transport or make decisions regarding Child’s medical care and educational programming. Brandi’s expert, Dr. Engle, also testified at trial, but Dr. Engle explained that he refused to do a parenting time evaluation because he was not appointed by the court; as such, Dr. Engle reasoned he lacked the authority to have both parents and the child involved in the evaluation. Instead, Dr. Engle conducted a psychological evaluation of Brandi. On November 19, 2018, the magistrate court entered its findings of fact and conclusions of law. The court recognized that Brandi’s primary concerns were Brandon’s long work hours and on call schedule preventing him from spending sufficient time with Child, as well as his introverted nature. On the other hand, Brandon was concerned about Brandi’s parenting ability as well as her psychological and emotional stability. The magistrate court examined these concerns and recognized that both parents had shown their commitment to Child, but often Brandi’s behavior was erratic and out of control, including a pattern of making demeaning statements towards Brandon in front of Child and denying Brandon visitation. Before the magistrate court even reached the expert testimony and opinions, the judge conveyed he had 4 serious concerns about Brandi’s psychological and emotional stability for parenting Child based on his own observations of Brandi’s conduct from the evidence submitted during pretrial motions. After considering the expert testimony and reviewing each of the factors in Idaho Code section 32-717, the magistrate court determined it was in Child’s best interests that the parties be awarded joint physical custody, with Brandon receiving primary physical custody and sole legal custody of Child. The court found Brandi had multiple parenting deficits: 1) she had not shown she could communicate appropriately with Brandon; 2) she could not behave positively during exchanges; and 3) she could not effectively co-parent at that time. On December 12, 2018, the magistrate court entered a judgment. Brandi filed a permissive appeal of the magistrate court’s custody award. III. ISSUES ON APPEAL 1. Whether the magistrate court abused its discretion in allowing Dr. McNaught to conduct a parenting time evaluation as Brandon’s expert. 2. Whether the magistrate court abused its discretion in permitting Dr. Evans’ testimony. 3. Whether the magistrate court abused its discretion in admitting Dr. Woodruff’s report. 4. Whether the magistrate court abused its discretion in awarding Brandon sole legal custody and primary physical custody of Child. 5. Whether the magistrate court erred in ordering Brandi to undergo a psychological evaluation and attend weekly mental health counseling. 6. Whether the magistrate court abused its discretion in its discovery determinations. 7. Whether the magistrate court erred by requiring Brandi to reside in Bonneville County as a condition to having any physical custody of Child. 8. Whether either party is entitled to attorney fees and costs on appeal. IV. STANDARD OF REVIEW This Court reviews child custody determinations under an abuse of discretion standard. Clair v. Clair, 153 Idaho 278, 282, 281 P.3d 115, 119 (2012) (citing Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d 350, 355 (2011)). Under this standard the Court asks whether the magistrate court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). An abuse of discretion is found 5 when the magistrate court’s “findings are clearly erroneous such that the court’s findings are not based on substantial and competent evidence.” Clair, 153 Idaho at 282, 281 P.3d at 119 (quoting Schneider, 151 Idaho at 420, 258 P.3d at 355). “In a decision regarding a custody award or modification, ‘[a]n abuse of discretion occurs when the evidence is insufficient to support a magistrate’s conclusion that the interests and welfare of the children would be best served’ by the magistrate court’s order.” Id. (quoting Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007)). In determining the best interest of the child, the Court must consider all relevant statutory factors, which include (a) The wishes of the child’s parent or parents as to his or her custody; (b) The wishes of the child as to his or her custodian; (c) The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings; (d) The child’s adjustment to his or her home, school, and community; (e) The character and circumstances of all individuals involved; (f) The need to promote continuity and stability in the life of the child; and (g) Domestic violence as defined in section 39-6303, Idaho Code, whether or not in the presence of the child. I.C. § 32-717. V. ANALYSIS As a threshold matter, Brandi asserts that Brandon’s briefing violates Idaho Appellate Rule 35(b)(3) based on his 27-page statement of facts. While the rule calls for the respondent to provide simply a “statement of the case to the extent that the respondent disagrees with the statement of the case set forth in appellant’s brief,” this is a complicated custody case with an extensive record. We therefore take no adverse action against Brandon based on the scope of the statement of facts in his brief. A. The magistrate court abused its discretion by permitting Brandon to hire Dr. McNaught to perform a parenting time evaluation as his expert. Brandi argues that the magistrate court abused its discretion in several respects; however, most of the errors stem from the magistrate court’s reliance on Brandon’s experts, particularly Dr. McNaught. Before trial, the magistrate court allowed Brandon to retain Dr. McNaught to perform a parenting time evaluation as his expert. In doing so, the court specifically declined to appoint Dr. McNaught as the court’s expert under IRFLP 719. 6  In general, “[t]he trial court has broad discretion to admit or exclude evidence, and to determine whether a witness is qualified as an expert.” Clair v. Clair, 153 Idaho 278, 283, 281 P.3d 115, 120 (2012). That said, the use of parenting time evaluations is unique to custody disputes; the authority for and parameters guiding the use of such evaluations are governed by court rule, IRFLP 719. We therefore look to the rule to determine whether the magistrate court abused its discretion—and in particular, whether the court acted consistently with the legal standards applicable to the specific choices available to it. The rule defines a parenting time evaluation as an objective assessment produced by an expert who is acting to assist the court: A. Definition of Parenting Time Evaluation. A “parenting time evaluation” is an expert investigation and analysis of the best interest of children with regard to disputed parenting time issues. The parenting time evaluation shall not include interim parenting time recommendations/brief focused assessment. The purpose of a parenting time evaluation is to provide the Court with information it may consider to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished, among other things, by assessing the capacity to parent, and the developmental, emotional, and physical needs of the child. Unless otherwise specified in the order, evaluators must consider and respond to the factors set forth at Idaho Code Section 32-717. B. Matters in Which Appointment May be Made. The court, upon a motion of any party, agreement of the parties or upon its own motion, may order a parenting time evaluation in any action involving custody of minor children to assist the trier of fact with matters that affect the best interest of the child. C. Selection of a Parenting Time Evaluator. The court may permit the parties to select an evaluator, or the court may appoint an evaluator. The evaluator must meet the qualifications set forth in this rule. If the court intends to appoint its own evaluator, it shall follow the show cause procedure set forth in Rule 706, Idaho Rules of Evidence. .... F. Scope of Evaluation. All evaluations must be conducted in accordance with the Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Child Custody Evaluations, American Academy of Matrimonial Lawyers, or the American Psychological Association (APA) Guidelines for Child Custody Evaluations in Family Law Proceedings . . . . IRFLP 719(A)–(C), (F) (emphasis added). Whether a party can hire their own expert to conduct a parenting time evaluation is an issue of first impression for this Court. We are thus called upon to interpret Rule 719. Interpreting court rules is somewhat like analyzing statutes. “We begin with an examination of 7 the literal words of the rule and give the language its plain, obvious and rational meaning.” Miller v. Haller, 129 Idaho 345, 350, 924 P.2d 607, 612 (1996) (discussing Rule 606(b)). Even so, we recently held that “while the interpretation of a court rule must always begin with the plain, ordinary meaning of the rule’s language it may be tempered by the rule’s purpose. We will not interpret a rule in a way that would produce an absurd result.” State v. Montgomery, 163 Idaho 40, 44, 408 P.3d 38, 42 (2017). Thus, where we are called upon to analyze a rule of family law procedure, we will construe the rule in keeping with the purpose of the rule, while mindful of the objective of liberally construing and enforcing the rules “in a manner to secure the just, prompt and inexpensive determination of every action and proceeding.” IRFLP 101. We note three things that guide our analysis of Rule 719. First, the language of the rule is unambiguous. Second, the rule calls for an “expert examination and analysis.” Third, parenting time evaluators must adhere strictly to the ethical principles that place such evaluators in a neutral role. We will discuss each principle in turn. 1. The rule unambiguously restricts the court’s discretion, allowing the court only two options in these cases. Rule 719 allows the court to appoint a parenting evaluator either (1) sua sponte, or (2) upon motion of the parties. That said, the rule does not allow the court to appoint a parenting time evaluator as the expert for one of the parties. The rule clearly states that the court may only appoint a parenting time evaluator when requested by the parties if the parties together select the evaluator. IRFLP 719(C). Thus, while the rule allows the court to take that action “on the motion of any party,” or “upon its own motion,” the relief afforded under such a motion is constrained by the additional requirements of the rule. 2. The rule calls for expert examination and analysis. The rule recognizes that a neutral expert examination and analysis can provide a significant benefit to the court in high conflict child custody cases. Id. at (A). As we have stated on an earlier occasion, “[a] custody evaluator can be a valuable tool in custody decisions. He or she has the opportunity to spend one-on-one time with the children in the case, observe the children interacting with the parents, and witness first-hand the environments in which the children would be living if in the custody of each parent. . . . This type of in-depth analysis is what makes a parenting time evaluation such a valuable tool.” Firmage v. Snow, 158 Idaho 343, 348, 347 P.3d 191, 196 (2015). 8  Magistrate courts can be aided immensely by a qualified expert who can take the time to drill-down into both parents’ lives and witness first-hand the interpersonal interactions that can influence a judge’s understanding of the issues in these emotionally charged cases. But such evaluators must meet the qualifications of the rule, and they must be neutral, in the sense that the parties jointly select the evaluator, or the court appoints a neutral evaluator, granting them broad authority to perform extensive, even intrusive examinations of the parties’ “capacity to parent” and the “developmental, emotional, and physical needs of the child.” IRFLP 719(A). Parenting time evaluators are thus cloaked with broad authority and significant influence founded on the authority of the court. As a result, and as the rule provides, these evaluators are performing a “judicial function,” entitling them to quasi-judicial immunity, because of the important, impartial work they perform as an extension of the court. Id. at (J) (“Any parenting time evaluator appointed by the court or a court approved, stipulated evaluator is performing a judicial function when conducting an evaluation and is entitled to qualified judicial immunity.”). The importance of an evaluator’s neutrality cannot be overemphasized. The key to the evaluator’s effectiveness is his or her ability to act in the name of the court in performing this important work. 3. Parenting time evaluators must adhere strictly to the ethical principles that govern their conduct as a neutral. The rule also provides that parenting time evaluations are to be conducted in accordance with the ethical parameters of the AFCC Model Standards of Practice for Child Custody Evaluations, American Academy of Matrimonial Lawyers, or the APA Guidelines for Child Custody Evaluations in Family Law Proceedings. IRFLP 719(F). Since there was some debate in this case about whether these ethical standards are mere “guidelines,” we take this opportunity to make it clear that the model ethical standards or guidelines governing parenting time evaluators are mandatory in this state and evaluators must comply with these standards scrupulously. As for potential conflicts and dual role issues, Section 8.1 of the AFCC provides: Child custody evaluators shall strive for objectivity and shall take reasonable steps to avoid multiple relationships with any and all participants of an evaluation. The responsible performance of a child custody evaluation requires that evaluators be able to maintain reasonable skepticism, distance, and objectivity. For this reason, evaluators shall take reasonable steps to avoid multiple relationships. Evaluators shall recognize that their objectivity may be impaired 9  when they currently have, have had, or anticipate having a relationship with those being evaluated, with attorneys for the parties or the children, or with the judges. Evaluators shall recognize that relationships cannot be time delimited; specifically, prior relationships or the anticipation of future relationships may have the same deleterious effects upon evaluator objectivity as current relationships would have. If an evaluator has a “professional or social relationship of any subject of the evaluation” the evaluator must disclose the potential conflict under AFCC section 8.2. Such evaluators are given a wide grant of authority in performing their functions, e.g., complete access to both parties without counsel present. While that access is allowable when such an evaluator acts as an extension of the court, with the imprimatur of the court’s neutrality, that unfettered access becomes suspect when the evaluator has been retained by one party for the express purpose of forming an opinion regarding alleged misconduct by the other party. The conflict of interest in such situations is inherent and such a process cannot be sanctioned by Idaho’s courts. Weighing these three legal parameters against the record, we hold that the magistrate court erred and violated the legal standards applicable to the choices before it when it authorized Brandon to retain Dr. McNaught to do a parenting time evaluation as his expert. Based on the scope and purpose of obtaining a parenting time evaluation under IRFLP 719, parenting time evaluators can be selected only by stipulation of the parties or by appointment of the court. In either case, the chosen expert must be neutral, and not beholden to either side. Thus, the magistrate court’s allowing Dr. McNaught to act as a “parenting time evaluator” when hired as one party’s expert violated the scope and purpose of Rule 719. We also hold that the court had no basis to grant the wide autonomy permitted under the rule to one party’s expert. See id. at (E)(2). The context and purpose of Rule 719 is to provide a neutral evaluator to assess child custody issues in an unbiased way. Indeed, by providing only two ways for such an evaluator to be chosen, the rule limits the influence one party may have on the evaluator’s work. This becomes especially apparent when reviewing the entire rule. As noted above, such evaluations are to be conducted in accordance with model standards of practice and ethical mores that govern such professionals’ conduct. See id. at (F). Additionally, “[a]ny contacts between the parenting time evaluator and the court shall either be in writing to all parties, conference call with parties and/or their attorneys, or at court hearings with the parties and/or their attorneys. Evaluators may [only] communicate with the court and attorneys separately with respect to scheduling and administrative matters.” Id. at (H). These parts of the 10 rule underpin the rule’s purpose—to insure an evaluator’s neutrality, as well as to facilitate the prompt and inexpensive determination of the case. IRFLP 101. Parenting time evaluators must be free of the biases that are part of the relationship when a party hires its own expert. The facts here establish how the court’s appointment of Dr. McNaught violated these legal standards. In November 2017, Brandon’s attorney contacted Dr. McNaught and sent her a letter, which contained a $5,000 check, a signed fee/retainer agreement, and a DVD containing “several pieces of documentation and information.” Dr. McNaught was asked “to determine whether or not [she] believe[d] that parental alienation is taking place” and to provide a report. Dr. McNaught then had a 20-minute conversation with Brandon’s attorney on December 14, 2017, followed by an email the next day in which Dr. McNaught opined Brandi had several severe mental health issues, needed mental health therapy, and that Brandi presented “a risk to [Child] as well as to [Child’s] continued relationship with father.” Dr. McNaught also expressed her availability to conduct a custody evaluation so that she could “make specific recommendations about a parenting schedule that is in [Child’s] best interest.” Three days after receiving Dr. McNaught’s email, Brandon moved for a parenting time evaluator, requesting that the court appoint Dr. McNaught as the evaluator. Ultimately, over Brandi’s objection, the court allowed Dr. McNaught to perform a parenting time evaluation, not as the court’s expert, but as Brandon’s expert. In response, Brandi asked to have the court appoint Dr. Robert Engle as a neutral parenting time evaluator, but the court refused, noting that Brandi was “free to hire Dr. Engle as her own expert to conduct a parenting time evaluation.” Dr. Engle did conduct forensic testing and interviews, but he refused to conduct a parenting time evaluation without being appointed by the court and having judicial immunity. Ultimately, the magistrate court accepted evidence that Dr. McNaught had performed her tasks ethically under Rule 719. In doing so the magistrate court likewise erred. Dr. McNaught’s initial involvement in this case, her receipt of an initial $5,000 retainer, and her opinions set forth in the December 15 email, show that she had formed an opinion about Brandi’s mental issues and risk to the parent-child relationship between Child and Brandon before she began conducting the parenting time evaluation. Once these steps were consummated, there was nothing Dr. McNaught or Brandon’s counsel could do to “unring the bell” to transform Dr. McNaught’s position into one of objectivity and fairness. Dr. McNaught recognized the nature of the “retention bias” and said she did everything she could to display neutrality thereafter. Even so, 11 there is no way to alter the course of what had already begun – and all of the “i dotting and t crossing” after the fact could not overcome the retention bias that existed from the outset. While the court’s acceptance of Dr. McNaught’s opinions was likely based on her acting as an expert witness, rather than a “parenting time evaluator,” as provided in Rule 719, Dr. McNaught had been imbued with vast authority and access to Brandi that she otherwise would not have had as Brandon’s expert witness. Moreover, Dr. McNaught was ultimately paid over $105,000 to conduct the “parenting time evaluation” on behalf of Brandon. Apart from the ethical dilemma presented by this course of events, allowing a party to retain an expert to perform a parenting time evaluation tips the scale in favor of the parent with more resources, with which Brandon had a significant advantage. This also significantly violates the spirit of IRFLP 719, which was crafted to avoid the “battle of experts” formerly associated with too many child custody proceedings in the past. The bottom line is that a parenting time evaluation must have the sanction of the court— and that evaluator must possess absolute neutrality and not be aligned with either party to the dispute. This holding does not preclude litigants like Brandon from hiring experts under the Idaho Rules of Evidence to present their best view of the circumstances to the court—but such experts cannot be given unfettered access to the other party, including making recommendations to the court regarding psychological treatment requirements for that party. The court erred in allowing Dr. McNaught to cast such a wide net. The magistrate court thus abused its discretion in permitting Brandon to retain Dr. McNaught to perform a parenting time evaluation as his expert. This error was compounded when the magistrate court relied on Dr. McNaught’s recommendations in its custody determination. As we will set forth below, we hold that this error clouded the entirety of the judicial process here and requires that we vacate the judgment regarding child custody and visitation and remand for a new trial regarding this issue. B. The magistrate court did not abuse its discretion in allowing Dr. Evans to testify about parental alienation. Brandon called Robert A. Evans, Ph. D., as an expert witness at trial. Dr. Evans is a psychologist and a registered custody evaluator. Brandi’s objection to Dr. Evans’ testimony is twofold. First, Brandi asserts that the magistrate court impermissibly allowed Dr. Evans to opine that Dr. McNaught’s conduct was proper and she committed no ethical violations because an 12 expert cannot opine on the credibility of another witness. Given our holding that Dr. McNaught should not have been permitted to conduct a parenting time evaluation, we do not reach the issue of whether the magistrate court abused its discretion in permitting Dr. Evans’ testimony regarding Dr. McNaught’s report. Brandi also argues that Dr. Evans should not have been able to testify about “Parental Alienation Syndrome” because it is not recognized in Idaho. Brandi alleges that the magistrate court impermissibly accepted and relied on Dr. Evans’ testimony about “Parental Alienation Syndrome” with no “pattern of conduct” that Brandi intended to, or caused, any relationship problems between Child and Brandon. While we have vacated the child custody and visitation judgment for reasons set forth previously in this opinion, we will address this question for guidance on remand of this case. Brandi alleges that Dr. McNaught, along with Dr. Evans, were hired to mount a campaign to prove Parental Alienation Syndrome or the equivalent, the common remedy of which is a transfer of custody to the alienated parent. While Brandi insists that the magistrate court impermissibly made a finding of “Parental Alienation Syndrome,” this argument is unsupported by the record. The magistrate court relied on Dr. Evans’ testimony concerning 17 different alienating strategies used by parents, but it never specifically made a finding regarding the existence of Parental Alienation Syndrome. This Court has recognized that “the acts and conduct of the custodial parent, resulting in the alienation of the love and affection which children naturally have for the other parent, is a vital and very serious detriment to the welfare of such children and is grounds for modification of the decree with respect to such custody.” Woods v. Woods, 163 Idaho 904, 908, 422 P.3d 1110, 1114 (2018) (quoting McGriff v. McGriff, 140 Idaho 642, 652, 99 P.3d 111, 121 (2004)). In Doe v. Doe, the Court explained that alienation requires “a pattern of conduct designed to drive a wedge between the children and the other spouse.” 161 Idaho 67, 76, 383 P.3d 1237, 1246 (2016). In Doe, the Court found that the mother had not engaged in a pattern of alienating behavior. The Court emphasized that, apart from one text message, there was no evidence that the mother said anything negative to the children about their father. Id. Further, while the mother did not encourage the children to go on visitation with father, the Court found “scant evidence in the record that she actively inhibited or undermined father’s visitation rights.” Id. at 78, 383 P.3d at 1248. 13  Unlike the mother in Doe, here the magistrate court found a pattern of Brandi “bad- mouthing” Brandon in Child’s presence and limiting Brandon’s contact with Child. The evidence supports the magistrate court’s conclusion. For example, Brandi admitted that she called Brandon “crazy” and “insane” while Child was in Brandi’s arms. Brandon testified Brandi had called him a “psychopath” in front of Child on one occasion, and a “dickhead” on another. During a doctor’s office visit Brandi called Brandon a “psycho” while holding Child. Brandi made comments that Child should feel uncomfortable around Brandon, including one instance when Brandon went to pick up Child and Brandi said “it will be okay” and “don’t cry” even though the Child appeared happy to go with Brandon. Brandi also made negative comments about Brandon’s brother in front of Child when she was picking him up stating “We can’t tell who is fatter today, Megan or Liam?” Liam is Brandon’s brother and Megan is Liam’s girlfriend. The magistrate court also found that Brandi had a pattern of limiting Brandon’s contact with Child. Brandi refused to allow Brandon to see Child on Child’s birthday but the parties agreed Brandon would see Child the next day. Even so, when Brandon showed up the next day Brandi refused to let him see Child. At one point the court found Brandi in contempt for failing to allow Brandon to exercise his court-ordered visitation. Brandi also withheld Child’s medical information and refused to tell Brandon about some of Child’s doctor appointments. The magistrate court determined Brandi’s “actions were a direct or indirect attempt to alienate [Child] from Brandon which is not in [Child’s] best interest.” The magistrate court continued that even in the absence of a specific finding regarding the term, ‘parental alienation’ per se, Brandi’s actions as detailed in the [c]ourt’s findings and in Dr. McNaught’s reports raise serious concerns about the welfare and best interests of [Child] in Brandi’s care and co-parenting until she has addressed her behavioral and mental health issues. The magistrate court did not abuse its discretion in permitting Dr. Evans to testify about alienating strategies used by parents. The magistrate court relied on this information only to determine whether there was a “pattern of conduct” designed to drive a wedge between the child and the parent. There is substantial evidence in the record to support the magistrate court’s finding that Brandi engaged in a pattern of bad mouthing Brandon in front of Child and limiting Brandon’s contact with Child. Thus, there was no error on this sub-issue. 14  C. Brandi is precluded from arguing that the magistrate court abused its discretion in permitting Dr. Woodruff’s report. Brandon disclosed Dr. Woodruff, a child neurologist, as an expert witness who would testify that [Child] does not require one-on-one care outside of that typically provided for any child his age; that he expects [Child] to be able to participate in a day care school setting without individualized assistance; and that [Child] is expected to be educated in a mainstream school setting. Before trial Brandi agreed that Dr. Woodruff’s report would be admitted, or his video deposition could be taken, rather than fly him to Idaho Falls for trial. But on the first day of the first trial— which considered all issues except custody, visitation, and child support—Brandi’s counsel objected to the admission of Dr. Woodruff’s report, citing that the parties had agreed on the admission of the report before the bifurcated trial. Brandi’s counsel’s concerns stemmed from their ability to present a rebuttal to Dr. Woodruff’s report without getting into the custody issues that were set to occur at the second trial in September. The magistrate court did not find Brandi’s counsel’s concerns persuasive, particularly given that he knew Dr. Woodruff’s report was coming and Brandi suggested she had a witness to counter the opinions in the report, but did not have that rebuttal ready. The court did not find the bifurcation to have changed Brandi’s ability to present a defense and admitted Dr. Woodruff’s report. On appeal Brandi argues that there was no more than “an agreement to agree,” which is not binding on the parties. Even so, Brandi’s opposition to Dr. Woodruff’s report stems from the magistrate court’s admission of it at the first trial over spousal support, which is not an issue before the Court on this appeal. When Dr. Woodruff’s report was discussed on the first day of the custody trial, Brandi’s counsel did not object. “A party’s failure to object to action by the trial court precludes a party from challenging that action on appeal.” Woods v. Sanders, 150 Idaho 53, 57, 244 P.3d 197, 201 (2010) (quoting Mackowiak v. Harris, 146 Idaho 864, 866, 204 P.3d 504, 506 (2009)). Moreover, Brandi’s objection was about her ability to present a rebuttal witness, which she had ample time to prepare before the custody trial. Thus, we will not consider Brandi’s argument on appeal. D. While there is some evidence in the record to support the magistrate court’s custody decision, that evidence is so tainted by the court’s reliance on Dr. McNaught’s testimony it is unreliable. The crux of Brandi’s argument on appeal is that the magistrate court impermissibly gave the testimony of Brandon’s experts more weight than her own experts at trial. As we have held, 15 the magistrate court abused its discretion by admitting Dr. McNaught’s testimony. Brandon argues that we may, even excluding that evidence and testimony, find that substantial evidence in the record supports the magistrate court’s decision to award sole legal custody and primary physical custody of Child to Brandon. This Court reviews child custody determinations under an abuse of discretion standard. Clair v. Clair, 153 Idaho 278, 282, 281 P.3d 115, 119 (2012) (citing Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d 350, 355 (2011)). An abuse of discretion occurs when the evidence cannot support a magistrate’s conclusion that the interests and welfare of the children would be best served by the magistrate court’s order. Id. “Substantial evidence is more than a scintilla of proof, but less than a preponderance. It is relevant evidence that a reasonable mind might accept to support a conclusion.” Ehrlich v. DelRay Maughan, M.D., P.L.L.C., 165 Idaho 80, ___, 438 P.3d 777, 780 (2019) (citation omitted). Substantial evidence does not require that the evidence be uncontradicted. SilverWing at Sandpoint, LLC v. Bonner Cnty., 164 Idaho 786, ___, 435 P.3d 1106, 1114 (2019) (citation omitted). Rather, the evidence need only be of sufficient quantity and probative value that reasonable minds could conclude that the fact finder’s conclusion was proper. Id. We conclude that while there is some evidence in the record other than Dr. McNaught’s testimony to support the magistrate court’s custody determinations, much of that evidence is so tainted by the pervasiveness of Dr. McNaught’s testimony and recommendations that it cannot be said to be substantial or competent. The magistrate court’s judgment must therefore be vacated. The magistrate court considered the relevant factors in Idaho Code section 32-717 and in its discretion awarded the parties joint physical custody, with Brandon receiving primary physical custody subject to Brandi’s visitation. The court also awarded Brandon sole legal custody. As a basis for this conclusion the magistrate court explained: Brandi cannot be trusted to be honest with [Child’s] medical providers. Brandi has not shown that she can communicate appropriately with Brandon or behave positively during exchanges or effectively co-parent over a consistent period of time. Brandi has unresolved psychological issues for which she needs professional, consistent treatment. In contrast, Brandon’s primary focus is [Child’s] best interests. The Court concludes that there are strong reasons for overcoming the presumption in favor of joint legal custody at this time. For the same reasons, the Court declines to enter a care-giver of first choice clause. 16  This conclusion was advocated by Dr. McNaught, who recommended in her report: That Brandi immediately be evaluated by a Board-Certified psychiatrist. This psychiatrist should be given my report prior to meeting with Brandi. It will be important for Brandi to remain compliant with recommended medications as long as her Psychiatrist recommends she do so. It is also imperative that Brandi meet on a weekly basis with preferably a psychologist trained in the treatment of trauma. If a psychologist is not available, a licensed social worker trained in the treatment of trauma is recommended. .... Assuming that [Brandi] immediately initiates the following [sic] treatment recommendations, it is recommended that the parties share physical custody. If she is unwilling to do so, it is recommended that [Child] be placed in the sole physical custody of his father until mother complies with the treatment recommendations. Sole legal custody should be awarded to father until such time as mother demonstrates improvement in her condition and a continued willingness to follow the recommendations of the treating professionals. While Brandon did advocate for sole legal custody in his proposed findings of fact and conclusions of law submitted to the court, he conveyed that he did so “in concert with Dr. McNaught’s recommendation for the same.” Thus, while there may be evidence in the record which would support the magistrate court’s conclusion, we have little doubt that Dr. McNaught’s report and testimony factored into that determination in a significant way. Since we cannot parse-out the facts supporting the magistrate court’s legal conclusion separate from Dr. McNaught’s testimony, we are compelled to vacate the judgment and remand the case for a new trial wholly independent of the offending expert testimony that we have noted in this opinion. E. The magistrate court abused its discretion in ordering Brandi to undergo psychological evaluation and counseling as recommended by Dr. McNaught. Brandi argues the magistrate court erred by following Dr. McNaught’s recommendations that she submit to additional psychological testing and weekly counseling sessions. The magistrate court ordered: Brandi shall immediately be evaluated by a Board-Certified psychiatrist. This psychiatrist shall be given Dr. McNaught’s written custody evaluations prior to meeting with Brandi. Brandi shall remain compliant with recommended medications as long as her psychiatrist recommends that she do so. Brandi shall meet on a weekly basis with preferably a psychologist trained in the treatment of trauma, Major Depression, and anxiety. If such a psychologist is not available, Brandi shall meet with a licensed social worker trained in the 17  treatment of trauma, Major Depression, and anxiety. This provider shall be given Dr. McNaught’s written custody evaluations prior to meeting with Brandi. Since we have vacated the judgment, we likewise vacate the requirement that Brandi undergo psychological evaluation and counseling as recommended by Dr. McNaught. We take this opportunity to clarify that a judge has no authority to order medical/psychological treatment in a custody case unless there is direct testimony that such treatment would be in the best interest of the child. If the record supports such a conclusion, the trial court may appropriately order such treatment as a condition of visitation. Beyond that limitation, the trial court has no authority to make such carte blanche orders. The language cited from the order here is deficient because (1) it is not a condition of visitation and (2) it is not specifically tied to the best interest of Child. F. The magistrate court did not abuse its discretion in its discovery determinations. Although we have vacated the judgment, we address additional issues raised on appeal for guiding the court and the parties on remand. Brandi also claims the magistrate court did not allow reasonable discovery. The control of discovery is an area within the discretion of the trial court. Vaught v. Dairyland Ins. Co., 131 Idaho 357, 360, 956 P.2d 674, 677 (1998). IRFLP 402 provides: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. IRFLP 402(B)(1). Brandi claims that the magistrate court erred when it quashed her proposed subpoenas and only allowed the discovery Brandon was willing to provide. Before trial Brandi tried to subpoena documents pertaining to Brandon’s work history, including: hours worked, complaints, and disciplinary actions. The portions of the record Brandi cites are subpoenas to Eastern Idaho Health Services, Mountain View Hospital, and Idaho Neurosurgery and Spine, PLLC. Brandon objected. A hearing took place, and the magistrate court limited Brandi’s subpoenas to Brandon’s on call and work schedule, but excluded the rest of the information she sought after finding it to be “overly broad, not specific, not relating to a designated incident or particular set 18 of circumstances.” Brandi later executed subpoenas that were limited to information on Brandon’s work hours. While Brandi cites the appropriate legal standards for discovery disputes, Brandi gives no argument on how the magistrate court abused its discretion; instead, Brandi reiterates in conclusory fashion that the magistrate court erred. “Failing to demonstrate that an abuse of discretion occurred under any part of the test applied by this Court . . . is fatal to [an] argument that the court abused its discretion.” Matter of Doe I, 165 Idaho 33, ___, 437 P.3d 33, 44 (2019). Brandi also claims that the magistrate court erred by directing Brandon’s counsel to subpoena documents from Bingham Memorial Hospital and Skyline Surgical Center. But there is no evidence in the record that Brandi ever tried to subpoena either of these entities. As noted, “[t]he control of discovery is an area within the discretion of the trial court.” Vaught, 131 Idaho at 360, 956 P.2d at 677. Brandi has failed to show how the magistrate court abused its discretion by permitting Brandon’s counsel to subpoena information to refute Brandi’s allegations that Bingham Memorial Hospital and Skyline Surgical Center had revoked Brandon’s medical privileges. Brandon did not receive the subpoenaed documents until after trial concluded and he then moved to reopen the record. Over Brandi’s objection, the magistrate court allowed Brandon to submit those documents so that the judge could determine facial reliability. On appeal Brandi argues that admission of the letters violates hearsay and foundational rules of evidence. Other than Brandi’s claims that she should have had a right to get the hospital records herself, Brandi has failed to show how the magistrate court abused its discretion. Lastly, Brandi argues the magistrate court abused its discretion by denying her request for Brandon’s cell phone records to support her argument that Brandon was constantly on the phone. Brandi cannot provide any citation to the record where the magistrate court ruled on this issue and so we will not consider it on appeal. “This Court will not search the record on appeal for error.” Liponis v. Bach, 149 Idaho 372, 375, 234 P.3d 696, 699 (2010). G. The magistrate court did not abuse its discretion by requiring Child to reside in Bonneville County. Brandi argues the magistrate court acted arbitrarily and without reason by requiring her to reside in Bonneville County if she wanted to maintain custody of Child. In a divorce action where custody is at issue, a court lacks the authority to order where the parents must live. Allbright v. Allbright, 147 Idaho 752, 754, 215 P.3d 472, 474 (2009). Even so, in Clair v. Clair, 19 this Court recognized that “[a]lthough Allbright does include explicit language that states I.C. § 32–717(1) ‘does not authorize a court to decide the geographic area in which the parent or parents of the child shall live,’ it does not supersede the magistrate court’s discretion in the best interest of the child to “‘determine with which parent the child will reside.’” 153 Idaho 278, 285, 281 P.3d 115, 122 (2012) (quoting Allbright, 147 Idaho at 754–55, 215 P.3d at 474–75). Here, the magistrate court determined that it was in Child’s best interest to remain near Idaho Falls and ordered that “[C]hild’s future residence with his Mother shall be in Bonneville County (though she alone is not so restricted).” A court cannot order where a parent shall live. Allbright, 147 Idaho at 754, 215 P.3d at 474; Clair, 153 Idaho at 285, 281 P.3d at 122. That said, the court may conclude it is in the best interest of the child that the child remains in a particular place. That is what the magistrate court found here. After recognizing that the only two homes Child has ever known are in Idaho Falls, the magistrate court ordered that Child’s future residence would need to continue to be in Bonneville County. This tracks Brandi’s own testimony that she would continue to reside in Idaho Falls. The magistrate court did not abuse its discretion in ordering Child to remain in Bonneville County. H. No Attorney Fees on appeal. Both parties have requested attorney fees on appeal under Idaho Code section 12-121. Attorney fees under this statute may be awarded to the prevailing party when an appeal is brought frivolously, unreasonably, or without foundation. I.C. § 12-121. Because both parties have raised important issues of first impression and prevailed in part, we decline to award attorney fees on appeal to either side. VI. CONCLUSION We vacate the magistrate court’s award of sole legal custody and primary physical custody to Brandon. On remand the magistrate court is instructed to disregard Dr. McNaught’s testimony, report, and recommendations when determining issues of custody and visitation. No attorney fees or costs are awarded. Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER, CONCUR. 20 

135 Wis.2d 444 (1986) 400 N.W.2d 499 Richard C. RUGG, Plaintiff-Appellant,[†] v. LABOR & INDUSTRY REVIEW COMMISSION and Department of Employe Trust Funds, Defendants-Respondents, CITY OF KENOSHA, Defendant. No. 86-0677. Court of Appeals of Wisconsin. Submitted on briefs November 11, 1986. Decided December 10, 1986. *445 For the plaintiff-appellant, the cause was submitted on the briefs of Bruce F. Ehlke of Lawton & Cates, of Madison. For the defendants-respondents, the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Warren M. Schmidt, assistant attorney general. Before Brown, P.J., Nettesheim and Moser, JJ. *446 BROWN, P.J. Former Kenosha firefighter Richard C. Rugg appeals from a circuit court judgment which confirmed the Labor and Industry Review Commission's holding that Rugg is not eligible for special disability benefits pursuant to sec. 40.65, Stats. Because we agree that Rugg is not a "participating employe" under the relevant statutes, we affirm the judgment. The following facts are undisputed. Rugg was a firefighter for the City of Kenosha from May 15, 1947 until February 1983. A medical examination performed prior to Rugg's becoming a firefighter revealed no evidence of heart impairment or disease. On February 21, 1983, Rugg suffered a massive anterior wall myocardial infarction, ventricular fibrillation and cardiac arrest. A subsequent catheterization revealed a large scar on the anterior wall of his heart, a moderate degree of aneurysm formation, and occlusive coronary artery disease. In October 1983, Dr. John Walker determined that Rugg was totally disabled for the purposes of being a firefighter and, at the end of December, Rugg retired because of his disabling heart condition. Pursuant to sec. 891.45, Stats., a presumption exists that Rugg's heart condition was caused by his employment as a firefighter. In November 1983, Rugg applied for the duty disability benefit provided for by sec. 40.65, Stats. The Department of Employe Trust Funds opposed his application on the basis that the legislature had specifically excluded from the sec. 40.65 benefit program firefighters, including Rugg, who were participants in the old sec. 62.13(10), Stats. (1975), pension program. The DILHR examiner and the Labor and Industry Review Commission (LIRC) agreed and dismissed Rugg's application. *447 The issue is entirely one of statutory interpretation. The interpretation of statutes is a question of law and we are not bound by the decision of the circuit court or LIRC. Wisconsin's Environmental Decade, Inc. v. DILHR, 104 Wis. 2d 640, 644, 312 N.W.2d 749, 751 (1981). However, the construction and interpretation of a statute by an administrative agency which must apply the statute is entitled to great weight. Id. If the commission's legal conclusion is reasonable, the reviewing court, will sustain it even though an alternative view may be equally reasonable. Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 322, 328 N.W.2d 886, 888 (Ct. App. 1982). Section 40.65, Stats., provides for a duty disability benefit for a "protective occupation participant" who is injured while performing his or her duties, or who contracts a disease due to his or her occupation, if the disability is likely to be permanent and causes the employee to retire. Sec. 40.65(4). The question thus becomes whether Rugg is a "protective occupation participant." That term is defined in pertinent part in sec. 40.02(48), Stats., as "any participant whose principal duties are determined by the participating employer . . . to involve . . . active fire suppression or prevention . . . " (emphasis added). Subsection (a) of sec. 40.02(48) further provides that " [p]rotective occupation participant' is deemed to include any participant whose name is certified to the fund. . . and who is a . . . fire fighter . . ." (emphasis added). "Participant" means "any person included within the provisions of the Wisconsin retirement system by virtue of being or having been a participating employe whose account has not been closed . . . . " Sec. 40.02(45), *448 Stats. "Participating employe" is then defined, in pertinent part, as "an employe who . . . has met the requirements of s. 40.22." Sec. 40.02(46). Section 40.22, Stats., states: Participating employes. (1) Each employe currently in the service of a state agency ... or of a participating employer other than the state shall be included within the provisions of the Wisconsin retirement system as a participating employe of that state agency or employer, except as provided in sub. 4 . . . . . . . . (4) Persons shall not be included within or receive benefits from the Wisconsin retirement system for any service for which a person: (a) Is subject to s. 40.19(4) provided that contributions and benefits shall be paid as provided by s. 40.19(4). [Emphasis added.] It is this statutory language which LIRC contends excludes Rugg from eligibility as a "participating employe" and thus as a "protective occupation participant" for the purposes of the sec. 40.65, Stats., duty disability benefit. Section 40.19(4), Stats., referred to in sec. 40.22, Stats., relates to the transfer of authority over certain pension funds and benefits from village or city officials to the Department of Employe Trust Funds. Included among these pension funds and benefits is that provided for under sec. 62.13(10), Stats. (1975), the Firemen's Pension Fund, membership in which was closed in 1948. See sec. 62.13(10)(f), Stats. (1975). Subsection (g) of sec. 40.19(4) states: After January 1, 1982, each member of a pension fund created under s.... 62.13 . . . (10), 1975 Stats., *449 who was an actively employed member of that fund on March 30, 1978, shall continue to have benefits and obligations determined in accordance with the applicable provisions of s.... 62.13 . . . (10), 1975 stats., but paid by the Wisconsin retirement system.... Rugg was a member of the City of Kenosha's Firemen's Pension Fund, pursuant to sec. 62.13(10), Stats. (1975). LIRC contends, and the circuit court agreed, that the statute sections described above, when read together, unambiguously provide that participants in the old Firemen's Pension Fund shall not be included in, or receive benefits (including the duty disability benefit) from, the Wisconsin Retirement System, but shall continue to have benefits determined pursuant to sec. 62.13(10), Stats. (1975), although such benefits will be paid by the Wisconsin Retirement System. Rugg claims that a "common sense" reading of the relevant statutes in light of the legislative history demonstrates that the legislature did not intend to exclude municipal firefighters such as himself from duty disability benefits under sec. 40.65, Stats. He contends that, rather, the legislature intended merely that such employees may not receive a service pension under the Wisconsin Retirement System if they are or were eligible for such a pension under sec. 62.13(10), Stats. (1975). On any question of statutory construction, the initial inquiry is to the plain meaning of the statute. State Historical Society v. Village of Maple Bluff, 112 Wis. 2d 246, 252, 332 N.W.2d 792, 795 (1983). If the statute is unambiguous, resort to judicial rules of interpretation and construction or to extrinsic aids is not permitted *450 and the words of the statute must be given their obvious and ordinary meaning. Id. at 252-53, 332 N.W.2d at 795; State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555, 557 (1984); Hucko v. Jos. Schlitz Brewing Co., 100 Wis. 2d 372, 376, 302 N.W.2d 68, 71 (Ct. App. 1981). The meaning of a statute must first be sought in its language, and if the language is plain the sole function of the courts is to enforce the statute according to its terms. In re M.J., 122 Wis. 2d 525, 531, 362 N.W.2d 190, 194 (Ct. App. 1984). A statute is ambiguous if it is capable of being interpreted by reasonably well-informed people in two or more different ways. State v. Hopson, 122 Wis. 2d 395, 399, 362 N.W.2d 166, 168 (Ct. App. 1984). Rugg claims that it is reasonable to read sec. 40.22, Stats., to mean that an employee who participated under a sec. 62.13(10), Stats. (1975), pension program is limited to receiving his service pension under that program and is prohibited from receiving a second pension benefit from the Wisconsin Retirement System. Thus, he argues, as long as he has not claimed or received a service pension benefit under the Wisconsin Retirement System, he has met the requirements of sec. 40.22. We cannot adopt this strained interpretation of the statute. Section 40.22, Stats., draws no distinction between service pensions and disability benefits, as Rugg would have us conclude. The language is clear and must be given its ordinary and accepted meaning. See State Historical Society, 112 Wis. 2d at 252, 332 N.W.2d at 795. Section 40.22(4) unambiguously states that "[p]ersons shall not be included within or receive benefits from the Wisconsin retirement system for any service for which a person" is subject to sec. 40.19(4), Stats. All of Rugg's service was as a Kenosha firefighter, in *451 connection with which he was a participant in the Firemen's Pension Fund pursuant to sec. 32.13(10), Stats. (1975). All of his service is thus subject to sec. 40.19(4), and he therefore "shall not be included within or receive benefits from the Wisconsin retirement system." Sec. 40.22(4). Rugg contends next that the sec. 40.65, Stats., duty disability benefit is not a benefit from the Wisconsin Retirement System, so that the sec. 40.22(4), Stats., exclusion does not apply to him with reference to such benefit. In support of this argument, he cites sec. 40.20, Stats., which, states, "A Wisconsin retirement system is created, including the benefits provided by this subchapter secs. 40.20 to 40.29, Stats.], the disability annuities provided by s. 40.63 and the death benefits provided by ss. 40.71 and 40.73." Because sec. 40.20 makes no reference to sec. 40.65, Rugg concludes that the sec. 40.65 disability benefit is not a benefit from the Wisconsin Retirement System. Whether or not that is a correct interpretation, the duty disability benefit is, by the language of sec. 40.65, Stats., only available to protective occupation "participants," who are defined as persons included within the provisions of the Wisconsin Retirement System. Section 40.02(45), Stats. Members of the old sec. 62.13(10), Stats. (1975), pension fund are subject to sec. 40.19(4), Stats., and thus "shall not be included within. . . the Wisconsin retirement system." Section 40.22(4), Stats. Because Rugg cannot be included within the Wisconsin Retirement System, he is not a "participant." Thus, whether or not the sec. 40.65 benefit is a Wisconsin Retirement System benefit, its eligibility requirements are, by the use of the term "participant," based upon Wisconsin Retirement System membership. *452 By the same reasoning, we reject Rugg's contention that because the sec. 40.65, Stats., benefit is noti tied to length of service, it is not a benefit "for any service" under sec. 40.22(4), Stats. Again, it is Rugg's status, not the nature of the benefit, which determines his ineligibility for the sec. 40.65 benefit. We agree with the trial court's, and LIRC's, conclusion that the legislature has unambiguously excluded certain local pension fund members including sec. 62.13(10), Stats. (1975), members such as Rug, from eligibility for the Sec. 40.65, Stats., duty disability benefit. Because the language is clear—indeed, we can scarcely conceive of how this complex statutory arrangement could have been expressed more clearly—resort to the legislative history which has been so thoroughly briefed for us is neither necessary nor permitted. By the Court.—Judgment affirmed. NOTES [†] Petition to review pending. This petition was not decided at the time the volume went to press. Its disposition will be reported in a later volume.

276 Cal.App.2d 19 (1969) MERVIN E. JAMES et al., Plaintiffs and Respondents, v. P.C.S. GINNING CO., INC., Defendant and Appellant. Civ. No. 1099. California Court of Appeals. Fifth Dist. Sept. 3, 1969. Siemon & Patterson and R. D. Patterson, Jr., for Defendant and Appellant. Granger & Moe and Lewis A. Moe for Plaintiffs and Respondents. STONE, P. J. Defendant appeals from a judgment quieting title in plaintiffs to real property upon which their home was located. The quiet title action was instituted to enforce a homestead filed prior to a personal judgment defendant obtained against plaintiffs and enforced by an execution sale of the real property. The transaction began in 1965, when plaintiffs obtained financing from defendant gin to carry on their farming operations. They executed a promissory note and a crop mortgage *21 to secure the financing. As additional collateral, they executed security agreements which were, in effect, personal property mortgages covering farming equipment; listed along with the equipment was an item "Equity in House $8,000." In 1966, plaintiffs again financed with the gin and executed similar documents, reflecting the equity in the house at $10,000. Both financing statements were recorded. Thereafter, on September 20, 1966, plaintiffs filed a declaration of homestead covering their residence at 720 Washington Street, Delano. Plaintiffs failed to meet their payments. In February 1967, the gin filed an action against them, alleging the execution of the promissory notes secured by the two agreements, and the default in payments. The gin sought possession of the items of personal property and the equity in the house, but did not allege that the language "Equity in House" created an equitable lien nor seek to have the description made certain. A default judgment was entered March 21, 1967, in favor of the gin, for the sum of $131,167.28, attorneys fees of $15,000, and $38.50 costs. The judgment decreed that the gin have immediate possession of the farming equipment and "Equity in House $10,000.00." Since the "equity" was real property, the order as to it was a legal nullity. To enforce the order, the gin obtained a writ of possession for the specifically described personal property and, to reach the "equity" in the house, obtained a writ of execution on the money judgment and levied against plaintiffs' equity in the real property. At an execution sale held November 30, 1967, defendant gin purchased what purported to be plaintiffs' equity in the real property. In the meantime, on June 14, 1967, plaintiffs filed voluntary bankruptcy proceedings, claiming their residence to be exempt by virtue of the homestead. The referee approved the claim, set aside the real property as exempt, and discharged plaintiffs in bankruptcy. On September 26, 1967, plaintiffs filed this action to quiet title against defendant's judgment and execution sale, by reason of the homestead which predated the judgment. The matter was submitted to the trial court, sitting without a jury, upon stipulated facts. The court upheld the validity of the homestead. [1] Preliminarily, it is arguable that the description, "Equity in House $10,000.00," does not describe specific property and is therefore too vague to create a valid mortgage of real property. This point would be of great significance *22 were an innocent purchaser for value involved, but no third parties are concerned; the controversy is between the debtors and the mortgagee. There was no misunderstanding; both the gin and plaintiffs intended the equity in the home to be security for the loan. Under the rationale of Coast Bank v. Minderhout, 61 Cal.2d 311, 314 [38 Cal.Rptr. 505, 392 P.2d 265], a valid equitable lien was created between the parties even though the description of the property was vague and indefinite. [2] Since there was a valid, equitable lien, the question narrows to whether the gin, by electing to file a personal action and reduce the indebtedness to a personal judgment, made an election of remedies that, by operation of law, waived its equitable lien priority over plaintiffs' subsequent declaration of homestead. Code of Civil Procedure section 726 provides that "There can be but one form of action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real property, which action must be in accordance with the provisions of this chapter. ..." Since there can be but one form of action, under section 726, the courts have established that where a creditor elects to obtain a personal money judgment rather than enforce his mortgage, the effect of the election is to waive the right to foreclose on his security. (Roseleaf Corp. v. Chierighino, 59 Cal.2d 35, 38 [27 Cal.Rptr. 873, 378 P.2d 97]; Salter v. Ulrich, 22 Cal.2d 263, 268 [138 P.2d 7, 146 A.L.R. 1344]; 1 Witkin, Summary Cal. Law (1960) Security Transactions in Real Property, p. 745; Mortgages and Trust Deeds: Enforcement of a Secured Debt in California, 31 Cal.L.Rev. p. 429.) [3] Defendant argues that even though it lost the right to foreclose on the property by not proceeding to foreclose according to section 726 of the Code of Civil Procedure, its judgment and execution take precedence over the homestead by reason of section 1241 of the Civil Code, which provides: "The homestead is subject to execution or forced sale in satisfaction of judgments obtained; ... 4. On debts secured by encumbrances on the premises, executed and recorded before the declaration of homestead was filed for record." The equitable lien was executed and recorded before the declaration of homestead was filed for record, so the question that emerges is whether the gin, by failing to enforce its equitable lien pursuant to section 726, forfeited the lien priority over the homestead that is provided by Civil Code section 1241. The landmark case, Salter v. Ulrich, supra, 22 *23 Cal.2d 263, holds that a creditor who chooses to disregard his security and sue on the indebtedness must rely on the title obtained through an execution sale. But this leaves unsettled the effect of the election of remedies upon the prior lien which appears of record and clouds title to the property. In short, does the title of the gin, obtained by purchase at execution sale, relate back to the date the lien was recorded, by reason of section 1241 of the Civil Code? The language of Salter has been interpreted to mean that when the creditor elects to recover a personal judgment "he loses all right to his security, thereby relegating himself to the position of an ordinary judgment creditor." (31 Cal.L.Rev. pp. 429, 433.) We believe this is a correct analysis and, by electing to rely upon a personal judgment, the gin lost all right to a lien priority, including that enjoyed under section 1241 of the Civil Code. We do not rest this conclusion solely upon an interpretation of section 726 of the Code of Civil Procedure. Section 580a must also be taken into account. The holder of a deed of trust, mortgage, or similar security, who elects to foreclose must follow the procedure delineated in sections 726 and 580a of the Code of Civil Procedure, whereby a court must determine that the judgment is for no more than the amount by which the entire amount of the indebtedness due at the time of sale exceeds the fair market value of the real property or interest at the time of sale. Manifestly the purpose of sections 726 and 580a is to prevent a mortgagee from bidding-in property for a nominal sum and obtaining a large deficiency judgment effectuating a forfeiture. If a mortgage lien priority remains viable despite the mortgagee's election to obtain a personal judgment, the creditor has all the advantages of a foreclosure plus a deficiency judgment by simply ignoring statutory foreclosure requirements. We conclude that defendant, by suing on the note to obtain a personal judgment in disregard of its security, made an election of remedies which, under the impact of sections 726 and 580a, constituted a waiver of its lien priority established by the recordation of the security agreements. It follows that the trial court correctly quieted title in plaintiffs by reason of the homestead which preceded the judgment and execution sale upon which the gin's title rested. [4] By way of affirmative defense, the gin contends plaintiffs are barred from asserting the superiority of their *24 declaration of homestead over the recorded equitable lien because they failed to file a counterclaim in the original action on the indebtedness. (Code Civ. Proc., 439.) However, plaintiffs were not required to appear in the original action unless they wished to force defendant to foreclose the lien pursuant to sections 726 and 580a of the Code of Civil Procedure. (Roseleaf Corp. v. Chierighino, supra, 59 Cal.2d at p. 40; Salter v. Ulrich, supra, 22 Cal.2d 263.) Where the mortgagors were content to have the mortgagee waive its right to foreclose against the security and proceed to obtain a personal judgment, a counterclaim alleging the homestead would have been premature. This, because a declaration of homestead relates to an interest in real property and until the indebtedness was reduced to judgment the lawsuit did not encumber plaintiffs' title; there was no basis for asserting the homestead by way of counterclaim. [5] Defendant also argues that its affirmative defense of equitable estoppel should have been sustained by the trial court. The substance of its argument is that plaintiffs knowingly gave the gin an equitable lien upon their property to secure a legitimate loan, and a court of equity should not permit them to evade their indebtedness through a homestead filing. There are two answers. First, the gin had the choice of foreclosing pursuant to sections 726 and 580a, and wiping out the declaration of homestead by foreclosure, or to disregard its security, proceed to obtain a personal money judgment, and forfeit its lien. Thus it was defendant's own choice of action, not that of plaintiffs, that gave the homestead priority over the personal judgment. Second, defendant, by reducing its debt to judgment and selling the property pursuant to a levy of execution in an attempt to circumvent restrictions on deficiency judgments embodied in sections 726 and 580a, is hardly in a position to argue equity. [6] Finally, defendant asserts the court failed to make certain findings it requested. Since the case was submitted on an agreed statement of facts, no findings are necessary. In denying defendant's request for special findings, the trial court noted that it relied upon the stipulated facts. The trial court was faced with questions of law; findings are required only "upon the trial of a question of fact by a court." (Code Civ. Proc., 632.) Moreover, conclusions on every issue of law are not required to be set out in support of a judgment. (Duff v. Duff, 256 Cal.App.2d 781, 785 [64 Cal.Rptr. 604]; Kerr *25 Land & Timber Co. v. Emmerson, 233 Cal.App.2d 200, 222 [43 Cal.Rptr. 333]; City of National City v. California Water & Tel. Co., 204 Cal.App.2d 540, 545 [22 Cal.Rptr. 560]; Yorty v. Los Angeles City Council, 239 Cal.App.2d 138, 142 [48 Cal.Rptr. 600].) The judgment is affirmed. Gargano, J., concurred.

717 F.2d 57 114 L.R.R.M. (BNA) 2377, 115 L.R.R.M. (BNA) 2337,98 Lab.Cas. P 10,439 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ARA SERVICES, INC., Respondent. No. 81-1701. United States Court of Appeals,Third Circuit. Argued Dec. 15, 1981.Reargued En Banc Nov. 8, 1982.Decided Sept. 9, 1983.As Amended Dec. 27, 1983. Lawrence J. Song, Atty., N.L.R.B., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson (argued), Atty., Washington, D.C., for petitioner. Jackson, Lewis, Schnitzler & Krupman, Norman R. Buchsbaum, Joe C. Ashworth, Baltimore, Md., and Roger S. Kaplan (argued), New York City, for respondent. Argued Dec. 15, 1981. Before ADAMS, GIBBONS and GARTH, Circuit Judges. Reargued En Banc Nov. 8, 1982. Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges. OPINION ANNOUNCING THE JUDGMENT OF THE COURT GIBBONS, Circuit Judge: 1 This case is before us on the application of the National Labor Relations Board (the Board) to enforce its order finding that ARA Services, Inc. (ARA) violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) (1976), by refusing to recognize and bargain with Local 1111, United Food and Commercial Workers International Union, AFL-CIO (the Union). That Union has been certified as the bargaining representative for ARA employees in a representation proceeding conducted pursuant to section 9 of the Act. 29 U.S.C. Sec. 159 (1976). The employer concedes the refusal to bargain, but urges that the Board erred in overruling its objections to the conduct of a Board supervised election. The case requires our consideration of the scope of this court's review of the Board's review of a regional director's report on objections to the conduct of elections, in particular a regional director's decision to issue such a report on the basis of an administrative investigation rather than a hearing. We conclude that the Board did not abuse its discretion when it overruled objections to the conduct of the election without requiring that the regional director conduct a hearing, and we enforce the Board's order directing the employer to bargain collectively. I. Proceedings Before the NLRB 2 ARA is engaged in the industrial catering business at a number of locations, including the cafeteria and dining room of Bell Laboratories in Murray Hill, New Jersey. On October 24, 1979 the Union, claiming majority support among ARA employees at that facility, sought recognition as their collective bargaining representative. ARA declined recognition, and on November 9 the Union filed a representation petition with the Board. The company stipulated to a consent election on January 11, 1980, and the stipulation defined the appropriate bargaining unit of 69 members. Of these, 58 cast ballots, with 30 voting for union representation. The regional director for Region 22 thereupon furnished to the parties a tally of the ballots. Within the 5 days permitted by 29 C.F.R. Sec. 102.69(a), counsel for ARA filed with him the following unverified objections to the conduct of the election: Objection No. 1 3 The Union, by its officers, agents, supporters and adherents threatened employees with physical harm, social ostracism, and other reprisals if they voted against union representation. The Union, acting through its officers, agents and adherents, chilled the atmosphere and interfered with the free exchange of ideas by advising employees that it was aware of which employees were talking to management representatives, thereby creating an atmosphere of coercion and tension which interfered with the conduct of the election. Objection No. 2 4 Board Agent Bennett Muraskin failed to exercise his authority and to affirmatively act so as to make it clear to the employees that the election was being conducted by the Board and that the Board was in actual charge of the voting arrangements but allowed the Union's designated observer to appear to be running the election process, thereby interfering with the election, creating the impression that the Government was not in control and substantially affecting the outcome of the election. 5 These unverified objections resulted in an investigation by the regional director. See 29 C.F.R. Sec. 102.69(c)(1). 6 During the course of the regional director's investigation ARA furnished unverified handwritten statements by three bargaining unit employees, Kevin Woodruff, Frank Smith and June Colavito. The statement of Woodruff was tendered in support of Objection No. 1, while that of Colavito was tendered in support of Objection No. 2. Smith's contains an additional charge. 7 Woodruff's statement, in relevant part, reads 8 Paul Reisner and Enzo Fusco, two pro-union spokesmen on two different occasions, before the voting took place, told me that I should go along with the Union. Enzo said he'd "beat me up" if I did not join the Union. Paul Reisner told me he'd "get back at me" if I didn't join the Union. 9 * * * 10 The Union man a big tall guy, who was here for the vote said there would be an all-out strike--no food, no jobs, that the trucks would be prevented from delivering food and no one would be able to come to work. Fusco was present when the Union official made this comment. Fusco said to me that I better vote yes. Fusco and some of the others told me that if I didn't vote for the Union, nobody would be my friend or talk to me. 11 Woodruff's statement does not say whether or not he voted in the election. During the course of his investigation the regional director interviewed Woodruff, Fusco and Reisner. With respect to the charge that Woodruff was threatened with the loss of friends, his Report on Objections notes that Woodruff "admitted, however, that the second threat of losing friends was not taken seriously, due to the bantering nature of the statement, and further claimed to be unsure if Fusco himself was serious when making the statements imputed to him." When interviewed Woodruff apparently reiterated the charge that Fusco threatened to beat him up. He also enlarged upon the charge that Reisner, an assistant chef, threatened to get back at him, stating that this threat was made after Reisner had learned Woodruff had disclosed a union campaign letter to a supervisor. 12 During the course of the investigation both Fusco and Reisner were interviewed, and both denied making the alleged threats. The regional director did not, however, resolve this credibility issue. Instead, his report observes:The investigation revealed that neither Fusco nor Reissner [sic] were identified as prominent Union partisans in the pre-election period, neither distributed or collected authorization cards or acted as election observers. Further, Reissner [sic] resigned prior to the date of the election and Fusco's employment terminated shortly thereafter. Employees other than both Fusco and Reissner [sic], have been identified as having established initial contact with Petitioner [Union], distributing, collecting and returning authorization cards on behalf of Petitioner [Union] and serving as active members of an organizing committee. Such overt activity on behalf of Petitioner [Union] by such other employees is generally not sufficient to establish agency thereby holding Petitioner [Union] responsible for the alleged wrongdoings of employees without more.2 In this regard, Fusco and Reissner [sic] were not the prime Union adherents, and there is no evidence that the Petitioner [Union] was aware of any alleged misconduct attributed to them nor condoned or ratified any of their alleged actions. Further there is no evidence that any representative of Petitioner [Union] engaged in any other misconduct. 13 2. International Ladies' Garment Workers' Union, AFL-CIO, 214 NLRB 706 (1974). 14 Woodruff's statement is the only evidence submitted by ARA in support of Objection No. 1. Except for the interlineation describing Reisner and Fusco as "two pro-union spokesmen" it contains no information about the connection of either to the Union or the organizing effort. Thus the facts respecting their status developed during the regional director's investigation is uncontradicted by any evidence submitted by ARA. 15 Colavito's statement is quoted in the margin.1 It refers to no specific misconduct by either the Board agent supervising the election or the Union observer. In a conclusory manner it asserts that from her viewpoint as a company observer the Union observer acted so officiously as to give the impression the election was under Union control, and the Board agents failed to negate that impression. The regional director's investigation determined that the election notices printed by the Board and informing the voters that the election was under the Board's aegis, were duly and timely posted; that observers for the parties were instructed as to their duties and were issued and wore identifying badges during the election; that the Board agents also wore identifying badges; and that both observers scrupulously followed the Board agents' instructions. The Regional Director concluded that "no probative evidence was submitted, nor did the investigation disclose any evidence, that the Petitioner's [Union's] observer engaged in any conduct that was intended to or had the effect of interfering with the employees' free choice in the election...." 16 Smith's statement contains the charge that "several of the pro-Union girls told me that if I voted for the Union in the NLRB election, the Union would be giving me a birthday gift." This objection was not made within the time permitted by 29 C.F.R. Sec. 102.69(a), but Board precedent permits the regional director to consider matters uncovered in the course of an investigation not specifically alleged in objections to an election. See Pure Chem Corp., 192 NLRB 681 (1971) (election set aside on basis of facts developed in regional director's investigation, not alleged in objection). The regional director in his investigation obtained an affidavit from Smith denying that the Union was to be the donor of the birthday gift, and admitting that the reference to such a belated gift (his birthday was some time past) was made facetiously. The regional director reported that the incident "does not raise a substantial issue which would warrant setting aside the election." 17 On February 21, 1978, the regional director recommended to the Board that ARA's objections be overruled in their entirety, and that the Union be certified as bargaining representative. Within the 10 days provided in 29 C.F.R. Sec. 102.69(e), ARA filed 13 exceptions to his report which are quoted in the margin.2 A three-member panel of the Board reviewed the record in light of ARA's exceptions and brief and adopted the regional director's findings and recommendations. It certified the Union as bargaining representative on April 3, 1980. ARA's motion for reconsideration was denied on May 1, 1980. Meanwhile on April 11, 1980, ARA informed the Union that it would not bargain collectively, and on April 17, 1980 the unfair labor charge was filed. The Board's general counsel promptly filed a complaint and moved for summary judgment. ARA's response relied on its exceptions to the regional director's report and motion for reconsideration. In granting the general counsel's motion on August 12, 1980, the Board noted: 18 All issues raised by Respondent [ARA] in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. 19 It therefore held that ARA's refusal to bargain violated section 158(a)(5). II. ARA's Objection to Certification 20 ARA objects to enforcement on two grounds: that the Board should have directed the regional director to hold an evidentiary hearing, and that its certification was made without reviewing all the materials relied on by the regional director. A. The Evidentiary Hearing Contention 21 Disposition of ARA's contention that it is entitled to a pre-certification evidentiary hearing requires an appreciation both of the statutory scheme governing representation proceedings, and of the standards developed by the Board respecting the atmosphere in which representation elections shall be conducted. Section 9 of the National Labor Relations Act governs selection of collective bargaining representatives. 29 U.S.C. Sec. 159 (1976). It provides that employees may petition for certification of a bargaining representative. Upon the filing of such a petition an employer and a labor organization may, as was done in this case, enter into a consent election agreement. 29 U.S.C. Sec. 159(c)(4); 29 C.F.R. Sec. 102.62 (1981). If no consent agreement is made "the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto." 29 U.S.C. Sec. 159(c)(1). While the statute refers to a "hearing," it is clear that the purpose of that hearing is merely to gather information to facilitate the Board's investigation. "It shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which the Board or the regional director may discharge their duties under section 9(c) of the act." 29 C.F.R. Sec. 102.64(a) (1981) (emphasis in original). If a representation question exists the Board "shall direct an election by secret ballot and shall certify the results thereof." 29 U.S.C. Sec. 159(c)(1). The Act contains no provision for direct judicial review. Congress made the deliberate choice of insulating those proceedings from direct judicial review so as to prevent attrition of union support caused by delay in the commencement of collective bargaining. Boire v. Greyhound Corp., 376 U.S. 473, 478-79, 84 S.Ct. 894, 897, 11 L.Ed.2d 849 (1964). Instead the Act provides: 22 Whenever an order of the Board made pursuant to section 160(c) of this title is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection (e) or (f) of section 160 of this title, and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript. 23 29 U.S.C. Sec. 159(d). This is the only statutory provision dealing with judicial review of representation questions. It does not deal with election irregularities in a consent election. Investigations under section 9(c) are directed only to such issues as the substantiality of union support and the appropriateness of the bargaining unit; questions which are mooted by a consent election agreement. Such elections are conducted "in conformity with regulations and rules of decision of the Board." 29 U.S.C. Sec. 159(c)(4). 24 Under the rules adopted by the Board as of 1981 for the conduct of elections, 29 C.F.R. Sec. 102.69 (1981), "[w]ithin 5 days after the tally of ballots has been furnished, any party may file with the regional director ... objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor." 29 C.F.R. Sec. 102.69(a). If such objections are filed "the regional director shall, consistent with the provisions of Sec. 102.69(d) investigate such objections" and prepare a report for the Board. 29 C.F.R. Sec. 102.69(c). That report "may be on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which, in the exercise of his reasonable discretion, he determines may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer." 29 C.F.R. Sec. 102.69(d).3 25 If the regional director exercises his discretion in favor of a hearing, that hearing "shall be conducted in accordance with the provisions of Secs. 102.64, 102.65, and 102.66, insofar as applicable, except that at the close of such hearing, the hearing officer shall, if directed by the regional director, prepare and cause to be served on the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the issues." 29 C.F.R. Sec. 102.69(e). The cross-reference to sections 102.64, 65 and 66 is to the procedures for conducting a section 159(c) investigation. But whereas in a section 159(c) investigation the role of the hearing officer is merely to gather information, not to resolve credibility issues or make recommendations, the election procedure permits the hearing officer to do so if the regional director so elects. Thus a second element of discretion is added to the regional director's initial discretion with respect to holding a hearing. 26 The option of a hearing with respect to objections to the conduct of an election, then, is solely a creature of the Board's rulemaking authority. Nothing in the statute mandates it. Moreover in drafting 29 C.F.R. Sec. 102.69(d) the Board was careful not to track the language of Fed.R.Civ.P. 56(c), authorizing summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Instead the Board provided that the regional director had discretion to determine whether or not a given issue of fact could be better resolved by an investigation rather than a hearing. That approach in drafting the rule dealing with challenges to the conduct of elections is consistent with the intention of Congress, which, in section 159(c), chose an inquisitorial model of procedure in the certification of bargaining representatives. In section 160, by contrast, Congress provided for a classic adversarial model of procedure in which any "proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States." 29 U.S.C. Sec. 160(b) (1976). 27 Following an investigation the regional director must file a report to the Board, to which any party may file exceptions with a supporting brief. "In a case involving a consent election ..., if exceptions are filed ... and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record, or may make other disposition of the case. If it appears to the Board that such exceptions raise substantial and material factual issues, the Board may direct the regional director or other agent of the Board to issue ... a notice of hearing on said exceptions before a hearing officer." 29 C.F.R. Sec. 102.69(f). As in the case of a hearing directed by a regional director, the Board has discretion to direct the hearing officer to resolve questions of credibility and make findings of fact and recommendations. Id. Thus there is superimposed upon the discretion vested in the regional directors a second level of discretion in the Board, to decide whether or not a hearing will facilitate its investigation into election irregularities. 28 Reasons for the distinction in procedural models between certification proceedings and unfair labor practice proceedings relate to the respective rights involved. If a majority in an appropriate bargaining unit chooses a collective bargaining representative the employer has no right to withhold recognition. Thus the essential dispute in a section 159 certification proceeding is between competing groups of employees, and the sole object of the proceeding is the safeguarding of majority free choice. An inquisitorial or investigatory model is well suited to that end. In an unfair labor practice proceeding, on the other hand, the employer, or a labor organization, is charged by the government with the violation of a statutory duty, and Congress obviously believed that the safeguards of the Federal Rules of Civil Procedure, including Rule 56(c), were necessary. And in casting 29 C.F.R. Sec. 102.69(d) in terms of discretion to conduct a hearing rather than an investigation, the Board chose simply to give the neutral regional directors an additional inquisitorial tool which they can use, in their discretion, to aid in making an informed decision as to whether, as between competing groups of employees, the election represents the voice of the majority. It made the same choice with respect to its consideration of exceptions to the regional director's report. 29 While section 159(d) makes express provision for limited judicial review of section 159(c) investigations, it makes no reference to the review of issues arising with respect to election procedures. Thus it is not clear on the face of the statute that judicial review was intended in a section 160 enforcement proceeding with respect to any issues other than those arising in a section 159(c) investigation. The Supreme Court cases construing section 159(d) all involve bargaining unit determinations, which present the most typical section 159(c) issue. NLRB v. Metropolitan Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). See also NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir.1966); NLRB v. Capital Bakers, Inc., 351 F.2d 45 (3d Cir.1965). Nevertheless this court, without considering the possible distinction between section 159(c) issues and election conduct issues, considered on the merits an objection that the Board erred in failing to hold a hearing about the atmosphere surrounding an election. In that case we held that "[t]he Board is entitled to rely upon its expertise in reaching its conclusion" that a hearing was unnecessary. NLRB v. Clearfield Cheese Company, 322 F.2d 89, 94 (3d Cir.1963). Since Clearfield Cheese we have assumed that we have authority from some source to review the Board's election dispute dispositions. See Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir.1981) (election misconduct); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981) (election misconduct); Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3d Cir.1981) (election misconduct); NLRB v. Campbell Products Dept., 623 F.2d 876 (3d Cir.1980) (election misconduct); NLRB v. Staiman Bros., 466 F.2d 564 (3d Cir.1972) (eligibility to vote); NLRB v. El-Ge Potato Chip Co., 427 F.2d 903 (3d Cir.1970) (eligibility to vote). The voter eligibility cases, which involve membership in the bargaining unit, involve issues which would ordinarily arise in a section 159(c) proceeding, and thus have a rather strong claim for judicial review on the authority of section 159(d). Our statutory authority to review Board resolutions of electioneering misconduct disputes in unfair labor practice enforcement cases is considerably less apparent. Nevertheless our undertaking to do so involves a not unreasonable interpretation of the interrelationship between section 159(c)(4) and section 160(f). In the absence of an objection by the Board to the exercise of that authority, we assume that some form of judicial review with respect to election misconduct is available. Our inquiry is narrower: what is the scope of such review when the Board decides not to require an evidentiary hearing. 30 To put that inquiry in focus we must consider the nature of the three charges on which ARA relies, and the substantive law to which they are addressed. The charges are of threats designed to produce a vote in favor of the union, and a promise designed to induce such a vote, and of inadequate supervision of the balloting. The first two involve allegedly coercive electioneering and may be considered together. 1. The Coercion Claim 31 All of the law with respect to the atmosphere to be maintained in an election campaign is Board-made under the lawmaking authority delegated to it by Congress. Thus the courts must ordinarily defer to the Board's policy judgments respecting the conduct which will be deemed so coercive as to interfere with employee free choice. Traditionally the Board has been reluctant to set aside elections because of misconduct by third parties, as compared with agents of an employer or a union. See, e.g., NLRB v. Aaron Bros. Corp., 563 F.2d 409, 412 (9th Cir.1977) (per curiam); NLRB v. Bostik Div., USM Corp., 517 F.2d 971 (6th Cir.1975); NLRB v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir.1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1357, 25 L.Ed.2d 649 (1970). One reason for the Board's approach is that coercion by an employer or a labor organization in the choice of a bargaining representative is itself an unfair labor practice, prohibited by section 158(a)(1), (b)(1).4 Another is that setting aside an election is an effective deterrent to misconduct by an employer or a union, while it is no deterrent to third parties. There is, therefore, no assurance that a second election will be held in an improved atmosphere. See NLRB v. Staub Cleaners, Inc. Another reason is that the Board, with judicial concurrence, has always accorded less weight to conduct which is attributable to neither the Union nor the employer. Threats of fellow employees are deemed to be less coercive than those of agents of a union or an employer who may have the wherewithal to effectuate them. Employees, moreover, are credited with the ability, from experience in the workplace, to give appropriate weight to possibly impulsive statements of fellow employees in the heat of a campaign. NLRB v. Sauk Valley Manufacturing Co., 486 F.2d 1127, 1131 n. 5 (9th Cir.1973); see also NLRB v. Aaron Bros. Corp., 563 F.2d at 412; NLRB v. Bostik Div., USM Corp., 517 F.2d at 975. Perhaps the most important reason for scrutinizing mere employee misconduct by a lower standard than is applied to misconduct by agents of an employer or a union is that expressions of temper and passion may reflect the reality that in a contested election friction is inevitable. Given the nature of inter-employee relations, the Board cannot realistically be expected to create a totally frictionless election environment. See Polymers, Inc. v. NLRB, 414 F.2d 999, 1004 (2d Cir.1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970); NLRB v. Monroe Automotive Equip. Co., 470 F.2d 1329, 1332 (5th Cir.1972), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973). Indeed, insisting that there be no give and take among employees on the subject of the desirability of collective bargaining would in itself be an undue interference with informed employee democracy. Thus the Board's policy of giving lesser weight to instances of third-party misconduct in an electioneering context bears a rational relationship to the underlying policies of the Act, and this court must accept the Board's judgment. 32 Accepting the Board's judgment in this respect narrows the inquiry still further, for in this instance the regional director's report assumes that Fusco and Reisner may have made the threats attributable to them, and that some of the girls in the plant promised Smith a belated birthday gift. Two questions remain: (1) was an evidentiary hearing required as to whether Fusco, Reisner, and the birthday girls were union agents; and (2) if not, were the threats or promises such as to require, as a matter of law that the election be set aside. If the second question were to be answered affirmatively a hearing might be appropriate to resolve outstanding credibility issues, since Fusco and Reisner denied the threats, and Smith recanted part of his unsworn statement. 33 ARA contends that the failure to hold an evidentiary hearing as to the agency status of Reisner, Fusco, and the birthday girls violated its due process right, which it equates with the standards for evidentiary hearings in Fed.R.Civ.P. 56(c). We reject that contention. The strict standard of Rule 56(c) is derived not from the due process clause of the fifth amendment, but from the seventh amendment. It could be changed with respect to proceedings in which jury trial is not required. What sort of factual investigation is required by due process depends upon a number of variables. See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267 (1975). Certainly the inquisitorial model of procedure selected by Congress for certification matters in section 159(c) of the Act satisfies due process even though the hearing officer, under 29 C.F.R. Sec. 102.64(a) merely reports, without resolving credibility issues or making recommendations. A fortiori investigations of election irregularities, which are entirely creatures of Board regulation, do not require evidentiary hearings satisfying Rule 56(c) standards. The governmental policy being implemented is employee free choice of bargaining representative, not employer freedom from collective bargaining. Board supervision and Board investigation with no provision for a hearing on employer complaints would be perfectly consistent with due process for employers. There are instances in which due process requires that an agency afford an adversarial mode of procedure and an evidentiary hearing, in preference to an ex parte inquisitorial process. Determining the basic fairness of an election, however, is not such an instance. At most what we are dealing with in this case is non-constitutional judge-made administrative law with respect to agency conduct, specifically the rule that an agency must generally apply its own rules in a manner that is not arbitrary, capricious, or an abuse of discretion. 34 There was no such abuse here. The Board's rule on election challenges directs the regional director to refer an election challenge to a hearing officer only if he concludes that it raises "substantial and material factual issues." The only material factual issue raised by the statements of Woodruff and Smith was the status of Reisner, Fusco, and the birthday girls as agents of the union. The only "evidence" of such agency status is the interlineation in Woodruff's statement of the words "two pro-union spokesmen" and Smith's attribution of the promise of a birthday gift to "several of the pro union girls." The regional director's ex parte investigation produced no evidence of agency status of these persons. Even if the Board's rules had adopted the "no genuine issue of material fact" standard of Rule 56(c), it is questionable whether ARA, by furnishing the statements of Woodruff and Smith, raised such an issue as to agency status. But certainly it was not an abuse of discretion for the regional director to conclude that no "substantial and material factual issue" as to that status was raised. The Board, when it reviewed the regional director's report and recommendation, was required to consider whether ARA's exceptions raised substantial and material factual issues. An examination of them discloses that they add nothing to what the regional director had before him. Thus its decision to decide the certification question on the record made by the regional director cannot be held to be an abuse of discretion. 35 Since the regional director and the Board properly treated the allegedly coercive statements as third party statements, we could deny enforcement only if we believed that assuming they were made they required setting aside the election. Patently the facetious promise by the birthday girls is a trivial matter. As to the threats of Reisner and Fusco, we have recognized that threats by third parties can create such an atmosphere of intimidation and coercion that a fair election cannot be held. Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3d Cir.1981). In the Zeigler case, however, there was a hearing at the regional director level, and as authorized by 29 C.F.R. Sec. 102.69(e), the hearing officer made credibility determinations. That officer, having heard the witnesses, concluded that there was a general atmosphere of fear and intimidation. The Board, however, with no evidentiary support, rejected the credibility determinations and factual findings which its own regulations authorized the hearing officer to make. Clearly Zeiglers involved an abuse of discretion by the Board in rejecting the hearing officer's findings without explanation or evidentiary support. In this instance, however, both the regional director and the Board ruled that if the threats were made they had no material effect on the election. Woodruff, we note, did not allege that he was influenced by the threats. Considering that the law respecting electioneering atmosphere is Board-made law, and that the regional directors and the Board have far more expertise in judging the effect of threats on employee free choice than we do, we cannot say that these rulings were an abuse of discretion. That being the case there was no need for an evidentiary hearing to resolve the credibility dispute between Woodruff, and Reisner and Fusco over whether the threats were made. 36 ARA contends that our decisions in Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981), and Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir.1981), require a different conclusion. In Anchor Inns we reviewed a record in which there was nothing disclosing why the regional director's ex parte investigation was sufficient to overcome a strong prima facie case of coercion of a sufficient number of voters to change the result of the election. Board certification in that case, without further inquiry, was an abuse of discretion. The opinion is not precise with respect to the scope of our review, but should not be read as inconsistent with the abuse of discretion standard we apply in this case. The result in Season-All probably is consistent with that standard, because of the Board's Michem rule that electioneering by an agent of an employer or a union at a polling place during balloting is a per se ground for setting aside an election. Michem, Inc., 170 NLRB 362 (1968). The regional director's report in Season-All "did not comment on the conflicting evidence as to Sadler's [agency] status." 654 F.2d at 937. Disregarding that patently significant material fact issue violated the Board's rules, and was an abuse of discretion. Anything in the Season-All opinion which suggests that it announces a different standard of review than we have applied in this in banc case must in the future be disregarded. 2. The Inadequate Supervision Claim 37 The Board's rules governing elections provides that secret ballot elections shall be conducted under the supervision of a regional director. Any party may be represented by observers of its selection. The parties and Board agents may challenge the eligibility of any person to participate. 29 C.F.R. Sec. 102.69(a). Obviously it is proper, and even necessary, for observers not personally acquainted with every member of the bargaining unit to require identification. Thus the references in Colavito's statement about some of the activities of the Union agent Mary Ann Ysebaert in making such inquiries do not suggest conduct which is in any way improper. 38 The Board has held that actions by its agents tending to destroy confidence in election processes or to compromise its neutrality may be a basis for setting aside an election. See, e.g., Glacier Packing Co., Inc., 210 NLRB 571 (1974); Kerona Plastics Extrusion Co., 196 NLRB 1120 (1972). But the test is not whether optimum practices were followed, but whether on all the facts the manner in which the election was held raises a reasonable doubt as to its validity. Polymers, Inc., 174 NLRB 282, 283 (1969). Here the Board's ex parte investigation revealed that the Board's standard practice respecting notice, identification of observers and agents, instructions to observers, and identification of eligible voters was followed. The vague suggestion in Colavito's statement that it was her impression that the Union observer acted too officiously does not present a substantial and material factual issue as to the fairness of the election requiring an evidentiary hearing. Moreover the statement does not, itself, assuming its accuracy, require that a new election be held. ARA's exceptions to the regional director's report and recommendations adds nothing to Colavito's statement. 39 To summarize, the regional director in preparing his report and recommendation on ARA's objections to the election in reliance on his ex parte investigation rather than an evidentiary hearing did not abuse his discretion, and the Board, in considering ARA's exceptions to that report did not abuse its discretion. Both acted consistently with the standards set out in the rules governing election challenges. B. The Incomplete Record Contention 40 ARA's second objection to enforcement is that the regional director, in transmitting his report and recommendation to the Board, failed to include the affidavits or statements taken during the course of his ex parte investigation. It is the Board's position that the regional director has no obligation to include such materials in a report on an ex parte investigation of objections to an election. Odum Sausage Co., 256 NLRB 284, 107 LRRM 1226 (1981). That interpretation seems consistent with the text of the governing regulation. 28 C.F.R. Sec. 102.69(g). 41 We may not decide the question in this case, however, because "[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. Sec. 160(e). Neither in its exceptions to the regional director's report nor in its motion for reconsideration of the certification order nor in its answer to the general counsel's unfair practice complaint, nor in its opposition to the general counsel's motion for summary judgment was this contention mentioned. Whatever may be its merits we may not consider it. E.g., NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 347, 7 L.Ed.2d 312 (1961). III. Conclusion 42 Since both of ARA's objections to certification of the Union are without merit, and it tenders no other reason for its refusal to bargain, the Board's order will be enforced in full. 43 ADAMS, Circuit Judge, concurring. 44 I concur with the majority, but believe that certain issues raised by the dissent merit additional comment. 45 At bottom, this case turns on the relationship between an administrative agency's internal procedures and the standard of review by an appellate court. Because judicial review provides an inappropriate occasion for the imposition of court-crafted rules regulating intra-agency procedures, I join the majority in ruling that the order of the National Labor Relations Board must be enforced. 46 Undoubtedly, arguments may be advanced, perhaps even persuasively, for the use of full adversarial proceedings rather than agency investigations when representation election impropriety is alleged. Unless procedural preference rises to the level of constitutional imperative, however, the decision whether to utilize an investigation or to employ a full hearing is best left to the discretion of the NLRB. There can be no mistaking the Supreme Court's instruction that "absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). 47 We may not deny enforcement of a bargaining order merely because we would prefer another result, or even because we believe that the NLRA could be read to support a conclusion contrary to that adopted by the Board. Rather, we are mandated to enforce orders of the Board so long as "the Board's construction ..., while it may not be required by the Act, is at least permissible under it...." NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983), citing NRLB v. Weingarten, 420 U.S. 251, 266-67, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975). See NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963); Giacalone v. NLRB, 682 F.2d 427, 430 (3d Cir.1982). 48 My dissenting colleagues, particularly in section III A of their opinion, seek to substitute the summary judgment standard drawn from Rule 56 of the Fed.R.Civ.Pro. for the NLRB's discretionary approach to evidentiary hearings of this nature. Such a standard would require a full evidentiary hearing whenever a colorable claim of an election interference is raised before the Board. The Board's amended regulation, to which the dissent ascribes great importance, provides only that the NLRB's regional director "may act upon the basis of an administrative investigation or upon the record of a hearing before a hearing officer" and that such discretion is left to the regional director's determination whether the allegations "raise substantial and material factual issues." 29 C.F.R. Sec. 102.69(d) (1982). In the situation here, there is no claim that the alleged threats were made by the union or its representatives, and the investigation makes it clear that neither the union nor its representatives were involved. 49 Although hearings frequently serve a useful purpose, requiring a hearing regardless of the factual setting promotes undue delay in the administrative process at the expense of the freedom of choice of the workers. Season-All Industries, Inc. v. NLRB, 654 F.2d 932, 942 (3d Cir.1981) (Adams, J., dissenting). Almost four years have now passed since the employees of ARA sought to avail themselves of the right to collective bargaining guaranteed by the National Labor Relations Act. Given the sparseness of the factual challenge and the fact that an independent investigation disclosed nothing to augment the unverified statement of one employee, I decline to join in an endeavor that would make this already cumbersome process any more protracted. Appellate courts must be mindful of the capacity of legal and administrative delay to frustrate the statutory rights afforded employees under the NLRA. 50 GARTH, Circuit Judge, dissenting, with whom HUNTER, WEIS and BECKER, Circuit Judges, join. 51 I cannot agree with the opinion announcing the judgment of the court for at least two major reasons. First, that opinion gives no recognition to the principle that all elections, including representation elections, should be conducted under laboratory conditions--"as nearly ideal as possible,"1 so that employees may make a free and fair choice of a bargaining representative if they desire one. Thus it discounts those cases, including the Board's own decisions, which have set aside elections where employees have been subjected to fear and intimidation. Second, Judge Gibbons, in announcing the opinion of the court, ascribes to Congress an intention to permit Regional Directors, and then the Board, an almost unreviewable discretion in the determination of objections raised to an election. The opinion compounds that error by failing to give proper recognition to the Board's own regulations and by failing to announce a standard by which such discretionary determinations may be measured.2A. 52 In Judge Gibbons' opinion, he states that, under now repealed regulations of the NLRB,3 the Board is not required to hold a hearing even if "substantial and material factual issues" exist. This is so even if resolution of the issue turns on credibility determinations of the witnesses for the contesting parties. That principle ignores the fact that the election results at issue here, turned upon one vote and that the alleged election irregularity involved threats of violence and retaliation. 53 I believe that under the principles enunciated by the Supreme Court in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) and United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 2 L.Ed. 49 (1801), we are bound to apply the revised regulations of the Board to a case still on appeal, which require a hearing when factual issues are disputed, rather than those in effect before September 15, 1981. I also believe that, pursuant to 29 C.F.R. Sec. 102.69(d) (1982), and the fairness requirements of the due process clause, ARA should have been afforded a hearing on its objections with respect to Woodruff's crucial vote. It is clear to me that Woodruff's statement--that two pro-union spokesmen threatened him with violence and retaliation unless he voted for the union--raised "substantial and material issues of fact" which, if believed, would warrant setting aside the election as a matter of law. Further, even if I were to apply the now superseded regulations in existence at the time ARA's objections were filed, I could only conclude, on the basis of the reasoned opinions of other courts of appeals, including this court's previous decisions which have been accepted and relied upon by other circuits, that ARA was entitled to a hearing with respect to Woodruff's charges. 54 Because Judge Gibbons' opinion fails to apply the regulation now in force, adopts a standard of review of the now repealed regulation inconsistent with the Board's own interpretation (see n. 5 infra ) and inconsistent with that adopted by other courts of appeals, and incorrectly concludes that Woodruff's statement did not raise "substantial and material factual issues" with respect to the union status of Reisner, and Fusco, or independently, with respect to whether the threats, if actually made, created an atmosphere of fear rendering a fair election impossible, I would deny enforcement to the Board's order and remand the case for an evidentiary hearing. It is for these reasons that I have not joined Judge Gibbons' opinion announcing the judgment of the court and respectfully dissent. I. A. 55 Over 180 years ago, Chief Justice Marshall explained that: 56 [I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. 57 United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 110, 2 L.Ed. 49 (1801). The Supreme Court has never deviated from this teaching. See Cort v. Ash, 422 U.S. 66, 74-77, 95 S.Ct. 2080, 2086-87, 45 L.Ed.2d 26 (1975) (a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary); Bradley v. Richmond School Board, 416 U.S. 696, 711-716, 94 S.Ct. 2006, 2016-19, 40 L.Ed.2d 476 (1974) (change in the law must be given effect unless there was a clear indication that it was not to apply in pending cases). 58 In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the Supreme Court made plain that the rule of Schooner Peggy applies with equal force "where the change is made by an administrative agency acting pursuant to legislative authorization." Thorpe, supra, 393 U.S. at 282, 89 S.Ct. at 526.4 Thorpe also "stands for the proposition that even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." Bradley, supra, 416 U.S. at 715, 94 S.Ct. at 2018. Applying the standard enunciated in Thorpe to the present case, it is manifest to me that we must apply the Board regulations in effect after September 15, 1981, as amended.5 B. 59 The Board itself has provided us with an interpretation of the amended regulation 29 C.F.R. Sec. 102.69(d) (1982).6 This interpretation was made so as to make the Board's application of its regulation consonant with that of the various courts of appeal. The Board stated that: 60 In N.L.R.B. v. Claxton Manufacturing Company, Inc., 613 F.2d 1364, 103 LRRM 2980 (5th Cir.1980), the court held that due process requires that a hearing be conducted when the losing party files evidence that, prima facie, raises substantial and material issues that would warrant setting aside the election. In addition, the court held that when the objecting party had established a right to a hearing, the Regional Director's "investigation of the objections was not a substitute for it. The hearing may not be denied on the basis of new information obtained ex parte by the Regional Director." The court added that the Regional Director "must make available relevant information discovered in the course of his investigation, at least to the extent that [an objecting party] has pointed him toward it, whether it favors the successful party or the objector and regardless of whether it was referred to by the objector's affidavits or is independently turned up by the investigation." 61 Due in part to the opinion in Claxton, supra, and other similar court decisions like it, the Board reexamined its procedures for disposing of postelection objections to the conduct of elections. On September 15, 1981, the Board amended its Rules and Regulations at 29 CFR Sections 102.68 and 102.69 pertaining to procedures applicable to disposition of objections to an election. Therein the Board acknowledged the criticism by the courts of the Board's failure to hold hearings on election objections in a situation when, in the opinions of the courts, the "substantial and material factual issues" standards of the Board's Rules and Regulations required it to do so. The revisions in the Board's Rules and Regulations make clear that ex parte investigations are not to be used to resolve "substantial and material factual issues" particularly where the factual issues turn on credibility. Rather the rules specifically provide that a hearing "shall be conducted with respect to those objections or challenges which the Regional Director concludes raise substantial and material factual issues." Section 102.69(d). 62 In this proceeding, as noted supra, the Employer has supplied affidavits to the Regional Director which show that an employee was the victim of a threat on his life from someone who purported to be a representative of the International. The asserted threat came sometime after the victim expressed his support for the Employer to his fellow employees. Although the record suggests that only two unit employees, Miller and his son, may have known about the threat before the election, the Board has held that in the reality of industrial life a serious threat, though made to a single employee, will affect other employees in the selection of a union as it will be inevitably discussed by them.3 In this case, we find that the record contains inconsistent statements with respect to the circumstances surrounding the alleged threat. The resolution of these conflicts by the Regional Director was improper and requires that we remand this proceeding for further hearing.4 Accordingly, we shall remand 63 3. General Stencils, Inc., 195 NLRB 1109, 79 LRRM 1608 (1972). 64 4. See Anchor Inns, Inc., d/b/a Anchor Inn Hotel of St. Croix, 644 F.2d 292, 106 LRRM 2860 (3d Cir.1981); Claxton Manufacturing, supra. 65 this proceeding to the Regional Director for him to arrange a hearing on the Employer's Objection 1. 66 Erie Coke & Chemical Co., 261 N.L.R.B. No. 8, 109 L.R.R.M. 1373, 1374.7 Therefore, Judge Gibbons' conclusion that, under the law applicable in this case, the Regional Director could deny a hearing even in the face of "substantial and material issues of fact," must fall. As the Board itself has made clear, under the 1981 amendments8 to the regulations, the Regional Director could not resolve the factual conflict without an adversary hearing between the Union's position on the one hand, and the Company's Objection and Woodruff's statement on the other. A hearing is required whenever the objecting party establishes the existence of factual disputes of a substantial and material nature which, if resolved in its favor, would warrant setting aside the election. II. A. 67 Even if the regulation in force at the time that ARA filed its election objections were to govern the resolution of this case, it is plain to me that a hearing was required in this case because "substantial and material issues of fact" were raised by ARA. Judge Gibbons' opinion has construed 29 C.F.R. Sec. 102.69(d) (1981) to allow the Regional Director to hold no more than an ex parte inquiry in the broad exercise of his discretion, even where "substantial and material" issues appear. Moreover, his opinion would establish the Board's discretion as the scope of review over the Regional Director's exercise of his discretion. 68 Thus the analysis outlined by Judge Gibbons has first given a virtually unreviewable status to the determinations of the Regional Director and the Board, and second, in approving this two-level discretionary review, has failed to provide any standard by which the unbridled discretion granted to the Regional Director and the Board, may be measured and thus reviewed. Such a status is at variance with the tests prescribed by other courts of appeal, and indeed, by this court notwithstanding the exposition set forth in Judge Gibbons' opinion. As I have just explained in the preceding section, even the Board itself did not, and presently would not, claim for either the Regional Director or itself, the very generous discretionary determinations which the majority has now granted to each of them. Indeed, it was the very standard which the various courts of appeal announced, that led the Board to clarify its own procedures in the 1982 regulations and those procedures, as we have noted, did no more than restate the principles inherent in the Board's earlier regulations. B. 69 The standard, for obtaining an evidentiary hearing where an election is challenged, as explained by the Ninth and Fifth Circuits, is representative of the standard adhered to in the other circuits. In NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th Cir.1982), the court explained that:To obtain a hearing, a party must make a prima facie showing of substantial and material factual issues that would, if true, warrant setting aside the election.... If, however, there are substantial and material factual disputes between the election report and the exceptions, a hearing is required. 70 Id., 681 F.2d at 572. Pinetree Transportation Co. v. NLRB, 686 F.2d 740 (9th Cir.1982), noted that, "[b]y 'material' we mean that the facts offered by the objecting party, if accepted as true, must warrant a conclusion in favor of that party on the issue of the validity of the election." Id., 686 F.2d at 745 (citing Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir.1981));9 see also May Department Stores v. NLRB, 707 F.2d 430, 432 (9th Cir.1983); Scintilla Power Corp. v. NLRB, 707 F.2d 419 (9th Cir.1983); NLRB v. Eskimo Radiator Manufacturing Co., 688 F.2d 1315 (9th Cir.1982); NLRB v. Belcor, Inc., 652 F.2d 856, 858-859 (9th Cir.1981). 71 The standard applied in the Fifth Circuit, announced in Claxton Manufacturing, supra, is almost identical to that applied in the Ninth Circuit. In Hickory Springs Manufacturing Co. v. NLRB, 645 F.2d 506 (5th Cir.1981) the court explained that: 72 In our circuit, it is settled that when an objector such as Hickory Springs makes out a prima facie case by its affidavits the Board must grant a hearing and may not conclude that one is unwarranted by "considering matter turned up by the regional director, ... weighing the relative factual data and ... making credibility determinations." N.L.R.B. v. Claxton Manufacturing Co., [supra, 613 F.2d at 1373]. 73 Id., 645 F.2d at 508. Acknowledging that a hearing is not required in every case to determine the validity of election objections, the court concluded that no hearing is required "where if all the facts contended for by the objecting party 'were credited no ground is shown which would warrant setting aside the election.' " Birmingham Ornamental Iron Co. v. NLRB, 615 F.2d 661, 663 (5th Cir.1980), quoting in part NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.) cert. denied 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). See NLRB v. Polyflex Co., 622 F.2d 128 (5th Cir.1980); EDS-IDAB, Inc. v. NLRB, 666 F.2d 971 (5th Cir.1982); NLRB v. Smith Industries, Inc., 403 F.2d 889, 892 (5th Cir.1968).10 This standard is the same as the standard found in our own cases. See, e.g., Anchor Inns, supra. 74 The reasons for adopting a standard that requires either the Board or the Regional Director to hold a hearing when substantial and material factual issues are raised have been well stated by the courts: 75 Had a hearing been granted in the certification process it would have sufficed as the parties would have had an opportunity to present evidence. However, the decision to deny a hearing, under the procedures followed by the Regional Director, does not represent an administrative adjudication of the issues, but can only be called a determination by the Regional Director to foreclose litigation of the issues at that time. At some point in the administrative process the employer is entitled to have an opportunity to present evidence upon which he relies and to question the evidence upon which the Board relies, and to submit this evidence for consideration by the Board and this court in proceedings to enforce or set aside the Board's order. 76 NLRB v. Commercial Letter, Inc., 455 F.2d 109, 114 (8th Cir.1972) (footnote omitted and emphasis supplied). As the Second Circuit explained in NLRB v. Bristol Spring Manufacturing Co., 579 F.2d 704 (2d Cir.1978): 77 The purpose of this hearing right is clear. Given the very limited discovery permitted in cases of this type, it is only when parties are given an opportunity to introduce evidence and examine witnesses that improprieties in the conduct of an election may be revealed. As in the case of grants of summary judgment pursuant to Fed.R.Civ.P. 56, it would be manifestly unjust to permit the entry of judgment (or, in this case, the enforcement of an NLRB order), when disputed issues of material fact remain to be settled. 78 Id., 579 F.2d at 707. Indeed, the need for a hearing is particularly acute in cases like this one, where an election is close, depending on just one vote, "and even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election." Henderson Trumbull Supply Corp. v. NLRB, Region 2, 501 F.2d 1224, 1230 (2d Cir.1974). Where, as here, the Regional Director's determination is based in part on the determination that Reisner and Fusco were credible and that Woodruff, the threatened employee, was not to be believed on the basis of affidavits submitted by the parties, it is clear to me that considerations of fundamental fairness required that the Company be given the opportunity to subject Reisner and Fusco to "the cleansing rigors of cross-examination." NLRB v. Winburn Tile Manufacturing Co., 663 F.2d 44, 47 (8th Cir.1981). See NLRB v. Sun Drug Co., 359 F.2d 408, 414-415 (3d Cir.1966); Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir.1981); NLRB v. Tennessee Packers, Inc. Frosty Morn Division, 379 F.2d 172, 177-182 (6th Cir.1967). 79 Moreover, Judge Gibbons' opinion in departing from the standard established by our prior cases, (Sun Drug Co., Anchor Inns, and NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir.1980)) and by other courts, provides no parameters for the broad discretion which it claims is vested in the Regional Director and the Board. Nor does the opinion identify any principles by which that broad grant of discretion may be tested or reviewed. Thus in future exercises, where the Board's determinations are sought to be enforced or denied, courts will undoubtedly find the analysis contained in the opinion announcing the judgment of the court to be unworkable, and one which will inevitably lead to inconsistent and irreconcilable panel decisions.11 C. 80 The question must then be asked: if a hearing had established the facts alleged by the Company and Woodruff, or if the Regional Director had accepted those facts as true, would the challenged conduct warrant setting the election aside? This court answered that question unequivocally in a recent opinion in which the Company claimed that threats of physical harm to voters tainted a representation election. We held that if a substantial possibility existed that threats were made to an employee-voter, thus poisoning the free and fair choice which an employee is entitled to make, the election must be set aside and a new election held. In so holding we stated: 81 The purpose of holding representation elections is to provide a means whereby workers may fairly and freely choose their bargaining representative if indeed they want one. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330 [67 S.Ct. 324, 327, 91 L.Ed. 322] (1946). A representation election should be "a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees." General Shoe Corp., 77 NLRB 124, 127 (1948) quoted in Monmouth Medical Center v. NLRB, 604 F.2d 820, 824 (3d Cir.1979). The Board has an obligation to insure that an election is held "under such conditions as will be conducive to the sort of free and untrammeled choice of representatives contemplated by the Act." Methodist Home v. NLRB, 596 F.2d 1173, 1183 (4th Cir.1979). 82 ... Not every election that fails to achieve perfection should be set aside, otherwise the employees' choice of a representative might never be accomplished, because a never-ending series of challenges to elections could be foreseen. Though we are reluctant to accept less-than-perfect conditions in the election process, we will do so, but only where no coercive conduct has poisoned the fair and free choice which employees are entitled to make. Hence, extreme care must be taken that the laboratory conditions have not become so tainted that employees may have based their vote not upon conviction, but upon fear or upon any other improperly induced consideration. The Board and the courts have emphasized that the existence of a coercive atmosphere, regardless of how such an atmosphere came about, is the critical fact upon which the Board should focus in determining whether a fair and free election was impossible. Diamond State Poultry Co., 107 NLRB 3, 6 (1953); Cross Baking Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir.1971). Thus, if it is determined that a substantial possibility existed that the threats affected the outcome of the election, a new election must be held. 83 Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1004-05 (3d Cir.1981). D. 84 Therefore, I can only conclude that the standard we set out in Sun Drug Co., Campbell Products Department, and Anchor Inns, is the only appropriate standard to be applied in reviewing denials of evidentiary hearings pursuant to the regulations in existence before September 15, 1981. Consequently, it is manifest to me that ARA was entitled to a hearing if it raised "substantial and material factual issues" before the Regional Director in its objections, or before the Board in its exceptions to the Regional Director's report under the regulations as they existed prior to September 15, 1981, or after that date. As the discussion below makes plain, ARA raised such "substantial and material factual issues" before the Regional Director. ARA's factual allegations, if believed, would warrant setting aside the election on the grounds that threats of violence had tainted the election. Zieglers Refuse, supra. As such, the Board was required to have afforded ARA an evidentiary hearing on its objections with respect to Woodruff's vote. III. 85 During the certification proceedings in question here, ARA objected to the election, claiming conduct which coerced employees. It supported that objection by a statement of an employee, Kevin Woodruff, which was filed with the Regional Director. 86 In its application for enforcement the Board contends that the Regional Director assumed the truth of the facts as alleged by ARA, and that ARA's objection and Woodruff's statement did not establish a prima facie case which would warrant setting aside the election or which would entitle ARA to a hearing. According to the Board, the threats of physical harm alleged by ARA did not establish a prima facie case since there was no evidence that the employees charged with the intimidating conduct were Union agents or acted at the behest of the Union. The opinion announcing the judgment of the court has accepted these arguments uncritically. A. 87 The handwritten statement of employee Kevin Woodruff, as submitted by ARA, reads in relevant part: 88 Paul Reisner and Enso Fusco, two pro-union spokesmen, on two different occasions, before the voting took place, told me that I should go along with the Union. Enso said he'd "beat me up" if I did not join the Union. Paul Reisner told me he'd "get back at me" if I didn't join the Union. 89 I told John Connors, a dishwasher, that Reisner had threatened me that he'd "get back at me" if I didn't join the Union. Connors voted in the election. 90 I was worried the Union might get back at me because they have a powerful Union. The Union man, a big, tall guy, who was here for the vote, said there would be an all-out strike--no food, no jobs, that the trucks would be prevented from delivering food and no one would be able to come to work. Fusco was present when the Union official made this comment. Fusco said to me that I better vote yes. Fusco and some of the others told me that if I didn't vote for the Union, nobody would be my friend or talk to me. Sue Nicastro was with Fusco when he told me I'd be a social outcast if I voted against the Union. Duke was also with them. 91 (A. 34-35). 92 In addition, as Judge Gibbons' opinion correctly reports, "When interviewed Woodruff apparently reiterated the charge that Fusco threatened to beat him up. He also enlarged upon the charge that Reisner, an assistant chef, threatened to get back at him, stating that this threat was made after Reisner had learned Woodruff had disclosed a union campaign letter to a supervisor." Typescript at 6. 93 The Regional Director's report concluded that the Woodruff statement was not sufficient to support ARA's objection because none of the threats made by Fusco nor Reisner could be attributed to the Union. His report states: 94 The investigation revealed that neither Fusco nor Reissner [sic] were identified as prominent Union partisans in the pre-election period, neither distributed or collected authorization cards or acted as election observers.... Employees other than both Fusco and Reissner [sic], have been identified as having established initial contact with [the Union], distributing, collecting and returning authorization cards on behalf of Petitioner, and serving as active members of an organizing committee.... 95 ... I find that neither Fusco nor Reissner [sic] were agents of the Petitioner at any time material herein, and therefore, Petitioner cannot be held liable for their alleged statements even if made. 96 (A. 12-13). 97 However, Woodruff claimed that the threats were voiced by specific "Union spokesmen." Such an allegation was at least sufficient to raise a substantial factual issue as to the status of Reisner and Fusco, the two spokesmen identified by Woodruff.12 Moreover, the Company's Objection specifically claimed that the "[u]nion by its officers [and] agents ... threatened employees with physical harm" and other reprisals if they voted against the Union. Thus, at the very least, the issue of Reisner's and Fusco's status as Union agents was raised by the Company's submissions.13 98 Woodruff's statement, without more, readily satisfied the requirements for obtaining an evidentiary hearing. "In order to obtain an evidentiary hearing, the objector's proffer of evidence must prima facie warrant setting aside the election. The proffer may not be conclusory or vague; it must point to specific events and specific people." Anchor-Inns, 644 F.2d at 297; see also Pinetree Transportation Co. v. NLRB, 686 F.2d 740, 744 (9th Cir.1982); NLRB v. Claxton Manufacturing Co., Inc., 613 F.2d 1364, 1366 (5th Cir.1980); NLRB v. Nixon Gear, Inc., 649 F.2d 906, 910 (2d Cir.1981). Woodruff specifically identified the "union spokesmen" involved and the threats they used. He referred to three different occasions and named employees who were present. His statement could hardly be characterized as "conclusory or vague." Indeed, in Anchor Inns a statement submitted by the Company which merely supported an inference that a Company employee was a union agent was there deemed sufficient to mandate an evidentiary hearing. See Anchor Inns, 644 F.2d at 297. In Season-All, which followed Anchor Inns, where the Company objected that an agent of the Union had engaged in electioneering outside the polls, we held that the employee's status, having been disputed, could not be resolved without an evidentiary hearing in which Season-All could participate, examine witnesses, and present evidence. 99 In the instant action, the Regional Director in his report never found that the threats alleged by Woodruff, had in fact not been made. Rather, with no input from ARA, he found that neither Fusco nor Reisner was an agent of the Union and therefore that the Union could not be held liable for their alleged threats even if made. Nor did the Regional Director or the Board ever address the question as to whether the Union had adopted or ratified Fusco's and Reisner's conduct (see n. 13 supra ). The Regional Director in his report recites the following testimony on which he based his finding: 100 1. Fusco denied that he was a Union official or authorized representative of the Union. 101 2. Fusco, while admitting conversations with Woodruff, denied threatening any co-workers, including Woodruff. 102 3. Fusco's denial is supported by other unidentified employees. 103 4. Reissner [sic] denied threatening Woodruff, although he admitted knowing that Woodruff had revealed union affairs to a supervisor and admitted advising Woodruff that it was wrong to do so. 104 5. Reissner [sic] denied acting as a Union representative. 105 6. "Neither Fusco nor Reissner [sic] were identified as prominent union partisans in the pre-election period." 106 (A. 11-13). 107 The difficulty with the position taken by the Regional Director, and then the Board, is manifest. It is clear that the findings made by the Regional Director, having been predicated upon testimony which had never been tested by cross-examination and which had been formulated without giving ARA the opportunity to adduce other evidence, cannot be accorded the weight of findings made after an evidentiary hearing in which both parties have participated. For example, the following questions occur to me: 108 Would Fusco's denial that he threatened Woodruff be as persuasive had Fusco been subjected to cross-examination? Who were the employees who were present at this conversation and what was their testimony? What did Reisner actually say to Woodruff after he, Reisner, had learned that Woodruff was revealing union affairs to a supervisor? Was Reisner's denial that he had threatened Woodruff "laundered" because his questioning was carried out only by the Regional Director without any other witnesses, including Woodruff, present? What were Fusco's and Reisner's activities or status with the union? Who was the Union official who was present at the time Woodruff claims he was threatened? What actions, if any, did he take to assure Woodruff that the Union was not behind, and did not condone, the threats made? And what were the parameters of the Regional Director's investigation that revealed that neither Fusco nor Reisner were prominent union partisans? From whom did the Regional Director seek his information? What were they asked? What did they answer?14 109 Obviously, these questions and the answers to them would impact not only upon Fusco's and Reisner's status with the Union, but they would also bear on Woodruff's perceptions of the threats which he reported. Unfortunately, with no transcript available for ARA, the Board or the reviewing court, the answer to these and similar related questions will never be known. 110 Moreover, even had the Regional Director's investigation been disclosed in detail, his findings would still be flawed because he had not assumed the truth of ARA's allegations nor were his findings the product of a hearing in which ARA participated. ARA's allegations and supporting statements presented substantial factual issues bearing on Fusco's and Reisner's status as union agents. See Anchor Inns, 644 F.2d at 296. The Regional Director, by failing to assume the truth of those allegations, erred in resolving the issues raised by ARA, where he did so, based solely on his ex parte investigation, instead of through an evidentiary hearing. See Anchor Inns, supra. B. 111 An even more critical deficiency in both the Regional Director's and the Board's treatment of ARA's allegations, and the endorsement of that treatment contained in Judge Gibbons' opinion, is the erroneous assumption that unless responsibility can be pinned on the Union for the threats charged, no evidentiary hearing can be had. In this respect, I believe both the Board and, more importantly, Judge Gibbons in his opinion has failed to focus on the crucial issue. While there can be no question that an election can be set aside where the Union itself has threatened the voters, it is also true that an election will not be sustained where threats by pro-union employees, who are not union officials or agents, create an atmosphere of fear or reprisal rendering a fair election impossible. Thus, the question which was presented by Woodruff's statement, was whether he (and perhaps others present) could vote free of fear or coercion in the face of intimidation by two alleged union spokesmen. 112 We have previously spoken to the issue of union responsibility and the weight it should be accorded. In Zeiglers Refuse Collectors Inc. v. NLRB, 639 F.2d 1000, 1007 (3d Cir.1981), we held that the controlling factor where fear or intimidation was charged by employees about to vote, was not the culpability of the Union, but rather whether a fair election could be held. In Zeiglers, a representation election was challenged, as it was here, because of threats allegedly made to prospective employee voters. Unlike the situation here, however, in Zeiglers, the Regional Director recommended that an evidentiary hearing be held on the claims of coercion. The hearing officer after taking evidence recommended a new election, even though he found that none of the threats alleged could be attributed to the Union. The Board did not accept the Hearing Officer's recommendation, overruled the employer's objections, and certified the Union which had prevailed in the challenged election. 113 We ordered the election set aside and denied the Board's petition for enforcement. In doing so, we addressed the aspect of the record which disclosed that none of the threats were attributable to the Union. 114 [W]e do not find the factor of union responsibility to be pivotal. It is merely one of many factors that the Board must appraise in determining whether a fair and free election was impossible.... 115 * * * 116 * * * 117 "We are not impressed with the argument that all coercive acts must be shown to be attributable to the union itself rather than to the rank and file of its supporters. As the Board has once said, 'The important fact is that such conditions existed and that a free election is hereby rendered impossible.' " 118 639 F.2d at 1006, quoting Home Town Foods v. NLRB, 379 F.2d 241, 244 (5th Cir.1967). Accord Methodist Home v. NLRB, 596 F.2d 1173, 1183 (4th Cir.1979). 119 In addition, we quoted with approval from Chief Judge Aldrich's opinion in Cross Baking Co. v. NLRB, 453 F.2d 1346, 1348 (1st Cir.1971): 120 The question, however, is not the culpability of the union, but whether an atmosphere of fear and coercion was created in fact. It does not follow that fear would be less effective if it had an unofficial origin. Indeed, we can visualize situations where it might be more effective. If union officials instigated violence, anti-union employees might gain adherents to get rid, once and for all, of a belligerent union by voting against it, whereas if the atmosphere was the product of co-employees, the rest of the employees might feel they were going to be left with a disagreeable situation whatever should happen in the election, and hence had best learn to live with it. 121 639 F.2d at 1007. See also NLRB v. Claxton Mfg., 613 F.2d 1364, 1371 (5th Cir.), clarified, 618 F.2d 396 (5th Cir.1980). (Even though Union won by a wide margin, 277-168, allegations of coercion by Union supporters and adherents warranted a hearing on employer's objections to election.) 122 Finally, we emphasized that the Board itself has held that the factor of union responsibility is not dispositive. 123 The issue before the Board is whether the election was conducted under such circumstances and under such conditions as were conducive to the sort of free and untrammeled choice of representatives contemplated by the Act. We hold that it was not. The election was held in such a general atmosphere of confusion and fear of reprisal as to render impossible the rational, uncoerced selection of a bargaining representative. It is not material that the fear and disorder may have been created by individual employees and non-employees and that their conduct cannot be attributed either to the Employer or to the unions. The important fact is that such conditions existed and that a free election was thereby rendered impossible. (emphasis added). 124 639 F.2d at 1006, quoting Diamond State Poultry, 107 NLRB 3, 6 (1958) (footnote omitted). 125 Since Zeiglers we have again reaffirmed that 126 [I]n establishing and maintaining the "laboratory conditions" conducive to an election, no conduct disruptive or destructive of the exercise of a voter's free choice can be tolerated, regardless of whether the actions are those of a union agent or a mere employee. 127 Season-All, 654 F.2d at 940 (emphasis added). I find it difficult to believe that the members of this court who join the instant opinion announcing the judgment of the court, intend to reject the fundamental principle of a free and fair election, by its sweeping statement that "[a]nything in the Season-All opinion which suggests that it announces a different standard of review than we have applied in this in banc case must in the future be disregarded." At 68. 128 Thus, even assuming arguendo that the Regional Director was correct in finding that Fusco and Reisner were not union agents, their conduct in threatening and intimidating Woodruff and possibly other employees, could not be tolerated, particularly in a situation where only one vote could change the outcome of the election.15 C. 129 It is argued, however, that since the Woodruff statement describes isolated incidents involving "vague" threatening statements by mere employees it is not sufficient to establish a prima facie case. This argument ignores the Board's own prior decisions which have set aside elections on the basis of threats made by pro-union employees similar to those alleged in the Woodruff statement. See, e.g., Diamond State Poultry Co., 107 NLRB 3 (1953) (election set aside because employees of an already unionized plant in several instances told Diamond employees to vote for the CIO "or something would happen"); Sonoco of Puerto Rico, 210 NLRB 493 (1974) (election set aside when union adherents threatened physical violence on four occasions if other employees did not vote for the union). In addition, evidence of a few threats of reprisals directed against one employee may be sufficient to create a "general atmosphere of fear and coercion" that warrants setting aside an election decided by one vote. See Steak House Meat Co., 206 NLRB 29 (1973) (election of union by vote of 4-3 set aside when two union adherents threatened to "kill" or "get even" with employee). 130 Crucial to my dissent in this case, is my recognition of the very narrow margin which decided the outcome of the ARA election. If indeed, Woodruff had felt menaced and had cast his vote out of fear rather than conviction, the Union's majority could not be sustained. When, as is the case here, the objections involve an extremely close election, "even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election." Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1230 (2d Cir.1974). Accord NLRB v. Nixon Gear Inc., 649 F.2d 906, 914 (2d Cir.1981). IV. 131 One of the fundamental rights under the National Labor Relations Act which the Board is charged with protecting, is the employees' right to choose their collective bargaining representative, or to refrain from collective bargaining entirely, if they so choose.16 I believe that the Board has recognized that right by ruling that substantial and material factual issues must be resolved in an adversary hearing. Judge Gibbons' opinion, however, has failed to acknowledge that principle in this case, and has also failed to furnish a workable standard by which future election objections may be measured. 132 Moreover, and of equal importance, a plurality of the court in this case, has upheld a representation election (decided by one vote) which, it has been charged, has been infected by threats of intimidation and retaliation tainting the entire election process. It has done so, without requiring the fact of those charges to be established by an adversary hearing--our time-tested and traditional method of determining truth. 133 Thus, I would deny enforcement of the Board's order and would remand this case for an evidentiary hearing--one that should have been held initially by the Regional Director when it became apparent that substantial and material facts were in issue. I therefore respectfully dissent from the opinion announcing the judgment of the court. 1 The statement in relevant part reads: I was the Company's observer during the NLRB election. Mary Ann Ysebaert was the Union observer. When the employees came into vote, Ysebaert would say "I'm sorry, but your name please, I have to do this." There were two NLRB agents, they said nothing when she did all the talking and gave the voters the impression that the Union and not the Government was running the election. Ysebaert would tell me, "Wait a minute, wait and [sic] minute," right in front of the voters, making it seem she was in charge of the voting procedure. The Board agents never stopped her from appearing to take charge of the voting [indecipherable]. Elaine Taylor, a grill employee, stated that if Mary Ann Ysebaert didn't seem to run the election, this could not have happened: Taylor told this to Beulah Boulware, who prepares sandwiches. 2 Pursuant to Section 102.69 of the Board's Rules and Regulations, ARA Services, Inc., Employer in the above-captioned proceeding, by its undersigned counsel, excepts to the Regional Director's Report on Objections (the "Report"), as follows: 1 To the failure (Report at 3) to find that the Petitioner, through its agents, supporters and adherents threatened certain employees with physical harm and social ostracism if they voted against union representation 2 To the erroneous finding (Report at 4) that Employees Fusco and Reisner did not either act with apparent authority or be perceived by unit employees as having the authority to act on behalf of the Union when they threatened certain employees with physical harm and social ostracism 3 To the erroneous conclusion by the Regional Director (Report at 3) that Employer's proffered unit employee Woodruff, failed to take the threats of physical harm and social ostracism seriously 4 To the failure to find (Report at 5-6) that the Union through its agents attempted to influence Employee Smith to vote for the Union by promising him material gifts 5 To the failure to (Report at 2-4) sustain Objection No. 1 as supported by the evidence 6 To the failure (Report at 2-4) to set aside the election on the basis of Objection No. 1 7 To the failure (Report at 2-4) to order an evidentiary hearing be conducted on the substantial material issues, including matters of testimonial credibility, raised by Objection No. 1 8 To the failure to find (Report at 6) that the conduct of Board Agent Muraskin was inadequate to create the impression that the Government and not Petitioner was in fact running the election 9 To the inaccurate finding (Report at 6) that Petitioner's observer did not influence the outcome of the election by his actions during the actual election 10 To the failure to (Report at 5-6) sustain Objection No. 2 as supported by the evidence 11 To the failure to (Report at 5-6) set aside the election on the basis of Objection No. 2 12 To the failure (Report at 5-6) to order an evidentiary hearing be conducted on the substantial and important questions raised by Objection No. 2 13 To the failure (Report at 6) to sustain both Objections, set aside the election, and/or order an evidentiary hearing be conducted 3 In 1982, the Board amended 29 C.F.R. Sec. 102.69(d) to read as follows: (d) In issuing a report on objections or challenged ballots, or both, following proceedings under Secs. 102.62(b) or 102.67, or in issuing a decision on objections or challenged ballots, or both, following proceedings under Sec. 102.67, the regional director may act on the basis of an administrative investigation or upon the record of a hearing before a hearing officer. Such hearing shall be conducted with respect to those objections or challenges which the regional director concludes raise substantial and material factual issues. Even if we were to conclude that the amended regulation should have been anticipated by the Board that would not change the outcome since the decision as to substantiality and materiality is still vested in the Regional Director in the first instance. 4 ARA did not file a section 158(b)(1) unfair labor practice charge against the Union 1 Monmouth Medical Center v. NLRB, 604 F.2d 820, 824 (3d Cir.1979) 2 I do not disagree with Judge Gibbons' disposition of the Company's second Objection, predicated upon the statement of employee Jane Colavito, the Company observer. In essence her statement amounts to no more than a bare assertion that from her viewpoint as the Company observer the conduct of the Union observer gave her the impression that the election was Union-controlled, and the Board agents never acted to negate that impression. Her statement refers to no specific misconduct by either the Board agent or the observer Nor do I disagree with the disposition of the claim that there had been an attempt to bribe an employee, one Frank Smith. The record discloses that even Smith did not take seriously the representation that "if ... [he] voted for the Union ... the Union would be giving [him] a birthday gift." Thus, as the text reveals, my principal disagreement with Judge Gibbons' opinion announcing the judgment of the court is in its treatment of the Company's major Objection, that "the Union, by its officers, agents, supporters, and adherents, threatened employees with physical harm ... if they voted against Union representation ...." 3 The regulations in effect at the time ARA Services filed its objections provided, in pertinent part: Within 5 days after the tally of ballots has been furnished, any party may file with the regional director ... objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor. 29 C.F.R. Sec. 102.69(a) (1981). Upon the filing of such objections, the Regional Director was required to investigate the objections and prepare a report for the Board. 29 C.F.R. Sec. 102.69(c) (1981). That report could be prepared on the basis of an administrative investigation or, if it appears to the Regional Director that substantial and material factual issues exist which, in the exercise of his reasonable discretion, he determines may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer. 29 C.F.R. Sec. 102.69(d) (1981) Effective September 14, 1981, the Board "restated and clarified" its procedural rules "to make clear that ex parte investigations are not to be used to resolve 'substantial and material factual issues,' particularly where the factual issues turn on credibility." 46 Fed.Reg. 45,922 (September 15, 1981). The rule now provides: In issuing a report on objections or challenged ballots, or both, following proceedings under Secs. 102.62(b) or 102.67, or in issuing a decision on objections or challenged ballots, or both, following proceedings under Sec. 102.67, the Regional Director may act on the basis of an administrative investigation or upon the record of a hearing before a hearing officer. Such hearing shall be conducted with respect to those objections or challenges which the Regional Director concludes raise substantial and material factual issues. 29 C.F.R. Sec. 102.69(d) (1982) 4 In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the Department of Housing and Urban Development (HUD) ordered a new procedural prerequisite for an eviction after it had secured a state court eviction order, affirmed by the Supreme Court of the State of North Carolina. Following a remand by the U.S. Supreme Court for such further proceedings in light of the new directive, the state court adhered to its decision. It held that since the critical events had occurred prior to the date of the circular, "[t]he rights of the parties had matured and had been determined before the directive was issued. Housing Authority of the City of Durham v. Thorpe, 271 N.C. 468, 470, 157 S.E.2d 147, 149 (1967). Upon review, the Supreme Court held that, although the circular effecting the change did not indicate whether it was to be applied to pending cases or to events that had transpired prior to its issuance, it was, nonetheless, to be applied to anyone residing in the housing project on the date of promulgation. Thorpe, supra, 393 U.S. at 282, 89 S.Ct. at 526 5 Indeed, in fashioning these changes to the regulations, the Board described them as no more than a restatement of the rule then currently in force. See 46 Fed.Reg. 45,922 (September 15, 1981) 6 See supra note 3 7 The Fifth Circuit, in NLRB v. Claxton Manufacturing Co., 613 F.2d 1364 (5th Cir.1980) also concluded that the right to a hearing, in the face of "substantial and material factual issues" was also required by the due process clause. See id., 613 F.2d at 1365, 1366. Other courts of appeal have come to the same conclusion with regard to the regulations in existence before September 15, 1981. Thus, Circuit Judge J. Skelly Wright, writing for the District of Columbia Circuit concluded that: The Regional Director's investigation and report is not an adversary proceeding or adjudication in the usual sense, and yet it may determine crucial issues of fact or mixed law and fact which will underlie a future unfair labor practice determination. Congress' presumed sense of due process tradition, if not the command of the Constitution, thus supports the principle that an adversary hearing must be held at some point in the process where genuinely contested factual issues are properly raised. International Union of Electrical, Radio and Machine Workers v. NLRB, 418 F.2d 1191, 1196 (D.C.Cir.1969); see also Pinetree Transportation Co. v. NLRB, 686 F.2d 740, 744 (9th Cir.1982); Louis-Allis Co. v. NLRB, 463 F.2d 512, 520 (7th Cir.1972); NLRB v. Commercial Letter, Inc., 455 F.2d 109, 114 (8th Cir.1972); NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.) cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). 8 The significance of amending the 1981 regulations so as to delete the clause "in the exercise of his reasonable discretion" should not be overlooked. The 1982 regulation no longer carries forward the "discretionary" clause found in the 1981 regulation, but substitutes the requirement that "[a] hearing shall be conducted with respect to those objections or challenges which the Regional Director concludes raise substantial and material factual issues." Cf. 29 C.F.R. Sec. 102.69(d) (1981) with Sec. 102.69(d) (1982), n. 3 supra. Thus, even if under the 1981 regulation discretion vested with the Regional Director to deny a hearing where substantial and material factual issues existed, that discretion is no longer available, and indeed under the Board's clarification to which I have referred in text, it was not permissible even then for such a hearing to be denied The Board itself having adopted a procedure (29 CFR Sec. 102.69(d) (1982)) requiring an evidentiary hearing in circumstances such as are presented here, we do no more than insist that the Board adhere to its own internal rules of procedure. Thus, contrary to the suggestion found in Judge Adams' concurring opinion (typescript at 1), such a requirement does not, in my view, offend any principle found in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). See NLRB v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1981) (Garth, J., concurring and dissenting). 9 The court, in May Department Stores v. NLRB, 707 F.2d 430 (9th Cir.1983) explained that: some other circuits apply a "question of law" review rather than an "abuse of discretion" review[. This] is, in this context, largely a semantic difference. Other circuits, like our court, give significant, but not unlimited, deference to the Board. See, e.g., NLRB v. Claxton Manufacturing Co., 613 F.2d 1364, 1365-66, modified, 618 F.2d 396 (5th Cir.1980). Id. at 432 n. 1. 10 It seems that, apart from the position taken by Judge Gibbons in his opinion, it is accepted that the Regional Director, or the Board must hold a hearing on objections to election proceedings that raise substantial and material factual issues which, if taken as true, would warrant the setting aside of the election Thus, the District of Columbia Circuit has held that a "hearing must be held when the objections raise 'substantial and material factual issues' which cannot be resolved on the basis of administrative investigation without a hearing." Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 828 (D.C.Cir.1970); see International Union of Electrical, Radio and Machine Workers v. NLRB, 418 F.2d 1191, 1196-97 (D.C.Cir.1969) (the Board is required to hold a hearing where substantial factual issues are raised, "especially where, as here, the Board does not allow relitigation of the validity of the election in the refusal to bargain proceedings which follow"). The standard enunciated in the Second and Fourth Circuits is closely analogous to that adopted by our court in Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir.1981) "[D]espite the broad discretion appropriately given to the NLRB in the conduct of representation elections, ... it is nevertheless the case that a party is entitled to a hearing if, by prima facie evidence, it demonstrates the existence of 'substantial and material factual issues' which, if resolved in its favor, would require the setting aside of the representation election." NLRB v. Bristol Spring Manufacturing Co., 579 F.2d 704, 706-707 (2d Cir.1978); see also NLRB v. Lance Investigation Service, Inc., 680 F.2d 1 (2d Cir.1982); NLRB v. Nixon Gear, Inc., 649 F.2d 906, 910 (2d Cir.1981); NLRB v. Hale Manufacturing Corp., 602 F.2d 244 (2d Cir.1979). "A hearing is unnecessary ... where if all the facts contended for by the objecting party 'were credited no ground is shown which would warrant setting aside the election.' " NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967), quoting in part NLRB v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 249 (5th Cir.1964); see also Newport News Shipbuilding & Dry Dock Co. v. NLRB, 594 F.2d 8 (4th Cir.1979). Other circuits have adopted similar standards. NLRB v. Fuelgas Co., Inc., 674 F.2d 529, 531 (6th Cir.1982); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 177-78 (6th Cir.), cert. denied, 389 U.S. 958 (1967); NLRB v. Katz, 701 F.2d 703, 705 (7th Cir.1983) (Board's determination can stand only if there is substantial evidence to support the conclusion that the Company failed to demonstrate a prima facie case for overturning the election [i.e., that] the Company's allegations were sufficient, if credited, to result in overturning the election.); Bauer Welding & Metal Fabricators Inc. v. NLRB, 676 F.2d 314, 316 (8th Cir.1982); NLRB v. Target Stores, Inc., 547 F.2d 421, 425 (8th Cir.1977); NLRB v. Griffith Oldsmobile, Inc., 455 F.2d 867, 868-869 (8th Cir.1972); Crown Cork & Seal Co., Inc. v. NLRB, 659 F.2d 127, 129 (10th Cir.) (Petitioner's request for an evidentiary hearing can be granted only if it "shows by prima facie evidence the existence of substantial and material factual disputes which, if resolved in its favor, would require the setting aside of the election." (quoting in part NLRB v. Whitney Museum of American Art, 636 F.2d 19, 23 (2d Cir.1980)), cert. denied, 454 U.S. 1150, 102 S.Ct. 1016, 71 L.Ed.2d 304 (1981). Prior to today's opinion announcing the judgment of the court, this court stated in NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir.1966), that: The parties are entitled to such a hearing if substantial and material factual issues are raised, and if the Board has clearly erred in denying a hearing its order will not be enforced. It is equally clear, however, that such a hearing will not be required if no such issues existed, either because the regional director and the Board have assumed the truth of the factual offer of the objecting party, or because they have reasonably concluded that the facts alleged would not constitute legal justification for setting the election aside. Id., 359 F.2d at 414; compare Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir.1981); and NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir.1980). 11 Judge Gibbons' opinion attempts to explain our earlier cases of Anchor Inns and Season-All Industries v. NLRB, 654 F.2d 932 (3d Cir.1981) by declaring that it was, for practically unstated reasons, an "abuse of discretion" in those cases for the Regional Director to have denied the objecting parties an evidentiary hearing. Typescript at 29. However, I can find no principled way to distinguish the facts of Anchor Inns, where Judge Gibbons claims that it was an abuse of discretion to deny the hearing, from the facts of this case, where Judge Gibbons opinion finds that the Board did not abuse its discretion by failing to afford ARA an evidentiary hearing on its objections. See infra, at Part III. Anchor Inns, which required an evidentiary hearing, does not even analyze or rely upon the Board's discretion as the basis for its holding. The attempt to read that case as holding that an abuse of discretion standard applied, wholly distorts the Anchor Inns holding and analysis Judge Gibbons' opinion, in seeking to reconcile Anchor Inns with his present analysis recites: "[Anchor Inns ] is not precise with respect to the scope of our review, but should not be read as inconsistent with the abuse of discretion standard we apply in this case." Typescript at 29. The standard set forth in those cases, however, could not have been clearer. The court in Anchor Inns stated quite "precisely" that the courts will insist on an evidentiary hearing when a party's objection raises substantial and material issues of fact. Quoting from our decision in Campbell Products, supra, the Anchor Inns court explained that: A party is entitled to an evidentiary hearing where its objection raises substantial and material issues of fact.... As a corollary, no hearing is necessary where the Board assumes the truth of the party's contentions, and then rules as a matter of law that, assuming the facts alleged, the challenged conduct does not warrant setting aside the election. Anchor Inns, supra, 644 F.2d at 296. Moreover, the Season-All court did no more than apply the standard set out in Campbell Products Division and Anchor Inns in determining that an evidentiary hearing was required in that case. It is significant that in all three cases--Anchor Inns, Season-All, and the present case--at least one common question is found: was the Union responsible for an employee's election misconduct as alleged by the employer? Thus, in Anchor Inns and in Season-All, an evidentiary hearing was required to determine the Union status of a company employee: Victor in Anchor Inns, and Sadler in Season-All. The three cases are thus indistinguishable. ARA is as much entitled to an evidentiary hearing to determine the union status of Reisner and Fusco, two ARA employees, as were the employers in Anchor Inns and Season-All. 12 In ATR Wire & Cable Co. v. NLRB, 671 F.2d 188 (6th Cir.1982), the employer, claiming that employees were harassed by "union proponents," filed objections to a representation election. The Sixth Circuit, observing that the "[o]ne salient fact that was directly disputed was the question of [union] agency," held that this question constituted a substantial factual issue entitling the employer to an evidentiary hearing. 671 F.2d at 190 13 The Regional Director's report also leaves unanswered the questions implicit in Woodruff's statement as to the identity of the Union official who spoke of an all-out strike and whether that official was present when Fusco and Reisner threatened Woodruff, thereby adopting or ratifying their conduct 14 As I have previously noted, neither ARA, the Board, nor we have been privy to whatever may have been reflected in the affidavits or other statements taken by the Regional Director. Such proofs were not transmitted to the Board ARA contends that by failing to include these affidavits or statements in the materials furnished to the Board, the Board could not properly consider or rule on the Regional Director's determination. See e.g. Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th Cir.1979); NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th Cir.1982). In light of the deficiencies in the record to which I have just adverted, and in light of the Regional Director's impermissible ex parte factfinding, I am troubled by the fact that the Board did not have all the relevant materials upon which the Regional Director based his ruling. See ATR Wire & Cable v. NLRB, 671 F.2d 188, 190 (6th Cir.1982) ("[T]he Board abuses its discretion by adopting a Regional Director's report if the Director fails to transmit to the Board all the evidence upon which the Director relies). 15 Citing Cross Baking v. NLRB, 453 F.2d 1346 (1st Cir.1971) the Board had argued that the threats by Reisner against Woodruff were vitiated because Reisner resigned prior to the representation election. The Board's reliance on Cross Baking could not be more misplaced. In Cross the company discharged the pro-union employee who allegedly assaulted two others. Reisner's voluntary resignation could not possibly have the same neutralizing effect as did the discharge in Cross. Moreover, in Cross, unlike the instant action, the Board had conducted a hearing to determine the impact of the alleged intimidation by pro-union employees by the employer 16 Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 45 (D.C.Cir.1980)

861 N.E.2d 1246 (2007) Larry KEESLING, Vivian Keesling, Heritage Land Company a/k/a Heritage Land Co., Appellants-Defendants, v. T.E.K. PARTNERS, LLC, Appellee-Plaintiff. No. 18A02-0605-CV-411. Court of Appeals of Indiana. February 28, 2007. *1248 Charles R. Clark, M. Edward Krause III, Beasley & Gilkison LLP, Muncie, IN, James E. Carlberg, George T. Patton, Jr., Bryan H. Babb, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellants. Donald K. McClellan, McClellan & McClellan, Muncie, IN, Paul L. Jefferson, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellee. OPINION NAJAM, Judge. STATEMENT OF THE CASE Larry Keesling and Vivian Keesling ("the Keeslings") and Heritage Land Company ("Heritage Land") appeal from the trial court's judgment following a bench trial in favor of T.E.K. Partners, L.L.C. ("T.E.K.") on T.E.K.'s complaint on a 1999 installment promissory note (the "original note") and to foreclose mortgages against the Keeslings, Heritage Land, Heritage/M.G., L.L.C. ("Heritage/M.G."), K. *1249 Scott Green, Thomas McMullen, and M.G. Financial Services of Indiana, Inc. ("M.G. Financial"). The Keeslings and Heritage Land present two issues for our review, which we consolidate and restate as whether they are liable to T.E.K., the assignee of the original note, for sums advanced under a 2002 installment promissory note (the "second note") executed without their knowledge or consent. We hold that the second note was a material alteration of the original obligation such that the Keeslings and Heritage Land, as accommodation parties, are both discharged from further personal liability on the original note and are not liable for the additional sums advanced under the second note, which they did not sign. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY In January 1998, Heritage Land and M.G. Financial formed Heritage/M.G. for the purpose of developing a residential neighborhood known as Ironwood Estates in Delaware County. On May 25, 1999, Heritage/M.G. executed the original note to Peoples Bank and Trust Company, custodian for the James Henke, I.R.A. ("Henke I.R.A."), in the amount of $300,000 to partially finance the development. The final installment under the note was due June 1, 2001. The signatories to the original note were Green, both personally and on behalf of Heritage/M.G. and M.G. Financial; McMullen, both personally and on behalf of Heritage/M.G. and M.G. Financial; Larry Keesling, both personally and on behalf of Heritage Land; and Vivian Keesling. The original note was secured in part by a mortgage from Heritage Land to the Henke I.R.A. on a thirty-six acre tract.[1] Heritage/M.G. did not complete the payments under the original note by the June 2001 deadline. On January 3, 2002, the balance due on the note was $48,228.69. On February 1, 2002, without the Keeslings' knowledge or consent, R.M.G. Investment Group, L.L.C. ("R.M.G."), whose principals include Green and McMullen, purchased the original note from the Henke I.R.A. for $48,228.69, and the Henke I.R.A. assigned the original note and mortgage on the thirty-six acres to R.M.G. Then, on May 24, 2002, R.M.G. assigned the original note and mortgage on the thirty-six acres back to the Henke I.R.A. In addition, without the knowledge or consent of the Keeslings or Heritage Land, Heritage/M.G. executed the second note to the Henke I.R.A. in the amount of $102,000. The second note provides in relevant part: This Installment Note is subject to a Mortgage, Instrument Number XXXX-XXXXX-X-X recorded in Delaware County on 5/26/99 in the amount of $300,000.00. * * * This note and all extensions or renewals hereof are secured by a mortgage interest in real estate in Delaware County, State of Indiana, per "Exhibit A and Exhibit B" dated May 26th, 1999, and executed in favor of the payee(s) hereof by Heritage/M.G., L.L.C. Appellants' App. at 54. Green and McMullen personally guaranteed the second *1250 note. No payments were ever made on the second note.[2] Accordingly, on September 2, 2004, 1st National Bank and Trust Company, as Custodian for the Henke I.R.A., filed an amended complaint[3] for foreclosure of mortgages and judgment against the Keeslings, Heritage/M.G., Green, and McMullen. On October 25, 2004, the Henke I.R.A. assigned the mortgage and both the original note and the second note to T.E.K., and T.E.K. released Green and McMullen from any liability. On November 19, 2004, the trial court entered an order substituting T.E.K. for 1st National Bank as plaintiff. Following a bench trial, the trial court entered judgment for T.E.K. and against each of the defendants. The trial court concluded in relevant part that: 5. T.E.K. is entitled to judgment against Heritage Land Company's 36-acres of real estate and Heritage/M.G. LLC 10-acres of real estate, in rem, and against the Defendants, Heritage/M.G. LLC, Thomas McMullen, Larry Keesling and Vivian Keesling, jointly and severally, in personam, in the sum of $365,905.07 plus $10,000 in attorney fees, for a total judgment of $375,905.07. 6. T.E.K. is also entitled to a judgment against Heritage/M.G. LLC in the sum of $324,728.74. 7. T.E.K. is entitled to an Order foreclosing the May 26, 1999 mortgages upon both the 10 and 36 acres of real estate and foreclosing and barring all Defendant's equities of redemption and interest in the real estate. Appellants' App. at 27. The Keeslings and Heritage Land bring this appeal. DISCUSSION AND DECISION The Keeslings and Heritage Land appeal from a judgment in which the trial court made special findings pursuant to Indiana Trial Rule 52(A). That rule provides in pertinent part that "on appeal of claims tried by the court without a jury . . . the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). When a trial court has entered specific findings and conclusions along with its judgment under Trial Rule 52, we apply a two-tiered standard of review. MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29, 34 (Ind.Ct.App.2005). First, we consider whether the evidence supports the findings, construing the findings liberally in support of the judgment. Id. Findings are clearly erroneous only when a review of the record leaves us firmly convinced that a mistake has been made. Id. Next, we determine whether the findings support the judgment. Id. A judgment is clearly erroneous when the findings of fact and conclusions thereon do not support it, and we will disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but only consider the evidence favorable to the trial court's judgment. Id. In sum, the Keeslings and Heritage Land contend that because they were accommodation parties on the original note, and the second note constitutes a material alteration of the original note, they are discharged from further personal liability under the original note, and they have no liability under the second note. *1251 In S-Mart, Inc. v. Sweetwater Coffee Co., Ltd., 744 N.E.2d 580 (Ind.Ct.App.2001), we explained the law regarding guaranty contracts: A guaranty is defined as "a promise to answer for the debt, default, or miscarriage of another person." 38 Am.Jur.2d Guaranty § 1 (1999). It "is an agreement collateral to the debt itself" and represents a "conditional promise" whereby the guarantor promises to pay only if the principal debtor fails to pay. Id. Under Indiana law, three parties are required to execute a guaranty agreement: the obligor or principal debtor, the obligee or creditor, and the guarantor or surety. . . . * * * The rules governing the interpretation and construction of contracts generally apply to the interpretation and construction of a guaranty contract. The extent of a guarantor's liability is determined by the terms of his or her contract. The terms of a guaranty should neither be so narrowly interpreted as to frustrate the obvious intent of the parties, nor so loosely interpreted as to relieve the guarantor of a liability fairly within its terms. The contract of a guarantor is to be construed based upon the intent of the parties, which is ascertained from the instrument itself read in light of the surrounding circumstances. A guarantor's liability will not be extended by implication beyond the terms of his or her contract. "A guarantor is a favorite in the law and is not bound beyond the strict terms of the engagement. Moreover, a guaranty of a particular debt does not extend to other indebtedness not within the manifest intention of the parties." Under Indiana common-law principles, when parties cause a material alteration of an underlying obligation without the consent of the guarantor, the guarantor is discharged from further liability whether the change is to his or her injury or benefit. In Yin v. Society Nat'l Bank of Indiana, 665 N.E.2d 58, 64 (Ind.Ct.App.1996), trans. denied, the court summarized the following rules relating to material alteration of a guaranty: "Guarantors and sureties are exonerated if the creditor by any act, done without their consent, alters the obligation of the principal in any respect or impairs or suspends the remedy for its enforcement." Moreover, when the principal and obligee cause a material alteration of the underlying obligation without the consent of the guarantor, the guarantor is discharged from further liability. A material alteration which will effect a discharge of the guarantor must be a change which alters the legal identity of the principal's contract, substantially increases the risk of loss to the guarantor, or places the guarantor in a different position. The change must be binding. Id. at 585-86 (emphases added, some internal citations omitted). Here, Heritage/M.G. is the principal obligor. The Keeslings are guarantors on the original note payable to the Henke I.R.A., which was the original obligee. As guarantors, the Keeslings are accommodation parties. See Ind.Code § 26-1-3.1-419 (defining accommodation party as someone who signs an instrument for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument). Heritage Land is also an accommodation party. Heritage Land *1252 signed the original note as a maker but was not a direct beneficiary of the value given for the instrument. See id. Heritage Land pledged its real estate to secure the money advanced to Heritage/M.G. to develop another parcel titled in Heritage/M.G. in which Heritage Land had no interest. The nature of a party's signature must be based on the reason for which that signature was placed on the note. Yin, 665 N.E.2d at 63. The nature of the liabilities of an accommodation party is determined by the capacity in which he or she signed. Id. On these facts, Heritage Land, which received no value for its pledge, was not an ordinary maker but an accommodation party. The Heritage Land mortgage provides in relevant part: This Mortgage is given to secure the payment of the indebtedness of Heritage Land Company to [Henke I.R.A.], as evidenced by a Promissory Note or Notes dated on the 25th day of May, 1999, in the amount of Three Hundred Thousand Dollars ($300,000.00), at an interest rate of Twelve Percent (12%) per annum, shall also secure the payment of any sums guaranteed by, advanced to or any obligation incurred by [Heritage Land] hereafter in favor of [Henke I.R.A.],. . . . It is understood by both parties that discretion to advance additional funds, as provided for above, remains with [Henke I.R.A.] and is not obligatory. [Henke I.R.A.] at his [sic] option, may extend the time of payment of any part or all of the indebtedness secured hereby, reduce the payments thereon, or accept a renewal note or notes therefore, without the consent of any junior lienholder and without the consent of [Heritage Land] if [Heritage Land has] then parted with title to the mortgaged premises, and no such extension, reduction or renewal shall impair the lien or priority of this Mortgage, nor release, discharge or affect the personal liability of [Heritage Land] to [Henke I.R.A.]. Appellants' App. at 37 (emphasis added). The trial court concluded that the mortgage "provided that [the] Henke I.R.A. could advance additional funds[,] which it did, and such may be assignable and the assignments are enforceable." Id. at 26. But the mortgage is not a negotiable instrument. See Ind.Code § 26-1-3.1-104 (defining negotiable instrument as an unconditional promise or order to pay a fixed amount of money). The mortgage on the 36-acre tract, which secured the Keeslings' debt under the original note, did not constitute a promise to pay. The "discretion to advance additional funds" found in the mortgage did not authorize the Henke I.R.A. to obligate the Keeslings further without their knowledge or consent. And, as T.E.K. acknowledges, the mortgage expressly provides that Heritage Land's consent is required before T.E.K. may "extend the time of payment" or "accept a renewal note" unless Heritage Land has "parted with title to the mortgaged premises[.]" Appellants' App. at 37. Heritage Land remained in title, and no such consent was sought or given. Thus, the mortgage itself provides no grounds for holding either the Keeslings or Heritage Land liable for funds advanced under the second note. The trial court also concluded that the Keeslings had "fail[ed] to show that . . . the May 29, 2004 assignment and release from the Henke I.R.A. to T.E.K. . . . causes the Defendants to pay more than that party would have been obligated to pay." Id. at 26 (emphases omitted). Again, we cannot agree. Initially, we observe that the assignments back and forth between the Henke I.R.A. and R.M.G., and the final assignments from the Henke *1253 I.R.A. to T.E.K. did not create any new rights or obligations.[4] As an assignee of the original note, T.E.K. acquired no further rights than the assignor had to convey. See The Money Store Investment Corp. v. Summers, 849 N.E.2d 544, 547 (Ind.2006) (stating assignee of mortgage takes no greater rights than assignor). The original note was past due. Henke testified that the second note executed on February 1, 2002, merely memorialized the balance due on the original note, that "the previous note had expired so we were . . . renewing an expired note and also confirming the balance due on the expired note." Appellee's App. at 40. Thus, T.E.K. maintains that the second note merely extended the time for payment of the original note, as authorized by that note, and did not constitute a material alteration of the original obligation. The trial court agreed, finding that the second note for $102,000 was merely given "to evidence the current amount of monies then due and owing" under the original note "and extend the due date for payment" of the original note. Appellants' App. At 25. Those findings are clearly erroneous. Henke's testimony about his understanding of the operation and effect of the second note was part fact and part legal conclusion. The evidence shows that on February 1, 2002, R.M.G. purchased the original note from the Henke I.R.A. for $48,228.69. About four months later, on May 24, 2002, Greene and McMullen, on behalf of Heritage/M.G., executed the second note for $102,000 payable to the Henke I.R.A. and, on behalf of R.M.G., assigned the Heritage/M.G. original note and the Heritage Land mortgage back to the Henke I.R.A. Henke admitted he had no actual knowledge of how the difference was spent, Tr. at 63, and there is no exhibit in the record accounting for the difference between the two notes. But McMullen, who signed both notes, testified that the "difference [between $48,228.69 and $102,000] was used to pay vendors[,]" as well as to pay "interest and stuff." Transcript at 137. The evidence clearly shows that the second note did not merely extend the time of payment on the "current amount of monies then due and owing" on the original note. Instead, the facts demonstrate that the second note included additional money to "pay the bills." Transcript at 137. The second note purported to add Heritage/M.G.'s accounts payable to the original note. These payables were obligations of Heritage/M.G. for which the individual members of the LLC were not personally liable. See Ind.Code § 23-18-3-3 (a member of a limited liability company is not personally liable for the debts, obligations, or liabilities of the limited liability company). The second note also capitalized interest due on the original note, that is, it converted interest due on the original note to principal in the second note. See Black's Law Dictionary 202 (7th ed.1999) (defining capitalization as the act or process of capitalizing or converting something into capital). The capitalization of interest meant that the contract interest rate of 12% and the default interest rate of 24% would be charged against the interest added to the second note, thereby compounding the payment of interest and the effective interest rate. In itself, this capitalization of interest was a material alteration. *1254 Thus, the second note not only added new debt but increased the total principal draws beyond the $300,000 face amount of the original note. Henke testified that under the original note, his I.R.A. was committed to advance "up to $300,000" for the project. Transcript at 23, 27. The Henke I.R.A. advanced two $130,000 draws to Heritage/M.G. under the original note, for a total of $260,000. But the second note of $102,000 brought total draws to $362,000. While T.E.K. contends, and as we have noted, the trial court found, that the second note merely reflected the "current amount of monies then due and owing" under the original note, the total amount advanced under the two notes was $362,000 ($130,000 + $130,000 + $102,000), which was $62,000 more in draws than the original note authorized. McMullen testified that "we had a cap of $300[,000] . . . we had paid down to $48[,000]" and Henke "allowed us to take it back up under the terms of the old agreement" to $102,000. Transcript at 138. But the original note was a draw note with a $300,000 limit, not a revolving line of credit. See Black's Law Dictionary 374 (7th ed.1999) (defining revolving credit as an arrangement that allows the borrower to secure loans on a continuing basis as long as the outstanding balance does not exceed a specified limit). There is nothing in the four corners of the original note to support McMullen's statement that "under the terms of the old agreement" the principal balance could be "taken back up" as long as the principal balance did not exceed the $300,000 "cap" at any given time. We agree with the trial court's conclusion that the documents in this case suffer from "poor draftsmanship." Appellants' App. at 26. But a guarantor is a favorite in the law, and he is not bound beyond the strict terms of his engagement. Goeke v. Merchants Nat'l Bank & Trust Co., 467 N.E.2d 760, 769 (Ind.Ct.App. 1984). Any ambiguities in a contract are to be construed against the party who employed the language and prepared the contract. Id. Moreover, a guaranty of a particular debt does not extend to other indebtedness not within the manifest intention of the parties. Id. at 765. Here, notwithstanding the confusing documentation, the original note was an unambiguous "promise to pay . . . the sum of $300,000." The note contains a promise to pay a sum certain and does not provide for total draws greater than that sum. The original note was not a revolving line of credit. The accommodation parties assumed the risk of a $300,000 loan, not some multiple of $300,000. As we have already noted, the capitalization of interest was a material alteration. And the inclusion of vendor payables and the capitalization of interest resulted in a third draw which, when added to previous draws, exceeded the face amount of the original note, another material alteration. All of these purported alterations occurred without the knowledge or consent of the Keeslings or Heritage Land. On these facts, the attempt to treat the second note as if it were one and the same as the original note must fail. And the second note was not a novation of the original note because there was no agreement of all of the parties to a new contract. See Sullivan Builders & Design, Inc. v. Home Lumber of New Haven, Inc., 834 N.E.2d 129, 137 (Ind.Ct.App.2005) (noting that a required element of novation is the agreement of all parties to a new contract). Thus, the Keeslings and Heritage Land are not chargeable with the second note, a new agreement which did not include their signatures. In sum, the second note constitutes a material alteration of the original obligation. As such, the Keeslings and Heritage *1255 Land are discharged from their personal liability on the original note, and they have no liability for the additional sums advanced under the second note, which they did not sign. See Yin, 665 N.E.2d at 64. We reverse the trial court's judgment and remand with instructions to enter an in rem judgment against Heritage Land's thirty-six acre tract in the amount of $48,229.69, plus interest and a pro rata share of attorney's fees. Reversed and remanded with instructions. FRIEDLANDER, J., and DARDEN, J., concur. NOTES [1] The parties point out that an incorrect instrument number was used attributable to a mortgage on an adjacent ten-acre tract, but any error is not relevant to the issues on appeal. [2] The parties also engaged in other transactions that are not relevant to the issues on appeal. [3] None of the parties to this appeal included the original complaint in an appendix. [4] The Keeslings and Heritage Land note that the assignments to and from the Henke I.R.A. and R.M.G. did not properly identify the Heritage Land mortgage, but any such error does not affect the issues on appeal.

539 A.2d 73 (1988) PUTNAM FURNITURE LEASING CO., INC. v. Walter BORDEN et al. No. 86-461-Appeal. Supreme Court of Rhode Island. October 15, 1987. On Denial of Reargument March 18, 1988. Douglas H. Smith, Providence, William A. Hardman, III, Law Offices of Richard Gelineau, North Kingstown, for plaintiff. Arthur M. Read, II, Providence, for defendants. ORDER On October 1, 1987 the plaintiff, through its attorney, appeared before this Court in response to an order to show cause why its appeal from a Superior Court order remanding the case to the District Court for entry of final judgment should not be summarily dismissed. After consideration of the memoranda and arguments of counsel, the Court is of the belief that no cause has been shown. Accordingly, the plaintiff's appeal is denied and dismissed and the case is remanded to the District Court for entry of final judgment. OPINION ON PETITION FOR REARGUMENT PER CURIAM. Earlier in this dispute an order was entered denying and dismissing plaintiff's appeal from a Superior Court order remanding this case to the District Court for entry of final judgment for the defendants. Subsequently the plaintiff filed a petition to reargue. Since the issue in this dispute appears to be novel, this opinion will articulate our rationale for our earlier order. The record indicates that in May 1982 judgment for plaintiff in the amount of $3,854 was entered in the District Court, Sixth Division. The defendants filed a timely appeal to the Superior Court claiming a jury trial. In due course the case was assigned to the Superior Court's jury trial calendar. Later defendants filed a stipulation withdrawing their appeal. When the case came on before the Superior Court justice in charge of the calendar, plaintiff argued that defendants had no right to withdraw *74 their appeal and that the case should be assigned for trial. The plaintiff's contention was rejected by a Superior Court justice and an order was entered remanding the case to the District Court for entry of judgment. The plaintiff contends that defendants, by taking an appeal to the Superior Court, automatically voided the District Court judgment. The filing of this appeal, according to plaintiff, is considered the equivalent of filing an original complaint in Superior Court, and plaintiff points out that Rule 41(a) of the Superior Court Rules of Civil Procedure states that a plaintiff may not voluntarily dismiss a case on his or her own after the defendant has served an answer to the complaint. General Laws 1956 (1985 Reenactment) § 9-12-10 provides in pertinent portion that in all civil cases in the District Court any party may cause such case to be removed for trial on all questions of law and fact to the Superior Court by filing a written appeal from the judgment of the District Court within two days of the entry of judgment. The defendants maintain that even though this section gives an appellant the right to a trial de novo in Superior Court, it does not deprive the appellant of the right to withdraw the appeal. Although defendants correctly point out that no case law on this subject exists, that there is none, in our opinion, is due to the ingenuity of plaintiff's argument. We believe that if one has a right to take an appeal, it is to be assumed, in the absence of any statutory prohibition to the contrary, that the appellant has a right to withdraw the appeal. The plaintiff's argument that a District Court appeal is identical to the filing of an original complaint in Superior Court is not persuasive. The Superior Court Rules of Civil Procedure recognize a difference between these two actions. Rule 81(b) specifically states that repleading is not required of either party in a District Court appeal. Since the invocation of Rule 41(a) which relates to voluntary dismissals of civil actions is dependent on how far a case has progressed through the pleading stages, this provision has no relevancy to the voluntary dismissal of a District Court appeal. Accordingly, whenever a party appeals from a District Court judgment to the Superior Court, the party taking that appeal may withdraw the appeal at any time prior to trial, and upon withdrawal, the District Court judgment is reinstated. Petition for reargument is denied.

775 F.2d 1166 *Richard Ott & Sonsv.Clisa Corp. 85-1292 United States Court of Appeals,Fifth Circuit. 10/17/85 1 N.D.Tex. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2233 HOANG TAING, Plaintiff - Appellant, v. PENNY PRITZKER, Honorable; Secretary of Commerce; KATHRYN H. ANDERSON, Honorable; Office of Civil Rights, CENHQ 3H068; WILLIAM W. HATCHER, Honorable; U.S. Census Bureau/RCC; DANA JAMES BOENTE, Honorable; US Acting Attorney; LORETTA E. LYNCH, Honorable; Attorney General, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:13-cv-01281-TSE-TCB) Submitted: June 25, 2015 Decided: June 29, 2015 Before GREGORY, FLOYD, and THACKER, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Hoang Taing, Appellant Pro Se. Antonia Marie Konkoly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hoang Taing appeals the district court’s orders granting summary judgment to Appellees and denying her Fed. R. Civ. P. 60(b) motion for reconsideration in this employment discrimination action. We affirm in part and dismiss in part. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than 60 days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). The district court’s order granting summary judgment to Appellees was entered on the docket on July 7, 2014. The notice of appeal was filed on November 10, 2014. Because Hoang Taing failed to file a timely notice of appeal from the order granting summary judgment or to obtain an extension or reopening of the appeal period, we dismiss this portion of the appeal for lack of jurisdiction. Turning to the order denying reconsideration, we have reviewed the record and find no reversible error. Accordingly, we affirm the denial of Rule 60(b) relief for the reasons stated by the district court. Hoang Taing v. Pritzker, No. 1:13-cv-01231- TSE-TCB (E.D. Va. filed Nov. 5, 2014; entered Nov. 6, 2014). We dispense with oral argument because the facts and legal contentions 2 are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 3 

FILED NOT FOR PUBLICATION MAR 03 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS ALEC KIDWELL, No. 12-17615 Plaintiff - Appellant, D.C. No. 2:10-cv-02207-ROS v. MEMORANDUM* GEO GROUP INCORPORATED; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding Submitted February 18, 2014** Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges. Arizona state prisoner Thomas Alec Kidwell appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations arising out of prison strip searches. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th * 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). Cir. 2010). We affirm. The district court properly granted summary judgment because Kidwell failed to raise a genuine dispute of material fact as to whether the four strip searches conducted as part of quarterly strip searches of all prisoners were unreasonable under the circumstances, and whether such searches were not reasonably related to a legitimate, penological interest. See id. at 1227-28 (setting forth the standards for evaluating prison searches and prison policies that allegedly infringe on prisoners’ constitutional rights, and explaining that controlling contraband within a prison is a legitimate, penological interest); see also Bull v. City & County of San Francisco, 595 F.3d 964, 982 (9th Cir. 2010) (en banc) (upholding a policy requiring strip searches of all arrestees classified for custodial housing in the general population, “notwithstanding the lack of individualized reasonable suspicion as to the individuals searched”). Kidwell’s contentions regarding the declarations of defendant John Gay are unpersuasive. Kidwell’s request for oral argument, filed on February 19, 2013, is denied. AFFIRMED. 2 12-17615 

1 F.3d 1238 U.S.v.Scaggs NO. 92-8472 United States Court of Appeals,Fifth Circuit. May 10, 1993 1 Appeal From: W.D.Tex. 2 DISMISSED.

251 Ind. 580 (1969) 244 N.E.2d 221 PATTERSON v. STATE OF INDIANA. No. 1267S148. Supreme Court of Indiana. Filed January 30, 1969. Rehearing denied March 19, 1969. *581 Robert G. Mann, Bolden and Mann, of Indianapolis, for appellant. John J. Dillon, Attorney General, Richard V. Bennett, Deputy Attorney General, for appellee. ARTERBURN, J. This action was commenced by affidavit on two counts, charging the defendant with the criminal offense of procuring a female for a house of prostitution pursuant to Burns' Ind. Stat. Anno. § 10-4211. The defendant was found guilty under Count One and sentenced accordingly. The appellant, in our opinion, has failed in many respects to comply with our rules with reference to the presentation of his brief. Rule 2-17(g) requires that a summary of the argument precede the major argument. Rule 2-17(h) requires that the items in the motion for a new trial relied upon as a basis for error shall be stated. The motion for a new trial is not set out at any place in the entire brief, and the specific item in the motion for a new trial is not set forth at the beginning of each point presented in the argument section of the brief. As a matter of interest, we find the motion for a new trial in the transcript comprises 19 pages. We have said many times we are not required to search the record to find the alleged errors. In our opinion, this appeal should be dismissed for failure to comply with the very simple rules of this Court. *582 Nevertheless, in the sense of trying to do justice, we have examined the poorly-prepared brief and have arrived at the following conclusions: It is argued that the prosecuting attorney made improper remarks in his closing argument when he said that the appellant might have to serve two to ten years or might have to serve less than two years. The statute, Burns' § 10-4211, provides for an indeterminate sentence of two to ten years and a fine of not less than three hundred dollars and not to exceed one thousand dollars upon conviction. There is no showing of prejudice in this case by such a remark. Furthermore, no objections were made on the grounds now urged by the appellant at the time of the remarks. The alleged error was not saved for review. We do not believe the case cited by appellant, Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 577, is controlling in this situation. In that case the prosecution was arguing a lesser included offense did not have a sufficiently adequate or stiff penalty. In the case before us there was no lesser included offense involved. What the prosecution said is a matter of common kowledge, and we do not think it was prejudicial or inflammatory. No showing of that character is made. It is next argued that the court erred in overruling the motion "objecting to jurisdiction." The motion asked that the case be remanded to the Criminal Court of Marion County for the reason that the Judge of the Hamilton Circuit Court, Edward F. New, Jr., and the chief trial deputy in Marion County, Leroy K. New, were brothers. However, the motion recites that the cause was assigned by the Circuit Court of Hamilton County to the Superior Court of Hamilton County before trial and was tried before Judge V. Sue Shields, as presiding judge of the Superior Court of Hamilton County. Burns' § 4-402 provides that the Circuit Judge may transfer cases to the Superior Court. We find no error in the respect urged. *583 It is also argued under Point 3 that the court erred in overruling a motion to have a psychiatric examination of Judy Kay Vickery, a prosecuting witness. However, the briefs do not set forth at any point that any objection was made to the witness testifying on the ground that she was mentally incompetent as a witness when she took the stand. Therefore we find no point raised for our consideration with reference to the testimony of Judy Kay Vickery. Finally, it is argued that the evidence is insufficient to support the verdict of the jury. The evidence, as set forth in the brief, appears to us to amply support the charge of procuring a female for a house of prostitution. The evidence shows that the defendant met Judy Kay Vickery, a fifteen year old girl, at an apartment located at 2823 Sutherland Avenue. Shortly thereafter, the defendant and Miss Vickery left the apartment to get a soft drink. While they were having this soft drink, the defendant told Miss Vickery, about Miss Ault, saying that she lived at his home and worked out of it as a prostitute. The defendant asked Miss Vickery if she would like to meet Miss Ault. The defendant and Miss Vickery then went to the defendant's home at 2838 Paris Avenue, where Miss Vickery was introduced to Miss Ault. Within a short time, the two women left the home and rode around in a car until they met some men. The men were brought back to the defendant's home where Miss Ault had sexual relations with the men while Miss Vickery watched. The men then paid Miss Ault. There was no evidence introduced to show that prior to her meeting with the defendant that Miss Vickery had been connected with prostitution in any way. The next afternoon the defendant took Miss Vickery to a beauty parlor and to a store where he purchased for her a dress, shoes and underclothes for a total cost of about fifty dollars. That night Miss Vickery went with Miss Ault "to *584 work on Meridian Street." Miss Vickery that night performed acts of prostitution for money in the defendant's home. There is other evidence that corroborates and supports fully what has been stated. We find no error of the trial court presented to us in the briefs on this appeal. The judgment of the trial court is affirmed. DeBruler, C.J., and Hunter, J., concur. Jackson and Givan, JJ., concur in result. NOTE. — Reported in 244 N.E.2d 221.

Matter of Kimora D. (Joseph C.--Ojetta T.D.) (2019 NY Slip Op 07851) Matter of Kimora D. (Joseph C.--Ojetta T.D.) 2019 NY Slip Op 07851 Decided on October 31, 2019 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 October 31, 2019 Friedman, J.P., Kapnick, Kern, Singh, JJ. 10245A 10245 [*1] In re Kimora D., A Child Under the Age of Eighteen Years, etc., Joseph C., Respondent-Appellant, Ojetta T.D., Respondent, Administration for Children's Services, Petitioner-Respondent. The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R. Denman of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child. Order of disposition, Family Court, New York County (Ta-Tanisha D. James, J.), entered on or about January 3, 2018, insofar as it brings up for review an amended fact-finding order, same court and Judge, entered on or about May 29, 2018, which found, after a hearing, that respondent neglected the subject child, unanimously affirmed, without costs. Appeal from amended fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Petitioner proved by a preponderance of the evidence that respondent, the child's mother's boyfriend, neglected the child (Matter of Tammie Z., 66 NY2d 1 [1985]; Family Court Act § 1012[f][1]) by exposing her to domestic violence (see Matter of Bobbi B. [Bobby B.], 165 AD3d 587 [1st Dept 2018]; Matter of Moises G. [Luis G.], 135 AD3d 527 [1st Dept 2016]; Matter of Allyera E. [Alando E.], 132 AD3d 472, 473 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). The record belies respondent's contention that he was not the aggressor during the July 14, 2016 altercation with the child's mother and that he acted reasonably to protect the then-five-year-old child. The credible testimony shows that both he and the mother were aggressors. The police officer called to the scene of the incident concluded as much and arrested them both, and, according to the child, whose description of the incident was sufficiently corroborated to be considered by the court (see Matter of Nicole V., 71 NY2d 112 [1987]), both adults were fully engaged in the fighting. Respondent himself testified that when the mother pushed him he pushed her back, and he continued to engage with her even after the child repeatedly asked him and the mother to stop fighting. Respondent's claim that he tried to protect the child is not supported by the record. Respondent fought with the mother after the child repeatedly asked them to stop. He may have been involved in telling the child to stay in the bathroom while he and the mother fought, but this was in any event a dubious protective measure, given the extremely small size of the apartment, as described by the police officer, and the child's almost certain ability to hear the screaming and [*2]struggling over a knife even from behind the bathroom door. Moreover, by entering the bathroom with his fingers lacerated and bloodied by the mother's use of a kitchen knife on him during the altercation, respondent exposed the child to the full extent of the violence between the adults, which she told petitioner's child protective specialist (CPS) scared her. The record belies respondent's argument that the child was not impaired or in imminent danger of becoming impaired after witnessing the altercation (Family Court Act § 1012[f]). He cites her use of the word "sad," but ignores the fact that the child said she was "scared," and, given her close physical proximity to the altercation, which involved screaming, pushing, biting, and lacerations by knife, the circumstances leave no doubt that the child's emotional and mental health were impaired, or at serious risk of impairment, as a result of what she saw and heard (see e.g. Matter of O'Ryan Elizah H. [Kairo E.], 171 AD3d 429 [1st Dept 2019]; Matter of Heily A. [Flor F.-Gustavo A.], 165 AD3d 457 [1st Dept 2018]; Matter of Isabella S. [Robert T.], 154 AD3d 606 [1st Dept 2017]). Respondent argues that the court's aid is not required and therefore the petition should be dismissed pursuant to Family Court Act § 1051(c), because he has no further plans to be in contact with the child. Assuming that respondent raised this argument before Family Court, we reject it. Respondent offers no evidence to support his claim that he has no plans to be in contact with the child ever again, and the record strongly suggests otherwise. Respondent referred to the child as his "baby." He told the CPS and the police officer that he loved the child as though she were his flesh and blood and that he had been with her since day one. The CPS reported that the child perceived respondent as her father, and the mother similarly referred to him as such. Petitioner proved by a preponderance of the evidence that respondent also neglected the child by misusing alcohol and marijuana (Family Court Act §§ 1012[f][i][B]; 1046[a][iii]). Contrary to respondent's contention that there is no evidence of the frequency or effects of his alcohol use, the child's unrebutted statements to the CPS encompass both points. She told the CPS that respondent drank every day, that his doing so made him sway from side to side and made him "crazy" and "different." Respondent failed to offer evidence to the contrary or a reason to doubt the reliability of the child's statements. Nor did he say that he was in a rehabilitation program so as to render the statutory presumption of neglect based on misuse of alcohol inapplicable (see Family Court Act § 1046[a][iii]). Respondent argues that there is no evidence of the specific effects of his alcohol use on his parenting or treatment of the child. However, given respondent's regular alcohol use, the statute does not require such evidence (see Matter of Nasiim W. [Keala M.], 88 AD3d 452 [1st Dept 2011]). The evidence of respondent's marijuana use includes his own testimony that a normal day for him includes marijuana, and he freely admitted to the CPS that he used marijuana, an unrebutted admission corroborated by the mother's testimony. Respondent failed to rebut petitioner's prima facie case of neglect on this basis by showing that he is in drug rehabilitation (Matter of Shaun H. [Monique B.], 161 AD3d 559 [1st Dept 2018]; Matter of Nyheem E. [Jamila G.], 134 AD3d 517, 519 [1st Dept 2015]). We have considered respondent's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: OCTOBER 31, 2019 CLERK

In the Missouri Court of Appeals Western District  STATE OF MISSOURI,   WD79124 Appellant,  OPINION DRAFT: v.   NOVEMBER 22, 2016 AARON M. FISHER,   Respondent.    Appeal from the Circuit Court of Miller County, Missouri The Honorable Patricia Joyce, Judge Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ. The State of Missouri appeals the trial court’s decision to sustain Fisher’s motion to dismiss the charges for a violation of his fundamental right to a speedy trial. In the State’s sole point on appeal, it contends that the trial court erred in ordering dismissal of the charges because there was no speedy trial violation as a matter of law under a proper Barker v. Wingo application. The State argues that a significant portion of the delay is attributable to defendant Fisher, that any delays attributable to the State do not weigh heavily against it and that Fisher suffered no actual prejudice from the delay. We affirm.  Factual Background Aaron Fisher was charged with two counts of statutory sodomy in the first degree1 in Miller County Circuit Court on October 28, 2009. An arrest warrant was issued and Fisher was taken into custody that same day. The State filed an amended complaint on November 4, 2009, adding one count each of assault in the first degree pursuant to Section 565.050, RSMo. Cum. Supp. and abuse of a child as provided by Section 568.060, RSMo.Cum. Supp. The preliminary hearing was scheduled for March 8, 2010. Upon the State’s motion, the case was continued from March 8 to April 12, 2010. The case was continued again on the State’s motion to May 17, 2010. Defendant Fisher was eventually arraigned on June 9, 2010 and a trial date was set for January 10, 2011. On December 27, 2010 the State filed a motion for leave to endorse additional witnesses. This continuance was granted by the court, without a hearing, on January 10, 2011. The case was reset for trial on September 12, 2011. In response, Fisher filed both a handwritten request for discovery and for a speedy trial on February 22, 2011. The court made a finding of fact that Fisher complied with all statutory requirements in the filing of his motion for speedy trial. Abiding by Fisher’s request, the court reset jury trial for May 23, 2011. On May 23, 2011, Fisher requested his sole continuance and the jury trial date was again reset for September 12, 2011. However, this date was later stricken without any record or documentation addressing the defendant’s right to a speedy trial. The September 12, 2011, date was stricken and a plea hearing was set for September 7, 2011. The record provided shows no date or explanation as to why the September 12, 2011, date was stricken. The court entered an 1 Pursuant to Section RSMo. 566.062. Cum. Supp. 2015 2 order on October 6, 2011, again without a hearing or explanation cancelling the plea hearing, and ordered the case continued to January 9, 2012. This January 9, 2012, trial date was also stricken without any record or documentation addressing the defendant’s right to a speedy trial. Again, the record gives no indication as to why this date was cancelled. The court further failed to make a record concerning which party requested the continuance. The case was reset to September 10, 2012. This trial date was again stricken without any record or documentation addressing who requested the continuance or Fisher’s right to a speedy trial. No activity took place in this case between September 2012 and March 26, 2013, when a jury trial was again scheduled for February 24, 2014. The State filed its second request for leave to endorse additional witnesses on February 24 and the court set a new trial date for September 8, 2014. Before the trial could take place, the court scheduled a plea hearing for July 28, 2014. One week before the scheduled plea hearing, counsel for Fisher filed a motion to withdraw on July 21, 2014. New counsel for Fisher entered his appearance that same day. Upon finding a factual basis, the court accepted Fisher’s plea of guilty to two counts of statutory sodomy on July 28, 2014 and sentencing was scheduled for November 6, 2014. On November 7, 2014, the guilty plea was vacated by the court based on Fisher’s statements to the Sentencing Assessment Report writer regarding the commission of the crimes where Fisher told the writer “I know I did it, but I honestly don’t remember.” On December 3, 2014, the presiding judge recused himself and a special judge was appointed by the Missouri Supreme Court on January 13, 2015. Following the reassignment to the special judge, the State did not request a trial date until September 9, 2015, at which time the case was set for trial on November 23, 2015. Fisher filed a motion to dismiss for violation of his statutory and constitutional right to a speedy trial on September 16, 2015. Thereafter, the State 3 filed two additional requests for leave to endorse additional witnesses in the month of October 2015. On October 23, 2015, the court issued an order sustaining Fisher’s motion and ordered him discharged. In its October 23, 2015 order, the court explained that despite five different opportunities to bring him to trial, nearly six years had lapsed between the date of Fisher’s incarceration and the court further found that while the State was responsible for at least four different delays, Fisher could be charged with only one. Standard of Review The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article I of the Missouri Constitution. State v. Washington, 9 S.W. 3d 671 (Mo. App. 1999). The protections of the Sixth Amendment attach when there is a formal indictment or information or when actual restraints are imposed by arrest and holding to answer a criminal charge. State ex rel Garcia v. Goldman, 316 S.W. 3d 907, 909 (Mo. banc 2010). The issue of whether the Defendant’s Sixth Amendment rights have been violated is a question of law, and therefore, appellate courts review de novo. State v. Washington, 9 S.W.3d at 675. While we review de novo whether the defendant’s Sixth Amendment right was violated, we defer to the trial court’s findings of fact. State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015). Legal Discussion It is the responsibility of the State to bring a defendant to trial speedily. State v. Richmond, 611 S.W.2d 351, 355 (Mo. App. 1980). A criminal defendant’s right to a speedy 4 trial guarantees that the “State will move quickly to assure the defendant of the early and proper disposition of crimes with which he or she is charged.” State v. Smith, 849 S.W.2d 209, 213 (Mo. App. 1993). “The federal and Missouri constitutions ‘provide equivalent protection for a defendant’s right to a speedy trial.’” State v. Sisco, 458 S.W.3d at 313. The exclusive remedy for the deprivation of this right is the dismissal of the charges with prejudice. Id. at 312, citing State ex rel. McKee v. Riley, 240 S.W.3d 720, 732 (Mo. banc 2007). To determine whether there has been a violation of the right to a speedy trial, Missouri courts use the four part “test” set forth in the United States Supreme Court case, Barker v. Wingo, 407 U.S. 514 (1972). Id. at 313; State v. Bolin, 643 S.W.2d 806 (Mo. 1983). When facing a motion to dismiss, the four part test requires the court to consider: (i) the length of the delay, (ii) the reason for the delay, (iii) the defendant’s assertion of his right to a speedy trial and (iv) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. Here, we must determine whether the facts on record support the motion court’s finding of a violation of Fisher’s right to a speedy trial and the decision to grant Fisher’s motion to dismiss. (i) Length of Delay Missouri courts recognize that a delay of greater than eight months is “presumptively prejudicial.” State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). The length of the delay is a triggering mechanism for review of the other Barker factors because until there is a delay that is presumptively prejudicial, there is no need to discuss the other factors that are part of the balancing process. Id. In Doggett v. United States, 505 U.S. 647 5 (1992), the Supreme Court of the United States explained that the first Barker v. Wingo factor “is actually a double enquiry.” Id. at 651. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, he cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. This latter enquiry is significant to the speedy trial analysis because, as we discuss below, the presumption that pretrial delay has prejudiced the accused intensifies over time. 505 U.S. at 651-52 (citations omitted). Fisher was charged and taken into custody on October 28, 2009. His charges were not dismissed until October 23, 2015. Nearly six years lapsed between the time Fisher was taken into custody and the dismissal of his charges. Because Fisher’s trial was delayed well over the presumptively prejudicial threshold of eight months, an analysis of the remaining three factors is necessary. (ii) Reason for the Delay Missouri law sets forth a 180 day window within which a defendant must be brought to trial after a plea of not guilty at arraignment. §545.780.2 RSMo. The burden rests with the “State to afford the accused a speedy trial, and if there is a delay it becomes incumbent upon the State to show reasons which justify that delay.” State v. Greenlee, 327 S.W.3d 602, 612 (Mo. App. 2010). “The burden is on the Government to assign reasons to justify the delay”; 6 “unexplained or negligent delays . . . weigh against the state, but not heavily.” Amos v. Thornton, 646 F.3d 199, 207 (5th Cir. 2011) (citation and internal quotation marks omitted). In the context of the speedy-trial right under the Sixth Amendment, different weights should be assigned to different reasons. Vermont v. Brillon, 556 U.S. 81 (2009) citing Barker. In applying Barker, the United States Supreme Court has asked whether the government or the criminal defendant is more to blame for the delay. Id. If the defendant announces that he is ready for trial and files a request for a speedy trial, then the court shall set the case for trial as soon as reasonably possible thereafter. State v. Kirksy. 713 S.W.2d 841 (Mo. App. 1986). The trial court record establishes that Fisher was arraigned and entered a plea of not guilty on June 9, 2010. On this same day, a trial date was set for January 10, 2011. The record confirms that a jury trial date was set five different times over a period of six years. The motion court reasonably concluded that the State failed to provide adequate reasoning or justification explaining this delay. Over the six year period, the State filed four different motions requesting leave to endorse additional witnesses. The first of these motions was requested for January 10, 2011, the first date that the State was responsible for bringing the defendant to trial. In response to this continuance, Fisher filed a pro se motion for speedy trial on February 22, 2011. The trial judge then promptly set the trial for May 23, 2011. On the day of trial, Fisher requested a continuance, which was granted. Out of the 2,186 days in which Fisher was incarcerated and the 1,981 days between arraignment and dismissal of the charges, this is the only delay that the trial judge attributed to Fisher and we defer to the trial 7 court’s factual finding in this regard, because the record does not establish that any other trial delay was requested, or even acquiesced in, by Fisher.2 The State argues that Fisher should be charged with the delay following his indecision regarding whether to plead guilty. A plea hearing was scheduled on September 7, 2011, and a further plea hearing was set on January 9, 2012; both hearings were ultimately cancelled. Although the State asserts that, “the 476 day delay between the May 23, 2011, trial date and the September 12, 2012, trial date was the result of Fisher repeatedly changing his mind about entering a guilty plea,” (Rsp. Brf. 20) the State has not provided the evidence necessary to support their assertion that Defendant is responsible for this delay. There is literally no evidence in the record as to the circumstances surrounding these aborted plea hearings – the State relies merely on the circuit court’s docket entries as evidence of what transpired. The burden was on the State to establish the reasons for various delays, and it failed to do so here. There are many reasons why the taking of a plea may be cancelled, only some of which are attributable to a defendant’s conscious decisions. By not excluding the time periods surrounding these plea hearings to Fisher, the trial court apparently found that the State had failed to meet its burden to prove that these delays should be attributed to Fisher. Absent any evidence in support, and given our standard of review, we cannot conclude that the trial court erred in finding that these delays were not attributable to Fisher. To support their argument that such a delay should be placed on Fisher, the State cites United States v. Mallett in which the court assessed a delay related to a change of plea to the 2 Although Fisher’s first counsel of record filed a motion to withdraw, another attorney entered his appearance for Fisher that same day. Because the record shows that new counsel did not request additional time to get up to speed, no delay attributable to Defendant can be found on this basis. 8  defendant.3 Mallett contrasts significantly from the facts present here. In Mallett, the defendant filed multiple continuances, changed his plea and then cancelled his change of plea and based on these various motions the Court found the defendant’s efforts to delay pre-trial proceedings outweighed his assertion of a right to speedy trial. That is not the case here as Fisher asked for only one continuance. The State also argues that Fisher’s July 28, 2014, guilty plea and the trial court’s decision to vacate such plea on November 21, 2014, should be attributed to Fisher because the trial court’s vacation of the plea was based on Fisher’s statements during preparation of the sentencing assessment report that he did not remember committing the underlying facts. Fisher did not ask the court to vacate his guilty plea, however. It was not until after Fisher entered a plea of guilty that the court found a lack of factual basis for the guilty plea based on Fisher’s statement to the probation officer that he did not remember committing the crime. Absent any evidence that Fisher made these statements with the purpose of disrupting the trial process, we defer to the trial court’s decision to not weigh this delay against Fisher. Additionally, there is no explanation provided by the State as to why Fisher was not brought to trial at any time between September 12, 2012, and July 17, 2014, a delay totaling over 600 days. Even if we accepted the State’s arguments, and attributed the delays surrounding the aborted plea proceedings to Fisher, this would not change the result. Even excluding those time periods, the State is responsible for the delays from Fisher’s arrest on October 28, 2009, 3 751 F.3d 907 (2014). 9 through his first continuance request on May 23, 2011, from January 20124 through Fisher’s attempted guilty plea in July 2014, and from November 2014 through the granting of Fisher’s motion to dismiss on October 23, 2015. Even on the State’s arguments, it is responsible for delays of approximately five years in bringing Fisher to trial. We find that the motion court justifiably attributed the failure to bring Fisher to trial quickly against the State. (iii) Defendant’s Assertion of the Right to a Speedy Trial “There is no rigid requirement regarding when a defendant must assert his right to a speedy trial.” Sisco, 458 S.W.3d at 316. Courts will weigh the timeliness of the assertion and the frequency and force of a defendant’s objections to delays in trial. Id. “A request early in the proceedings for an immediate trial reflects the desire to have a speedy trial.” State v. Mason, 428 S.W.3d 746, 751 (Mo. App. 2014). The defendant waives his right only by failure to file a motion to dismiss the case before trial. State v. Richmond, 611 S.W.2d 351, 355 (Mo. App. 1980). Courts should indulge every reasonable presumption against waiver, and they should not presume acquiescence in the loss of fundamental rights. Barker, 407 U.S. at 24. Presuming waiver from a silent record is impermissible. Id. The record indicates that Fisher asserted his right to a speedy trial twice prior to filing his motion to dismiss in September 2015: on February 22, 2011, when he filed his pro se motion for a speedy trial, and again on May 23, 2011, when his counsel explained to the 4 The State argues that the entire period of time through the setting of a further trial date on September 12, 2012 should be attributed to Fisher. We disagree. The trial court vacated a plea hearing scheduled on January 9, 2012, and the case was then once again ready for disposition by trial. The burden to bring Fisher to trial remained on the State. 10  court that Fisher’s request for a continuance was not intended to abandon his speedy-trial demand. The State argues that Fisher’s request for a continuance was, in effect, a waiver of his right to a speedy trial, or at least an indication of his desire to avoid a speedy trial. The State cites State v. Darnell5 wherein the defendant was found to contribute to the delay by asking for three different continuances. Darnell differs from this case because the trial court record confirms that only one of the numerous continuances can be charged to Fisher. We give deference to the trial court’s findings of facts that all other delays fall upon the State. Further, it is undisputed that Fisher asserted his right to a speedy trial by filing a motion for speedy trial on February 22, 2011, and that at the time he requested a continuance in May 2011, his counsel explained to the court that Fisher was “[n]ot waiving his [speedy-trial] request,” although “[h]e understands [his continuance request] will impact the speedy trial request for the period that this is delayed” due to Fisher’s request. He filed a motion to dismiss for violation of his right to speedy trial on September 16, 2015, a full two months prior to his final trial setting of November 23, 2015. Because he filed his motion before the final trial date setting, the State’s arguments that Fisher waived his right fail. Although the State is correct that Fisher did not motion for a speedy trial until after the 180 days from his arraignment had passed, this is explained by the State’s request for a continuance beyond the January 10, 2011, trial date. Had the State not received this continuance, Fisher would have had no reason to presume he would not receive a speedy trial as his trial would have occurred within 180 days of arraignment. Fisher’s filing of the 5 858 S.W.2d 739 (Mo. App. 1993). 11 motion for speedy trial on February 22, 2011, in response to the State’s continuance was timely under the circumstances and evidences force in his objection to the continuance in the State’s favor. Based on the length of Fisher’s detainment (six years), his request for a speedy trial within the first year and a half constitutes a request early in the proceedings and reflects his desire for a speedy trial. As stated, Missouri courts have established that there is no rigid requirement regarding the defendant’s assertion of his right and that one only waives such right by failing to move to dismiss before trial.6 Fisher not only asserted his right in a timely fashion, but he also moved to dismiss a full two months before the trial date. (iv) Prejudice to the Defendant. “Whether a delay prejudiced the defendant is evaluated in light of three concerns: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the possibility that the defense will be impaired.” Sisco, 458 S.W.3d at 317. Courts view the third consideration as the most serious. Id. “Anxiety and concern undoubtedly exist in every criminal case, but that alone does not establish prejudice where the defendant neither asserts nor shows that the delay weighed particularly heavily on him in specific instances.” State v. Woodworth, 941 S.W.2d 679, 695 (Mo. App. 1997). “Affirmative proof of particularized prejudice is not essential to every speedy trial claim, as excessive delay presumptively compromises the reliability of trial in ways that 6 We note that the better practice is to require the defendant to make a record in open court that he or she is affirmatively waiving their constitutional right to a speedy trial. 12 neither party can prove or, for that matter, identify.” State ex rel. Garcia v. Goldman, 316 S.W.3d at 913 (in finding a violation of the defendant’s right to a speedy trial for a seven year delay, the court based its decision on the fact that “too many witnesses and too many years have slipped away….”). No one factor, including actual prejudice, is necessary to find a speedy trial violation. Id., citing Barker v. Wingo, 407 U.S. at 533. It is undisputed that Fisher was incarcerated for 2,186 days. He was denied bond based on the severity of the charges and, therefore, was not afforded the option of being released on bail during the six years of his incarceration. Although Fisher was found guilty of and incarcerated from July 2011 to March 2015 for a separate, unrelated charge of damaging jail property, he was already incarcerated for the October 28, 2009, charges at the time of this offense. The trial court did not cite to any specific instances of anxiety and concern that Fisher’s incarceration weighed heavily upon him. Fisher also did not present an argument that the delay weighed heavily on him in specific instances. Although we acknowledge that being detained for six years would cause anxiety and concern, we cannot speculate as to whether the delay weighed heavily on Fisher or that he suffered from a specific instance of anxiety and concern. The sentencing hearing transcript from November of 2014, a full eleven months before the charges were dismissed, shows that Fisher claims that he could not remember the events giving rise to his charges. Defense counsel argues that, if Fisher were to testify that he simply could not remember the alleged crime, the jury would likely not find him credible and this would have a prejudicial effect. Here, while we cannot say that Fisher’s inability to remember the events giving rise to his charges is attributable to the trial delay, we agree that, 13  the inexplicable delay of six years in Fisher’s case compromised the reliability of his trial, thereby prejudicing him. In any event, “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” State v. Sisco, 458 S.W.3d at 318 (citation and internal quotation marks omitted). As the United States Supreme Court explained in Doggett, 505 U.S. 647, “the weight we assign to official negligence [in bringing a defendant to trial] compounds over time as the presumption of evidentiary prejudice grows.” Id. at 657. As Doggett explained in language that is equally applicable here, “[w]hen the Government’s negligence . . . causes delay six times as long as that generally sufficient to trigger judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to relief.” Id. at 658 (citations and footnote omitted). We conclude, therefore, that the facts of this case as applied to the Barker factors establish that Fisher suffered a violation of his Sixth Amendment right to a speedy trial and the motion court correctly ordered the dismissal of his charges with prejudice. The six year delay between Fisher’s arrest and the dismissal of the charges, Fisher’s timely request for a speedy trial, and the prejudice resulting from the delay that was primarily attributable to the State, all support the circuit court’s order and judgment sustaining Fisher’s motion to dismiss the charges. We affirm the ruling of the trial court dismissing the case. Anthony Rex Gabbert, Judge All concur. 14 

463 S.E.2d 321 (1995) David J. HICKUM, Appellant, v. Judy B. HICKUM, Respondent. No. 2408. Court of Appeals of South Carolina. Submitted October 3, 1995. Decided October 30, 1995. *322 Hal J. Warlick, of Warlick Law Office, Easley, for appellant. Kenneth C. Porter, of Porter & Rosenfeld, Greenville, for respondent. HEARN, Judge: In this domestic action, husband appeals the date of valuation of the marital estate, the equitable apportionment of the parties' marital debt, the valuation of the wife's cosmetic business, alimony, and the inclusion of the parties' retirement plans in the marital estate. We affirm.[1] The parties married on July 20, 1963, and have one emancipated child. They separated in March of 1992 after wife discovered husband's adulterous relationship with a woman named Beth.[2] Wife filed an action for divorce on the ground of adultery on October 19, 1992. A pendente lite order was signed on November 23, 1992, in which husband was ordered to pay $400.00 per month towards satisfaction of a home equity loan on the marital residence. Pursuant to the administrative rules of the family court, the October 19 action was dismissed because it was not brought to trial within 270 days from the date of filing. FC ADMIN-5 (S.C.Sup.Ct. filed June 5, 1992). On September 20, 1993, husband filed for divorce on the ground of one year continuous separation. Wife counterclaimed for divorce based on adultery, and sought equitable apportionment of the marital estate, alimony and attorney's fees. The trial judge granted wife a divorce on the ground of adultery. The trial judge also ordered a fifty-fifty division of the marital property, which she identified and valued as of September 20, 1993, and awarded wife permanent, periodic alimony of $475.00 per month and attorney's fees. Husband appeals. I. Husband contends the trial judge erred when she included the parties' retirement plans in the marital estate. We disagree. In applying S.C.Code Ann. § 20-7-473 (Supp.1994) this court held: "Since retirement plans were not excluded by the act, retirement plans are therefore includable as marital property subject to division." Ferguson *323 v. Ferguson, 300 S.C. 1, 386 S.E.2d 267 (Ct.App.1989). Accordingly the trial judge properly considered the parties' respective retirement plans as marital property subject to equitable apportionment. II. Husband contends the family court judge erred in ruling that the filing date of the second action, September 20, 1993, was the operative date for identifying and valuing the marital estate. He argues that the marital litigation between these parties began on October 19, 1992, the date the wife commenced the prior action, and that the marital estate should be valued as of the date of separation.[3] In a related argument husband asserts that any property acquired by either party subsequent to the entry of the pendente lite order in the prior action should have been excluded from the marital estate pursuant to § 20-7-473(2). Therefore, the husband contends, the family court judge overvalued several marital assets, including husband's retirement account which increased from $116,944.73 to $129,047.99 from December 31, 1992, until September 20, 1993.[4] Appellant's argument that the trial judge erred in using the second filing date for valuation purposes has been rejected previously by this court. In Shannon v. Shannon, 301 S.C. 107, 112, 390 S.E.2d 380 (Ct. App.1990), this court interpreted § 20-7-473 and held the kind of litigation required "to trigger the statute must be the same litigation which brings about the equitable division." In refusing to link valuation to the filing date of a prior action between the parties, the court noted: "It is not enough that the parties in the past engaged in some litigation if that litigation did not serve as the vehicle for equitable division." Id. The reasoning of Shannon, which furthers this State's public policy of preserving marriages, is applicable here. The operative litigation which "triggered" S.C.Code Ann. § 20-7-473 and brought about the equitable division was obviously the litigation which began on September 20, 1993, not the prior stricken litigation. Therefore, the family court judge correctly ruled that the marital assets should be valued as of September 20, 1993. Husband also contends certain property should have been excluded from the marital estate because it increased in value or was "acquired" after the entry of the pendente lite order in the prior litigation. We disagree. Section 20-7-473 defines marital property as all real and personal property acquired by the parties during the marriage and owned as of the date of filing or commencement of marital litigation. Subsection (2) of the statute creates an exception for property acquired after the entry of a pendente lite order and designates such assets as nonmarital property. While husband's argument that the pendente lite order in the prior, nontriggering action should operate to exclude certain property from the marital estate is an ingenious one, we reject it. Section 20-7-473 is the vehicle which creates "marital property" to be equitably divided by the family court. While a litigant's ownership right in marital property is acquired during the marriage, "`[m]arital property' as such does not exist until the date when marital litigation is filed or commenced." Prosser v. Pee Dee State Bank, 295 S.C. 212, 214, 367 S.E.2d 698 (1988). Accord, Hopkins v. Hopkins, 295 S.C. 239, 367 S.E.2d 714 (Ct.App.1988). Thus, the "marital property" at issue here did not exist until September 20, 1993, at the time of the filing of this action. It would be incongruous to hold, as husband suggests, that a temporary order in a prior action should limit the definition of what constitutes marital property in this case, when the marital property itself did not even "exist" under the law until September 20, 1993. To accept husband's argument would be to permit "the tail to wag *324 the dog," and would result in inconsistency and confusion. It would also punish the wife who failed to pursue her divorce action and be contrary to this State's public policy.[5] Consistent with the prior case law interpreting the statute, we hold that the action which brings about the equitable division is not only the triggering action for purposes of the identification and valuation of marital assets pursuant § 20-7-473, but also the triggering action for any pendente lite order which operates to exclude assets from the definition of marital property under subsection (2). We note this construction of § 20-7-473 is also consistent with prior case law which holds that both parties are entitled to share in any appreciation in marital assets which occurs after the parties separate and before the parties divorce. Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (1987).[6] III. Husband also asserts the trial judge erred when she ordered him to pay the "Visa/shop debt" as part of the equitable apportionment of the parties' debts. S.C.Code Ann. § 20-7-472 (Supp.1994) provides in pertinent part: In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors: (13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage; (15) such other relevant factors as the trial court shall expressly enumerate in its order. Section 20-7-472 creates a presumption that a debt of either spouse incurred prior to marital litigation is a marital debt, and must be factored into the totality of equitable apportionment. The presumption is rebuttable. Hardy v. Hardy, 311 S.C. 433, 429 S.E.2d 811 (Ct.App.1993). "Marital debt" has been defined as debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable. Id. at 437, 429 S.E.2d at 813. Moreover, the estate which is to be equitably divided by the family court judge is the net estate, i.e., provision for the payment of marital debts must be apportioned as well as the property itself. Therefore, basically the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts. Id. The burden of proving a spouse's debt as nonmarital rests upon the party who makes such an assertion. If the trial judge finds that a spouse's debt was not made for marital purposes, it need not be factored into the court's equitable apportionment of the marital estate, and the trial judge may require payment by the spouse who created the debt for nonmarital purposes. However, the words "in such proportion as it finds appropriate," as used in § 20-7-472, accord much discretion to the trial judge in providing for the payment of marital debts as a consideration in the equitable division of the marital estate. Id. On review, this court looks to the fairness of the overall apportionment. In light of the entire equitable distribution of the marital estate, we find no abuse of discretion in apportioning the "Visa/shop debt" to husband. IV. Appellant further contends the trial judge erred when she considered the husband's live-in paramour's potential contributions to his household expenses when determining *325 the amount of alimony awarded to wife. The trial judge's finding that the paramour "is or should be contributing to the joint household expenses that the husband is incurring" was simply a finding of fact and not directly related to the award of alimony. Rather, the trial judge stated she considered the factors as enumerated in S.C.Code Ann. § 20-3-130 (Supp.1994). She specifically found wife's expenses as related to her income resulted in a substantial deficit, and to maintain the standard of living to which she was accustomed, husband was financially able and, therefore, should pay her alimony of $475.00 per month. Alimony is a substitute for the support which is normally incident to the marital relationship. Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504 (1977). Ordinarily, the purpose of alimony is to place the supported spouse, as nearly as is practical, in the position of support he or she enjoyed during the marriage. Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct.App.1988), cert. denied, 298 S.C. 117, 378 S.E.2d 445 (1989). Wife worked outside the home during the entire marriage in addition to being the primary caretaker of the parties' child and providing domestic services to her family. Wife has a monthly income of $1,492.83. Husband earns $3,255.00 per month. A ruling on alimony is discretionary. Williamson v. Williamson, 311 S.C. 47, 426 S.E.2d 758 (1993). We find no abuse of discretion in the award of alimony. V. Husband contends the trial judge underestimated the value of wife's interest in a cosmetic business. Marital businesses are to be valued at fair market value as ongoing businesses. RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564 (1991). The trial judge found the business to be worth $7,250.00, the value of the inventory. Therefore, wife's share, subject to equitable apportionment, was $3,625.00. Husband valued the business at $10,000.00. Husband contends the trial judge's valuation, based solely on the business's inventory, is inconsistent with the holding in RGM v. DEM. We disagree. Wife and her sister opened a cosmetic business approximately eighteen to twenty years prior to this action.[7] They are equal partners. The business's 1993 tax return shows a profit of only $204.00. Wife testified she worked in the business as a "hobby." The 1993 tax returns showed the business inventory at the end of 1993 to be $7,250.00. Wife and sister rent the building which houses the business, and claim no other assets other than the inventory in the business. Based on the unique nature of the wife's business, we find no error in the trial judge's valuation of the cosmetic business. See Roe v. Roe, 311 S.C. 471, 429 S.E.2d 830 (Ct.App.1993) (the family court is given broad discretion in valuing the marital property, and this court will affirm a finding as to value which is supported by the evidence); Woodward v. Woodward, 294 S.C. 210, 363 S.E.2d 413 (Ct.App.1987) (the family court's valuation of property will be affirmed if it is within the range of the evidence); Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (Ct.App. 1987) (the family court may accept one party's valuations of marital property over those of the other party). AFFIRMED. CURETON, J. concurs and GOOLSBY, J., concurs in a separate opinion. GOOLSBY, Judge (concurring): I concur fully in Parts I, III, and IV of the majority opinion. I do not agree with the decision reached in Part II thereof that contributions made by a spouse after the entry of a pendente lite order in a divorce action to *326 a retirement account and the increase in the value of the account attributed to those contributions and property acquired by a spouse after entry of a pendente lite order in a divorce action constitute marital property where the divorce action in which the pendente lite order was obtained did not result in the family court's equitably distributing the marital property. In other words, I do not agree with the majority's holding in Part II that property acquired by a spouse while a pendente lite order is in force constitutes marital property even when the action in which the order was obtained did not lead to an equitable division of the marital property. S.C. Code Ann. § 20-7-473 (Supp.1994) plainly and unambiguously states that [t]he term "marital property" ... means all real and personal property ... acquired by the parties during the marriage and ... owned as of the date of filing or commencment of marital litigation ..., except the following ...: .... (2) property acquired by either party before the marriage and property acquired after the happening of the earliest of (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. (Emphasis ours.) In brief, the General Assembly, judging from the clear and unambiguous language employed in section 20-7-473, intended that property acquired by a person in certain defined, similar instances is to be regarded as that person's sole property. These instances involve the acquisition of property either wholly outside of marriage or during marriage but when the parties no longer function economically as marital partners. Cf. Walker v. Walker, 295 S.C. 286, 288, 368 S.E.2d, 89, 90 (1988) ("Equitable distribution is based on a recognition that marriage is, among other things, an economic partnership."); L. Golden, Equitable Distribution of Property, § 5.12 p. 106 (1983) ("[W]hen the parties cease to contribute to the joint enterprise, when the partnership no longer exists, the rationale for equitable distribution is no longer cogent."). As to property acquired after the entry of a pendente lite order, the General Assembly did not exempt from the definition of the term "marital property" only that property acquired by a party after entry of a pendente lite order in the divorce or separate maintenance action that "commenc[ed] [the] marital litigation," i.e., the litigation that leads to a property division. See Shannon v. Shannon, 301 S.C. 107, 390 S.E.2d 380 (Ct.App.1990) (defining what constitutes "commencement of marital litigation").[1] Rather, it exempted property that a party acquired after entry of a pendente lite order, regardless of whether the action "commenc[ed] [the] marital litigation," as Shannon defines that term. *327 Mr. Hickum, however, did not present this precise argument to the trial court; consequently, I concur in the result reached by the majority. See Schofield v. Richland County Sch. Dist., ___ S.C. ___, 447 S.E.2d 189 (1994) (an issue must be raised to and ruled upon by the trial court in order to be considered on appeal); White v. Livingston, 231 S.C. 301, 98 S.E.2d 534 (1957) (one cannot present and try his case on one theory and then thereafter advocate another theory on appeal). NOTES [1] Because oral argument would not aid the court in resolving the issues, we decide this case without oral argument. [2] The Husband admitted he had had sex with Beth in the marital home while the Wife was at work. At the time of the final hearing, the Husband and Beth had been living together for about a year. [3] In support of this proposition, Appellant relies on cases decided prior to the effective date of the Equitable Apportionment of Marital Property Act. [4] This court is somewhat confused by the husband's argument that the retirement account should have been valued as of December 31, 1992, an arbitrary and irrelevant date in relation to the divorce action. [5] While the initial complaint filed by wife was stricken because she failed to proceed, we find no evidence she delayed the action in bad faith. Rather, she testified she hoped "time might save the marriage." However, family court administrative rules allow either party to restore a case struck from the docket upon written application showing good cause to the chief administrative judge. FC ADMIN-5, (S.C.Ct. filed June 5, 1992). There is no indication, however, that the husband moved to restore the prior action. [6] Since the assets at issue here were all in existence at the time the parties separated they were arguably outside the scope of subsection (2) because they were not "property acquired" after the entry of a pendente lite order. [7] Husband emphasizes the cosmetic business is "established" and, thus, should be valued higher. The courts of South Carolina have consistently held, however, the goodwill of a business is too speculative to be included in the marital estate. Casey v. Casey, 293 S.C. 503, 362 S.E.2d 6 (1987). [1] I do not agree with the majority's reliance on Shannon because that case did not address the exceptions contained in S.C.Code Ann. § 20-7-473 (Supp.1994). Rather, it only interprets the meaning of the phrase "commencement of marital litigation," concluding that "the kind of marital litigation required to trigger the statute must be the same litigation which brings about the equitable division." Id. at 112, 390 S.E.2d at 383. One other thing I do not agree with. I believe the majority's decision does not further this state's public policy of preserving marriages and encouraging reconciliations. It hinders that policy. For example, a husband who acquired assets after the entry of a pendente lite order in a divorce action brought by his wife and who, after the action was stricken from the docket pursuant to FC ADMIN-5 (S.C.Sup.Ct. filed June 5, 1992) for failure of the wife to prosecute, chose not to rescue his marriage and moved to restore the case to the family court docket would not suffer an automatic decrease in the amount of his separate property as he would if he attempted to reconcile with his wife, elected not to move for a restoration of the case to the family court docket, failed in the reconciliation attempt, and thereafter brought an action for a divorce against his wife. In the former case, the assets acquired pendente lite would not be considered "marital assets," while in the latter case they would be so considered.

879 F.2d 945 28 Fed. R. Evid. Serv. 705 UNITED STATES of America, Appellee,v.Winston MACHOR, Defendant, Appellant.UNITED STATES of America, Appellee,v.Armand Allen STEVENSON, Defendant, Appellant.UNITED STATES of America, Appellee,v.Valeriano BRITO-MEJIA, Defendant, Appellant.UNITED STATES of America, Appellee,v.Gumersindo Eduardo CARRASCO, Defendant, Appellant. Nos. 87-1603 to 87-1606. United States Court of Appeals,First Circuit. Heard Dec. 8, 1988.Decided June 29, 1989.Rehearing and Rehearing En Banc in No. 87-1606 Denied Aug. 1, 1989. Francis K. Morris, by Appointment of the Court, with whom Morris & Collins, Framingham, Mass., was on brief, for defendant, appellant Gumersindo Eduardo Carrasco. Benjamin S. Waxman with whom Frederick S. Robbins and Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., were on brief, for defendant, appellant Armand Allen Stevenson. Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for defendant, appellant Valeriano Brito-Mejia. Marshall T. Cary, Bangor, Me., by Appointment of the Court, for defendant, appellant Winston Machor. Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee. Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges. TORRUELLA, Circuit Judge. 1 After a joint jury trial, the four appellants, Valeriano Brito-Mejia ("Brito"), Gumersindo Carrasco ("Carrasco"), Winston Machor ("Machor") and Armand Allen Stevenson ("Allen") were convicted under 21 U.S.C. Sec. 841(a)(1) for aiding and abetting each other in the possession with intent to distribute cocaine. Each appellant alleges the commission of several errors by the district court. We find that no reversible error was committed and affirm the four convictions. 2 The facts which the jury could have found are as follows. At the time of the relevant facts, Mario Castillo ("Castillo") was employed as a cabin steward on board the vessel VICTORIA and worked as an informant for the United States Customs Service. Carrasco, who also worked on the VICTORIA, had known Castillo for approximately eight months to a year. On November 16, 1986, Carrasco told Castillo that he was looking for someone to buy a kilogram of cocaine that Carrasco had "in the company of Mr. Brito" and "two Costa Ricans" who were to arrive in San Juan in the vessel SONG OF AMERICA. (Machor and Allen are in fact Costa Rican nationals and did arrive afterwards on the ship SONG OF AMERICA). Castillo informed Customs about Carrasco's offer. Castillo was directed to arrange a meeting between Carrasco and agent Rivera, who would pose as a prospective buyer. This meeting took place several days later at the Don Ricardo Restaurant in Old San Juan. Agent Rivera and Carrasco agreed to the sale of one kilogram of cocaine for $30,000. Carrasco told the agent that the cocaine would arrive "in the company of two Costa Ricans" who were arriving in the ship SONG OF AMERICA and that, as soon as the cocaine arrived, he would contact Rivera through informant Castillo. Carrasco also mentioned that Brito was "the one in charge." 3 The next day Carrasco phoned Castillo to inform him that the cocaine had arrived. Carrasco, accompanied by Allen, picked up Castillo. Castillo then asked Carrasco to stop the car so that he could phone the buyer and tell him that the cocaine had arrived. Castillo called Customs and arranged for a second meeting later that day at the Don Ricardo Restaurant. Castillo went back into the car where Allen showed him a blue and white bag containing cocaine. Then they picked up Brito and Machor and proceeded on to the Don Ricardo Restaurant. 4 Carrasco dropped off Castillo, Allen, Machor and Brito at the restaurant and went to park the car. While Allen, Machor and Brito remained inside the restaurant, informant Castillo and agent Rivera met outside. Castillo brought out Brito and introduced him to the prospective buyer, agent Rivera. Brito said that the "Costa Ricans" had the kilogram of cocaine inside the restaurant. Rivera asked how much cocaine they could supply in the future and Brito replied they could get two kilograms each time the ship arrived in San Juan. Afterwards Brito went inside the restaurant and came out with Machor. Machor agreed to show Rivera the cocaine. Machor again went inside the restaurant and later came out with Allen. Allen placed himself next to a parked car and started to look in both directions. Machor was carrying a white plastic bag with blue designs. Machor and Rivera walked towards a store near the restaurant where Machor opened the bag and showed Rivera the cocaine. After Rivera saw the "merchandise" he approached Allen, shook his hand, and told him "this is fine." Allen replied: "everything is fine, fine, fine." Thereafter Rivera gave a pre-arranged signal to surveillance agents who proceeded to arrest Machor, Allen and Brito. The cocaine was found on a chair in the restaurant, where it apparently had been returned before the arrests. Carrasco was arrested later in his car at Pier Six, some distance from the restaurant. 5 After the trial, the four codefendants were found guilty on Count One of the indictment: aiding and abetting in the possession of cocaine with intent to distribute it. We will now address the arguments advanced by appellants. I. Sufficiency of the Evidence 6 Defendants contend that the evidence presented at trial against them was insufficient to sustain their conviction. In considering the sufficiency of the evidence in criminal cases, the proper standard of review is whether, viewing the evidence in the light most favorable to the government and without assessing the credibility of the witnesses, a rational fact finder could have adjudged the defendant guilty beyond a reasonable doubt. See United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989) and cases therein cited. The elements of the crime charged do not have to be proven with direct evidence; the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982). 7 An essential element that the government was required to prove in this case was that the defendants "aided and abetted" in the possession with intent to distribute the controlled substance. Thus, the government had to show that each defendant "associated himself with the venture, that he participated in it as something he wished to bring about, that he sought by his action to make it succeed." Id., (quoting United States v. Martinez, 479 F.2d 824, 829 (1st Cir.1973)). 8 In evaluating the evidence presented against defendants in the light most favorable to the government we are compelled to conclude that it was more than sufficient. From the very first meeting between the informant and Carrasco, the latter identified Brito and "two Costa Ricans" as the persons interested in selling cocaine. At the first meeting with agent Rivera, Carrasco again mentioned two Costa Ricans who were to arrive in the ship SONG OF AMERICA as the persons who were bringing the cocaine. As it turned out, Machor and Allen are Costa Rican nationals and did arrive in the ship SONG OF AMERICA. Carrasco also mentioned that Brito was "the one in charge." On the day of the arrests, Carrasco picked up the other codefendants, including Brito and Machor for the purpose of attending the pre-arranged meeting with the purported buyer of the cocaine, agent Rivera. At that time, Allen had possession of the cocaine. At the restaurant Brito specifically stated the Costa Ricans had the cocaine inside the restaurant. He even arranged for future cocaine sales. Later on Brito came out of the restaurant with Machor who showed agent Rivera the cocaine. These facts obviously amounted to more than "a mere presence at the scene and knowledge that a crime is being committed," United States v. Tarr, 589 F.2d 55, 59 (1st Cir.1978), as defendants contend. On the contrary, the facts show that defendants shared the criminal intent necessary to be convicted for aiding and abetting. 9 Defendants also challenge the sufficiency of the evidence on the grounds that the cocaine was found on a chair inside the restaurant. We reject this argument. The fact that the cocaine was not found in the possession of one of the codefendants is not dispositive. The jury was reasonable in inferring the commission of the crime beyond a reasonable doubt based on the totality of the evidence introduced. II. The Admission of Alleged Hearsay 10 Machor and Allen object to the admission of statements of other co-defendants introduced through the testimony of government witnesses. They question the admissibility of the statements on two interrelated grounds. First, they argue that the lack of a formal Petrozziello finding amounted to a reversible procedural error. See United States v. Petrozziello, 548 F.2d 20 (1st Cir.1977). Second, they contend that the statements were inadmissible because they were not within the coconspirators' statements exception to the hearsay rule. Fed.R.Evid. 801(d)(2)(E). 11 In order to determine whether the lack of a formal Petrozziello finding constitutes reversible error we shall review the relevant facts. During the course of the trial the informant Castillo testified that defendant Carrasco had stated that he had a kilogram of cocaine "in the company" of Brito and "two Costa Ricans." The defense did not object to this testimony. Castillo also testified that at the initial meeting at the restaurant Carrasco had told agent Rivera that he had the cocaine "in the company of the Costa Ricans and Mr. Brito." At this point, defense counsel objected on hearsay grounds. After a brief bench conference, the court conditionally admitted the statements "subject to tie up" under Fed.R.Evid. 801(d)(2)(E), as to coconspirators' statements. See Petrozziello, supra; United States v. Ciampaglia, 628 F.2d 632 (1st Cir.), cert. denied, 449 U.S. 956, 1038, 101 S.Ct. 365, 618, 66 L.Ed.2d 221, 501 (1980). 12 Later during the trial, agent Rivera also testified as to the initial meeting at the restaurant. When he stated that Carrasco had said that Brito and some Costa Ricans had the cocaine for sale, defense counsel objected on hearsay grounds. Citing Petrozziello, the court overruled the objection. 13 Although he had the opportunity to do so, at no point during the course of the trial did defense counsel request a formal Petrozziello determination. It is for the first time on appeal that appellants argue the court should have made a formal Petrozziello finding. 14 In Petrozziello, we had for the first time the opportunity to interpret the impact of the newly promulgated Federal Rules of Evidence on the admissibility of coconspirators' statements. In particular, we held that, contrary to previous practice, the admissibility of such statements would be determined by the judge pursuant to Fed.R.Evid. 104(a). In making this determination, the judge should consider the admissibility of such statements using a preponderance of the evidence test. Petrozziello at 23. See Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The procedure to be employed by the judge was further explained in Ciampaglia, supra, partially following the Eighth Circuit Rule. Under Ciampaglia, if the government attempts to introduce a statement under Fed.R.Evid. 801(d)(2)(E), the Court, upon proper objection, may, if it so chooses,1 admit the declaration subject to it being "connected up." At that time the court should inform the parties out of the hearing of the jury that: 15 (a) the prosecution will be required to prove by a preponderance of the evidence that a conspiracy existed, that the declarant and defendant were members of it at the time that the declaration was made, and that the declaration was in furtherance of the conspiracy, (b) that at the close of all the evidence the court will make a final Petrozziello determination for the record, out of the hearing of the jury; and, (c) that if the determination is against admitting the declaration, the court will give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice. 16 Ciampaglia, 628 F.2d at 638. 17 Without a proper objection to the statements introduced by the government, the court is not required to follow the Ciampaglia procedure or make a Petrozziello finding. United States v. Lopez, 709 F.2d 742, 745 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983); Campa, supra, at 1011. Even when defense counsel makes a proper objection to the statements, errors in the timing of the Petrozziello determination or in the standard employed in making that determination, unaccompanied by proper objections, will be reversed on appeal only upon a showing of plain error. United States v. David E. Thompson, Inc., 621 F.2d 1147, 1153 (1st Cir.1980); United States v. Pappas, 611 F.2d 399, 405 (1st Cir.1979); Ciampaglia, supra. 18 In the case at bar, however, defense counsel properly objected to the admissibility of at least some of the coconspirators' statements. Nevertheless, counsel did not request a final Petrozziello determination. 19 At least one court has held that as long as the defense properly objects to the admissibility of the statements, the lack of a Petrozziello-type finding amounts to a reversible error. United States v. Radeker, 664 F.2d 242 (10th Cir.1981). Thus, according to this rule, it is the government's responsibility to request such final determination. United States v. Monaco, 700 F.2d 577 (10th Cir.1983). We reject this mechanical approach. 20 On the other end of the spectrum are cases holding that the lack of an appropriate motion requesting a Petrozziello-type determination limits appellate review of the admissibility of the extrajudicial statements only upon a showing of plain error. United States v. Miller, 799 F.2d 985, 990 (5th Cir.1986); United States v. DeRoche, 726 F.2d 1025, 1028 (5th Cir.1984). But see United States v. Manzella, 782 F.2d 533 (5th Cir.), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986); United States v. Winship, 724 F.2d 1116 (5th Cir.1984). Thus under this rule it is incumbent on trial counsel to request a formal ruling. 21 The proper standard, however, seems to lie between these two postures. On the one hand we have stressed the importance of making a formal Petrozziello finding. See Ciampaglia, at 638 n. 3. This ensures that the court addresses the policy concerns inherent in considering the admissibility of extrajudicial statements. See Bourjaily, supra 483 U.S. at 176, 107 S.Ct. at 2779. On the other hand, an "automatic reversal" rule would encourage litigants, in some cases where the evidence supports the admissibility of the extra-judicial statements, to strategically omit a specific Petrozziello request in order to get an "automatic" reversal. Thus, the responsibility to see that a Petrozziello determination is made should fall on both the government and the defense. In cases, such as this one, where a proper hearsay objection was made and a Petrozziello determination was neither requested by the parties nor made by the trial court, there will be no reversible error if an examination of the record reveals that the trial court acknowledged that a Fed.R.Evid. 801(d)(2)(E) problem existed and considered the issue, see Manzella and Winship, supra, provided, of course, that the government has met its burden of proof under Petrozziello. If the appeals court cannot determine whether the preponderance standard has been met, or feels that the trial court did not properly consider the issue, it may also remand to the trial court with instructions to make a Petrozziello determination. See United States v. Holloway, 731 F.2d 378 (6th Cir.1984). This approach will ensure that the policies inherent in making a Petrozziello determination are considered and that judicial resources are conserved. 22 The record in this case reveals that the trial court acknowledged that the statements raised a Petrozziello issue and that it considered the issue. As soon as the defense objected to the statements on hearsay grounds, the court conducted a brief conference with the attorneys out of the hearing of the jury and determined to conditionally admit the statements under Fed.R.Evid. 801(d)(2)(E) "subject to tie up." Later during the trial, the defense again objected on hearsay grounds and the court overruled the objection citing Petrozziello. At the close of both the government's and the defense's case, motions for acquittal were denied by the court. These facts show that the court did consider the Petrozziello issue. 23 The record also reveals that the government met its burden of proving, by a preponderance of the evidence, "that a conspiracy existed at the time the statement[s] [were] made and that the statement[s] [were] made in the furtherance of the conspiracy." United States v. Pelletier, 845 F.2d 1126, 1128 (1st Cir.1988); Fed.R.Evid. 801(d)(2)(E); Petrozziello, supra. Such evidence was provided by the testimony of Castillo and agent Rivera. Castillo testified inter alia that on November 16, 1986 Carrasco said that he was looking for a buyer of a kilogram of cocaine that he had "in the company of Mr. Brito" and "two Costa Ricans" who were to arrive in the ship SONG OF AMERICA. It is undisputed that Machor and Allen are in fact Costa Rican nationals and did arrive on said ship. Castillo testified further that a meeting was arranged with agent Rivera posing as a buyer. He stated that at that meeting Carrasco again said that he wanted to sell the cocaine that was to arrive in the vessel SONG OF AMERICA "in the company of two Costa Ricans." Castillo's testimony about this meeting was corroborated by the testimony of agent Rivera. Castillo also testified that on the day of the proposed cocaine sale, he accompanied the four defendants, including Machor and Allen, to the restaurant where the sale was supposed to take place. Agent Rivera testified, inter alia, that when he arrived at the restaurant, he was introduced to Brito who explained that the Costa Ricans inside the restaurant had the cocaine. He said that Brito went into the restaurant and then came out with Machor who stated that he could not hand over the cocaine without first receiving the agreed purchase price. Rivera continued that Machor went inside the restaurant again and came out with the bag of cocaine. This time he was accompanied by Allen. This evidence shows, by at the very least a preponderance standard, that a conspiracy to sell cocaine existed at the time the statements against Machor and Allen were made, and that they were made in the furtherance of the conspiracy. The error alleged by Machor and Allen was not committed. III. Effectiveness of Representation 24 Carrasco argues that his right to effective assistance of counsel was violated by the court's denial of his motion to remove his appointed counsel. 25 The record shows that at the commencement of the trial Carrasco made an oral motion to address the court. Hence a hearing was held in chambers. Carrasco informed the court that he was not satisfied with his appointed attorney and that he desired substitute counsel. His dissatisfaction generally stemmed from disagreements in two areas. The first is related to a communication problem. Carrasco complained about the orientation, or lack thereof, that counsel had offered him. He said that counsel had told him that "justice does not exist" and that "even if [Carrasco] were to tell the truth ... that once they accused [him] they are the ones that are going to be believed." Tr. Vol. VI p. 5. The second area of disagreement arose from an alleged attempt by counsel to have Carrasco's uncle testify to "something which goes against the truth, something that goes against what [Carrasco] had stated to [counsel]." The judge questioned Carrasco and his attorney about the disagreements. Carrasco's attorney explained that he was trying to tell his client that in his opinion his chances were slim. The court obviously gave credence to the attorney, concluding that Carrasco dissatisfaction with his appointed attorney stemmed from Carrasco's misunderstanding as to how the system works. The court determined that appointed counsel was an honest, competent and upright attorney and that he would do his best to defend Carrasco. 26 The right to effective assistance of counsel is a fundamental component of the Sixth Amendment. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, the right to choose counsel is not absolute; it must be weighed against the need for an efficient and effective administration of justice. Tuitt v. Fair, 822 F.2d 166 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987); Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976). Although an accused who is represented by an appointed attorney has a right to effective counsel, he does not have the right to choose a particular counsel at any cost in terms of delay. United States v. Mastroianni, 749 F.2d 900, 914 (1st Cir.1984). A denial of a motion for substitution of counsel will be reversed only upon abuse of discretion. United States v. Poulack, 556 F.2d 83 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977). In making this determination, "the appellate court should consider several factors, including the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense." United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). In gauging these factors, one should bear in mind that the right to counsel does not involve the right to a "meaningful relationship" between an accused and his counsel. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). 27 A review of the record in light of these factors compels a rejection of Carrasco's Sixth Amendment claim. We note that Carrasco's motion for substitution was made on the very day set for trial. The trial court acknowledged the untimeliness of the motion thus: "[w]e have jurors from all the island and [the] whole justice system is set up to try this case." Tr. Vol. VI, p. 11. The record also reveals that the trial court adequately inquired about Carrasco's complaints and that, despite his contentions, the disagreement between Carrasco and his trial counsel were not "so great that it resulted in a total lack of communication presenting an adequate defense." 28 Although admitting that there were communication problems between them, trial counsel explained his role. He said: 29 "Since the beginning of this case. I've had ample opportunity to communicate with him. I have interviewed every member of his family. I have gone to his family's house about five or six times, four or five times. All his uncles are here. They have been to my office. I have been--done a thorough job, as I've done in every case that I have been assigned to, and every case that I have been retained. I don't know any other way to do my work." 30 We do not overlook the fact that there were communication problems between Carrasco and his counsel that persisted until after the completion of the trial. These problems, however, did not amount to a denial of the accused's rights to effective assistance of counsel. It cannot be said that the disagreement prevented an adequate defense. Allen, supra. The record shows that throughout the case trial counsel vigorously defended his client. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). IV. The Refusal to Exclude the Case Agent 31 Carrasco and Allen also argue that the trial court abused its discretion when it denied defendant's motion to exclude agent Rivera while the informant testified. In the alternative, Carrasco and Allen claim that the court abused its discretion by not ordering agent Rivera to testify before the informant. 32 Fed.R.Evid. 615 requires that the trial court sequester witnesses at the request of a party. There are several exceptions to this rule, however. The most common is that a party who is a natural person cannot be excluded from the courtroom. As an extention of this basic principle, Fed.R.Evid. 615(2) provides that, when a party is not a natural person, its designated representative is also exempted from the sequestration rule. It seems clear that a case agent representing the government is within this exception. The Senate Report explains the desirability of the rule thus: 33 "Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty.... Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs." 34 Senate Report No. 93-1277 as quoted in 10 Moore's Federal Practice 2d Sec. 615.01 (1988). 35 Defendants maintain, however, that even after the promulgation of the new Federal Rules of Evidence, the court retained discretion to exclude a person who falls within the 615(2) exception. The courts are divided on this issue. Some cases support defendants' view that the trial court has discretion to exclude the government case agent. United States v. Thomas, 835 F.2d 219, 223 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Woody, 588 F.2d 1212, 1213 (8th Cir.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d 484 (1979). 36 The majority view, however, is that Fed.R.Evid. 615(2) has severely curtailed the discretion of the trial court to sequester the government's case agent. See 3 Weinstein's Evidence, Sec. 615, n. 8 and cases therein cited. The practical and policy concerns inherent in the promulgation of the rule support this view.2 See Senate Report, supra. Thus, we reject defendants' argument. 37 The second argument advanced by defendants is that the court abused its discretion by not requiring that agent Rivera testify before Castillo. Counsel for Carrasco had asked the court to alter the order of the witnesses to allow Castillo to be sequestered while agent Rivera testified. The request was on the grounds that counsel had "found numerous contradictions" in the statements of agent Rivera and Castillo. Although discretion to exclude the government agent under Fed.R.Evid. 615 is limited, under Fed.R.Evid. 611(c) the court has ample discretion to control the order of interrogating witnesses. See United States v. Butera, 677 F.2d 1376, 1381 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); In re United States, 584 F.2d 666 (5th Cir.1978). However, this discretion should be used sparingly and good reason should exist before the court intervenes in what is essentially a matter of trial strategy. Defendants have not shown that the trial court abused its discretion in refusing to alter the order of the witnesses as chosen by the government. The government had chosen to present the evidence in a chronological manner. Castillo testified before agent Rivera purportedly because the events recounted by him preceded those recounted by agent Rivera. The naked assertion by Carrasco that there were "numerous contradictions" between the two witnesses does not move us to conclude that the trial court abused its discretion. No error was committed. V. Limitation of Cross-Examination 38 During the cross-examination of agent Rivera, Allen sought to impugn his credibility with reports and notes prepared by other agents involved in the operation. Allen explained that all along he was under the impression that the notes had been prepared by agent Rivera. The judge ruled that Allen could not use the reports or notes during the cross-examination of Rivera because the subject matter was not part of the direct examination. It allowed, however, the use of these reports in the questioning of the agents that prepared them. The government informed the court that most of the agents were available to testify if the defense so desired. Nevertheless, Allen never requested the presence of any of these other agents. 39 On appeal Allen insists that he should have been able to cross-examine Rivera with the report of a special agent, Nieves. He contends the limitation imposed by the trial court violated his Sixth Amendment right to confront witnesses. We disagree. This is not a case where defendant was "prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness...." Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). The right to confront and cross-examine government witnesses, although broad, is not absolute. See id. at 679, 106 S.Ct. at 1435; United States v. Wilson, 798 F.2d 509, 518 (1st Cir.1986). Considering that the reports and notes were not prepared by the witness and that Allen had the opportunity to confront the agents with the documents that they prepared, we find that the court below did not abuse its discretion in limiting the cross-examination of agent Rivera. United States v. Rivera Santiago, 872 F.2d 1073 (1st Cir.1989). 40 In any case, assuming, arguendo, that error was committed, we find that it was harmless. Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436. Allen indicates only two "discrepancies" between Rivera's testimony and the report of agent Nieves. First, he says that while Rivera testified that the second time Machor came out of the restaurant, Allen accompanied him, Nieves does not mention Allen at that particular point of the report. Nieves does confirm, however, that Allen was outside the restaurant when Machor showed Rivera the cocaine. Second, Allen says that while Rivera says that after viewing the cocaine he shook hands with Allen, Nieves does not mention this. Thus, the "discrepancies" amount to two minor omissions in agent Nieves' report. This, coupled with the fact that Nieves was available for questioning convinces us that if an error was committed, it was harmless. 41 VI. The Propriety of the Prosecutor's Conduct 42 Carrasco, Brito and Allen contend that the prosecutor incurred in improper conduct by contrasting his own credibility against the defendants' and by using comments calculated to inflame the jury during closing arguments. Appellants urge reversal based on the alleged prejudice that resulted from the prosecutor's conduct. 43 During rebuttal the Assistant United States Attorney stated: 44 [Defense counsel] has told you about the arrogance of the government, the arrogance of the state. Let me tell you something, the United States Government is at war against narcotics. Okay. And if being engaged in war means being arrogant, we are going to be extremely arrogant. You know why, because this is poisoning our community, and our kids die because of this. And if we have to engage in war and become arrogant we are going to be very arrogant. 45 Counsel for the defense is telling you that this is not your problem. Counsel for the defense says where this thing appears that is not your problem. Let me tell you something, this is your problem. This is our problem, this white powder here. And the evidence has shown to you that these four defendants, since November 25, 1986, were engaged in importing into Puerto Rico this cocaine. And they were caught the next day. So, aside from what Counsel Lima is telling you, I have a very different point. This is the problem of everyone here in this community. That's the reason why we presented this case without having to fix it, because we presented to you the people who were there. The informant, the sergeant, and the defendants. And in order to present this case, do you really think we have to fabricate it[?] As Carrasco told you, that even the prosecutor was here fabricating a case. That's me. 46 I'm going to finish telling you something very brief. You know what the government requests from all of you, to teach them a lesson that Counsel Rodriguez Padilla is requesting. Counsel Rodriguez Padilla tells them, says let's teach a lesson. He wants to teach a lesson to Sergeant Rivera and to me, the government. Let's go and teach them the lesson. Let's teach them that we don't have prejudice against aliens who are good persons, who don't engage in drug trafficking. But if finding a guilty verdict against aliens who are involved in drug trafficking is prejudice, let's be prejudice[d]. Let's be extremely prejudice[d], because that is what they are, they are drug traffickers who came to our island to bring cocaine. That's why we are requesting to teach them the lesson. Let's make justice. Let's finish with them. Thank you very much. 47 Defense counsel neither objected to the prosecutor's statements nor requested a special curative instruction. Thus the prosecutor's remarks are subject to the plain error rule. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1984); United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir.1987). Although the prosecutor's statements somewhat exceeded appropriate argument, we find that under the particular circumstances of this case defendants have failed to show plain error. 48 Time and again we have stressed the United States Attorney's unique position in our criminal justice system. United States v. Doe, 860 F.2d 488, 494 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1961, 104 L.Ed.2d 430 (1989); United States v. Ingraldi, 793 F.2d 408, 416 (1st Cir.1986); United States v. Maccini, 721 F.2d 840, 846 (1st Cir.1983). 49 "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.... It is as much his duty to refrain from improper methods calculated to produce a conviction as it is to use every legitimate means to bring about a just one." 50 United States v. Capone, 683 F.2d 582, 585 (1st Cir.1982) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). 51 Some of the prosecutor's comments, such as "[drugs] are poisoning our community and our kids die because of this," are improper because they serve no purpose other than "to inflame the passions and prejudices of the jury, and to interject issues broader than the guilt or innocence of the accused." United States v. Doe, 860 F.2d at 494. Also disturbing is the fact that during the cross-examination of Carrasco, the prosecutor contrasted his own credibility with Carrasco's. 52 The issue here, however, is not whether the government's actions were exemplary but whether in the context of this case the prosecutor's conduct warrants reversal under the plain error rule. Fed.R.Crim.P. 52(b). 53 We review the prosecutor's appeal to passion under the criteria set by United States v. Capone, supra, as restated in United States v. Maccini, supra. First, we note that the prosecutor's comments were isolated. They certainly were not "cumulative evidence of a proceeding dominated by passion and prejudice." United States v. Capone, 683 F.2d at 586 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S.Ct. 811, 852, 84 L.Ed. 1129 (1940)). Also, comments such as "let's go and teach them the lesson" were made in rebuttal to similar statements made by defense counsel. Although the government is not entitled to "fight fire with fire" at all costs, the fact that defense counsel comments "invited a reply" is a relevant consideration. United States v. Young, 470 U.S. at 11, 105 S.Ct. at 1044; United States v. Mejia-Lozano, 829 F.2d at 274. Second, the trial court warned the jury about the nature of the closing arguments: the court said: 54 "[A]s you will recall I had stated in my preliminary instructions that the closing arguments, as well as the opening arguments, are not evidence. They are merely the opinions of the attorneys themselves and on what they felt that they had proven during the course of this trial." 55 Finally, it is unlikely that the prosecutor's appeal to passion, viewed in the context of the whole case, affected the jury's belief about the innocence or culpability of defendants, especially considering that the evidence presented by the government as to the crime for which defendants were found guilty was very strong. 56 Similarly, we find that the prosecutor's cross-examination of Carrasco was not prejudicial. On direct examination Carrasco testified essentially that he was not involved in the drug transaction and that he was being framed. On cross-examination, the prosecutor inquired: "[S]o, according to your testimony, the government, Sergeant Rivera, the informant [and] the prosecutor have come here to frame you?" Carrasco replied: "[Y]es, Sir." On rebuttal to the defense's closing arguments, the prosecutor also referred to Carrasco's "framing theory" and essentially contrasted his credibility to Carrasco's. Considering that these comments were in response to Carrasco's own theory and to the defense's closing arguments we find that the comments were not prejudicial. VII. Appointment of a Jury Foreperson 57 Allen and Carrasco claim that the judge's appointment of a jury foreperson, instead of letting the jury pick one itself, was a violation of due process. No objection was raised at trial and defendants do not cite any authority to support this novel argument. We find this argument to be totally without merit. VIII. Sentencing 58 The Anti-Drug Abuse Act of 1986, 21 U.S.C. Sec. 841(b)(1)(B), which became effective a month before these crimes were committed, removed the possibility of parole. Defendants argue that during sentencing the district court acted on the incorrect assumption that defendants would be eligible for parole. Although there is no specific indication in the record that the trial judge actually assumed that they would be eligible for parole, defendants point to several indications suggesting that the judge may have been operating under such an assumption. See U.S. v. Russell, 870 F.2d 18 (1st Cir.1989); United States v. Harris, 558 F.2d 366, 374 (7th Cir.1977). 59 We are in no position to decide whether the trial court sentenced defendants under this incorrect assumption. We note, however, that under Fed.R.Crim.P. 35 defendants can petition the trial court for reduced sentences. In this manner, the trial court may correct the sentences if in fact it was under the assumption that defendants would be eligible for parole. 60 Appellants' convictions are affirmed. 1 The court may, of course, use other alternative procedures under Fed.R.Evid. 104 such as holding a separate admissibility hearing 2 We are not holding however, that the rule withdraws all discretion from the trial court to exclude a case agent in an exceptional case. Cf. United States v. Anagnos, 853 F.2d 1 (1st Cir.1988). Because this is not such a special circumstance, we need not decide the point

571 F.2d 617 187 U.S.App.D.C. 183 John H. VanderMOLEN, Appellant,v.John C. STETSON, Secretary of the Air Force. No. 76-1449. United States Court of Appeals,District of Columbia Circuit. Argued March 30, 1977.Decided Nov. 16, 1977.Statement on Sua Sponte Request for Rehearing En Banc Dec. 23, 1977. Mary E. Baluss, Washington, D.C., with whom William H. Briggs, Jr., Michael J. Malley and David Addlestone, Washington, D.C., were on the brief, for appellant. Richard A. Graham, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and George A. Stohner, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee. Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges. Opinion for the Court filed by BAZELON, Chief Judge. Dissenting opinion filed by ROBB, Circuit Judge. BAZELON, Chief Judge: 1 On February 19, 1971, appellant, John H. VanderMolen, was honorably discharged from the United States Air Force under Air Force Regulation (AFR) 36-3.1 Claiming that his discharge was illegal, VanderMolen brought suit in United States District Court asking that he be reinstated on active duty in the Air Force, that he receive $9999.99 in damages,2 and that the Air Force be required to remove from his records any notation that would bar him from reenlisting in the Air Force, and in particular remove any reference to AFR 36-3.3 VanderMolen also alleged that the Air Force had illegally cancelled his scheduled promotion to captain, and he asked that his reinstatement be with the rank of captain and that his back pay be calculated at that rank. The district court granted appellee's motion for summary judgment and dismissed VanderMolen's complaint. We reverse. I. BACKGROUND 2 VanderMolen was commissioned as a Reserve Officer, Second Lieutenant, in the United States Air Force in April of 1967. His first assignment was an Intelligence Officer for the 327th Air Division at Taipei, Taiwan. His duties included collection, collation, and analysis of highly sensitive, top secret data dealing with the People's Republic of China. His Officer Efficiency Reports (OER's) at this time portray "a very fine, exceptionally mature, professionally competent young officer."4 His superior, Lt. Col. Brown, praised his "keen analytical capability, high degree of intelligence, (and) unswerving dependability and dedication to duty . . . ."5 3 In March, 1970, VanderMolen, now a First Lieutenant, was assigned to attend a Missile Launch Officer's Course at Chanute Air Force Base, Illinois. During the first few days of introductory classroom instruction, VanderMolen and his fellow students were advised by an instructor, Lt. James Tindell, that anyone having personal qualms about the overall nuclear weapons mission of the Air Force or about his ability to handle a missile launch assignment, should speak up immediately so that neither the Air Force nor the student would needlessly invest in the training.6 At this time VanderMolen also learned, for the first time, of the substantial possibility that United States nuclear deterrent strategy may be in part premised upon the "extensive destruction of large population centers" and that Launch Control Officers would not be informed of the targets of the missiles that they launched.7 4 This information disturbed VanderMolen, and he decided to accept Lieutenant Tindell's invitation to speak with him. Tindell's written counseling record states that "Lt. Vandermolen expressed . . . his belief that nuclear war or a nuclear force is not right. His religious beliefs and convictions will not allow him to be a part of a nuclear weapon system."8 Lt. Tindell referred VanderMolen through the chain of command for counseling.9 He was ultimately counseled by Col. John A. Walker, Jr., Chief of the Department of Missile Training. "By this time," VanderMolen states in his affidavit to the district court, 5 my feelings had crystallized as a result of my research, counseling, and soul searching. . . . I told Col. Walker that I supported various concepts of nuclear strategy, except as they called for the use of nuclear weapons to kill as many people or to render uninhabitable as large an area as possible. I said that if I could be assured that the United States did not employ such a nuclear strategy most, if not all, of my qualms about serving as a Launch Control Officer would be eliminated. I also assured Col. Walker during this counseling session that regardless of what Col. Walker recommended or the ultimate outcome of my predicament, I would perform all my duties as an Air Force Officer to the very best of my ability.10 6 Col. Walker's Counseling Report of April 3, 1970, however, attributes to VanderMolen a slightly broader ground of opposition: 7 Lt. Vandermolen appears to be genuine in his belief that he does not believe he would be able to perform the Missile Launch Officer's tasks if required to launch missiles. He bases his belief on moral convictions against his taking a direct part in use of nuclear weapons; however, he did point out that he appreciates the status of our missiles as a deterrent force. Lt. Vandermolen indicated that he was not a volunteer for Missile Launch Officer duty and until attendance in Course 30BR1821G, Missile Launch Officer, WS-133A, did not realize what the Launch Officer duty entailed. Based on his ability, he should be able to perform in other career fields not related to the Human Reliability Program.11 8 On April 6, 1970, a Faculty Board was convened pursuant to the provisions of AFR 53-15 (including ATC Supp. 1, 15 January 1970)12 to consider VanderMolen's removal from the training course. The Board recommended VanderMolen's removal from the course under Air Force Manual (AFM) 35-99 (2 July 1965). AFM 35-99, the Human Reliability Program, establishes "the requirements and responsibilities for screening, selecting, and continuously evaluating all personnel who control, handle, (or) have access to . . . nuclear weapons . . . ."13 VanderMolen was the only witness in the Faculty Board proceeding. The Faculty Board recorded a summary of its proceedings that stated: 9 Lt. Vandermolen firmly expressed a "religious, moral" objection to the use of nuclear weapons, CB (chemical/biological) agents, or destruction of population centers. He felt he could successfully complete course 30BR1821G but could not perform any duty in the release of nuclear weapons or CB agents or be directly involved in causing the destruction of population centers. He felt he could perform effectively in his previous career field, intelligence. He felt no responsibility for any combat (possible or actual) usage of intelligence information processed by him.14 10 VanderMolen's later affidavit to the district court, however, states that, "I testified before the Board restating my personal, philosophical, moral, and religious difficulties with the use of nuclear weapons on civilians, exactly as I had stated these difficulties to Col. Walker."15 11 VanderMolen's description of the proceedings of the Faculty Board are undisputed: 12 A secretary was present at the Faculty Board to take notes; however, no verbatim transcript was compiled. During these proceedings I was never advised of the procedural protections of AFR 11-1, nor was I informed of any rights I might have had to such protection. Accordingly, I did not call witnesses on my behalf and did not contest the admissibility of evidence presented by the government. I was not represented by counsel during this hearing. Indeed, throughout the counseling sessions at the school, no one ever suggested that I should see a lawyer or hinted that I might need one. I did think briefly of consulting a lawyer on my own, but the aura of general informality and goodwill present throughout the entire counseling process at the school caused me to dismiss the idea. Furthermore, I felt no need to seek an attorney since Col. Walker had advised me that my removal from the school would not jeopardize my Air Force career, except that in the future I would be restricted from handling nuclear weapons.16 The Board decided that VanderMolen 13 should be disenrolled from training due to his expressed deficiency under AFM 35-99. He should not be considered for reinstatement in any career area governed by AFM 35-99. In the interest of economy, he should not be considered for further technical training but should be returned to his previous career field of intelligence.17 14 VanderMolen was accordingly assigned to the 66th Missile Squadron (SAC), 44th Strategic Missile Wing, South Dakota, where he was temporarily assigned as Squadron Executive Officer for the 28th Field Maintenance Squadron. He continued to perform so as to receive extremely favorable evaluation from his superior officer.18 15 Nevertheless, VanderMolen's Air Force career began to slide precipitously. Although VanderMolen had been scheduled for promotion to captain on April 19, 1970, his promotion was withheld for the stated reasons that: 16 Tech Tng Center, Chanute AFB, I11 MSG dated 9 April 1970, to SAC/DPMTO: Officer disqualified UP AFM 35-99, msl tng terminated this date. Officer expresses objection to use of Nuclear Weapons because of religious and moral beliefs.19 17 On May 21, 1970, Lt. Robert Melvin recommended that a discharge proceeding be initiated against VanderMolen pursuant to AFR 36-3, para. 4(f).20 He stated that:I recommend this action because Lt. Vandermolen, while attending Missile Launch Officer's Course OBR1821G at Chanute AFB, Illinois, expressed a firm religious, moral objection to the use of nuclear weapons and CB agents, or destruction of population centers. He was permanently disqualified for missile duty under provisions of AFM 35-99 on 3 Apr 70, and subsequently released from missile school. I believe this officer has a defective attitude toward the military service and its obligations, rendering him noneffective as a line Air Force Officer. 18 JA at 113. 19 On August 10 a Selection Board consisted of three SAC Air Force Colonels determined that VanderMolen should be required to "show cause for retention in the Air Force."21 VanderMolen chose not to resign, but to place his case before a Board of Inquiry.22 The Board met on November 18. It had before it a statement written by VanderMolen on his own behalf, numerous favorable OER's and statements, letters, and affidavits from VanderMolen's past superior officers, as well as the records of the proceedings of the Selection Board, Melvin's recommendation, the report of the Faculty Board at Chanute, and various other documents pertaining to his dismissal from Missile Launch Officer's School. At the outset, VanderMolen argued that the administrative process leading up to the Board was defective and, in some respects, unconstitutional.23 He moved that the action against him be dismissed. When his motion was denied, he refused to participate further in the hearing. As a result, no witnesses testified.24 The Board recommended that VanderMolen be honorably discharged for the reason "that while attending Missile Launch Officer's Course . . . at Chanute, . . . he expressed a doubt as to his ability to execute a missile launch order, thereby necessitating his removal from the course of instruction."25 20 The discharge was reviewed and approved by the Air Force. On February 19, 1971, VanderMolen received an "honorable discharge." However, his separation papers (D.D. Form 214) carry an "SDN Number" indicating that his discharge was under AFR 36-3.26 21 VanderMolen has exhausted his administrative remedies. See Cunningham v. United States, 549 F.2d 753, 765 (Ct.Cl.1977); Committee for GI Rights v. Callaway, 171 U.S.App.D.C. 73, 80-81, 518 F.2d 466, 473-74 (1975). After his discharge he applied to the Air Force Board of Correction for Military Records, seeking essentially the same relief that he later sought in the district court. The Board denied his petition. II. VanderMOLEN'S DISCHARGE 22 Appellant VanderMolen masses a battery of arguments attacking his discharge as in violation of his constitutional rights and in violation of the Air Force's own regulations. Because we find that his discharge in fact was based upon information obtained in violation of the procedures required by AFR 53-15 (including ATC Supp. 1, 15 January 1970), we do not reach the serious constitutional questions raised by VanderMolen's complaint.27 See Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958). 23 It is, of course, a fundamental tenet of our legal system that the Government must follow its own regulations. Actions by an agency of the executive branch in violation of its own regulations are illegal and void. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). This principle is fully applicable to the Air Force. Mogavero v. McLucas,543 F.2d 1081, 1085 (4th Cir. 1975); Geiger v. Brown, 136 U.S.App.D.C. 132, 135, 419 F.2d 714, 717-19 (1969); Powell v. Zuckert, 125 U.S.App.D.C. 55, 61, 366 F.2d 634, 640-41 (1966).28 24 VanderMolen contends that the Faculty Board Proceedings at Chanute are tainted and illegitimate because they denied him important procedural rights guaranteed by Air Force Regulations. The Faculty Board was convened pursuant to AFR 53-15 (including ATC Supp. 1, 15 January 1970). Paragraph 4(c)(5) of AFR 53-15 states that: 25 (P)roceedings of faculty boards which inquire into the conduct, efficiency (not to be confused with flying ability), fitness, or pecuniary liability of the student as a member of the Air Force, must follow all requirements of AFR 11-1 except when a student is enrolled in a precommissioning school. 26 Similarly, Paragraph 3c(2)(a)-1 of ATC Supp. 1 states: 27 When it is anticipated that the board action could jeopardize a student's commission, rating, grade or status, or possibly cause his separation or demotion . . . all requirements of AFR 11-1 must be met.29 28 Finally, paragraph 4 of ATC Supp. 1 strongly implies that faculty board proceedings cannot be used as the basis for administrative discharges under AFR 36-3 unless the requirements of AFR 11-1 have been met: 29 A faculty board is a fact-finding agency appointed to consider all circumstances relative to a student's training and to arrive at specific recommendations regarding retention in training or disenrollment from training. Board proceedings are used primarily as the basis for student personnel actions relative to training status. When conducted under AFR 11-1 and declared legally sufficient, board proceedings may be used as the basis for further administrative action such as that authorized in AFR 36- 2/3 . . . . 30 Even if the Faculty Board Proceedings at Chanute cannot be said to have inquired into VanderMolen's conduct, efficiency, or fitness "as a member of the Air Force," it is manifest, as VanderMolen's subsequent history demonstrates, that there was the strong possibility that the findings of the Board could jeopardize his "commission, rating, grade or status, or possibly cause his separation." The evident good intentions of the instructors at Chanute cannot change this fact. The procedural protections of AFR 11-1 should therefore have attached. Any other conclusion would render meaningless the protections of ATC Supp. 1, para. 3c(2)(a)-1. 31 AFR 11-1 guarantees, among other rights, the right to counsel,30 the right to a verbatim transcript,31 the right to notification of specific allegations,32 the right to call and cross-examine witnesses,33 the right to challenge Board members for cause,34 and the right to legal review by the staff judge advocate.35 32 It is undisputed, however, that VanderMolen was neither granted these rights, nor even notified of their existence. He called no witnesses, did not contest the admissibility of any evidence, and was not even represented by counsel. No verbatim transcript of the proceedings was prepared. Such a massive violation of procedural rights would, standing alone, be sufficient to render void the Faculty Board proceedings. See Henderson v. United States, 175 Ct.Cl. 690, 701 (1966). This conclusion is that much stronger when, as here, there is a strong likelihood that these violations have actually been prejudicial. There is a disagreement in the record, for example, about the exact nature of the doubt expressed by VanderMolen. Appellant claims in his affidavit before the district court that he objected only to "the use of nuclear weapons on civilians," whereas the Summary of the Faculty Board Proceedings records a broader objection "to the release of nuclear weapons or CB agents." There is some support for VanderMolen's affidavit in the form of a letter written on June 16, 1970, by Colonel Walker with reference to the AFR 36-3 action then initiated against VanderMolen: 33 When Lt Vandermolen first began counseling, it appeared he was confused and had given only superficial thought to the extent of his moral objection. Although he made his objection to the use of nuclear weapons quite apparent, he was not able to articulate his specific reservations. His initial objections were vague and difficult to pinpoint. However, as counseling continued by various members of the instructor staff, Lt Vandermolen became more capable of communicating explicitly his specific moral objection to the use of nuclear weapons against civilian population centers. This objection later was expressed quite directly to the faculty board.36 34 Without a verbatim transcript of the Faculty Board Proceedings it is of course impossible to review its findings. If in fact the Summary of the Faculty Board's findings mischaracterized VanderMolen's position, serious prejudice might have resulted. See Cruz-Casado v. United States, 553 F.2d 672, 675 (Ct.Cl.1977). 35 It follows that the findings of the Faculty Board cannot legitimately have been used as the basis for any subsequent punitive action against VanderMolen. Paragraph 4 of ATC Supp. 1 reinforces this conclusion. Yet these findings were the primary evidence against VanderMolen before the Board of Inquiry that recommended his discharge under AFR 36-3.37 "An action resting significantly on such improper materials . . . cannot be permitted to stand. It is, of course, a general principle that an administrative decision, even a discretionary one, grounded in considerations which the tribunal should not take into account, or evidence or materials it should not weigh, is vulnerable as arbitrary and unfounded." Hankins v. United States, 183 Ct.Cl. 32, 38 (1968). 36 In Hankins the presence in the record of two invalid OER's was deemed sufficient to overturn a decision of the Secretary of the Air Force to reject a withdrawal of a resignation. In this case, the findings of the Board of Inquiry must similarly be overturned. Therefore appellant was not legally discharged in 1971. He is entitled to reinstatement in the Air Force reserve and reinstatement on active duty in the Air Force. See Cruz-Casado v. United States, 553 F.2d 672, 676 (Ct.Cl.1977). In addition, all reference in his Air Force records to the SDN Code Number, and any and all other reference to AFR 36-3, must be removed, as well as any references to the findings of the Faculty Board at Chanute. Appellant should receive as damages the back pay to which he is entitled from the date of his separation from the Air Force, less appropriate offsets, see Cunningham v. United States, 549 F.2d 753, 758 (Ct.Cl.1977); Yee v. United States, 512 F.2d 1383, 1389 (Ct.Cl.1975), the total not to exceed $9,999.99. 37 III. THE CANCELLATION OF VanderMOLEN'S SCHEDULED PROMOTION TO CAPTAIN 38 VanderMolen also alleges that the cancellation of his scheduled promotion to captain was illegal and should be rescinded. 39 The promotion of a military officer is a discretionary act. Orloff v. Willoughby, 345 U.S. 83, 90, 73 S.Ct. 534, 97 L.Ed. 842 (1953). This court will not overturn a discretionary determination of the Air Force Board of Correction for Military Records unless it can be shown that "the Board's decision was arbitrary, capricious or unlawful." Dorl v. United States, 200 Ct.Cl. 626, 633, cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973). "Ratings and promotions are discretionary matters with which the court will continue to be 'scrupulous not to intervene' unless clear error is shown or relief is mandated by law or regulation." Boyd v. United States, 207 Ct.Cl. 1, 13 (1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976). This is especially true since "(t)he promotion of an officer in the military service is a highly specialized function involving military requirements of the service and the qualifications of the officer in comparison with his contemporaries, plus expertise and judgment possessed only by the military." Brenner v. United States, 202 Ct.Cl. 678, 693-94 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 54, 42 L.Ed.2d 56 (1974). 40 It must be emphasized, however, that this case does not concern an ordinary denial of a promotion. VanderMolen was actually scheduled to be promoted to captain, and his promotion was cancelled for two stated reasons. These reasons were "officer disqualification UP AFM 35-99 . . . . Officer expresses objection to use of Nuclear Weapons because of religious and moral beliefs."38 41 VanderMolen challenges the first of these reasons, arguing that his disqualification under AFM 35-99 should not have been used as a basis for the denial of his promotion to captain. We agree with him. Paragraph 6 of AFM 35-99 states clearly that: 42 the assignment disqualification of any member under this manual is not of itself cause for punitive measures or an adverse reflection upon the individual. Disqualification will not be used to justify or to avoid appropriate proceedings under the Uniform Code of Military Justice or under existing regulations on administrative processing or separation of individual members. 43 To use a disqualification under AFM 35-99 as a justification for the denial of a promotion is manifestly to use it as a "cause for punitive measures" in violation of the terms of the manual. 44 Appellant cites Grimm v. Brown, 449 F.2d 654, 655 (9th Cir. 1971), for the proposition that if the military proceeds against an individual for several reasons that are "inextricably interwoven," and if one of those reasons is unlawful, the procedure as a whole is unlawful. See Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). Grimm, however, is inapplicable to the facts of VanderMolen's case. Grimm concerned charges against an Air Force officer before a Board of Inquiry. In such a procedure the Air Force must follow specific standards and regulations. The promotion of an officer, by contrast, is entirely discretionary. No law or regulation mandated appellant's promotion. Cooper v. United States, 203 Ct.Cl. 300, 304 (1973). This court "cannot postulate that a discretion to promote would be exercised favorably" if there remains a valid ground for the Air Force to have withdrawn VanderMolen's promotion. Clinton v. United States, 191 Ct.Cl. 604, 605, 423 F.2d 1367, 1368 (1970). See Yee v. United States, 512 F.2d 1383, 1388 (Ct.Cl.1975). We must therefore inquire into the second reason for the cancellation of VanderMolen's promotion, his objection to the use of nuclear weapons. 45 Unfortunately, the record is simply not adequate at this time to sustain a determination of the legal validity of this reason. If it is based upon the findings of the Faculty Board, as appears most likely,39 then it is illegitimate, and there are no reasons at all justifying the cancellation of VanderMolen's promotion. In such circumstances the cancellation must be overturned as arbitrary and capricious. See Bridgman v. United States, 185 Ct.Cl. 133, 137, 399 F.2d 186, 190 (1968). If, on the other hand, the cancellation was based on untainted evidence, such as VanderMolen's counseling records, we do not think a court should interfere with legitimate military discretion in this area. 46 Our disposition of the case does not require us to consider appellant's argument that the Air Force also violated the procedural requirements of AFR 36-3.40 47 Reversed and remanded to the district court for further proceedings not inconsistent with this opinion. ROBB, Circuit Judge, dissenting: 48 VanderMolen, an officer in the United States Air Force, announced that he doubted his ability to execute a missile launch order unless he approved the target of the missile. In view of his attitude the Air Force gave him an honorable discharge. Now the majority of this court holds that he must be reinstated on active duty with back pay; and the majority goes further and intimates that he is entitled to promotion. I cannot accept these conclusions. I think the Air Force was entitled to discharge an officer who might refuse to obey a legal order and I find no prejudicial defect in the discharge proceedings. 49 The majority says "There is a disagreement in the record, . . . about the exact nature of the doubt expressed by VanderMolen. Appellant claims in his affidavit before the district court that he objected only to 'the use of nuclear weapons on civilians,' whereas the Summary of the Faculty Board Proceedings records a broader objection 'to the release of nuclear weapons or CB agents.' " The majority speculates that "serious prejudice might have resulted" if VanderMolen's position was mischaracterized by the Faculty Board. Assuming that there was a misstatement of the "exact nature" of the doubt, I cannot agree that there was prejudice. VanderMolen does not deny that he objected and continues to object to deployment of missiles against civilian population centers, and that because of his objection he was and still is disqualified from nuclear missile duty. Nor does VanderMolen or the majority question the policy of the Air Force, to discharge any line officer who seeks to limit or select the orders he will obey. Indeed, that policy cannot be successfully challenged; a soldier whose obedience to legal orders is qualified or selective has no place in the military. Accordingly, even if the Faculty Board had stated VanderMolen's objections in narrower terms the Board of Inquiry would still have been obliged to recommend his discharge. He would still have been disqualified from missile duty; he would still have been seeking to qualify his obedience to orders. The "exact nature" of the doubt prompting his disobedience was immaterial. 50 The purpose of the Faculty Board was only to inquire into VanderMolen's qualifications for participation in the Missile Launch Officer's Course. According to VanderMolen the atmosphere "throughout the entire counseling process" was one of "informality and good will". (VanderMolen affidavit filed in District Court, J.A. 64) He has conceded that "The Administrative processing and handling of my case at Chanute was conducted as impartially and fairly as possible". (VanderMolen letter responding to Notification of Selection to Show Cause for Retention, J.A. at 127, 128) The Faculty Board concluded that VanderMolen should be removed from the Missile Launch Officer's Course, and he agreed. (Affidavit, J.A. 63) 51 Even if the Faculty Board proceedings were defective for failure to conform to the requirements of AFR 11-1, the full hearing afforded VanderMolen by the Board of Inquiry was sufficient to cure any errors. At the Board of Inquiry VanderMolen was represented by counsel and had the opportunity to call witnesses, and all the other rights provided by AFR 11-1. Moreover, before the hearing VanderMolen wrote to the Board of Inquiry explaining that he was opposed only to the destruction of civilian population centers. (J.A. 138-43) In his four-page single-spaced statement he fully explained his position, saying in part: 52 . . . Based on my limited knowledge, I currently have no moral objections to their (nuclear weapons') potential deployment against military installations, war goods producing factories, or other strategic targets. 53 However, I do morally object to the existence and deployment of any nuclear weapon system which has the primary objective of destroying essentially civilian population centers. The crucial factor is what the primary mission of a particular nuclear weapon is as stated in the pertinent war plan. Is the weapon constructed, designed, and targeted to effect destruction of a strategic factory in a large city but yet involving as few casualties as possible? Or is the weapon designed and targeted with the primary purpose being to destroy as many people as possible? 54 When confronted with these questions, my instructors at Chanute informed me that they had access to only limited information regarding the mission or design of the weapons which they controlled. They further stated that they could not determine the exact targets of their weapons. Therefore, they could neither confirm nor deny the possible deployment of nuclear weapons against civilian population centers. 55 This almost total lack of knowledge by experienced missile personnel plus various unclassified sources which alleged the existence of nuclear weapons programmed towards population centers plus the fact the U.S. did employ such weapons for that express purpose during World War II, were all contributing factors in my reservations concerning missile duty. 56 (J.A. 138-39) 57 There is no indication that the Board of Inquiry failed to consider or credit this explanation. Any misunderstanding of VanderMolen's views was thus remedied. Antonuk v. United States, 445 F.2d 592, 597-98 (6th Cir. 1971); Nurnberg v. Froehlke, 489 F.2d 843, 848 (2d Cir. 1973). If VanderMolen felt that further elaboration of his views was needed, he was free to appear before the Inquiry Board and explain. That he chose not to do so was his fault, not that of the Air Force. 58 In their zeal to find something wrong with the discharge proceedings, so that this officer may be returned to duty, the majority violates the sound and established principle that it is not the business of the courts to run the military. I dissent. ON SUA SPONTE REQUEST FOR REHEARING EN BANC 59 Statement of TAMM, MacKINNON, ROBB and WILKEY, JJ. 60 In our judgment the majority opinion is wrong as a matter of law and will subvert discipline in the armed services. For these reasons we have voted sua sponte to rehear this case en banc. 1 AFR 36-3 prescribes the procedures for administrative discharges of officers for "substandard performances of duty." 2 28 U.S.C. § 1346(a) provides that: (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (2) Any . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. Although, if his allegations are proven, VanderMolen may in fact have been damaged by the Air Force in an amount exceeding $10,000, he is asserting a "claim against the United States" for only $9,999.99; "all other claims for monetary relief have been waived." Brief for Appellant at 60. If the damages in excess of $10,000 are waived, the district court may retain jurisdiction. See Sutcliffe Storage & Warehouse Co., Inc. v. United States, 162 F.2d 849, 853 (1st Cir. 1947); United States v. Johnson, 153 F.2d 846, 848 (9th Cir. 1946); Hill v. United States, 40 F. 441, 442-43 (C.C.D.Mass.1889); Wolak v. United States, 366 F.Supp. 1106, 1110 (D.Conn.1973); Brown v. United States, 365 F.Supp. 328, 337 (E.D.Pa.1973), aff'd in part and rev'd in part on other grounds, 508 F.2d 618 (3d Cir. 1974), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); Armstrong & Armstrong, Inc. v. United States, 356 F.Supp. 514, 521 (E.D.Wash.1973), aff'd 514 F.2d 402 (9th Cir. 1975); Perry v. United States, 308 F.Supp. 245, 247 (D.Col.1970), aff'd 442 F.2d 353 (10th Cir. 1971); Rivoli Trucking Corp. v. United States, 221 F.Supp. 532, 533 (S.D.N.Y.1963). But see, Pioneer Gen-E-Motor Corp. v. Department of the Army, 135 F.Supp. 871, 872 (N.D.Ill.1955); Thompson Foundry & Machine Co. v. United States, 67 F.Supp. 121, 122 (M.D.Ga.1946). 3 VanderMolen also asked that he be reinstated in the Air Force reserve and that his last two officer efficiency reports, JA at 100, 107, be changed to reflect the evaluation of his immediate superior Captain Pozzo, rather than the judgment of those who evaluated him solely on the basis of their perceptions of his opposition to nuclear weapons. See note 18 infra 4 JA at 81; see JA at 78-87 5 Id. at 87. Lt. Col. Brown concluded that VanderMolen's "performance, bearing and potential mark him as one of our finest young officers and deserving identification as one of the future Air Force leaders." Id 6 Id. at 58-59 7 Id. at 59 8 Id. at 88 9 VanderMolen was counseled by Captain Admire, Captain Gootee, and Lieutenant Ofner. In his Counseling Record Captain Admire noted that, although VanderMolen "definitely wanted to initiate procedures to withdraw from training, . . . should he have to continue training, he would do so to the best of his abilities. However, he would continue to indicate, to anyone, that his conviction against this assignment would remain firm as he is unable to justify to himself the contributions to U.S. war efforts that he feels his missile duties would require. Accordingly, he maintains, an end to training at this time would save USAF funds on his behalf." Id. at 89 Captain Gootee noted in his Counseling Record that VanderMolen had stated "that he could not, and would not, be responsible for launching nuclear tipped Missiles against targets containing civilian personnel. When questioned as to whether or not he would launch against military targets he stated he was undecided. Lt. Vandermolen (stated) that he feels it would be morally wrong to launch the nuclear force in any circumstance, even if attacked." Id., at 90. Captain Gootee stated that, "Lt. Vandermolen would probably be successful in another AFSC and I recommend he be considered for reassignment into another career field." Id. Lieutenant Ofner concluded in his Record that VanderMolen "is basically opposed to the use of nuclear weapons, offensive or defensive." Id. at 91. He recommended that VanderMolen "be eliminated from training and be returned to the intelligence field for utilization there." Id. 10 Id. at 62 (emphasis added) 11 Id. at 94 (emphasis added) 12 AFR 53-15 is the regulation prescribing procedures for faculty boards at USAF schools 13 AFM 35-99 at i 14 JA at 97 (emphasis added) 15 Id. at 63-64 (emphasis added) 16 Id. at 64 17 Id. at 97 18 In his OER of July 28, 1970, Captain Pozzo, VanderMolen's immediate supervisor, stated that "First Lieutenant Vandermolen has performed in an outstanding manner. . . . He has shown the greatest enthusiasm and interest in his work. He always strives for perfection in the work that he accomplishes and demands the same from his subordinates. . . . Vandermolen's most outstanding strength in his positive can-do attitude." Id. at 101. Colonel Lawson, however, refused to endorse Pozzo's evaluation. Although conceding that "Vandermolen has performed his duties in this Wing in excellent fashion," Lawson concluded that VanderMolen's "personal convictions would impair his effectiveness in any assignment associated with active combat operations. I believe that this personality trait seriously degrades his value to the Air Force." Id. at 101-02 In a second OER, dated August 23, 1970, VanderMolen received low ratings from Lt. Colonel Kenneth Thompson. Lt. Col. Thompson acknowledged that he had "never personally observed Lt. Vandermolen's performance" and had "no knowledge of his ability to perform his primary duties of an Intelligence Officer." Thompson justified his low evaluation on the basis of his perception of VanderMolen's refusal "to perform lawful duties involving nuclear weapons for national defense." Id. at 107. 19 Id. at 108 20 Id. at 113. AFR 36-3, para. 4 states: (4) . . . A recommendation for action under this regulation is appropriate when the officer's performance of duty is substandard as evidenced by the existence of one or more of the circumstances outlined in this paragraph, or similar circumstances. . . . a. Failure to demonstrate acceptable qualities of leadership required of an officer of his grade. b. Failure to achieve acceptable standards of professional (including technical) proficiency required of an officer of his grade. c. Failure (including lack of ability) to properly discharge assignments commensurate with his grade and experience. d. A progressive downward trend in duty performance resulting in an unacceptable record of efficiency. e. A record of marginal service over an extended period of time . . .. f. Apathy, defective attitude, or other character disorders wherein the officer is unable or unwilling to expend effort. Actions under AFR 36-3 are begun by the "recommendation" of "any commander who receives information indicating that an officer under his jurisdiction" meets the criteria of paragraph 4. Actions are then "initiated" by wing or base commanders. In VanderMolen's case, Colonel Charles Adams initiated an action on May 25, 1970. After an action has been initiated, AFR 36-3, para. 17, requires that a Selection Board be constituted in order (a) To evaluate all information concerning the matter under consideration, (b) To determine whether the allegations are sufficiently serious and whether there is sufficient substantiation of the allegations against the officer to require him to show cause for retention in the Air Force, and if so, (c) To determine the reasons why the officer should be required to show cause for retention. . . . If the Selection Board determines that an officer be required to "show cause for retention in the Air Force," and if the officer declines to resign, AFR 36-3, para. 23, provides that a Board of Inquiry be established to conduct a "fair and impartial hearing," evaluate the evidence, and make appropriate recommendations. The burden of proof remains upon the officer "to effectively refute, rebut, or raise serious doubt concerning the reasons for his selection to show cause for retention." 21 JA at 122. See note 20, supra 22 Alleging "potential unauthorized Command influence," VanderMolen asked that the Board be composed of members chosen from a cross section of Air Force Commands; he also requested that a portion of the Board hearing be classified so that he could present classified incidents that occurred during his duty in Taiwan which had influenced his decision not to "cover-up" his doubts at Chanute. Both requests were denied 23 VanderMolen also renewed his challenges to the Board's composition and to its failure to classify portions of its hearing 24 VanderMolen had earlier submitted a list of 21 proposed witnesses. There is some dispute in the record as to whether the Air Force refused to make several of these witnesses available to VanderMolen. In his affidavit to the district court, VanderMolen alleges that, although seven of these witnesses were then stationed at Ellsworth, "these and other witnesses were not made available by the Air Force." JA at 72. However, VanderMolen's counsel stated before the Board of Inquiry that "we did make a request for witnesses, and we are completely satisfied with the efforts made on the Government's part to provide us with any aid we needed in the preparation of our case." Id. at 233 25 Id. at 149. The Board's Statement of Reasons recites that: First Lieutenant John H. Vandermolen, toz-bp-mpbzFV, has, in the performance of his duties, fallen below the standards prescribed for an officer of his grade and experience, as evidenced by: a. His failure to demonstrate acceptable qualities of leadership required of an officer of his grade in that, on or about 31 March 1970, while attending Missile Launch Officer's Course 30BR1821G at Chanute Air Force Base, Illinois, he expressed a doubt as to his ability to execute a missile launch order, thereby necessitating his removal from the course of instruction. b. His failure to properly discharge assignments commensurate with his grade and experience in that, on or about 31 March 1970, while attending Missile Launch Officer's Course 30BR1821G at Chanute Air Force Base, Illinois, he expressed a doubt as to his ability to execute a missile launch order, thereby necessitating his removal from the course of instruction. c. His defective attitude toward his assigned duties in that, on or about 31 March 1970, while attending Missile Launch Officer's Course 30BR1821G at Chanute Air Force Base, Illinois, he expressed a doubt as to his ability to execute a missile launch order, thereby necessitating his removal from the course of instruction. d. His unwillingness to accept the obligations and responsibilities expected of an officer in that, on or about 31 March 1970, he expressed a doubt as to his ability to execute a missile launch order, a duty for which he was then being trained, thereby self-initiating a course of events which culminated in his greatly limited assignment eligibility and potential usefulness; a self-imposed status incompatible with his oath of commission and unique to a line officer of the United States Air Force. Reasons (a), (b) and (c) apparently track AFR 36-3, para. 4(a), (c) and (f). See note 20 supra. 26 Upon VanderMolen's request, this SDN number will be removed. AFR 35-6, § 4-5 (16 Sept. 1974). However, VanderMolen alleges that the cause of his discharge will permanently impair his ability to be employed by the Air Force, the Air Force Reserve, or by the United States Government in general 27 VanderMolen alleges that his discharge deprived him of property and liberty without due process of law, and that it violated his First Amendment rights by punishing his exercise of pure speech in a manner unjustified by military necessity. See Avrech v. Secretary of the Navy, 171 U.S.App.D.C. 368, 374, 520 F.2d 100, 106 (1975) (Wright, J., dissenting), cert. denied, 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793 (1976); Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 333, 511 F.2d 1327, 1335 (1975) (Bazelon, C. J., dissenting) 28 See Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971); Dunmar v. Ailes, 121 U.S.App.D.C. 45, 47, 348 F.2d 51, 53 (1965); Roberts v. Vance, 119 U.S.App.D.C. 367, 343 F.2d 236 (1964) 29 In addition, Paragraph 4c(5) states: If during board proceedings, the testimony or other evidence indicates that the board action may jeopardize a student's commission, rating, grade or status, the proceedings must be stopped and the student advised by qualified legal personnel of his constitutional rights regarding self-incrimination. He is extended the privilege of legal counsel and is notified in writing of the specific allegations and questions to be considered by the board. Subsequent board proceedings must meet all requirements of AFR 11-1. Instead of reconvening the board, a new board should be appointed. The transcript of prior proceedings may be appended to the case file for review by the convening and approving/disapproving authority. 30 Paragraph 8(b) states that counsel will be provided an individual "in any proceeding which may fairly be regarded as: (1) Subjecting him to possible criminal prosecution, or disciplinary or corrective administrative action; (2) Jeopardizing a commission, rating, grade, or status; (3) Furnishing cause for possible elimination or demotion proceedings against him . . . . Paragraph 8(c) states that "questions of doubt as to . . . the privilege to be represented by counsel in any given case will be resolved in favor of the individual concerned." In addition, paragraph 10(a) states that A person whose conduct, efficiency, fitness, or pecuniary liability is under investigation will be extended the privilege of counsel, as provided in paragraph 8, will be permitted to be present at all open sessions of the board, to cross examine witnesses appearing against him, and to call witnesses and present evidence in his own behalf. Finally, an individual is entitled to be notified of his right to counsel. Paragraph 6(a)(5). 31 ATC Supp. 1 states that "Proceedings of faculty boards subject to legal review requirements of AFR 11-1 are recorded verbatim." Para. 4c(6)(f). See AFR 11-1, para. 16 32 AFR 11-1, para. 6(a)(2) 33 Id. at para. 6(a)(4), 10(a) 34 Id. at para. 7(a) 35 Id. at para. 17 36 JA at 95. Colonel Walker's letter also stated that: During his tenure as a student here, the instructor staff and I were favorably impressed with Lt. Vandermolen as a sincere and conscientious young officer who would perform capably in a career field divorced from the utilization of nuclear weapons. Particularly impressive was his attitude toward the program and the career field when he stated, "If I have to remain in the school at Chanute, I will do my best. If I am sent to ORT at Vandenberg, I will do my best. And if I am assigned to an operation SAC base I will continue to do my best. But I will continue to communicate my objections to anyone who will listen, since I cannot be certain I will be able to turn the key if required to do so." His Block I grade was 86 which is above average for the course. This indicates he did attempt to do his best while here, although he obviously was encumbered at the time with the decision facing him. 37 Id. at 229-30, 113. There is a very strong likelihood that the findings were the basis for Colonel Melvin's recommendation of action against VanderMolen, since his statement of reasons reproduces, almost verbatim, the language of the Faculty Board's findings 38 See page 9 supra 39 See id. at 98 40 Appellant argues that his expression of doubt cannot be construed as "substandard performance of duty" under the terms of the regulation. He also argues that AFR 36-3 was violated when the Air Force made no attempt to rehabilitate him or adequately to investigate the charges against him

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00223-CR ______________________________ ESSIE HOPKINS, Appellant   V.   THE STATE OF TEXAS, Appellee                                                On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court No. F-0362924-RN                                                   Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION             Essie Hopkins has appealed from his conviction following the final adjudication of his guilt. The trial court sentenced him to five years' imprisonment. Appointed counsel filed a brief in support of his motion to withdraw based on Anders. The brief contains a review of the record, along with his professional evaluation that there were no errors sufficient to support reversal, and he informed Hopkins of his right to examine the record and to file a pro se brief. No such brief has been filed.             We have reviewed the brief and counsel's summary of the record, as well as the record itself. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988). We agree with counsel's assessment that there is no error presented that would support reversal.             We affirm the judgment.                                                                           Jack Carter                                                                         Justice   Date Submitted:          June 10, 2004 Date Decided:             June 15, 2004 Do Not Publish  

64 Cal.App.4th 176 (1998) THE PEOPLE, Plaintiff and Respondent, v. KEVIN THIERRY, Defendant and Appellant. Docket No. B109477. Court of Appeals of California, Second District, Division Seven. May 26, 1998. *178 COUNSEL Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent. OPINION JOHNSON, J. Upon denial of his motion to suppress, appellant pleaded nolo contendere to one count of robbery in violation of Penal Code section 211 and on a special allegation pursuant to Penal Code section 12022.5, subdivision (a). The sole issue on appeal is whether the trial court erred in denying appellant's motion to suppress any photographs taken of appellant and any identifications made with those photographs following a purported illegal arrest. We conclude the taking of appellant's photograph was reasonable involving no exploitation of the alleged illegal arrest. We therefore affirm the judgment. FACTS AND PROCEEDINGS BELOW On November 29, 1995, Officer Jennifer Hickman of the Los Angeles Police Department was patrolling the area of Cadillac and Chariton in the City of Los Angeles. Detective Stanley Evans had informed Officer Hickman that appellant was wanted for robbery and he frequented the area of Garth and Cadillac. Officer Hickman observed appellant on the west side of Garth Street, just north of Cadillac, and took him into custody. Detective Evans was assigned to the investigation of multiple robberies in a five-block radius, including the robbery of Rashawn Tony (Mr. Tony). As part of the investigation of the robberies, Detective Evens spoke with Mr. Tony. Mr. Tony told Detective Evans that Dominique Gist (Gist) was the *179 person who robbed him. Gist was arrested and later interviewed by Detective Evans. Gist gave Detective Evans appellant's nickname and address and told Detective Evans appellant robbed Mr. Tony and also was involved in robberies at the gas station at La Cienega and Cadillac.[1] Detective Evans ran the description of the suspect to the robberies through the computer. This very general description was consistent with appellant's general description. The officers arrested appellant for the robbery of Mr. Tony based on the information Gist gave to Detective Evans. The day after appellant's arrest Detective Evans took appellant's picture. Detective Evans used this photo in a photographic lineup shown to Mr. Tony. Mr. Tony stated he knew appellant and appellant was not the person who robbed him. Detective Evans then showed the same photographic lineup to victims of other robberies. Charles Negethe and Manuel Ceja identified appellant as the perpetrator in their robberies. Appellant was charged with six counts of robbery and two counts of attempted robbery, none of them involving the Tony robbery for which he was initially arrested. After the trial court denied appellant's Penal Code section 1538.5 motion to suppress any photographs taken of appellant after his arrest and any identifications made with those photographs, appellant pled nolo contendre to a violation of Penal Code section 211 and on a special allegation pursuant to Penal Code section 12022.5, subdivision (a). The trial court sentenced appellant to the low term of 2 years for the Penal Code section 211 violation and the high term of 10 years on the special allegation for a total sentence of 12 years. DISCUSSION (1a) Appellant contends the trial court erred in denying his motion to suppress any photographs taken of him after his arrest in the Tony case and also any identifications made with those photographs. He contends Gist's statements and Detective Evans's corroboration were insufficient to establish probable cause to arrest him for the Tony robbery. We find it unnecessary to address appellant's probable cause argument, which indeed presents a close question. Even if that initial arrest violated appellant's Fourth Amendment rights, we conclude the identification evidence remains admissible against appellant in prosecutions for other crimes, such as the one to which he pled nolo contendere in this proceeding. *180 I. The "Fruit of the Poisonous Tree" Doctrine Does Not Require Suppression of Photo Identifications Based on Photographs Which Happen to Have Been Taken While a Defendant Was in Custody Under an Illegal Arrest. Appellant argues the identification evidence linking him to these other robberies must be excluded because they were the "fruit of the poisonous tree." According to this theory, the officers took photographs of him as a result of the arrest for the Tony robbery and then used those photographs to obtain identifications linking him to the other robberies. The Mr. Tony arrest was the "poisonous tree" and the photographs the first fruits and the victim's photo identifications the second crop of fruit from that infected tree. (2) In determining whether evidence is the "fruit of the poisonous tree" and therefore inadmissible the correct inquiry is "`"whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."'" (Krauss v. Superior Court (1971) 5 Cal.3d 418, 422 [96 Cal. Rptr. 455, 487 P.2d 1023]; Wong Sun v. United States (1963) 371 U.S. 471, 488 [83 S.Ct. 407, 417-418, 9 L.Ed.2d 441], quoting Maguire, Evidence of Guilt (1959) p. 221.) There are three recognized avenues for admitting the "fruit of a poisonous tree" despite its illegal origins: (1) The same evidence was discovered through an independent source not tainted by the poisonous tree. (2) The evidence was not found through a second untainted source but it should not be suppressed despite law enforcement's illegal acts because the same evidence would have been inevitably discovered through legal means. (The inevitable discovery rule is "a variation upon the `"independent source"' theory, `but it differs in that the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted source but instead whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully.' [Citations.]" (People v. Saam (1980) 106 Cal. App.3d 789, 797 [165 Cal. Rptr. 256]).) (3) The connection between the illegal source and the evidence is so attenuated it would serve no legitimate purpose to suppress the evidence. (See 5 LaFave, Search and Seizure (1996) § 11.4, pp. 234-253.) (1b) In People v. McInnis (1972) 6 Cal.3d 821 [100 Cal. Rptr. 618, 494 P.2d 690], the California Supreme Court applied the "fruit of the poisonous tree" doctrine to the admissibility of photographs taken while a defendant is under an illegal arrest. In McInnis, a store clerk and a pedestrian witnessed the defendant committing a liquor store robbery. Police officers later arrested and photographed defendant for an unrelated crime. The officers *181 showed this photograph to the witnesses from the liquor store robbery. From the photograph, they identified the defendant as the perpetrator of the robbery. The trial court refused to suppress the photograph despite the possible illegality of the arrest which resulted in the taking of that photograph. In affirming the judgment the Supreme Court majority reasoned the taking of a booking photograph was "standard police procedure [citation], bearing no relationship to the purpose or validity of the arrest or detention.... [T]he photos are kept in permanent files regardless of the eventual disposition of the case; indeed, thousands of persons ultimately found to be entirely innocent undoubtedly have their photographs ... on record with law enforcement agencies." (6 Cal.3d at pp. 825-826.) The McInnis majority opinion analogizes to the high court's earlier opinion in Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170 [89 Cal. Rptr. 731, 474 P.2d 683], where the court found the connection between an illegal arrest and the present crime was "pure happenstance." In Lockridge, the Pesce robbery remained unsolved until officers served an unlawful search warrant during the course of investigating crimes totally unrelated to the robbery. During that search, they discovered the Pesces' gun in the defendants' possession. In a later trial of the Pesce robbery case, the trial court suppressed the gun but allowed the Pesces to testify. This was not a case fitting easily the "independent source" or "inevitable discovery" rationales. Without the lead supplied by the gun found during the illegal search it seems improbable the police investigation would have connected the defendants with the Pesce robbery. So in that sense the prosecution of defendants for that crime and some of the evidence introduced against them was the "fruit of the poisonous tree." "Nevertheless," the Supreme Court held, "... we do not believe that the police connection of petitioners to the Pesce robbery through the illegal discovery of the gun is sufficient to characterize the Pesces' testimony as `come at by exploitation of that illegality.'" (Lockridge v. Superior Court, supra, 3 Cal.3d at p. 170, citing Wong Sun v. United States, supra, 371 U.S. 471, 488 [83 S.Ct. 407, 417-418].) The court reasoned "... it was pure happenstance that during the investigation of other crimes, the police came across the gun taken in the Pesce robbery." (Lockridge, at p. 171.) "`[P]ure happenstance' as used in McInnis and Lockridge, [has been defined as] a chance disclosure absent `the exploitation of illegal police conduct....'" (People v. Griffin (1976) 59 Cal. App.3d 532, 537 [130 Cal. Rptr. 648].) *182 The present case resembles McInnis. A photograph of appellant originally taken as a result of (or at least while he was in custody for) a purported illegal arrest led to his connection with the crimes currently charged. As in McInnis, the illegal arrest here was in no way related to the crimes with which appellant was ultimately charged.[2] Other jurisdictions have found an illegal arrest does not render an identification — or even a photograph taken during the illegal arrest — inadmissible. Generally these opinions adopt the McInnis analysis or a variation thereof. (See, e.g., United States ex rel. Moore v. Lane (7th Cir.1980) 612 F.2d 1046; State v. Tyrrell (1990) 234 Neb. 901 [453 N.W.2d 104]; People v. Pettis (1973) 12 Ill. App.3d 123 [298 N.E.2d 372]; Kinsey v. State (Tex. App. 1982) 639 S.W.2d 486; State v. Price (1976) 27 Ariz. App. 673 [558 P.2d 701].) Robinson v. State (1982) 53 Md. App. 297 [452 A.2d 1291] follows McInnis and cites numerous cases from other jurisdictions, but also adds to the analysis. "We think that the approach taken in these cases is the correct one, whether expressed as `attenuation' or simply as a rational and commonsense application of the `fruit of the poisonous tree' doctrine. In the absence of evidence (or a reasonably firm and detailed proffer of evidence) tending to show that appellant's ... arrest was not only illegal but was merely a pretext for a general exploratory search (as in Davis v. Mississippi [(1969) 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676]]) or for gathering evidence in this case (as in United States v. Crews [(1980) 445 U.S. 463 [100 S.Ct. 1244, 63 L.Ed.2d 537]]) a routine `booking' photograph taken as a consequence of that arrest would not be suppressible as tainted fruit in this proceeding." (Robinson v. State, supra, 452 A.2d at p. 1299.) In stressing the motive for — not just the illegality of — the arrest which produced the defendant's photo, the Maryland appellate court appears to focus on the policies behind the exclusionary rule. (3) The underlying purpose of that rule — to discourage government from violating citizens' rights to be free from unconstitutional searches and seizures — can be accomplished without barring identifications obtained through photos taken during illegal arrests. That is so even though it might be said the photos would not exist "but for" the arrest. (1c) Generally, law enforcement officers do not make arrests, legal or illegal, in order to obtain photographs they can use to seek identifications from the victims of crimes. They have other much more important motives *183 for those arrests — to get suspects off the street, to search them for physical evidence, and to interrogate them. The taking of photographs and fingerprints is merely an incidental event accompanying the arrest. And, indeed there is no need to arrest a suspect in order to take a photograph of him or her. Officers can surreptitiously photograph people on the street without arresting or detaining them in any way. So, it could be said the arrest is only incidental to the photograph just as the photograph is only an incident of the arrest. In that sense, the rationale for admitting photographs taken during illegal arrests partakes of the "inevitable discovery" as well as the "attenuation" limitations on the fruit of the poisonous tree doctrine. This is not to say every photograph taken while a defendant is held under an illegal arrest can be used in seeking identifications in other cases. Professor LaFave cautions "[e]ven if it is thought that the fears expressed by the McInnis dissenters are overstated, and that consequently it is not necessary to bar all use of photographs taken incident to illegal arrests, courts should nonetheless be vigilant in determining in particular cases whether the photograph was come by as a consequence of an arrest made for the purpose of adding defendant's picture to the police mug books." (5 LaFave, Search and Seizure, supra, § 11.4(g), p. 322, italics added.) LaFave's admonition makes sense. If the courts were to sanction the practice of making illegal arrests for the specific purpose of collecting photographs to be used in future or ongoing investigations we would encourage an increase, perhaps dramatic, in the frequency of unconstitutional conduct on the part of law enforcement. In those instances, the taking of the photographs supplies an important motive, perhaps the prime motive, for the illegal arrests. Accordingly, to protect constitutional rights, the underlying purpose of the exclusionary rule would dictate the courts bar the photographs and resulting identifications.[3] The instant case does not raise this concern, however. Here the taking of appellant's photograph was a reasonable police procedure for which we can find no evidence whatsoever of exploitation. The officers did not arrest *184 appellant "for the purpose of adding defendant's picture to the police mug books." Rather they arrested him because they believed, albeit on questionable evidence, that he might have robbed Mr. Tony. They merely used the occasion of appellant's arrest for that crime to take a photograph they would have been entitled to take on the street or elsewhere without an arrest. And furthermore they used the photograph initially to seek an identification from Mr. Tony, the victim in the crime for which they had arrested appellant, not merely to add it to a "mug book." Only after Mr. Tony told them appellant was not the one who robbed him did the officers use the same photograph to seek and obtain identifications in other crimes. It would be unnecessary and indeed absurd to rule inadmissible all identifications victims might make in criminal investigations merely because the officers chose to use a defendant's photograph which happened to have been taken while appellant was held illegally for a different crime. Only when law enforcement makes illegal arrests for the sole or primary purpose of obtaining photographs they can use in ongoing or future investigations is there a constitutional justification to bar use of those photographs in identifying the perpetrators of crimes. As explained above, the photographs here were an event occurring during the arrest not the motive for the arrest. Thus, the officers properly used them in photo arrays shown to the victims of appellant's crimes. II. Assuming the Photographs and Photo Identifications Were Fruit of the Poisonous Tree, the Victims' In-court Identifications Were Not Tainted by That Illegality. We also observe an alternate rationale exists for upholding the judgment in this case. Even where courts have found it unlawful to use a particular photo to identify the defendant they do not always conclude the photo identification tainted the victim's in-court identification of the defendant. For instance, in United States v. Slater (10th Cir.1982) 692 F.2d 107 officers assembled an array of photos and showed it to witnesses. The array included a photograph of defendant taken after he had been arrested illegally. The witnesses identified his photo as the perpetrator and he was prosecuted. At trial and on appeal he argued the photograph of him used in an array was inadmissible because it was taken after an illegal arrest. The 10th Circuit held any error in admitting the photograph and ensuing photo identifications was harmless because the witnesses also identified the defendant in person during the trial. The court reasoned the witnesses "had each actually seen the crime committed at close hand, ... there was no identification of another person or failure to identify the defendant, and the *185 person who committed the crime made no attempt to conceal his face ... [therefore] the in-court identifications of [the defendant] were independently valid and that if there was any error in the failure to suppress the photographic array it was harmless." (692 F.2d at p. 108.) At the preliminary hearing in the present case four victims testified and positively identified appellant as the perpetrator. Each victim actually saw the crime committed at close hand, they did not fail to identify the defendant, and the perpetrator made no attempt to conceal his identity. Consequently, the victims' in-court identifications of appellant as the perpetrator would render harmless any error in refusing to suppress the photographic identifications. Futhermore, since appellant pled nolo contendere he is foreclosed from speculating what might have happened had the case gone to trial. He has surrendered any opportunity to argue the victims somehow would have been unable to identify him independent of the photographic evidence had there been such a trial even though they demonstrated an ability to do so during the preliminary hearing. For both reasons expressed in this opinion, we find the trial court did not err in denying appellant's motion to suppress under Penal Code section 1538.5. DISPOSITION The judgment is affirmed. Lillie, P.J., and Neal, J., concurred. Appellant's petition for review by the Supreme Court was denied August 26, 1998. NOTES [1] The record is not clear as to when Gist gave Detective Evans the information implicating appellant in the gas station robberies. However, this uncertainty does not affect our decision. [2] Appellant was never charged with the robbery of Mr. Tony. He was charged with totally unrelated robberies. [3] For a case in which the court found a photograph to have been discovered by the exploitation of illegal police conduct, see People v. Rodriguez (1993) 21 Cal. App.4th 232, 241 [26 Cal. Rptr.2d 660]. In that case the court concluded the police illegally arrested a defendant for the primary or sole purpose of taking a "gang book photograph" which was "obtained deliberately for use in future criminal investigations." This case is readily distinguishable from Rodriguez. There is no evidence in the instant case suggesting the officers' primary motive for appellant's arrest in the Tony investigation was to take photographs they could add to a "mug book" or a "gang book." Instead as discussed above, the evidence supports the conclusion they arrested appellant because they thought he committed a specific crime, the Tony robbery. After the arrest they took the photo and sought an identification from the victim of that crime. Only then did the officers use it for the crimes involved in this appeal.