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209 F.3d 114 (2nd Cir. 2000) In re: DAWNWOOD PROPERTIES/78, Debtor.JOHN P. ROONEY and DAWNWOOD PROPERTIES/78, Plaintiffs-Appellants,v.BLAKE THORSON, AIA, as Executor of the Estate of Robert L. Thorson, deceased, and CARSON, LUNDIN & THORSON, P.C., Defendants-Appellees. Docket No. 99-5041August Term, 1999 UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT Argued: March 16, 2000Decided: April 07, 2000 Appeal from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) affirming the dismissal by the Bankruptcy Court (Burton R. Lifland, then-Chief Bankruptcy Judge) of an adversary proceeding initiated by a Chapter 11 debtor and its chief owner. We conclude that dismissal was proper because, under 11 U.S.C. 323(b), only the trustee appointed to manage the bankruptcy estate could initiate the proceeding. We further conclude that the District Court properly denied leave to file a new complaint because the action was time-barred. Affirmed. John P. Rooney, New York, NY, for Plaintiffs-Appellants. Richard E. Signorelli (Joel S. Stern, on the brief), Stern, Levy & Pellegrino, LLP, New York, NY, for Defendants-Appellees. Before: CABRANES and SOTOMAYOR, Circuit Judges, and TRAGER, District Judge.* Jose A. Cabranes, Circuit Judge: 1 Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) affirming the dismissal by the Bankruptcy Court (Burton R. Lifland, then-Chief Bankruptcy Judge) of an adversary proceeding initiated by a Chapter 11 debtor, Dawnwood Properties ("Dawnwood"), and John P. Rooney, an attorney who owns 95% of Dawnwood's equity and serves as Dawnwood's counsel in the instant action. We conclude that dismissal was proper because, under 11 U.S.C. 323(b),1 only the trustee appointed to manage the Chapter 11 bankruptcy estate was capable of initiating the instant adversary proceeding. We further conclude that the District Court properly denied leave to file a new complaint because any new action would have been time-barred. 2 The material facts set forth below are not in dispute. This adversary proceeding arises out of alleged malpractice and breach of contract committed by an architectural firm, Carson, Lundin & Thorson ("CLT"), in which the now-deceased Robert Thorson was a partner. Defendants agreed in 1976 to supervise construction of Dawnwood, a housing complex consisting of twenty-four garden apartments in Greenport, New York. In April 1990, Dawnwood served Robert Thorson and CLT in the Supreme Court of the State of New York, New York County, with a summons and notice of action for breach of contract and malpractice. Despite subsequent requests for service of a full complaint, none was served. 3 On November 23, 1994, Dawnwood filed a petition for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. 101 et seq. Soon thereafter, Dawnwood's primary lender secured appointment by the Bankruptcy Court of a permanent trustee to manage the bankruptcy estate. On January 26, 1996, Rooney filed with the Bankruptcy Court the complaint initiating the instant adversary proceeding. On March 25, 1996, the Bankruptcy Court held a conference concerning the proposed action, at which the trustee stated: 4 This adversary proceeding . . . was brought without reference to the Trustee nor with the Trustee's consent or permission. This is an action that was brought on behalf of the estate by Mr. Rooney himself . . . without authority of the Trustee to bring this matter. 5 We are a little bit concerned that Mr. Rooney has taken some comments that may have been made on the record to understand that he has carte blanche to sue people on behalf of the estate, which is not correct. 6 . . . . 7 We believe that the Trustee is the only person to bring these actions, and we didn't bring them for numerous reasons, not least of which is that this action [is time-barred]. 8 In re Dawnwood Properties/78, 231 B.R. 167, 174 (S.D.N.Y. 1999) (quoting Hearing Transcript at 6, 8). The Bankruptcy Court dismissed the adversary complaint on April 5, 1996. 9 On appeal from the Bankruptcy Court, the District Court affirmed the dismissal. The District Court found that: (1) plaintiffs' failure to comply with the request to serve the complaint in 1990 barred the action; (2) the adversary proceeding was time-barred; and (3) plaintiffs lacked standing. See id. at 171-74. We review this decision independently, "accepting findings of fact unless clearly erroneous but reviewing conclusions of law de novo." In re Casse, 198 F.3d 327, 332 (2d Cir. 1999). 10 Once the trustee was appointed to maximize the assets of the Chapter 11 bankruptcy estate, neither Rooney nor Dawnwood had standing to bring this adversary proceeding on Dawnwood's behalf; that authority instead rested solely with the trustee. See 11 U.S.C. 323(b); Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988); Vreugdenhil v. Hoekstra, 773 F.2d 213, 215 (8th Cir. 1985); In re 47-49 Charles Street, Inc., 211 B.R. 5, 6 (S.D.N.Y. 1997); 3 COLLIER ON BANKRUPTCY 323.03, at 323-7 (15th ed. rev. Mar. 2000). Accordingly, we have no difficulty concluding that when plaintiffs filed their adversary proceeding complaint in January 1996, they lacked standing to initiate this matter. Therefore, the case properly was dismissed. 11 In reaching this conclusion, we note that our decision in Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515-16 (2d Cir. 1998) (per curiam), is readily distinguishable. In Olick, we found that a Chapter 13 debtor retains standing to litigate causes of action that, outside of bankruptcy, would belong to the debtor. In so ruling, we focused both on legislative history specific to Chapter 13 and the fact that, because creditors' recovery in Chapter 13 is drawn from a debtor's earnings rather than from assets of the bankruptcy estate, a trustee's participation is not needed to protect the rights of Chapter 13 creditors. See id. at 516. Neither of these reasons applies to the instant case, in which the main creditor of a Chapter 11 debtor secured the appointment of the trustee to manage the estate and, at least implicitly, to protect its assets from the debtor-in-possession. As this situation is readily distinguishable from the Chapter 13 rehabilitation of an individual debtor with a regular stream of income, we hold that the trustee appointed to manage the Chapter 11 estate in this case had the sole capacity to bring this adversary proceeding. 12 Because the trustee abandoned the instant claims on August 13, 1997, after the Bankruptcy Court's dismissal but before the District Court considered the matter, we interpret the District Court's dismissal on the alternative ground that the action was time-barred as a denial of leave to file a new complaint. We affirm that denial. There is no question that New York Civil Practice Law and Rules 214(6) provides the applicable limitation period for plaintiff's claims, which in essence constitute an action for professional malpractice. See generally Santiago v. 1370 Broadway Assocs., L.P., 695 N.Y.S.2d 326, 327 (1st Dep't 1999) (architecture included in the "learned professions" to which 214(6) applies). However, the parties dispute whether we should apply the six-year period that was in effect when this action was initiated in January 1996 or the three-year period that became effective on September 4, 1996, when 214(6) was amended.2 The instant claims accrued no later than April 1990, when Dawnwood and Rooney initiated a state court action against Robert Thorson and CLT asserting claims identical to those raised here. Accordingly, by the time the trustee abandoned the claims in August 1997, even the six-year limitation period would have expired. As the instant claims are untimely even under the longer period, we need not decide the issue of the applicable limitation period in finding that the District Court properly found the claims time-barred. 13 We note in conclusion that, prior to the expiration of the limitation period-in April 1996 at the latest-plaintiffs were not wholly without recourse to pursue the instant claims. Rather, they could have referred the matter to the trustee for his consideration of whether it was in the interest of the bankruptcy estate to pursue the action. The trustee specifically noted in the hearing before the Bankruptcy Court that the adversary proceeding "'was brought without reference to the Trustee.'" 231 B.R. at 174 (quoting Hearing Transcript at 6). Ultimately, it was within the trustee's discretion to pursue the claims, let them lie, or abandon them in order to allow the debtor to proceed. If not satisfied with the trustee's response, plaintiffs were free to bring the matter to the attention of the Bankruptcy Court for whatever directions or relief the Court thought appropriate, including a direction to the trustee either to initiate the action in question or to abandon the claims within the limitation period so as to allow the plaintiffs to pursue the claims on their own. 14 For the reasons set forth above, the judgment of the District Court is hereby affirmed. Notes: * The Honorable David G. Trager of the United States District Court for the Eastern District of New York, sitting by designation. 1 Section 323(b) provides that "[t]he trustee in a case under this title has capacity to sue and be sued." 2 As amended, 214 provides in relevant part: The following actions must be commenced within three years: . . . . 6. an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort . . . . (emphasis added). The italicized portion, added in 1996, brought all nonmedical malpractice claims within the three-year limitation period, thereby abrogating the New York Court of Appeals's decisions in Santulli v. Englert, Reilly & McHugh, P.C., 78 N.Y.2d 700 (1992), and Sears, Roebuck & Co. v. Enco Assocs., Inc., 43 N.Y.2d 389 (1977), which had held that the six-year limitation period under CPLR 213(2) applied whenever a plaintiff's malpractice claim sought damages for pecuniary or property loss. See VINCENT C. ALEXANDER, Supplementary Practice Commentaries CPLR 214, 188-93 (McKinney Supp. 1999-2000).

Order entered July 3, 2018 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00762-CV IN RE 165 HOWE, LP, ET AL., Relators Original Proceeding from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-13-03144-A ORDER Before Justices Lang-Miers, Fillmore, and Stoddart Based on the Court’s opinion of this date, we DENY relators’ petition for writ of mandamus. We ORDER relators to bear the cost, if any, of this original proceeding. /s/ ROBERT M. FILLMORE JUSTICE 

USCA1 Opinion United States Court of Appeals For the First Circuit ____________________ No. 97-1132 GEORGE F. NOONAN AND ANN MARIE NOONAN, Plaintiffs, Appellants, v. THE WINSTON COMPANY, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge] ___________________ ____________________ Before Boudin, Circuit Judge, _____________ Stahl, Circuit Judge, _____________ and Young,* District Judge. ______________ ____________________ Michael D. Lurie, with whom Alex H. MacDonald, H. Bissell Carey, ________________ _________________ __________________ III, and Robinson & Cole, were on brief for appellants. ___ _______________ Ralph G. Elliot, with whom Tyler Cooper & Alcorn, Walter H. Mayo, _______________ ______________________ _______________ III, and Casner & Edwards, were on brief for Colour Library Books, ___ _________________ Ltd. Robert M. Callagy, Joshua M. Rubins, Satterlee Stephens Burke & __________________ ________________ ___________________________ Burke LLP, David R. Friedman, and Palmer & Dodge, were on brief for _________ __________________ _______________ The Winston Company, et al. ____________________ February 2, 1998 ____________________ _____________________ *Of the District of Massachusetts, sitting by designation. STAHL, Circuit Judge. Plaintiffs-appellants George STAHL, Circuit Judge. _____________ and Anne Marie Noonan challenge the district court's dismissal, on personal jurisdiction grounds, of their defamation, misappropriation and violation of the right of publicity, and related claims against Colour Library Books, Ltd., Lintas:Paris, R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International, Inc., R.J. Reynolds France, S.A., Worldwide Brands, Inc., and Lintas:Worldwide. Having fully considered plaintiffs' arguments, we affirm. I. I. __ A. General Background ______________________ George Noonan, a Boston Police Detective and a devoted non-smoker, has spent the bulk of his twenty-two year career educating Bostonians about the health risks of tobacco use. During the summer of 1992, a magazine advertisement sponsored by Winston cigarettes featuring Noonan's image appeared in several French magazines. Noonan claims that the unauthorized use of his image to benefit tobacco sellers has caused him personal and professional harm and embarrassment. The offending photograph has a long history. In 1979, Neil Sutherland, an employee of the English book packaging house1 Colour Library Books ("CLB"), photographed ____________________ 1. Packaging houses design and print books to be sold to publishers. -2- 2 Noonan in Boston without his permission. Although the photograph was meant to appear in a coffee table book titled Boston: City of Dreams, it was never published or ____________________________ distributed. The photograph remained in CLB files until 1990, when CLB published it in An American Moment. Two years __________________ later, CLB sold the photograph to the French advertising agency Lintas:Paris, with no restrictions on its use and without advising Lintas:Paris that Noonan had not granted a release. Lintas:Paris used the photograph in a campaign for client R.J. Reynolds France, S.A. ("RJR France"), a French cigarette manufacturer. RJR France had retained Lintas:Paris to design an advertising campaign both to publicize Winston cigarettes and to market an informational communications system called The Minitel Service, an interactive network that provides consumer services such as personal shopping, banking, and remittance of income taxes. Companies sponsor segments of the service in exchange for a share of the revenues generated. The Winston Way, one component of the Minitel Service, provides information about dining and entertainment in France and is sponsored by the Cooperation Gesellschaft fuer Markendiversifikation mbh, a German company affiliated with RJR France and unrelated to this action. The full-page advertisement pictures Noonan in his Boston Police uniform and on horseback at Faneuil Hall in -3- 3 Boston. The text reads, "The Winston Way," printed in the form of the Winston cigarette logo -- white letters against a red background. The advertisement also provides a phone number for Minitel. Without the knowledge of Lintas:Paris, at least 305 copies of various French magazines containing the advertisements were distributed to, and at least 183 of these were sold from, retail magazine outlets in the Boston area. Noonan became aware of the offending advertisement during the summer of 1992. Fellow police officers told Noonan that a magazine with a picture of him on the back cover was circulating. Nancy Fay, a Massachusetts resident who had seen the advertisement while vacationing in France, brought the advertisement to Boston and wrote to Noonan to inquire whether the cigarette manufacturer had paid Noonan for the advertisement. Noonan's son Greg saw the advertisement when his French teacher brought a copy of a magazine containing the advertisement to class; Greg's faculty advisor told Greg that he had seen the advertisement in France. Some people, assuming that Noonan had consented to the use of his image, denounced him for supporting the cigarette industry. As a result of what Noonan felt was an attack on his reputation, he initiated this suit. Given the number of parties to this litigation and the importance of their relationships to plaintiffs' -4- 4 jurisdictional theories, we begin with a brief overview of the defendants. Defendant Lintas:Paris is a French corporation, with its only office in Paris, France. Defendant RJR France, also a French corporation, has corporate offices in Boulogne-Billancourt, France. Defendant R.J. Reynolds Tobacco ("RJR Tobacco") is a New Jersey corporation with its principal place of business in New York, New York. RJR Tobacco is the organization through which its parent company, RJR Nabisco, Inc., conducts its domestic cigarette business. Defendant R.J. Reynolds Tobacco, International ("RJRTI"), the international analogue to RJR Tobacco and also a wholly-owned subsidiary of RJR Nabisco, Inc., is a Delaware corporation with its principal place of business in Winston-Salem, North Carolina. Defendant Worldwide Brands, Inc. ("Worldwide"), a dealer in trademark rights and licenses and another RJR Nabisco, Inc. subsidiary, is also a Delaware corporation. Worldwide's French offices are in Boulogne-Billancourt. Defendant Lintas:Paris is a wholly-owned subsidiary of France C.C.P.M, in turn a wholly- owned subsidiary of Lintas Holdings, B.V., itself a wholly- owned subsidiary of the Interpublic Group of Companies, Inc. ("Interpublic"). Noonan asserts that defendant Lintas:Worldwide is an advertising corporation managed by Interpublic. Defendants claim, and the district court found, that Lintas:Worldwide is not a legal entity. For reasons we -5- 5 shall explain infra, its existence vel non does not affect _____ ___ ___ our decision. Finally, defendant CLB is a British company with offices in Surrey, England. B. Prior Proceedings _____________________ The complaint sets forth five direct claims -- misappropriation and violation of the right of publicity, see ___ Mass. Gen. Laws Ann. ch. 214, 3A (West 1985 & Supp. 1996); defamation, invasion of the right of privacy, see id. 1B; ___ ___ reckless or intentional infliction of emotional distress; unfair and deceptive acts, see id. ch. 93A, 2,11 -- and a ___ ___ derivative claim for loss of consortium, brought by Mrs. Anne Marie Noonan. The district court initially dismissed all claims, pursuant to Fed. R. Civ. P. 12(b)(2), except those against CLB for lack of personal jurisdiction over named defendants. See Noonan v. The Winston Co., 902 F. Supp. 298 (D. Mass ___ ______ _______________ 1995) ("Noonan I"). After allowing Noonan limited jurisdictional discovery with respect to CLB, the court dismissed all claims against CLB. See Noonan v. Colour ___ ______ ______ Library Books, LTD., 947 F. Supp. 564 (D. Mass. 1996) _____________________ ("Noonan II"). Noonan appeals from these rulings. Because the district court dismissed plaintiffs' claims without holding an evidentiary hearing, we review the rulings de novo, drawing facts from the parties' pleadings __ ____ and supplementary filings, and construing all inferences in -6- 6 the plaintiffs' favor. See Ticketmaster-New York, Inc. v. ___ ____________________________ Alioto, 26 F.3d 201, 203 (1st Cir. 1994). ______ -7- 7 II. II. ___ On appeal, plaintiffs advance four arguments. First, they assert the district court erred in concluding that it lacked specific jurisdiction over defendants CLB, Lintas:Paris (as RJR France's agent), and RJR France (as Lintas:Paris' principal). Second, they contend the district court erred by failing to exercise general jurisdiction over RJR Tobacco and CLB. Third, they claim the district court abused its discretion when it denied them permission to take jurisdictional discovery before it ruled on the motions to dismiss for lack of personal jurisdiction filed by defendants RJTC, RJRTI, RJR France, Lintas:Worldwide, Lintas:Paris, and Worldwide Brands. Finally, they argue the district court improperly limited jurisdictional discovery as to CLB. "Specific personal jurisdiction may be asserted where the cause of action arises directly out of, or relates to, the defendant's forum-based contacts." United Elec., ______________ Radio & Mach. Workers of America v. 163 Pleasant St. Corp., _________________________________ _______________________ 960 F.2d 1080, 1088-89 (1st Cir. 1992) ("Pleasant I") (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. __________________________________________ ____ 408, 414 & n.8 (1984)). "General jurisdiction exists when the litigation is not directly founded on the defendant's forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." Id. at 1088 (citing ___ -8- 8 Helicopteros, 466 U.S. at 414-16 & n.9). Three questions ____________ constitute both the specific and general personal jurisdiction analyses: 1) whether the Massachusetts long-arm statute authorizes jurisdiction; 2) whether the defendant has sufficient minimum contacts so that the exercise of jurisdiction does not offend due process; and 3) whether the exercise of jurisdiction is reasonable, and therefore does not offend due process. Cf. United Elec., Radio & Mach. ___ _____________________________ Workers of America v. 163 Pleasant St. Corp., 987 F.2d 39 ___________________ _______________________ (1st Cir. 1993) (setting out steps for jurisdictional analysis generally) ("Pleasant II"). We determine reasonableness by applying factors we have described as "gestalt factors."2 If the requirements of either the state statute or the Due Process Clause of the U.S. Constitution are not met, the foreign defendant will not be subject to personal jurisdiction. A. Jurisdictional Issues _________________________ (i) Specific Jurisdiction over CLB ______________________________ As an initial matter, we decline to consider whether CLB is subject to personal jurisdiction under a theory of specific jurisdiction because the Noonans did not ____________________ 2. The criteria are: "(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies." Pleasant I, 960 F.2d at 1088. __________ -9- 9 assert this theory below. Plaintiffs initially opposed the defendants' motions to dismiss by arguing that the district court had specific jurisdiction over all the defendants. After completing discovery over CLB, however, plaintiffs abandoned their specific jurisdiction claim against CLB, arguing only that the court had general jurisdiction over it or, in the alternative, that jurisdiction should be found as a sanction for CLB's failure to comply in good faith with its discovery obligations. Plaintiffs, therefore, may not raise a specific jurisdiction theory against CLB now, for "[i]f any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal." Teamsters, Local No. 59 v. Superline _________________________ _________ Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). There are no ___________ extraordinary circumstances in this case; plaintiffs had ample time to consider and advance their best arguments supporting specific jurisdiction. (ii) Specific Jurisdiction over Lintas:Paris and _____________________________________________ RJR France ___________ Because we determine that the assertion of personal jurisdiction over Lintas:Paris and RJR France would offend due process, we decline to decide the difficult question whether plaintiffs have established a prima facie case ____________ authorizing personal jurisdiction over these defendants under -10- 10 the Massachusetts long-arm statute. See Ticketmaster, 26 ___ ____________ F.3d at 205; U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 ___________________ ___________________ F.2d 9, 11 (1st Cir. 1990); Eveland v. Director of Cent. _______ __________________ Intelligence Agency, 843 F.2d 46, 50 (1st Cir. 1988). ___________________ The Due Process Clause of the Fourteenth Amendment permits a state to exercise personal jurisdiction over a non- resident defendant only when the defendant has sufficient minimum contacts with the forum. See Int'l Shoe Co. v. ___ _______________ Washington, 326 U.S. 310, 316 (1945). Sufficient minimum __________ contacts exist for specific jurisdiction when "(1) the claim underlying the litigation . . . directly arise[s] out of, or relate[s] to, the defendant's forum-state activities, (2) the defendant's in-state contacts . . . represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable, and" (3) exercising jurisdiction is fair under the gestalt factors. Pleasant II, 987 F.2d at 43 n.9. The decisive due process ___________ issue in this case is whether the defendants' activities satisfy the purposeful availment requirement. Plaintiffs correctly draw our attention to Calder ______ v. Jones, 465 U.S. 783 (1984), in which the Supreme Court ______ adopted an effects test for determining purposeful availment in the context of defamation cases. Calder concerned two ______ -11- 11 Florida reporters, employed by The National Enquirer, who ______________________ wrote a libelous article about California entertainer Shirley Jones. Id. The Supreme Court held that jurisdiction ___ properly could be asserted over the reporters because the defendants had aimed an act at the forum state, knew the act would likely have a devastating effect, and knew the injury would be felt in the forum state, where Jones lived and worked "and in which the National Enquirer ha[d] its largest circulation." Id. at 790. Plaintiffs' circumstances ___ satisfy only the injurious-effects part of the Calder test. ______ Like Jones, plaintiffs felt a tortious effect in the forum state where they lived and worked. Moreover, the content of the picture -- a Boston Police Officer in uniform, sitting on a saddle blanket decorated with the Boston Police insignia, in front of a distinctive Boston landmark -- indicated where any injury would be felt. For the first part of Calder's framework to be ______ satisfied, however, the defendants must have acted toward the forum state with sufficient intent to make them "reasonably anticipate being haled into court there." World-Wide __________ Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). In ________________ _______ Calder, the court found that the defendants' intentional ______ conduct was "calculated to cause injury to respondent in __________ California." Calder, 465 U.S. at 791 (emphasis added). ______ There is no analogous intentional behavior here. -12- 12 Plaintiffs do not allege, and the record does not suggest, that any acts by Lintas:Paris3 were committed with sufficient purpose to satisfy the intent requirement.4 The defendants did not direct their actions toward Massachusetts. That the advertisement contains French text and a French phone number suggests Lintas:Paris created it for a French audience. This interpretation is corroborated, without contradiction, by a Lintas:Paris representative who stated that "[t]he advertisement was aimed solely at the French consumer market." Roux Aff., 12. Furthermore, Lintas:Paris "was not aware that some copies of the magazines bearing the advertisement" would reach Massachusetts. Id. ___ 15. Although plaintiffs fleetingly refer to Lintas:Paris' knowledge that the advertisements would reach Massachusetts and passingly contest the district court's ____________________ 3. We first consider Lintas:Paris' actions alone because the Noonans' jurisdictional claims over RJR France rest on its agency relationship with Lintas:Paris. The viability of plaintiffs' claims against RJR France depends on our first finding that Lintas:Paris purposefully availed itself of the forum state. 4. The district court emphasizes that Noonan "did not allege any of the defendants . . . even knew who he was, much less that they published his picture intending that he be harmed in Massachusetts." Noonan I, 902 F. Supp. at 305. In our ________ view this argument implies too high a jurisdictional hurdle. Because this is an inquiry regarding jurisdiction, not the underlying tort, the defendant must only be shown to have intentionally directed an act, tortious or otherwise, toward the forum state. The defendants' lack of a specific intent to harm Noonan is irrelevant. -13- 13 denial of discovery as to what Lintas:Paris should have known, they do not dispute Lintas:Paris' claims of actual ignorance.5 Instead, relying on Calder and other cases where ______ the defendant intentionally sent fraudulent or defamatory material into the forum, plaintiffs imply that the defendants' intent to reach Massachusetts can be inferred from the placement of advertisements in publications with international circulations. Cf. Murphy v. Erwin-Wasey, Inc., ___ ______ _________________ 460 F.2d 661 (1st Cir. 1972) (defendant intentionally sent fraudulent material into forum); Borshow Hosp. & Med. ________________________ Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472 _______________ ______________________ (D.P.R. 1992) (defendant sent letters into forum). In Calder, because the libelous story was generated ______ from California sources, concerned a California celebrity, and appeared in a newspaper with a forum circulation of 600,000 copies, the Court found that California was the focal point of both the effect and the story. See Calder, 465 U.S. ___ ______ ____________________ 5. As noted above, plaintiffs only vaguely referred to Lintas:Paris' knowledge in its appellate brief. Further, plaintiffs perfunctorily asserted to the district court, in a footnote, a need for discovery as to whether Lintas:Paris should have known that the magazines would be distributed in Massachusetts. These assertions are not tantamount to a rebuttal of Lintas:Paris' claims of ignorance. See United ___ ______ States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not ______ _______ enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."). Nor is the footnote sufficient to have preserved an argument that negligence is sufficient to constitute purposeful availment. -14- 14 at 789. Here, however, plaintiffs' claims rest on an advertisement which appeared in 305 individual magazines, circulated in Massachusetts. This small distribution, by itself, does not merit a finding that Massachusetts was the focal point of the events in question, or that Lintas:Paris aimed the advertisements toward Massachusetts. The size of a distribution of offending material helps determine whether a defendant acted intentionally. The Supreme Court has held that a publisher's regular circulation of a large number of magazines containing allegedly libelous content in a forum state indicated deliberate and continuous exploitation of a market and, therefore, was sufficient to support jurisdiction. See Keeton v. Hustler Magazine, Inc., 465 U.S. ___ ______ ______________________ 770, 781 (1984). Just as widespread circulation of a publication indicates deliberate action, thin distribution may indicate a lack of purposeful contact. See Chaiken v. VV ___ _______ __ Publ. Corp., 119 F.3d 1018 (2d Cir. 1997) (holding that ____________ jurisdiction over an Israeli publisher for a libel action involving an insignificant distribution -- four copies or .04% of total circulation -- offends due process), petition ________ for cert. filed, ___ U.S.L.W. ___ (U.S. Nov. 25, 1997) (No. ___ _____ _____ 97-6984). Plaintiffs urge us to rely on Gordy v. The Daily _____ _________ News, 95 F.3d 829 (9th Cir. 1996), a case in which the Ninth ____ Circuit found that the distribution of under twenty -15- 15 newspapers was sufficient to confer jurisdiction over a foreign newspaper and its reporter. Unlike Lintas:Paris, however, the Gordy defendants targeted the forum state by _____ distributing newspapers via regular customer subscriptions to forum addresses. Here, as noted, Lintas:Paris denies knowing the ultimate destination of the magazines that reached Massachusetts, and plaintiffs have not alleged otherwise. While we sympathize with George Noonan's distress at seeing his image used to promote a product he despises, his Massachusetts-based injury is not enough to support jurisdiction over the defendants. To find otherwise would inappropriately credit random, isolated, or fortuitous contacts and negate the reason for the purposeful availment requirement. Without finding minimum contacts, we need not, and do not, proceed to the reasonableness analysis. See ___ Donatelli v. National Hockey League, 893 F.2d 459, 471 (1st _________ ______________________ Cir. 1990). (iii) General Jurisdiction over CLB and RJR Tobacco _____________________________________________ According to plaintiffs, CLB's and RJR Tobacco's contacts with Massachusetts were sufficiently continuous and systematic to permit the district court to exercise general jurisdiction. (a) CLB ___ We begin our analysis with the relevant section of the Massachusetts long-arm statute: -16- 16 A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's . . . (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth . . . . Mass. Gen. Laws Ann. ch. 223A, 3(d) (1985 & Supp. 1996). In our effort to "effectuate . . . [the Commonwealth's] legitimate desire to protect its citizens," we construe the statute broadly. Mark v. Obear & Sons, Inc., 313 F. Supp. ____ ___________________ 373, 376 (D. Mass. 1970). Viewing the facts in a light most favorable to plaintiffs, the threshold requirement of 3(d), that plaintiffs' in-state harm was caused by the defendant's out- of-state act, is easily met. The plaintiffs suffered an injury in Massachusetts where the use of George Noonan's image caused him shame and embarrassment and engendered the loss of consortium of which Anne Marie Noonan complains. Furthermore, CLB's allegedly improper act, the unauthorized sale of the photograph containing Noonan's image, was a foreign act that arguably contributed to plaintiffs' in-state injuries. Plaintiffs' appeal raises the issue of whether the district court properly decided that plaintiffs failed to -17- 17 satisfy the second requirement of 3(d), that CLB had sufficient additional contacts with the forum. The district court assumed that plaintiffs' "best case [fell] under the 'substantial revenues' test of 3(d)," and found the revenues insufficient to meet the test. Noonan II, 947 F. _________ Supp. at 571. We think, however, plaintiffs' best case falls under the "doing or soliciting business" test. Because this clause is disjunctive, only one of its prongs needs to be satisfied. While the parties energetically debate the success of CLB's Massachusetts solicitations, we measure only the solicitations themselves. CLB solicited business in Massachusetts with sufficient regularity to satisfy the statute. Beginning in the fall of 1992 and continuing until plaintiffs' complaint was filed in May 1994, CLB employees regularly solicited business from World Publications, Inc. ("World"), a remainder house located in Dighton, Massachusetts. During the two-year period, CLB employees telephoned, faxed, and wrote to World to secure book orders.6 In addition, CLB employees traveled ____________________ 6. The lower court sets forth the details regarding CLB's courtship of World, beginning with the early 1994 contacts. See Noonan II, 947 F. Supp. at 567-68. Because the district ___ __________ court recognized only successful solicitations, it did not recount the following pre-1994 contacts: In October 1992, CLB's International Sales Director, Bill Dancer, began soliciting World's business. World provided CLB with a credit reference, and CLB provided World with a credit application form. In November 1992, Dancer traveled to Massachusetts, met with World, and secured a $210,000 order. -18- 18 from England to Massachusetts on at least two occasions with the intention of developing a relationship with World. Finally, in the spring of 1994, World employees visited CLB in England to negotiate orders.7 In sum, CLB's direct solicitations of forum companies are adequately regular and targeted to satisfy 3(d). Cf. Keds Corp. v. Renee Int'l ___ __________ ___________ Trading Corp., 888 F.2d 215, 217-19 (1st Cir. 1989) (the sale _____________ of 6000 pairs of shoes to a Massachusetts wholesaler and the subsequent shipping of 18 sample shoes indicated defendants' intent to begin ongoing relations). We therefore turn to whether these contacts are sufficient to satisfy the Constitution. Until the date plaintiffs filed their complaint, CLB's relevant contacts with Massachusetts were Neil Sutherland's visits to Massachusetts in 1979, the business solicitations discussed above, and approximately $585,000 of orders from World.8 The ____________________ 7. In 1993, CLB also sought business relationships with two other Massachusetts publishers, Lauriat's Booksellers and Little Brown and Company. CLB disputes the propriety of counting the Little Brown and Company contact because, in response to CLB's overture, Little Brown and Company directed CLB to contact a New York office. We need not resolve this dispute because, for purposes of 3(d), CLB's solicitations are sufficient even without the Little Brown and Company solicitation. 8. The parties clash over which contacts should be considered in the general jurisdiction analysis. First, they dispute whether a foreign corporation's contacts with the forum should be measured up to the time of the alleged tort, up to the time the complaint is filed, or at any time. We have considered all contacts established up to the time Noonan filed his complaint. See infra. at 23-25. Second, ___ ______ -19- 19 standard for evaluating whether these contacts satisfy the constitutional general jurisdiction test "is considerably more stringent" than that applied to specific jurisdiction questions. Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st ______ _______________ Cir. 1984). In addition, courts must exercise even greater care before exercising personal jurisdiction over foreign nationals. See Asahi Metal Indust. Co. v. Superior Court, ___ ________________________ ______________ 480 U.S. 102, 115 (1987) (citing United States v. First Nat'l _____________ ___________ City Bank, 379 U.S. 378, 404 (1965) (Harlan, J., ___________ dissenting)). Plaintiffs assert CLB's contacts were sufficient to establish general jurisdiction because they are purposeful, frequent, intense, and successful. Although our decision must be based on a fact-specific evaluation of CLB's contacts, we are guided by the types of contacts deemed sufficiently continuous and systematic in other cases. We look to two of our previous cases in which the appellants argued, as plaintiffs do now, that general jurisdiction applied to an out-of-state seller. In both ____________________ they disagree over whether it is appropriate to consider revenues other than those actually paid to CLB prior to the filing of the complaint. On this point we part company with the district court and think it reasonable to include amounts owed, but not yet paid, to CLB from orders placed by Massachusetts companies. Third, they arrive at different totals of the amounts owed, but not yet paid, to CLB because some orders were changed before the complaint date. For purposes of this analysis, we have included amounts paid to and ordered from CLB, but not cancelled before the date Noonan filed his complaint. -20- 20 cases, the defendant had more continuous and systematic contact with the forum state than CLB had with Massachusetts. In both cases, we judged the contacts insufficient to permit an assertion of general jurisdiction. First, in Glater, we found that a manufacturer who ______ advertised, employed eight sales representatives to distribute information, and sold products to distributors in the forum was not subject to general jurisdiction. See 744 ___ F.2d at 217. Although CLB's selling efforts by its England- based sales-force represented substantial work, they were not as intense, active, and frequent as those of the Glater ______ manufacturer's full-time sales representatives. Compare id. _______ ___ at 214-15, 217 with Noonan II, 947 F. Supp. at 567-68; see _________ ___ also supra notes 6 & 7. ____ _____ In Donatelli, we found that ten years of providing _________ league officials at exhibition hockey games, scouting, providing television broadcasts, and selling products bearing the National Hockey League (NHL) logo, taken together, did not meet the due process test. See Donatelli v. Nat'l Hockey ___ _________ ____________ League, 708 F. Supp. 31, 35 (D.R.I. 1989) (reciting facts), ______ reversed 893 F.2d 459 (1st Cir. 1990). Although CLB's ________ contacts were arguably more intense than the NHL's contacts -21- 21 in Rhode Island, its two-year history in Massachusetts is far less continuous than the ten years of activity in that case.9 Having determined that sufficient minimum contacts to authorize general jurisdiction over CLB do not exist, we do not need to assess whether asserting jurisdiction would be reasonable under the gestalt factors. See Donatelli, 893 ___ _________ F.2d at 471. ____________________ 9. We note that in Keeton, the Supreme Court suggested that ______ the distribution of 10-15,000 copies of a magazine in the forum state each month may not have been substantial enough to support general jurisdiction. 465 U.S. at 779. CLB's efforts were not as regular as those of Hustler Magazine's in New Hampshire, where Hustler had built up a subscription base. -22- 22 (b) RJR Tobacco ___________ Plaintiffs also argue that general jurisdiction over RJR Tobacco is proper under 3(d) and Mass. Gen. Laws ch. 223, 38. We will not, however, consider whether jurisdiction lies over RJR Tobacco because we do not agree with the premise that purportedly connects RJR Tobacco to this litigation. Cf. Hachikian v. Federal Deposit Ins. ___ _________ _____________________ Corp., 96 F.3d 502, 504 (1996) (concluding that we may _____ affirm the entry of summary judgment on any alternate ground made manifest by the record). While not disputing that it is the actions of RJR France, and not RJR Tobacco, that are put in issue by the allegations in their complaint, plaintiffs have nonetheless named RJR Tobacco as a defendant because (1) it, like RJR France, sells Winston cigarettes; and (2) it belongs to the same family of corporations as RJR Tobacco. These two assertions ignore the corporate form, and are patently insufficient to raise a claim involving an attribution of liability to RJR Tobacco under a veil-piercing theory in Massachusetts. Cf. Birbara v. Locke, 99 F.3d 1233 (1st Cir. ___ _______ _____ 1996) (discussing the stringent test for corporate veil- piercing in Massachusetts); Omni-Wave Elec. Corp. v. Marshall _____________________ ________ Indus., 127 F.R.D. 644, 647 (D. Mass. 1989) (stating that the ______ mere assertion that defendants are alter egos or joint ventures is not sufficient to withstand a motion to dismiss); -23- 23 American Home Assurance Co. v. Sport Maska, Inc., 808 F. _____________________________ __________________ Supp. 67, 73 (D. Mass. 1992) ("Piercing the corporate veil is permitted only where there is confused intermingling between corporate entities or where one corporation actively and directly participates in the activities of the second corporation, apparently exercising pervasive control."). B. Discovery Issues ____________________ Plaintiffs contend that the district court abused its discretion in denying them permission to take jurisdictional discovery over defendants RJR Tobacco, R.J. Reynolds Tobacco International, Inc., R.J. Reynolds France, S.A., Lintas:Worldwide, Lintas:Paris, and Worldwide Brands, Inc. In addition, plaintiffs assert that the district court improperly limited discovery over CLB. We apply a deferential standard in reviewing the lower court's discovery rulings, reversing only if the orders were "plainly wrong and resulted in substantial prejudice to the aggrieved party." Crocker v. The Hilton Int'l Barbados, Ltd., 976 F.2d 797, 801 _______ _______________________________ (1st Cir. 1992) (citing Santiago v. Fenton, 891 F.2d 373, 379 ________ ______ (1st Cir. 1989)). (i) The Advertising and Tobacco Defendants ______________________________________ The denial of plaintiffs' request for jurisdictional discovery as to the tobacco and advertising defendants was not an abuse of discretion. Throughout this litigation, plaintiffs have argued that the denial of this -24- 24 request deprived them of the opportunity to ascertain the interrelationships among the defendants. Proving ties among the tobacco defendants or between Lintas:Paris and the tobacco defendants would not assist plaintiffs' cause absent a concomitant demonstration that Lintas:Paris availed itself of the Massachusetts forum. We have already ruled against plaintiffs on this point. (ii) Limitation of Discovery over CLB _________________________________ Plaintiffs contend that if the district court had allowed them leeway to discover all contacts between CLB and Massachusetts throughout the litigation period, they would have been able to establish general jurisdiction over CLB. In its decision to deny jurisdiction over CLB, the district court posed the question, "Is a foreign corporation's contact with the forum to be measured at the time of the alleged tort . . . , at the time the Complaint is filed . . . , or at any time . . . ?" Noonan II, 947 F. Supp. at 571. Judge Stearns _________ applied the middle approach, and limited Noonan's discovery requests to contacts through the date the complaint was filed. We agree with this ruling insofar as it rejects as irrelevant post-complaint contacts. Metropolitan Life Ins. _______________________ Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-70 (2d Cir.) ___ ____________________ ("In general jurisdiction cases, district courts should examine a defendant's contacts with the forum state over a period that is reasonable under the circumstances -- up to -25- 25 and including the date the suit was filed -- to assess whether they satisfy the 'continuous and systematic' standard."), cert. denied, 117 S. Ct. 508 (1996). _____ ______ Plaintiffs dispute this approach on the grounds of law and policy. They first contend that a majority of courts routinely analyze contacts with the forum based on evidence from both before and after the date of the complaint. None of the cases they cite in support of this argument, however, directly speaks to the question posed here. See Wheeler ___ _______ Energy Corp. v. Metallgesellschaft AG, No. 91-214-SLR, 1993 _____________ ______________________ U.S. Dist. LEXIS 20450 (D. Del. Jan. 4, 1993); American Home _____________ Assurance, 808 F. Supp. 67; Kolikof v. Samuelson, 488 F. _________ _______ _________ Supp. 881 (D. Mass. 1980); Mark v. Obear & Sons, 313 F. Supp. ____ ____________ at 375. Moreover, all of these cases, at best, involve a court's inclusion of fiscal-year sales or revenue figures (in each case, from a survey of data that spans several proceeding years) in its minimum-contacts analysis. Finally, the majority approach is not as plaintiffs suggest. See ___ Robertson-Ceco, 84 F.3d at 569 (surveying cases from the ______________ Supreme Court and the Second, Fifth, and Ninth Circuits). Plaintiffs also claim that limiting discovery to the complaint date is unfair. They maintain that, under such a rule, an entity which causes an injury in Massachusetts from its non-forum based operations and thereafter chooses to enter the forum market could deny that jurisdiction over it -26- 26 existed even though it enjoys the benefits of the forum and was, prior to market entry, on notice of the litigation. They also warn that undesirable exploitation of statute of limitations periods will result from limiting the contact analysis to the period before the complaint date. Savvy plaintiffs who wait until the end of the limitations period to maximize the chance of asserting jurisdiction will be rewarded for their dilatory tactics. Whatever merit such policy arguments might have, the central fact remains that the time the complaint is filed is the time at which the plaintiff urges the court to assert its authority over the defendant. It would be conceptually incoherent to permit the court to look to post-complaint contacts in proving that it had authority at a previous time.10 Therefore, while Noonan may have discovered ____________________ 10. Given our basis for rejecting plaintiffs' claims, we have considerable doubt about CLB's argument that the sufficiency of contacts for general jurisdiction should be assessed at the time of the alleged tort. Although Judge Stearns used the complaint date to bound the minimum contacts analysis, he appears to have agreed with CLB, positing that, "to the extent that foreseeability is a touchstone of due process[,] logic would measure general jurisdiction as of the date the tortious act is committed." Noonan II, 947 F. Supp. _________ at 571. CLB argues the choice to forbear from the conduct that might cause the injury inspiring the suit can be made only at the time the tort is about to be committed. We note the foreseeability question is not whether the defendant should reasonably expect to be called into court but whether, given that the defendant has been called to court, the defendant would be surprised to find a particular court has __________ called him. Asking this question from the perspective of the defendant at the time he allegedly committed the tort is likely premature because not until the complaint is filed is -27- 27 additional contacts between CLB and Massachusetts had he been permitted to continue discovery throughout the litigation, such contacts have no bearing on the jurisdictional analysis. Accordingly, the district court did not abuse its discretion in ruling as it did. For the reasons stated above, the judgment of the district court is affirmed. Costs to appellees. affirmed. ________ ____________________ the court asked to exercise its sovereignty. -28- 28

Case: 09-60390 Document: 00511024782 Page: 1 Date Filed: 02/10/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 10, 2010 No. 09-60390 Charles R. Fulbruge III Summary Calendar Clerk H. L. JAMES; MATTHEW W. JAMES Plaintiffs – Appellants v. CITY OF PONTOTOC, MISSISSIPPI Defendant – Appellee Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:07-CV-108 Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Plaintiffs-Appellants H.L. and Matthew James appeal the district court’s grant of summary judgment in favor of Defendant-Appellee City of Pontotoc. We affirm. FACTS AND PROCEEDINGS Matthew James owns 3.2 acres of property within the City of Pontotoc (“the City”) upon which he and his father, H.L. James, planned to develop duplex * 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: 09-60390 Document: 00511024782 Page: 2 Date Filed: 02/10/2010 No. 09-60390 apartments. City employees informed H.L. that the development would have to be presented to and approved by the City’s Board of Aldermen (“the Board”) as a planned unit development. H.L. first brought the proposal before the Board in November 2006, at which time the Board suggested that it would approve the general plan. H.L. then had an engineer plat the development and render construction plans, which were brought before the Board at its next meeting in December 2006. This meeting was videotaped and televised to the public. Reviewing the plans, the Board indicated that it wanted changes to the plan to turn a connecting street into a cul-de-sac. Alderman Bob Peeples, acting as chair in the absence of Mayor Bill Rutledge, then offered the following motion: Alderman Peeples: We’ve got a motion by Johnny that we approve the Planned Unit Development with the exception of the, ah, cul-de-sac on the end, and, go ahead and get his permit for the first one. Do we have a second? Second by Tommy. Any business? All in favor raise your right hand. The motion carried without opposition. The next day, the City issued a building permit to the plaintiffs for a single structure, to allow them to begin building the first duplex. Special remarks on the building permit indicated that the permit was issued “per Board action 12-05-06 PUD plat w/cul-d-sac [sic] to be approved.” The minutes to the December meeting were later drafted and were adopted without opposition at the next Board meeting in January 2007. Concerning the planned development, the minutes read: ORDER TO CONSIDER PLANNED UNIT DEVELOPMENT BY H. L. JAMES ON PROPERTY LOCATED ON HWY. 6 WEST CONTINGENT ON ACCEPTABLE CUL-DE-SAC BEING ADDED AND HAVING PLAT APPROVED 2  Case: 09-60390 Document: 00511024782 Page: 3 Date Filed: 02/10/2010 No. 09-60390 There came on for consideration the planned unit development by H. L. James on property located on Highway 6 West contingent on acceptable cul-de-sac being added and plat being approved. After consideration and discussion, there was a motion duly made by Alderman Johnny Seale and seconded by Alderman Tommy Patterson, that said planned unit development be considered contingent on acceptable cul-de-sac being added and plat being approved. A vote was taken and the motion was unanimously carried[.] James’s revised plat was distributed to Board members and placed on the agenda for the April meeting. James appeared at that meeting to request that the Board turn on the utilities at the property. For the first time, he learned that the December minutes demonstrated that the Board had not approved his development, and also that the plat he had distributed to Board members did not conform with the City’s zoning ordinances and building code, because it was missing certain technical information. He returned to the next Board meeting with counsel but the Board took the matter under advisement with no action. In June, the City engineer informed Mayor Rutledge that the James’s revised plat was non-conforming. The plat was never approved and James never reappeared before the Board with an approved plat. Eventually, James converted the single duplex apartment he had built into a single family home, which required no Board action, and the utilities were turned on at the site. The Jameses sued in district court, claiming violation of their due process rights and a violation of equal protection. On summary judgment, the district court found that H.L. James lacked standing because the development was not a joint venture under Mississippi law; that Matthew James did not have a property interest in the development because the Board’s approval was never noted in the Board’s minutes as required by Mississippi law and thus there was no due process violation; and that there was no equal protection violation. James appeals only the denial of his due process claim. 3  Case: 09-60390 Document: 00511024782 Page: 4 Date Filed: 02/10/2010 No. 09-60390 STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, using the same standard as that applied by the district court. Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). This Court views “the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in the nonmovant’s favor.” Riverwood, 420 F.3d at 382. DISCUSSION The issue on appeal is whether James had a property interest in the development. The district court determined that he did not because the Board’s minutes do not contain approval of the development, but only a contingent approval. “The Mississippi Supreme Court has long held that ‘boards of supervisors and other public boards speak only through their minutes. . . .’” Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 297 (5th Cir. 2006) (quoting Thompson v. Jones County Cmty. Hosp., 352 So. 2d 795, 796 (Miss. 1977) (emphasis removed)). We have noted that The Mississippi Supreme Court has characterized the minutes requirement as “an important public policy issue,” cautioning that “public interest requires adherence thereto, notwithstanding the fact that in some instances the rule may work an apparent injustice.” Butler v. Bd. of Supervisors for Hinds County, 659 So. 2d 578, 579 (Miss. 1995) (quoting Colle Towing Co. v. Harrison County, 213 Miss. 442, 57 So. 2d 171, 172 (1952)). Indeed, “the policy of protecting the public’s funds for use by and for the public is paramount to other individual rights which may also be involved.” Butler, 659 So. 2d at 579; see also id. at 581 (discussing Mississippi’s “past strict adherence to the requirement that a board of supervisors only be bound by a contract entered upon its minutes”) and Warren County Port Comm’n v. Farrell Constr., 395 4  Case: 09-60390 Document: 00511024782 Page: 5 Date Filed: 02/10/2010 No. 09-60390 F.2d 901, 904 (5th Cir. 1968) (describing the Mississippi requirement as “stringent”). Urban Developers LLC, 468 F.3d at 299. Mississippi law also prohibits the use of extrinsic evidence to prove the intent of the Board’s minute entries. A Board’s acts “must be evidenced by an entry on its minutes. The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. . . . [T]he minutes of the board of supervisors must be the repository and the evidence of their official acts.” Myers v. Blair, 611 So. 2d 969, 973 (Miss. 1992) (emphasis added). Substantial actions taken by a board “must be evidenced by entries on their minutes, and can be evidenced in no other way.” Board of Sup’rs of Tishomingo County v. Dawson, 45 So. 2d 253, 256 (Miss. 1950) (quotations omitted). James does not attack the minutes requirement, but claims that the minutes do not reflect the true decision of the Board and that the videotape demonstrates that the development was approved. The district court noted that while a “videotape is very strong extrinsic evidence of what occurred at the Board meeting . . . the reasoning behind the rule is not affected by the quality of the evidence.” The minutes requirement is a substantive rule that the Mississippi Supreme Court has demanded be strictly complied with, not an evidentiary rule. James has not cited any case in which Mississippi courts have crafted an exception to the minutes requirement, and we are without power to craft one here. CONCLUSION The judgment of the district court is AFFIRMED. 5 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS April 12, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff-Appellee, No. 06-3309 v. District of Kansas JAM ES W . SHIELD S, (D.C. No. 02-CR-20084-JW L) Defendant-Appellant. OR D ER AND JUDGM ENT * Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges. A federal district court sentenced James W . Shields in February 2003 to twenty-seven months in prison and two years supervised release as punishment for his conviction on one count of possessing child pornography. M r. Shields violated the conditions of his release approximately a year into the term, prompting his probation officer to petition the district court to revoke M r. Shields’s release and return him to prison. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  At his revocation hearing on August 21, 2006, M r. Shields stipulated that he had in fact violated the terms of his release by visiting strip clubs, patronizing prostitutes, shopping at adult bookstores, viewing adult pornography online, and accessing computer files containing pornographic pictures of children. He also admitted to touching inappropriately a twelve-year-old girl some thirteen years earlier, an incident he had not previously disclosed. M r. Shields disputed the government’s characterization of these acts— he maintained that they were not as serious nor as frequent as the government alleged— but he did not dispute that the acts occurred. The U.S. Sentencing Guidelines recommended a range of four to ten months imprisonment for M r. Shields’s conduct, which qualified as “Grade B” by the terms of the Guidelines manual. U.S. Sentencing Guidelines M anual § 7B1.4 (2006). The defendant requested a sentence at the low end of the range; counsel for the government asked the court to sentence M r. Shields to twenty-four months imprisonment, the statutory maximum. The court sided with the government, citing a series of considerations, including the need to deter M r. Shields, protect the community, and qualify him for an intensive sex-offender treatment program run by the Bureau of Prisons. M r. Shields appeals this sentence to our Court, arguing that he was not given notice of the district court’s intention to depart upward from the Guidelines -2- range. He also contends that his sentence was substantively unreasonable. W e reject both claims. W e begin with M r. Shields’s notice argument. W hile he labels the district court’s decision to impose the statutory-maximum sentence an “upward departure,” this is not precisely how we have used the term in the sentencing context, see United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007), and it is especially misleading when invoked here. As we held in United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996), “[a] sentence in excess of the Chapter 7 [Guidelines] range is not a ‘departure’ from a binding guideline.” Unlike the rest of the Sentencing Guidelines, the suggested sentences for violations of supervised release that appear in Chapter 7 of the Sentencing M anual have never been mandatory. Consequently, we have never called a sentence above the Chapter 7 range a “departure” and have never required district courts to provide notice to defendants before imposing one. “[A] sentencing court is not required to give notice of its intent to exceed the sentencing range prescribed by the Chapter 7 policy statements for violations of supervised release.” Burdex, 100 F.3d at 885; see United States v. Davis, 151 F.3d 1304, 1308 (10th Cir. 1998) (holding that the defendant’s argument that the district court should have provided notice of its intent to “depart” upward from the Chapter 7 policy statements was foreclosed by Burdex). -3-  W e acknowledge that this rule is in some tension with our decision in Atencio, which required district courts to provide pre-hearing notice of any intent to vary a defendant’s sentence above the Guidelines range, even though the Guidelines are now advisory. 476 F.3d at 1104. But the Burdex line of precedent is both clear and well-established. This panel has no power to overrule it. Accordingly, we conclude that M r. Shields’s notice argument must fail. Turning to the defendant’s substantive challenge to his sentence, we note that “[b]ecause there is no applicable sentencing guideline” governing the imposition of sentences for violations of supervised release, our “standard of review is ‘plainly unreasonable.’” United States v. White, 244 F.3d 1199, 1204 (10th Cir. 2001) (citing 18 U.S.C. § 3742(3)(4)). This standard remains unchanged by Booker. United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005). Still, although the Chapter 7 policy statements are— like the rest of the Guidelines, post-Booker— advisory rather than binding, the trial court must consider them before imposing a sentence for violation of supervised release, United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004), just as it must consider the now -advisory Guidelines range w hen imposing a sentence in the first instance, United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). No “magic words” are required to demonstrate that the district court has in fact weighed the Chapter 7 recommendations or the other factors Congress has instructed it to consider. Tedford, 405 F.3d at 1161. It is enough that the district -4- court acknowledges the Chapter 7 range along with the 18 U.S.C. § 3553(a) sentencing factors and states its reasons for imposing a given sentence. See United States v. Rodriguez-Q uintanilla, 442 F.3d 1254, 1258-59 (10th Cir. 2006); United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004). In sum, if a district court imposes a sentence above that recommended by the Sentencing M anual’s Chapter 7, we will reverse only if the record reveals the sentence was unreasoned and unreasonable. Rodriguez-Q uintanilla, 442 F.3d at 1258 (internal quotations omitted). In the instant case, the district court offered a lengthy explanation for its decision to sentence M r. Shields to the statutory maximum. Given the care with which the court set forth its rationale, we cannot say that the sentence was unreasoned. Nor can we say it was substantively unreasonable. The trial judge explicitly acknowledged the Chapter 7 guidelines and affirmed that he had considered them. He went on to cite a series of factors, mirroring the list in § 3553(a), that informed his sentence above the Chapter 7 recommendation: the guidelines range did not accurately reflect the seriousness of Shield’s behavior, according to the district court; the recommended range did not provide adequate deterrence; M r. Shields had dissembled in acknowledging his guilt; he showed little or no remorse; he posed a continuing danger to the community; and he required intensive, professional counseling. -5-  The defendant argues that the sole factor motivating the trial court’s sentence was its conclusion that he ought to participate in an eighteen-month, government-run treatment program for sex offenders. M r. Shields points us to the Sixth Circuit’s decision in United States v. Yopp, 453 F.3d 770, 774 (6th Cir. 2006), which rejected as unreasonable a sentence predicated on the length of time it would take the defendant to complete an in-house substance-abuse treatment program, much like the program the district court in our case envisioned for M r. Shields. As in our case, the sentence in Yopp totaled twenty-four months, and followed the defendant’s violation of his supervised release. Id. at 771-72. Unlike our case, however, the trial court in Yopp appeared to premise its sentence solely on the requirements of the substance-abuse treatment program. Id. at 774. Further, the trial court failed to mention or consider either the Chapter 7 policy statements or the § 3553(a) factors. Id. at 773-74. The district judge who sentenced M r. Shields, by contrast, weighed the Chapter 7 recommendations and thoroughly considered the § 3553(a) factors, on which he based his sentence. W e do not require more. M r. Shields’s sentence was not plainly unreasonable. Accordingly, the judgment of the United States District Court for the District of K ansas is AFFIRM ED. Entered for the Court, M ichael W . M cConnell Circuit Judge -6- 

688 F.2d 1285 FREMONT ENERGY CORPORATION, et al., Plaintiffs-Appellees,v.The SEATTLE POST INTELLIGENCER, the Hearst Corporation, etal., Defendants,John E. Moss, Chairman, Movant-Appellant. No. 81-4567. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 18, 1982.Decided Sept. 28, 1982. Steven R. Ross, Washington, D.C., for movant-appellant. James R. Prochnow, Constantine & Prochnow, P.C., Englewood, Colo., for plaintiffs-appellees. On Appeal from the United States District Court for the Eastern District of California. Before MERRILL and HUG, Circuit Judges, and BROWN*, District Judge. MERRILL, Circuit Judge: 1 John E. Moss appeals from an order of the district court for the Eastern District of California adjudging him in contempt of court for failure adequately to respond to the directions of a subpoena duces tecum. 2 Moss is a former member of Congress and the former chairman of the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce. In December 1978, that subcommittee issued a report on uranium lode mining claims on federal lands. The report apparently was critical of the activities of the Fremont Energy Corporation, and two articles in the Seattle Post Intelligencer reporting that criticism are the subject of a libel suit brought by Fremont against that newspaper in the Western District of Washington. Through its discovery efforts in that case Fremont learned that Dan Seligman, a reporter for the Post Intelligencer, had telephoned Moss concerning the report on January 23, 1979, some three weeks after Moss's final term in Congress had expired. Fremont thereupon secured the issuance of a subpoena duces tecum by the Clerk of the District Court for the Eastern District of California, which subpoena was served upon Moss in Sacramento, California. It called on him to appear at the offices of the Sacramento Deposition Reporters of Sacramento, California to testify on behalf of plaintiffs. He was further instructed to bring with him "any and all reports, records, files, notes, memoranda, correspondence or other documents pertaining to certain remarks and comments more specifically described in attachment A" to the subpoena. 3 The attachment identified five items as follows: 4 1. Certain remarks made by Moss to Seligman on or about January 23, 1979. 5 2. An official report compiled and issued by the subcommittee chaired by Congressman Moss-identified by plaintiff as the "Moss Report," also known as a Report on Uranium Lode Mining Claims on Federal Lands. 6 3. The subcommittee hearings on which the Moss Report was based. 7 4. Certain comments made to Seligman by a member of the subcommittee staff concerning Fremont Energy Corporation, the Moss Report, or the subcommittee hearings. 8 5. The procedures and rules of the subcommittee and of Congress during the course of the subcommittee hearings. 9 On March 4, 1981 in the District Court for the Eastern District of California Moss moved to quash the subpoena claiming that its subject was privileged by the Speech or Debate Clause of the Constitution. On May 6, the court granted the motion insofar as the subpoena related to Moss's legislative activities (items 2, 3, and 5 of the attachment to the subpoena), and entered a protective order to that effect. As to the conversations with Seligman (items 1 and 4 of the attachment to the subpoena), however, the court denied the motion finding that they were not "part and parcel or essential to the deliberative process." This court dismissed Moss's appeal from the court's order for lack of finality. 10 Fremont conducted its deposition of Moss on August 26, 1981. Moss failed to bring to the deposition any documents meeting the specifications of items 1 and 4 of the subpoena and refused on Speech or Debate grounds to answer virtually all of Fremont's more probative questions. Fremont then applied for an order to show cause why Moss should not be held in contempt. The court issued the requested order and scheduled a show cause hearing for October 19, 1981. At that hearing the court held Moss in contempt and ordered that he be committed to the custody of the United States Marshall "until such time as he should see fit to comply with and obey the specifics and mandate of that subpoena duces tecum." The court also awarded to Fremont the costs and attorneys fees it had incurred in taking the fruitless deposition and in pursuing the contempt order. The court stayed incarceration pending the outcome of this appeal. We conclude that the district court erred in holding Moss in contempt.1 11 We note first that because Moss was in violation of no court order, if he is in contempt, it is for failure to comply with the demands of the subpoena duces tecum. In this respect, Rule 45(f), Fed. R. Civ. P., provides: 12 Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued. 13 The subpoena served on Moss directed him to appear and testify at a deposition. This Moss did. The subpoena did not direct Moss to answer any of the specific questions propounded by Fremont. If he is to be held in contempt for failure to answer questions, then, it must be pursuant to Rule 37(b)(1), Fed. R. Civ. P., which provides: 14 Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. 15 Since there was no such court direction2, Moss cannot be adjudged in contempt for failure to answer questions. 16 The subpoena also directed Moss to produce all documents meeting the specifications stated by Freemont. Whether any such documents actually exist, however, the record does not show. Without such a showing, we cannot be certain that a violation of the subpoena has occurred, and therefore cannot affirm the imposition of sanctions. 17 On a related point, Moss argues that the district court denied him an opportunity to show "adequate excuse" for any non-compliance with the subpoena and that such opportunity is required by Rule 45(f). We agree. At the contempt hearing, Moss offered to provide an explanation (which he termed "defenses") for his failure to produce. The court rejected this offer stating that it was interested only in the discussion of sanctions. 18 REVERSED and REMANDED with instructions that the order holding appellant in contempt be vacated. * Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation 1 Participating as amicus curiae, the Seattle Post Intelligencer argues that the information Fremont seeks from Moss is not relevant to Fremont's libel suit under Washington law, and accordingly that we need not reach the merits of the contempt order. In this forum ancillary to the underlying libel action, we decline to pass judgment on the relevancy question. See Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961) 2 The court's May 6 order granting in part and denying in part Moss's motion to quash the subpoena did not constitute an order "direct(ing)" him to answer specific questions. Indeed, as the court acknowledged, the order left the scope of permissible questioning far from clear

128 U.S. 273 (1888) MEANS v. DOWD. No. 47. Supreme Court of United States. Argued October 30, 1888. Decided November 19, 1888. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA. *278 Mr. Henry M. Herman for appellant. Mr. W.W. Fleming and Mr. Willis B. Dowd for appellees. I. As the second bill sets up the same equity and asks the same relief between the same parties as the first bill still pending, the second bill should be dismissed. It is against the policy of the law to allow multiplicity of suits between the same parties about the same matter. All that the plaintiffs in the first bill had to do, and such was their duty, was to amend the bill by making the assignee a party and proceeding with it. Fellows v. Hall, 3 McLean, 487; Gray v. Atlantic and N.C. Railroad Co., 77 N.C. 299 and cases cited; Childs v. Martin, 69 N.C. 120, 189, 387. II. Where a trust has been executed before the filing of the bill to set it aside the court will not take jurisdiction. The preferred debts were as just and meritorious as the unpreferred, and as much entitled to be paid out of the property of the firm. And even where an assignment is set aside for fraud the assignee is not answerable for payments made under it, to bona fide creditors, before the filing of the bill. Carroll v. Johnston, 2 Jones' Eq., 120; Cheatham v. Hawkins, 76 N.C. 335. III. The deed of trust not being fraudulent in law as it was executed under the laws of North Carolina governing the subject, the construction put upon such instruments by the highest courts of the State must control. Allen v. Massey, 17 Wall. 351. In Young v. Booe, 11 Iredell, 347, a deed of trust for payment of debts conveyed real and personal estate and provided that the maker of the deed should remain in possession for eleven months, and during that time his family might be supported out of the proceeds of the property. It was held that *279 these provisions did not make the deed fraudulent in law, upon its face, but as the provisions might have been for the benefit of the creditors as well as of the debtor, the question of fraudulent intent was one upon which the jury must decide under all the circumstances. In Hardy v. Skinner, 9 Iredell, 191, the trust deed stipulated that a sale should not take place for three years, and that the grantor should remain in possession of the property. It was held by the court that whether the deed was fraudulent or not was a matter for a jury, under all the circumstances, but that the court could not, from what appeared on the face of the deed, say it was fraudulent in point of law, because there might be many circumstances under which such a deed would be good. To the same effect are Lee v. Flannagan, 7 Iredell, 471; Gilmer v. Earnhart, 1 Jones (N.C.) 559. In Cheatham v. Hawkins, 76 N.C. 335, the rule is announced that, "to find fraud as a matter of law, it must so expressly and plainly appear in the deed itself as to be incapable of explanation by evidence, dehors." This court in Robinson v. Elliott, 22 Wall. 513, have laid down substantially the same rule. IV. If anything has been settled by judicial decisions, it is settled by the Supreme Court of the United States, and by the Supreme Court of North Carolina, that a deed of trust for the benefit of creditors, like the subject of the controversy in this case, is not fraudulent and void in law upon its face. The possession of these grantors, such as it was, was both proper and commendable, inasmuch as they were best qualified and most competent to close out, by sales and collections, a stock of merchandise, in a village, where they were best acquainted with the customers to whom they had extended credits. So held in Tompkins v. Wheeler, 16 Pet. 106; Dewey v. Littlejohn, 2 Iredell Eq. 495, 507; Hafner v. Irwin, 1 Iredell, 490; Irwin v. Wilson, 3 Jones Eq. 210. V. The deed of trust was not fraudulent in fact. A conveyance upon a valuable consideration cannot be declared void as to creditors, though made with a fraudulent purpose on the part of the vendor, unless the vendee participates in or *280 had notice of such purpose. Lassiter v. Davis, 64 N.C. 498; Reiger v. Davis, 67 N.C. 185; Humphreys v. Ward, 74 N.C. 784; Worthy v. Coddell, 76 N.C. 82. To the same effect is Astor v. Wells, 4 Wheat. 466, upon the construction of the Ohio statute, which is similar to ours. So in the most recent case decided in the Supreme Court of the United States. Prewit v. Wilson, 103 U.S. 22. Field, J., delivering the opinion of the court, says: "When a deed is executed for a valuable and adequate consideration, without knowledge by the grantee of any fraudulent intent of the grantor, it will be upheld, however fraudulent his purpose. To vitiate the transfer in such case, the grantee also must be chargeable with knowledge of the intention of the grantor." p. 24. So it is held in North Carolina, that an insolvent has a right to prefer one or several among his creditors, although the effect is to hinder and delay others. Lee v. Flannagan, 7 Iredell, 471; Lewis v. Sloan, 68 N.C. 557; Hislop v. Hoover, 68 N.C. 141; Tompkins v. Wheeler, 16 Pet. 106. The federal courts will follow the decisions of the courts of last resort in the State where conveyance is made, in passing upon its validity as to creditors. Allen v. Massey, 17 Wall. 351. MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court. We are of the opinion that, whether the case be decided upon the face of the instrument itself, or in view of the testimony as to the conduct of the parties, the decree should be in favor of the complainant. The principles, if not the exact language of the statute of 13 Eliz., have been accepted in the equitable jurisprudence of nearly all the States of common-law origin, and they are the law of North Carolina, with a modification which is attempted to be applied to this case. That is, that where the question of the validity of an instrument of this kind, or any other conveyance of property depends upon its fraudulent character, it must be shown that the grantee participated in the fraud, and the fact that the *281 grantor alone is guilty of it is not sufficient to invalidate the instrument. Conceding this to be the doctrine of the State of North Carolina, we are of opinion that it can have no important application to the case before us, because the fraud here is one in law as distinguished from actual fraud; that is to say, that while the parties to this transaction, either grantors or grantees, probably never had in view the ultimate loss of the debts of the unsecured creditors by their acts, and may really have supposed that they were taking the best means to insure payment to them all, yet the law has said that the means which they took is to be regarded as a fraud in law by necessary implication. All experience has shown how very common it is for failing or insolvent debtors, who have any considerable means on hand, and especially in cases where a mercantile business of considerable value is still going on, to delude themselves with the idea that if they can get time they can pay their debts; that if their creditors will delay until they can make such arrangements as they believe themselves capable of, they will be able to pay everybody, and even to save a very considerable surplus out of their business. This delusion leads them to undertake to obtain this delay by means which the law does not sanction. If the creditors refuse to extend time on their obligations, and thus give them the delay which they deem necessary, or if they fear to expose their condition to their creditors, they adopt, in many instances, the principle of making an absolute sale to certain friends, who will settle up their affairs and return to them any surplus, or they make assignments or deeds of trust, conveying the title to all their property to some trustee or assignee and vesting it in them, thus opposing an obstruction to the efforts of creditors at law to collect the amounts which may be due to them. In this manner they frequently take the law into their own hands, and attempt to secure that delay which can only be obtained by the consent of the creditors, or by such a conveyance as leaves the creditors in no worse condition than they were before. It has always been held that whatever transfer of this character, *282 that is, of the title to property by a failing or insolvent debtor, may be valid, any instrument which secures to the assignor an interest in or an unlimited control over the property conveyed, and which has the effect of hindering or delaying creditors, is void as being a fraud upon those creditors. A very similar case to the one before us was that of Griswold v. Sheldon, 4 N.Y. (4 Comst.) 580, in which the court decided that the mortgage which, besides permitting the mortgagor by its terms to retain possession of the goods, and on its face conferred on him the power to sell and dispose of them as his own, was, therefore, fraudulent and void in law as to creditors. Another decision of like character was made in Nicholson v. Leavitt, 6 N.Y. (2 Seld.) 510, the head note of which correctly expresses what was decided in the following words: "An assignment by insolvent debtors of their property to trustees for the benefit of their creditors, authorizing the trustees to sell the assigned property upon credit, is fraudulent and void as against the creditors of the assignors." This is founded upon the ground that such a provision has the effect of hindering and delaying creditors. A very instructive case, and very like the one before us, is that of Davis v. Ransom, 18 Illinois, 396. A chattel mortgage of a stock of goods had been made, reciting the indebtedness of the mortgagor, but with an agreement that he should keep possession of the goods and sell them in the usual course of trade. Out of the proceeds he was to pay certain preferred creditors, dividing the remainder pro rata among the others, with the right in the mortgagee to take possession of the property under certain contingencies. This mortgage was held void upon the principles already cited. To the same effect is the case of Bank v. Hunt, 11 Wall. 391, which cites with approval the case of Griswold v. Sheldon, supra. But this whole subject has been so frequently discussed in the American courts that it would be an immense labor to go very extensively into the authorities. The prevailing doctrine, however, is unquestionably that which we have stated, *283 and its fundamental essence is, that an insolvent debtor making an assignment, even for the benefit of his creditors cannot reserve to himself any beneficial interest in the property assigned, or interpose any delay, or make provisions which would hinder and delay creditors from their lawful modes of prosecuting their claims. In the case before us the whole face of the instrument has the obvious purpose of enabling the insolvent debtors who made it to continue in their business unmolested by judicial process, and to withdraw everything they had from the effect of a judgment against them; for it is shown that, except the goods in this place of business transferred by the conveyance, they had nothing of value but one or two pieces of real estate encumbered by mortgage for all they were worth. It specifically provides that the grantors shall remain in possession of the said property and choses in action, with the right to continue to sell the goods and collect the debts under the control and direction of the grantees. The collections were to be deposited weekly in the Commercial National Bank of Charlotte, N.C., and applied, under the direction of the assignees, "to replenish the stock by such small bills as may be agreed upon, and to the payment of the debts of the said firm," specifically mentioned therein, being principally notes held by the banks, indorsed by the grantees, Davidson and Dowd. It also contained a provision for the renewal of these notes, without limitation as to time, and authorizing the trustees, "if any of the said debts or any renewal or substitution of them, or any of them, shall not be paid when the same shall become due, or if, for any other cause, the parties of the second part may so elect, then and in that case it shall be lawful for the parties of the second part, and they are hereby expressly authorized, to take possession of the said goods and merchandise, and all the property and choses in action conveyed herein, and dispose of the same at public or private sale, as they may deem best, applying the proceeds as hereinbefore directed." It is difficult to imagine a scheme more artfully devised between insolvent debtors and their preferred creditors to enable the former to continue in business, at the same time withdrawing *284 their property used in its prosecution from the claims of other creditors which might be asserted according to the usual forms of law. So long as these debtors were able to pay the interest, and keep the trustees satisfied that they were not going to lose anything by the delay, the business could go on and the property of the insolvent firm be safe from execution and attachment. The interest paid on these renewals was twelve per cent, and as the indorsers on the notes were officers of the banks who held the paper, as well as trustees under this assignment, to say nothing of the fact that they were closely related to the bankrupt debtors, it is easy to be seen that, as long as they had security, they would be willing to renew these notes and indorse them on each renewal. So that by the mere expedient of paying the interest on this indebtedness Montgomery & Dowd had it in their power to continue in their business, whether profitable or otherwise, with a large stock of goods on their shelves, and defy the creditors who were not protected. The authority to take possession of the goods, even when the trustees should deem such action proper, is accompanied by no direction for an immediate sale or winding up of the business; but, on the contrary, their discretion, as to whether they shall take possession or not, and as to how or upon what terms they shall sell, seems to be absolute, and intended even then to be controlled for their own benefit and that of the debtors, without regard to the unsecured creditors. The case before us is almost precisely like that of Robinson v. Elliott, 22 Wall. 513. In that action it appeared that John and Seth Coolidge were partners in the retail dry goods trade in Evansville, Indiana; that they owed the First National Bank $7600, and a Mrs. Sloan $3174, for money previously borrowed of her to aid them in their business. To secure to Mrs. Sloan the payment of what was due her, and to indemnify Robinson, who was an indorser, they made to them a chattel mortgage upon their stock of goods then in a rented store. The mortgage, after reciting the liability of the firm to Robinson on the notes indorsed by him, stated that it was contemplated that it might become necessary to renew the *285 notes or to discount other notes. It was also stated that the note to Mrs. Sloan might be renewed at maturity if it was not convenient for the firm to pay it. The mortgage then proceeded in the following language: "And it is hereby expressly agreed that until default shall be made in the payment of some one of said notes, or some paper in renewal thereof, the parties of the first part may remain in possession of said goods, wares and merchandise, and may sell the same as heretofore and supply their places with other goods, and the goods substituted by purchase for those sold shall, upon being put into said store, or any other store in said city, where the same may be put for sale by said parties of the first part, be subjected to the lien of this mortgage." Although the mortgage was duly recorded, it was held by this court to be void under the statute of frauds of Indiana. Section 10 of that act declared that no such assignment or mortgage should be valid unless acknowledged "as provided in cases of deeds of conveyance, and recorded in the recorder's office of the county where the mortgagor resides, within ten days after the execution thereof." Section 21 makes the further provisions: "The question of fraudulent intent in all cases arising under the provisions of this act shall be deemed a question of fact, nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers solely upon the ground that it was not founded on a valuable consideration." This court, in a lengthy review of the effect of recording acts, and of the doctrine of the statute of 13 Eliz., held that the recording of the mortgage contemplated by the statute was intended as a substitute for possession, but "was not meant to be a protection for all the other stipulations contained in it." It was also held that the court was the proper party to say whether on its face the mortgage was void, and that it was so void. It was argued in that case that there could be no such thing as constructive fraud, because under this statute the question of fraudulent intent was one of fact; but this court, following the Supreme Court of Indiana, said that those provisions of *286 the statute of that State had not changed the law on the subject, and that the court must in the first instance determine upon the legal effect of the written instrument, and if that be to delay creditors, it must be rejected. In the opinion the court said, p. 524: "But there are features engrafted on this mortgage which are not only to the prejudice of creditors, but which show that other considerations than the security of the mortgagees, or their accommodation even, entered into the contract. Both the possession and right of disposition remain with the mortgagors. They are to deal with the property as their own, sell it at retail, and use the money thus obtained to replenish their stock. There is no covenant to account with the mortgagees, nor any recognition that the property is sold for their benefit. Instead of the mortgage being directed solely to the bona fide security of the debts then existing, and their payment at maturity, it is based on the idea that they may be indefinitely prolonged. As long as the bank paper could be renewed, Robinson consented to be bound, and in Mrs. Sloan's case it was not expected that the debt would be paid at maturity, but that it would be renewed from time to time, as the parties might agree. It is very clear that the instrument was executed on the theory that the business could be carried on as formerly by the continued indorsement of Robinson, and that Mrs. Sloan was indifferent about prompt payment. The correctness of this theory is proved by the subsequent conduct of the parties, for the mortgagees remained in possession of the property, and bought and sold and traded in the manner of retail dry-goods merchants from July 7th, 1871, to August 7th, 1873... . It hardly need be said that a mortgage which, by its very terms, authorizes the parties to accomplish such objects is, to say the least of it, constructively fraudulent. Manifestly it was executed to enable the mortgagors to continue their business, and appear to the world as the absolute owners of the goods, and enjoy all the advantages resulting therefrom... . This conduct is the result of trust and confidence, which, as Lord Coke tells us, are ever found to constitute the apparel and cover of fraud... . Whatever may have been the motive which actuated *287 the parties to this instrument, it is manifest that the necessary result of what they did do was to allow the mortgagors, under cover of the mortgage, to sell the goods as their own, and appropriate the proceeds to their own purposes; and this, too, for an indefinite length of time. A mortgage which, in its very terms, contemplates such results, besides being no security to the mortgagees, operates in the most effectual manner to ward off other creditors; and where the instrument on its face shows that the legal effect of it is to delay creditors, the law imputes to it a fraudulent purpose. The views we have taken of this case harmonize with the English common-law doctrine, and are sustained by a number of American decisions." Other authorities sustain this view of the subject, and the instrument now under consideration, in the opinion of the court, contains all the elements denounced in the case above quoted of Robinson v. Elliott as proof of constructive fraud. If we examine into the acts of the parties in connection with this transfer, we shall see that they were in accordance with this purpose of hindering and delaying creditors. There was but one witness to the instrument and he was the confidential bookkeeper of the bankrupts. He states that he put his name to it as a witness on the day that it bears date, but that he did not read it, nor was he informed of its contents, and although it is said by some witness that the conveyance was delivered at or about the time it is dated, the grantees were not present when this witness put his name to it. The law of North Carolina, like that of all other States, provides for the recording of such instruments as this, and that until so recorded they are not valid as against creditors and purchasers without notice. In the present case it was kept from record from the time of its date, the 24th of April, until the 11th day of July thereafter. This was undoubtedly the act of the grantees in the deed, the parties whose obligations for the bankrupts were secured by it, and who were the trustees appointed by it for its execution. The period it was thus kept secret was as long as it could be with safety to the purpose of hindering and delaying creditors; for as soon *288 as it was known that Calvin Chestnut was about to procure a judgment, which, either by virtue of the judgment itself, or by a levy of an execution upon the goods, would become a lien, the paper was recorded for the undoubted purpose of preventing this result. The bankrupts were permitted for several months to continue in the possession and control of these goods, and to deal with them as their own, and even when the trustees did seem to consider it necessary to interpose and take the matter into their own hands, the manner in which they did it is open to animadversion. It does not appear that they went in person to the building and took possession of it or of the goods. On the contrary they made no change in its appearance, or in the manner of conducting the business. No sign was put up indicating that any change of ownership had taken place. The same books were currently kept by the the same bookkeeper, and entries were made in the same manner as before. The two bankrupts were also employed by the assignees to conduct the business, at a salary of $100 per month each, and they continued it in precisely the same manner as it had been previously, with the exception of depositing the moneys arising therefrom, as they allege, in bank according to the directions of the trustees. In fact, so far as the outside public was concerned, the whole affair was conducted before the recording of this assignment, and until the appointment of the assignee in bankruptcy, in the same manner that it had always been before the conveyance was executed. Then it seemed to occur to the trustees that the time had come to wind up this business, and although it was not done with any extraordinary expedition, it is not necessary to hold that there was anything actually fraudulent in the manner in which it was finally accomplished. These are circumstances which, taken in connection with the provisions of the deed itself, show very clearly that, in the minds of the assignors and the assignees, one of the effects of this instrument, and of the operations conducted under it, was undoubtedly to hinder and delay creditors. Indeed, it is impossible to believe that this effect was not intended by all the parties to the deed. *289 The suit in this case is not sustainable under the provision of the bankrupt act against a preference of creditors in fraud of the law, because the bankruptcy proceedings were not brought within the time prescribed by that act as necessary to avoid such preference. But a right is shown to relief on the ground that the instrument was made to hinder and delay creditors. The decree of the Circuit Court is, therefore, reversed, and the case remanded to that court, with instructions to refer the case to a master, before whom the defendants, the trustees, must account for the property conveyed to them by the instrument. In this accounting all the creditors, secured and unsecured, must be brought into a concourse and held to an equal right in distribution of the funds arising from the sale of the goods and the choses in action assigned to the trustees. But in accounting with the trustees they must be credited with what they have paid to any of the creditors, so far as those creditors would be entitled on an equal and pro rata distribution among all the creditors of all the assets conveyed to them by the deed of trust.

768 F.2d 93 Prod.Liab.Rep.(CCH)P 10,622Sherri BOGORAD, Plaintiff-Appellant,v.ELI LILLY & COMPANY, Defendant-Appellee. No. 82-1790. United States Court of Appeals,Sixth Circuit. Argued Feb. 24, 1984.Decided July 17, 1985. John A. Obee, Charfoos, Christensen, Gilbert & Archer, P.C., Adrienne G. Southgate, argued, Detroit, Mich., for plaintiff-appellant. John E.S. Scott, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., Larry R. O'Neal, argued, Shook, Hardy & Bacon, Kansas City, Mo., for defendant-appellee. Before EDWARDS* and CONTIE, Circuit Judges, and SPIEGEL,** District Judge. GEORGE CLIFTON EDWARDS, Jr., Circuit Judge. 1 Plaintiff Sherri Bogorad filed a complaint in the U.S. District Court for the Eastern District of Michigan which was dismissed on defendant Lilly's motion. Bogorad appeals. The appeal presents two important issues--one procedural and the other substantive. The Procedural Issue 2 The District Court dismissed this case before trial. Lilly claims that Bogorad's counsel "voluntarily" sought the dismissal and that the dismissal is therefore final and unappealable under Rule 41(a), Federal Rules of Civil Procedure. Bogorad's counsel claims that the District Court had dismissed finally the only viable claim which she had advanced and that such a dismissal was "final" even though the District Judge offered to hear her suit to the degree that it sounded in negligence. 3 This court, in its latest treatment of this issue, has held that a similar judgment was appealable when the "solicitation of the formal dismissal was designed only to expedite review of an order which had in effect dismissed appellant's complaint." Raceway Properties, Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980); see also United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). 4 We decline to dismiss appellant's appeal upon the procedural ground argued by appellee. Appellant's motion to dismiss must be read in the light of the District Judge's rulings which ruled out the cause of action she was seeking to present. As will be shown below, we believe she had stated a case for jury trial under Michigan law. The Substantive Issue 5 Plaintiff Sherri Bogorad's claim in outline form is as follows: 1) Her mother, Diane Bogorad, took massive doses of diethylstilbestrol (DES) in 1951 when she was pregnant with Sherri; 2) Lilly manufactured and recommended to doctors including Mrs. Bogorad's doctor the drug Diane Bogorad took; 3) By 1951 it was known in the scientific community that DES taken by a pregnant woman could adversely affect her fetus; 4) Before 1951, cancer researchers were giving DES to animals as a carcinogen in order to study resulting cancers; 5) By 1975 Sherri Bogorad had developed vaginal adenosis--a condition defined as "the presence in the vagina of multiple ectopic areas of folded endocervical mucosa; " 6) This last stated condition occasioned portions of Sherri Bogorad's vagina to be removed surgically; 7) As a result of Sherri Bogorad's exposure and the operation just referred to, she is subject to the possibility of inflammatory disease in the pelvis, irregular menstrual periods and a greater possibility of infertility than a normal female who had not been exposed to DES; 8) She has experienced psychological trauma as a result of the circumstances related above and will need to be monitored for the rest of her life due to the possibility of vaginal cancer and faces an increased risk of an unfavorable outcome of any pregnancy she may have. 6 Plaintiff's claims as just outlined are, of course, completely untested due to the dismissal entered by the District Judge, but our review of this case convinces us that they should be tried. 7 We are aided in this decision by two recent decisions of the Michigan Supreme Court which the District Judge did not have available to him at the time of his ruling. Subsequent to the trial court's decision and to the briefing and argument of this case in this court, the Michigan Supreme Court handed down a lengthy and carefully phrased unanimous decision. We read it as reiterating the strong inclination in Michigan law toward favoring trial of any properly pled claims unless those claims are "clearly unenforceable as a matter of law." Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984). Chief Justice Williams' opinion bears quotation in this respect: 8 "The test which the court should apply in considering motions under GCR 1963, 117.2(1) is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery." Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 431, 202 N.W.2d 577 (1972). 418 Mich. at 323, 343 N.W.2d at 169.1 9 The District Judge could not have reviewed plaintiff-appellant's complaint with this exact standard in mind since the Abel opinion was not available to him at that time. 10 Even more importantly, we believe he should have available a still later opinion of the Michigan Supreme Court which appears to us to mandate trial of the issues in this case. In Prentis v. Yale Manufacturing Co., 421 Mich. 670, 365 N.W.2d 176 (1984) (released Feb. 11, 1985), the Michigan Supreme Court said as follows: 11 "We hold that in this products liability action against a manufacturer for an alleged defect in the design of its product, where the jury was properly instructed on the theory of negligent design, the trial judge's refusal to instruct on breach of warranty was not reversible error. Such instructions could have created juror confusion and prejudicial error. Indeed, such an instruction would have been repetitive and unnecessary and could have misled the jury into believing that plaintiff could recover on the warranty count even if it found there was no "defect" in the design of the product. See Smith v. E.R. Squibb & Sons, 405 Mich. 79, 91, 273 N.W.2d 476 (1979). 12 "This opinion is limited solely to its facts. We do not suggest that implied warranty and negligence are not separate and distinct theories of recovery; see Squibb, supra, p. 98, 273 N.W.2d 476 (Levin, J., dissenting ), or that the Michigan products liability statute, M.C.L. Sec. 600.2945; M.S.A. Sec. 27A.2945, has merged all former products liability theories or causes of action into a single unified 'products liability theory.'30 We do not dispute the generally recognized distinction between the elements of negligence and breach of warranty. We recognize that the negligence theory generally focuses on the defendant's conduct, requiring a showing that it was unreasonable, while warranty generally focuses upon the fitness of the product, irrespective of the defendant's conduct. See Squibb, supra, pp. 98-99, 273 N.W.2d 476 (Levin, J., dissenting ). 13 "This holding is based upon the recognition that under the common law of products liability, in an action against the manufacturer of a product based upon an alleged defect, in its design, 'breach of implied warranty and negligence involve identical evidence and require proof of exactly the same elements.' See Squibb, supra, p. 88, 273 N.W.2d 476. A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. Owens v. Allis-Chalmers Corp., 414 Mich. 413, 425, 326 N.W.2d 372 (1982). For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. Elsasser v. American Motors Corp., 81 Mich.App. 379, 384, 265 N.W.2d 339 (1978). When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14, 241 N.W.2d 738 (1976), lv. den. 397 Mich. 862 (1976). For the sale of a product defective in such respect, the seller may be answerable for breach of an implied warranty. Elsasser, supra. Thus, when the issue is liability of a manufacturer who was also the seller, it is inconceivable that a jury could determine that the manufacturer had not breached its duty of reasonable care and at the same time find that the product was not reasonably safe for its reasonably foreseeable uses. The question in either case turns on reasonable care and reasonable safety, and as pointed out by Dean Prosser, the liability of the manufacturer rests 'upon a departure from proper standards of care so that the tort is essentially a matter of negligence.'31 14 "Applying these principles to the facts of this case, although plaintiffs alleged that their injuries were proximately caused by defendant's negligence and breach of an implied warranty, their evidence and proofs at trial focused on the single claim that the defendant defectively designed the 'walkie hi-lo' forklift, because it failed to provide a seat or platform for the operator. Thus, recovery under either theory required the jury to determine that the forklift was defectively designed by defendant. Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975). The factual inquiry was: whether the design of defendant's forklift was 'unreasonably dangerous' because it did not contain a seat or platform for the operator. See Owens, supra, 414 Mich. at p. 427, 326 N.W.2d 372. 15 "The test for determining whether the design was "unreasonably dangerous" was: whether the alleged defect in the design of the product created an unreasonable risk of foreseeable injury. Elsasser, supra. Stated another way, whether the manufacturer was under a duty to use reasonable care to design a product that was reasonably safe for its intended, anticipated, or reasonably foreseeable uses. Dooms v. Stewart Bolling, supra, 68 Mich.App. p. 14, 241 N.W.2d 738. 16 "The trial court properly recognized that the standards of liability under the theories of implied warranty and negligence were indistinguishable and that instructions on both would only confuse the jury. Accordingly, the trial judge's instructions regarding the standard of care and theories of liability properly informed the jury of defendant's legal duties as the manufacturer of the forklift. The court set forth the necessary elements for determining whether defendant defectively designed the forklift when it stated: 17 'A manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured is[, however,] subject to liability to others whom he should expect to use the product or to be endangered by its probable use from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design. 18 'A manufacturer has a duty to use reasonable care in designing his product and guard it against a forseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated.' 19 "In essence, the jury was instructed to consider whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause harm or injury. Caldwell v. Fox, supra. 20 "Therefore we hold that in a products liability action against a manufacturer, based upon defective design, the jury need only be instructed on a single unified theory of negligent design.32 21 421 Mich. at 691-95, 365 N.W.2d at 186-87. 22 The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with the above. 23 CONTIE, Circuit Judge, concurring. 24 Although I join the majority opinion, I write separately in order to articulate my understanding of what the majority holds and to distinguish certain cases relied upon by the defendant. 25 This appeal involves Counts IV and V of the plaintiff's amended complaint. Count IV alleged that since adequate testing prior to distributing DES would have revealed that DES was both highly carcinogenic and ineffective in preventing miscarriages, the defendant was negligent in marketing DES at all. Count V alleged that the defendant breached implied warranties because the DES ingested by the plaintiff's mother was unfit for its intended use (i.e., was defective) and caused the plaintiff to develop vaginal adenosis. The district court ruled that the plaintiff could not present either of these theories. According to the district court, Michigan law does not recognize implied warranty theories in products liability cases involving drugs. Moreover, the court held that although the plaintiff could proceed under a negligence theory, the only such theory cognizable under Michigan law in this drug case was that the defendant had provided inadequate warnings to physicians about the potential risks associated with use of DES. The district court refused to permit the plaintiff to proceed on the broader theory that the defendant was negligent in marketing DES at all.1 26 I agree with the majority that under Prentis v. Yale Manufacturing Co., 421 Mich. 670, 365 N.W.2d 176 (1984), this case must be returned to the district court. In this case, as in Prentis, it is alleged not that one unit of a product line was defective but that the entire product line was defectively designed. Prentis teaches that in such cases the plaintiff must prove negligence even if it proceeds under an implied warranty theory. Accordingly, on remand Bogorad will be limited to the negligence theory articulated in Count IV.2 27 Turning to the specifics of Bogorad's negligence theory, the defendant contends that under Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476 (1979), the only theory under which the plaintiff may proceed is that the defendant inadequately warned physicians of the dangers associated with DES. The defendant misreads Smith. Although Smith does hold that a drug manufacturer must warn the medical profession of "any risks inherent in the use of [a] drug which the manufacturer knows or should know to exist," 405 Mich. at 88, 273 N.W.2d 476, Smith does not hold that the inadequate warning theory is the only theory available to prospective plaintiffs. Indeed, the Smith court had no occasion to discuss other negligence theories because the plaintiff in that case pleaded only that warnings had been inadequate. 28 The general rule in Michigan is that a manufacturer must perform such tests as are reasonably necessary in order to insure that a product is safe. See Ebers v. General Chemical Co., 310 Mich. 261, 274-75, 17 N.W.2d 176 (1945); Selmo v. Baratono, 28 Mich.App. 217, 226, 184 N.W.2d 367 (1970). The plaintiff in this case has alleged that had the defendant tested DES adequately, it would have discovered that the drug was highly carcinogenic and was ineffective in preventing miscarriages. If a jury were to accept these allegations, then the jury reasonably could conclude that the defendant was negligent in ever marketing DES because the marginal utility of the drug did not outweigh the serious health risks involved. See Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977). 29 The defendant also relies upon Hasler v. United States, 517 F.Supp. 1262 (E.D.Mich.1981), rev'd on other grounds, 718 F.2d 202 (6th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984) and Keil v. Eli Lilly & Company, 88 F.R.D. 296 (E.D.Mich.1980) (unpublished). Hasler is distinguishable. The plaintiff is that case alleged that the defendant had been negligent in testing swine flu vaccine and in warning about the potential health risks. The district court found the defendant liable on the inadequate warning theory without discussing the inadequate testing claim. The court did not hold that only the inadequate warning theory was cognizable under Michigan law. 30 It must be acknowledged that the district court did so hold in Keil. Since the district court's opinion in Keil is devoid of analysis on this point, however, the decision has little persuasive value. Plaintiff Bogorad has stated a claim upon which relief can be granted in Count IV of her complaint. The district court should have permitted her to proceed under that theory. 31 With these comments, I join the opinion of the majority. * Honorable George Edwards took senior status January 15, 1985 ** Honorable S. Arthur Spiegel, United States District Court for the Southern District of Ohio, sitting by designation 1 This test is equivalent to the rule applied by federal courts: In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted); accord, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972). "30 Cf. Jorae v. Clinton Crop Service, 465 F. Supp. 952 (E.D.Mich., 1979). As we noted in In re Certified Questions, Karl v. Bryant Air Conditioning Co., fn. 5 supra, 416 Mich. at p. 567, 331 N.W.2d 456, 'Our reading of the statute does not require us to determine whether the Legislature completed the possible confluence of products liability negligence and implied warranty into one cause of action or whether two separate actions still remain extant.' "Thus, as defense counsel has conceded, see fn. 6, the only time the distinction between implied warranty and negligence may have any significance in design defect cases, is in determining the liability of a seller who is not also the manufacturer of a product. See, e.g., Bronson v. J.L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (1965). We also are not required to determine whether the two theories are separate in cases alleging defects in manufacturing. "31 Prosser, Torts (4th ed.), Sec. 96, p. 644. See also text accompanying fns. 24-26. "32 We thus approve the use of the recently adopted version of SJI2d 25.32, but disapprove of the use of SJI2d 25.22 in the case of products liability actions against the manufacturer of a product where the action is based upon an alleged design defect. Directed verdict forms should also be corrected to reflect these changes." 1 Implicit in the plaintiff's position is that the defendant was negligent in ever marketing DES regardless of the nature or extent of any warnings provided 2 Although Prentis does "not suggest that implied warranty and negligence are not separate and distinct theories of recovery," see 421 Mich. at 692, 365 N.W.2d 176, it does hold that in cases alleging a defective design the jury is to be instructed only on negligent design. Separate instructions on implied warranty--which would be identical to the negligence instructions--would be "repetitive and unnecessary." Id. at 691, 365 N.W.2d 176

889 F.2d 1100 13 U.S.P.Q.2d 1407 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Lynn R. NEISS, Plaintiff-Appellee,v.A.L.C. COMPANY, INC., Defendant-Appellant. No. 89-1173. United States Court of Appeals, Federal Circuit. Oct. 19, 1989. Before RICH, Circuit Judge, BENNETT, Senior Circuit Judge, and BISSELL, Circuit Judge. BISSELL, Circuit Judge. DECISION 1 A.L.C. Company, Inc. appeals the order of the United States District Court for the Northern District of Ohio, No. C88-3997A (Nov. 8, 1988), as amended on November 30, 1988, granting Lynn R. Neiss' preliminary injunction motion. We vacate and remand. OPINION 2 Federal Rule of Civil Procedure 52(a) "requires that the denial or grant of a preliminary injunction be supported by findings of fact." Pretty Punch Shoppettes, Inc. v. Hauk, 844 F.2d 782, 784, 6 USPQ2d 1563, 1565 (Fed.Cir.1988). Although "[t]he rule does not place a severe burden upon the trial judge, for he 'need only make brief, definite, pertinent findings and conclusions upon the contested matters[,]' " Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 872, 228 USPQ 90, 97 (Fed.Cir.1985) (citation omitted), "the trial court must provide sufficient factual findings such that we may meaningfully review the merits of its order." Pretty Punch, 844 F.2d at 784, 6 USPQ2d at 1565. 3 The district court apparently found a reasonable likelihood of success in proving infringement under the doctrine of equivalents. Its findings, however, do not indicate that each disputed claim limitation or its substantial equivalent was present in both accused devices. See Julien v. Zeringue, 864 F.2d 1569, 1571, 9 USPQ2d 1552, 1553 (Fed.Cir.1989). Without more, statements that Neiss' "Squeezer II is the patented device" and that "a patent was awarded only after [Neiss] made the combination claim involving using a replaceable sealing member of the valve construction for controlling the flow of pressurized abrasive granular material" are insufficient to meet the Rule 52(a) standard. Such cursory treatment of the doctrine of equivalents fails to provide any foundation on which we could engage in a meaningful review of the merits. Without "guidance as to why and how it arrived at its conclusion [, w]e have no basis for evaluating what facts entered into the trial court's infringement analysis, or if that analysis comports with the [preliminary injunction] standards articulated by this court." Pretty Punch, 844 F.2d at 784, 6 USPQ2d at 1565. Accordingly, the order is vacated and the case remanded to the district court for further proceedings consistent with this opinion.* COSTS 4 Each party shall bear its own costs. 5 RICH, Circuit Judge, concurring. 6 I agree with the vacating of the preliminary injunction, which should not have been granted anyway because, I believe, the possibility of prevailing ultimately on the issue of infringement is nil. Infringement depends, first, on claim construction, a question of law which this court reviews de novo. I also agree that the meager findings do not suffice to support the injunction or to comply with Fed.R.Civ.P. 52(a). 7 I find the district judge's explanations of why the injunction was granted so unclear that I cannot tell whether he found literal infringement or a prospect of infringement under the doctrine of equivalents. They are more consistent with the former than the latter. The majority opinion also seems unsure of the judge's reason. 8 To support a preliminary injunction there must be, of course, a clear case of infringement. My view is that it is not possible to so construe the only claim alleged to be infringed in accordance with the precedents in this court as to find infringement, either literally or under the doctrine of equivalents. I say this after consideration of the complete record of the proceedings before the District Court. 9 Contrary to what plaintiff's counsel told the trial court, the claim must be construed in the light of the patent specification, its prosecution history, and the prior art. So construed, it cannot be found that the accused devices contain the "handle means" of claim 1. 10 The two accused devices are designated DM-II and DM-IIS. They are asserted to be copies of plaintiff's "Squeezer II," which plaintiff assumes to be covered by claim 1. However, it is not covered by claim 1 for the reason that it lacks one of the essential elements of claim 1, namely, the "handle means" of that claim's clause (a). 11 The handle of clause (a) consists of the two principal parts Mr. Neiss incorporated in his "Squeezer I" and describes in his patent and recites in its only asserted claim, namely, the "section of rigid pipe," to one end of which the nozzle is attached and to the other end of which the hose is attached, and the "flexible gripping sleeve." The pipe and the sleeve together constitute the handle, or "handle means" as the claim calls it. The way they are combined is specifically stated in the claim which says the sleeve is "telescopically mounted on the section of rigid pipe." (My emphasis.) The nature of the sleeve is further limited in the claim which specifies that it contains "a plurality of finger receiving depressions." To infringe this claim, all of these structural handle features, or their functional equivalents, must be present in an accused device and, at the very least, the accused device must contain a "handle." 12 The reason I say that "Squeezer II" does not infringe--which is another way of saying the patent does not cover it--is that it has no "handle," and certainly it does not have the specific handle specified in claim 1. Mr. Neiss testified in response to questions from his own attorney that he omitted the handle from "Squeezer II" saying, in effect, that he omitted it because it wasn't needed. What he actually said was: "I found out, figured out that a rubber hose serves as a gripping sleeve just as well as a handle grip, so why put the handle grip on." So defendant cannot be held to have copied plaintiff's patented structure. Defendant's device being substantially the same as "Squeezer II," for the reasons just stated, they too are not covered by claim 1 and do not infringe the patent. 13 I speak of both of defendant's structures together, but I note the fact that we really do not know the exact structure of DM-IIS because neither the sketch nor the specimen before this court shows how the air hose is secured to the nozzle in an airtight fashion. No hose barb--if one is used--is shown in either drawing or model. I have seen enough, however, to know that it does not meet the claim limitations. 14 Mr. Neiss and his attorney, in pursuing this suit, have a theory of infringement which will not hold water. It involves an attempt to find the rigid pipe element of the "handle means" in the hose barb which attaches the air hose directly to the nozzle and to find the flexible gripping sleeve in the air hose itself, which is, as usual in nearly all hose connections of all kinds, telescoped over the hose barb. This requires one to read the bare words of the claim in a vacuum with no regard whatsoever for what they were intended to mean in the patent and to read the claim without reference to the specification and the prosecution history and, if I may say so, common sense. If their theory were acceptable, then every hose connected to another member with a common hose barb would have a "handle" meeting the elements of claim 1, clause (a), including common garden hose. 15 Aside from the handle structure discussed above and some detailed improvements of the front end resilient nozzle closure which Neiss discloses, the basic dead man "tip valve" structure for use on sandblast nozzles was known in the art as shown in the patent to Weijsenburg, No. 3,618,263, which issued several years before Neiss invented his valve. It is irrelevant that he did not know about it. He could not have a valid patent covering what was old and was properly limited by the examiner to claims limited to the details of his own devising. When those details are not used, there is no infringement. 16 For the foregoing reasons, I am of the opinion that claim 1, properly construed or interpreted according to law, is not infringed by A.L.C. Company's sandblast nozzle structures DM-II and DM-IIS. This is sufficient reason for denying a preliminary injunction, which is the only issue before us now. It also, as I am well aware, foredooms the plaintiff's case on the merits to failure. * The sufficiency of factual findings to support the preliminary injunction is the sole issue considered by the majority. Because the factual findings are insufficient, the majority does not reach, and intimates no view on, the infringement issue raised by the concurrence

877 F.2d 971 Smithv.Lynaugh* NO. 88-2508 United States Court of Appeals,Fifth Circuit. JUN 15, 1989 1 Appeal From: E.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

758 F.2d 1000 Bankr. L. Rep. P 70,390, 40 UCC Rep.Serv. 1480 David G. GRAY, Trustee, Appellant,andA. Wayne Ingle and William Jerry Page t/d/b/a Ingle-PageEnterprises, Inc., Plaintiffs,v.GIANT WHOLESALE CORP., a Tennessee Corporation, Appellee,v.Joyce P. INGLE and Joanna W. Page, Third-Party Defendants. No. 84-1439. United States Court of Appeals,Fourth Circuit. Argued Dec. 4, 1984.Decided April 4, 1985. David G. Gray, Asheville, N.C. (Gray, Kimel & Connolly, P.A., Asheville, N.C., on brief), for appellant. E. Glenn Kelly, Asheville, N.C. (Bennett, Kelly & Cagle, P.A., Asheville, N.C., on brief), for appellee. Before RUSSELL, WIDENER and SNEEDEN, Circuit Judges. DONALD RUSSELL, Circuit Judge: 1 This is a case brought by David G. Gray, trustee in bankruptcy for the estate of William Jerry Page d/b/a Hendersonville Food Center, against Giant Wholesale Corp., a Tennessee corporation, to recover for allegedly ineffective, voidable and preferential transfers made to Giant before Page filed his voluntary Chapter 7 bankruptcy petition.1 The district court held, as a matter of law, that Giant was a secured creditor, thereby defeating Gray's attempt to subordinate Giant's security interest under N.C.Gen.Stat. Sec. 25-9-301(1)(b) (Supp.1983); that Giant was not an "insider" and did not receive any voidable preferential transfers; and that Giant had not received an unlawful bulk transfer.2 The district court submitted to the jury the question whether Giant's sale of Page's repossessed inventory and equipment was commercially reasonable,3 and the jury found the sale to have been commercially reasonable. We affirm. 2 * Page began working in Wayne Ingle's Stoney Knob Superette (a grocery store) in 1979. Shortly thereafter, Ingle apparently made Page a part-owner of the store. Ingle and Page then contemplated opening a new store, the Hendersonville Food Center (Food Center), and they contacted Giant, the primary inventory supplier of the Stoney Knob store. Giant agreed to supply groceries to Food Center, provided Ingle and Page agreed to guarantee all indebtedness incurred by Food Center. Subsequently, on April 23, 1980, Ingle and Page, purportedly representing Ingle-Page Enterprises, Inc.,4 signed promissory notes, a security agreement, and a guaranty agreement. The security agreement provided that Giant was to retain a security interest in Food Center's then owned or thereafter acquired inventory, including its groceries, floats, shelves, refrigeration equipment, cash registers, and heating and air-conditioning equipment. Although Giant filed a financing statement on April 23, 1980, it concedes that it did not perfect its security interest in Food Center's inventory by notice filing. 3 Shortly after Giant agreed to supply Food Center, Ingle and Page had a "falling out." Ingle agreed to retain ownership of the Stoney Knob store, and Page succeeded to sole ownership of Food Center. Page, however, was unable to revive the solvency of Food Center. On October 17, 1980, Page agreed to relinquish control of Food Center's checking account to Giant. Giant controlled the dispensation of all checks, but Page determined the amount of money to be placed into the checking account and Page continued to manage Food Center. Between October 17, 1980, and February 12, 1981, Giant issued over 300 checks from Food Center's account; only 23 checks were issued to Giant and the amount of Food Center's indebtedness to Giant increased while Giant controlled its checking account. 4 On February 12, 1981, Giant notified Page that it intended to repossess all of Food Center's inventory because of the mounting indebtedness and Page's default under the security agreement. In fact, Giant repossessed Food Center's inventory and equipment on the evening of February 12, transported it to Tennessee, returned the non-perishable inventory to its stock, and sold the equipment and perishable inventory at private sales. Giant informed Page of the manner of disposition. One day after repossessing the inventory, Giant induced Page to sign a security agreement and a financing statement covering the inventory and equipment that Giant had already repossessed. Giant filed such financing statement. Thereafter, on September 30, 1981, over seven months after the inventory was repossessed, Page filed a voluntary Chapter 7 bankruptcy petition. Gray was appointed as trustee, and he brought this action against Giant. II. 5 Initially, Gray contends that Giant failed to perfect its security agreement in Food Center's inventory by notice filing, therefore, Gray contends that Giant's interest in the inventory is subordinate to the rights of the trustee as a hypothetical lien creditor pursuant to Bankruptcy Reform Act Sec. 544(a)(1)5 and the North Carolina Uniform Commercial Code Sec. 9-301(1)(b).6 Gray, however, overlooks the fact that a financing statement need not be filed to perfect a security interest in collateral which is in the possession of the secured party.7 Giant, due to the default of Page under the security agreement signed by Page on April 23, 1980, lawfully repossessed the inventory on February 12, 1981 without breaching the peace.8 Giant thereby perfected its security interest by possessing the inventory, pursuant to N.C.Gen.Stat. Sec. 25-9-305. See Raleigh Indus. of America v. Tassone, 74 Cal.App.3d 692, 141 Cal.Rptr. 641 (1977); Rosner v. Plaza Hotel Assoc., Inc., 146 N.J.Super. 447, 370 A.2d 41 (1977). Consequently, Giant had a perfected security interest in Food Center's inventory that was not subordinated to the Sec. 544(a)(1) strong-arm powers of the trustee. 6 Gray next argues that Giant, by dispensing itself checks from Food Center's account and by repossessing the inventory, received voidable preferential transfers.9 Gray, recognizing that the alleged preferential transfers took place more than ninety days yet less than a year before Page filed his bankruptcy petition, contends that Giant was an "insider" who knew that Food Center was insolvent. Giant, however, was not an insider or a person in control10 of Food Center merely because Giant controlled the dispensation of its checks. In re Schick Oil & Gas, Inc., 35 B.R. 282, 285 (Bankr.W.D.Okla.1983). Instead, Page had sole control over Food Center because Page controlled the amount of money that was placed into the account and Page managed every aspect of the store, including setting the store's hours, setting employee wages, making hiring and firing decisions, determining what advertising was necessary, and determining what goods were to be purchased. Because Giant was not an insider of Food Center, the transfers it received more than ninety days before the bankruptcy petition was filed are not avoidable as preferential. 7 Gray further contends that Giant, by repossessing all of Food Center's inventory, received an ineffective bulk transfer pursuant to N.C.Gen.Stat. Sec. 25-6-104. Gray, however, overlooks a recognized exception to the bulk transfer provisions for transfers "in settlement or realization of a lien or other security interest." N.C.Gen.Stat. Sec. 25-6-103(3). Since Giant, as a secured creditor repossessing its collateral, was merely enforcing its security interest, it is excepted from the bulk transfer provisions. 8 Lastly, Gray contends that the district court improperly instructed the jury concerning the commercial reasonableness11 of the private sales of Food Center's inventory and equipment. Gray, however, never objected to the commercial reasonableness instructions given the jury and, therefore, cannot assign such instructions as error, pursuant to Fed.R.Civ.P. 51. Nor were the instructions given erroneous. The district court properly instructed12 the jury that Giant had the burden of establishing the commercial reasonableness of the sales, and the jury found that Giant had met that burden. 9 Accordingly, the judgment of the district court is 10 AFFIRMED. 1 Jurisdiction was based upon 28 U.S.C. Sec. 1471(b) (1983) 2 See N.C.Gen.Stat. Sec. 25-6-101 et seq 3 Pursuant to N.C.Gen.Stat. Sec. 25-9-504(3) 4 Ingle and Page represented in the promissory notes, the security agreement, and the guaranty agreement that Ingle-Page Enterprises, Inc. was the debtor, but no such corporation ever legally existed. Since both Ingle and Page signed such documents, they are bound by them 5 11 U.S.C. Sec. 544(a)(1) (1983) 6 N.C.Gen.Stat. Sec. 25-9-301(1)(b) 7 See N.C.Gen.Stat. Sec. 25-9-302(1)(a) 8 Pursuant to N.C.Gen.Stat. Sec. 25-9-503 9 Pursuant to 11 U.S.C. Sec. 547(b) 10 See 11 U.S.C. Sec. 101(25)(B)(iii) 11 Every aspect of the disposition of repossessed collateral must be commercially reasonable, pursuant to N.C.Gen.Stat. Sec. 25-9-504(3) 12 As required by North Carolina law. See Wachovia Bank & Trust Co. v. Murphy, 36 N.C.App. 760, 245 S.E.2d 101, appeal denied, 295 N.C. 557, 248 S.E.2d 734 (1978); ITT--Industrial Credit Co. v. Milo Concrete Co., 31 N.C.App. 450, 229 S.E.2d 814 (1976)

Order Michigan Supreme Court Lansing, Michigan October 6, 2017 Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack 156516 & (3) David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, MICHAEL E. TINDALL, Justices Plaintiff, v SC: 156516 ATTORNEY DISCIPLINE BOARD, Defendant. _________________________________________/ On order of the Court, the motion for immediate consideration is GRANTED. The complaint for superintending control is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief. I, Larry S. Royster, 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. October 6, 2017 s1003 Clerk 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4085 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DONALD RAY BOSWELL, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CR-04-239) Submitted: April 19, 2006 Decided: May 10, 2006 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas N. Cochran, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Donald Ray Boswell, Jr., pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a) (2000). The district court sentenced him as a career offender to a 180-month term of imprisonment. Boswell appeals his sentence, citing United States v. Booker, 543 U.S. 220 (2005). We vacate Boswell’s sentence and remand for resentencing. Boswell contends that the district court committed statutory Booker error by treating the Sentencing Guidelines as mandatory rather than advisory. Because Boswell raised a timely objection at sentencing based upon Blakely v. Washington, 542 U.S. 296 (2004), he has preserved his claim of statutory Booker error. United States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006). Thus, we review Boswell’s claim for harmless error, which places “the burden . . . on the Government to show that such an error did not affect the defendant’s substantial rights.” Id. at 416. Our review of the transcript of the sentencing hearing leads us to conclude that the Government has not met its burden to show that the error is harmless. The district court’s silence on how it would apply the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005) in ascertaining a proper sentence for Boswell must be - 2 - construed in Boswell’s favor. Rodriguez, 433 F.3d at 416. Thus, we conclude that Boswell is entitled to be resentenced.1 Accordingly, we vacate Boswell’s sentence and remand for resentencing consistent with Booker and United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).2 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. VACATED AND REMANDED 1 In light of our vacatur for statutory Booker error, we need not decide whether, as Boswell also contends on appeal, the district court committed Sixth Amendment error in sentencing him as a career offender. See Rodriguez, 433 F.3d at 416 n.8. 2 “We of course offer no criticism of the district judge, who followed the law and procedure in effect at the time of [Boswell’s] sentencing.” Hughes, 401 F.3d at 545 n.4. - 3 - 

923 F.2d 869 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Robert L. STEPHENSON, Petitioner,v.DEPARTMENT OF COMMERCE, Respondent. No. 90-3271. United States Court of Appeals, Federal Circuit. Nov. 14, 1990. Before MARKEY, ARCHER and MICHEL, Circuit Judges. Judgment PER CURIAM. 1 AFFIRMED. See Fed.Cir.R. 36.

COURT OF APPEALS SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA, SUITE 3200 MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037 REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE PATRICIA O. ALVAREZ (210) 335-2635 LUZ ELENA D. CHAPA JASON PULLIAM FACSIMILE NO. JUSTICES (210) 335-2762 August 5, 2015 Andrew Warthen Richard B. Dulany Jr. Paul Elizondo Tower Bexar County Public Defender's 101 W. Nueva St. Office San Antonio, TX 78205 Paul Elizondo Tower * DELIVERED VIA E-MAIL * 101 W. Nueva St., Suite 370 San Antonio, TX 78205 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00776-CR Trial Court Case Number: 2012CR2497 Style: Bernardo Ibarra-Lopez v. The State of Texas Dear Counsel: The above cause has been set for formal submission ON BRIEFS ONLY before this Court on Wednesday, September 2, 2015, before a panel consisting of Chief Justice Sandee Bryan Marion, Justice Karen Angelini, and Justice Jason Pulliam. Very truly yours, KEITH E. HOTTLE, CLERK ____________________________ Cynthia A. Martinez Deputy Clerk, Ext. 53853 

311 N.W.2d 508 (1981) 209 Neb. 730 In re ESTATE OF Galen L. NELSEN, deceased. Delmer GROETEKE, Appellant, v. Beverly A. NELSEN, Personal Representative, Appellee. No. 43492. Supreme Court of Nebraska. October 23, 1981. H. E. Hurt, Jr., and James A. Gallant, Scribner, for appellant. Nicholas J. Lamme of Yost, Schafersman, Yost, Lamme & Hillis, Fremont, for appellee. Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ. WHITE, Justice. This is an appeal from a District Court judgment entered on a jury verdict in favor of the estate of Galen L. Nelsen. The claimant, Delmer Groeteke, farms near Hooper, Nebraska. The deceased, Galen L. Nelsen, owned and operated Anderson Feed & Seed Co. in Fremont, Nebraska. Early in the spring of 1977 Delmer Groeteke contacted Galen L. Nelsen about the possibility of Anderson Feed & Seed Co. purchasing Groeteke's 1976 soybean crop. After performing germination tests on the beans, Groeteke and Nelsen entered into an oral agreement for the purchase of the soybeans. The exact quantity of soybeans purchased *509 was disputed. Delmer Groeteke claims the oral contract was for his entire crop, approximately 2,500 bushels. The estate claims the oral contract was for 1,762.68 bushels of soybeans, the amount which was actually delivered and received. The price, which was $10.40 per bushel, is not in dispute. On April 12, 1977, Delmer Groeteke delivered the first load of soybeans, 212 bushels, to Anderson Feed & Seed Co. Since he was busy with his farming operations, Groeteke left his truck with Nelsen so that Nelsen could haul the remaining beans. Between April 15, 1977, and May 18, 1977, Nelsen and his son hauled eight loads of soybeans from the Groeteke farm. This brought the total amount of soybeans actually received by Anderson Feed & Seed Co. to 1,762.68 bushels. Groeteke was paid for the nine loads of soybeans in three checks dated May 9, 1977, May 24, 1977, and June 4, 1977, totaling $18,331.77. No beans were hauled after May 18, 1977. The price of soybeans dropped during the summer, and on August 1, 1977, Groeteke sold 260.67 bushels of the remaining beans to the Hooper co-op for $5.74 per bushel. On March 17, 1978, Groeteke sold the remaining 500 bushels to the Hooper co-op for $6.31 per bushel. Action was commenced on August 9, 1978, to recover the difference between the price received for the remaining bushels and the contract price. On August 11, 1978, Galen Nelsen was killed in an automobile accident. Groeteke filed a claim against Nelsen's estate in the county court of Dodge County, Nebraska, on June 4, 1979. The claim was disallowed by the personal representative. Groeteke's petition for allowance of the claim in the county court was also disallowed. An appeal was taken to the District Court for Dodge County, Nebraska. The issue was tried to a jury and a verdict was rendered in favor of the estate, from which the claimant appealed. We affirm the trial court's judgment on other grounds. The trial court should have sustained the estate's motion for a directed verdict. The statute of frauds was properly raised as a defense to the present action by a general denial. Benes v. Reed, 158 Neb. 128, 62 N.W.2d 320 (1954); Ord v. Benson, 163 Neb. 367, 79 N.W.2d 713 (1956). The record shows that the statute of frauds was specifically raised in the estate's motion for a directed verdict at the close of the claimant's case. The statute of frauds states: "Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing." Neb. U.C.C. § 2-201(1) (Reissue 1980). The oral contract was for personal property in excess of $500. The claimant argued that the contract was without the statute of frauds because it falls within Neb. U.C.C. § 2-201(3)(c) (Reissue 1980), which reads: "A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable ... with respect to goods for which payment has been made and accepted or which have been received and accepted...." The contract in question clearly falls within § 2-201(3)(c). The evidence indicates that Galen Nelsen received, accepted, and paid for 1,762.68 bushels of soybeans. However, at no time were the remaining 750 bushels received or accepted by Nelsen. "The language of the statute, and of the official comment, makes it clear that part performance of an oral contract for the sale of goods that is capable of apportionment is enforceable only as to that portion that has been either fully or partially performed." In re Augustin Bros. Co., 460 F.2d 376, 380, (8th Cir. 1972); Wilke v. Holdrege Coop. Equity Exchange, 200 Neb. 803, 265 N.W.2d 672 (1978). To the extent *510 the contract covers goods in excess of 1,762.68 bushels of soybeans, it is unenforceable. A directed verdict was proper under these circumstances since, under the facts, the claimant was not entitled to any relief. In his assignments of error, Groeteke claims the trial court erred in not giving his jury instruction Nos. 1, 2, and 3, dealing with acceptance and delivery. The statute of frauds is clear on this issue. A delivery alone by the seller is insufficient to take an oral contract for the sale of goods of the price of $500 or more out of the statute. The statute makes it necessary that the goods "have been received and accepted" before avoidance of the statute of frauds is recognized. See, Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 230 N.W.2d 588 (1975). Benes v. Reed, supra. The assignment is without merit. The remaining assignments of error will not be discussed, as they are not determinative of this appeal. AFFIRMED.

871 F.Supp. 488 (1994) NVMERCURE LIMITED PARTNERSHIP, and NVCommercial Incorporated, Plaintiffs, v. RESOLUTION TRUST CORPORATION, as Receiver for Perpetual Savings Bank, F.S.B., Defendant. Civ. A. No. 94-1113. United States District Court, District of Columbia. December 12, 1994. *489 John Williams Polk, Baker & McKenzie, Roger J. Lerner, Lerner & Reed, Washington, DC, for plaintiffs NVMercure Ltd. Partnership, NVCommercial Inc., Gen. Partner. Douglas E. Ginsburg, Jeffrey Phillip Bloom, Metzger, Hollis, Gordon & Mortimer, Kirk Kelso Van Tine, Wendy Jane Lang, Baker & Botts, L.L.P., Washington, DC, for defendant Resolution Trust Corp. in its capacity as Receiver for Perpetual Savings Bank, F.S.B. MEMORANDUM OPINION SPORKIN, District Judge. NVMercure Limited Partnership and its general partner, NVCommercial, Inc. ("NVMercure"), filed this lawsuit against Resolution Trust Corporation ("RTC") for judicial review of RTC's denial of Plaintiffs' claims for money damages pursuant to 12 U.S.C. § 1821(d)(6). This matter comes before the Court on Defendant RTC's motion to dismiss Count I of Plaintiffs' complaint which seeks damages for RTC's alleged breach of a *490 contractual right of first refusal. Defendant RTC contends that Plaintiffs' contractual right of first refusal is preempted by 12 U.S.C. § 1821(d)(2)(G)(i)(II) to the extent that Plaintiffs seek to enforce that right against RTC. Defendant contends that because the right of first refusal is not legally enforceable against the RTC the right cannot be a basis for an award of damages. FACTUAL BACKGROUND Plaintiffs' action relates to a 175 acre property located in Loudoun County, Virginia that is known as "Mercure Business Park" (hereinafter "Property"). In 1988, Perpetual Savings Bank FSB ("Perpetual") loaned Plaintiffs $20 million to buy and develop this property. On May 30, 1991, the loan was restructured after certain defaults by Plaintiffs. The restructure cancelled Plaintiffs' $20 million debt and provided that Mercure Business Park would be sold under a power of sale contained in the deed of trust securing the original loan and that Perpetual would bid for the Property at the trustees' sale. Perpetual, through its wholly owned subsidiary, SAD Realty, bought the Property and Plaintiffs gave Perpetual a deficiency note in the amount of approximately $6.4 million. Plaintiffs continued to manage the Property pursuant to a Property Management and Marketing Agreement. The Debt Restructure Agreement gave Plaintiffs a "right of first refusal and option to purchase" the NVMercure Property. Paragraph 13.4 of the Agreement provided: Right of First Refusal and Option to Purchase. If Perpetual receives a bona fide offer to purchase the Property from a third party, NVMercure shall have the right to match such offer at the same price and on the same terms and conditions as such bona fide offer by notice of exercise of such right provided to Perpetual in writing within ten (10) days of receipt of notice of such offer from Perpetual. In addition, NVMercure shall have the option at any time to purchase the Property for a purchase price that is the greater of (1) the Base Amount plus indebtedness owing under the Deficiency Note at the time of purchase or (b) the November 30, 1994 fair market value of the Property then owned by Perpetual. On January 10, 1992, the Director of the Office of Thrift Supervision ("OTS") declared Perpetual insolvent, ordered it closed and appointed the RTC as the receiver for Perpetual. Pursuant to 12 U.S.C. § 1821(d)(2)(A)(i), RTC succeeded to all of Perpetual's assets, including the Property and Perpetual's rights under the Debt Restructure Agreement. Subsequently, RTC entered into a Purchase and Sale Agreement with Sunchase Land Fund, G.P., Sunchase Holdings, Inc., and Sterling Pacific Assets ("Sunchase Group"). Sunchase Group bought the Property as part of a group package of loans and parcels of real estate. RTC did not give NVMercure the right of first refusal as provided in the Debt Restructure Agreement between Perpetual and NVMercure. MOTION TO DISMISS STANDARDS In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must accept as true each of the allegations in the complaint. The motion should not be granted unless it appears beyond doubt that the plaintiffs can prove no set of facts entitling them to the relief sought in the complaint. See, e.g. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-03, 2 L.Ed.2d 80 (1977). RTC MANDATE The RTC was created by Congress in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 ("FIRREA"). The Second Circuit recently noted: FIRREA, adopted on August 9, 1989, Pub.L. No. 101-73, 103 Stat. 364 ... "constitute[d] emergency legislation" to stop the financial hemorrhaging. S.Rep. No. 19 at 3. As the House Report put it: "The interest of the American taxpayer demand an expedited resolution to the monumental problems involved with the unprecedented costs of dealing with hundreds of insolvent *491 thrifts and the orderly disposition of the assets of these failed institutions." RTC v. Diamond, 18 F.3d 111, 113 (2nd Cir.1994) (quoting H.R.Rep. No. 54(I), 101st Cong., 1st Sess. 308 (1989), reprinted in, 1989 U.S.C.C.A.N. 86, 104). The RTC was created to liquidate the assets of these failed institutions "expeditious[ly]." H.R.Rep. No. 101-54(I), 101st Cong., 1st Sess. 322 (1989), reprinted in, 1989 U.S.C.C.A.N. 86, 118. One of the broad powers given to the RTC to enable the RTC to effectively and expeditiously liquidate the assets of the failed savings and loans is found in 12 U.S.C. § 1821(d)(2)(G)(i)(II): (G) Merger; transfer of assets and liabilities (i) In general The Corporation may, as conservator or receiver — (I) merge the insured depository institution with another insured depository institution or (II) subject to clause (ii), transfer any asset or liability of the institution in default (including assets and liabilities associated with any trust business) without any approval, assignment, or consent with respect to such transfer. (emphasis added). Defendant RTC argues that this section preempts the Plaintiffs' contractual right of first refusal created by the Debt Restructure Agreement with Perpetual because the right of first refusal would require the RTC-Receiver to seek Plaintiffs' consent or approval before selling the property. PREEMPTION ANALYSIS The Supremacy Clause of the United States Constitution provides that the "Laws of the United States ... shall be the Supreme Law of the Land." U.S. Const. art. VI, cl. 2. Federal law preempts state law to the extent that it conflicts with federal law. See, e.g., California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987). There is no doubt that under Virginia state contract law Plaintiffs had a contractual right of first refusal. Section 1821(d)(2)(G)(i)(II), however, preempts this right because this section gives the RTC power to transfer "any asset ... of the institution ... without any approval, assignment, or consent with respect to such transfer." The right of first refusal would be a restraint on alienation that is specifically preempted by the Section because it would force the RTC to get approval or consent from the holder of the right before transferring the asset. Plaintiffs concede that the right is preempted. Plaintiffs, in their opposition brief, state Contrary to RTC's suggestion, the plaintiffs are not challenging the supremacy of federal law, nor are they asserting that the RTC may not transfer assets and liabilities without first securing the approval, assignment, or consent with respect to such transfer. Plaintiffs' Opposition Brief at 11. Rather than challenge the preemption of the state contractual right of first refusal, the Plaintiffs challenge the assertion that such preemption prevents a claim for damages: "[T]he plain language of § 1821(d)(2)(G)(i)(II), together with other provisions of FIRREA read as a whole, make it clear that there is no prohibition on a remedy of damages." Id. at 11. DAMAGES ANALYSIS When interpreting a statute, the Court must first look to the plain language of the statute. It is also a well-settled principle of statutory construction that specific provisions are to be interpreted in manner which is consistent with the overall structure of the statute. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956). Section 1821(d)(2)(G)(i)(II) does not provide for an award of damages, and this Section clearly preempts contract rights restraining alienation. In other sections of FIRREA, Congress specifically provided for an award of damages where the RTC is authorized to repudiate contracts. Sections 1821(e)(1), (2) and (3) empower the RTC to repudiate executory contracts entered into by a failed institution. Sections 1821(e)(3)-(8) provide for the payment *492 of damages for the breaches of contract which results from the RTC's repudiations authorized under Sections 1821(e)(1)-(3). Congress specifically chose to treat restrictions on the transferability of receivership assets (whether by contract, statute or common law) in a special manner — through preemption rather than repudiation. The purpose of Section 1821(e) is to allow the RTC to terminate otherwise binding contracts, with limited liability, while Section 1821(d)(2)(G)(i)(II) preempts any state law, including contract law, that interferes with the RTC's freedom to transfer assets without allowing for damages. Plaintiffs contend that Section 1821(d)(2)(G)(i)(II) does not specifically abrogate damage claims. However, it was unnecessary for Congress to so provide because the law of preemption provides for the abrogation of damages. Where a state law right is preempted by federal law, the state law right is rendered unenforceable. As the Supreme Court held, federal agencies acting within the scope of their authority may preempt and "render unenforceable state or local laws." City of New York v. FCC, 486 U.S. 57, 63-64, 108 S.Ct. 1637, 1642-43, 100 L.Ed.2d 48 (1988). See also, Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) ("[S]tate law is nullified to the extent that it actually conflicts with federal law."); Cipollone v. Liggett Group, Inc., ___ U.S. ___, ___, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) ("[S]ince our decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819) it has been settled that state law that conflicts with federal law is `without effect.'"); RTC v. Charles House Condominium Ass'n, Inc., 853 F.Supp. 226, 230 (E.D.La.1994) ("[F]ederal law renders unenforceable defendant's contractual right of first refusal....") Where a state law right is preempted and rendered unenforceable, there is no right to damages on the preempted right. An award of damages must be preempted to the same extent as injunctive relief. If the case were otherwise, then an award of damages could be used as a means of enforcing the state law right. The Supreme Court found in Cipollone v. Liggett Group, Inc., ___ U.S. ___, ___, 112 S.Ct. 2608, 2620, 120 L.Ed.2d 407 that "[state] regulations can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 781, 3 L.Ed.2d 775 (1959)). Contract law further supports the finding that NVMercure is not entitled to damages based on the preemption of its contractual right of first refusal. If a contract is rendered unenforceable, then the situation is treated as though no contract exists. If no contract right exists, then there can be no breach and, therefore, no damages. Massengill v. Guardian Management Co., 19 F.3d 196, 205-6 n. 4 (5th Cir.1994). TAKINGS ANALYSIS Plaintiffs further contend that RTC's interpretation of Section 1821(d)(2)(G)(i)(II) would result in violation of the "takings clause" of the Fifth Amendment. While there may be merit to this argument, the fact is there is no takings claim in the complaint. Even if Plaintiffs had asserted a takings claim, this Court lacks jurisdiction to consider the claim. The Tucker Act, 28 U.S.C. § 1491(a)(1), and the Little Tucker Act, 28 U.S.C. 1346(a)(2), vest exclusive jurisdiction in the United States Court of Federal Claims for takings claims that exceed $10,000 in controversy. See Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1444 n. 1 (D.C.Cir.1994); Board of Governors v. DLG Fin. Corp., 29 F.3d 993, 999 (5th Cir.1994). The amount in controversy in this case is $7 million. Accordingly, this Court lacks jurisdiction to evaluate any takings claim in this case. CONCLUSION The Court finds that Section 1821(d)(2)(G)(i)(II) preempts the Plaintiff's right of first refusal and that said right cannot form the basis for an award of damages against the RTC. *493 An appropriate order accompanies this memorandum opinion. ORDER This matter comes before the Court on Defendant's motion to dismiss Count I of Plaintiffs' complaint which seeks damages for an alleged breach of a contractual right of first refusal. The Court finds that Section 1821(d)(2)(G)(i)(II) preempts the right of first refusal and Plaintiffs' claim for damages. Accordingly, the Court hereby ORDERS that Count I of the Complaint be DISMISSED for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ.P. 12(b)(6).

679 F.2d 447 Reza Mallihi SHOJA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 81-4232. United States Court of Appeals,Fifth Circuit. June 28, 1982. Harry J. Joe, Eugene J. Flynn, Dallas, Tex., for petitioner. Stephen M. Weglian, Jr., Lauri Steven Filppu, James A. Hunolt, Gen. Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D. C., for respondent. 1 Petition for Review of an Order of the Immigration and Naturalization Service. 2 Before GEE and SAM D. JOHNSON, Circuit Judges, and VAN PELT , District Judge. VAN PELT, District Judge: 3 Reza Mallihi Shoja petitions this Court for relief from an order of the Bureau of Immigration Appeals (BIA) finding him to be deportable for failing to attend the school he was admitted to attend. We affirm the finding of deportability by the BIA and decline to review the other issues raised by petitioner which arose from a denial by the District Director of a request to transfer schools. 4 In order to understand the conclusion we reach, a brief review of the facts and case law is necessary. Shoja is a citizen of Iran who entered this country at New York on November 11, 1979. His form I-94 shows he was admitted to attend an English language course at ELS New Castle Business College, New Castle, Pennsylvania. He never at any time attended this school. He was to remain in the United States as a student until February 28, 1980. Upon his arrival in New York, Shoja missed his flight to Pennsylvania. Petitioner's testimony at the deportation hearing before the Special Hearing Officer (Immigration Judge) indicated that, after missing his flight, he called his brother in Dallas 5 and I ask him is it good if I go to Pennsylvania in this situation because I couldn't speak English anyway. I didn't know any (sic) about America-I didn't have any idea.1 6 The "situation" referred to by Shoja was the take-over of the American Embassy in Iran which had occurred approximately one week before Shoja's arrival. Petitioner's brother and sister-in-law had experienced hostility directed toward Iranians by United States citizens. Concerned for petitioner's safety, they told Shoja to come to Dallas, and instructed a woman working for one of the airlines to put him on the next flight to Dallas. He left New York City November 12th. 7 Once in Dallas, petitioner's relatives registered him for an English language course at Management Laboratories of America at the University of Dallas. After enrolling, Shoja, accompanied by his sister-in-law, went to the Immigration Service on approximately November 23, 1979, and presented forms requesting a transfer of schools. Shoja was interviewed at that time. The next day, November 24, 1979, an Order to Show Cause why Shoja should not be deported was issued. The District Director denied the request for transfer on January 10, 1980. The deportation hearing was held June 19, 1980, and that day he was found deportable on the ground that he failed to register at the school he was admitted to attend. On May 22, 1981, the Bureau of Immigration Appeals affirmed the Special Hearing Officer's finding of deportability. 8 Petitioner's contentions on appeal can essentially be broken down to the following issues: 9 1. Whether the Immigration Service erred in finding petitioner deportable because the regulations do not require attendance at a certain school, only that the petitioner enter the country intending to go to the school he is admitted to attend; 10 2. Whether both the BIA and Immigration Judge erred in failing to review the District Director's denial of permission to transfer; and 11 3. Whether the regulations giving the District Director exclusive discretion to deny a transfer violate due process and violate the underlying statutory authority and intent of Congress. 12 Petitioner further asks this court to review the transfer request on its merits. 13 At the outset, it is necessary to review this Court's jurisdiction. It is provided in § 106(a) of the Immigration and Nationality Act (hereinafter referred to as "the Act"), 8 U.S.C. § 1105a, that the procedure for judicial review of all final orders of deportation resulting from administrative proceedings under § 242(b) of the Act, 8 U.S.C. § 1252(b), shall be as stated in the Hobbs Act. See 5 U.S.C. § 1031-42. This vests the courts of appeals with exclusive jurisdiction from all final orders of deportation. Where the issues arise outside the scope of a § 242(b) proceeding, "the alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court." Cheng Fan Kwok v. I.N.S., 392 U.S. at 206, 210, 88 S.Ct. at 1970, 1973, 20 L.Ed.2d 1037 (1968). The difficulty has been determining what encompasses a final order of deportation. 14 The Supreme Court in Foti v. I.N.S., 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963) concluded that final orders of deportation included denials of suspension of deportation. The Court noted that it had been a consistent practice for a special hearing officer to pass upon the question of deportability and the application for discretionary relief in the same proceeding. The Court stated: 15 (I)t seems rather clear that all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals, such as orders denying voluntary departure pursuant to § 244(e) and orders denying the withholding of deportation under § 243(h), are likewise included within the ambit of the exclusive jurisdiction of the Courts of Appeals under § 106(a). 16 Id. at 229, 84 S.Ct. at 313. 17 In Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam) the Supreme Court reversed and remanded a case to the Ninth Circuit Court of Appeals directing that they consider a petition for review from a denial of a motion to reopen. 18 The most recent Supreme Court case on the subject is Cheng Fan Kwok, supra. There the court determined that § 106(a) does not confer jurisdiction on a Court of Appeals to review the denial of a stay of deportation where the order denying it was not entered in the course of a § 242(b) administrative hearing before a special inquiry officer. 19 The first issue on appeal in this case centers on whether any grounds exist for deporting petitioner. It goes to the heart of the issue before the Special Hearing Officer in the § 242(b) proceeding-can petitioner be deported for failing to attend the school he was admitted to attend? This is clearly an issue which this Court has jurisdiction to review. However, we find no merit to petitioner's argument that he was only required to have an intention to attend the school designated on his I-94 form at the time he was admitted, and that he was not required to actually attend such school. Section 241(a)(9) of the Act, 8 U.S.C. § 1251(a)(9), provides that any alien shall be deported who 20 was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 248, or to comply with the conditions of any such status .... 21 Section 101(a)(15)(F)(i) of the Act, 8 U.S.C. § 1101(a)(15)(F)(i), provides that a nonimmigrant alien includes: 22 an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States, particularly designated by him and approved by the Attorney General after consultation with the Office of Education of the United States, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student .... 23 These two statutes make it clear that one of the qualifications for being classified as a nonimmigrant alien student is attending an institution approved by the Attorney General, and that failure to comply with such condition of status will result in deportation. The BIA and Special Hearing Officer were clearly correct in finding the petitioner was deportable as charged. 24 The remainder of petitioner's contentions concern whether the District Director should have exercised his discretion and granted petitioner's request to transfer schools, whether the discretionary denial is reviewable by the immigration judge, BIA, or this Court, and if such decision is not reviewable, whether the regulations violate both petitioner's right to due process and the intent of Congress. This Court does not have jurisdiction of any of these issues under § 106(a) because they do not arise during the course of a § 242(b) proceeding. This conclusion is dictated by Cheng Fan Kwok, supra. 25 The procedures and facts in Cheng Fan Kwok and the case at bar are strikingly similar. While Cheng involved a request for a stay of deportation instead of a school transfer, it did involve a discretionary denial by the District Director from which no appeal could be taken. Petitioner in Cheng challenged the exercise of the Director's discretion and the constitutionality of the regulations. The Supreme Court found that the District Director's order denying a stay of deportation did not constitute a final order of deportation, stating: 26 A denial by a district director of a stay of deportation is not literally a "final order of deportation," nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242(b). Thus, the order in this case was issued more than three months after the entry of the final order of deportation, in proceedings entirely distinct from those conducted under § 242(b), by an officer other than the special inquiry officer who, as required by § 242(b), presided over the deportation proceeding. The order here did not involve the denial of a motion to reopen proceedings conducted under § 242(b), or to reconsider any final order of deportation. 27 Id. 392 U.S. at 212-13, 88 S.Ct. at 1974 (footnotes omitted). The Supreme Court affirmed the Third Circuit's dismissal of the petition. 28 The facts of this case are no different. The District Director's denial of petitioner's transfer request came in proceedings that were entirely separate and distinct from those conducted under § 242(b) by the special inquiry officer. Granted both proceedings arose out of the same fact situation, but the two proceedings themselves are separate and distinct. 29 We note that the Third Circuit was recently faced with a similar issue in Dastmalchi v. I.N.S., 660 F.2d 880 (3d Cir. 1981).2 They concluded that they did not have jurisdiction to consider attacks on the constitutionality of regulations implemented under the Immigration and Nationality Act, nor the denial of discretionary relief by the District Director. Id. at 890-91. But see Chadha v. I.N.S., 634 F.2d 408 (9th Cir. 1980).3 30 Petitioner urges us to accept pendent jurisdiction of the school transfer issues since his first issue was properly before us. The Supreme Court has expressly declined to decide whether the courts of appeal would have pendent jurisdiction in such an instance. See Cheng Fan Kwok, supra, 392 U.S. at 216 n.16, 88 S.Ct. at 1976 n.16; Foti, supra, 375 U.S. at 227 n.14, 84 S.Ct. at 313 n.14. We decline to accept pendent jurisdiction in this instance where there is obviously little merit to the only contention over which we have jurisdiction. To do otherwise would encourage frivolous appeals from § 242(b) proceedings with the hope that this court would address the real issues of concern. The Second Circuit has essentially reached the same result in Pang Kiu Fung v. I.N.S., 663 F.2d 417 (2d Cir. 1981) wherein it is stated: 31 If review of a denial of a stay could be achieved by affixing it to an appeal from an order denying a motion to reopen with so little merit as that advanced here, the rule set down in Cheng Fan Kwok could be too easily circumvented. 32 Id. at 419. 33 The order of the Bureau of Immigration Appeals is AFFIRMED. * District Judge of the District of Nebraska, sitting by designation 1 Record on appeal at 34 2 Dastmalchi, supra, involved three nonimmigrant alien students. Two of the students were charged with remaining in the country after their visas had expired; all three students had transferred schools without receiving approval. One of petitioners' contentions was that the I.N.S. should have overlooked these infractions and restored them to their status as students 3 In Chadha, supra, the court held that: the phrase "final orders" includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing. Id. at 412. From this basis, the court found it had jurisdiction to consider challenges to the constitutionality of the Immigration and Nationality Act. The statutory provision challenged was one which authorized either house of Congress to veto a suspension of deportation. Chadha is currently on appeal to the United States Supreme Court, which has postponed consideration on the question of jurisdiction, --- U.S. ----, 102 S.Ct. 87, 70 L.Ed.2d 80, and heard oral argument, 50, --- U.S. ----, 102 S.Ct. 629, 70 L.Ed.2d 611. Dastmalchi, supra, thoroughly discussed Chadha and found that "the Chadha court's interpretation of section 106(a) is fundamentally at odds with Cheng Fan Kwok." Dastmalchi, supra at 888. The I.N.S. in their brief in this court was unwilling to say that the result reached in Chadha was incorrect, even though the language was at odds with Cheng Fan Kwok. See I.N.S. brief at 19 n.6. They point out that the congressional veto of the suspension of deportation was related to the hearing before the special inquiry officer. The facts show that the special inquiry officer found that Chadha met the requirements for a suspension, the House of Representatives disapproved the suspension, and the deportation hearings were then reconvened before the special inquiry officer. The I.N.S. contends that these actions were all a part of the deportation proceeding. We express no opinion on this argument. We do believe that there is no persuasive reason for accepting jurisdiction of the constitutional issues in this particular case. Even if we error in this regard, it is doubtful that the final result of deportation would be any different in this case. Petitioner has not been denied due process in this case because the Immigration Judge, BIA or this court has no jurisdiction to review the Director's decision. As was noted by both the Supreme Court in Cheng Fan Kwok, supra, 392 U.S. at 210, 88 S.Ct. at 1973, and the special hearing officer in this case, record at 22, the petitioner was not foreclosed from seeking declaratory relief in the district court. Likewise, it is also doubtful that the regulation requiring permission to transfer would be found invalid.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 98-3243 ___________ Hugh Chalmers Motors, Inc.; * * Appellant; * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Toyota Motor Sales U.S.A., Inc.; * Gulf States Toyota, Inc.; * * Appellees. * ___________ Submitted: June 15, 1999 Filed: July 15, 1999 ___________ Before BOWMAN, HEANEY, and FAGG, Circuit Judges. ___________ HEANEY, Circuit Judge. Hugh Chalmers Motors, Inc., a former West Memphis auto dealer, brought action against Toyota Motor Sales, USA, Inc. (TMS) and its independently-owned regional distributor, Gulf States Toyota, Inc. (GST), alleging violation of various federal antitrust statutes based on an illegal conspiracy involving product tying, price discrimination, restraint of trade and monopolization, and violation of the Automobile Dealers Day in Court Act (ADDICA), 15 U.S.C. § 1221-1225, for threats and coercion in retaliation for an earlier state court action. The district court granted defendants’ motion for summary judgment on the ground that the antitrust claims were precluded by the statute of limitations and that the ADDICA claim was barred on both claim preclusion and statute of limitations grounds. We may affirm a district court's judgment on any basis supported by the record. See Porous Media Corp. v. Pall Corp., 173 F.3d 1109, 1116 (8th Cir. 1999). Though we disagree with the district court’s statute of limitations analysis, we conclude that appellant presented the district court with no genuine material fact supporting the existence of an antitrust conspiracy between TMS and GST and that summary judgment was thus appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling that appellant’s claim was barred by the statute of limitations, the district court determined that appellant’s antitrust cause of action accrued on the date that defendants first committed an act injuring appellant’s business. See Memorandum and Opinion, at 9-10 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)). While this statement of the law is generally correct, it is also true that in the context of a continuing violation, such as that alleged in this case, a plaintiff may bring suit on the basis of, and recover damages for, independent predicate acts occurring within four years of suit, regardless of when the initial injury occurred. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 180-81 (1997); Zenith Radio Corp., 401 U.S. at 338; Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 501 n.15 (1968); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1051 (5th Cir. 1982) (stating that an antitrust suit may be brought more than four years after events that initially gave rise to action where, among other grounds, there exists “continuing conspiracy or continuing violation”) (emphasis added). The antitrust violations alleged in this case did not stem from a “single act,” as in Kaiser Aluminum, 677 F.2d at 1052-53, but rather would, if established, constitute overt acts permitting recovery. See Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987) (defining “overt acts” as new and independent acts inflicting new and accumulating injury on antitrust plaintiff). -2-  Even though appellant would be entitled, on the basis of statute of limitations doctrine, to bring suit on the basis of a continuing violation, its case contains a more fundamental flaw. Each antitrust count in the complaint alleges an unlawful combination and conspiracy between defendants. However, the record presents no genuine issue of material fact establishing such combination or conspiracy. See Memorandum and Opinion, at 11 (finding, in analyzing question of whether continuing conspiracy exception to statute of limitations applied, that no conspiracy existed between TMS and GST). Rather, appellant merely asserted that there is strong evidence that defendants conspired with one another. Such conclusory allegations are insufficient to avoid summary judgment in Chalmers v. Toyota Motor Sales, USA, Inc., 935 S.W.2d 258 (Ark. 1996). See First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-90 (1968), construed by Anderson, 477 U.S. at 248-50.1 We thus affirm the grant of summary judgment as to the antitrust claims. Appellant also brought suit under ADDICA, 15 U.S.C. §§ 1221-1225, alleging that the various antitrust violations establish a per se violation of good faith as that term is defined at 15 U.S.C. § 1221(e). As an initial matter, we agree with the district court that the ADDICA claim is barred by the claim-preclusive effect of the earlier state court judgment. See Migra v. Warren City School Dist., 465 U.S. 75, 77 n.1, 81 (1984); 1 Though the facts as alleged may have supported an antitrust claim against GST alone, the complaint fails to propose any such a cause of action. Even under the minimal requisites of notice pleading, see Fed. R. Civ. P. 8(a); Independent Bus. Forms, Inc. v. A-M Graphics, Inc., 127 F.3d 698, 702 (8th Cir. 1997), Chalmers fails to set forth an independent allegation against GST. We have carefully examined the complaint and are unable to conclude that Chalmers has alleged that GST acting alone engaged in unlawful tying practices. Absent such an allegation, GST had no notice that Chalmers sought relief on such a theory. See Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir. 1989) (per curiam) (stating that “[w]hile all pleadings are to be construed to do substantial justice, see Fed. R. Civ. P. 8(f), the pleading must at a minimum be sufficient to give the defendant notice of the claim”) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)). -3- Gahr v. Trammel, 796 F.2d 1063, 1066 (8th Cir. 1986) (stating Arkansas law of claim preclusion). Appellant knew of the facts underlying this claim at the time it instituted state court action in 1993, see Chalmers, 935 S.W.2d at 259-60, and there is no authority for the proposition that federal district court is the exclusive forum for bringing ADDICA claims, see Tafflin v. Levitt, 493 U.S. 455, 459 (1990) (“‘[I]f exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.’”) (quoting Caflin v. Houseman, 93 U.S. 130, 136 (1876)). Nonetheless, appellant contends that it should be able to bring suit for alleged violations occurring within the three-year statute of limitations stated in 15 U.S.C. § 1223–i.e., alleged violations of ADDICA occurring after April 1993, the date the state court action was filed. Because appellant expressly tied its ADDICA count to the existence of an antitrust conspiracy, however, the failure of appellant’s antitrust claim compels the conclusion that defendants’ actions did not offend the “special, relatively narrow” definition of good faith contained in 15 U.S.C. § 1221(e). Sink v. Ford Motor Co., 549 F. Supp. 245, 249 (E.D. Mich. 1982); see also Hubbard Chevrolet Co. v. General Motors Corp., 873 F.2d 873, 875 (5th Cir. 1989). Accordingly, we also affirm the entry of summary judgment on the ADDICA count. The grant of summary judgment in favor of defendants is affirmed for the reasons stated herein. A true copy. Attest. CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -4- 

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 493 KA 15-00029 PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER STEPHEN DAWSON, ALSO KNOWN AS “SHOOTER STEVE,” DEFENDANT-APPELLANT. ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered December 3, 2014. The judgment convicted defendant, upon a jury verdict, of kidnapping in the first degree and robbery in the first degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of kidnapping in the first degree (Penal Law § 135.25 [2] [a]) and robbery in the first degree (§ 160.15 [4]). As we noted in the appeal by a codefendant, “[t]he charges arose from an incident in which the victim was held captive, pistol whipped, and then repeatedly humiliated, including being forced to lick his own blood from a boot of one of the perpetrators. The perpetrators made a video recording of parts of the incident and posted the recording on social media” (People v Woods, 142 AD3d 1356, 1357). Contrary to defendant’s contention, Supreme Court properly refused to suppress his statements to the police. The evidence from the suppression hearing established that police officers were searching for the victim after viewing the video recording of him being beaten, and his family members reported to the police that defendant, who was riding a bicycle in a certain location, knew where the victim was being detained. Based on that information, an officer stopped defendant, and said that defendant needed to speak to a detective who was on his way to that location. Defendant immediately said that he could find the missing person on his own if the officer would let him go. Shortly thereafter, a detective arrived and told defendant that they were searching for the victim, and the detective questioned defendant about the victim’s whereabouts. Defendant  -2- 493 KA 15-00029 indicated that he would have to walk by the house in which the victim was detained so he could show the officers where it was but, after they indicated that he would not be released, he agreed to allow the initial officer to drive him in the patrol vehicle. As they drove, he pointed out a house and said that the victim was in it. As the People correctly concede, defendant was in custody at the time that he spoke to the officers (see generally People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851) and, “[a]s a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings” (People v Doll, 21 NY3d 665, 670, rearg denied 22 NY3d 1053, cert denied ___ US ___, 134 S Ct 1552, affg 98 AD3d 356). Nevertheless, we agree with the court that the initial statement, i.e., the one defendant made before the detective arrived, was spontaneous, inasmuch as it was “in no way the product of an interrogation environment [or] the result of express questioning or its functional equivalent” (People v Harris, 57 NY2d 335, 342, cert denied 460 US 1047 [internal quotation marks omitted]; see People v Rivers, 56 NY2d 476, 480, rearg denied 57 NY2d 775; People v Wearen, 19 AD3d 1133, 1134, lv denied 5 NY3d 834). Thus, the court properly refused to suppress that statement. Furthermore, the court also properly refused to suppress defendant’s next set of statements, in which he identified the house in which the victim was being held. At that time, the police were aware that the victim was being held and were seeking information from defendant regarding the victim’s location in order to rescue him. “Given the legitimate concern of the police for the safety of the victim, the questioning of the defendant regarding the victim’s . . . whereabouts, without first advising him of his Miranda rights . . . , was lawful” (People v Boyd, 3 AD3d 535, 536, lv denied 2 NY3d 737; see Doll, 98 AD3d at 364; People v Zalevsky, 82 AD3d 1136, 1138, lv denied 19 NY3d 978, reconsideration denied 19 NY3d 1106). We reject defendant’s contention that the evidence is not legally sufficient to support the conviction. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), and affording them the benefit of every favorable inference (see People v Bleakley, 69 NY2d 490, 495), we conclude that the evidence is legally sufficient to establish the elements of the crimes of which defendant was convicted (see id.). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Finally, the sentence is not unduly harsh or severe. Entered: April 28, 2017 Frances E. Cafarell Clerk of the Court 

343 So.2d 557 (1977) Albert N. EVANS v. STATE. 3 Div. 533. Court of Criminal Appeals of Alabama. March 8, 1977. *558 Elno A. Smith, Jr., Montgomery, for appellant. William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State. LEIGH M. CLARK, Supernumerary Circuit Judge. Appellant was convicted under an indictment charging him with the embezzlement of "money and checks, or money or checks to the amount of about $5,720 and of that value." He was sentenced to three years imprisonment in the penitentiary. His principal contention on appeal is that the evidence is not sufficient to support the verdict and that the court should have granted defendant's motion to exclude the State's evidence at the conclusion of the State's case. The transcript presents a tangled mass of testimony, so confusing that when the State first rested and defendant moved to exclude the testimony, the trial court recognized the impenetrable condition of the thicket and allowed the State to reopen its case and clarify some of the evidence that should have been clear when introduced. One particular item was as to the name of the legal entity that in the indictment is averred to have been the correlate of defendant as its "officer, agent, clerk or employee." Said correlated is named in the indictment as "C & M Chassis Products, Inc., a Corporation," but until the case was reopened, there was hopeless confusion as to the name. After the case was reopened, it was explained by competent testimony that the particular legal entity had changed its previous name, even though such previous name continued to be used on its printed checks, and at the time of the alleged embezzlement the correct name was as stated in the indictment. Notwithstanding the confusing state of the evidence, we are able by laborious reading to determine that there was substantial testimony to the effect that on October 23, 1975, defendant drew a check on a bank deposit of "C & M Chassis Products, Inc., a Corporation," the employer of defendant, payable to defendant, which defendant deposited in a bank to his credit and used the proceeds thereof, the check being in the sum of $5,720. According to the evidence, appellant was the "plant controller" of C & M Chassis Products, who, with others, had authority to issue checks and sign them on behalf of such company. According to the evidence, the money, the said sum of $5,720, was not used in company business; it was appropriated by defendant to his own personal use. There was some evidence that the company would at times lend money to its employees, but, as stated by one of the witnesses, whenever an employee obtained money from the company, whenever anyone authorized to do so issued and signed a check for the company, a "back-up" was required, that is, a bookkeeping entry showing justification for the transfer of funds from the bank account of the company was necessary. Also according to the evidence, defendant, when confronted by other employees of the company with the fact of his withdrawal of the money, admitted that he did so and that he used the funds for his personal benefit. All of this testimony was presented prior to the closing of the case by the State after it had been allowed to reopen. After the State rested, defendant took the stand and admitted that he had thus withdrawn money from the company and deposited it to his account and appropriated it to his personal use. In attempting to justify his conduct, he testified that he considered he had authority from the company to borrow money as he needed it and that he intended to reimburse the company for the money he had converted to his own use. We have no difficulty in concluding that the evidence, even before defendant himself testified, was sufficient basis for a finding that defendant converted to his own use the sum of $5,720 with the felonious or fraudulent intent necessary to constitute embezzlement under Code 1940, Tit. 14, § 126, for which he was indicted and tried. *559 Appellant ingenuously raises the age-old question, ofttimes baffling, whether particular felonious or fraudulent conduct as to personal property constitutes embezzlement on the one hand or some other crime on the other, or perhaps no crime at all. Relying upon Gary v. State, 160 Ala. 107, 49 So. 678, appellant urges that in the issuance and signing of the particular check in this case for the benefit of defendant, the crime, if any, was forgery or some other crime other than embezzlement, as was held in Gray as to one of the checks considered in that case which defendant had issued and signed without authority in the name of another. However, unlike the facts in Gray, appellant in the case now before us had authority from his employer to issue and sign checks on his employer's bank account. There was no forgery. We note that what was held in Gray as to the particular point has been delimited as follows: "Petitioner contends that a person cannot embezzle a check in which he is the specified payee and cites Martin v. State, 37 Ala.App. 197, 65 So.2d 540. This case and Gray v. State, 160 Ala. 107, 49 So. 678, held only that checks being payable to accused and cashed by him are not sufficient facts to constitute embezzlement of checks. The cases did not indicate that it was impossible to embezzle such checks. . ." (Emphasis supplied) Christison v. State, 273 Ala. 564, 566, 142 So.2d 676, 678, aff'g, 41 Ala.App. 192, 142 So.2d 666. We need not be concerned whether there was an embezzlement of "checks" as charged disjunctively in the indictment. The crime was committed if there was an embezzlement of money, as charged in the disjunctive also. A more controversial question is whether the money, deposited in a bank and transferred by defendant to his use through the usual bank procedure and channels, is to be considered as having been in his possession by virtue of his office, agency, or employment as alleged in the indictment pursuant to Tit. 14, § 126 of the Code. The opinion in Garner v. State, 229 Ala. 600, 158 So. 546, cert. den., 26 Ala.App. 246, 158 So. 543, is not decisive of the question, for therein was considered a different Code Section (now Tit. 14, § 127) involving embezzlement of public funds not requiring possession by defendant. Such being true, the Supreme Court of Alabama did not find it necessary to pass upon the question whether, under a statute requiring possession, embezzlement could occur if the funds were not in defendant's "physical possession." Such question was decided in State v. Doucet, 204 La. 79, 14 So.2d 917. There, public funds were involved and the statute, like the Alabama statute on the subject, did not expressly require possession by the alleged embezzler; but the indictment charged that he had possession, and the Supreme Court of Louisiana held that the "Sheriff's Salary Fund," deposited with a bank, was in the legal possession of the sheriff, and he could be prosecuted for embezzlement therefrom. "Money, the disbursement of which is entrusted to the person, is, for the purpose of the statute punishing embezzlement, in his possession, even though the actual custody and control of the money is in another. "Although there is authority to the contrary, it has been held that an accused who draws checks payable to his own creditor against his principal's or employer's bank account had sufficient possession of the funds to support a conviction for embezzlement. The courts which take this view base it upon the fact that the accused has control, as in trust, of his employer's or principal's funds while they are mixed with the bank's general fund." 26 Am.Jur.2d, Embezzlement, § 18. The check drawn on the bank for the money which the indictment charges the defendant embezzled was not made payable to a creditor of defendant. It was made payable to defendant himself and deposited by defendant to defendant's personal account in a bank. Thereafter he drew on said funds for his own personal use. As noted in the quotation from 26 Am.Jur.2d, Embezzlement § 18, the cleavage of authority is not as to drawing on another's *560 account by checks payable to one's self, but only as to checks payable to creditors of the drawer. Even as to the latter, the majority view is that the funds so involved and handled are subject to embezzlement. Anno.: 88 A.L.R.2d 688. The leading case supporting the minority view is State v. Tauscher, 227 Or. 1, 360 P.2d 764, 88 A.L.R.2d 674. The conclusion reached in Tauscher was because of the particular language of the embezzlement statute under which defendant was tried. The particular embezzlement statute was to the effect that "only that property which is the subject of larceny can be the subject of embezzlement." The court held that as to larceny, as we held in Latham v. State, 56 Ala.App. 234, 320 So.2d 747, aff., 294 Ala. 685, 320 So.2d 760, and Latham v. State, 57 Ala.App. 107, 326 So.2d 299, property that cannot be manucaptured, which is not in such form that it can be trespassed upon or to, cannot be the subject of larceny. Not so as to the crime of embezzlement, which is not afflicted with the restrictions of trespass as to the physical form of property or the methods by which an unlawful invasion of another's interest therein can be accomplished. Many of the cases supporting the majority view are cited in the following from State v. Moreno, 156 Conn. 233, 240 A.2d 871: "The defendant also urges that, since funds deposited in a commercial checking account create a creditor-debtor relationship between the bank and the depositor, such funds could not be moneys in the care and custody of the defendant. `Although there is authority to the contrary, it has been held that an accused who draws checks payable to his own creditor [or to third persons] against his principal's or employer's bank account has sufficient possession of the funds to support a conviction for embezzlement. The courts which take this view base it upon the fact that the accused has control, as in trust, of his employer's or principal's funds while they are mixed with the bank's general fund.' 26 Am.Jur.2d 569, Embezzlement, § 18; see Commonwealth v. Shepard, 83 Mass. (1 Allen) 575, 586; State v. Colson, 325 Mo. 510, 516, 30 S.W.2d 59; Territory v. Hale, 13 N.M. 181, 189, 81 P. 583. `Embezzlement convictions for drawing checks payable to the accused's own creditor [or to third persons] against the principal's or employer's bank account have been upheld in a majority of cases, notwithstanding the question of the accused's possession of the embezzled funds.' Note, 88 A.L.R.2d 688, 689; see People v. Schmidt, 147 Cal. App.2d 222, 229, 305 P.2d 215; State v. Lockie, 43 Idaho 580, 587, 253 P. 618; State v. Johnson, 109 Kan. 239, 241, 199 P. 104; State v. Bussa, 176 La. 87, 101, 145 So. 276; Simmons v. State, 165 Miss. 732, 743, 141 So. 288; State v. Lomax, 322 Mo. 86, 92, 14 S.W.2d 436; State v. Krug, 12 Wash. 288, 308, 41 P. 126." The majority view as to funds transferred or checks payable to the drawer's creditor would apply a fortiori to checks payable to the drawee himself. We are persuaded that it should be so applied in this case. The court was not in error in refusing to grant defendant's motion to exclude the evidence either at the close of the State's case or at the close of the evidence in its entirety. Appellant complains further of the admission in evidence of other crimes, the issuance by defendant of other checks on his employer's bank account payable to defendant for his own personal use. In some of these instances, there was no objection by defendant, and in some of them the evidence was offered by defendant. At any rate, the evidence was admissible for the purpose of showing a fraudulent intent. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. den., 292 Ala. 743, 294 So.2d 462; Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Esdale v. State, 37 Ala.App. 48, 68 So.2d 512. The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby *561 adopted as that of the Court. The judgment of the trial court is hereby AFFIRMED. All Judges concur.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 99-1110 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Charles L. Pruitt, * * [UNPUBLISHED] Appellant. * ___________ Submitted: May 11, 1999 Filed: July 19, 1999 ___________ Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and WATERS,1 District Judge. ___________ PER CURIAM. A jury convicted Charles Pruitt on two counts of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), § 924(a)(2), and one count of knowingly possessing a firearm with an obliterated serial number that had been transported in interstate or foreign commerce, see 18 U.S.C. § 922(k), § 924(a)(1)(B). Mr. Pruitt 1 The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas, sitting by designation. moved for a judgment of acquittal on the third count, and the trial court2 denied the motion. Mr. Pruitt appeals from this ruling and we affirm. Mr. Pruitt's only contention on appeal is that there was insufficient evidence for the jury to find that he knew that the serial number had been removed from the firearm that he possessed, as required for conviction on the relevant count. See United States v. Haynes, 16 F.3d 29, 33-34 (2nd Cir. 1994), and United States v. Hooker, 997 F.2d 67, 72 (5th Cir. 1993). In reviewing the sufficiency of the evidence for a conviction, we consider the evidence in the light most favorable to the verdict and draw all reasonable inferences in favor of the government. See United States v. Davis, 154 F.3d 772, 786 (8th Cir. 1998), cert. denied, 119 S. Ct. 1072, 1078, 1090 (1999). We will overturn a verdict only if the evidence is such that a reasonable juror has to have a reasonable doubt about the existence of at least one of the essential elements of the crime charged. See United States v. Allery, 139 F.3d 609, 611 (8th Cir. 1998), cert. denied, 118 S. Ct. 2389 (1998). In this case, there was ample evidence from which a reasonable jury could conclude that Mr. Pruitt knew that the serial number on his gun had been obliterated. First, Steven Guyton testified that Mr. Pruitt had used the same or a similar gun, six days before Mr. Pruitt's arrest, to shoot Mr. Guyton in the head and legs. Mr. Guyton further testified that during that struggle, Mr. Pruitt dropped the gun and it came open, spilling its bullets and empty shell casings. A firearms examiner for the city of St. Louis identified those bullets and shells, which police had retrieved from the scene of Mr. Guyton's shooting, as having been fired from the gun found in Mr. Pruitt's possession at his arrest. The jury could thus reasonably conclude that Mr. Pruitt had possessed the gun in question throughout the six days between the shooting and his arrest. 2 The Honorable Jean C. Hamilton, Chief United States District Judge for the Eastern District of Missouri. -2-  Second, there was evidence to suggest that Mr. Pruitt had occasion to examine the gun closely during the six days before he was arrested. Witnesses testified that, at the time the gun was seized, the cylinder had been secured with tape to keep it from falling out and that the gun was again fully loaded. The jury could reasonably conclude that Mr. Pruitt himself had repaired and loaded the gun and therefore had had an opportunity to observe its condition. Finally, the firearms examiner testified that not only the serial number but also the markings identifying the make and model number of the gun had been ground off so thoroughly that they could not be restored by an acid etching process. The jury could thus reasonably conclude that the alterations were so obvious that they could not conceivably have escaped the attention of someone who had possessed and repaired the weapon. For the reasons stated above, we affirm the judgment of the trial court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3- 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 15 2007 No. 06-16327 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 05-00179-CV-BH-B BRENDA L. HARRISON, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Alabama _________________________ (June 15, 2007) Before DUBINA, BLACK and CARNES, Circuit Judges. PER CURIAM:  Brenda Harrison appeals the district court’s order affirming the Commissioner’s denial of her application for disability and disability insurance benefits, 42 U.S.C. § 405(g). Harrison raises two issues on appeal. We address each issue in turn. I. Harrison first asserts the Administrative Law Judge (ALJ) failed to apply the correct standard in evaluating the testimony of her husband. Harrison notes the following portion of the ALJ’s opinion: Mr. Harrison’s statements regarding the severity of his wife’s pain and her difficulties relative to that pain appear to be based solely on his wife’s statements to him inasmuch as he could not know the true severity of someone else’s pain and he failed to provide specific examples of instances or occurrences substantiating his otherwise conclusory statements. Harrison contends the ALJ misstated the evidence by stating that Harrison’s husband did not provide examples to substantiate his statements. Additionally, Harrison argues the ALJ did not cite any authority supporting his standard for evaluating witness testimony. Harrison asserts the ALJ violated 20 C.F.R. §§ 404.1512 and 1513, Social Security Ruling 96-7p, and Social Security Ruling 06-03p. The ALJ is required to apply a three-part test in evaluating a claimant’s subjective testimony of pain. The pain standard requires: 2  (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). “If the ALJ decides not to credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons for doing so.” Id. at 1561-62. When an ALJ explicitly finds a claimant’s testimony is not credible, the credibility determination as to a spouse may be implied by that rejection. See Tieniber v. Heckler, 720 F.2d 1251, 1254-55 (11th Cir. 1983) (explicit credibility finding as to spouse not required if implicit rejection of that testimony is obvious); Allen v. Schweiker, 642 F.2d 799, 801 (5th Cir. April 15, 1981) (credibility determination as to spouse was clearly implied in explicit ruling on claimant’s testimony).1 Statements by spouses may be considered as other evidence of a claimant’s impairment pursuant to 20 C.F.R. §§ 404.1512 and 1513. Social Security Ruling 96-7p provides that an assessment of the credibility of an individual’s statements about pain or other symptoms must be based on all of the evidence in the case record, including objective medical evidence, the individual’s statements, 1 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this Court adopted as binding precedent decisions of the Fifth Circuit rendered prior to October 1, 1981. 3 statements by treating or examining physicians, and other information. Social Security Ruling 06-03p provides the Social Security Administration will consider testimony from non-medical sources, such as spouses. That ruling also states Although there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions from these “other sources,” or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case. S.S.R. 06-03p. The ALJ explicitly stated he found Harrison’s testimony “not entirely credible.” He supported that conclusion by noting: (1) the lack of objective evidence to support her claims; (2) her activities, including maintaining a household for herself and two small children, and having the ability to do yard work, drive an automobile, shop, and care for her own personal needs; and (3) “[t]he infrequent and often total lack of continuous medical treatment.” Harrison does not challenge the ALJ’s rejection of her subjective complaints of pain. While Harrison questions the manner in which the ALJ rejected her husband’s testimony, “there was a clear, though perhaps implicit, rejection of the subjective testimony as to the disabling nature of [Harrison’s] pain.” See Allen, 642 F.2d at 801. It is true there were inconsistencies in the manner in which the 4 ALJ rejected Mr. Harrison’s testimony. The ALJ stated Mr. Harrison had not given examples substantiating his statements while noting Mr. Harrison’s testimony that he observed Harrison having difficulty standing and walking. Harrison also points to other specific examples given by Mr. Harrison. It is also true, however, that the ALJ in this case, unlike the one in Tieniber, provided a reason for rejecting the spouse’s testimony. Even assuming, arguendo, the ALJ erred in making the inconsistent statement and in applying the standard he applied in evaluating Mr. Harrison’s testimony, that error was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (finding ALJ’s mischaracterization of claimant’s past relevant work was harmless error because such characterization was irrelevant where the ALJ found no severe impairment). The ALJ found the subjective testimony regarding the disabling nature of Harrison’s pain was not entirely credible, and he gave reasons to support that determination. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997) (stating we review the Commissioner’s decision to determine if it is supported by substantial evidence and based on proper legal standards). Thus, even if there was error, it did not affect the ALJ’s final determination in this case. II. 5  Harrison next contends the ALJ erred by finding a different residual functional capacity in 2004 than he found in 2001, when he was considering the same medical records and employing the same reasoning. According to Harrison, any determination where there has been a decrease in the severity of medical symptoms must be based on improvements in the symptoms, signs, and/or laboratory findings associated with the impairments in order to meet the requirements of 20 C.F.R. § 404.1594. Harrison asserts the ALJ gave no articulated explanation regarding how he arrived at each residual functional capacity. Social Security Administration regulations provide: [m]edical improvement is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s). 20 C.F.R. § 404.1594(b)(1) (emphasis added). The 2001 decision was vacated, and thus, the ALJ was not bound by that decision. Additionally, Harrison was never classified as disabled, so the ALJ was not required to show medical improvement under 20 C.F.R. § 404.1594 because that regulation refers to improvements that have taken place since “the most recent favorable decision that you were disabled or continued to be disabled.” Moreover, 6 the ALJ’s determination that Harrison could perform sedentary work was supported by the evidence. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567. A few examples of the evidence supporting the ALJ’s conclusion are: (1) Harrison reported that she was able to drive and take care of her own personal needs; (2) x-rays of Harrison’s knee and lumbar spine taken in 1989 were normal; and (3) Harrison admitted that she was not undergoing back treatment at the time of the 2001 hearing and that it had been approximately a year and a half to two years since she last had treatment for her back. The ALJ clearly articulated the reasoning behind the determination. The ALJ noted: during the relevant period under consideration, the claimant possessed the physical capacities and limitations to sit for two hours at a time, up to a maximum of six hours in an eight hour workday, stand and/or walk for a total of two hours in an eight hour workday, and frequently lift and/or carry 10 pounds, with no restriction in her ability to use her hands and arms for simple grasping, fine manipulation, pushing and pulling or frequent reaching. The ALJ added he “assigned determinative evidentiary weight to the medical 7 findings and opinions expressed by the claimant’s treating military physicians, Dr. C. Lipton and Dr. Michael LeCompte, as well as the evidence contained in the treatment records from the various Navy and Army clinics and hospitals.” The ALJ’s residual functional capacity determination was supported by substantial evidence, and the ALJ clearly articulated the manner in which he arrived at that determination. AFFIRMED. 8 

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 39276 STATE OF IDAHO, ) 2012 Unpublished Opinion No. 575 ) Plaintiff-Respondent, ) Filed: August 3, 2012 ) v. ) Stephen W. Kenyon, Clerk ) JANET PALMA, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY ) Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge. Order denying motion to modify judgment of conviction, vacated, and case remanded. Kohler Law Offices, P.A.; Jay A. Kohler, Idaho Falls, for appellant. Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. ________________________________________________ LANSING, Judge Janet Palma appeals from an order denying her motion to amend her judgment of conviction from a felony to a misdemeanor. We vacate the district court’s order and remand for further proceedings. I. BACKGROUND Palma pleaded guilty to one count of forgery and was sentenced on November 18, 1996, to a unified term of three years’ imprisonment with one year fixed. The district court suspended the sentence and placed Palma on probation. Under the terms of her probation, Palma was required to complete fifty hours of community service and graduate from high school or obtain a GED in addition to various other requirements. Prior to the expiration of her probation, Palma was permitted to have her supervision transferred to the state of Arizona via an interstate compact. 1  On November 13, 1999, a probation officer with the Idaho Department of Correction (IDOC) wrote a letter to the court indicating that Palma had completed some, but not all, of the terms of her probation. Because the IDOC anticipated that the “expense of violating Ms. Palma and attempting to return her to the state of Idaho would no doubt be greater than the completion of a GED, and Community Service,” it recommended that Palma “be granted an unsatisfactory discharge from probation.” On December 2, the district court entered a discharge order stating that Palma “has unsatisfactorily complied with all of the terms and conditions of her said probation; and that she is now entitled to be discharged and fully released therefrom.” 1 In May 2011, Palma filed a motion requesting an amendment of the judgment of conviction from a felony to a misdemeanor. 2 The court denied Palma’s motion after concluding that “Palma’s case has already seen the utilization of Idaho Code Section 19-2604(1), albeit by motion of the State,” and that her “failure to appeal the unsatisfactory discharge in the Discharge Order waived her current attempt to amend the Judgment by means of Idaho Code § 19- 2604(1).” Palma appeals and asserts that the district court erred by concluding that Palma waived her ability to seek relief under Section 19-2604. II. ANALYSIS Idaho Code Section 19-2604(1) currently provides: (1) If sentence has been imposed but suspended, or if sentence has been withheld, upon application of the defendant and upon satisfactory showing that: (a) The court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of probation .... the court may, if convinced by the showing made that there is no longer cause for continuing the period of probation, and if it be compatible with the public interest . . . amend the judgment of conviction from a term in the custody of the state board of correction to “confinement in a penal facility” for the number of days served prior to suspension, and the amended judgment may be deemed to be a misdemeanor conviction. 1 Palma contends that she never received notice of the discharge order. 2 Palma erroneously requested the relief pursuant to Idaho Code Sections 19-2605(2) and 19-2604(2). However, the State conceded that the court had authority and discretion to grant the relief Palma requested under Idaho Code Section 19-2604(1). 2  Whether a defendant is entitled to relief under Idaho Code Section 19-2604 rests within the discretion of the district court. State v. Mowrey, 134 Idaho 751, 753, 9 P.3d 1217, 1219 (2000); State v. Hanes, 137 Idaho 40, 41, 44 P.3d 295, 296 (Ct. App. 2002); Housley v. State, 119 Idaho 885, 887, 811 P.2d 495, 497 (Ct. App. 1991). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). We conclude that the district court here did not act consistently with applicable legal standards. The issue in this appeal is whether Palma’s “unsatisfactory” discharge from probation or her failure to appeal the discharge order precluded her from seeking an amended judgment under Idaho Code Section 19-2604(1). The State concedes that the discharge order, made pursuant to the IDOC’s request for an unsatisfactory discharge, “had no bearing on whether Palma could request amendment of her judgment” from a felony to a misdemeanor. The State also concedes that the district court erred by concluding that Palma waived her right to seek relief under Section 2604(1) by not appealing the discharge order. We agree with both of the State’s concessions. It appears that the district court treated the 1999 discharge order as a finding of a probation violation. In doing so, the district court erred. The discharge order does not identify terms or conditions, if any, that Palma allegedly violated. Instead, it ambiguously states that Palma “has unsatisfactorily complied with all the terms and conditions of her said probation; and that she is now entitled to be discharged and fully released therefrom.” More importantly, the court’s comment that Palma had unsatisfactorily complied with the terms of her probation was made ex parte, based solely on the probation officer’s unsworn letter, and not as part of formal proceedings in which Palma had an opportunity to participate or contest the allegations. The State made no attempt to prove a probation violation, preferring instead to avoid the cost of formal probation violation proceedings, so there was no actual evidence presented upon which a finding could have been based. Because there was no formal determination of a probation 3 violation, the unappealed order does not preclude relief under Idaho Code Section 19-2604 for Palma. 3 The discharge order also did not constitute a prior utilization of Idaho Code Section 19- 2604(1) in this case, for it did not address the type of relief contemplated by that statute. Section 19-2604(1) provides an avenue for relief if “sentence has been imposed but suspended, or if sentence has been withheld, upon application of the defendant.” I.C. § 19-2604(1) (emphasis added). The 1999 order of discharge was not entered “upon application of the defendant,” and was not based upon invocation of Section 19-2604(1). Our opinion that Palma did not waive the right to seek relief does not intimate any view as to whether she should be granted the requested relief. In making that determination, the district court must consider the factors set forth in the applicable statute, including whether an amended judgment would be compatible with the public interest. Palma will bear the burden to show that relief should be granted. 4 Hanes, 137 Idaho at 42, 44 P.3d at 297. For the foregoing reasons, we vacate the court’s order and remand for further proceedings. Chief Judge GRATTON and Judge MELANSON CONCUR. 3 Because we conclude that failure to appeal from the discharge order did not waive Palma’s right to request relief, we do not address her assertion that she was unable to appeal the order as a result of lack of notice. 4 The State suggests that the current version of Idaho Code Section 19-2604(1) does not apply to Palma’s motion. That is an issue to be addressed by the district court on remand. We note that when the district court discharged Palma from probation in 1999, Section 19-2604(1) permitted setting aside a judgment of conviction if several conditions were met, including that “the defendant has at all times complied with the terms and conditions upon which he was placed on probation.” I.C. § 19-2604(1) (1997). That statute was amended, effective July 1, 2011, to permit a district court to either set aside or amend a judgment of conviction if several conditions are satisfied, including a showing that “The court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of probation,” 2011 Idaho Sess. Laws, ch. 187, § 1 at 537. Thus, only the amended statute permits a court to amend the judgment, as Palma requested, and it establishes a more lenient standard for relief. 4 

139 S.E.2d 199 (1964) 263 N.C. 226 Betty Jo Allen BLACK, by her Next Friend, H. R. Allen, v. CLARK'S GREENSBORO, INC. No. 610. Supreme Court of North Carolina. December 16, 1964. *200 E. L. Alston, Jr., Greensboro, for plaintiff appellant. Sapp & Sapp, by Armistead W. Sapp, Jr., Greensboro, for defendant appellee. HIGGINS, Justice. Immediately after the incident in the parking lot, the plaintiff went to the head, first of the Sports Department, then to the head of the Cosmetics Department in the defendant's store. Thereafter, she went *201 to the manager's office, who at the time was in conference with the man who had displayed the badge in the parking lot. The manager showed familiarity with what had taken place. "I explained to the manager the way the two men came out to the car and asked to see our pocketbooks. * * * he (the manager) told me they had to have precautions like that. I told him I knew that; I was working at Sears at the time. * * * but I didn't understand why they had to go about it the way and in the manner in which they did." The evidence, while insufficient to identify the man with the badge as a public officer, nevertheless is sufficient to warrant the finding that he was acting as the defendant's agent and within the scope of his employment. Under such circumstances, the principal is responsible for the agent's tort. Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817. We must concede the evidence was insufficient to warrant the plaintiff's arrest. If the man with the badge (type not shown) and his companion actually arrested and imprisoned the plaintiff, such arrest was without probable cause and the plaintiff's restraint was unlawful. "`False imprisonment is the illegal restraint of the person of any one against his will.' Ashe, J., in State v. Lunsford, 81 N.C. 528. It generally includes an assault and battery, and always, at least, a technical assault. State v. Reavis, 113 N.C. 677, 18 S.E. 388. Involuntary restraint and its unlawfulness are the two essential elements of the offense. Riley v. Stone [174 N.C. 588, 94 S.E. 434], supra; 25 C.J. 443; 11 R.C.L. 791. Where no force or violence is actually used, the submission must be to a reasonably apprehended force. Powell v. [Champion] Fiber Co., supra (150 N.C. 12, 63 S.E. 150)." Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817. Restraint must be lawful, or it must be consented to, otherwise it is unlawful. Hales v. McCrory-McLellan Corp., 260 N.C. 568, 133 S.E.2d 225. "It generally includes an assault and battery, and always, at least, a technical assault.' Hoffman v. Clinic Hospital, 213 N.C. 669, 670, 197 S.E. 161, 162. `A false arrest is one means of committing a false imprisonment, * * *' 35 C.J.S. False Imprisonment § 2, p. 502." Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407. "Force is essential only in the sense of imposing restraint. * * * The essence of personal coercion is the effect of the alleged wrongful conduct on the will of plaintiff. There is no legal wrong unless the detention was involuntary. False imprisonment may be committed by words alone, or by acts alone, or by both; it is not necessary that the individual be actually confined or assaulted, or even that he should be touched. 19 Cyc., pp. 319 and 323. Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. * * * The essential thing is the restraint of the person. This may be caused by threats, as well as by actual force, and the threats may be by conduct or by words. If the words or conduct are such as to induce a reasonable apprehension of force, and the means of coercion are at hand, a person may be as effectually restrained and deprived of liberty as by prison bars. * * *" Hales v. McCrory-McLellan Corp., supra. The plaintiff's circumstances and conduct indicate she was without fear the defendant's agents would find any articles in her pocketbook for which she had not paid. She freely passed the pocketbook to the man with the badge and at his request freely opened it, permitted the examination, and removed for his inspection the bracelet and explained where and when she bought it. She knew the agent would not find any incriminating evidence against her. She had nothing to fear, and, hence, she was not disturbed by the search. She was disturbed, however, by the implication *202 that the defendant's agents suspected her of shoplifting. Her conduct bears out this appraisal. After the officers completed the search, the plaintiff and her friends returned immediately to the store, plaintiff interviewed, first, the manager of the sports department, then the manager of the cosmetics department, and immediately thereafter called on the manager in his office. Under the circumstances here disclosed, there is no sufficient evidence to warrant a finding that the plaintiff was under arrest or was imprisoned. The plaintiff was a passenger in her friend's vehicle. All she did, or was requested to do, was to open her pocketbook and submit it and the bracelet for inspection. The evidence does not disclose that she objected to the examination, but complied willingly. The judgment of nonsuit is Affirmed. PARKER, J., dissents.

510 U.S. 1139 Surfacev.United States. No. 93-7529. Supreme Court of United States. February 22, 1994. 1 Appeal from the C. A. 4th Cir. 2 Certiorari denied. Reported below: 8 F. 3d 822.

15 N.Y.3d 759 (2010) 933 N.E.2d 207 906 N.Y.S.2d 808 In the Matter of CAPITAL NEWSPAPERS DIVISION OF THE HEARST CORPORATION et al., Appellants, v. CITY OF ALBANY et al., Respondents. No. 126 Court of Appeals of New York. Argued June 1, 2010. Decided July 1, 2010. *760 Office of General Counsel, Hearst Corporation, New York City (Jonathan R. Donnellan, Eve B. Burton and Eva M. Saketkoo), for appellants. John J. Reilly, Corporation Counsel, Albany (Jeffery V. Jamison of counsel), for City of Albany, respondent. Office of General Counsel, New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, Albany *761 (Matthew P. Ryan and Ennio J. Corsi, of counsel), for Albany Police Officers Union, Local 2841 of New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, respondent. David E. McCraw, New York City, Jacob P. Goldstein, Sabin, Bermant & Gould LLP (Patricia A. Clark of counsel), Karen Kaiser, Assistant General Counsel, Associated Press, Anne B. Carroll, Deputy General Counsel, Dailey News, L.P., Barbara W. Wall, Associate General Counsel, Gannett Co., Inc., McLean, Virginia, Beth R. Lobel, New York City, Michael G. Cameron, Assistant General Counsel, News America Incorporated, for Advance Publications, Inc., and others, amici curiae. Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum. OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed. Respondent City of Albany failed to meet its burden of demonstrating that the gun tags are "personnel records" under Civil Rights Law § 50-a. The Police Chief's conclusory affidavit did not establish that the documents were "used to evaluate performance toward continued employment or promotion," as required by that statute (Civil Rights Law § 50-a [1]). Consequently, the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure under the Freedom of Information Law (FOIL) (see Public Officers Law § 87 [2]). Petitioners' claim that Supreme Court abused its discretion in denying counsel fees is without merit. Order modified, etc.

6 So.3d 770 (2009) STATE of Louisiana v. Jarvis E. BLACKBURN. No. 2009-KK-0255. Supreme Court of Louisiana. April 3, 2009. Denied.

987 So.2d 219 (2008) Dwayne DEVOID, Appellant, v. STATE of Florida, Appellee. No. 5D08-57. District Court of Appeal of Florida, Fifth District. July 25, 2008. *220 James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. Dwayne Devoid[1] seeks review of the summary denial of his "Motion for Post Conviction Relief/Motion to Enforce Plea Agreement." The trial court denied relief even though it acknowledged that Mr. Devoid's position was meritorious. We reverse in order to allow the trial court to put into effect the original plea agreement between Mr. Devoid and the State. On November 7, 2006, Mr. Devoid entered a written plea agreement in which he agreed to plead guilty to a violation of probation, and the State agreed to a sentence of one year and one day, with no credit for any new gain time to which Mr. Devoid would be entitled. It is evident from a review of the sentencing transcript and the judgment and sentence that the trial court and both parties contemplated that Mr. Devoid would serve exactly one year and one day in state prison as a result of his violation. Once received by the Department of Corrections, however, Mr. Devoid was informed that one hundred ninety-six days previously awarded as gain time on his original split sentence was being forfeited, thus increasing Mr. Devoid's sentence from one year and one day to one year one hundred ninety-seven days. Mr. Devoid immediately filed a motion for post conviction relief seeking to have his sentence restructured to accommodate the forfeited gain time. At the hearing on Mr. Devoid's motion, all the parties and the court agreed that the intent of the plea agreement was for Mr. Devoid to serve no more than one year and one day. Because the court believed that it did not have the authority to grant the requested relief, it denied Mr. Devoid's motion. Under our case law, however, the trial court did have the authority to enforce the plea agreement. The Department of Corrections may revoke gain time without being countermanded by the court, but such a forfeiture cannot thwart the terms of a plea agreement. Dellofano v. State, 946 So.2d 127 (Fla. 5th DCA 2007). See also Barnett v. State, 933 So.2d 1269 (Fla. 5th DCA 2006); Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002). Mr. Devoid was, therefore, entitled to be resentenced in a manner that would have effectuated the plea agreement. Had he been properly resentenced, Mr. Devoid would have been released on November 8, 2007. Accordingly, we reverse the denial of rule 3.850 relief and remand this cause with instructions for the trial court immediately to modify Mr. Devoid's sentence to time served so as to effectuate the intention of the original plea agreement and entitle Mr. Devoid to immediate release with respect *221 to the judgment and sentence arising from the instant case. We further instruct the trial court to communicate its order to the Department of Corrections. As in Sadler v. State, 980 So.2d 567 (Fla. 5th DCA 2008), we recognize that Mr. Devoid will serve more time than was originally contemplated, but we have once again exhausted our authority to afford a remedy. We urge the parties to cooperate to implement our decision without delay. REVERSED and REMANDED WITH INSTRUCTIONS. GRIFFIN and TORPY, JJ., concur. NOTES [1] This appeal was erroneously filed in the name of Dewayne Devoid. The record below reveals that Mr. Devoid's first name is actually Dwayne.

536 U.S. 913 PARHAMv.UNITED STATES. No. 01-10089. Supreme Court of the United States. June 10, 2002. 1 C. A. 11th Cir. Certiorari denied.

20 Cal.App.2d 79 (1937) TAX FACTORS, INC. (a Corporation), Plaintiff and Appellant, v. COUNTY OF MARIN, Defendant and Appellant. Civ. No. 10452. California Court of Appeals. First Appellate District, Division Two. March 31, 1937. Charles A. Christin and T. J. Keegan for Plaintiff and Appellant. *81 George H. Harlan, N. Charles Brusatori, H. C. Symonds and T. T. Daniels for Defendant and Appellant. Sturtevant, J. The plaintiff commenced an action on an alleged express contract to recover the balance claimed to be due for services rendered. The defendant answered and a trial was had before the trial court sitting without a jury. The court made findings of fact partly in favor of the defendant and partly in favor of the plaintiff and from the judgment entered thereon both parties have appealed. In the early part of the year 1928 the plaintiff applied to the defendant for a contract "... to make a survey, classification and valuation of the assessable property of the County of Marin ..." Later the plaintiff was given a contract covering a limited portion of the county--city of San Anselmo, city of Ross, and certain election precincts in Fair-fax. The consideration was $6,000. That contract was performed and the plaintiff applied for a contract to render similar services for the rest of the property in Marin County. After negotiations on the 1st day of October, 1928, the board of Supervisors of Marin County adopted a resolution in words and figures as follows: "RESOLVED, that Tax Factors, Incorporated, a corporation, be and it is hereby authorized in accordance with and agreeable to the contract entered into the 1st day of October, 1928, between the County of Marin and said Tax Factors, Incorporated, to make a survey, classification and valuation of the assessable property of the County of Marin, situate in the following described territory towit: Kentfield School District, Towns of Larkspur and Corte Madera, Larkspur School District, Town of Mill Valley and Mill Valley School District, Reed School District, Town of Sausalito and Sausalito School District, Town of Belvedere and Tiburon School District, Novato School District, Black Point School District, San Jose School District, Dixie School District, Burdell School District, Nicasio School District, San Rafael School District, San Pedro School District, and San Quentin School District." "The same to be classified in the same manner as heretofore done by said Tax Factors, Incorporated, of the territory within the corporate limits of the City of San Anselmo, and the corporate limits of the City of Ross, together with that *82 territory within the boundaries of those certain General Election Precincts established by the Board of Supervisors, and known as Fairfax Precinct No. 1, Fairfax Precinct No. 2, Fairfax Precinct No. 3, and Fairfax Precinct No. 4, and as authorized by a resolution of this Board passed and adopted on the 14th day of February, 1928;" "AND BE IT FURTHER RESOLVED, that this assignment of territory under the terms of said contract, is upon the condition that said work will be completed by said Tax Factors, Incorporated, on or before the 1st day of June, 1929, and that said Corporation will make such survey, classification and valuation of the assessable property within the territory above mentioned in the manner specified in said contract and in this resolution for the sum of not to exceed $40,000.00." The resolution had been prepared by the plaintiff and was by it presented to the board of supervisors. During the discussion an objection to the resolution was made because it did not limit the amount of the price to be charged. Thereupon the plaintiff's agent inserted the italicized words "not to exceed". The plaintiff undertook to prepare a formal written contract expressing the agreement of the parties. Later it tendered a written instrument dated October 1, 1928, which contains over forty folios but does not specifically refer to nor incorporate said resolution. No other resolution was passed by the board of supervisors and there is no evidence that the indenture just referred to was exhibited to any supervisors excepting Mr. Gardner, the chairman of the board. Nevertheless, the instrument was signed by the chairman, attested by the county clerk, and was also signed by the plaintiff, by Mr. Ramkin, the manager thereof. Said written instrument in no place directly or indirectly refers to the $40,000 limit in the resolution, but instead it contains under the heading "Estimate of Costs", the following: "For urban, suburban or subdivided lots eighty-five (85) cents per parcel, as in paragraph nineteen (19) of this agreement defined. For rural lands classified and mapped which are more valuable for agricultural or grazing than for subdivision purposes, the sum of ten (10) cents per acre. For buildings and structures as in paragraph nineteen (19) defined, the sum of $2.35 per structure." After said written instrument had been signed by the parties as above recited the plaintiff commenced the performance of the duties it had undertaken to perform. From time to time it received payments on account. *83 In preparing its complaint it specified its claim as provided in the above-quoted "Estimate of Costs". It gave credit for $37,500 amounts received and asked judgment for $71,708.90 as the alleged balance due. The trial court ordered judgment in favor of the plaintiff for $2,500, the balance between $40,000, the amount specified in the resolution dated October 1, 1928, and $37,500, payments made. The plaintiff complains because the judgment was not enough and the defendant complains because the trial court awarded the plaintiff a judgment in the sum of $2,500, and earnestly contends that the contract was invalid and that the plaintiff should not have been given judgment in any sum whatever. [1] In its answer the defendant set forth certain allegations and asked that the formal written instrument prepared by the plaintiff should be reformed. The trial court made findings on those allegations in favor of the defendant. The plaintiff contends that in doing so the trial court erred. We think there is no merit in the contention. As to what should have been contained in the instrument as expressing the minds of the parties appears at once from an inspection of the resolution presented by the plaintiff to the board of supervisors and by that body adopted. That, in preparing the formal instrument, the plaintiff actually knew it made no reference to the resolution, but, on the other hand, departed therefrom, is at once clear. Mr. Gardner testified in effect that at the time he signed the formal written instrument he did not know it departed from the terms of the resolution and that it did not provide for carrying out the terms of that resolution. Section 3399 of the Civil Code provides: "When, through fraud ... or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intentions of the parties, it may be revised on the application of the party aggrieved, so as to express that intention ..." The facts of the instant case come clearly within the provisions of the rule just quoted. (F. P. Cutting Co. v. Peterson, 164 Cal. 44, 49 [127 P. 163].) Furthermore, even though there had been an error in the findings complained of such error could not have been prejudicial to the plaintiff. The findings made enforce the contract expressed in the resolution. That resolution embodied the terms of the contract agreed upon by the plaintiff and by the board of supervisors. *84 [2] The plaintiff complains because the trial court made findings that no oral orders were issued by the officers of the defendant to the plaintiff. An examination of the resolution discloses that no orders, written or oral, are therein provided for. The work to be done is specifically mentioned. The manner in which the work was to be done was also specifically mentioned--"the same to be classified in the manner as heretofore done by said Tax Factors, Inc., of the territory within the corporate limits of the City of San Anselmo, ..." The defendant complains because no surety bond was put up as provided in the formal written instrument. The furnishing of a bond was not mentioned in the resolution and is not to be found in any document except the formal written instrument. However, as we have shown above, that document was never shown to the board of supervisors and, so far as the record discloses, no member excepting Mr. Gardner ever heard of a covenant regarding a bond. [3] The defendant contends that the purported contract was void. (Forward v. County of San Diego, 189 Cal. 704 [209 P. 993].) The plaintiff contends that it was valid. (H. D. Haley & Co. v. McVay, 70 Cal.App. 438 [233 P. 409].) Both of the cases cited are helpful arguendo, but neither is determinative of the legal effect of the purported contract involved in this litigation. Under the clear terms of the resolution the plaintiff undertook "to make a survey, classification, and valuation of the assessable property" in the zones described in Marin County. In the record we find nothing claimed to be a survey, that is, in the sense of a measured plan and description of any portion of the county by a civil engineer. Two sheets of "classification" appear in the record. Each sheet purports to show (1) the net value of a specific lot; (2) the net value of the improvements thereon; (3) a diagram of the floor plan, (4) the nature of the building; whether commercial or otherwise, its size, and the kind of material used in its construction. No separate sheets appear as showing valuation. However, as just indicated, each classification sheet is not only descriptive of the building and lot but contains insertions regarding values. We think it follows that the plaintiff in fact undertook to make a "classification" and "valuation" of said assessable property. It is also clear that the two promises are made jointly as to each specific piece of property. In so far as *85 the plaintiff undertook to value each piece of property in Marin County, it was merely attempting to do and perform those things that the assessor is legally bound to do and perform. Therefore, the contract was, to that extent, invalid. (Forward v. County of San Diego, supra.) But, as we have just shown, the work to be done by the plaintiff in making classifications and in expressing values appeared on one and the same sheet. Section 1608 of the Civil Code provides: "If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void." It therefore follows that the entire contract before us in the instant case was void. (County of Humboldt v. Stern, 136 Cal. 63, 67 [68 P. 324].) [4] The statutes create the office of assessor, prescribe his duties, and fix his compensation. Among the duties imposed on the assessor the chief one is the duty of valuing all property in his county subject to local taxation. (Pol. Code, sec. 3628.) He is not entitled to financial aid through the board of supervisors (Dougherty v. Austin, 94 Cal. 601 [28 P. 834, 29 P. 1092, 16 L.R.A. 161]), nor may the board of supervisors relieve him by employing others to discharge the duties imposed by statute on him. (Forward v. County of San Diego, supra.) If a purported contract is attempted to be made in violation of the principle last mentioned it is absolutely void. (Pol. Code, sec. 4005.) Being void as to Marin County, no liability is created as on an implied contract. (Zottman v. San Francisco, 20 Cal. 96, 105 [81 Am. Dec. 96].) [5] As we understand the position of the plaintiff, it is this. It maintains that it was undertaking to render assistance to the board of supervisors when sitting as a board of equalization and not to act as an adjunct of the assessor's office. Accordingly, some effort was made to show that the documents prepared by the plaintiff were delivered to and deposited in the offices of the board and not in the office of the assessor. No claim was made that said documents were to be taken out of the county nor, indeed, that they were to be taken out of the courthouse. As between the county officers, they were public property. The particular room in which they were deposited is quite immaterial. No effort was made to show the documents prepared by the plaintiff were "maps and plat books". (Pol. Code, secs. 3658, 3658a, 4218.) Nor was the purported contract claimed to be founded on those *86 sections. However, both in the trial court and in this court the plaintiff placed much reliance on the rule stated in H. D. Haley & Co. v. McVay, supra. In that case the court discussed a contract under the terms of which the plaintiff undertook to make a "cruise and estimate of all timber on such patented lands ... as shall be hereafter designated ... and a classification, topographical survey, and report of such" lands. It will be noted at once that the work to be done by the Haley Company is a line of work, to do which, no office has been created, and the performance of which has not been imposed on any officer of the state or county. The value of standing timber depends on many factors. Among others are included the kind, species, amount, location, inside or outside of forest, the proportion of clear and rough stuff, and, above all, its accessibility; hence, the topography of the ground on which it stands. Being furnished with the data just mentioned, any officer seated at his desk can make accurate computations. Otherwise, his computations will be a bold guess. Comparing Haley's contract with the one in suit, it is clear there is no similarity whatever. Haley's reports were closely allied to the "maps and plats" authorized by section 3658 of the Political Code. The "classifications" of the plaintiff were but copy for an assessment roll, and, as we understand the record, they were so used. The Haley case rests, at least in part, on Maurer v. Weatherby, 1 Cal.App. 243 [81 Pac 1083]. That case involved these facts. The property, real and personal, in the city of Eureka, was subject to local taxation by the city of Eureka and also by Humboldt County. The assessor of the county of Humboldt had made his assessment. The assessor of the city of Eureka had made his assessment. The council of the city of Eureka, sitting as a board of equalization, desired information to determine whether any of the property on the city assessment roll should be equalized. It employed the plaintiff to make sheets comparing the two assessment rolls. The court held the council had the right to make the contract for its assistance in equalizing the assessments. In doing so, on page 245, it said: "When an assessment is too high the taxpayer may be depended upon to furnish the evidence upon which they may act in reducing it. But if there is an undervaluation, the assessor having recorded his best judgment on the face of the assessment roll, we have no doubt that the board may call to its aid such maps, abstracts, data, and information as will enable the *87 members to act fairly, intelligently, and legally in equalizing assessments. They are not limited to information and data the assessor may be able or willing to furnish." (Citing cases.) Acting on the same principle, a board of equalization no doubt can send for and examine probate appraisements, lists of recent sales and prices paid, etc. Such information is used in effect to cross-examine the assessor as to the correctness of his assessments. The question then arises, did the board of supervisors enter into the purported contract with the plaintiff for the purpose of having material, when sitting as a county board of equalization, with which to cross-examine the assessor? That was a question of fact which was submitted to the trial court. The resolutions and minutes of the board are silent as to the purpose. Two of the five supervisors were called as witnesses. The deposition of another was used on the trial, but was not introduced in evidence. Finding XVIII is as follows: "That it is true that the purpose of performing such re-valuation and reassessment of said property was to afford to said Assessor additional compensation during his term of office other than that allowed him by law." We think it is clear, therefore, that the case falls within the doctrine of Forward v. County of San Diego, supra, and not within the doctrine of H. D. Haley & Co. v. McVay, supra. At the present time such contracts as the one involved in the case before us are prohibited except as provided in sections 3673 and 3693 of the Political Code. At the time said contract was made, the statute was silent except as shown by certain provisions herein cited. To determine the powers of a municipal board the general rule applicable is quoted in Von Schmidt v. Widber, 105 Cal. 151, at page 157 [38 P. 682], as follows: "The rule, as stated by Mr. Dillon (1 Dillon on Municipal Corporations, 4th ed., sec. 89), and approved in various authorities, is that 'it is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: 1. Those granted in express words; 2. Those necessarily or fairly implied in or incident to the powers expressly granted; 3. Those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power *88 is denied.'" (Italics by Supreme Court.) That the power of duplicating the assessment rolls of any county is not "indispensable", is not open to debate. Without the exercise of such a power this state has functioned for nearly a century. Assuming merely for argument that there is a doubt regarding the existence of the power in question the plaintiff must lose because, "Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power is denied." The judgment is reversed, with directions to enter judgment in favor of the defendant. The defendant will recover its costs on these appeals. Nourse, P. J., and Spence, J., concurred.

993 F.2d 1548 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.UNITED STATES of America, Plaintiff-Appellee,v.Michael Courtney MARLOWE, Defendant-Appellant. No. 92-5680. United States Court of Appeals, Sixth Circuit. May 18, 1993. Before: RYAN and SUHRHEINRICH, Circuit Judges; and BROWN, Senior Circuit Judge. PER CURIAM. 1 Defendant Michael Marlowe appeals his convictions and sentence to this court alleging that numerous errors require reversal. For the reasons stated below, we AFFIRM the district court. 2 * On March 20, 1991, Detective Randy Dunn, a Chattanooga Police Narcotics Officer, and several other Chattanooga police officers executed a search warrant at the apartment of Sonia Hudson. When the police approached Hudson's door, they heard several occupants running around inside the apartment and heard the term "bumrush."1 The police forced their way into the apartment because, they said, they were afraid evidence might be destroyed. They found Marlowe standing by a window in the back bedroom holding a loaded nine millimeter pistol. He dropped the pistol when he saw the police and was then arrested and searched. The search revealed a pager, $4,000 in U.S. currency, and 10.4 grams of 94% pure heroin. A search of the apartment revealed .44 and .357 magnum revolvers. The police also discovered 117 grams of crack cocaine, 456.3 grams of cocaine powder, a set of scales, cutting agents, and ledgers that allegedly document drug transactions. 3 On May 15, 1991, a federal grand jury returned an eight-count indictment charging Marlowe and three others with narcotics trafficking offenses and firearm offenses. Specifically, Marlowe was charged with conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base; possession of heroin, cocaine base and cocaine hydrochloride with intent to distribute them; carrying a firearm during the commission of a drug offense; and possession of a firearm by a felon. An additional count sought forfeiture of Marlowe's weapons. 4 Marlowe filed a motion to suppress the cocaine and the weapons, arguing that the search warrant was not supported by probable cause, that the police exceeded the scope of the warrant when conducting their search, and that the police did not comply with the knock and announce requirement of 28 U.S.C. § 3109. After a two-day suppression hearing, the district court denied the motion to suppress. 5 On June 29, 1991, pursuant to a written plea agreement, Marlowe pled guilty to Count 1 of the indictment, the conspiracy count, Count 4, which charged him with carrying a firearm during the commission of a drug offense, and Count 8, which permitted forfeiture of Marlowe's firearms. Marlowe also agreed to cooperate fully with the government in its investigations of other suspected narcotics traffickers. In exchange, the government agreed to dismiss the other count against him and to bring to the district court's attention at the time of sentencing the "nature, extent, and value" of Marlowe's cooperation. The government also agreed to permit him to pursue his motion to suppress the controlled substances and the firearms before the district court and before any appellate courts. 6 The case was initially set for sentencing on September 30, 1991, but the sentencing hearing was rescheduled three times to permit Marlowe to comply with the provision of the plea agreement requiring his cooperation. Sentencing was set for the fourth time for May 19, 1992. Just before the hearing, Marlowe's lawyer attempted to have the sentencing hearing postponed yet again to allow Marlowe to continue his cooperation but, over Marlowe's objections, the district court refused to delay sentencing further. The district court then sentenced Marlowe to a term of 262 months on Count 1, the minimum possible sentence under the Guidelines, plus five years on the firearm count. The terms are to be served consecutively, as required by statute, for a total term of 322 months. 18 U.S.C. § 924(c) (1988). The defendant then perfected a timely appeal to this court, attacking the denial of his motion to suppress, the denial of his motion to continue the sentencing, and the refusal of the government to move for a § 5K1.1 downward departure. II 7 Marlowe first contends that the affidavit used by Detective Dunn to obtain the search warrant precluded the City Court judge from making an independent determination of probable cause because it contained preprinted, conclusory allegations regarding the reliability and credibility of the informant. 8 To support his argument, Marlowe relies in part on Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). Under Aguilar and Spinelli, a search warrant affidavit based upon an informant's tip had to include: 1) information on the credibility or reliability of the informant; and 2) information detailing "some of the underlying circumstances from which the informant" obtained the information. United States v. Pelham, 801 F.2d 875, 877 (6th Cir.1986) (quoting Aguilar, 378 U.S. at 114), cert. denied, 479 U.S. 1092 (1987). 9 In Illinois v. Gates, 462 U.S. 213 (1983), however, the Supreme Court rejected the rigid Aguilar-Spinelli test in favor of a new totality of the circumstances approach. Id. The Gates Court held that the two elements from Aguilar-Spinelli are "a relevant consideration" used to illuminate "the commonsense practical question" of whether there is probable cause to believe that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. A weak showing under one prong "can be compensated for ... by a strong showing as to the other, or by some other indicia of reliability." Id. at 233. Thus, the inquiry for an issuing magistrate or judge is whether a practical, commonsense evaluation of the totality of the circumstances presented in the materials supporting the application for a search warrant gives rise to a fair probability that evidence of a crime or contraband will be found in the place to be searched. Id. at 233, 238. 10 Reviewing courts must give the probable cause determinations of issuing judges and magistrates "great deference." Pelham, 801 F.2d at 877. Thus, an appellate court does not review de novo a magistrate's probable cause determination. Gates, 462 U.S. at 236. Rather, the task of a reviewing court is to "ensure that the magistrate had a 'substantial basis for ... conclud[ing] that a search would reveal evidence of wrongdoing.' " Id. at 238. 11 In this case the affidavit states, albeit in boilerplate form, that the confidential informant has provided accurate information in the past. The affidavit also alleges that the informant saw cocaine in Hudson's apartment within 72 hours of the presentation of the affidavit to the City Court judge. The affidavit further alleges, again in boilerplate form, that the informant has seen known cocaine users going to and coming from the premises. 12 As the Gates Court stated, "affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation" and should be interpreted in a "commonsense" rather than a "hypertechnical" manner. Gates, 436 U.S. at 235-36; Pelham, 801 F.2d at 878. If we interpret Dunn's affidavit in a commonsense manner, it is apparent that the City Court judge had a substantial basis for concluding that controlled substances would be discovered at Hudson's apartment. Further, the mere fact that many of the allegations are in preprinted form does not, by itself, undercut the finding of probable cause. Thus, Marlowe's argument that the affidavit does not support a finding of probable cause is meritless. 13 Even if we found that the warrant were lacking in probable cause, however, we would still have to affirm the denial of the motion to suppress because we believe that the Chattanooga police relied in good faith upon a facially valid warrant. United States v. Leon, 468 U.S. 897 (1984). III 14 Marlowe next contends that the district court should have granted him a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine whether Dunn fabricated the existence of his informant. 15 In Franks, the Supreme Court held that an affidavit supporting a search warrant is entitled to a presumption of validity; however, the defendant is entitled to a hearing on the veracity of the affidavit if he makes specific allegations of deliberate falsehood or reckless disregard for the truth on the part of the affiant (not the informant ) and supports these allegations with an offer of proof. Id. at 171. The offer of proof must consist of affidavits or sworn "or otherwise reliable statements" that support the contention that the affiant deliberately or recklessly falsified information in the affidavit. Id. If the defendant does not produce such sworn or reliable statements, their absence must be satisfactorily explained. Id. 16 In the case at bar, Marlowe did not allege that the affidavit contained false statements until the beginning of the suppression hearing. His motion to suppress contained two allegations: 1) that Dunn's affidavit on its face did not support a finding of probable cause; and 2) that the warrant was improperly executed. Since Marlowe did not make specific allegations regarding the falsity of the affidavit and did not make an offer of proof, the district court was correct to deny Marlowe a Franks hearing. 17 Nevertheless, Marlowe now contends that the evidence elicited during the suppression hearing amounts to an offer of proof which required the district court to give him a Franks hearing. We also reject this contention. The testimony on which Marlowe relies is that of Sonia Hudson and Special Agent John Scott, a federal agent. Even if we considered their testimony as an offer of proof, Marlowe still is not entitled to a Franks hearing because their testimony does not establish that Dunn fabricated the existence of the confidential informant: Hudson admitted at the suppression hearing that she had cocaine in her apartment and that Marlowe sold this cocaine to an unknown person approximately 72 hours before the search warrant was executed. Moreover, the district court conducted an in camera interview of Detective Dunn and was satisfied that Dunn did not fabricate the existence of the informant.2 18 Marlowe contends, however, that in cases involving confidential informants, it is difficult for the defendant to make the offer of proof because the defendant cannot interview a confidential informant to determine if the affiant is lying. Therefore, he contends, under Franks, he need not make a more detailed offer of proof than he made because his inability to question the confidential informant is a satisfactory explanation for the absence of proof that the affiant lied. 19 Although Marlowe is correct that it is impossible for defendants to present affidavits from unknown confidential informants, he could have obtained affidavits from other persons involved in the case to prove that Dunn was lying, or that the information in the affidavit was wrong. Then perhaps he might have been entitled to a Franks hearing to the extent that he did not receive one. But he has not even presented evidence that information contained in the affidavit was untrue. Thus, we conclude that the district court did not err in refusing to give Marlowe a Franks hearing to the extent that he did not receive one. IV 20 Marlowe next contends that the manner in which the Chattanooga police entered Hudson's apartment was unreasonable and violated the Fourth Amendment and 18 U.S.C. § 3109 (1988). At the outset it must be noted that § 3109 may not even apply to the actions of the Chattanooga police. Indeed, although the controversy in the district court centered around § 3109, the government contends before this court that the Fourth Amendment restrictions rather than the more stringent requirements of § 3109 should apply. Since the district court relied upon § 3109 and the government did not object to its doing so, this court will apply § 3109 to this issue.3 21 Section 3109 authorizes officers executing search warrants to break down a door to execute a search warrant if, after they knock and announce their purpose, they are refused entry. 18 U.S.C. § 3109 (1988). The officer is also justified in forcing his entry when exigent circumstances exist. United States v. Singer, 943 F.2d 758 (7th Cir.1991); United States v. Harris, 713 F.2d 623 (11th Cir.1983). 22 This court reviews the district court's determination that the requirements of § 3109 were met under the clearly erroneous standard. United States v. Gonzalez, 697 F.2d 155, 157 (6th Cir.1983) (per curiam). "To be clearly erroneous ... a decision must strike [the court] as more than just maybe or probably wrong; it must ... strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish." United States v. Perry, 908 F.2d 56, 58 (6th Cir.1990) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988), cert. denied, 493 U.S. 847 (1989)), cert. denied, 498 U.S. 1002 (1990). 23 The findings of the district court are adequately set out in section I of this opinion above. A careful review of the record indicates that these findings are not clearly erroneous. Accordingly, we conclude that this argument has no merit. V 24 Marlowe next contends that the government violated the plea agreement when it refused to file a motion for a U.S.S.G. § 5K1.1 downward departure to compensate Marlow for his cooperation up to the time of sentencing. 25 This court has held that plea agreements are contractual in nature and must be interpreted in the manner of contracts. United States v. Johnson, 979 F.2d 396, 399 (6th Cir.1992). Paragraph 6 of the agreement provides: 26 At the time of sentencing the United States agrees to bring to the Court's attention the nature, extent, and value of the defendant's cooperation. This information will be provided to the Court so that it may be considered in determining a fair and appropriate sentence under the facts of the case. 27 J.A. at 47. 28 Thus, paragraph 6 only required the government to point out to the court at the time of sentencing the extent of Marlowe's cooperation. It did not require the government to file a motion for downward departure under U.S.S.G. § 5K1.1. Since the plea agreement did not require the government to file the § 5K1.1 motion, the decision to move the court for a downward departure lies within the discretion of the prosecutor, Wade v. United States, 112 S.Ct. 1840, 1843-44 (1992), and only if the prosecutor's decision not to file a motion for a § 5K1.1 downward departure is based upon an unconstitutional motive can this court provide relief for the defendant. Id. Marlowe has not even attempted to show that the government's failure to file a motion for a downward departure was based upon unconstitutional motives. Thus, his argument is meritless. VI 29 Marlowe next contends that the district court should have continued his sentencing hearing until he completed his cooperation. Rule 32(a)(1) of the Federal Rules of Criminal Procedure permits the district court to delay sentencing where a factor important to sentencing has not been resolved. Fed.R.Crim.P. 32(a)(1). One such factor can be cooperation by the defendant. Id. Advisory Committee Notes to 1989 Amendment. Both parties agree that the district court's refusal to grant the continuance is reviewed under an abuse of discretion standard. 30 We conclude that the district court did not abuse its discretion when it refused to continue, for the fourth time, Marlowe's sentencing hearing. First, the court took into account Marlowe's cooperation when it set his sentence at the low end of the Guidelines range in recognition of his cooperation up to the time of sentencing. Second, the court had already waited almost a year after Marlowe had entered his guilty plea to sentence him. Third, under Federal Rule of Criminal Procedure 35, the government can move the district court to reduce his sentence up to one year after sentencing if Marlowe cooperates further. Finally, the government and the district court indicated at a conference before the sentencing hearing that Marlowe could withdraw his guilty plea if he felt that he was being sentenced prematurely. 31 Marlowe contends, however, that waiting for the government to make a motion pursuant to Rule 35 may visit an injustice on him. He contends that Rule 35 could be read to permit the court to consider assistance that he has rendered only after imposition of the sentence. Thus, he contends, his cooperation prior to imposition would not be recognized. This argument is spurious in the instant case because the district court gave Marlowe the minimum possible sentence under the Guidelines because of his cooperation up to the time of sentencing. VII 32 We AFFIRM the judgment of the district court. 33 RYAN, Circuit Judge, concurring separately. 34 While I concur in the result reached in the majority opinion and the judgment to be entered, I respectfully disagree with the approach the court has taken in the issue addressed in part IV of the majority opinion. 35 My brothers are satisfied to resolve the defendant's challenge to the lawfulness of the search of his apartment by affirming the district court's determination that the search was not unreasonable under the Fourth Amendment and did not violate 18 U.S.C. § 3109 (1988). While acknowledging that section 3109 "may not even apply to the actions of the Chattanooga police," the court agrees to decide whether its terms were violated in this case because "the district court relied upon § 3109 and the government did not object to its doing so...." 36 Although we do not, as a general rule, resolve issues on appeal that are not first raised in the lower court--and the applicability of section 3109 to a search conducted by state officers was not raised in the lower court--that does not mean to me that this court is obligated to apply a federal statute to a state law enforcement action when it is plainly inapplicable. In my judgment, it is plain that section 3109 is inapplicable to searches conducted by state law enforcement officers. 37 First of all, 18 U.S.C. § 3109 is manifestly a federal statute. Nothing in its language purports to suggest that it is applicable to enforcement actions taken by state officers. Moreover, in United States v. Moore, 956 F.2d 843 (8th Cir.1992), the court stated that section 3109 governs only "the permissible scope of ... searches by federal law enforcement officers." A majority of federal courts that have addressed the issue have reached the same conclusion. See United States v. Mitchell, 783 F.2d 971, 973-74 (10th Cir.), cert. denied, 479 U.S. 860 (1986); United States v. Andrus, 775 F.2d 825, 844 (7th Cir.1985); Simons v. Montgomery County Police Officers, 762 F.2d 30, 32 n. 1 (4th Cir.1985), cert. denied, 474 U.S. 1054 (1986); United States v. Jefferson, 714 F.2d 689, 693 (7th Cir.1983); United States v. Valenzuela, 596 F.2d 824, 829-30 (9th Cir.), cert. denied, 441 U.S. 965 (1979); United States v. Doust, 728 F.Supp. 41, 47 (D.Me.1989), aff'd, 916 F.2d 757 (1st Cir.1990). But see, King v. Marmon, 793 F.Supp. 1030 (D.Kan.1992). 38 Although in the ordinary case I would not be willing to address an issue raised for the first time on appeal, I think this case is an appropriate exception to that rule. We should not be seen as acquiescing in the patently erroneously application of a federal statute to state law enforcement action simply because the lower court did so and the government failed to object. 39 I am satisfied that the legitimacy of the search of the defendant's apartment should be tested against the settled principles of Fourth Amendment search and seizure law, and that so tested, the search here was not unreasonable. 40 For those reasons, and because I concur in the balance of the majority opinion, I shall join in the judgment affirming the conviction and sentence below. 1 The term "bumrush" is a slang term commonly used in Chattanooga to refer to a narcotics raid. The term "bumrushers" refers to narcotics officers themselves 2 Further, at the suppression hearing, the district court gave Marlowe a considerable amount of latitude in questioning witnesses regarding the veracity of the allegations contained in the affidavit. A fair reading of the record of the suppression hearing indicates that it substantially amounted to a Franks hearing 3 While we do not, because it did not so contend below, resolve the government's contention on appeal that § 3109 does not apply to these local officers, we recognize that it has been held in other circuits that § 3109 does not apply. See, e.g., United States v. Moore, 956 F.2d 843, 846 (8th Cir.1992)

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________________ No. 15-1545 __________________ A.G., (a minor) c/o Alphonzo King, Appellant v. CHESTER UPLAND SCHOOL DISTRICT __________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-14-cv-03685) District Judge: Honorable Nitza I. Quinones Alejandro __________________ Argued February 8, 2016 Before: FUENTES, KRAUSE, and RENDELL, Circuit Judges (Filed: July 7, 2016 ) Mu’min F. Islam, Esq. [ARGUED] MFI Law Group 1448 South Street, Suite 200 Philadelphia, PA 19146 Counsel for Appellant John F. Kennedy, Esq. [ARGUED] Grace & Kennedy 200 South Broad Street, Suite 500 Philadelphia, PA 19102 Counsel for Appellee  __________________ OPINION* __________________ FUENTES, Circuit Judge A.G. was a victim of a random attack on students at his high school. His father filed a 42 U.S.C. § 1983 lawsuit against the school district, alleging that the school district’s decision to cease its policy of issuing student identification cards created or enhanced the danger to which A.G. was exposed.1 The District Court granted the school district’s motion to dismiss.2 For the reasons that follow, we will affirm. I. Because this case comes to us on a motion to dismiss, the following facts are taken from the complaint and are assumed true for purposes of this appeal.3 During the 2012- 2013 school year, Plaintiff was a ninth grade student at Chester High School, which is operated by Defendant Chester Upland School District (the “School District”). At some point during the school year, the school decided to not issue identification (ID) cards to students, in contrast to previous years. Additionally, the school’s principal and staff * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The record is unclear as to whether A.G. is the student or his father; the case caption, the Appellant’s briefing, and the complaint conflict. For ease of reference, we will refer to the student as “Plaintiff.” 2 The District Court also dismissed Plaintiff’s equal protection and unlawful seizure claims. Those claims are not at issue on appeal. 3 Finkelman v. Nat’l Football League, 810 F.3d 187, 190 n.11 (3d Cir. 2016). 2 allowed visitors to enter the school without identifying or registering themselves or obtaining a visitor’s pass. According to Plaintiff, because of the school’s decision to discontinue issuing student ID cards and its custom of allowing visitors to enter the school without permission, a trespasser posing as a student bypassed security and entered school property. During the course of the school day, the trespasser assaulted various students, including Plaintiff, “in honor of ‘National Fight Day.’”4 The attack on Plaintiff was recorded and uploaded to the Internet. As a result of this attack and the subsequent display on the Internet, Plaintiff suffered physical injuries and emotional distress. Plaintiff eventually transferred to another school. Plaintiff filed a 42 U.S.C. § 1983 suit against the School District.5 He claimed that the School District’s decision to discontinue issuing student ID cards violated his substantive due process rights under the state-created danger theory. Specifically, he alleged that the School District “created a situation, a state-created danger, where it was foreseeable that Plaintiff would suffer injury and harm.”6 The School District moved to dismiss pursuant to Rule 12(b)(6), arguing that Plaintiff could not establish any constitutional violation or that any alleged constitutional violation resulted from an 4 Compl. ¶ 15 (App. 24). 5 Plaintiff twice amended his complaint in response to the School District’s motions to dismiss. Thus, the District Court reviewed, as do we, Plaintiff’s second amended complaint. 6 Compl. ¶ 21 (App. 25). 3 official policy, practice, or custom, as required by Monell v. Department of Social Services, 436 U.S. 658 (1978).7 The District Court held that Plaintiff’s substantive due process claim under the state-created danger theory did not sufficiently allege an affirmative act on the part of the School District. Accordingly, the District Court dismissed Plaintiff’s claim with prejudice, explaining that any attempt to amend the complaint a third time would be futile. This appeal followed.8 II. Plaintiff’s primary argument on appeal is that the District Court erred in its application of the state-created danger test. He also claims that the District Court erred in not allowing him an opportunity to amend his complaint. We address each argument in turn.9 A. State-Created Danger Test To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law engaged in conduct that violated a right protected by the 7 See Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (“A plaintiff seeking to hold a municipality liable under section 1983 must demonstrate that the violation of rights was caused by the municipality’s policy or custom.” (citing Monell, 436 U.S. at 690-91)). 8 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. 9 “We exercise plenary review over the grant of a motion to dismiss.” Brown v. Card Service Ctr., 464 F.3d 450, 452 (3d Cir. 2006). “[W]e review the District Court’s denial of leave to amend for abuse of discretion, and review de novo its determination that amendment would be futile.” U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014). 4 Constitution or laws of the United States.10 Here, Plaintiff’s § 1983 claim invokes the substantive component of the Due Process Clause, which “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.”11 We have recognized the state-created danger theory as a mechanism for establishing a substantive due process claim.12 Four elements must be satisfied: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted with a degree of culpability that shocks the conscience; (3) a relationship existed between the state and the plaintiff such that the plaintiff was a foreseeable victim of the state actor’s acts; and (4) the state actor affirmatively used his/her authority in a way that created a danger to the plaintiff or that rendered the plaintiff more vulnerable to danger than had the state not acted at all.13 The District Court focused on the final “affirmative act” element and concluded that the School District’s decision not to issue student ID cards was not affirmative conduct.14 We agree. On the facts alleged, we do not believe that the School District’s decision to no longer issue ID cards to its student body constituted an “affirmative act” or “affirmative exercise of authority” that created or enhanced a danger to Plaintiff that he 10 Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc). 11 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal quotation marks omitted). 12 See Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996). 13 Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006). 14 See Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013) (en banc) (concluding that school’s failure to continue perpetrator’s suspension, thus permitting perpetrator to return to school, could not be deemed an affirmative act for purposes of a substantive due process claim under the state-created danger theory). 5 otherwise would not have faced. Moreover, Plaintiff fails to show how the attack on him was a “fairly direct” result of the School District’s decision. Plaintiff cannot plausibly allege that the school’s failure to issue student ID cards was the “catalyst” for the trespasser attack on Plaintiff; “[t]he causation, if any, is too attenuated.”15 Rather, Plaintiff seemed to be a “tragic victim of random criminal conduct rather than of school officials’ deliberate, callous decisions.”16 For these reasons, Plaintiff’s substantive due process claim under the state-created danger theory must fail. B. Dismissal with Prejudice Plaintiff also claims that the District Court was required to provide him with an opportunity to amend his complaint. Our jurisprudence makes clear that, whether or not a plaintiff seeks leave to amend, a district court considering a Rule 12(b)(6) motion to dismiss “must permit a curative amendment unless such an amendment would be inequitable or futile.”17 Here, the District Court explicitly stated that any attempt to amend the complaint for a third time would be “legally futile.”18 We agree with this conclusion. The heart of Plaintiff’s substantive due process claim—that the decision to cease issuing student ID 15 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 909 (3d Cir. 1992) (concluding that plaintiff could provide no set of facts that would establish “the direct causal connection” between the perpetrator’s deadly shooting of a teacher and the school’s decision to allow construction workers to leave the school’s rear entrance unlocked). 16 Id. at 911 (internal quotation marks omitted). 17 Phillips, 515 F.3d at 245. See Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004) (“Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility.”). 18 App. 17. 6 cards placed Plaintiff in a dangerous situation—could not be cured by additional facts. Plaintiff’s claim fails as a matter of law. III. For the reasons set forth above, we will affirm the District Court’s dismissal with prejudice of Plaintiff’s second amended complaint. 7 

688 F.2d 845 Bellowsv.Helms 81-7661 UNITED STATES COURT OF APPEALS Ninth Circuit 8/23/82 1 Nat. Transp. Safety Bd. AFFIRMED

603 F.Supp. 1376 (1985) AMERICAN TELEVISION & COMMUNICATIONS CORPORATION, d/b/a Monte Cable, Plaintiff, v. CITY OF MONTEVIDEO, MINNESOTA, Defendant. Civ. No. 3-85-13. United States District Court, D. Minnesota, Third Division. March 22, 1985. *1377 Alan M. Anderson and Steven C. Shroer of Faegre & Benson, Minneapolis, Minn., for plaintiff. Janice M. Nelson of Nelson, Oyen, Torvile, Minge, Christopherson & Gilbertson, Montevideo, Minn., for defendant. MEMORANDUM AND ORDER RENNER, District Judge. Before the Court is a trial on the merits based upon a stipulation of facts and documents pursuant to Federal Rule of Civil Procedure 65(a)(2). Because there is no material factual dispute, the Court has considered the matter as cross motions for summary judgment. See Fed.R.Civ.P. 56. On February 27, 1985 the court issued a bench ruling in favor of ATC. Apparently, this is the first decision construing the Cable Communications Policy Act of 1984, therefore the Court issues this Memorandum Order to explain its oral ruling. American Television & Communications Corporation ("ATC") brings this action against the City of Montevideo ("the City"). ATC seeks a declaration that a five percent (5%) rate increase imposed on its subscribers January 1, 1985 is valid under its franchise agreement with the City ("the City Franchise"), and that a City resolution attempting to prevent the rate increase is invalid under the City Franchise[1] and the Cable Communications Policy Act of 1984 ("the Cable Act"). FACTS In February 1972, ATC was assigned the twenty-five (25) year cable television Franchise the City had granted to another franchisee in 1962. Pursuant to the City Franchise, *1378 ATC has continuously operated a cable television system since the assignment. In October 1984, Congress enacted the Cable Communications Policy Act, Pub.L. No. 98-549, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 2779 (to be codified at 47 U.S.C. §§ 601-639). The Cable Act established a uniform federal policy for the provision and regulation of cable television services, and preempted inconsistent state and local regulations. See 47 U.S.C. §§ 601, 623(a). In addition, the Cable Act authorized a cable franchisee to increase its rates up to five percent (5%) per year as follows: In addition to any other rate increase which is subject to the approval of a franchising authority, any rate subject to regulation pursuant to this section may be increased after the effective date of this title at the discretion of the cable operator by an amount not to exceed 5 percent per year if the franchise (as in effect on the effective date of this title) does not specify a fixed rate or rates for basic cable service for a specified period or periods which would be exceeded if such increase took effect. 47 U.S.C. § 623(e)(1). The Cable Act took effect on December 29, 1984. The parties agree that the franchise in effect through December 17, 1984 permitted ATC to increase unilaterally its rates by five percent (5%), as authorized by section 623(e)(1). In early December 1984, ATC informed the City that it planned to increase rates for basic cable service by five percent (5%) effective January 1, 1985. The City responded by adopting Resolution No. 1150 (the "Resolution") on December 17, 1984 over ATC's objections. The Resolution provided that the existing rates for basic cable service were to remain in effect for two years or until the City Council approved an increase. The City thereafter informed ATC that it would consider ATC to have breached the City Franchise if ATC increased its rates. This litigation ensued. ANALYSIS Resolution No. 1150 states that basic cable service rates are to "continue in effect for a period of two years from the date of this resolution or until an increase is approved by the City council." This Resolution can be construed as merely requiring City Council approval of a new rate increase, something the City Franchise already required. If this is its only effect, the Resolution would be valid but ineffective in its attempt to preclude plaintiff's proposed rate increase. As previously mentioned, the Cable Act permits ATC's rates to be increased after December 29, 1984, "at the discretion of the cable operator." The Cable Act gives the franchisee (ATC) rather than the franchisor (the City) discretion to make the five percent (5%) rate increase. Therefore, unless the resolution amended the City Franchise to revoke ATC's discretion by providing for a fixed rate over a specified period of time, ATC's rate increase was valid. The City concededly passed the Resolution in an attempt to prevent ATC from increasing its rates under the Cable Act by fixing the cable rates for the next two years. ATC argues that the City Franchise[2] did not specify a fixed rate for a specified period of time as required by the Cable Act. The Court agrees. Under the plain meaning of the Cable Act, the Resolution, by its own terms, did not preclude ATC's rate increase. The Cable Act expressly requires that a franchise set forth a fixed rate for a specified period of time. Resolution No. 1150 provided that the rate would be set for two years or "until an increase is approved by the City Council." By permitting an increase upon *1379 approval of the City Council, the Resolution provided for increases at future unspecified times. Consequently, Resolution No. 1150 did not deprive ATC of its discretion to increase its rates under the Cable Act. The legislative history supports this result. The House Report accompanying the Cable Act provides: [A]ccording to Subsection (e) unless the franchise agreement provides that a rate will be frozen at a particular level or levels for a specified period or periods, the cable operator may automatically increase any rate by 5 percent each year. Thus, franchise provisions which specify, for example, that "basic service rates shall be $10 in 1984" or that "basic service rates shall be $10 until 1986" shall preclude the operator from taking advantage of the statutory, automatic increase. Similarly, a franchise which specified that "basic service rates shall be $9 in 1984 and $10 in 1985" would preclude use of the automatic increase. However, franchise provisions which allow for the franchising authority to consider adjustments to a specified rate or do not fix rates for a specified period of time will not preclude exercise of the automatic increase provided under this section. For example, a franchise provision which states that "basic service rates shall be $10" would not be sufficient to preclude the availability of the automatic increase if the provision did not specify a fixed period of time for which the rate applied. H.R.Rep. No. 934, 98th Cong. 2d Sess. 67 (1984), reprinted in 1984 U.S.Code Cong. & Ad.News 4655, 4704 (emphasis supplied). By allowing the franchising authority to consider adjustments to the rates, the City Council did not set the rate for a specified period of time as required by the Cable Act. Therefore, plaintiff lawfully implemented its five percent (5%) basic cable service rate increase. ORDER Based upon the foregoing and the entire file, the Court finds in favor of plaintiff ATC and against defendant City of Montevideo. IT IS DECLARED that plaintiff ATC is authorized under section 623(e) of the Cable Communications Policy Act of 1984 to increase its rates for basic cable services by five percent effective January 1, 1985. IT IS FURTHER DECLARED that City of Montevideo Resolution Number 1150 is of no effect in its attempt to preclude such an increase. IT IS ORDERED that the case be dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. NOTES [1] Section 7-16-3 of the City Franchise, as codified and amended, incorporates by reference sections 82 through 89 of Chapter 10 of the 1947 Montevideo City Charter (the "1947 Charter"). Section 86 of the 1947 Charter establishes an arbitration procedure to be followed if the City and ATC fail to agree, "by direct negotiation," on rates for cable services. Although the 1947 Charter was suspended in 1969 by a new charter which omitted the arbitration provision, the City Franchise was never amended to incorporated the 1969 Charter. Until the instant dispute, ATC and the City had had no disagreements which would have required arbitration under the 1947 Charter. Since the Court finds that, under federal law, the Resolution in question did not preclude plaintiff's rate increase, it does not decide whether the Resolution was passed in violation of the City Franchise. [2] "Franchise" as defined in the Cable Act is: an initial authorization or renewal thereof, including a renewal of an authorization which has been granted subject to section 626 issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of the cable system. 47 U.S.C. § 602(8) (emphasis supplied). Assuming the Resolution was validly enacted, it became a part of the City Franchise authorizing the operation of ATC's cable system.

231 F.3d 1129 (9th Cir. 2000) GAIL CRUM, Plaintiff-Appellant,v.CIRCUS CIRCUS ENTERPRISES; CIRCUS CIRCUS CASINOS, INC.; CIRCUS CIRCUS HOTEL CASINO, Defendants-Appellees. No. 99-15638 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 3, 2000Filed November 2, 2000 Geraldine Kirk-Hughes, Las Vegas, Nevada, for the appellant. Morton R. Galane, Las Vegas, Nevada, for the appellees. Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding. D.C. No. CV-98-362-DWH(LRL) Before: Dorothy W. Nelson, David R. Thompson, and Stephen S. Trott, Circuit Judges. THOMPSON, Circuit Judge: 1 Gail Crum appeals the district court's judgment dismissing her diversity action against Circus Circus Enterprises, Inc., Circus Circus Casinos, Inc., and Circus Circus Hotel Casino, Inc. ("Circus Circus") for lack of subject matter jurisdiction. The district court dismissed the action on the ground that Crum's complaint did not allege that the amount in controversy exceeded $75,000 as required by 28 U.S.C.S 1332(a), and that amending the complaint to allege the required amount would be "merely colorable for the purpose of conferring jurisdiction." We have jurisdiction pursuant to 28 U.S.C. S 1291. We conclude that it does not appear to a legal certainty that Crum's claim is for less than the jurisdictional amount. Accordingly, we reverse the district court's judgment. FACTS 2 Gail Crum filed a complaint in the district court against Circus Circus alleging that she was injured on the premises of the Circus Circus Hotel-Casino Theme Park in Las Vegas, Nevada. She alleged that while she was seated at a slot machine with her left hand draped over the back of the chair next to her, her left hand was crushed by a change cart being pushed by a Circus Circus employee. Subject matter jurisdiction was based on diversity of citizenship.1 The amount in controversy was alleged to exceed $50,000. The complaint further alleged that "the present amount of [Crum's] bills for medical services and treatment is in excess of $11,506;" that she was unable to continue her profession as a massage therapist; that she had been on disability for the past year; and that she faced a lifetime of pain and suffering with unspecified future medical expenses. 3 Circus Circus filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the complaint failed to allege an amount in controversy in excess of $75,000 as required by 28 U.S.C. S 1332(a). Circus Circus did not dispute diversity of citizenship. 4 In response to the motion to dismiss, Crum submitted a proposed amended complaint which alleged that the amount in controversy exceeded $75,000.2 The amended complaint also updated the amount of Crum's bills for medical services and treatment to $13,000; added an allegation that her future medical expenses would exceed $36,000; and estimated her loss of income to be $100,000.3 5 The district court dismissed Crum's action for lack of subject matter jurisdiction. Citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938), the district court stated that it was "satisfied that an amendment to plaintiff's complaint to allege the jurisdictional amount would be merely colorable for the purpose of conferring jurisdiction." The court added that "[e]specially suspicious in this regard is the representation in plaintiff's opposition that her special damages, alleged in the complaint as $11,506, can now be estimated at $36,000. It is fatally inconsistent with the following statement of plaintiff's counsel, made [in a written settlement demand] just nine days before the complaint was filed: `Please be advised that my client, Ms. Crum, has now completed her medical treatment and rehabilitation for the above captioned accident.' "4 This appeal followed. DISCUSSION A. Standard of Review 6 We review de novo a district court's dismissal for lack of subject matter jurisdiction. See Budget Rent-A-Car, Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997). We review for clear error the district court's findings of fact relevant to its determination of subject matter jurisdiction. See Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994). B. Amount in Controversy 7 District courts have jurisdiction in civil actions where there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. S 1332(a). Generally, the amount in controversy is determined from the face of the pleadings. See Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir. 1986). The sum claimed by the plaintiff controls so long as the claim is made in good faith. See St. Paul Mercury Indem. Co., 303 U.S. at 288. "To justify dismissal, `it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.' " Budget Rent-A-Car, 109 F.3d at 1473 (quoting St. Paul Mercury Indem. Co., 303 U.S. at 289). 8 It does not appear to a legal certainty that Crum's claim is really for less than the jurisdictional amount. Crum's amended complaint alleges that she has incurred in excess of $13,000 in bills for medical services and treatment; that she is unable to continue with her profession as a massage therapist and has been on disability for the last year; that her lost income is estimated to be in excess of $100,000; that she has estimated future medical expenses in excess of $36,000; and that her injuries will cause a lifetime of pain and suffering. Based on these allegations, it does not appear legally certain that Crum cannot recover more than $75,000. See 28 U.S.C. S 1332(a). 9 The district court determined that amendment of Crum's complaint to allege the proper jurisdictional amount "would be colorable merely for the purpose of conferring jurisdiction." See St. Paul Mercury Indem. Co., 303 U.S. at 289 (stating that "if, from the proofs, the court is satisfied to [a legal certainty] that the plaintiff never was entitled to recover [the amount claimed], and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed"); see also Pachinger, 802 F.2d at 364 (stating that a defendant may secure a dismissal on the ground that it appears to a legal certainty that the claim is really for less than the jurisdictional amount when independent facts show that the amount of damages was claimed merely to obtain federal court jurisdiction). 10 The district court found it suspicious that Crum's special damages were alleged in the original complaint to be $11,506, but are alleged in the amended complaint to be $36,000. The two sums, however, represent different types of damages. The $11,506 described in the original complaint represented the "present amount of the bills for medical services and treatment." The $36,000 described in the amended complaint represents Crum's estimate of her "future medical expenses for maintenance." 11 The district court also cited LeBlanc v. Spector , 378 F. Supp. 301, 307-08 (D. Conn. 1973), for the proposition that "amending a jurisdictionally defective complaint merely to raise the prayer above the jurisdictional amount may be independent evidence the amendment was colorable for the purpose of conferring jurisdiction." The LeBlanc opinion, however, is distinguishable. The plaintiff in LeBlanc alleged that his damages were exactly $10,000.5 The court reasonably concluded that, absent a change in circumstances, amendment of this specific amount after a district court finding of a jurisdictional defect would provide evidence that the claim was inflated solely to exceed the jurisdictional threshold. See id. Here, by contrast, Crum did not place a specific dollar amount on her damages. Instead, the original complaint states only that Crum's damages exceed $50,000. 12 The district court stated that Crum's claim in her amended complaint of $36,000 for future medical expenses for maintenance was fatally inconsistent with a statement she made in her settlement demand that "Ms. Crum has now completed her medical treatment and rehabilitation for the above captioned accident." We disagree. Crum persuasively argues that the statement in the demand letter was only "an introduction to the insurance adjuster that treatment had reached such a point that settlement can now be negotiated," not a concession that she would never have any future medical expenses related to her hand. Crum also points out that she alleged in her original complaint that her "injuries . . . will cause continuous pain and suffering and need for future medical treatment." 13 We conclude that it does not appear to a legal certainty that Crum's claim is really for less than the jurisdictional amount of $75,000.01 required by 28 U.S.C. S 1332(a) (Supp. IV 1998). Accordingly, the district court's judgment dismissing the action is 14 REVERSED. Notes: 1 Crum alleges that she is a citizen of California and that the Circus Circus defendants are Nevada corporations. 2 28 U.S.C. S 1332(a) was amended in 1996 to increase the required amount in controversy from $50,000.01 to $75,000.01. See Dardovitch v. Haltzman, 190 F.3d 125, 135 n.4 (3d Cir. 1999) (citing Pub. L. No. 104317, 110 Stat. 3850 (1996)). The amendment took effect in January 1997. See id. Crum filed her complaint on February 27, 1998. Crum's counsel states she failed to make changes to the stock paragraphs and forms she uses for routine pleadings, and as a result the original complaint failed to allege that Crum's damages met the higher jurisdictional amount required by the amendment. 3 Crum proceeded under the mistaken belief that leave of court was required under Fed. R. Civ. P. 15(a) to amend her complaint. Under Rule 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." The defendants did not file an answer. Instead, the defendants filed a motion to dismiss. A motion to dismiss is not a "responsive pleading " within the meaning of Rule 15. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000). Accordingly, Crum did not need to obtain leave of court to file her amended complaint. 4 The settlement demand was submitted by the defendants in its reply to Crum's request to amend her complaint. The demand was for $300,000. 5 At the time LeBlanc was decided, 28 U.S.C. S 1332 provided that the amount in controversy must exceed $10,000.

816 F.2d 311 59 A.F.T.R.2d 87-943, 87-1 USTC P 9296 Gerald LYSIAK, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.Gerald LYSIAK, Plaintiff-Appellant,v.COMMISSIONER, District Director and Regional Director of theINTERNAL REVENUE SERVICE, Defendants-Appellees. Nos. 86-1371, 86-2454. United States Court of Appeals,Seventh Circuit. Submitted Feb. 26, 1987.Decided April 6, 1987. Gerald Lysiak, pro se. Michael L. Paup, Chief Appellate Section, Tax Div., Dept. of Justice, Roger M. Olsen and Jean Owens, Asst. Attys. Gen., Tax Div., I.R.S., Richard Farber, Tax Div., Dept. of Justice, and Michael J. Roach, Washington, D.C., John Daniel Tinder, U.S. Atty., Gerald A. Coraz, Asst. U.S. Atty., Indianapolis, Ind., for respondent-appellee. Before CUMMINGS, CUDAHY and MANION, Circuit Judges. PER CURIAM. 1 On February 6, 1987, this Court in Case No. 86-1371, 812 F.2d 1410, affirmed by unpublished order a decision of the Tax Court dismissing pro se appellant Gerald Lysiak's petition for redetermination of deficiencies. In that order we imposed a $1500.00 penalty against Lysiak under Rule 38, Fed.R.App.P., because his appeal was frivolous. We have not been advised that any payment has been received to date, but Lysiak has moved for leave to file a late petition for rehearing, claiming in part that he was unaware of the 14-day deadline set by Rule 40(a), Fed.R.App.P. 2 This is hardly Lysiak's first contact with this Court, or even the first time he has been sanctioned for making frivolous arguments in appeals related to the federal tax laws. In Lysiak v. Commissioner of Internal Revenue, 774 F.2d 1168 (7th Cir.1985), we imposed sanctions against Lysiak and his attorney for frivolous arguments made in support of Lysiak's claim that he was exempt from taxation as a member of a certain religious order. We also note that on May 1, 1986 we denied Lysiak's petition for a writ of mandamus in Lysiak v. U.S. Tax Court, Case No. 86-1404, in which he sought an order directing the Tax Court to reinstate a petition that had been dismissed for lack of prosecution. Although the arguments Lysiak made in support of his petition for mandamus were entirely without foundation, we imposed no sanction in that proceeding. 3 Lysiak has yet another appeal pending in this Court, and this one is frivolous as well. In Lysiak v. Commissioner of Internal Revenue, et al., Case No. 86-2454, Lysiak appeals an order of the district court dismissing his complaint for injunctive relief against officials of the Internal Revenue Service and the United States Tax Court. In this lawsuit Lysiak seeks no less than to restrain those officials from enforcing the federal tax laws. In this Court and in the court below, Lysiak claims that the government is without power to tax him because the 16th Amendment to the United States Constitution was never properly ratified, an argument that this court has repeatedly rejected. See United States v. Ferguson, 793 F.2d 828, 831 (7th Cir.1986); United States v. Thomas, 788 F.2d 1250, 1253-1254 (7th Cir.1986); United States v. Foster, 789 F.2d 457, 462-463 (7th Cir.1986). Although we suggested in Foster that this claim might be cognizable if "an exceptionally strong showing of unconstitutional ratification" were made, 789 F.2d at 463, Lysiak, like Foster and Thomas and Ferguson before him, has not even approached such a showing. Lysiak has now filed his brief in No. 86-2454, and it provides no reason to disturb the district court's decision. We will therefore affirm that judgment. 4 Because we find the arguments raised in No. 86-2454 to be frivolous, we are tempted to impose an additional penalty under Rule 38. We are concerned, however, that the pattern of baseless litigation generated by Lysiak, even after prior sanction, demonstrates that it would be fruitless simply to impose an additional monetary penalty. (In fact, the rehearing petition he has tendered in No. 86-1371 is primarily a rehash of prior frivolous arguments and offers no new assertions of any significance.) We know nothing of Lysiak's financial status, but he has not indicated that he is financially unable to pay the penalty we assessed. We are convinced that the mere imposition of further financial penalties will not adequately protect this Court or Lysiak's opponents from his abusive litigating. See Coleman v. Commissioner of Internal Revenue, 791 F.2d 68, 72 (7th Cir.1986) (discussing purposes behind sanctions for frivolous litigation). Additional action on our part is warranted. 5 A court faced with a litigant engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that litigant's access to the court. See generally In Re Urban, 768 F.2d 1497, 1500 (D.C.Cir.1985); Green v. Warden, U.S. Penitentiary, 699 F.2d 364 (7th Cir.1983). In fashioning such a remedy in Lysiak's case we act on our "obligation to protect and preserve the sound and orderly administration of justice," In Re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.1984). At the same time we must take care to protect Lysiak's undeniable right of access to the court's processes, see In Re Green, 598 F.2d 1126, 1127 (8th Cir.1979) (en banc ). 6 We also wish to observe that we have not yet given up on the efficacy of monetary sanctions, and will continue to impose them on Lysiak where circumstances warrant. Obviously monetary penalties are bound to be more effective if they are paid; accordingly the injunctive order entered below will remain in effect until Lysiak demonstrates that he has paid the penalty assessed against him in No. 86-1371. We are confident that the orders set forth below will allow us to avoid additional waste of the Court's and opposing lawyers' time and resources while allowing Lysiak access to this Court in the event that he presents a colorable claim. 7 ACCORDINGLY Lysiak's motion for leave to file a late petition for rehearing in No. 86-1371 is DENIED on grounds that the tendered petition lacks arguable merit. The district court's judgment in No. 86-2454 is AFFIRMED. The mandate in both those appeals shall issue forthwith. The clerk of this Court shall accept no further filings from Lysiak in either of these appeals. 8 IT IS FURTHER ORDERED that the following procedures shall, until such time as the Court may order otherwise, govern any appeals in this Court filed by Gerald Lysiak: 9 1. Upon receipt of the short record from a lower court clerk in any appeal filed by Gerald Lysiak, the clerk of this Court shall immediately issue an order holding all briefing in abeyance and directing that Lysiak file a petition for leave to appeal within 14 days of the date thereof. 10 2. In seeking leave to proceed on appeal Lysiak shall certify that his appeal is taken in good faith and that the claims he raises are not frivolous, and that they have not been raised and disposed of on the merits by this Court in previous appeals. He shall also attach a list of the issues he seeks to raise in the appeal. Failure to file this petition in complete form or within the 14-day deadline will be sufficient ground for denial of leave to appeal. 11 3. Upon timely receipt of a complete petition for leave to appeal, the Court shall direct the clerk of the appropriate lower court to transmit the full record of the underlying case. No further proceedings shall take place in this Court, nor shall any other filings be accepted, until a panel of three judges has reviewed the petition and the record to determine whether Lysiak's appeal presents a colorable claim. 12 IT IS SO ORDERED.

918 P.2d 1143 (1996) 81 Hawai`i 487 HAWAI`I LABORERS' TRUST FUNDS, (Health & Welfare Trust Fund by James L. Tom, Lito Alcantra, John Murchison, Harry Ushijima, Mel Cremer, Larry Cadiz, Manuel Oliveira, and Benjamin Saguibo; Pension Trust Fund by Richard Hirano, Charles Miyata, Ernie Bello, Randall Ching, Wilton Ching, Kathy Yoshikami, Robert Sueda, Norman Janicki, Jr., Larry Cadiz, Mel Cremer, Norman Janicki, Sr., Benjamin Saguibo, Marilyn Tanaka, and Larry Sadaba; Training Trust Fund by Stanley Wada, *1144 Gilbert Ho, Richard Honjiyo, John Murchison, Manuel Oliveira, Alvis McCann, Benjamin Saguibo, and Ryan Tohara; Vacation & Holiday Trust Fund by Robert Sueda, Tamateru Kodama, Leonard Song, Salvador Ambrocio, Ismael Solis and Mitchell Kalilimoku; Annuity Trust Fund by Richard Honjiyo, Walter Arakaki, Tamateru Kodama, Robert Sueda, Salvador Ambrocio, Rick Pagatpatan, Mitchell Kalilimoku, and Clayton Saguibo), Lienors-Appellants, v. MAUI PRINCE HOTEL, a Hawai`i corporation, and Makena Resort Corp., formerly known as Seibu Hawai`i, Inc., a Hawai`i corporation, Owner/Developer-Appellees; and Greenscape, Ltd., a California corporation, Contractor-Appellee; and Hunnicutt International, Inc., a Hawai`i corporation, Contractor-Appellee. HAWAI`I LABORERS' TRUST FUNDS, (Health & Welfare Trust Fund by James L. Tom, Lito Alcantra, John Murchison, Harry Ushijima, Mel Cremer, Larry Cadiz, Manuel Oliveira, and Benjamin Saguibo; Pension Trust Fund by Richard Hirano, Charles Miyata, Ernie Bello, Randall Ching, Wilton Ching, Kathy Yoshikami, Robert Sueda, Norman Janicki, Jr., Larry Cadiz, Mel Cremer, Norman Janicki, Sr., Benjamin Saguibo, Marilyn Tanaka, and Larry Sadaba; Training Trust Fund by Stanley Wada, Gilbert Ho, Richard Honjiyo, John Murchison, Manuel Oliveira, Alvis McCann, Benjamin Saguibo, and Ryan Tohara; Vacation & Holiday Trust Fund by Robert Sueda, Tamateru Kodama, Leonard Song, Salvador Ambrocio, Ismael Solis and Mitchell Kalilimoku; Annuity Trust Fund by Richard Honjiyo, Walter Arakaki, Tamateru Kodama, Robert Sueda, Salvador Ambrocio, Rick Pagatpatan, Mitchell Kalilimoku, and Clayton Saguibo), Lienors-Appellants, v. WAILEA RESORT COMPANY, LTD., a Hawai`i corporation, Owner-Appellee; and Greenscape, Ltd., a California corporation, Contractor-Appellee; and Hunnicutt International, Inc., a Hawai`i corporation, Contractor-Appellee. HAWAI`I LABORERS' TRUST FUNDS, (Health & Welfare Trust Fund by James L. Tom, Harry Ushijima, Lito Alcantra, John Murchison, Mel Cremer, Benjamin Saguibo, Manuel Oliveira, and Larry Cadiz; Pension Trust Fund by Richard Hirano, Stanley Wada, Ernie Bello, Randall Ching, Wilton Ching, Robert Sueda, Louanne Kam, Norman Janicki, Jr., Benjamin Saguibo, Mel Cremer, Norman Janicki, Sr., Larry Cadiz, Marilyn Tanaka, and Larry Sadaba; Training Trust Fund by Richard Honjiyo, Ryan Y. Wada, Gilbert Ho, John Murchison, Benjamin Saguibo, Alvis McCann, Manuel Oliveira, and Ryan Tohara; Vacation & Holiday Trust Fund by Tamateru Kodama, Robert Sueda, Leonard Song, Salvador Ambrocio, Benjamin Saguibo and Ismael Solis; Annuity Trust Fund by Walter Arakaki, Richard Honjiyo, Tamateru Kodama, Robert Sueda, Melvin Kalama, Salvador Ambrocio, Clayton Saguibo, and Rick Pagatpatan), Plaintiffs-Appellants, v. WAILEA RESORT COMPANY, LTD., a Hawai`i corporation, Defendants-Appellees; and John Does, 1-10, Defendants. HAWAI`I LABORERS' TRUST FUNDS, (Health & Welfare Trust Fund by James L. Tom, Harry Ushijima, Lito Alcantra, John Murchison, Mel Cremer, Benjamin Saguibo, Manuel Oliveira, and Larry Cadiz; Pension Trust Fund by Richard Hirano, Stanley Wada, Ernie Bello, *1145 Randall Ching, Wilton Ching, Robert Sueda, Louanne Kam, Norman Janicki, Jr., Benjamin Saguibo, Mel Cremer, Norman Janicki, Sr., Larry Cadiz, Marilyn Tanaka, and Larry Sadaba; Training Trust Fund by Richard Honjiyo, Ryan Y. Wada, Gilbert Ho, John Murchison, Benjamin Saguibo, Alvis McCann, Manuel Oliveira, and Ryan Tohara; Vacation & Holiday Trust Fund by Tamateru Kodama, Robert Sueda, Leonard Song, Salvador Ambrocio, Benjamin Saguibo, and Ismael Solis; Annuity Trust Fund by Walter Arakaki, Richard Honjiyo, Tamateru Kodama, Robert Sueda, Melvin Kalama, Salvador Ambrocio, Clayton Saguibo, and Rick Pagatpatan), Plaintiffs-Appellants, v. MAUI PRINCE HOTEL CORP., a Hawai`i corporation, and Makena Resort Corporation, a Hawai`i corporation, Defendants-Appellees; and John Does 1-10, Defendants. Nos. 18266[*] to 18269. Supreme Court of Hawai`i. June 18, 1996. Pablo P. Quiban (Reynaldo D. Graulty with him on the briefs of Graulty, Evangelista & Quiban), Honolulu, for lienors-appellants and plaintiffs-appellants Hawai`i Laborers' Trust Fund. Susan Oki Mollway of Cades Schutte Fleming & Wright, on the briefs, Honolulu, *1146 for owner/developer-appellees Maui Prince Hotel and Makena Resort Corp., contractor-appellee Greenscape, Ltd., and defendants-appellees Wailea Resort Company, Ltd. Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ. RAMIL, Justice. We are called upon to determine whether the Hawai`i State Mechanic's and Materialman's Lien Law,[1] in collecting delinquent trust fund contributions, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA).[2] Specifically, we are faced with the question of whether Hawai`i Revised Statutes (HRS) § 507-42 (1993)[3] may be used to effectuate the judgment of a federal district court, in order to recover delinquent ERISA contributions due the Hawai`i Laborers' Trust Fund (HLTF) on behalf of laborers who performed labor and improvements on the subject lien property. We hold that HRS § 507-42 is not preempted by ERISA and, accordingly, HRS § 507-42 may be used by trust funds to collect delinquent trust fund contributions. I. BACKGROUND This action arises out of the construction of the Makena and Wailea golf courses, which are owned by defendants-appellees Maui Prince Hotel Corporation and Wailea Resort Company, Ltd. (collectively, "Owners") respectively. For both projects, defendant-appellee Greenscape, Ltd., ("General Contractor") was the general contractor; and on both projects, General Contractor subcontracted with defendant-appellee Hunnicutt International, Inc. ("Subcontractor") to provide landscape and construction work for the golf courses. On both of these projects, labor was furnished by members of the Laborers' International Union of North America, Local 368, AFL-CIO ("Union"). Subcontractor contracted with Union for work to be performed on each of the projects. As part of their agreement, Subcontractor executed and delivered to Union certain labor agreements covering landscape and construction laborers in the State of Hawai`i. Under these agreements, Subcontractor promised to make certain contributions to the HLTF for each hour of work performed by the laborers. The dispute in this action arose when Subcontractor, who paid the laborers for their work, failed to make the agreed upon contributions to the laborers' ERISA trust fund as required by the labor agreements.[4] Upon completion of the projects, HLTF instituted civil actions against Subcontractor *1147 in the United States District Court for the District of Hawai`i (Case No. 92-00590 DAE and Civil No. 92-00463 HMF), to recover the unpaid trust fund contributions. On October 14, 1992, a default judgment was entered in favor of HLTF and against Subcontractor, in the amount of $39,076.56, for Subcontractor's failure to answer or otherwise plead. Upon receiving this favorable judgment from the federal district court, HLTF proceeded to enforce the judgment against Owners in the Second Circuit Court of the State of Hawai`i. Although Owners were not parties to the labor agreement between HLTF and Subcontractor, HLTF asserted that, under HRS § 507-42 (1993),[5] Owners were liable for Subcontractor's failure to pay the trust fund contributions because labor and improvements were furnished on their property. HLTF's action to enforce the federal court judgment in the circuit court consisted of two separate applications for mechanic's and materialman's liens in accordance with the provisions of HRS § 507-42. The lien actions were sought by HLTF to collect on the federal district court's judgment by attaching liens on Owners' real properties and improvements including both golf course projects. On April 21, 1993, an order directing a lien to attach was entered against both projects. On June 16, 1993, HLTF, asserting its right to foreclose on the liens that it had obtained, filed two separate actions to foreclose its mechanic's and materialman's liens. Although they are not ERISA parties,[6] Owners filed separate motions to dismiss or, in the alternative, for summary judgment, on ERISA preemption grounds, to defeat the foreclosure action. Owners argued that HRS § 507-42 "related to" employee benefit plans, and was therefore preempted by ERISA. Concluding that the actions were preempted by ERISA, the circuit court granted Owners' motions. The circuit court also considered and granted a motion made by HLTF to strike the affidavit of Gerald T. Johnson, who supported Owners' motion for summary judgment. In its order, the court concluded that the affidavit did not conform to Hawai`i Rules of Civil Procedure (HRCP) Rule 56(e) because the attached exhibits were not properly authenticated. HLTF thereafter timely appealed. On September 6, 1994, all four appeals (Supreme Court Nos. 18266, 18267, 18268, and 18269) were consolidated into the present case. II. STANDARD OF REVIEW We review the circuit court's grant of dismissal for want of subject matter jurisdiction[7] according to the standard set forth in Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 842 P.2d 634 (1992), aff'd ___ U.S. ___, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Reviewing an order granting a motion to dismiss on the ground that a claim was preempted by the Railway Labor Act, 45 U.S.C. §§ 151-188 (1988), this court announced that: [a] trial court's dismissal for lack of subject matter jurisdiction is a question of law, reviewable de novo. McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989); see also Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). Moreover, we adopt the view of the Ninth Circuit Court of Appeals in Love v. United *1148 States, 871 F.2d 1488 (9th Cir.1989), opinion amended on other grounds and superseded by Love v. United States, 915 F.2d 1242 (9th Cir.1989): Our review [of a motion to dismiss for lack of subject matter jurisdiction] is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Love, 871 F.2d at 1491 (citations omitted). Norris, 74 Haw. at 240-41, 842 P.2d at 637 (brackets added). III. DISCUSSION A. Federal Preemption To provide a framework for our analysis, we begin by first declaring that "the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)) (brackets in original). Indeed, the question of whether a certain state action is preempted by federal law is one of congressional intent. Accordingly, the purpose of Congress is the "ultimate touchstone." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189-90, 55 L.Ed.2d 443 (1978))). Congress's purpose may be stated explicitly in a statute's language or contained implicitly in the statute's structure and purpose. Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604] (1977). For example, state law is preempted if it actually conflicts with federal law, even in the absence of an express congressional command. Pacific Gas & Elec. Co. v. Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 204 [103 S.Ct. 1713, 1722, 75 L.Ed.2d 752] (1983). State law also is preempted if federal law "so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 [102 S.Ct. 3014, 3022, 73 L.Ed.2d 664] (1982) (quoting Rice, 331 U.S. at 230 [67 S.Ct. at 1152]). Both of these principles of preemption apply in the case of ERISA. Marilyn Klinger & James P. Diwik, ERISA Preemption and the Surety, 29 Tort & Ins. L.J. 111, 112 (1993). Accordingly, the primary question before us is whether Congress, in ERISA, expressly or impliedly intended to preempt Hawai`i's generic mechanic's and materialman's lien law; and if Congress' intent is not "clear and manifest," we apply the basic rule disfavoring federal preemption of state laws. Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617. B. ERISA Preemption In the introduction to the statute, Congress defined the policy goals of ERISA:[8] *1149 [T]he policy of [ERISA is] to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. ERISA § 2(b), 29 U.S.C. § 1001(b) (1988) (emphases added). Thus, Congress enacted ERISA in 1974 to protect plan participants and beneficiaries from abuses and mismanagement in the administration of employee pension and benefit plans. Secondly, Congress provided the preemption clause of § 514(a) to protect plan administrators from the "burden that would be imposed by a patch work scheme of regulation." Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 11-12, 107 S.Ct. 2211, 2217, 96 L.Ed.2d 1 (1987). To enforce the goals of ERISA, the drafters developed a three-step process to determine the impact of ERISA on state laws. First, the drafters constructed a broad preemption clause stating, "Except as provided in subsection (b) of this section [the savings clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." ERISA § 514(a), 29 U.S.C. § 1144(a) (1988). Thus, "ERISA involved not only the creation of new law but also the displacement of a larger body of existing state law." James D. Hutchinson & David M. Ifshin, Federal Preemption of State Law Under the Employee Retirement Income Act of 1974, 46 U. Chi. L.Rev. 23, 34 (1978). . . . Second, to mitigate the harsh impact of the preemption clause on the displacement of state power, ERISA's drafters included a "savings clause," which returned to the states the power to regulate traditional areas of commerce—insurance, banking, and securities. [See] ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A) (1988). State law that regulates these areas is thus "saved" from the broad sweep of ERISA's preemption clause. Third, the drafters modified the scope of ERISA's savings clause through the "deemer clause." [See] ERISA § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (1988). The deemer clause qualifies the savings clause by providing that an employee benefit plan cannot be deemed an insurance company solely for the purpose of a state law which "purport[s] to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." [See] ERISA § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (1988). Swedback, supra, at 763-65 (brackets and emphasis added). The United States Supreme Court has dealt extensively with statutory interpretation issues in ERISA. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Noting that courts must "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose," FMC Corp., 498 U.S. at 57, 111 S.Ct. at 407 (quoting Park `N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 661, 83 L.Ed.2d 582 (1985)), the United States Supreme Court carefully and consecutively addressed each significant phrase within section 514's clauses. In measuring the breadth of ERISA's preemptive effect, the most obvious ambiguity concerns the meaning of "relates to."[9] Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 *1150 Harv. J. on Legis. 35, 47 (1996). In light of this ambiguity, HLTF contends that the trial court erred in holding that HRS § 507-42 "relates to" employee benefit plans.[10] We must therefore determine in the instant case whether HRS § 507-42 is expressly preempted by ERISA, i.e., whether HRS § 507-42 falls within the scope of ERISA's preemption clause. If not explicitly preempted by ERISA, the next question is whether HRS § 507-42 conflicts with ERISA and thus is impliedly preempted. In doing so, we must first examine cases decided by the Supreme Court that address the term "relate to." 1. Cases Addressing the Term "Relate To" Shaw, supra, represents the Court's first look at the scope of ERISA's preemption clause. In the early 1980s, several airlines and other employers sought injunctive relief in federal court regarding the pregnancy provisions of the New York Human Rights Law and the New York Disability Benefits Law. Shaw, 463 U.S. at 88, 103 S.Ct. at 2895. The combined effect of the laws forbade employment discrimination on the basis of pregnancy and required employers to offer disability benefits for pregnancy and other nonoccupational disabilities. Id. at 88-90, 103 S.Ct. at 2895-96. The employers argued that, insofar as the New York Human Rights Law related to employee benefit plans, ERISA operated to preempt state law. Id. at 92, 103 S.Ct. at 2897. Seeking the broadest interpretation of the preemption clause, the employers claimed that the state could not directly regulate ERISA-covered benefit plans. Id. at 100-01, 103 S.Ct. at 2901-02. On the other hand, the New York Commission of Human Rights focused on section 514(d) of ERISA which provides, "§ 514(a) [the preemption clause] shall not `be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.'" Id. The Commissioner contended that New York's Human Rights Law provided "a means of enforcing the Pregnancy Discrimination Act of 1978 which made discrimination based on pregnancy unlawful under Title VII of the Civil Rights Act of 1964." Id. The United States Supreme Court held that the New York Humans Rights Law and Disability Benefits Law most definitely related to employee benefit plans. Id. at 96, 103 S.Ct. at 2899-2900. Applying the "plain meaning test," by adopting the Black's Law Dictionary definition,[11] the Court held that, "[a] law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Id. at 96-97, 103 S.Ct. at 2900. Because the New York Human Rights Law "has a connection with or reference to" employee benefit plans, the law could be preempted, but "only insofar as it prohibit[ed] practices that [are] lawful under federal law." Id. at 108, 103 S.Ct. at 2906. Following Shaw, the United States Supreme Court in Metropolitan Life Ins., supra, addressed ERISA preemption involving a Massachusetts statute that required minimum mental health care benefits for residents covered by general health insurance policies. Noting that the ERISA preemption clauses were "perhaps not a model of legislative drafting," the Court held that, although the Massachusetts's statute related to employee benefit plans, it was not preempted by ERISA because the state statute was one that regulated insurance. Metropolitan Life Ins., 471 U.S. at 739, 105 S.Ct. at 2388-89. In 1987, the Court, in Pilot Life Ins., supra, addressed ERISA preemption that concerned common law contract and tort claims against an insurance company that issued a group employer's policy. The Court held that: *1151 [t]here is no dispute that the common law causes of action asserted in Dedeaux's complaint "related to" an employee benefit plan and therefore fall under ERISA's express preemption clause, § 514(a). In both Metropolitan Life Ins. and Shaw, we noted the expansive sweep of the pre-emption clause. In both cases "[t]he phrase `related to' was given its broad commonsense meaning, such that a state law `relate[s] to' a benefit plan `in the normal sense of the phrase, if it has a connection with or reference to such a plan[.]'" Pilot Life Ins., 481 U.S. at 47, 107 S.Ct. at 1553 (citation omitted). See also The Meadows v. Employers Health Ins., 47 F.3d 1006, 1008-09 (9th Cir.1995). In 1988, the Court clarified the preemption issue in Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). In Mackey, the issue concerned the extent to which ERISA preempts Georgia's general garnishment statute and a specific Georgia statute expressly governing the garnishment of benefits due to employee welfare benefit plan participants. The issue was before the Court because judgment creditors of plan participants were attempting to garnish the plan participants' benefits. The Court had no trouble in concluding that Georgia's specific benefit garnishment statute "relates to" an employee benefit plan and is therefore preempted. As the Court stated, "[t]he Georgia statute at issue here expressly refers to—indeed, solely applies to—ERISA employee benefit plans." Id. at 829, 108 S.Ct. at 2185. Of particular interest is the Court's further comment: The possibility that [the Georgia statute] was enacted by the Georgia Legislature to help effectuate ERISA's underlying purpose... is not enough to save the state law from pre-emption. "The pre-emption provision [of § 514(a) ] . . . displace[s] all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirements." Id. With respect to Georgia's general garnishment statute, the Court held that employee welfare benefit plan payments can be garnished because ERISA does not preempt such state laws. The Court so held notwithstanding the argument that plan administrators become parties to a suit when an employee welfare benefit plan is garnished and must respond and deposit the demanded funds due the beneficiary-debtor, thereby incurring administrative burdens and costs. The Court held that Congress did not intend to forbid the use of state-law execution mechanisms against welfare benefit plan participants, even when those mechanisms prevent those participants from receiving their benefits. Id. at 836, 108 S.Ct. at 2188-89. In 1990, the United States Supreme Court addressed ERISA preemption in yet another case, FMC Corp., supra, relating to the subrogation of medical expenses. The Court held that the Pennsylvania statute in question had a "reference" to benefit plans governed by ERISA inasmuch as: [t]he statute states that "[i]n actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from claimants' tort recovery with respect to ... benefits ... paid or payable under section 1719." Section 1719 refers to "[a]ny program, group contract or other arrangement for payment of benefits." These terms "includ[e], but [are] not limited to, benefits payable by a hospital plan corporation or a professional health service corporation." FMC Corp, 498 U.S. at 59, 111 S.Ct. at 408 (brackets added). Another example of the Supreme Court's treatment of ERISA preemption is Ingersoll-Rand, supra. Ingersoll-Rand addressed whether ERISA preempts a state common-law claim that an employee was discharged unlawfully in order to prevent his attainment of benefits under an ERISA plan. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 481-82. After emphasizing the breadth of the preemption clause, the Court explained the basis for that expansive scope: The key to § [514(a) ] is found in the words "relate to." Congress used those words in their broad sense, rejecting more limited pre-emption language.... Moreover, *1152 to underscore its intent that § [514(a) ] be expansively applied, Congress used equally broad language in defining the "State law" that would be preempted. Such laws include "all laws, decisions, rules, regulations, or other State action having the effect of law." 29 U.S.C. § 1144(c)(1). Id. at 138-39, 111 S.Ct. at 482-83 (brackets added). The Ingersoll-Rand Court went even further and stated that the state law must relate to a benefit "plan" in order for preemption to apply. Id. at 139, 111 S.Ct. at 482-83. The distinction between an ERISA plan and benefits was emphasized in Fort Halifax Packing, supra, where the Court said: The purposes of ERISA's pre-emption provision make clear that the ... statute in no way raises the types of concerns that prompted pre-emption. Congress intended pre-emption to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations. This concern only arises, however, with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer's obligations. It is for this reason that Congress pre-empted state laws relating to plans, rather than simply to benefits. Only a plan embodies a set of administrative practices vulnerable to the burden that would be imposed by a patchwork scheme of regulation. Fort Halifax Packing, 482 U.S. at 11-12, 107 S.Ct. at 2217-18. "Thus, in order to prevail, a plaintiff must plead, and the court must find, that an ERISA plan exists and the employer had a pension-defeating motive in terminating the employment." Ingersoll-Rand, 498 U.S. at 140, 111 S.Ct. at 483. Because the court's inquiry must be directed to the plan, this judicially created cause of action "relate[s] to" an ERISA plan as opposed to benefits. Id. In 1992, the Supreme Court dealt with ERISA preemption concerning a state statute involving health insurance coverage for injured workers eligible for worker' compensation benefits in District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992). The Greater Washington Court stated that a state law is not preempted by ERISA if the state law has only a "tenuous, remote, or peripheral" connection with covered plans as is the case with many laws of general applicability. Id. at 130 n. 1, (citing Shaw, 463 U.S. at 100, n. 21, 103 S.Ct. at 2901 n. 21; Mackey, 486 U.S. at 830-38 & n. 12, 108 S.Ct. at 2185-2190 & n. 12). Thus, in summary, the Court, recognizing that "Congress intended pre-emption to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations[,]" see Fort Halifax Packing, 482 U.S. at 11-12, 107 S.Ct. at 2217, has held that a state law directed at or having a reference to employee benefit plans, even if consistent with ERISA's substantive requirements, see Mackey, 486 U.S. at 829, 108 S.Ct. at 2185, "relates to" employee benefit plans and is thus expressly preempted by ERISA. It therefore follows that, under Mackey and Greater Washington, supra, a state law of general applicability is not expressly preempted by ERISA because it has only a "tenuous, remote, or peripheral" connection with covered plans.[12] In other words, state laws of general applicability do not fall within ERISA's sphere of regulation. 2. Mechanic's Lien Because the United States Supreme Court has never specifically addressed whether a neutral and generic state mechanic's and materialman's lien law, such as HRS § 507-42, "relates to" and is therefore expressly *1153 preempted by ERISA,[13] we look to Plumber's Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (App.1989), which is directly on point factually with the instant case. In Immel, an employee benefit plan sought to enforce a construction lien provided by Wisconsin law against a construction project in an attempt to collect delinquent contributions owed by a judgment-proof employer. The trial court concluded that the trust funds had a valid construction lien and, because the Wisconsin statute authorizing construction liens had only a "tenuous, remote and peripheral" effect on employee benefit plans, the Wisconsin statute was not preempted by ERISA. Id. 445 N.W.2d at 44. The Wisconsin lien statute,[14] similar to HRS § 507-42, benefited "any person furnishing labor."[15]Id. The Wisconsin Court of Appeals held that ERISA did not preempt a general creditor's rights created by Wisconsin law; hence, the employee benefit plan was able to use Wisconsin's construction lien statute to collect unpaid contributions due under the master labor agreement. Id. at 46. In addressing the issue of ERISA preemption, the Wisconsin Court of Appeals drew an analogy to the United States Supreme Court's ruling in Mackey, supra: The United States Supreme Court has held that Congress did not intend to prohibit the use of state law garnishment procedures to execute judgments against ERISA benefit plans. Mackey, 486 U.S. at 831-32 [108 S.Ct. at 2186-87]. If plans may use state law to collect on a judgment against a plan, certainly ERISA does not preempt the plan's ability to use those procedures to collect a judgment on behalf of the plan. Immel, 445 N.W.2d at 45. The Mackey court reasoned that if a state law may be asserted against a plan, then, equally, the plan may use that same state law against a third party. The Immel court commented that 29 U.S.C. § 1145 was the only ERISA provision relating to the collection of unpaid trust fund contributions.[16]Id. Because none of the ERISA provisions has established any methods for collecting judgments on unpaid contributions, the Immel *1154 court held that ERISA does not preempt ERISA-regulated funds from using state law available to general creditors to collect money judgments. Id. 445 N.W.2d at 45-46. With that analysis, the Immel court focused on the generic nature of Wisconsin's construction lien statute, which did not refer to employee benefit plans. Id. at 46. The court stated that Wisconsin's lien statute provided a "remedy available to a certain class of creditors that transcends ERISA obligations and concerns." Id. The Immel court therefore held that ERISA did not preempt the use of Wisconsin's construction lien statute by employee benefit plans to recover fringe benefit contributions. Id. 3. HRS § 507-42 is Not Preempted by ERISA Having reviewed state and federal case law relevant to the present case, we must now specifically determine whether Hawai`i's Mechanic's and Materialman's Lien Law, i.e., HRS § 507-42, "relates to" an ERISA plan. For the reasons set forth below, we hold that ERISA does not explicitly or implicitly preempt HRS § 507-42. a. HRS § 507-42 Does Not "Relate To" or "Purport to Relate To" Employee Benefit Plans. As set forth in part III.B.1, supra, in 1992, the United States Supreme Court held in Greater Washington, supra, that, under section 514(a), ERISA shall supersede any and all state laws insofar as they "may now or hereinafter relate to" any employee benefit plan covered by ERISA. Greater Washington, 506 U.S. at 129, 113 S.Ct. at 583. Accordingly, there is no ERISA preemption "if the state law has only a `tenuous, remote, or peripheral' connection with covered plans `as is the case with many laws of general applicability.'" Id. at 130 n. 1, 113 S.Ct. at 583 n. 1 (citing Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21; Mackey, 486 U.S. at 830-38, n. 12, 108 S.Ct. at 2185-90, n. 12). The test for preemption as set forth by the Court is best illustrated through Mackey, supra. As discussed in part III.B.1, supra, the Supreme Court in Mackey distinguished between state statutes that "single[] out" ERISA employee welfare benefit plans, on the other hand, and state statutes that are more "general" in nature, on the other. The Supreme Court held that, while the former state statutes are preempted by ERISA, the latter state statutes are not. Based on the Supreme Court's distinction in Mackey, we hold that HRS § 507-42, which is similar to Wisconsin's lien statute discussed in Immel, see part III.B.2, supra, is not expressly preempted by ERISA because it is a law of general applicability that does not relate to any employee benefit plan covered by ERISA. HRS § 507-42 merely provides a "remedy available to a certain class of creditors that transcends ERISA obligations and concerns." Immel, 445 N.W.2d at 46. b. Hawai`i's Lien Law is Not in Conflict with ERISA. Given that the purpose of ERISA's preemption provision is to "afford employers [or fund trustees of multiemployer benefit plans] the advantages of a uniform set of administrative procedures" in order to avoid "the burden that would be imposed by a patchwork scheme of regulation," see Fort Halifax Packing, 482 U.S. at 11-12, 107 S.Ct. at 2217, it does not follow that the fund trustees themselves are preempted from using a state law available to general creditors to collect money judgments. Indeed, under ERISA, trustees of multiemployer benefit plans are endowed with broad powers to collect fringe benefit contributions. Along with such powers, the trustees are responsible for collecting the contributions in a diligent, systematic, and reasonable manner. Central States Pension Fund v. Central Transport, Inc., 472 U.S. 559, 573-74, 105 S.Ct. 2833, 2841-42, 86 L.Ed.2d 447 (1985). The continuing problem of collecting employer contributions resulted in the enactment of the Multiemployer Pension Plan Amendments Act of 1980, P.L. 96-364, 94 Stat. 1208 (1980) (MPPA), in order to supplement ERISA. Additionally, Congress created a statutory cause of action by adding section 515 to ERISA, 29 U.S.C. § 1145. The intent of section 515 was "to promote the *1155 prompt payment of contributions and assist plans in recovering the costs incurred in connection with delinquencies." Staff of Sen. Comm. on Labor and Human Resources, 96th Cong., 2d Sess. S. 1076, The Multiemployer Pension Plan Amendments of 1980: Summary and Analysis of Consideration (Comm. Print 1980) at 43-44. Accordingly, in view of the policy reasons behind ERISA and MPPA, the use of Hawai`i's Mechanic's and Materialman's Lien Law, HRS § 507-42, to assist with this intent. Because Hawai`i's lien law is not in conflict with ERISA, it is not impliedly preempted. c. Congressional Intent Disfavors ERISA Preemption of State Lien Laws. Furthermore, in enacting the MMPA, Congress clearly sought to address the problems created by employer delinquencies in multiemployer benefit plans, to promote prompt payment of contributions, and to assist plans in recovering the costs incurred in connection with delinquencies. Staff of Sen. Comm. on Labor and Human Resources, 96th Cong., 2d Sess., S. 1076, The Multiemployer Pension Plan Amendments of 1980: Summary and Analysis of Consideration (Comm. Print 1980) at 43-44. Congress never intended to prevent the trust funds from using any neutral state statute that did not relate to employee benefit plans. "The Committee amendment does not change any other type of remedy permitted under State or Federal Law with respect to delinquent multiemployer plan contributions." H.R.Rep. No. 869, 96th Cong., 2d Sess, reprinted in 1980 U.S.C.C.A.N. 2993, 3038. Moreover, Congress's disfavor of ERISA preemption of state lien laws is apparent in a legislative proposal to clarify ERISA's preemption clause. Introduced on February 23, 1993, H.R. 1036 would amend ERISA section 514(b) to clarify that ERISA does not preempt state and local laws that provide additional remedies or other means for collection of employer contributions to an employee benefit plan. The bill was referred to the House Committee on Education and Labor and was approved by the full committee on June 23, 1993. A recent House of Representatives committee report suggests that Congress never intended at the time it enacted ERISA that the legislation would preempt state laws that provide a general means to employee benefit plans for the collection of amounts lawfully due from employers. The report states: There is no indication that Congress intended ERISA to deny employee benefit plans and participants access to State law remedies and other means for collecting employer contributions, such as lien laws. To the contrary, Congress has expressly declared the effective collection of employer contributions by multiemployer plans to be an important policy concern of ERISA. Thus, the congressional committee announced its intention to endorse the bill to counteract and clarify federal and state judicial decisions, discussed in this article, that reflect what Congress considers to be a disturbing tendency to uphold challenges to State laws establishing important worker protections on the basis of ERISA preemption, in spite of strong legal and policy evidence that Congress never intended these laws to be preempted. Among these are State laws affecting ... mechanics liens and other enforcement tools for multiemployer plans to collect delinquent pension contributions. Apparently, Congress also has found that the courts' application of ERISA preemption inequitably distinguishes between two groups of persons: (1) those employees who are not members of ERISA plans and therefore may resort to the use of mechanic's liens and other state remedies to ensure that their employers fulfill their employee benefit obligations; and (2) those employees who are members of ERISA plans and whose only recourse for collecting delinquent employer contributions is federal law. The committee report concludes that this distinction was never the intent of Congress in enacting the ERISA *1156 preemption provision. The congressional committee concluded its report by declaring that excepting state-law remedies or means for collection of contributions to employee benefit plans from ERISA's general rule of preemption not only would serve Congress's intent on the issue of preemption, but, more importantly, would advance the fundamental protective policies underlying ERISA by preserving pertinent state laws without interfering with the federal regulatory framework for employee benefit plans provided by ERISA. Klinger, supra, at 127-28 (footnotes omitted). See Sol v. AIG Hawai`i Ins. Co., 76 Hawai`i 304, 309, 875 P.2d 921, 926 (1994) (quoting In the Interest of John Doe, 76 Hawai`i 85, 92 n. 10, 869 P.2d 1304, 1310 n. 10 (1994) (quoting Franks v. City and County of Honolulu, 74 Haw. 328, 340 n. 6, 843 P.2d 668, 674 n. 6 (1993))) ("`[T]his court has used subsequent legislative history or amendments to confirm its interpretation of an earlier statutory provision.'") (citation omitted). In light of the legislative history and pending legislation noted above, it is apparent that Congress, having declared that "effective collection of employer contributions by multiemployer plans to be an important policy concern of ERISA," see Klinger, supra, at 127, did not intend to deny employee benefit plans access to state enforcement tools to collect delinquent contributions. d. ERISA Preemption in This Case "Would Ignore Relevant Federal Policy and Fly in the Face of Logic." We have expressly recognized in Hawai`i Carpenters' Trust Funds v. Aloe Development Corp., 63 Haw. 566, 633 P.2d 1106 (1981), that the trustees of employee benefit plans have a fiduciary duty to collect delinquent trust fund contributions, and, accordingly, may utilize HRS § 507-42 in the discharge of their fiduciary duties to the beneficiaries of the HLTF.[17] In Aloe, the general contractor appealed the circuit court's decision allowing a lien by the lienors-trustees of the employee benefit trust fund on land and improvements, pursuant to HRS § 507-42, in an attempt to enforce the employer's obligation to make fund contributions required under the collective bargaining agreement. Id. at 573, 633 P.2d at 1110. The Aloe court explained: "Congress directed that union welfare funds be established as written formal trusts, and that the assets be `held in trust' and be administered `for the sole and exclusive benefit of the employees ... and their families and dependents....' 29 U.S.C. § 186(c)(5)." NLRB v. Amax Coal Co., [453] U.S. [322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672] (1981). And in approving ERISA, Congress "essentially codified the strict fiduciary standards that a § 302(c)(5) trustee must meet." Id. Therefore, "ERISA requires a trustee to `discharge his duties ... solely in the interest of the participants and beneficiaries....' 29 U.S.C. § 1104(a)(1)." Id. at 332, 101 S.Ct. at 2796 (footnote omitted). "Indeed, the trustees have an obligation to enforce the terms of the collective bargaining agreement regarding employee fund contributions against the employer `for the sole benefit of the beneficiaries of the fund.'" Id. at 336-37, 101 S.Ct. at 2798 (quoting United States v. Carter, 353 U.S. 210, 220 [77 S.Ct. 793, 798, 1 L.Ed.2d 776] (1957)) (emphasis in the original). A determination that the trustees of the Hawai`i Carpenters' Trust Funds may not seek the aid of our mechanic's lien law in discharging this obligation would ignore relevant federal policy and fly in the face of logic. * * * * *1157 The remedial aspects of HRS § 507-42 have been construed liberally during its long history to accomplish a beneficent purpose of properly protecting "Mechanics and Materialmen who have furnished both time and material for others." See [Rep. No. 69 of the Judiciary Comm., Legis. Assembly—Session, 1888]. We perceive no basis for now concluding they are devoid of a capacity for adjustment to changing patterns of compensation induced by collective bargaining under the federal regime. We would not be recognizing the "vintage" qualities of our lien law if we were to hold it lacks such vitality. Aloe, 63 Haw. at 576-77, 633 P.2d at 1112-13 (footnotes omitted) (emphasis and brackets added). As indicated in Aloe, it is within the state's sovereign powers to determine that laborers enjoy superior creditor priority than that of other creditors who may have a financial interest in the assets of an owner who has made improvements on his or her property. Furthermore, a state has a right and obligation to protect the interests of its citizens within its borders. Therefore, by allowing ERISA beneficiaries to collect delinquent funds, Hawai`i is protecting those whom it is obligated to serve. As noted in Metropolitan Life Ins., supra, "States traditionally have had great latitude under their police powers to legislate as `to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Slaughter-House Cases, 16 Wall. 36, 62 [21 L.Ed. 394] (1873), quoting Thorpe v. Rutland & Burlington R. Co., 27 Vt. 140, 149 (1855). "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State." Metropolitan Life Ins., 471 U.S. at 756, 105 S.Ct. at 2398. IV. CONCLUSION Based upon the foregoing, we hold that ERISA does not preempt HRS § 507-42. Accordingly, we vacate the decision of the circuit court and remand with instructions to proceed on the foreclosure of the subject lien properties. NOTES [*] By order dated September 6, 1994, this court consolidated Nos. 18266, 18267, 18268, and 18269. Nos. 18266 and 18269 are companion mechanics' lien and foreclosure actions by the Hawai`i Laborers' Trust Funds against the Maui Prince Hotel and Makena Resort Corporation. Likewise, Nos. 18267 and 18268 are companion mechanics' lien and foreclosure actions by the Hawai`i Laborers' Trust Funds against Wailea Resort Company, Ltd. [1] The Hawai`i Mechanic's and Materialman's Lien Law is the lineal descendant of a measure adopted by the Legislative Assembly of the Kingdom of Hawai`i, Chapter XXI of the Laws of Hawai`i, 1888. Though the statute has been extensively amended, particularly in its procedural aspects, the essential purpose "to properly protect Mechanics and Materialmen who have furnished both time and material for others" has not been altered. Hawai`i Carpenters' Trust Funds v. Aloe, 63 Haw. 566, 571, 633 P.2d 1106, 1109 (1981). [2] ERISA's preemption clause states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." ERISA § 514(a), 29 U.S.C. § 1144(a) (1988). [3] HRS § 507-42 (1993) provides: When allowed; lessees, etc. Any person or association of persons furnishing labor or material in the improvement of real property shall have a lien upon the improvement as well as upon the interest of the owner of the improvement in the real property upon which the same is situated, or for the benefit of which the same was constructed, for the price agreed to be paid (if the price does not exceed the value of the labor and materials), or if the price exceeds the value thereof or if no price is agreed upon by the contracting parties, for fair and reasonable value of all labor and materials covered by their contract, express or implied. Where the terms of a lease, contract of sale, or instrument creating a life tenancy require the improvement of the real property, the interest of the lessor, vendor, or remainderman in the improvement and the land upon which the same is situated shall likewise be subject to the lien, and any provision for forfeiture or other penalty against the lessee, vendee, or life tenant in case of the filing of a mechanic's or materialman's lien or actions to enforce the same, shall not affect the rights of lienors. [4] HLTF alleges that Subcontractor had entered into a written agreement with Union and had "promised to contribute and pay employee benefit contributions once per month to the Trust Funds for each hour of work performed by Hunnicutt International, Inc.'s employees covered by the [collective bargaining agreement], together with liquidated damages, interest, attorney's fees, costs and disbursements," but that Subcontractor had failed to make these contributions. [5] See supra note 4. [6] ERISA relationships usually include: the trustees of the trust fund; the employer; and the employees or beneficiaries of the trust fund. Accordingly, the ERISA parties in this action are: HLTF, as trustees of the trust fund; Subcontractor, as the employer; and the members of HLTF who performed labor and improvements on Owners' property as the beneficiaries of the trust fund. Owners, however, are not ERISA parties because they were not a party or privy to the labor agreements. [7] The circuit court in granting the motions to dismiss, or, in the alternative, for a summary judgment, did not indicate whether the case was dismissed or decided on summary judgment grounds. We do not believe that the disposition was based on the latter because the underlying affidavit supporting the summary judgment was stricken by the circuit court. Based on the record, it is apparent that the circuit court's granting of dismissal was based on lack of subject matter jurisdiction. [8] Pub.L. No. 93-406, 88 Stat. 829 (1974) (codified at 29 U.S.C. §§ 1001-1461 (1988)). Shortly after ERISA's enactment, its constitutionality was challenged. The courts concluded that the Tenth Amendment [of the United States Constitution] ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") posed no bar to ERISA's operation because Congress correctly determined that employee benefit plans affect interstate commerce and thus warrant federal intervention. Furthermore, preemption of contemporaneous state legislation was necessary to accomplish the legislative purposes of ERISA. Because the Supremacy Clause states that the "Constitution, and the Laws of the United States ... shall be the supreme law of the Land," the Constitution itself allows for preemption of state laws that "interfere with, or are contrary to the laws of Congress." However, the "exercise of federal supremacy is not lightly to be presumed." Julie K. Swedback, The Deemer Clause: A Legislative Savior for Self-Funded Health Insurance Plans Under the Employee Retirement Income Security Act of 1974, 18 Wm. Mitchell L.Rev. 757, 769-70 (1992). [9] See supra note 3. In order to measure the breadth of ERISA's preemptive effect, the Court had to define which state laws "related to" employee benefit plans. [10] HLTF also contends that the trial court erred as a matter of law in admitting into evidence documents that were not supported by any affidavit. Because we are reviewing the trial court's dismissal for lack of subject matter jurisdiction and not on the court's summary judgment rulings, we will not address HLTF's second contention on appeal. [11] "`Relate. To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Shaw, 463 U.S. at 97 n. 16, 103 S.Ct. at 2900 n. 16 (quoting Black's Law Dictionary 1288 (6th ed.1990)). [12] See, e.g., United Wire v. Morristown Memorial Hospital, 995 F.2d 1179, 1192 (3rd Cir.1993) (holding that "[a] rule of law relates to an ERISA plan, if it singles out such plans for special treatment, or if the rights or restrictions it creates are predicated on the existence of such a plan."); Vartanian v. Monsanto Co., 822 F.Supp. 36, 42 (D.Mass.1993) (holding that ERISA does not automatically preempt all actions involving pension plans because it does not automatically preempt state laws that have only a tenuous, remote, peripheral impact); Westhoven v. Lincoln Food-service Products, 616 N.E.2d 778, 781 (Ind.Ct. App.1993). [13] The Ninth Circuit Court of Appeals addressed the State of Nevada's law making a general contractor liable for the debts of his or her subcontractors in Trustees of the Electrical Workers Health & Welfare Trust v. Marjo Corp., 988 F.2d 865 (9th Cir.1992). The Ninth Circuit held that the state law at issue in Marjo was preempted by ERISA to the extent that the state law's enforcement mechanism supplemented those provided by ERISA. Id. at 867. Furthermore, the California Supreme Court addressed California mechanic's lien law in Carpenters Southern California Administrative Corp. v. El Capitan Development Co., 53 Cal.3d 1041, 282 Cal.Rptr. 277 811 P.2d 296 (Cal.1991) (en banc), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 450 (1991), and held that it was preempted by ERISA because the law was specifically designed for, and made reference to, ERISA. Marjo and El Capitan are distinguishable from the present case. Unlike the state laws at issue in Marjo and El Capitan, HRS § 507-42 is a neutral/general statute which was not enacted in relation to ERISA employee benefit plans. [14] Wisconsin lien statute 779.036(1) states in pertinent parts: In any case in which an improvement is constructed or to be constructed pursuant to a contract and payment bond under s. 779.035, any person furnishing labor ... to any prime contractor or subcontractor shall have a lien on the money or other payment due or to become due the prime contractor or subcontractor; therefore, if the lienor, before payment is made to the prime contractor or subcontractor, gives written notice of the lienor's claim.... [15] Hawai`i's mechanic's lien statute, HRS § 507-42, is similar to the Wisconsin mechanic's lien statute in several respects: (1) both statutes contain language to protect the financial interests of "any person furnishing labor"; (2) both statutes have been characterized as being of a broad remedial nature and are liberally construed to effectuate the state's legislative intent of protecting the claims of laborers, tradesmen, and materialmen; (3) both statutes are of a generic nature; (4) both statutes create general creditors' rights; (5) both statutes operate independently of the establishment of an ERISA plan; and (6) neither statute refers to ERISA. [16] 29 U.S.C. § 1145 provides: Every employer who is obligated to make contributions to a multiemployer plan or under the terms of a collective bargained agreement shall, to the extend not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. [17] Owners contend that, in light of the fact that Aloe has never been cited in any published opinion in connection with any analysis of the ERISA preemption, "Aloe does not provide any precedent on which to base a reversal of the circuit court's decisions." We disagree. Aloe is important for the purpose of the appeal before us because it discusses in depth the policies of HRS § 507-42, the HLTF trustees' heavy reliance on state laws when managing the affairs of the trust fund, and the consequences of HRS § 507-42 being preempted. For these important reasons, we will not disregard Aloe for the sole reason that no published opinion regarding ERISA preemption has cited Aloe.

Filed 2/24/15 P. v. Gutierrez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D066167 Plaintiff and Respondent, v. (Super. Ct. No. RIF142787) JOHNNY ALFARO GUTIERREZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge. Reversed and remanded, with directions. Edward J. Haggerty, 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, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.  A jury convicted Johnny Alfaro Gutierrez of assault with a firearm (Pen. Code,1 § 245, subd. (a)(2)), intimidating a witness (§ 136.1, subd. (b)(1)), possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also sustained allegations that the assault, witness intimidation and gun possession counts were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b), and Gutierrez personally used a firearm in committing the assault and witness intimidation offenses within the meaning of former section 12022.5, subdivision (a) (repealed by Stats. 2010, ch. 711, § 4, effective Jan. 1, 2011), and section 1192.7, subdivision (c)(8). Additionally, the jury found Gutierrez committed the offenses while released from custody pending trial on a felony case. (Former § 12022.1 ( also repealed by Stats. 2010, ch. 711, § 4, effective Jan. 1, 2011).) In a bifurcated proceeding, the trial court found Gutierrez suffered a prior violent or serious felony or "strike" conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced Gutierrez to an indeterminate term of seven years to life on the witness intimidation count plus a determinate term of 12 years four months on the other convictions and allegations. In the first appeal, we reversed the indeterminate term of seven years to life on the intimidating a witness count and remanded the matter for resentencing. 1 All further statutory references are to the Penal Code. 2  Upon remand, the court resentenced Gutierrez to 28 years four months in prison, as follows: (1) on the count 1 assault with a firearm charge, six years (double the middle term of three years), plus 10 years for the gang enhancement under section 186.22, subdivision (b)(1)(C), plus four years for the firearm-use enhancement under section 12022.5, subdivision (a)); (2) on the count 3 possession of a gun by a felon charge, one year four months; (3) on the out-on-bail enhancement, two years; and (4) on the prior serious felony enhancement, five years. Gutierrez appeals, asserting the court, upon remand, erred in imposing both the section 12022.5 firearm enhancement and the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C). The People agree that this was error and that the matter must be again remanded for resentencing. We agree with both Gutierrez and the People that the sentence was erroneous and therefore remand this matter for resentencing. FACTUAL AND PROCEDURAL BACKGROUND2 At about 3:00 a.m., on April 27, 2008, Fernando Meza, a resident of the Casablanca area of Riverside, was awakened by the barking of his dog in the backyard. When Meza went to investigate, he saw Gutierrez on the opposite side of the rear wall of the yard spray painting the wall with graffiti; another man was watching him. The graffiti included "Negro," which is Gutierrez's gang moniker. 2 We take the factual background from our decision in a previous appeal in this matter, People v. Gutierrez (Oct. 28, 2013, D063498 [nonpub. opn.]), as to which we granted Gutierrez's request for judicial notice on October 24, 2014. 3  Meza told Gutierrez and his companion to go home. Gutierrez indicated to Meza that he was a member of the Casablanca street gang and Meza should not be telling him to go home. Gutierrez took out a gun, put it to Meza's forehead and told Meza he should go to sleep if he did not want to be killed. Meza told Gutierrez to do what he had to do. Gutierrez sprayed Meza's face and neck with the spray paint. By this time, Meza's wife had entered the backyard. Gutierrez told her to take Meza away if she did not want to see him dead. Meza's wife told Meza, "Let's go." He complied and the couple went inside. As Meza was walking to the house, Gutierrez said if Meza called the police, he would come back and kill him. Meza called 911. While on the phone, Meza and his wife heard gunfire. Riverside Police Officer Jerry Post was in the neighborhood when he heard four or five gunshots. About 30 seconds later, Officer Post was dispatched to Meza's residence. As Officer Post drove to Meza's residence, he saw a silver truck with several individuals inside. The vehicle was driving away from the area. Officer Post made a U-turn and started to follow the truck. He observed a gun being thrown from the vehicle and turned on his emergency lights and sirens, but the truck continued moving. The driver ran a stop sign and the truck subsequently struck a curb and wound up facing the wrong direction before stopping. The occupants of the truck exited the vehicle and began to run. Four of them were detained near the truck. Three others continued to flee. Police found Gutierrez in an RV parked behind a house in the neighborhood. Another person who fled from the truck was hiding under a trailer in the same yard. The third person who fled was not caught. Several of the truck occupants were members of the Vagabundos street gang. 4  Police brought Meza to the location where the truck occupants were detained. Meza identified Gutierrez as the person who pointed a gun at him, threatened to kill him and sprayed him with spray paint. Meza was unable to identify Gutierrez's companion at the fence because Meza had not paid much attention to him. Gutierrez stipulated that he is a member of the Vagabundos street gang and was a member on April 27, 2008. He also stipulated that Vagabundos is a criminal street gang within the meaning of section 186.22. Detective Joe Miera of the Riverside Police Department's gang unit testified the Casablanca Rifa is a criminal street gang with approximately 250 identified members and it operates in the Casablanca neighborhood of Riverside, which is bisected by Madison Avenue. East of Madison Avenue is controlled by the gang's Evans Street clique and west of Madison is controlled by the Fern Street clique or Vagabundos. Gutierrez is an admitted member of the Vagabundos clique. VBS is the common symbol and name of the Vagabundos clique. Some Vagabundos members use a drawing of a vagabond or homeless person as a symbol for the clique. Gutierrez has a tattoo on his head that reads "Vagabundos," a "VBS" tattoo on his chest, and a tattoo of a vagabond cartoon character. Underneath his "VBS" tattoo is "Casablanca" and on top of it is "Doing it 'till death." In addition to Gutierrez's "Negro" moniker, the graffiti on Meza's wall included "Dangs" and "Rich." Detective Miera testified "Dangs" stood for "Danger," which was Juan Medina's moniker, and "Rich" probably referred to Richard Silva. Medina and Silva are Vagabundos members who were in the silver truck that fled the scene of the assault 5 on Meza. Miera said that the appearance of a gang member's moniker on a wall indicates the gang member was present when the graffiti was placed on the wall. Miera explained to the jury that respect is an important concept within gang culture, and gang members expect to be respected. By committing crimes and violent acts, gang members instill fear in the community and discourage law-abiding citizens from testifying against them. The primary activities of the Casablanca Rifa gang are assaults with a firearm and narcotics sales. Detective Miera opined that Gutierrez's assault on Meza and his threat to kill Meza were committed for the benefit of, in association with, or at the direction of the Casablanca Vagabundos clique because such violent activities instill fear in the community and deter witnesses from testifying against gang members. Miera also opined Gutierrez was an active participant in Casablanca Vagabundos clique in April 2008. At trial, both Meza and his wife identified Gutierrez as the individual who was spray painting the wall and then pointed a gun at Meza. DISCUSSION Gutierrez contends the court erred in imposing both the four-year firearm enhancement under section 12022.5, and the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C). He asserts that imposition of both enhancements constituted improper dual use of the same firearm, in violation of section 1170.1, subdivision (f). This contention is well taken. Section 1170.1, subdivision (f), provides in relevant part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly 6 weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." In People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), the California Supreme Court held that the additional punishment for committing a violent felony to benefit a criminal street gang under section 186.22, subdivision (b)(1)(C), and the additional punishment for personal use of a firearm under section 12022.5, subdivision (a), "fall squarely within the limiting language of section 1170.1's subdivision (f)." (Rodriguez at p. 508; see also People v. Martinez (2012) 208 Cal.App.4th 197, 199 ["trial court improperly imposed enhancements for both personal firearm use (§ 12022.5, subd. (a)) and committing a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C))"].) Here, as in Rodriguez, the court erred in imposing both the personal firearm use enhancement and the gang enhancement. As the People concede, section 1170.1 prohibited the imposition of both enhancements, and consequently the trial court imposed an unauthorized sentence. We remand the matter to the trial court because "[t]he proper remedy" is not to strike one of the enhancements "but to reverse the trial court's judgment and remand the matter for resentencing," in order to "give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)." (Rodriguez, supra, 47 Cal.4th at p. 509.) In his reply brief, Gutierrez also requests that the trial court be instructed not to impose a sentence that is greater than the sentence the trial court imposed in this case. We decline Gutierrez's request to give an advisory opinion on a sentence the trial court may impose on remand. 7  DISPOSITION The matter is reversed and remanded for resentencing in a manner consistent with this opinion. NARES, Acting P. J. WE CONCUR: HALLER, J. McDONALD, J. 8 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-3605 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Miguel Garcia-Orosco, * * [UNPUBLISHED] Appellant. * ___________ Submitted: October 18, 2007 Filed: November 1, 2007 ___________ Before BYE, RILEY, and MELLOY, Circuit Judges. ___________ PER CURIAM. Miguel Garcia-Orosco pleaded guilty to conspiring to distribute methamphetamine (Count 1), which subjected him to a 10-year minimum prison term, see 21 U.S.C. §§ 846, 841(b)(1)(A); and possessing a firearm in furtherance of a drug- trafficking crime (Count 7), which subjected him to a mandatory consecutive 5-year minimum prison term, see 18 U.S.C. §§ 924(c)(1)(A)(i), 2. At sentencing, the district court1 determined an advisory Guidelines imprisonment range of 168-210 months for Count 1, granted the government’s motion for a substantial-assistance reduction, and 1 The Honorable Robert W. Pratt, Chief Judge, United States District Court for the Southern District of Iowa. sentenced Garcia-Orosco to consecutive prison terms of 80 months on Count 1 and 60 months on Count 7. On appeal, Garcia-Orosco’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing the 140-month sentence is unreasonable because the 18 U.S.C. § 3553(a) factors indicate a lesser sentence would suffice to meet sentencing goals. We conclude that the sentence is not unreasonable. See United States v. Booker, 543 U.S. 220, 260-64 (2005) (standard of review); United States v. Berni, 439 F.3d 990, 992 (8th Cir. 2006) (per curiam) (while extent of substantial-assistance departure remains unreviewable after Booker, sentence is still subject to overall review for reasonableness guided by § 3553(a) factors). Nothing in the record suggests that the district court considered an improper or irrelevant factor, failed to consider a relevant factor, or made a clear error of judgment in weighing appropriate factors. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (stating ways in which abuse of discretion may occur). After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we grant counsel leave to withdraw, and we affirm. ______________________________ -2- 

590 S.W.2d 813 (1979) GLOBE DISCOUNT CITY et al., Appellants, v. Myrtle K. LANDRY, Appellee. No. 6047. Court of Civil Appeals of Texas, Waco. November 15, 1979. Rehearing Denied December 27, 1979. Frank Gibbs, D. Craig Olivier, Vinson & Elkins, Houston, for appellants. Michael Y. Saunders, Rodney V. Steinburg, Helm, Pletcher, Hogan & Burrow, Houston, for appellee. Before McDONALD, C. J., and HALL and JAMES, JJ. OPINION McDONALD, Chief Justice. This is an appeal by defendants Globe Discount City and Hilma Schulze from $35,000 judgment against them in favor of plaintiff Landry, in a false imprisonment and malicious prosecution case. *814 Plaintiff Landry sued Globe Discount and its store detective, Ms. Schulze, for damages for false imprisonment and malicious prosecution, alleging: Plaintiff was shopping the Globe store December 8, 1975; that she took articles she intended to purchase to the checkout counter and placed them on the counter so the checkout girl could ring up the purchases; that after the articles were rung up plaintiff paid the amount the checkout girl said she owed and proceeded toward the exit; that she was forcibly stopped by defendant Schulze and accused of stealing a sweater; that she was detained and falsely imprisoned; that she was at the instance of Ms. Schulze placed under arrest by police officers; that defendants filed criminal complaint against her; that plaintiff plead not guilty, and on trial on March 2, 1976 was found not guilty; that plaintiff has suffered injury as a result of such occurrence; and damaged in the amount of $125,000. Trial was to a jury which found: 1) Plaintiff was falsely imprisoned by the actions of the employees of Globe Discount on December 8, 1975. 2) Plaintiff was maliciously prosecuted by Globe Discount. 3) Plaintiff was damaged $35,000. The trial court rendered judgment on the verdict for plaintiff for $35,000. Defendants appeal on 10 points: Point 1 asserts the trial court erred in refusing to admit testimony of Denise Carpenter of statements made by Brenda Durmon and Myrtle Landry in the presence of the store detective Hilma Schulze, as operative fact evidence limited to the issue of notice to Schulze of any such statements. Plaintiff was shopping in the Globe store on the evening of December 8, 1975; she picked up a sweater, a sack of candy and other items. Ms. Schulze, the store detective, was watching her. When plaintiff checked out her purchases at the cash register the sweater was not rung up and paid for. Ms. Schulze approached plaintiff as he was leaving the store with the unpaid for sweater, detained her, and initiated criminal prosecution for attempted theft. On trial for this offense plaintiff was found not guilty. Plaintiff testified that when she came to the checkout counter she laid all her items on the counter; that she noted the checkout girl did not ring up her candy and called this to her attention, that the sweater was laying with the other items; that she assumed it was rung up; that she paid the bill requested by the cashier; walked away and was stopped by Ms. Schulze. Plaintiff has steadfastly denied that she had shoplifted and denied intentionally taking the sweater without paying for same. Ms. Schulze testified she was watching plaintiff; that plaintiff put the sweater on the counter; that she heard plaintiff say, "you forgot my candy"; that after plaintiff paid the amount rung up by the cashier she put everything except the sweater in a bag; hung the sweater across her arm and proceeded to the door; that she [Ms. Schulze] stopped plaintiff; asked her, "if there was anything she had forgotten to pay for"; that plaintiff said no; that [Schulze] said, "Ma'am what about the sweater"; that plaintiff said the sweater was hers; [Schulze] asked if she had a sales receipt for it; then plaintiff tried to give the sweater to her; and plaintiff said, "the young lady forgot to ring it up". The sweater still had the price tag on it. Ms. Schulze then took plaintiff to an office in the store and questioned her. Present in the room were plaintiff, Ms. Schulze, store employee Carpenter and checker Durmon. Plaintiff denied that she had shoplifted and denied intentionally stealing the sweater. Ms. Schulze testified that when the four were in the office: Ms. Durmon, the cashier, stated that she, "asked [plaintiff] if the sweater was hers and she said yes"; that plaintiff then said, "No you didn't say that"; that Ms. Durmon then said she looked plaintiff in the eyes and said, "Yes I did. I asked if the sweater was yours"; and that plaintiff then responded, "Yes, yes, you did say that. You did say that". *815 Plaintiff testified that when she was going through the checkout the cashier [Ms. Durmon] did not ask her about the sweater; and that when she was in the office that she never admitted that she had been asked about the sweater. Ms. Durmon was unavailable at trial. The deposition testimony of Ms. Carpenter was offered in which Ms. Carpenter testified that she was in the [interrogation] room, that Ms. Durmon came into the room and that Ms. Durmon said to Mrs. Landry: "I asked you [at the cash register] if that was your sweater and Mrs. Landry said, yes, yes, you did". The offered testimony was excluded as constituting hearsay. The testimony was not offered for the purpose of proving the truth of the statements made by Ms. Durmon; but solely as evidence that some comments were made in front of Ms. Schulze (which whether true or false) became a part of her basis for deciding whether or not probable cause existed to initiate criminal prosecution. Article 1d VATS gives a person reasonably believing another has stolen or is attempting to steal property the privilege of detaining that person in a reasonable manner for a reasonable time for the purpose of investigating ownership of the property. The trial court instructed the jury that a merchant can only lawfully detain a customer when he has "reasonable ground to believe that a person has wrongfully taken merchandise" that a person "is falsely arrested for the crime of theft unless there is probable cause to believe that property is obtained without the owner's consent with the intent to deprive the owner of property"; and further that a person is maliciously prosecuted "when a criminal prosecution is pursued without probable cause and with malice; that probable cause means the existence of such facts and circumstances as would excite a reasonable belief in a reasonable mind that the person charged was guilty of the crime for which he was prosecuted"; and further that a person is not guilty of shoplifting unless "that person removes property with the intent to fraudulently take and deprive the owner of the value of the property". Thus, Ms. Schulze, to cause the detention (and imprisoning) of plaintiff to be false; and the prosecution of plaintiff to be malicious, had to act without probable cause, and the existence of probable cause depended upon a reasonable belief from the facts and circumstances that the plaintiff was guilty. In such a case the deposition testimony of Ms. Carpenter was admissible. Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Allstate Ins. Co. v. Godwin, Tex.Civ.App. (1 Houston) NWH, 426 S.W.2d 652; Texas Employers Ins. Assn. v. McDonald, Tex.Civ. App. (Austin) Er.Ref., 238 S.W.2d 817. Ms. Schulze testified to the jury that Ms. Durmon, the cashier, stated in the interrogation room that she asked plaintiff at the checkout if the sweater was hers and plaintiff said yes. Plaintiff testified that Ms. Durmon did not ask her about the sweater at the checkout, and that she had never admitted that she had been asked about the sweater. Determination of Ms. Schulze's probable cause, depending upon a reasonable belief by her of plaintiff's intentionally taking the sweater, was before the jury. They were entitled to the evidence of Ms. Carpenter substantiating Ms. Schulze in making that determination. We think the excluded evidence was crucial and harmful, and that point 1 must be sustained and requires a reversal of the case. Points 2 through 6 are no evidence points concerning Issues 1 and 2 and are overruled. Points 7 through 10 complain of the charge and are not reached. REVERSED & REMANDED.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/28/2019 09:06 AM CDT - 69 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 State of Nebraska, appellee, v. Lucio P. Munoz, appellant. ___ N.W.2d ___ Filed May 10, 2019. No. S-18-050. 1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. 2. Effectiveness of Counsel: Appeal and Error. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must spe- cifically allege deficient performance. 3. Appeal and Error. An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. 4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef- fective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclu- sively determine whether counsel did or did not provide effective assist­ ance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 5. Appeal and Error. In the absence of plain error, where an issue is raised for the first time in an appellate court, it will be disregarded inas- much as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. 6. Trial: Prosecuting Attorneys. When considering a claim of prosecuto- rial misconduct, an appellate court first considers whether the prosecu- tor’s acts constitute misconduct. 7. ____: ____. A prosecutor is entitled to draw inferences from the evi- dence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.  - 70 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 8. ____: ____. A prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct. 9. Rules of Evidence: Intent. The purpose of Neb. Rev. Stat. § 27-513(2) (Reissue 2016) is to prevent the jury from drawing an unfavorable infer- ence from a witness’ assertion of a privilege. 10. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. 11. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question. 12. ____: ____: ____. The record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. 13. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 14. ____: ____. To show that counsel’s performance was deficient, a defend­ ant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 15. Effectiveness of Counsel: Proof: Words and Phrases. To show preju- dice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. A rea­sonable probability is a probability sufficient to undermine confidence in the outcome. 16. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. Determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct requires an appellate court to first determine whether the petitioner has alleged any action or remarks that constituted prosecutorial misconduct. 17. Evidence. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  - 71 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 19. Criminal Law: Evidence. The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing. Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge. Affirmed. Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant. Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. I. INTRODUCTION In this direct appeal from criminal convictions, Lucio P. Munoz focuses on three incidents at trial: (1) a comment dur- ing the prosecutor’s opening statement about evidence not found, (2) a witness’ assertion of a testimonial privilege in the jury’s presence, and (3) expert testimony regarding blood spatter evidence. Because trial counsel did not object, Munoz alleges plain error and ineffective assistance of counsel. We find neither. The prosecutor’s statement was consistent with the evidence. The bill of exceptions does not show that the prose- cutor knew the witness would assert a privilege. And the blood spatter evidence was neither irrelevant nor unfairly prejudicial. We affirm the district court’s judgment. II. BACKGROUND On Friday, December 30, 2016, at approximately 10 p.m., Munoz knocked on Trudy Ziegler’s door. He told her that his girlfriend, Melissa May, had been raped that morning by a tenant of the same apartment complex where they all lived.  - 72 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 Ziegler told Munoz to call the police, and he did so from her apartment. Just after 11 p.m., two police officers arrived at the apart- ment complex. Their body cameras recorded the interaction. Munoz told the officers that May had been raped. He allowed the officers into his apartment, where an intoxicated May was asleep on Munoz’ bed. After Munoz woke her, May told the officers that she did not know why they had been called and Munoz told her to “tell them the truth.” May did not wish to make a police report. One of the officers told Munoz that when May was sober, she could come talk to the police. Munoz replied that she was not going to do so. He added, “But some- thing’s gonna happen, I know.” An upset Munoz returned to Ziegler’s apartment and said that May did not want to press charges. He asked “what do I do now,” and Ziegler told him “just love her all the more.” At approximately 2 a.m. on December 31, 2016, Munoz called his son, Martin Brady. Munoz told Brady that he “did something . . . bad” and that he wanted to kill himself. Brady’s girlfriend called the police to check on Munoz. The same two officers returned to Munoz’ apartment shortly after 3 a.m. Again, their body cameras recorded the interaction. Munoz said that he was feeling bad “because of what hap- pened.” He allowed the officers into his apartment. The door to his bedroom was closed, and he told the officers that his girlfriend had gone home. Munoz agreed to go to a hospital to speak with someone. He locked the deadbolt on his apartment door, and one of the officers drove him to the hospital. At approximately 8 a.m., Brady received a call from a doc- tor for Munoz “to get out of the . . . hospital.” Brady and his girlfriend picked up Munoz and took him to Brady’s house. Munoz stayed at Brady’s house the rest of the morning, and at some point, arrangements were made for Munoz to leave town. Brady explained that Munoz had talked about seeing family because it had “been awhile” and that Munoz had brothers in Texas and Illinois.  - 73 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 A friend of Munoz agreed to take Munoz to Illinois to visit one of his brothers. The friend asked if Munoz wanted to travel the next day, but Munoz said he wanted a ride as soon as pos- sible. So, the friend testified, they “gassed up, and headed out.” According to the friend, Munoz had no luggage or other items and he left Munoz in Illinois with Munoz’ brother. Meanwhile, Ziegler did not see Munoz or May on Saturday, which she said was unusual. On Sunday and Monday, Ziegler knocked on Munoz’ door, but there was no answer. On Tuesday, January 3, 2017, Ziegler asked the property manager to check on May. Using a master key to unlock the deadbolt, the prop- erty manager entered Munoz’ apartment. She opened the bed- room door and discovered May, deceased, on the bed. An autopsy revealed that May had suffered 37 stab wounds, and the cause of death was determined to be multiple stab wounds. The turquoise sweatshirt on May’s body appeared to match her top as depicted on the December 30, 2016, body camera footage. Evidence for a sexual assault kit was col- lected, and it showed no DNA profile other than that of May. Munoz’ brother in Texas began searching for Munoz due to a concern that “something had happened . . . where he live[s].” After making telephone calls, he discovered that Munoz was in Illinois. Munoz asked his brother to forgive him, but did not say for what. During later conversations, Munoz “said that he was going to die in prison.” Officers with the Scotts Bluff County sheriff’s office flew to Illinois to transport Munoz back to Scotts Bluff County. As they were going through the airport to catch a connect- ing flight, they heard someone playing a piano and Munoz said “they are playing my death song” and “I’m going to get the death penalty.” While waiting for a flight, Munoz asked the other officer questions about Nebraska’s death penalty, including “if it was voted back in” and the method of execution. The State charged Munoz with first degree murder and use of a deadly weapon to commit a felony, and the court  - 74 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 conducted a jury trial. Additional background concerning events occurring during trial will be set forth in the analy- sis section. The jury returned verdicts of guilty on both counts. The court imposed a sentence of life imprisonment for the murder conviction and of 20 to 40 years’ imprisonment for the use of a weapon conviction. This timely appeal followed. III. ASSIGNMENTS OF ERROR Munoz’ five assignments of error fall into two general cat- egories. He asserts as plain error that prosecutorial misconduct occurred during opening statements and that the court erred by permitting Brady to invoke his Fifth Amendment privilege in the presence of the jury. Munoz assigns that his trial counsel provided ineffective assistance by failing to object to the prosecutor’s opening statement, failing to demand compliance with Neb. Evid. R. 513(2), Neb. Rev. Stat. § 27-513(2) (Reissue 2016), and failing to challenge blood spatter evidence. [1,2] The argument section of Munoz’ brief contains a subsection concerning additional instances of alleged ineffec- tive assistance of counsel, but these issues were not assigned as error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.1 Moreover, assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance.2 We do not consider these additional unas- signed matters. IV. STANDARD OF REVIEW [3] An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly 1 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). 2 See State v. Mrza, 302 Neb. 931, ___ N.W.2d ___ (2019).  - 75 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 evident from the record, prejudicially affects a litigant’s sub- stantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.3 [4] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not preju- diced by counsel’s alleged deficient performance.4 V. ANALYSIS 1. Plain Error [5] Munoz presents two issues as a matter of plain error, because he did not object or otherwise preserve the issue for appellate review. In the absence of plain error, where an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.5 (a) Prosecutorial Misconduct Munoz contends that the following remarks by the prosecu- tor during his opening statement amounted to prosecutorial misconduct: There is some DNA evidence in this case and I think I told some of you that the last trial we had. The murder weapon was not found. His clothing with . . . May’s blood was not found. Of course, we have about [a] four hour time gap from the time the police were first there and the time — the second they were there. And, the clothes he 3 Id. 4 Id. 5 State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).  - 76 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 has when he is arrested in Illinois and are sent back here are not the clothes he left with. Those were changed. Munoz claims the above statements are problematic, because there was no evidence that Munoz hid or destroyed “blood” evidence or that May’s blood was found on any article of clothing belonging to Munoz. We begin with the observation that the jury was informed that opening statements are not evidence. The prosecutor told the jury, “This is opening statement, what we say right now is not evidence.” And although the court’s preliminary instruc- tions were not memorialized in the record, Munoz’ coun- sel stated: As [the judge] indicated in the preliminary instruction that he gave to you, we talked about opening statements. He indicated that the statements that the attorneys get to make at this time should not be considered as evidence. So anything that [the prosecutor] told you just a few min- utes ago should not be considered as evidence and don’t consider anything that I’m going to tell you is evidence as well. [6-8] When considering a claim of prosecutorial miscon- duct, an appellate court first considers whether the pros- ecutor’s acts constitute misconduct.6 A prosecutor is enti- tled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.7 And a prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct.8 The prosecutor’s opening statement did not constitute pros- ecutorial misconduct. The evidence at trial was consistent with the prosecutor’s opening statement: Neither the murder 6 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). 7 State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018). 8 State v. Swindle, supra note 6.  - 77 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 weapon nor any of Munoz’ clothing containing May’s blood was found, and Munoz was wearing different clothing at the time of his arrest than the clothing he was wearing when he left town. Because there was no prosecutorial misconduct, it follows that there can be no plain error. (b) Assertion of Privilege Munoz also claims that plain error occurred when Brady invoked his Fifth Amendment privilege in the jury’s presence. After Brady identified Munoz in the courtroom, the following colloquy occurred: [Prosecutor:] Okay. Do you then recall having a con- versation with him in the early [sic] December 31st of 2016? [Brady:] I would like to invoke my Fifth Amendment rights. [Prosecutor]: Okay. Judge, I’m going to go ahead and offer immunity. THE COURT: All right. Sir, the County Attorney has heard your exercise of your Fifth Amendment rights under the United States Constitution. Under Nebraska law if the County Attorney indicates that immunity will be granted you for anything you may say here in the courtroom, you are required to testify. So notwithstanding your exercise of your Fifth Amendment rights, because the County Attorney has extended you immunity, I’m ordering you to go ahead and answer his questions. [Brady]: Okay. Brady then proceeded to answer all questions posed to him. [9] Munoz argues that plain error occurred when Brady was permitted to invoke his Fifth Amendment privilege in the pres- ence of the jury. He relies on § 27-513(2), which states that “[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privi- lege without the knowledge of the jury.” We have explained  - 78 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 that the purpose of § 27-513(2) is to prevent the jury from drawing an unfavorable inference from a witness’ assertion of a privilege.9 We recently addressed the invocation of a privilege in the jury’s presence, but the circumstances here are distinguishable. In State v. Draper,10 the trial court permitted the defendant’s wife to assert her privilege against self-incrimination in the presence of the jury. We stated: “[A]ll parties knew that she would, before being granted immunity, invoke her privilege against self-incrimination. And the record fails to establish any basis justifying the assertion of that privilege in front of the jury.”11 In contrast, the bill of exceptions here does not indicate that any party or the court knew in advance that Brady would invoke his Fifth Amendment privilege against self-incrimination. Under the circumstances here, error is not plainly evident from the record. Munoz argues: “Clearly the prosecutor antici- pated that Brady would invoke his 5th Amendment right not to testify during his direct examination. Otherwise he would not have been prepared to immediately offer the witness immunity.”12 But it is just as conceivable that the criminal investigation had revealed Brady’s involvement was minimal and not worthy of prosecution, such that the prosecutor had no hesitation about offering immunity.13 The bill of excep- tions does not contain evidence showing that the parties or the court knew Brady would invoke his privilege. And, after being given immunity, Brady testified and was subject to cross- examination. We find no plain error. 9 See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015). 10 Id. 11 Id. at 789, 857 N.W.2d at 344. 12 Brief for appellant at 13. 13 See Neb. Rev. Stat. § 29-2011.02 (Reissue 2016).  - 79 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 2. Ineffective Assistance of Counsel Munoz’ other assignments of error allege that his trial coun- sel provided ineffective assistance. After setting forth general principles, we consider the specific allegations of ineffective assistance. (a) General Principles [10-12] Munoz has different counsel on direct appeal. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subse- quent postconviction proceeding.14 The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining fac- tor is whether the record is sufficient to adequately review the question.15 The record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appel- lant will not be able to establish prejudice, or that trial coun- sel’s actions could not be justified as a part of any plausible trial strategy.16 [13-15] Generally, to prevail on a claim of ineffective assist­ ance of counsel under Strickland v. Washington,17 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the 14 State v. Mrza, supra note 2. 15 Id. 16 See State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018). 17 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  - 80 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 defendant’s defense.18 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.19 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability suffi- cient to undermine confidence in the outcome.20 (b) Opening Statement [16] Munoz argues that his trial counsel was ineffective in failing to object to the prosecutor’s opening statement. Determining whether defense counsel was ineffective in fail- ing to object to prosecutorial misconduct requires an appellate court to first determine whether the petitioner has alleged any action or remarks that constituted prosecutorial misconduct.21 As we determined above, the prosecutor’s opening statement did not amount to prosecutorial misconduct. Because there was no basis to object, Munoz’ counsel did not perform defi- ciently in failing to object. (c) Failing to Demand Compliance With § 27-513 Munoz next contends that counsel was ineffective for failing to demand compliance with § 27-513. As noted above, the bill of exceptions does not reveal that any party knew Brady would assert his Fifth Amendment privilege, and Munoz does not cite to any evidence that such knowledge existed. Even if it were known that Brady would invoke the Fifth Amendment, Munoz cannot show prejudice due to counsel’s 18 State v. Mrza, supra note 2. 19 Id. 20 Id. 21 State v. Taylor, supra note 7.  - 81 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 failure to object and demand compliance with § 27-513. There is no indication that by calling Brady as a witness, the prosecu- tor was trying to build a case out of inferences from use of a testimonial privilege. Further, we are not presented with the situation where “‘inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination.’”22 Because Brady testified and was subject to cross-examination, Munoz cannot demonstrate a reasonable probability that the result of the proceeding would have been different if Brady had invoked the privilege outside of the jury’s presence. (d) Blood Spatter Evidence Finally, Munoz argues that his trial counsel was ineffective by failing to challenge blood spatter evidence as irrelevant and unfairly prejudicial. We disagree. The State’s blood spatter expert visited the scene and docu- mented bloodstain patterns. Based on the blood evidence, the expert gave “brief snapshots of what happened at differ- ent times”: So there were some impact patterns and castoff near the head of the bed and it’s my opinion that the victim was laying there wrapped up in a blanket on top of the blan- kets underneath her, basically, the black plaid blankets and the blankets underneath when this attack started. There were enough spatter patterns to indicate that some liquid blood had been shed while she was in that posi- tion, and that something impacted into it. I wasn’t able to determine what. Sometime during the attack she had turned around toward with her head toward the foot of the bed, her feet toward the head of the bed. And, after she was stabbed she had somehow was laying, as I mentioned before, laying head first on top of the white 22 State v. Draper, supra note 9, 289 Neb. at 786, 857 N.W.2d at 342.  - 82 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 comforter, her left arm down creating that pooling off of the side of the bed. Based on the position of her right arm and based on the lack of blood around her right arm, . . . it’s my opinion that somebody took her right arm and pulled her back up onto the bed. I don’t know if she was alive at that time, it’s possible. If she was in that final position when the spatter around her was created, which led me to believe it’s probably expectorate, but could, also, be spatter patterns from something impacting the liquid blood on her. When she was in this final position somebody covered her up within five to 30 minutes after her blood was deposited based on the (inaudible) on her hip. Somebody with blood on them, and I can’t say how much, but some liquid blood on them moved around to the foot of that bed creating those transfer patterns. And, after it was all done, whoever it was, walked into the bathroom, probably washed off their hands, washed off the weapon, creating the diluted blood around the rim of the sink. Munoz first argues that the evidence was irrelevant. Evidence which is not relevant is inadmissible.23 Munoz highlights that the blood spatter expert did not identify any evidentiary link between the blood evidence and any particular suspect nor any particular object associated with a suspect. [17] Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determina- tion of the action more probable or less probable than it would be without the evidence.”24 Relevancy requires only that the probative value be something more than nothing.25 The blood spatter evidence satisfied the low bar for estab- lishing relevancy. It showed the brutal nature of May’s death, 23 Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016). 24 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016). 25 State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).  - 83 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 which was consistent with the State’s theory that Munoz believed May was “cheating on” him and “react[ed] violently.” This alone satisfies the minimal requirement that the proba- tive value of the evidence be something more than nothing. Because a relevancy objection would have been futile, coun- sel did not perform deficiently by failing to object on rele­ vancy grounds. Munoz also claims that the blood spatter evidence was unfairly prejudicial. He points out that the blood spatter expert provided testimony regarding photographs that she used in her report. Munoz claims that the direct examination of the expert “was merely an opportunity for the State to overly empha- size the horrific and brutal nature of an unidentified assail- ant’s attack.”26 [18] Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.27 It speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged, commonly on an emo- tional basis.28 [19] Gruesome crimes produce gruesome photographs and evidence.29 But the State is allowed to present a coherent pic- ture of the facts of the crimes charged, and it may generally choose its evidence in so doing.30 Using the blood evidence found at the crime scene, the blood spatter expert helped explain what happened during the attack on May. Although 26 Brief for appellant at 15. 27 State v. Brown, supra note 25. 28 Id. 29 See State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016). 30 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).  - 84 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MUNOZ Cite as 303 Neb. 69 the expert could not identify May’s killer, we do not believe that the district court would have excluded the evidence on the basis that the probative value of the expert’s testimony was substantially outweighed by the danger of unfair prejudice. Accordingly, Munoz’ trial counsel did not perform deficiently by failing to object. VI. CONCLUSION We find no plain error with regard to the prosecutor’s open- ing statement or the invocation of Fifth Amendment privilege in the jury’s presence. With regard to Munoz’ claims of inef- fective assistance of trial counsel, we conclude that the record on appeal shows the claims to be without merit. We therefore affirm the judgment of the district court. A ffirmed. 

432 P.2d 768 (1967) Beverly J. CACIC, Plaintiff in Error, v. George J. CACIC, Defendant in Error. No. 22778. Supreme Court of Colorado, En Banc. October 30, 1967. Francis R. Salazar, Robert L. Pitler, Denver, for plaintiff in error. No appearance for defendant in error. DAY, Justice. Plaintiff-husband instituted an action for divorce against defendant-wife on the grounds of physical and mental cruelty and *769 sought custody of the two minor twin daughters of the parties, who, at the time of the commencement of the action, were approximately four and a half years of age. Defendant-wife denied the acts of cruelty and countcrclaimed for divorce on similar grounds and likewise asked that the custody of the children be awarded to her. The trial court granted a divorce to each party. The custody of the twin daughters—by that time five and a half years of age—was given to the father. The findings of the trial court to which this writ of error is directed were as follows: "The Court finds that there is sufficient evidence, based on cruelty, mental cruelty, on the part of each of these parties in this marriage of theirs, that each party should be granted a divorce in the matter on the basis of cruelty. "I further find that, for the time being,—and, this has been a difficult decision to make, and, I have given it a great deal of thought—that the children should be with the father, with the hope, and, I think I will make it a part of this order, that the, that there be further, and, diagnosis, as it were, and, findings on Maria as to what can and should be done with this little girl for her mental health." In the wife's motion for a new trial, which was overruled, there was raised for the first time the failure of the complaint to state the statutory ground upon which the divorce could be granted. The matter is made one of the assignments of error in this court. On this particular point, assuming the complaint to be deficient in failing to contain the necessary statutory language, such issue was not raised prior to or during the trial and was waived. Furthermore, the record amply supports the decree of divorce in favor of the husband. The wife also argues that the trial court's findings were insufficient to warrant granting of custody to the father. She alleges that in Colorado the mother should not be deprived of the custody of children of tender years unless the court finds, with sufficient support in the record, facts which will lead to the conclusion of law that the mother is unfit and that custody in her will endanger the welfare of the minor children. Hayes v. Hayes, 134 Colo. 315, 303 P.2d 238; Averch v. Averch, 104 Colo. 365, 90 P.2d 962. Our review of the record convinces us that the court's findings were, in fact, inadequate. The court did not make any finding of fact or even assert the conclusion of law that the mother was unfit to have custody of the minor daughters of the parties. The findings were also deficient in that there were no facts set forth or determination made that it was for the best interests of the children that their custody be given to the father. In order to award custody to any party, such findings and conclusions are necessary. Although there is evidence in the record which, if adopted by the court, might support such findings, there was conflict in the testimony bearing on the issue of the fitness of the mother and the best interests and welfare of the children. It is not the function of this court to search the record and supply the findings. We are not triers of fact. Greathouse v. Jones, 158 Colo. 516, 408 P.2d 439; Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399. The judgment and award of custody is, therefore, set aside and the cause remanded with directions that the trial court, after affording the parties opportunity to present additional evidence as may now be pertinent, enter findings of fact and conclusions of law consonant therewith. SUTTON and KELLEY, JJ., not participating.

66 Md. App. 348 (1986) 503 A.2d 1379 G & H CLEARING AND LANDSCAPING ET AL. v. DAVID G. WHITWORTH, JR. No. 649, September Term, 1985. Court of Special Appeals of Maryland. February 7, 1986. Melissa Rhea, Washington, D.C. and Richard M. McGill, Rockville, for appellants. Marc Seldin Rosen (Read K. McCaffrey and Whiteford, Taylor, Preston, Trimble & Johnston, on brief), Baltimore, for appellee. Argued before GILBERT, C.J., and WILNER and ROBERT M. BELL, JJ. WILNER, Judge. On November 15, 1983, appellants — a partnership, its two partners, and the wife of one of the partners — filed a three-count declaration against appellee in the Circuit Court for Anne Arundel County. Count One alleged that appellee was an attorney "licensed" to practice law in Maryland, that in 1978 he was employed to represent the partnership and its partners in an action filed in the Superior Court of the District of Columbia, that he "negligently failed to take all steps to fully represent [appellants], and more particularly negligently failed to file certain pleadings required to be filed by the Rules of the Court...," and that, as a result of that negligence, appellants sustained certain financial loss. Count Two incorporated the allegations of Count One, but added that appellee "negligently advised [appellants] to sign certain documents thereby exposing [them] to unnecessary risk of loss of their personal and real property"; as a result, appellants "were subjected to unnecessary legal process" and suffered certain other financial loss. Count Three appeared to charge appellee with fraud. After incorporating the averments of Counts One and Two, it alleged that appellee represented to appellants "that certain documents signed by them were a formality, and would not expose them or either of them to risk of loss of real property, although the statements and representations made by [him] as alleged hereinabove were known to [be] false and fraudulent by [appellee] at the time they were made by [him]." Count Three further asserted that appellants relied on appellee's representations, that they had a right to rely on them, that, had they known the truth, they would not have signed the documents, and that, as a result of signing the documents, they suffered financial loss. Appellee responded to this declaration with a motion to dismiss under Md.Rule 2-322,[1] claiming (1) the issuance of process — more particularly, the clerk's reissuance of process — was faulty, (2) by reason of the reference in Count One to 1978, the claims were barred by limitations, and (3) because each count "is so very vague and ambiguous," appellee was unable to frame an answer. "Specifically," he urged, "the defects contained in each of the Counts are, that no dates are mentioned in either Counts II or III, no specific facts are alleged in any of the Counts concerning the alleged torts of negligence and/or defamation [sic] and no details of any kind are alleged concerning the legal services involved and/or the relationship involved as between the parties." At a hearing on this motion, the court decided that there was no impropriety in the issuance of process and so rejected the first ground raised in appellee's motion. It also determined, however, that the declaration was vague, both in terms of the alleged conduct complained of and when that conduct occurred. In their argument on the motion, appellants asserted that appellee's employment continued into 1981, an averment not reflected in the declaration but possibly critical with respect to the defense of limitations. In response to a question by the court, counsel for appellee indicated that he filed a motion to dismiss rather than a motion for more definite statement (Md.Rule 2-322(d)) because of the possibility that the claim was barred by limitations. The court ultimately decided to grant the motion with 15 days leave to amend, a period appellants' counsel said would be adequate. For whatever reason, however, appellants failed to file an amended complaint within the time allotted, and so, on February 19, 1985, an order was filed dismissing the case with prejudice. This appeal ensued, in which appellants argue that their declaration "contained sufficient facts to support a cause of action for each count."[2] Unfortunately for appellants, that is not the issue before us. As noted, appellee's motion to dismiss sought to raise three defenses — a procedural irregularity in the clerk's reissuance of summons, limitations apparent on the face of the declaration, and such vagueness in the pleading as to render appellee unable to frame an answer. We are not concerned with the first of those defenses, for it was rejected by the court. It is important, in considering the other two, to look at how they were presented to and treated by the court. Under the pre-1984 Rules, there was some difference between law and equity as to how a defendant could raise a limitations defense. In an action at law, Rule 342 required limitations to be specially pled. Unless the time within which the action had to be filed was an element of the cause of action itself — part of the right to sue — rather than merely a condition to the remedy, that defense could not be raised by demurrer. The rationale for that doctrine was that "in an ordinary suit at law in which limitations go to the remedy rather than the right to a cause of action, it is not necessary for the plaintiff to anticipate the defense of limitations and plead facts in avoidance thereof in stating his cause of action." Hoover v. Williamson, 236 Md. 250, 256, 203 A.2d 861 (1964). In equity actions, Rule 371b permitted any defense which appeared "on the face" of the bill or petition to be raised either by demurrer or answer. Thus, in an equity case, "if the pleading of the plaintiff show[ed] on its face that the bar of time is applicable, limitations [could] be raised by demurrer." Hoover, 236 Md. at 256, 203 A.2d 861. Otherwise, the defense had to be raised by answer. With the merger of law and equity procedure, the new Rules, unfortunately, are not quite so clear in this regard. Under Rule 2-323(g), "statute of limitations" is an affirmative defense, to be raised in an answer to the complaint. To the extent that the matter is governed by that Rule, the defense still must be specially pled, the difference, in a law case, being that the paper in which it is to be set forth is denominated an answer rather than a plea. Compare the sample form answer in Niemeyer & Richards, Maryland Rules Commentary, 155-56, with former Md. Rules Appendix of Forms, Form 11. What is not so clear is whether the broad direction that "statute of limitations" be raised as an affirmative defense in an answer was intended to preclude its being raised in a motion to dismiss where the bar is either part of the cause of action or is apparent on the face of the complaint. Both Md. Rule 2-322(b), permitting the defense of "failure to state a claim upon which relief can be granted" to be raised by motion to dismiss, and Md. Rule 2-323(g), making limitations an affirmative defense to be raised in an answer, were derived from the Federal Rules of Civil Procedure — Rules 12(b) and 8(c), respectively. The Federal practice in this regard is therefore relevant. That practice, at least from the more recent cases, is that the defense of limitations may be raised by motion to dismiss when the time bar is apparent on the face of the complaint. See Conerly v. Westinghouse Electric Corp., 623 F.2d 117 (9th Cir.1980); Munshi v. New York University, 528 F. Supp. 1088 (S.D.N.Y. 1981); Hendrickson v. Buchbinder, 465 F. Supp. 1250 (S.D.Fla. 1979). See generally 2A Moore's Federal Practice ¶ 12.10; 5 Wright & Miller, Federal Practice and Procedure § 1277.[3] We see nothing in the "legislative" history of Rules 2-322(b) or 2-323(g) that would dictate a different result. If the time bar — whether part of the cause of action itself or merely a condition to the remedy — is apparent on the face of the complaint, the complaint would indeed fail to state a claim upon which relief can be granted. A motion to dismiss would therefore be an appropriate, although not a mandatory, way in which to assert that defense. See Antigua Condominium Association v. Melba Investors Atlantic, Inc., 65 Md. App. 726, 501 A.2d 1359 (1986). That is not the case, however, with respect to complaints about vagueness. Unless the complaint actually omits essential elements of the cause of action or is so utterly vague or deficient in articulation as not to allege a cognizable cause of action, the proper method for complaining about vagueness is a motion for more definite statement, not a motion to dismiss. See Sisk v. Texas Parks and Wildlife Dept., 644 F.2d 1056 (5th Cir.1981); FritoLay, Inc. v. WAPCO Constructors, Inc., 520 F. Supp. 186 (M.D.La. 1981); Mueller v. Rayon Consultants, Inc., 170 F. Supp. 555 (S.D.N.Y.), application for leave to appeal denied (2d Cir.), petition for rehearing en banc denied 271 F.2d 591 (2d Cir.1959); Rogers v. Dwight, 145 F. Supp. 537 (E.D.Wis. 1956), so construing F.R.C.P. 12. Md. Rule 2-322(d) provides that, "[i]f a pleading to which an answer is permitted is so vague or ambiguous that a party cannot reasonably frame an answer, that party may move for a more definite statement before answering." That was the very complaint made by appellee; as noted, his argument as to vagueness was simply that the declaration was too ambiguous to permit him to frame an answer. To the extent that complaint was valid — and, as we shall see, it was indeed valid — he was not entitled to have the declaration dismissed outright but only to have it amplified by a more definite statement. That, we think, is the relief actually granted by the court. Viewing the declaration in the light of the colloquy that occurred during the hearing, it would appear that the court was not convinced that appellants had utterly failed to state a cognizable claim, but only that a number of important details as to what occurred and when were lacking, and that appellee was entitled to a better statement of the claims. Notwithstanding appellee's tactical decision to seek outright dismissal on the limitations issue, the court effectively treated the motion to dismiss as a motion for more definite statement and gave appellants an opportunity to remedy the deficiencies in their declaration by filing an amended complaint.[4] We see nothing inappropriate in that procedure. While the Maryland Rules have often been characterized as "precise rubrics," which indeed they are, there is some flexibility in their application, especially as to matters of form. Thus, as was formerly the case with demurrers, motions to dismiss may be treated as motions for summary judgment (see Md. Rule 2-322(b); Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A.2d 1101 (1986)), and we see no reason why, in a proper case, such a motion cannot be treated as a motion for more definite statement.[5] Ordinarily, a court is free to grant a lesser form or amount of relief than that requested if it finds a basis for some relief but not that actually sought. The issue, then, is not whether the declaration sufficed to state one or more causes of action but whether it was so vague as to entitle appellee to a more definite statement of the claim. Viewing the case in that context, we find no error in the court's action. It may be that, in alleging that appellee was retained as counsel, that he failed to file necessary pleadings, and that, as a result, appellants suffered financial loss, Count One minimally sufficed to state an action in negligence, although any such holding would be extremely generous to appellants. But even assuming arguendo that Count One does indeed so suffice, in light of the vague reference to 1978, appellee was certainly entitled to know when these acts or omissions allegedly occurred in order to determine whether to assert limitations as a defense. Despite the incorporation into Count Two of "[a]ll of the allegations contained in Count One of this Declaration," thereby implying, if not actually stating, that Count Two also concerned the action in the District of Columbia, counsel informed the court that, except for the fact of appellee's employment, the factual bases of the two counts were unrelated. "It's a separate action," counsel argued, arising from acts performed in Maryland and having nothing to do with the proceeding in the District of Columbia. The court's response was an understatement: "Gee, we'd never be able to figure that one out, would we?" Count Three, according to counsel, also apparently arose out of acts committed in Maryland. It, too, we gather, was unrelated to the D.C. proceeding; whether it was connected with the activity complained of in Count Two is not clear. Given the reference to 1978 in Count One, limitations was an apparent issue in all three counts. A defendant reading this Declaration would really have no way of knowing how properly to answer it. Appellee clearly was entitled to a more definite statement of the claim in all three counts. We construe the court's grant of the motion with leave to amend as the equivalent of an order under Rule 2-322(d) for appellants to supply the additional information. When they failed to do so within the allotted time — 15 days — dismissal with prejudice was an appropriate sanction. See Rule 2-322(d). JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS. NOTES [1] Although the declaration was filed in November, 1983, service of process was not effected until August, 1984. The motion to dismiss was filed in September, 1984, and thus is governed by the new Rules that took effect July 1, 1984. [2] After entry of the February 19 order, appellants attempted to file an amended complaint, and a flurry of motions, including motions to strike or revise that order, ensued. As none of the motions to revise were filed within 10 days of the order, the time for appeal was not stayed. This appeal was noted before any of those motions were decided, and, as a result, the court ultimately denied the motions for lack of jurisdiction. See Tiller v. Elfenbein, 205 Md. 14, 106 A.2d 42 (1954). No complaint is made in this appeal about that action. [3] Moore, indeed, goes further, stating that "[e]ven where the defect does not appear on the face of the complaint, the defendant should be able to raise it by motion to dismiss accompanied by affidavits or other material, which Rule 12(b) permits the court to treat as a motion for summary judgment. If there is a question of fact as to the existence of the defense, the issue cannot be determined on affidavits." 2A Moore's Federal Practice ¶ 12.10, at pp. 12-85 to 12-87 (footnotes omitted). [4] The relevant colloquy was as follows: "COURT: Seems to me I'm going to have to grant the Motion as to the Three Counts and give you leave to amend. I'm surprised there wasn't a Motion filed for a More Definite Statement rather than a Motion to Dismiss. Was there some reason why? Isn't that what you filed, a Motion to Dismiss? MR. McCAFFREY [counsel for appellee]: Yes, Your Honor. COURT: Wouldn't you think it would've been better to file a Motion to — for a More Definite Statement? MR. McCAFFREY: With the Limitations possibility, Your Honor. Frankly I didn't want a More Definite Statement. If I had a chance of — COURT: You don't want a More Definite Statement? MR. McCAFFREY: No. COURT: All right. Well, here's what I'm going to do. I'm going to grant the Motion with leave to amend. How many days do you need to amend, sir? MR. McGILL [counsel for appellants]: Your Honor, fifteen days would be fine. COURT: All right, with fifteen days to amend. Now do you want me to put — do you want to put in the order the items that we need or do you think you understand it? MR. McGILL: Your Honor, I don't think it has to be in the order. COURT: All right, sir. Thank you very much for coming down. He'll prepare the order and I'll sign it when you have it done. MR. McGILL: Yes, Your Honor. COURT: So I'm grant[ing] the Motion on — as to the Three Counts and giving him fifteen days to amend, to the Plaintiff." [5] Although Md. Rule 2-322 is not entirely clear on the point, it would seem that leave to amend may, and in some instances should, be extended even where a pure motion to dismiss is granted. Under the former demurrer rule (Rule 345), leave to amend was to be liberally granted if the pleading deficiency was correctible, and that is also the practice under F.R.C.P. 12, from which Md. Rule 2-322 was derived. We see no indication that the Court of Appeals intended to change that practice.

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT May 14, 2012 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 12-8002 (D.C. No. 2:10-CV-00046-ABJ and LEONARD GEORGE PAGE, 2:08-CR-00006-ABJ-1) (D. Wyo.) Defendant – Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges. Leonard George Page, a federal prisoner proceeding pro se,1 seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Page is proceeding pro se, we construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe a [pro se litigant’s] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.”). (requiring a COA to appeal an order denying a § 2255 petition). He also seeks leave to proceed in forma pauperis. We deny both requests and dismiss this matter. I. BACKGROUND After a jury trial in the District of Wyoming, Mr. Page was convicted of one count of conspiracy to possess with intent to distribute and conspiracy to distribute fentanyl, resulting in death, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(C). The charge and conviction arose out a drug transaction involving a fentanyl patch. The transaction occurred in a Wyoming motel room on November 7, 2007, after which Stephanie Buckert died of acute fentanyl toxicity. A. Trial Testimony At trial, numerous witnesses offered testimony about the drug transaction. 1. Eric Conn’s Testimony Eric Conn, Ms. Buckert’s common-law husband, testified as follows: While he, Ms. Buckert, and Mr. Page were in Mr. Page’s pickup truck, Ms. Buckert asked if Mr. Page had any pain medication or narcotics. Mr. Page responded, “you know, sure,” and that they should go “down to Christy’s.” United States v. Page, 317 Fed. Appx. 806, 807 (10th Cir. 2009) (unpublished). Christy is Christy Harlow, Mr. Page’s sister. The three went to a motel where Ms. Harlow was staying. Ms. Harlow was in the motel room with her husband, Warren Harlow, and her friend, Lisa Mondragon. After Mr. Page asked Ms. Harlow where he could get pain medications, she made some calls on her cell phone. Mr. Page then borrowed Ms. Harlow’s phone to make -2- more calls. Mr. Page told Ms. Buckert that the pain medication would cost $60. Ms. Buckert gave Mr. Page $60 in cash. Mr. Conn and Ms. Buckert left the motel but returned shortly thereafter. Mr. Conn saw a folded, square paper or package on the bed. Ms. Buckert picked up the package and put it in her purse. Then Mr. Conn, Ms. Buckert, and Mr. Page left in Mr. Page’s truck. While in the truck, Mr. Page told Ms. Buckert that when she took the patch out of its packaging, she could heat it with a hair dryer to make it release the drugs faster. The next day, Mr. Conn kept a close eye on Ms. Buckert because she had recently been sick and in the hospital. At one point, a friend of Ms. Buckert’s stopped by Mr. Conn’s residence and noticed that Ms. Buckert was sweating. The friend and Mr. Conn took the blankets off Ms. Buckert and removed her shirt. They noticed the patch on her skin under her left breast.2 2. Ms. Mondragon’s Testimony Ms. Mondragon’s testimony about the drug transaction was similar to Mr. Conn’s. She recounted that she was in the motel room with Ms. Harlow, Mr. Harlow, Ms. Buckert, Mr. Conn, and Mr. Page. Ms. Buckert told Mr. Page that she would leave him the money and threw $60 on the bed (a $50 and $10 bill). Ms. Buckert and Mr. Conn then left the motel. Mr. Page picked up the money, putting the $50 bill back on the bed and the $10 bill in his pocket. About five minutes later, a woman, who Ms. Mondragon 2 “Th[is] was the first time that Mr. Conn . . . knew that Ms. Buckert had put the patch on . . . .” Page, 317 Fed. Appx. at 808. -3- later learned was Jhalia Hopkins, entered the room and handed Mr. Page a foiled envelope. Mr. Page handed Ms. Hopkins the $50 bill, and after a brief discussion about maintenance for her apartment, Ms. Hopkins left the room. Mr. Page then put the package on the bed. A few minutes later, Ms. Buckert and Mr. Conn returned. Ms. Buckert picked up the package, said “thanks” to Mr. Page, and then left with Mr. Conn. 3. Ms. Hopkins’s Testimony Ms. Hopkins, who was a codefendant in the criminal case, testified that she had sold fentanyl patches to Ms. Harlow on previous occasions. Mr. Page was present during some of these transactions. When he was present, Ms. Hopkins sometimes gave the patch to Ms. Harlow, who then gave it to Mr. Page. Ms. Hopkins provided a different account of the transaction in the motel room. On November 7, 2007, Ms. Harlow called Ms. Hopkins and asked her to bring a fentanyl patch to the motel. Ms. Hopkins delivered it to the motel room, where she saw Mr. Page, Ms. Harlow, Mr. Harlow, Ms. Mondragon, Mr. Conn, Ms. Buckert, and another woman she did not know. Ms. Hopkins spoke briefly with Mr. Page and Mr. Harlow about a job for her fiancé and maintenance on her apartment. She then made eye contact with Ms. Harlow, who said, “Come on,” and then went with her into the bathroom. Page, 317 Fed. Appx. at 810. Ms. Harlow paid Ms. Hopkins $60 (three $20 bills) in exchange for the patch, after which Ms. Hopkins left the motel room. 4. Mr. Page’s Testimony -4-  Mr. Page also testified. He admitted to using fentanyl patches in the past for his medical conditions. Mr. Page said he was in the motel room on November 7, 2007, but he claims that he entered the room alone and that Mr. Conn and Ms. Buckert came to the room later. According to Mr. Page, Mr. Conn had been asking him for a few days if he could get him pain medication. He asked again in the motel room. Mr. Page said that he did not have any. Mr. Page testified that he did not know what else happened in the motel room because he passed out on the bed after taking four Valiums that he had received earlier that day from Ms. Buckert. When he woke up, he saw Ms. Hopkins in the room. He did not talk to Ms. Hopkins but “thought at one point . . . that there was a patch on the bed.” Page, 317 Fed. Appx. at 810-11. He denied ever distributing a fentanyl patch to anyone and stated that he did not leave the motel room with a $10 bill in his pocket. B. Ms. Harlow’s Letters Although Ms. Harlow did not testify at trial, she sent two letters to Mr. Page while he was in prison. In the first, Ms. Harlow expressed her desire to have testified at Mr. Page’s trial. Ms. Harlow stated that she was “very sorry[.] I wish they would have called us to the stand[;] cause then you wouldn’t be in there & the [Government] knew it so made sure we weren’t called. They knew I would tell the truth & it would’ve set you free, pissess me off.” ROA, Vol. 1, at 83. -5-  She then provided her own account of the events on November 7, 2007. She explained that Mr. Page, his son, and Mr. Conn arrived together and were all drunk. Ms. Buckert arrived later. Ms. Hopkins then called the motel room phone and asked “if anyone wanted weed.” Id. at 85. Ms. Harlow asked if anyone wanted any, and “[Ms. Buckert] hollered out for [Ms. Hopkins] to bring a patch.” Id. Ms. Buckert asked how much the patch would cost, and Ms. Harlow told her $60. Ms. Buckert and Mr. Conn then left to go to the store. While they were gone, Mr. Page “passed out.” Id. Without saying when Ms. Buckert came back to the motel, Ms. Harlow said that Ms. Buckert “put 3 twenties at the edge of the bed opposite from where [Mr. Page was].” Id. Ms. Harlow left to buy candy at a nearby convenience store. On her way back, she saw Ms. Hopkins driving toward the motel. When Ms. Harlow returned to the motel room, she told Mr. Harlow that she was going downstairs to do laundry and then left the room. When she returned, Ms. Hopkins was gone. Mr. Harlow told her Ms. Hopkins had been in a hurry and tried to give him the patch. Because Mr. Harlow had spackling on his hands, he could not take it. Ms. Hopkins put the patch on the bed, took the money, and left. Ms. Harlow said that Ms. Mondragon was outside when this occurred. When Ms. Buckert and Mr. Conn returned, Ms. Buckert “saw the patch & headed to the bathroom.” Id. at 86. Ms. Harlow wrote that Mr. Conn then put the patch on Ms. Buckert’s right shoulder. Mr. Page woke up after these events transpired. “That’s how it [h]appened[.] I swear on Mom, Dad’s & Stevie’s graves.” Id. -6-  Ms. Harlow’s second letter was much less cordial and was strewn with expletives directed at Mr. Page. It said, in relevant part: Your attorney nor [the Government] put me on the stand because I told your attorney if he put me on the stand I would blow the [Government’s] case out of the water. Your attorney told the [Government] what I said & they told him not to put me on, “there.” Id. at 88. C. Procedural History The jury found Mr. Page guilty of conspiracy to possess with intent to distribute and conspiracy to distribute fentanyl, resulting in death, but found him not guilty of distributing fentanyl. The district court sentenced him to life in prison. Mr. Page appealed his conviction, arguing that there was insufficient evidence to show that he was involved in a conspiracy to possess, with intent to distribute, fentanyl patches. We rejected this argument. Page, 317 Fed. Appx. at 813 Mr. Page filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that there was insufficient evidence that he was involved in a conspiracy, that his attorney provided ineffective assistance of counsel by failing to interview Ms. Harlow and elicit her testimony at trial, and that his life sentence is void for vagueness. The district court rejected all of Mr. Page’s claims, denied his motion, and denied a COA. Mr. Page filed a motion to alter or amend the district court’s judgment under Rule 59(e) of the Federal Rules of Civil Procedure. He challenged the district court’s -7- conclusion on ineffective assistance of counsel and the district court’s authority to deny a COA sua sponte. The district court denied this motion. II. DISCUSSION Mr. Page now requests that we grant a COA on his ineffective assistance of counsel claim. A COA is a jurisdictional prerequisite for appeal from the district court’s dismissal of his § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B); United States v. Gonzalez, 596 F.3d 1228, 1241 (10th Cir. 2010), cert. denied, 131 S. Ct. 172 (2010). To obtain a COA, Mr. Page must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A prisoner may make a “substantial showing of the denial of a constitutional right” by “showing that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484 (quotations omitted). Mr. Page makes two arguments in his application for a COA. First, he argues, as he did at the district court, that his counsel was ineffective for failing to interview Ms. Harlow and to call her as a witness at trial.3 Second, he argues that the district court cannot deny a COA sua sponte. 3 Mr. Page also argues that the district court abused its discretion in denying his Rule 59(e) motion to alter or amend. Because his argument on this issue rests on whether Continued . . . -8-  A. Ineffective Assistance of Counsel Mr. Page argues that his trial counsel was ineffective for failing to interview Ms. Harlow and to call her to testify at trial. At the district court, he contended that the first letter from Ms. Harlow indicated that she was willing to testify and that her testimony would have been exculpatory. The district court concluded that Ms. Harlow’s second letter showed that Mr. Page’s attorney must have interviewed Ms. Harlow. The district court also concluded that his attorney’s decision not to call Ms. Harlow as a witness at trial did not fall below an objective standard of reasonableness and that his assistance was thus not ineffective. The court explained that Ms. Harlow’s testimony would likely have been more harmful than beneficial because inconsistencies in her testimony could have been exploited by the government and issues with her demeanor might have rendered her less credible. To establish a claim of ineffective assistance of counsel, a petitioner must show both (1) constitutionally deficient performance and (2) resulting prejudice by demonstrating a reasonable probability that, but for counsel’s unprofessional errors, the result of the case would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). If the applicant is unable to show either “deficient performance” or “sufficient prejudice,” the ineffective assistance claim necessarily fails. Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010). his counsel was ineffective in deciding not to call Ms. Harlow to testify, we do not address it separately. -9-  “[O]ur review of counsel’s performance under the first prong of Strickland is a highly deferential one.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (quotations omitted), cert. denied, 132 S. Ct. 763 (2011). “[W]e indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and presume that counsel’s conduct is sound strategy. Welch v. Workman, 639 F.3d 980, 1010 (10th Cir. 2011) (quotations omitted), cert. denied, 132 S. Ct. 292 (2011). “To be deficient, the performance must be outside the wide range of professionally competent assistance. . . . [I]t must have been completely unreasonable, not merely wrong.” Hooks, 606 F.3d at 723 (citation omitted) (quotations omitted). Mr. Page’s only contention in his application for a COA is that his counsel was ineffective for failing to interview Ms. Harlow and to call her to testify at trial. As the district court explained, Ms. Harlow’s second letter indicates that Mr. Page’s attorney interviewed Ms. Harlow. Mr. Page does not challenge this conclusion. Therefore, the only issue is whether his attorney’s failure to call Ms. Harlow to testify constitutes ineffective assistance. The decision whether to call a witness to testify at trial is within the sole discretion of trial counsel. DeLozier v. Sirmons, 531 F.3d 1306, 1324 (10th Cir. 2008). The fact that many attorneys might have employed a different strategy and chosen to call a witness to testify does not render an attorney’s assistance constitutionally deficient. See Strickland, 466 U.S. at 689 (“There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular -10- client in the same way.”). As stated above, for an attorney’s performance to be deficient, “it must be[] completely unreasonable, not merely wrong.” Hooks, 606 F.3d at 723. It is unlikely that Ms. Harlow’s testimony would have been credible. See Bunton v. Atherton, 613 F.3d 973, 983 (10th Cir. 2010), cert. denied, 131 S. Ct. 1783 (2011) (noting that prejudice element would not be satisfied because, even if witness testified, it was unclear if she would have been a credible witness); DeLozier, 531 F.3d at 1325 (decision not to call witness was not unreasonable because witness made incriminating statements in earlier interview and there was strong possibility that his testimony would not conform to his earlier statements). Mr. Conn’s and Ms. Hopkins’s testimony place Ms. Harlow in the middle of the drug transaction. Moreover, according to Ms. Harlow’s description of the events, she was not present when the transaction occurred, meaning her testimony would have carried less weight or may in part have been inadmissible. Our review of the record shows that counsel did not perform deficiently under Strickland when he did not call Ms. Harlow to testify at Mr. Page’s trial. We conclude that reasonable jurists could not debate the correctness of the district court’s decision on Mr. Page’s ineffective assistance of counsel claim. We therefore deny COA on this issue. B. Denying COA Sua Sponte Mr. Page also argues that the district court erred when it denied a COA sua sponte. Rule 11(a) of the Rules Governing § 2255 Proceedings states that “[t]he district court must issue or deny a [COA] when it enters a final order adverse to the applicant.” -11- (Emphasis added). “If the court denies a [COA], a party may . . . seek a [COA] from the court of appeals under Federal Rule of Appellate Procedure 22.” Id. Therefore, it was proper for the district court to deny a COA sua sponte. See Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir. 2008) (“We have clearly held that the district court’s denial of a COA sua sponte is perfectly lawful” (quotations omitted)). III. CONCLUSION We reject Mr. Page’s application for a COA and dismiss this matter. We also deny his request to proceed in forma pauperis. ENTERED FOR THE COURT Scott M. Matheson, Jr. Circuit Judge -12- 

NO. 07-08-0047-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 13, 2008 ______________________________ PASCUAL ARELLANO DELGADO,   Appellant v. THE STATE OF TEXAS,   Appellee                                     _________________________________ FROM THE 222nd DISTRICT COURT OF DEAF SMITH COUNTY; NO. CR-07E-087; HON. ROLAND SAUL, PRESIDING _______________________________ ON ABATEMENT AND REMAND _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.           Appellant appeals from his conviction for possession of a controlled substance. The clerk’s record is due to be filed on March 12, 2008. The reporter’s record was due on February 11, 2008, but an extension motion was filed, granting the reporter until March 12, 2008, to file the record. The reporter has filed a second extension request to file a record, stating that appellant has not paid or made arrangements to pay for it. A letter is attached to the extension request, addressed to the trial judge from appellant’s counsel, stating that he has prepared and mailed an affidavit of indigency, but as of March 10, 2008, has not received a response or the signed affidavit from appellant.           Accordingly, we abate this appeal and remand the cause to the 222nd District Court of Deaf Smith County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:           1. whether appellant desires to prosecute the appeal; 2. whether appellant is indigent; and, 3. whether the appellant is entitled to a free appellate record due to his indigency.           The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing, if any. Additionally, the district court shall then file the supplemental clerk’s and reporter’s records transcribing the hearing with the clerk of this court on or before April 14, 2008. Should further time be needed by the trial court to perform these tasks, then same must be requested before April 14, 2008.           It is so ordered.                                                                            Per Curiam Do not publish.

35 F.2d 825 (1929) LEVITEN v. BICKLEY, MANDEVILLE & WIMPLE, Inc. No. 29. Circuit Court of Appeals, Second Circuit. November 18, 1929. *826 Carter, Ledyard & Milburn, of New York City (Sidney W. Davidson and Leslie D. Dawson, both of New York City, of counsel), for appellant. Joseph & Demov, of New York City (Isaac N. Jacobson, of New York City, of counsel), for appellee. Before MANTON, L. HAND, and SWAN, Circuit Judges. SWAN, Circuit Judge (after stating the facts as above). The appellant contends that its closing out of Leviten's trades was in strict conformity with its contract with him, because of the rules of the exchange and the express terms of the confirmation slip delivered to him after each order was executed. It may be conceded that, in the absence of anything to show the contrary, the rules of the exchange upon which the customer's order is to be executed will form part of his contract with the broker. Bibb v. Allen, 149 U. S. 481, 13 S. Ct. 950, 37 L. Ed. 819; Gettys v. Newburger, 272 F. 209, 215 (C. C. A. 8); Forget v. Baxter, L. R. 1900 A. C. 467; Thomson v. Thomson, 315 Ill. 521, 146 N. E. 451. But such rules cannot be deemed to be incorporated into the contract, if the broker has expressly agreed to terms which are inconsistent with them. In the instant case Leviten testified to a conversation with defendant's agent, McGrail, antedating any of his market transactions, in which McGrail promised to give him notice before closing out his trades for lack of the requisite margin. McGrail denied such conversation, but the conflicting testimony presented a jury question as to the terms upon which the parties dealt. The confirmation slip delivered to Leviten after each trade was not a part of the original contract, and in order to make it such the defendant was bound to prove that Leviten knew the terms of the confirmation slips and understood them to apply to his transactions. Leviten denied that he read them. His mere receipt of them was not conclusive evidence of a contract in accordance with the terms they stated. It might have been, had he read them, and had they clearly indicated that they overrode the prior oral agreement to give notice; but Leviten's silence did not necessarily mean this, and the defendant so interpreted it at its peril. Thompson v. Baily, 220 N. Y. 471, 116 N. E. 387. The jury decided the issue in favor of the plaintiff, and that decision is not open to question on appeal. The appellant's second contention is that, assuming its covering purchase of September 28th to have been unauthorized, Leviten ratified *827 its action by his subsequent conduct. Ratification has been defined as the subsequent adoption and affirmance by one person of an act which another, without authority, has previously assumed to do for him while purporting to act as his agent. Mechem, Agency (2d Ed.) § 347. By such ratification the principal absolves the agent from responsibility for loss or injury growing out of the unauthorized transaction, and gives him the same rights to compensation, reimbursement, and indemnity as he would have had, if his act had been previously authorized. Mechem, op. cit. § 491. Ratification may be proved, not only by an express assent, as in Gillett v. Whiting, 141 N. Y. 71, 35 N. E. 939, 38 Am. St. Rep. 762, but also by implication from the principal's acquiescence or failure to dissent within a reasonable time after being informed by the agent of what he has done, as in Law v. Cross, 66 U. S. (1 Black) 533, 539, 17 L. Ed. 185. This was an action by an agent to recover from his principal the costs and expenses of purchasing and shipping a cargo of coal which the principal had declined to accept upon its arrival. The principal defended upon the ground that the purchase was unauthorized, as in fact it was, but the agent had promptly informed the principal of what he had done, and the latter had made no reply to his letter. The trial judge instructed the jury that the principal, if informed that the agent had departed from his instructions, was bound within a reasonable time to advise the agent that he did not mean to ratify his acts; otherwise, he must be taken to have acquiesced in what was done and was precluded from disputing the agent's authority. Mr. Justice Grier, in writing the opinion of the court, affirming a judgment for the plaintiff, remarked: "* * * But, as the coal was purchased for the principal, it belonged to him if he chose to accept it. If the price had risen, and Cross had sold it, Law might justly have claimed the profit; and when informed by his agent of what he had done, if the principal did not choose to affirm the act, it was his duty to give immediate information of his repudiation. He cannot, by holding his peace, and apparent acquiescence, have the benefit of the contract if it should afterwards turn out to be profitable, and retain a right to repudiate if otherwise." This case was cited with approval in Clews v. Jamieson, 182 U. S. 461, 483, 21 S. Ct. 845, 45 L. Ed. 1183. If our own case of Burden v. Robertson, 7 F.(2d) 266, can be deemed inconsistent with the doctrine that ratification may be inferred from the principal's silence for an unreasonable length of time, it must, of course, yield to the authority of Law v. Cross; but the facts in the Burden Case, where the plaintiff was a third party, who dealt with the agent without any inquiry as to the extent of his authority and had no communication with the principal, are so different that we need not now pause to discuss it. The principle of ratification has frequently been applied in litigation involving the unauthorized purchase or sale of stocks held on margin by brokers, though usually the principal's silence has been accompanied by some affirmative act which strengthens the inference of ratification. Hanks v. Drake, 49 Barb. (N. Y.) 186; Gould v. Trask, 57 Hun, 589, 10 N. Y. S. 619; Buck v. Houghtaling, 110 App. Div. 52, 96 N. Y. S. 1034; Manning v. Heidelbach, 153 App. Div. 790, 138 N. Y. S. 750; Jacobs v. Moore, 195 App. Div. 452, 186 N. Y. S. 881. But instances are not wanting where, as in Law v. Cross the inference arises solely from delay in repudiation. Prince v. Clark, 1 B. & C. 186; Norris v. Cook, Fed. Cas. No. 10,305; Courcier v. Ritter, Fed. Cas. No. 3,282, at page 647; Story, Agency, § 258. And see Royal Bank v. Univ. Export Corp. (C. C. A.) 10 F.(2d) 669, 671, where we said that, if a principal would challenge his agent's doings, he must not postpone too long. The application of the principles of ratification to the instant case requires a somewhat detailed consideration of the testimony as to what happened after Leviten learned of the covering purchase made for his account on September 28th. He learned of it by telephone the following morning, and thereupon had an interview with McGrail which he recites as follows: "Q. When you received that telephone call, what did you do? A. I went over to Mr. McGrail, and I asked him, `What is the idea of having me closed out while I was away?' when he promised me that everything would be taken care of until I would come back. Then he said, `I was away on my vacation.' "Q. Go ahead. A. And he said, `While I was away this thing was done, and I could not help anything. It was the fault of the other end.' "Q. Yes? Anything else? A. Well, nothing else that I remember right now. "Q. Do you recall any other conversation at that time? A. Yes; he said he would take it up with Mr. Bickley; that I should be reinstated." Leviten says that subsequently, on October *828 6th, he was told that he would be reinstated, but the next day reinstatement was refused him. In the meantime he had engaged in an additional market transaction through the defendant. On October 1st he bought short two cars of December butter and deposited $700 as margin. This trade was closed out on his instructions on October 3d, resulting in a loss of $298.24, as indicated by the confirmation slip (Plaintiff's Exhibit 26). The closing out of his short sales on September 28th left a balance due him of $46.44, as shown by the confirmation slip of that date (Plaintiff's Exhibit 23). There is dispute as to when Leviten received this confirmation slip. McGrail says it was given to him September 29th or the day following, while Leviten says he did not receive it until about October 20th. But, in any event, he received payment of the balance of $46.44 at the same time that he was paid what was left from the $700 margin deposited on the October 1st trade, the two together making $448.20. This payment was charged to his account on October 7th, as appears by Defendant's Exhibit C. On that date Leviten knew that reinstatement of his account had been refused; when he received the balance to his credit on defendant's books, he knew that that balance had been arrived at by charging him with the loss incurred through the unauthorized closing out of his trades on September 28th; he knew, at least by October 20th, the precise items of that loss, as evidenced by Exhibit 23. He retained, and still retains, the check, and he made no protest after receiving Exhibit 23, and gave no intimation of any claim upon the defendant until he filed his complaint, on December 18th. Counsel for Leviten argue that his conversation with McGrail on October 7th amounted to a repudiation. We do not think it can be so construed. It may be paraphrased as an assertion by Leviten that the covering purchase was unauthorized, an admission by McGrail that it was, and the suggestion that terms of reinstatement would be discussed. While that discussion remained open, the principal was not bound to decide whether to affirm or repudiate the purchase made on his behalf. But on October 7th reinstatement was refused, and the situation then stood merely as one in which the principal had said that the agent's purchase was unauthorized, but had expressed no intent as to whether or not he would ratify it. Merely saying that an act was unauthorized does not amount to a repudiation, or prevent a subsequent ratification. See Buck v. Houghtaling, 110 App. Div. 52, 96 N. Y. S. 1034. Thereafter Leviten received payment of the balance of his account, $448.20, which included the $46.44 credit resulting from the transaction of September 28th. By making this payment the broker in effect reasserted that the covering purchase had been made on Leviten's behalf. He said nothing. The confirmation slip (Exhibit 23) which he says he received about October 20th, reiterated the agent's assertion, and gave Leviten (if he did not already have it) full information as to the items charged against his account by reason of the broker's covering purchase. Still Leviten said nothing. He remained silent until December 18th, when he started suit. Thus for more than nine weeks after October 7th he gave no intimation whether he would ratify or repudiate the unauthorized act of his agent. The situation was one where delay by the principal in deciding on his course of conduct, if permitted by the law, would give him the benefit of a change in the market if it moved in his favor, and put the loss on the agent if it went against him. In fact, the market changed very little for several weeks. The covering purchase had been made at 48¾ cents per pound. On October 7th the price was 47¾ cents; on October 14th and 15th it was 48½ cents. Had the defendant known at this time that the purchase was repudiated, it could have covered the transaction with a loss to itself of only one-quarter of a cent a pound. Thereafter the market trend was gradually downward until, on December 18th, the price had fallen to 42½ cents. There is no showing that the appellant did in fact rely upon Leviten's silence; but this is unnecessary, for the doctrine of ratification is independent of estoppel. However, the fluctuating market price of the commodity with respect to which the parties were dealing demonstrates the reasonable foundation of the requirement that the principal act promptly in electing whether to affirm or reject the agent's purchase made on his behalf. The principal by his silence should not be permitted to retain the chance to speculate at his agent's risk. Ordinarily the question whether a principal has ratified by acquiescence for an unreasonable time after being informed of the agent's unauthorized act is a question of fact for the jury. But the evidence may be such as to make it a question of law for the court. Pickett v. Pearsons, 17 Vt. 470; Cairnes v. Bleecker, 12 Johns. (N. Y.) 300; Jacobs v. Moore, 195 App. Div. 452, 186 N. Y. S. 881; Mechem, op. cit. § 453. Under the circumstances *829 disclosed by the evidence in the case at bar, the plaintiff's delay in expressing his intent to repudiate was so long continued that a contrary verdict would have had to be set aside. While no question of ratification was submitted to the jury, the defendant moved to dismiss the complaint on the ground that the evidence conclusively showed ratification. This motion should have been granted. Accordingly, the judgment is reversed, and the cause remanded.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0601n.06 Case No. 13-4196 FILED Aug 06, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT KIMBERLY LISBOA, et al., ) ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF CITY OF CLEVELAND HEIGHTS, et al., ) OHIO ) Defendants-Appellees. ) ) ) BEFORE: GIBBONS, SUTTON and WHITE, Circuit Judges. SUTTON, Circuit Judge. Kimberly Lisboa and others owned a nightclub in Cleveland Heights, Ohio. When the club generated noise, fights, and other disturbances in the community, the City sued the owners in state court to stop the nuisance, and the owners sued to defend their actions and to charge the City with acting improperly. The parties eventually entered a consent decree that resolved the two lawsuits, that allowed the club to stay open for a while, and that eventually required the owners to close the club. Not long after signing the consent decree, the club owners filed this § 1983 action alleging due process and equal protection violations surrounding the City’s public-nuisance action. The district court granted the City judgment on the pleadings based on claim preclusion. We affirm. Case No. 13-4196 Lisboa, et al., v. City of Cleveland Heights, et al. I. In 2011, Lisboa and others opened a nightclub. MYXX, as they named the club, was popular, perhaps too popular. About a year after the club opened, fights, noise problems, and underage drinking prompted the City of Cleveland Heights to declare the place a public nuisance. The City Council authorized the City Manager and Director of Law to take all appropriate legal action to abate the nuisance. Three weeks later, in the early morning hours, a crowd of drunken partiers poured out of the club onto the street. Calls to the police from unhappy neighbors followed, and many officers were dispatched in response. The City was not happy. Fed up, the City sued the plaintiffs in Ohio state court, seeking an injunction to end the nuisance once and for all. Lisboa beat the City to the punch, filing for an injunction of her own earlier the same day in a separate action in state court. Among other things, Lisboa claimed that the City enforced its ordinances in a racially discriminatory way and that the nuisance charge was baseless. The parties settled the consolidated actions. They memorialized the settlement in a court-approved consent decree, which allowed Lisboa to keep the club open for a little while longer but eventually required her to close it for good. That, it seemed, was the end of that. Less than two months later, however, Lisboa filed this § 1983 action in federal court. She raised due process and equal protection claims that largely tracked the factual predicates of her state court claims: insufficient evidence to brand MYXX a nuisance, procedural violations of city law, and discriminatory enforcement targeting the club’s predominantly black patrons. Invoking the consent decree, the City moved for judgment on the pleadings based on claim preclusion. The district court agreed. It held that Lisboa’s constitutional claims were precluded because she could have, and should have, pursued them in the state litigation. 2 Case No. 13-4196 Lisboa, et al., v. City of Cleveland Heights, et al. II. We give fresh review to a district court’s grant of judgment on the pleadings under Civil Rule 12(c). Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir. 2006). As with review of a Civil Rule 12(b)(6) motion, the question is whether the plaintiff’s complaint alleges sufficient facts that state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Vickers, 453 F.3d at 761. In federal court, state court judgments receive the same preclusive effect they would receive in the issuing State’s courts. 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). That means we look to Ohio’s law of claim preclusion (otherwise known as res judicata), which has four elements: “(1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action.” Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997); see also Grava v. Parkman Twp., 653 N.E.2d 226, 229 (Ohio 1995). If all four elements are met, claim preclusion bars the later lawsuit. Lisboa does not dispute that consent judgments satisfy the first element, as well they do. Horne v. Woolever, 163 N.E.2d 378, 382 (Ohio 1959); see also In re Gilbraith, 512 N.E.2d 956, 959 (Ohio 1987). She does not deny that the parties in both actions overlap. And she does not claim that any obstacle prevented her from raising her federal claims when she filed the first lawsuit. What separates the parties is the fourth inquiry: Did the second action arise out of the same “transaction or occurrence” as the first? Like the district court, we think it did. Two sets 3 Case No. 13-4196 Lisboa, et al., v. City of Cleveland Heights, et al. of claims meet this test if, in the language of the case law, they arise from a “common nucleus of operative facts,” Grava, 653 N.E.2d at 229 (quotation omitted), or if, in the language of everyday people, they are “logically related,” Rettig Enterprises, Inc. v. Koehler, 626 N.E.2d 99, 103 (Ohio 1994) (quotation omitted). However phrased, the test is met here. Compare the two actions. In the first one, the parties sued each other over the City’s effort to abate the nuisance caused by the fighting, underage drinking, and loud noise—the general disorderly conduct— surrounding MYXX and over the allegedly discriminatory manner in which the City enforced its laws. After the consent decree, Lisboa sued the City under § 1983 for its response to those same disturbances: declaring the club a nuisance in violation of the City’s own procedures and racially discriminatory enforcement of its laws. The pattern of disruptive activity behind both suits is the same, and the alleged problem with the City’s response is the same. On this record, both sets of claims arise from a shared “occurrence” or “common nucleus of operative facts.” Lisboa persists that the facts relevant to her constitutional claims are sufficiently different from those at issue in the City’s case to avoid preclusion. In the prior litigation, she submits, her § 1983 claims would have been permissive, rather than compulsory, counterclaims, and thus she would have had no obligation to bring them then. Her argument, as an initial matter, overlooks the reality that she filed her own lawsuit against the City in state court, making the premise of this argument—a distinction between compulsory and permissive counterclaims—beside the point. Even if we ignore this reality, her argument still falls short. One premise of this argument, to be sure, is correct; yet the other is not. Lisboa is right that permissive counterclaims are not later precluded. But she is wrong to give the § 1983 claims this label. What makes a counterclaim compulsory is also what triggers preclusion: that the claim arises 4 Case No. 13-4196 Lisboa, et al., v. City of Cleveland Heights, et al. from the same “transaction or occurrence.” Id. at 102. Just so here, as we noted. Nor, contrary to her suggestion, is a perfect overlap of the claims required to meet the test. “That they are not precisely identical, or that the counterclaim embraces additional allegations does not matter.” Id. at 103 (internal quotation marks and ellipsis omitted); see also Grava, 653 N.E.2d at 229 (holding that claims arise from the same transaction even if they “depend on different shadings of the facts,” “emphasize different elements of the facts,” or trigger “different kinds of relief”). Lisboa identifies no material differences between the two actions. As a result, the claims Lisboa asserts now were compulsory counterclaims that should have been brought earlier. Having opted to settle the first actions (hers and the City’s) through a consent judgment and having presumably benefited from the give and take of settlement discussions (including being able to keep the club open for a while longer), Lisboa had no right under Ohio law to sue the City again over the same disputes. For these reasons, we affirm. 5 

721 S.W.2d 904 (1986) Bobby Joe HARRISON, Appellant, v. The STATE of Texas, Appellee. No. 05-85-00992-CR. Court of Appeals of Texas, Dallas. November 12, 1986. Discretionary Review Granted February 18, 1987. *905 Raymond G. Wheless, Plano, for appellant. H. Ownby, Dist. Atty., Roger V. Dickey, Asst. Dist. Atty., McKinney, for appellee. Before VANCE, HOWELL and HOLLINGSWORTH, JJ. HOLLINGSWORTH, Justice. Bobby Joe Harrison appeals his conviction for hindering apprehension after a plea of guilty. Punishment was assessed at 10 days' confinement and a $500 fine. His only contention on appeal is that the trial court erred in denying his "Special Plea of Double Jeopardy." We disagree; accordingly, we affirm. In an earlier proceeding, a jury trial commenced on appellant's plea of not guilty to the charge of hindering apprehension. After testimony commenced, the court declared a mistrial. Later, appellant's special plea was overruled by the trial court. Thereafter, appellant pled guilty to the charge and was convicted. He brings this appeal on the trial court's denial of his plea of double jeopardy. This appeal presents two questions of first impression in Texas: (1) do we have jurisdiction to consider appellant's attack; and (2) does the fact that a defendant's counsel is a potential witness in the defendant's trial constitute "manifest necessity" so as to justify granting a mistrial? Our threshold inquiry must be to determine whether we have jurisdiction to consider appellant's attack. Appellant entered an open plea of guilty; that is, one without a plea-bargain agreement. Because appellant's plea of guilty was not pursuant to a plea bargain agreement, appellant has waived the right to appeal all but jurisdictional errors. King v. State, 687 S.W.2d 762, 766 (Tex.Crim.App.1985); McCall v. State, 690 S.W.2d 669, 670-71 (Tex.App.—Dallas 1985, pet. ref'd). See Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim.App.1972). Such a plea, however, will not waive a double jeopardy claim. Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975). If double jeopardy raises a jurisdictional defect, then appellant's remedy is through an appeal under article 44.02 of the Texas Code of Criminal Procedure. The defect is so serious that it is not waived by failing to present a special plea and may be raised for the first time by a post-conviction habeas corpus challenge. See Ex parte Morehead, 596 S.W.2d 895, 896 (Tex.Crim.App. 1980); Ex parte Scelles, 511 S.W.2d 300, 301-02 (Tex.Crim.App.1974) (both allowing a double-jeopardy contention to be raised by habeas corpus). Courts in a number of jurisdictions have expressly held that a double-jeopardy attack raises a "jurisdictional defect." State v. Madera, 198 Conn. 92, 503 A.2d 136, 139, n. 6 (1985); State v. Dubaz, 468 So.2d 554, 556 (La.1985); People v. Reid, 113 Mich. App. 262, 317 N.W.2d 589, 591 (1982), aff'd, 420 Mich. 326, 362 N.W.2d 655 (1984); State v. Cody, 525 S.W.2d 333, 335 (Mo. 1975). See also Carbaugh v. State, 294 Md. 323, 449 A.2d 1153, 1155 (1982). The rationale for this holding stems from the proposition that a jurisdictional defect is one which prevents a trial from occurring. Since a successful double jeopardy claim will deprive the trial court of its jurisdiction to proceed to a conviction, then it follows that double-jeopardy attacks raise a "jurisdictional defect." Although our research has failed to disclose any Texas authority, either for or against the proposition that double jeopardy raises a jurisdictional defect, after examining the case law set out above, we hold that such an attack does raise a jurisdictional defect and is, therefore, subject to review in this appeal. Accordingly, we address the merits of this appeal. The charge of hindering apprehension arose out of an incident taking place on *906 September 18, 1983, in McKinney, Texas. Officer A.D. Ingram of the McKinney Police Department stopped appellant's brother, Bryan Harrison, for running a stop sign. After receiving a traffic citation, Bryan Harrison sped off. Ingram pursued Bryan who proceeded to run several more stop signs. Bryan went to his home; at that point Officer Ingram attempted to place him under arrest. A struggle ensued between Ingram and Bryan. During the struggle, appellant grabbed Ingram from behind. Ingram released his hold on Bryan, and Bryan struck Ingram in his eye. Due to appellant's interference, Bryan Harrison evaded arrest that night. Appellant was arrested for hindering apprehension. Appellant's plea of double jeopardy turns on the propriety of a mistrial at appellant's earlier trial on the charge of hindering arrest. At that trial defense counsel cross-examined Officer Ingram concerning his testimony that he had received a black eye. The following line of questioning took place: Q. Do you recall coming to the window [of the Collin County Sheriff's office] to look to see who was getting Mr. Harrison out of jail on September the 19th, 1983? A. I remember walking up to the door, but I don't remember seeing anyone. Q. You don't remember seeing anyone? A. No, sir. Q. Would you be surprised if I said I remember seeing you? A. No, sir. Q. If you'd had a black eye, do you think I would have seen it through that window? A. I couldn't say, because I didn't see anyone in that lobby. Shortly after this exchange, Officer Ingram was excused and questioning of the next witness began. Not long into direct examination of that witness, the prosecuting attorney asked to make a motion outside the presence of the jury. At that time he asked the court to disqualify defense counsel from representing appellant on the ground that the defense counsel had injected himself as a fact witness in the cause. The trial court agreed that counsel should be disqualified because "of all the ramifications of testing [counsel's] credibility and an attempt by the State's attorney to possibly impeach [counsel] and get into a rather messy situation." The trial court subsequently called in the jury and granted a mistrial. The court then began another trial and overruled appellant's plea of double jeopardy. By his questions to Officer Ingram, defense counsel attempted to impeach a witness based upon counsel's personal knowledge. As such, counsel introduced facts not yet in evidence and established himself as a potential witness in the case. Accordingly, we are faced with deciding whether a mistrial is the appropriate response when it becomes evident during trial that a defendant's counsel has become a potential witness in his or her client's case. After a mistrial has been declared without the defendant's request or consent, whether there can be a new trial depends on whether there was a "manifest necessity" for the mistrial or whether the ends of justice would otherwise be defeated. Sewell v. State, 696 S.W.2d 559, 560 (Tex. Crim.App.1983); Chvojka v. State, 582 S.W.2d 828, 830 (Tex.Crim.App.1979). The first question, though, is whether jeopardy has attached. In a jury trial jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978); Sewell, 696 S.W.2d at 560. Clearly, jeopardy had attached in the case before us. Our consideration next turns to whether there was a "manifest necessity" for granting the mistrial. In Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973) the United States Supreme Court considered "manifest necessity" to be a situation in which an impartial verdict cannot be reached, or if an obvious procedural error has occurred which would mandate reversal on appeal. In such situations it would not serve the "ends of public justice" to continue with the trial. *907 A similar problem was presented in United States v. Peng, 602 F.Supp. 298 (S.D.N. Y.1985). During cross-examination of a witness, the defendant's attorney made reference to a conference held in his office with the testifying witness. The attorney, thereby, became a potential witness in the trial. Id. at 299. The court examined the testimony in light of the disciplinary rules of the American Bar Association Code of Professional Responsibility and concluded that allowing counsel to continue to represent the defendant would subvert the purpose of the disciplinary rules. Id. at 302. Further, the court concluded that, in weighing the materiality of counsel's testimony, all doubts were "to be resolved in favor of the withdrawal or disqualification." The court found that the taint that would occur should counsel be allowed to remain as the defendant's counsel outweighed the defendant's sixth amendment interest in choice of counsel. Id. at 304. Finally, the court concluded that the effect of the "taint" on how the jury would weigh the witness's testimony in light of counsel's statements, regardless of whether counsel actually testified, sufficiently established a "manifest necessity" to grant a mistrial. Id. at 304-05. In affirming Peng, the Second Circuit rejected the contention of a double-jeopardy bar to retrial by upholding the district court's finding of "manifest necessity." United States v. Kwang Fu Peng, 766 F.2d 82, 85-88 (2d Cir.1985). The court considered both the fear that counsel's credibility had been irreversibly injected as an issue in the trial and that the jury would be unacceptably affected by the attorney's double role as counsel and an unsworn witness. Id. at 86-87. Based upon the facts presented, the court found that granting a mistrial was within the sound discretion of the trial court. Id. at 88. See also People v. Gentile, 96 A.D.2d 950, 466 N.Y. S.2d 405, 407-08 (1983). As was the attorney in Peng, appellant's trial counsel was faced with a "Catch-22" situation. Disciplinary Rule 5-102 of the Texas Code of Professional Responsibility[1] provides: (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).[2] (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. [Emphasis added.] Counsel's personal knowledge has a direct bearing on the testimony and credibility of Officer Ingram. Should counsel's personal observations support the complaining officer's testimony, then counsel runs afoul of DR 5-102(B). If, as appellant represents on appeal, counsel's knowledge is contradictory to that of Officer Ingram, then counsel violates DR 5-102(A) since his testimony *908 would not fall within any of the exceptions set out therein. We agree with the district court in Peng that any doubt should be resolved in favor of the withdrawal or disqualification of counsel. Further, even in the event that counsel was not called to testify, the jury's perspective would remain tainted by counsel's "double role as counsel and unsworn witness." Counsel's own actions precipitated the granting of a mistrial. Based upon the facts presented, we hold that the trial court's action granting a mistrial implicitly reflects a finding of "manifest necessity" for appellant's retrial. See Torres v. State, 614 S.W.2d 436, 442 (Tex.Crim.App.1981). We do not hold that the mere possibility that a defendant's trial attorney could be called as a witness during the defendant's trial mandates disqualification and a mistrial. However, under the facts presented, we hold that such a finding was within the trial court's exercise of sound discretion. Accordingly, appellant's ground of error is overruled. The judgment of the trial court is affirmed. HOWELL, J., files a dissenting opinion. HOWELL, Justice, dissenting. I dissent. I cannot join the majority's conclusion that a mistrial was manifestly necessary in this case for two reasons. First, the State waived its right to obtain the relief requested because it failed to make a timely request. The record reflects that the cross-examination of the officer continued to its conclusion, that the State engaged in redirect examination of the officer, that the officer was excused as a witness, and that the State began the examination of another witness. At that time, the State moved to disqualify defense counsel and thereby prevent him from further participation in the case. The Court granted the motion. Having deprived the appellant of counsel, and acting on its own motion, the court declared a mistrial. Although the court went beyond the State's motion, the motivating force and the virtually inevitable result of the State's motion was the mistrial. The record reflects no timely objection by the State and no request for an instruction to the jury to disregard defense counsel's comments. Were defense counsel in the posture in which the State finds itself, we would not hesitate to hold that the right to exclude counsel had been waived for want of a prompt motion. E.g., Nash v. State, 651 S.W.2d 432, 433 (Tex.App.—Dallas 1983), aff'd, 664 S.W.2d 343 (Tex.Crim. App. 1984). There is no reason why this rule should not apply with equal force to the State. Second, the term "manifest necessity" for entry of mistrial means that there must exist a "high degree" of necessity. Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978). This record presents no necessity of that magnitude. Neither is it permissible for the State or the court to create manifest necessity by excluding defense counsel unless the situation is such that no fair trial may ensue with the continued presence of defense counsel. Whether defense counsel may or may not have been subject to disciplinary action for accepting or continuing employment after he realized or should have realized that he might be a witness has no bearing on the question whether manifest necessity existed. The law specifies ample means for the enforcement of the Code of Professional Responsibility other than the disruption of trials. Insofar as this case is concerned, the only question raised by the double jeopardy provisions of our State and Federal Constitutions is whether a fair trial could be had after the exchange between the officer and defense counsel. See Schaffer v. State, 649 S.W.2d 637, 639 (Tex.Crim.App.1983). In analyzing this question, it should be noted at the outset that whether the officer had a black eye had only a slight connection with appellant's guilt of the offense charged. Appellant was not on trial for assault and he was never accused of having struck the officer. The relevance of *909 the black eye only bore upon the question of the officer's credibility. Further, in arguing its motion to exclude counsel, the State never contended that it had any plan to call defense counsel as a witness. In fact, the prosecutor refused to commit himself on this question. Accordingly, the mistrial could not have rested on the ground that the State was deprived of the testimony of defense counsel. On the other hand, defense counsel made it plain in resisting the State's motion that he did not expect to offer his own testimony. Having made this commitment, the attorney would not have been permitted to testify on behalf of his client. Neither could any possible prejudice to the State arising from counsel's failure to testify, after having disputed the officer's black eye testimony through cross-examination, rise to the level of manifest necessity. A request for an instruction to disregard, a far less intrusive remedy, would have adequately cured the situation. The only remaining possible support for a claim of manifest necessity would be that appellant would have been deprived of a fundamentally fair trial if his attorney did not testify. In other words, was appellant's counsel rendering ineffective assistance by declining to testify? We cannot so hold. There is no direct showing of what counsel's testimony would have been—only an innuendo. Again, the matter only related to the officer's credibility. Very likely, it would have been unwise for counsel to pit his uncorroborated testimony with that of the officer. By engaging in a "swearing match" with an apparently disinterested public servant, counsel could have easily destroyed his effectiveness as an advocate. It follows that the decision not to testify fell within the category of reasoned trial strategy and could not be held to constitute ineffective assistance of counsel. In sum, mistrial was granted without a showing that the testimony of defense counsel would or should have been offered by either party. Where was the manifest necessity? It cannot be grounded on some need to grant specific performance of the Code of Professional Responsibility because sanctions against the attorney are the ordinary remedy for attorney misconduct. I dissent. The plea of double jeopardy should be sustained and acquittal granted. NOTES [1] SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. XII, § 8 (Code of Professional Responsibility) DR 5-102 (Vernon 1973). [2] DR 5-101(B)(1) through (4) provides that an attorney may testify: (1) If the testimony will relate solely to an uncontested matter. (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

514 F.Supp. 995 (1981) Corinna GONZALES, Plaintiff, v. Patricia HARRIS, Secretary of Health and Human Services, Defendant. CV F 79-215-EDP United States District Court, E. D. California. May 13, 1981. Michael J. Seng, Blumberg, Sherr & Kerkorian, Fresno, Cal., for plaintiff Corinna Gonzales. William B. Shubb, U. S. Atty., Mio D. Quatraro, Asst. U. S. Atty., Fresno, Cal., for defendant Harris, HEW. Mary Louise Frampton, Olmas & Frampton, Fresno, Cal., for plaintiff Vera Chambers. Jan M. Biggs, Stammer, McKnight, Barnum & Bailey, Fresno, Cal., for defendant Madera Glass. MEMORANDUM DECISION AND ORDER FOR JUDGMENT PRICE, District Judge. As indicated by separate Memorandum Decision filed herein, D.C., 514 F.Supp. 991, the defendant is not entitled to a de novo determination of the issues raised by the objections to the magistrate's recommendations which were not timely filed. However, in view of the importance of the questions raised in this case, and the potential for the same type of issues recurring in this district, the court has taken special pains to determine whether or not the magistrate's recommendations comport with the applicable law. At the outset, it should be noted that the defendant's contentions regarding the applicability of 42 U.S.C. § 416(h)(2)(A) is determinative in this action are correct. That section reads as follows: "(2)(A) In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." *996 Clearly, then, the only choice of law applicable to the determination of plaintiff's entitlement to benefits available to the court is the law of the State of California. There is no evidence in this case which the court could find which points to the father's domicile in a state other than California at the time of his death; indeed, even the plaintiff's recitation of fact leads unerringly to that conclusion. However, having determined that the law of California, as interpreted by its courts, is the applicable law in this case does not require the result that defendant originally urged upon the magistrate and later upon this court. In fact, quite the contrary is true. California Civil Code § 230, in effect at the time of the death of the plaintiff's father, provides as follows: "Adoption of Illegitimate Child. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption." A succession of California cases in the California courts taken together, clearly establish that under California law Corinna was legitimated under this section, and hence is entitled to summary judgment in the matter. The first case of importance is Estate of Lund, 26 Cal.2d 472, 159 P.2d 643. Lund held that the acts necessary to effect legitimation under the aforesaid § 230, may be performed in states outside of California. The court in Lund based its decision squarely on the fact that once the status of parent and legitimated child had been established by the extra-territorial activities of the illegitimate father and upon his establishing domicile in California, that status "became subject to the jurisdiction of this state for all purposes connected with the administration of its laws". (Estate of Lund, supra, at p. 493, 159 P.2d 643.) Still unresolved by the Lund case was the additional question as to whether or not all the various acts required by § 230 to effect a legitimation must be performed, or is it necessary only that those which the illegitimate father can perform, are required? That question was conclusively answered in Darwin v. Ganger, (1950) 174 Cal.App.2d 63, 344 P.2d 353. In that case, the court noted, at page 72, 344 P.2d 353, that: "If a man has no wife, he can legitimate his offspring by a course of conduct which the community could consider a public acknowledgment that he was the father of the child, (Estate of Gird, 157 Cal. 534, 542-543 [108 P. 499, 137 Am.St. Rep. 131]) but the existence of such public acknowledgment by an unmarried man is a question to be decided on the circumstances of each case. (Estate of Baird, 193 Cal. 225, 274-279 [223 P. 974].) Where a man has no wife, he can publicly acknowledge his child notwithstanding the fact that he does not maintain a household into which the child is taken. (See Blythe v. Ayres, supra, 96 Cal. 532, 560, 592-593 [31 P. 915]; In re Jessup, 81 Cal. 408, 433-434 [21 P. 976, 22 P. 742, 1028, 6 L.R.A. 594].) If the man is unmarried the `family' referred to in section 230 may consist only of the father, the mother, and the child. (Estate of Gird, supra, 157 Cal. 534, 540 [108 P. 499]; Serway v. Galentine, 75 Cal.App.2d 86, 90 [170 P.2d 32].) Thus, an unmarried man may legitimate his offspring by living with the mother and child for a short period during which he represented the mother as his wife and the child as his own. (Serway v. Galentine, supra, 75 Cal.App.2d 86, 90-91 [170 P.2d 32].) Darwin seems to suggest, however, that if the illegitimate father later married, regardless of what other indicia of legitimation he bestows upon the child, they will not be sufficient unless he brings the child into his home with the consent of his subsequently acquired wife. If that were still *997 the law of California, of course, the court's decision in this case would have to be for the defendant. It is not. In Lavell v. Adoption Institute, 185 Cal. App.2d 557, 8 Cal.Rptr. 367 (1960), the court squarely held the cohabitation between the natural father and the natural mother during the pregnancy of the unborn child would satisfy the requirements of § 230 for purposes of subsequent legitimation, although the father and mother did not live together after birth. Commenting upon this state of affairs, the Lavell court noted, at page 561, 8 Cal.Rptr. 367: "We hold that under section 29, the unborn child of unwed parents is an existing person for the purpose of adoption and we believe is as capable of being received into the family of the father, and to be as much a part of the family as an unborn child of married parents. The child must be treated as if it were legitimate, but this requirement may not be construed as applying only to a child after its birth. It is not questioned that respondent provided a home for the child's mother and supported her until their separation, shortly before the birth of the child. Certainly he did not deny parenthood, nor did he in any manner treat it otherwise than as a legitimate child. He has not neglected the child or failed in any duty toward it. If it should be held that such a child is not subject to adoption by its father until after it is born, an unknown, but possibly considerable number of children of unwed parents might be forever barred from legitimation. We could suppose a case where the father up until the time a child was born had maintained the mother and unborn child in his home, and acknowledged his parenthood and done everything in his power to treat the child as a legitimate child would have been treated and yet if, through death, incompetency or other misfortune, he was unable thereafter to meet the requirements of section 230, the child would forever remain illegitimate. We do not believe it would be reasonable, and it certainly would be most unfair to children in those circumstances, to hold that the efforts the father had made, in every way in which it was possible for him to make efforts to give the child the status of legitimacy, should go for naught." The court is not unmindful of the fact that apparently Jesse did marry after his return to California which terminated the cohabitation with Corinna's mother.[1] However, under the holding in Lavell, supra, to require Jesse to have performed the additional act of taking Corinna into his home which presumably was established in California with his new wife, is contrary to logic and reason. Such a requirement would, in effect, hold, under the reasoning of Lavell, that for some indeterminate period of time before Jesse's marriage in California, Corinna was legitimate. By the act of marrying, or alternately, by the act of marrying and not bringing Corinna into his home, Corinna somehow again became illegitimate. In addition to such a proposition defying logic, such a result would fly squarely in the face of the strong California policy in favor of legitimation as contrasted with the common law rule which placed formidable and substantial obstacles in the path of an illegitimate child to achieve legitimation. NOTES [1] The parties concede that the record is unclear whether Jesse had actually left Arizona before Corinna's birth, however, this fact is immaterial to the court's holding.

599 F.Supp.2d 1118 (2009) Lisa VOLK and Color Concepts, Inc., Petitioners/Counterclaim-Respondents, v. X-RITE, INC., Respondent/Counterclaim-Petitioner. No. 4:08-CV-00054-JEG. United States District Court, S.D. Iowa, Central Division. March 2, 2009. *1121 Bradley M. Beaman, Todd A. Strother, Bradshaw Fowler Proctor & Fairgrave, Des Moines, IA, for Petitioners/Counterclaim-Respondents. Gregory M. Kilby, Warner Norcross & Judd LLP, Grand Rapids, MI, Linda M. Doyle, McDermott Will & Emery, Chicago, IL, Steven J. Havercamp, Stanley, Lande & Hunter, Davenport, IA, for Respondent/Counterclaim-Petitioner. ORDER JAMES E. GRITZNER, District Judge. In this action, Petitioners/Counterclaim-Respondents Lisa Volk and Color Concepts, Inc. (collectively "Volk"), pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 9 and 11, filed a petition seeking to correct and confirm an arbitration award entered in Volk's favor and against Respondent/Counterclaim-Petitioner X-Rite, Inc. (X-Rite). Counterclaim-Petitioner X-Rite, pursuant to the FAA, 9 U.S.C. § 10, seeks to vacate the arbitration award entered in favor of Counterclaim-Respondent Volk. The Court held a hearing on the motions on January 23, 2009. Todd Strother and Bradley Beaman represented Volk. Linda Doyle represented X-Rite. The matter is fully submitted and ready for disposition. I. INTRODUCTION X-Rite manufactures and sells color-measurement products. X-Rite's North American sales force consists of both direct-employee sales representatives, whom X-Rite considers to be employees, and manufacturer sales representatives, whom X-Rite considers to be independent contractors. From 1998 through 2002, X-Rite employed Volk as a direct-employee sales representative. In 2003, X-Rite told Volk that it was eliminating her direct-employee sales representative position and her only option for staying with X-Rite was to become a manufacturer sales representative. Volk chose to stay with X-Rite, entered into a written sales representative agreement in February 2003, and entered into subsequent written agreements in 2004 and 2005. In January 2006, X-Rite representatives traveled to Iowa and informed Volk that she was being terminated for unspecified business reasons. Pursuant to the arbitration clause contained in the May 25, 2005, manufacturer sales representative agreement (the Agreement), Volk initiated an arbitration proceeding against X-Rite on January 12, 2007, before the American Arbitration Association (AAA). An arbitrator was duly appointed under the rules of the AAA, and the parties then proceeded to engage in discovery over the course of nearly a year. In compliance with the Agreement's arbitration clause that the arbitration hearing *1122 take place "in a major metropolitan area located approximately halfway between the home office of [X-Rite] and [Volk]," a hearing was held in Minneapolis, Minnesota, on November 26-27, 2007. Agreement ¶ 17. Following the hearing, both parties submitted post-hearing briefs to the arbitrator. On January 30, 2008, the arbitrator issued an award for $619,906.54 in favor of Volk. The arbitrator found X-Rite liable to Volk for gender discrimination, breaching its written contract, and intentionally failing to pay Volk commissions she had earned. The arbitrator also issued a memorandum to partially explain the basis for the award but did not provide an exhaustive explanation of all aspects of the decision. The arbitrator awarded the following types of damages to Volk: (1) $539,697.50 for gender discrimination under the Michigan Elliott-Larsen Civil Rights Act (MELCRA); (2) $33,802.26, plus interest, for breach of contract for failure to pay commissions under the Michigan Sales Representative Act (MSRA); and (3) $46,406.78 in attorney fees and costs. The arbitrator concluded Volk performed essentially the same services to X-Rite in her manufacturer sales representative capacity as she did as an employee, even though the Agreement characterized her as an independent contractor. Although Volk set up a company, Color Concepts, Inc., through which she performed her services as an X-Rite sales representative, the arbitrator concluded Volk received virtually all of her income from, and devoted virtually all of her time to, X-Rite. Volk made only two sales for other companies while working for X-Rite as a manufacturer sales representative. The arbitrator concluded Volk was one of the top-producing sales representatives for X-Rite, and Volk was X-Rite's only female sales representative in the United States. After Volk's termination, X-Rite divided her territory among three male employees. The Illinois territory was given to a male employee with far less experience than Volk. Stephen Hosford, X-Rite's North American Sales Director, testified that he did not ask Volk if she was willing to relocate to Chicago to service the Illinois territory because she had a husband who was employed in Iowa and had children in school there. However, X-Rite asked Dan Uress and Dave Borden to relocate in order to assume portions of Volk's territory after Volk's termination. The arbitrator concluded Volk's termination did not make X-Rite more profitable or save any money. Volk, who was compensated at a twelve-percent commission rate on the date of her discharge, had the sales territories of Iowa and Missouri. If X-Rite granted Volk's request to expand her sales territory to include Illinois, then X-Rite would have paid its sales representatives twelve-percent commissions in all three states. However, after Volk's termination, X-Rite gave those states to a male employee, Dan Uress, and compensated him at a fifteen-percent commission rate. The arbitrator concluded X-Rite's reorganization could not save X-Rite money and was merely pretext for gender discrimination. The arbitration clause in the Agreement provides that "the award of the arbitrators shall be final and judgment upon the award rendered may be entered in any court having jurisdiction." Agreement ¶ 17. On February 8, 2008, Volk filed in this Court a petition to confirm and correct the arbitration award. X-Rite subsequently filed a separate action to vacate the award in Michigan state court. After successfully removing X-Rite's lawsuit to the U.S. District Court for the Western District of Michigan, Volk filed a motion to *1123 transfer X-Rite's lawsuit to the U.S. District Court for the Southern District of Iowa. Volk's motion was granted on April 28, 2008, 2008 WL 1913926, and X-Rite's action to vacate was transferred to the Southern District of Iowa. On that same date, X-Rite filed a separate motion to vacate the award in the Southern District of Iowa. II. DISCUSSION A. Motion to Vacate the Arbitration Award 1. Choice of Law As an initial matter, the Court must determine whether federal or Michigan law applies to X-Rite's motion to vacate. The arbitrator's award was based on Michigan law, which the parties do not dispute. However, X-Rite argues that Michigan law should govern the Court's review of the arbitrator's award, while Volk argues federal law should govern. The choice-of-law and arbitration clauses in the Agreement state as follows: 16. Choice of Law. To the extent not otherwise displaced by applicable law, this Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of Michigan. Arbitration. To the extent not displaced by applicable law, the Company and the Representative agree that any controversies or disputes arising under this Agreement shall be determined exclusively by arbitration conducted in accordance with the rules of the [AAA]. The arbitration shall take place in a major metropolitan area located approximately halfway between the home office of the Company and the Representative. The award of the arbitrators shall be final and judgment upon the award rendered may be entered in any court having jurisdiction. Agreement ¶¶ 16-17. As more fully discussed below, this is a pivotal determination because under Michigan law, an arbitrator's decision is vacated when "an error in law . . . led [the arbitrator] to a [material] wrong conclusion," see Detroit Auto. Inter-Ins. Exch. v. Gavin, 416 Mich. 407, 331 N.W.2d 418, 434 (1982), whereas under the FAA, an arbitrator's award will only be vacated when the arbitrator "clearly identif[ied] the applicable, governing law and then proceed[ed] to ignore it," Stark v. Sandberg, Phoenix & von Gontard, P.C., 381 F.3d 793, 799 (8th Cir.2004). The Supreme Court has expressly held that the FAA contains the exclusive grounds for vacating or modifying arbitration awards, and parties cannot contractually agree to expand the grounds for judicial review. Hall St. Assocs., L.L.C. v. Mattel, Inc., ___ U.S. ___, 128 S.Ct. 1396, 1406, 170 L.Ed.2d 254 (2008). However, the Court implied that parties could contractually adopt state law arbitration rules because the "FAA is not the only way into court for parties wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable." Id. When faced with a choice-of-law problem as to whether federal or state arbitration rules apply to reviewing an arbitration award, the Eighth Circuit in UHC Management Co. v. Computer Sciences, Corp., 148 F.3d 992, 996-97 (8th Cir.1998), held that federal courts cannot read general choice-of-law provisions to opt parties out of the FAA default regime and that federal courts cannot apply state arbitration laws unless the parties' intent is "abundantly clear." See also Dominium Austin Partners, LLC v. Emerson, 248 F.3d 720, 729 n. 9 (8th Cir.2001) ("The *1124 construction of an agreement to arbitrate is governed by the FAA unless the agreement expressly provides that state law should govern."). Discussing case law before and after the Supreme Court's decision in Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995), the Eighth Circuit concluded it "will not interpret an arbitration agreement as precluding the application of the FAA unless the parties' intent that the agreement be so construed is abundantly clear." UHC Mgmt., 148 F.3d at 996-97; see also P.R. Tel. Co. v. U.S. Phone Mfg. Corp., 427 F.3d 21, 29 (1st Cir.2005), rev'd on other grounds by Hall St. Assocs., 128 S.Ct. at 1396 (holding that "every circuit that has considered the question . . . [has] held that the mere inclusion of a choice-of-law clause within the arbitration agreement is insufficient to indicate the parties' intent to contract for the application of state law concerning judicial review of awards"); Jacada, Ltd. v. Int'l Mktg. Strategies, Inc., 401 F.3d 701, 711-12 (6th Cir.2005), rev'd on other grounds by Hall St. Assocs., 128 S.Ct. 1396 (holding that generic choice-of-law provision did "not unequivocally suggest an intent to displace the default federal standard"); Roadway Package Sys v. Kayser, 257 F.3d 287, 288-89 (3d Cir.2001), rev'd on other grounds by Hall St. Assocs., 128 S.Ct. at 1396 ("We hold that a generic choice-of-law clause, standing alone, is insufficient to support a finding that contracting parties intended to opt out of the FAA's default regime."); Porter Hayden Co. v. Century Indemn. Co., 136 F.3d 380, 382 (4th Cir.1998) ("[A]bsent a clearer expression of the parties' intent to invoke state arbitration law, we will presume that the parties intended federal arbitration law to govern the construction of the Agreement's arbitration clause."). At issue in UHC Management was a contract where the arbitration clause was silent as to whether state or federal arbitration law applied. The contract contained a choice-of-law clause, which stated, "[t]o the extent not preempted by ERISA or other federal law, this Agreement shall [be] governed by and construed under the laws of the State of Minnesota." UHC Mgmt., 148 F.3d at 994. On appeal, the Eighth Circuit concluded that it could "divine no such intent from the language in the present agreement. The agreement makes no reference to the Minnesota Uniform Arbitration Act or to Minnesota case law interpreting the allocation of powers between arbitrators and courts. Moreover, the choice-of-law clause itself specifically provides that Minnesota law must yield whenever preempted by federal law, which cuts against the argument that the parties intended that the FAA not apply." Id. at 997. This Court must conclude that the generic choice-of-law clause in the Agreement does not make "abundantly clear" that the parties intended Michigan law to apply to federal court review of the arbitration award. As in UHC Management, the parties' choice-of-law will only come into play if it is not "displaced by applicable law." Although UHC Management's contract uses the terms "preempted" and "federal law" while the Agreement uses the terms "displaced" and "applicable law," these are distinctions without differences under the rule articulated in UHC Management that the FAA will govern federal courts' interpretation of arbitration clauses unless the parties make "abundantly clear" their preference for state arbitration law. The words "displaced" and "applicable law" do not make an abundantly clear preference for Michigan law any clearer than the words "preempted" and "federal law." A generic choice-of-law clause that is silent on whether state arbitration rules will govern the agreement, as a matter of *1125 law, does not make the parties' intent to have federal courts apply state arbitration law "abundantly clear." Emerson, 248 F.3d at 729 n. 9; UHC Mgmt., 148 F.3d at 997.[1] Accordingly, the Court finds the Agreement's generic choice-of-law provisions applying Michigan law do not displace the FAA because the parties do not make their intent to use state arbitration law "abundantly clear." 2. Applying the Federal Standard The Eighth Circuit has permitted courts to vacate arbitration awards that are "completely irrational" or "evidence a manifest disregard for the law." Hoffman v. Cargill, 236 F.3d 458, 461 (8th Cir.2001). X-Rite's argument why the Court should vacate the arbitrator's award rests upon its claim that the arbitrator "evidence[d] a manifest disregard for the law." The Eighth Circuit has explained that "[a]n arbitration decision only manifests disregard for the law where the arbitrators clearly identify the applicable, governing law and then proceed to ignore it." Stark, 381 F.3d at 802 (8th Cir.2004) (quoting Hoffman, 236 F.3d at 461-62) (emphasis in original). The Stark court went on to say, A party seeking vacatur [based on manifest disregard of the law] bears the burden of proving that the arbitrators were fully aware of the existence of a clearly defined governing legal principle, but refused to apply it, in effect, ignoring it. Because arbitrators are not required to elaborate their reasoning supporting an award, if they choose not to do so, it is all but impossible to determine whether they acted with manifest disregard for the law. Manifest disregard of the law is more than a simple error in law or a failure by the arbitrators to understand or apply it; and, it is more than an erroneous interpretation of the law. Our disagreement with an arbitrator's interpretation of the law or determination of the facts is an insufficient basis for setting aside his award. Id. (internal quotations and citations omitted). The Eighth Circuit has "been careful to distinguish[ ] an arbitrator's interpretation of the law, which is insulated from review, from an arbitrator's disregard of the law, which may open the door for judicial scrutiny." Lincoln Nat'l Life Ins. Co. v. Payne, 374 F.3d 672, 674 (8th Cir.2004). Payne further illustrates the limited power of federal courts to vacate arbitration awards: "Manifest disregard *1126 requires something more than a mere error of law. If an arbitrator, for example, stated the law, acknowledged that he was rendering a decision contrary to law, and said that he was doing so because he thought the law unfair, that would be an instance of `manifest disregard.' Nothing of the kind appears here. To require anything less would threaten to subvert the arbitral process." Id. X-Rite argues that the arbitrator evidenced a manifest disregard for the law when the arbitrator, applying Michigan law, determined (1) Volk was an employee, and not an independent contractor, of X-Rite; (2) Volk demonstrated a prima facie case of employment discrimination under MELCRA; (3) Volk was entitled to damages for a time period where X-Rite argues Volk failed to mitigate damages; and (4) the effective date of the Agreement was May 25, 2005, instead of January 1, 2005. a. Employee not an Independent Contractor X-Rite argues that only employees, and not independent contractors, can bring claims under MELCRA. Badiee v. Brighton Area Schs., 265 Mich.App. 343, 695 N.W.2d 521, 535-36 (2005) (citing Mich. Comp. Laws § 37.2202(1)(a)). The Agreement states Volk "shall occupy the status of independent contractor with respect to [X-Rite] and this Agreement, and nothing contained herein shall be deemed to have created, by interpretation or implication, a relationship of employment, partnership, joint venture or agency." Agreement ¶ 10. X-Rite argues that the express terms of the Agreement are conclusive, and the arbitrator's contrary conclusion constitutes manifest disregard for the law. This is contrary to Michigan law that holds "[a] contract between the parties which states that their relationship is that of an independent contractor is . . . a factor to be considered, although it is not determinative." Buckley v. Prof'l Plaza Clinic Corp., 281 Mich.App. 224, 233-34 (Mich.Ct. App.2008) (quoting Detroit v. Salaried Physicians Prof'l Assoc., 165 Mich.App. 142, 418 N.W.2d 679, 682 (1987)). The arbitrator found that "Michigan applies the `Economic Reality Test' to discern an employment relationship." Arb. Mem. at 1 (citing Askew v. Macomber, 398 Mich. 212, 247 N.W.2d 288, 290 (1976)). The arbitrator stated, "[t]he cases promulgated several factors to be considered in determining employment status. Those include the following: (1) control over worker's duties; (2) payment of wages; (3) the right to hire and fire and the right to discipline; and (4) the performance of duties as an integral part of an employer's business towards the accomplishment of a common goal." Arb. Mem. at 2 (citing Askew, 247 N.W.2d at 290). X-Rite concedes that the arbitrator identified the proper test to determine if Volk was an employee. However, X-Rite argues that the arbitrator relied on a single factor in making the following determination: Although there are certainly characteristics in the relationship between Ms. Volk and X-Rite which are consistent with the relationship of an independent contractor, the substance of the relationship was one of employee/employer because Ms. Volk was engaged in work that constituted a regular and integral part of the normal operation of X-Rite's business, and her rendition was not pursuant to the operation of separate distinct enterprise which was selling those services to the public as an independent contractor. Arb. Mem. at 4. X-Rite asserts the arbitrator's conclusion, therefore, is contrary to Askew's requirement that "[c]ontrol is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance *1127 of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one." Askew, 247 N.W.2d at 291. Quoting Hyslop v. Klein, 85 Mich.App. 149, 270 N.W.2d 540, 542 (1978), the arbitrator reasoned that the economic reality test "focus[es] [the court's] analysis on two basic queries: (1) Is the work performed a regular part of the normal operations of the business, and (2) Is the worker's method of operation sufficiently distinct from the employer's business as to constitute a separate enterprise?" Arb. Mem. at 1-2. As Hyslop held, all of the Askew factors concern one or both of these two inquiries. Hyslop, 270 N.W.2d at 542. "We are not suggesting any `ultimate test' of economic reality such as was disapproved in Askew[ ]. We are attempting merely to establish a rational framework within which to consider and weigh the various factors in a manner consistent with the directive of Powell v. Employment Security Comm., 345 Mich. 455, 75 N.W.2d 874 (1956)." Id. at 542 n. 3. The arbitrator properly applied Hyslop, which was faithful to Michigan's four-factor economic-reality test described in Askew, and determined that the economic-reality test supports a finding that Volk was an employee, and not an independent contractor, of X-Rite. X-Rite's contention is more precisely an attempt to readdress the merits of its argument under the economic-reality test, which is not a proper subject for this Court's review. See Daniel Constr. Co. v. Int'l Union of Operating Eng'rs, 738 F.2d 296, 299 (8th Cir.1984) (finding that an arbitrator's award cannot be set aside "even where the reviewing court would itself have reached a different result had the merits been submitted to it in the first instance."). X-Rite also attacks the arbitrator's decision in that it only discusses one of the Askew factors under the economic-reality test—the control factor. The arbitrator clearly stated that "[t]his memorandum is intended to explain the basis for my award. It is not intended to provide an exhaustive explanation of all of the decisions that I made, but it is simply intended to give you a guide as to how I arrived at the Award." Arb. Mem. at 1. Failure to articulate every consideration upon which the arbitrator's decision is based is not grounds to vacate the award. As the Supreme Court has held, A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. Arbitrators have no obligation to the court to give their reasons for an award. To require opinions free of ambiguity may lead arbitrators to play it safe by writing no supporting opinions. This would be undesirable for a well-reasoned opinion tends to engender confidence in the integrity of the process and aids in clarifying the underlying agreement. Moreover, we see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration. It is not apparent that he went beyond the submission. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). See also Payne, 374 F.3d at 674-75. The Eighth Circuit has similarly held, "Because arbitrators are not required to elaborate their reasoning supporting an award, if they choose not to do so, it is all but impossible to determine whether they acted with manifest disregard for the law." Stark, 381 F.3d at 802 (internal quotations omitted). While the arbitrator could have been clearer in weighing each individual factor, the arbitrator is not required to explain his reasons in the same way that *1128 the court might explain its reasons. Id. at 803 ("Although this result may seem draconian, the rules of law limiting judicial review and the judicial process in the arbitration context are well established and the parties . . . can be presumed to have been well versed in the consequences of their decision to resolve their disputes in this manner.") (quoting Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 751 (8th Cir.1986)).[2] Accordingly, the arbitrator's conclusion that Volk was an X-Rite employee does not "evidence manifest disregard for the law." b. Prima Facie Case of Gender Discrimination under MELCRA X-Rite argues Volk did not establish a prima facie case of gender discrimination under MELCRA. X-Rite argues that "[t]he modified McDonnell Douglas[3] prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer's adverse conduct." Town v. Michigan Bell Tel. Co., 455 Mich. 688, 568 N.W.2d 64, 68 (1997) (footnote added). The arbitrator concluded that Volk was a member of a protected class, was subject to an adverse employment action, was qualified for her position, and "was terminated under circumstances that give rise to an inference of discrimination." Arb. Mem. at 4. X-Rite argues that based on the arbitrator's memorandum, Volk failed to prove that X-Rite treated other similarly-situated persons outside the protected class differently as required under MELCRA's McDonnell Douglas framework. X-Rite ignores an abundance of contrary precedent to X-Rite's position supporting the arbitrator's articulation of the McDonnell Douglas standard. The Michigan Supreme Court articulated the fourth MELCRA factor as "failure to obtain the position occurred under circumstances giving rise to an inference of unlawful discrimination." Sniecinski v. Blue Cross & Blue Shield of Mich., 469 Mich. 124, 666 N.W.2d 186, 193 (2003); see also Mick v. Lake Orion Cmty. Schs., 474 Mich. 948, 706 N.W.2d 725, 726 (2005) (describing fourth prong as "the job was given to another person under circumstances giving rise to an inference of unlawful discrimination"); Hazle v. Ford Motor Co., 464 Mich. 456, 628 N.W.2d 515, 521 (2001) (describing fourth prong as "the job was given to another person under circumstances giving rise to an inference of unlawful discrimination."); Lytle v. Malady, 458 Mich. 153, 579 N.W.2d 906, 914 n. 19 (1998) (describing fourth prong as the plaintiff "was discharged under circumstances that give rise to an inference of unlawful discrimination," but cautioned that this factor is not to be applied mechanically, but with due deference to the unique facts of the individual case).[4] *1129 Federal courts interpreting Michigan law have reached the same conclusion. See, e.g. King v. HealthRider, Inc., 16 F.Supp.2d 780, 782-83 (E.D.Mich.1998). In Catanzaro v. Oakland County Cmty. Coll., 2007 WL 142158 at *4 (E.D.Mich. Jan. 16, 2007) (unpublished decision), the court expressly repudiates the argument that X-Rite now makes, that MELCRA requires the original McDonnell Douglas standard. Catanzaro v. Oakland County Cmty. Coll., 2007 WL 142158 at *4 (E.D.Mich. Jan. 16, 2007) (unpublished decision). The Catanzaro court observed, Defendant's contention that Plaintiff cannot establish a prima facie case because he has not offered evidence that others not in the protected class and similarly situated were treated differently is without merit in light of Hazle v. Ford Motor Co., 464 Mich. 456, 628 N.W.2d 515 (2001). It is true that "[c]ircumstances give rise to an inference of discrimination when the plaintiff was treated differently than persons of a different class for the same or similar conduct." Wilcoxon v. Minn. Mining & Mfg. Co., 235 Mich.App. 347, 597 N.W.2d 250 (1999). But, following Hazle, there is no authority that a plaintiff alleging gender discrimination in a hiring decision must introduce that type of evidence in order to sustain a claim. Rather, evidence that others similarly situated were treated differently will give rise to an inference of discrimination, but it is not the only way to establish such an inference. Id. In the context of interpreting gender discrimination under MELCRA, Michigan courts "are many times guided in [their] interpretation . . . by federal court interpretations of its counterpart federal statute." Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 917 (2000). The arbitrator's articulation of the fourth prong of the McDonnell Douglas standard as "[the employee] was terminated under circumstances that give rise to an inference of discrimination" (Arb. Mem. at 4), is consistent with Michigan precedent, and therefore the arbitrator did not "evidence manifest disregard for the law." Finally, X-Rite argues the arbitrator failed to rebut X-Rite's non-discriminatory reason for Volk's termination. There is no evidence that the arbitrator intentionally ignored any case law regarding the showing of pretext. See Payne, 374 F.3d at 674-75 (holding that the party moving to vacate had the burden of persuasion to show "evidence, other than the result, that the arbitrator [was] aware of the law and intentionally disregarded it"). The arbitrator was not required to explain every part of his decision. Enter. Wheel & Car Corp., 363 U.S. at 598, 80 S.Ct. 1358. Furthermore, any challenge to the sufficiency of the evidence to support the arbitrator's findings in concluding X-Rite's articulated reason for terminating Volk was pretextual is a question of fact for the arbitrator and is not subject to review on a motion to vacate. See Stroh Container Co., 783 F.2d at 751 ("[The court] may not set aside an award simply because [it] might have interpreted the agreement differently or because the arbitrators erred in interpreting the law or in determining the facts."). Though conclusory, the arbitrator's award evidences a finding that X-Rite's articulated reason for terminating Volk was pretextual when the arbitrator stated "[t]he reorganization clearly did not save *1130 the company money . . . [and] the company's failure to ask the question [whether Volk would consider moving to Chicago] simply because she was married and had children was discriminatory, and the company's articulated reason for the termination (i.e. to save money) was a pretext." Arb. Mem. at 5-6. Adopting the Supreme Court's interpretation of St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Michigan Supreme Court held, [W]e expressly adopt the intermediate approach endorsed by the United States Supreme Court in Hicks. For a plaintiff to survive summary disposition, he must always present an issue of fact regarding whether the defendant impermissibly discriminated. In some contexts, this may be shown merely by disproving the employer's articulated reason, if, and only if, disproving the employer's reason also shows discrimination. In other contexts, merely disproving an employer's articulated reason will not prove discrimination. Lytle v. Malady, 456 Mich. 1, 566 N.W.2d 582, 597-98 (1997) (internal citations omitted), vacated on other grounds by 458 Mich. 153, 579 N.W.2d 906 (1998). Here, the arbitrator did not accept X-Rite's articulated reason for terminating Volk, concluding X-Rite's explanation that it would save money was contradicted by (1) X-Rite's decision to give Volk's territory to a less-experienced male employee who earned a higher commission and (2) X-Rite's decision not to offer Volk the Illinois territory on the basis of her gender. The arbitrator's explanation did not "evidence manifest disregard for the law." c. Mitigated Damages X-Rite argues that the arbitrator awarded Volk damages for a period of time where Volk was not seeking employment. X-Rite's evidence consists of testimony "as to [Volk's] repeated attempts to find employment and her eventual decision to assist her husband in his attempt to start a new business after he also lost his employment on December 31, 2005." X-Rite's Reply Br. at 19. The arbitrator, in relevant part, concluded: Ms. Volk seeks three years' net income at $175,879.00 per year for lost wages as a result of the gender discrimination. Average annual income over the three years prior to termination is an appropriate way to calculate lost wages under these circumstances where Ms. Volk's income varied from year to year. The amount of income is adequately established by the income tax returns in Exhibit 67. I find that two and a half years is an appropriate length of time to award lost income. This is based on two considerations. First, her employment could be terminated on 90 days notice without cause after the one year term of her contract with the company expire [sic], and second, the difficulty of finding suitable replacement employment in light of her experience, skills, and compensation. The difficulty of finding replacement employment is evidenced by the fact that despite reasonable efforts, Ms. Volk has not found replacement employment. Arb. Mem. at 6. Volk testified at the hearing about the difficulties she encountered in her repeated attempts to find suitable replacement employment. As noted, Volk's efforts and difficulties were acknowledged in the arbitrator's damages award. In reviewing the arbitrator's award, courts cannot reassess the arbitrator's determination of facts. See Stroh Container Co., 783 F.2d at 751 (under the FAA, courts should not set aside the arbitrator's award "simply because . . . the arbitrator[ ] erred . . . in determining the facts"); see also El *1131 Dorado Sch. Dist. No. 15 v. Cont'l Cas. Co., 247 F.3d 843, 847 (8th Cir.2001) ("Arbitrators are not required to elaborate their reasoning supporting an award."). Furthermore, the arbitrator in this case did make a finding of fact that Volk was entitled to two-and-one-half years of lost income. While the factual basis for the arbitrator's decision is not thoroughly explained, the arbitrator was not required to elaborate his award. See Stark, 381 F.3d at 802. The arbitrator explained his reasoning in a way that did not "evidence manifest disregard for the law." d. Effective Date of the Agreement X-Rite's last challenge is that the arbitrator incorrectly determined the effective date of the Agreement as May 25, 2005, instead of January 1, 2005. The Agreement states, "This Agreement is made and entered into as of the 1st day of January 2005 . . ." Agreement at 1. Regarding modifications, the Agreement goes on to state, "This agreement may be altered or modified only by means of an agreed upon and written amendment signed by the authorized representatives of the parties to this Agreement." Agreement ¶ 12. The arbitrator acknowledged that "the Agreement stated that it `is made and entered into as of January 1, 2005,'" but concluded that a start date of May 25, 2005, should govern the Agreement, concluding, I have concluded that the "term" of the Agreement is 12 months, and that it may only be terminated for cause within that 12-month period. After the initial "term," it may be terminated on 90 days' notice with or without cause. As to this provision, I believe the Agreement is unambiguous and, therefore, any statements Mr. Hosford may have made regarding termination only for cause constitute inadmissible parole evidence. The question remains as to when the "term" of the Agreement began. I have concluded that the "term" began on the date it was fully executed, May 25, 2005. The Agreement says that it "is made and entered into as of January 1, 2005." This is clearly not the case. The parties had not agreed on the commission rate until sometime after January 1, 2005, and before the date of execution. X-Rite may argue that the parties intended the Agreement to be "effective" as of January 1, 2005, but that intention is contradicted by the way the parties treated the effective date under the first Sales Representative Agreement in 2003. Therefore, the Agreement could not have been terminated without cause prior to May 25, 2005. Arb. Mem. at 7. X-Rite argues that, under Michigan law, the Agreement was unambiguous and requires the party alleging modification of the contract to show by clear and convincing evidence that the other party intentionally and voluntarily relinquished this right. See Quality Prods. & Concepts Co. v. Nagel Precision, Inc., 469 Mich. 362, 666 N.W.2d 251, 261 (2003). X-Rite argues Volk did not meet her burden of proof that the parties intended the effective date of the Agreement to be May 25, 2005, instead of January 1, 2005. Whether the twelve-month term in the contract began on the date the contract was actually signed on May 25, 2005, or the earlier date referenced in the opening paragraph of the contract, January 1, 2005, is an interpretation of the contract's terms, which is always a question for the arbitrator and not ordinarily subject to review on a motion to vacate. See Stroh Container Co., 783 F.2d at 751 ("We may not set an award aside simply because we might have interpreted the agreement differently or because the Arbitrators erred in interpreting the law or in determining the facts."); Schoch v. InfoUSA, Inc., 341 F.3d 785, 788 (8th Cir.2003) *1132 (holding that an arbitral award cannot be vacated "even if [the Court] is convinced that the Arbitrator committed serious error, so long as the Arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.") (internal quotations omitted).[5] Although the opening paragraph of the Agreement indicates that it was made and entered into on January 1, 2005, it was not signed by X-Rite or Volk for more than four months, until May 25, 2005. The contract also contained a separate provision indicating that the duration of the contract would be "twelve months (12) from the date hereof." Because the parties "had not agreed on the commission rate until sometime after January 1, 2005, and before the date of execution," the arbitrator concluded the Agreement was ambiguous and that extrinsic evidence was required to discern the parties' intent at the time the Agreement was adopted. Arb. Mem. 7; see Bruno v. Detroit Inst. of Tech., 36 Mich.App. 61, 193 N.W.2d 322, 324 (1971) (holding that when the terms of an employment contract are in doubt, it is proper for a court to look, in its interpretation, at the conduct of the parties themselves with reference to the manner in which they have treated the contract, and an employment contract will be construed most strongly against the party preparing it). Accordingly, the arbitrator explained his reasoning in a way that did not "evidence manifest disregard for the law."[6] B. Motion to Confirm and Amend Award The FAA permits parties to enforce arbitration awards using three different methods: a judicial decree confirming an award, an order vacating it, or an order modifying or correcting it. See 9 U.S.C. §§ 9-11. "An application for any of these orders will get streamlined treatment as a motion, obviating the separate contract action that would usually be necessary to enforce or tinker with an arbitral award in court." Hall St. Assocs., 128 S.Ct. at 1402 (citing 9 U.S.C. § 6). "Under the terms of § 9, a court `must' confirm an arbitration award `unless' it is vacated, modified, or corrected `as prescribed' in §§ 10 and 11. Section 10 lists grounds for vacating an award, while § 11 names those for modifying or correcting one." Id. "On a motion for confirmation, [federal courts] have no power to selectively modify the award to delete such an order from the [arbitrator's] decision unless one of the circumstances detailed in section[s 10 or] 11 of the FAA applies." UHC Mgmt., 148 F.3d at 999. The FAA permits courts to modify arbitration awards under three circumstances: (a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award. (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted. (c) Where the award is imperfect in matter of form not affecting the merits of the controversy. *1133 9 U.S.C. § 11. Volk asks the Court to invoke its authority under § 11(a) to find that there "was an evident material miscalculation of figures" in calculating the amount of damages X-Rite owed Volk on her breach of contract for failure to pay commissions claim. Specifically, Volk argues that the arbitrator made an evident material miscalculation of figures in awarding Volk $11,267.42 in past commissions owed by X-Rite and failed to add the mandatory penalty under the MSRA, Mich. Comp. Laws. § 600.2961, to that incorrect figure. When the arbitrator discussed its award of damages for breach of contract for failure to pay commissions, the arbitrator explained that he had reviewed each line item of the spreadsheet and concluded that Volk met her burden of proof for recovery of commissions totaling $11,267.42, "excluding the Curwood sale," for which "Volk should receive the balance of 10%, or $9,797.70" in commissions. Arb. Mem. at 9. The arbitrator awarded $21,065.12 in past commissions but listed only $11,267.42 in commissions owed and failed to include the $9,797.70 Curwood sale commission discussed in the memorandum. The arbitrator then doubled the amount of past commissions owed (excluding the Curwood sale), the penalty required by the MSRA, which resulted in an award of $22,534.84. Volk argues that had the arbitrator correctly calculated the total commissions awarded in his memorandum by including the Curwood sale ($11,267.42 + $9,797.70 = $21,065.12), he would have applied the mandatory penalty to that number to come up with the correct penalty of $42,130.24. Volk argues under Section 11(a) of the FAA, this constitutes an "evident material miscalculation of figures" in the award that the Court must correct. The Eighth Circuit has not clearly defined what constitutes an "evident material miscalculation." However, the Fifth Circuit, quoting the Sixth Circuit, has held an evident material miscalculation occurs "where the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award." Valentine Sugars, Inc. v. Donau Corp., 981 F.2d 210, 214 (5th Cir.1993) (quoting Nat'l Post Office v. U.S. Postal Serv., 751 F.2d 834, 843 (6th Cir.1985)). The Fifth Circuit "interpret[s] the term `undisputed' to mean [a court] should look to see whether there is any rational basis for disputing the truth of the fact." Id. This type of "unambiguous and undisputed mistake of fact" occurred in this case. The arbitrator's intent to include the Curwood sale in his arbitration award is evidenced by the arbitrator unambiguously concluding that Volk was entitled to a commission of $9,797.70 for her involvement in the Curwood sale and in an apparent oversight failed to include that commission in the award. It is unclear whether the arbitrator would apply the MSRA to the Curwood sale. The arbitrator's "summary of commissions owed" classified the Curwood sale as a "service contract," not a contract for goods. The MSRA defines "Sales Representative" as "a person who contracts with or is employed by a principal for the solicitation of orders or sale of goods and is paid, in whole or in part, by commission. Sales representative does not include a person who places an order or sale for a product on his or her own account for resale by that sales representative." Mich. Comp. Laws. § 600.2961(1)(e). "Principal" includes a person who "[m]anufactures, produces, imports, sells, or distributes *1134 a product in this state." Id. § 600.2961(1)(d)(i). While Volk undoubtedly was entitled to protections under the MSRA for her sale of goods, it remains unclear whether the MSRA applies for services contracts that relate to goods sold in business as in the Curwood sale. See Klapp v. United Ins. Group Agency, Inc., 259 Mich.App. 467, 674 N.W.2d 736, 738 (2003) (holding that an insurance salesman seeking double damages and attorneys' fees under the MSRA for an insurer's failure to pay him renewal commissions was not entitled to this relief because insurance contracts were not among the tangible goods contemplated by the MSRA); Mahnick v. Bell Co., 256 Mich.App. 154, 662 N.W.2d 830, 834 (2003) (MSRA was inapplicable where the plaintiff-appraiser, was not a salesperson who sold "goods" and the defendant-contractor did not produce, sell, or distribute a "product" but rather the plaintiff provided a service). In order to apply double damages to the Curwood sale, the Court would have to apply Michigan substantive law to determine whether the MSRA permitted the arbitrator to grant double damages for the Curwood sale. This depends on how the arbitrator would have applied the facts surrounding the Curwood sale to the relevant Michigan statutory and case law, which the reviewing court is barred from doing under Section 11(a) of the FAA. The Court holds that the arbitrator's award included an "evident material miscalculation" when it omitted the commission owed for the Curwood sale. Accordingly, the Court will modify the arbitrator's award to include the award of $9,797.70 as determined in the arbitrator's memorandum supporting his award, but the Court does not apply the MSRA penalty to that amount. C. Attorneys' Fees The FAA does not contain any provisions for awards of attorneys' fees to successful or prevailing parties. Electrolux Home Prods. v. UAW, 343 F.Supp.2d 747, 761 (N.D.Iowa 2004). An unjustified refusal to abide by an arbitrator's award may constitute bad faith for the purpose of awarding attorneys' fees. Id. at 762. District courts have great discretion in determining whether attorneys' fees are appropriate under the "bad faith" standard of the FAA. Id. ("Electrolux had substantial grounds justifying its refusal to comply with the arbitrator's award. Accordingly, Electrolux's justified refusal to comply with the award does not constitute evidence of bad faith and the UAW is not entitled to recover attorneys' fees."). The MELCRA states "a court . . . may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate." Mich. Comp. Laws § 37.2804. The MSRA states the court "shall award to the prevailing party reasonable attorney fees and court costs." Mich. Comp. Laws § 600.2961(6). The MELCRA is permissive, while the MSRA is mandatory. Even if attorneys' fees are mandatory under state statutory law, that does not compel federal courts reviewing arbitration awards to award attorneys' fees in proceedings pursuant to the FAA. In a similar context, the Seventh Circuit concluded, "the district court was correct in refusing to bootstrap the Illinois Consumer Fraud Act's attorneys' fees provision into section 9 of the [FAA]." Menke v. Monchecourt, 17 F.3d 1007, 1009 (7th Cir. 1994). Volk cites no authority requiring federal courts to award attorneys' fees for arbitration awards based on an underlying state statutory grant of attorneys' fees. *1135 Furthermore, unlike the Illinois statute in Menke v. Monchecourt, the Michigan statutes do not require attorneys' fees for defending against an appeal, but rather grant discretion to award appellate attorneys' fees. See McLemore v. Detroit Receiving Hosp. & Univ. Med. Ctr., 196 Mich.App. 391, 493 N.W.2d 441, 446 (1992) (awarding appellate fees under MELCRA).[7] The Court declines to award Volk appellate attorneys' fees. Both X-Rite's motion to vacate and Volk's petition to confirm were based on factors clearly enumerated in the FAA and did not constitute an appeal of a "decision on the merits." Menke, 17 F.3d at 1009. Volk did not fully prevail on the petition to correct the arbitration award because the Court cannot apply MSRA double damages to the Curwood sale. Furthermore, the arbitrator did not specifically award appellate attorneys' fees, which gives this Court discretion whether to award such fees. X-Rite had reasonable grounds justifying its refusal to comply with the arbitrator's award and thus did not act in bad faith when it challenged the arbitrator's award, even though the Court ultimately determines X-Rite cannot prevail on its motion. See Electrolux Home Prods., 343 F.Supp.2d at 761. Finally, the arbitrator's award of $46,406.78 in attorneys' fees in conjunction with the underlying award of MELCRA and MSRA damages adequately compensates Volk and supports adhering to the default American rule that each party should pay their own attorneys' fees. See Travelers Cas. & Sur. Co. of Am. v. PG & E, 549 U.S. 443, 448, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). III. CONCLUSION For the foregoing reasons, X-Rite's Motion to Vacate (Clerk's Docket No. 12) must be denied. Volk's Amended Petition to Correct and Confirm Arbitration Award (Clerk's Docket No. 13) must be granted in part, confirming the Arbitration Award as corrected, entering judgment in favor of Volk and against X-Rite on the relief awarded in the Arbitration Award, and correcting paragraph 2 of the arbitration award to read as follows: 2. Claimant Lisa Volk is awarded $21,065.12 on her breach of contract claim for failure to pay commissions when due, together with a penalty under the Michigan Sales Representative statute of $22,534.84, for a total of $43,599.96. Claimant Lisa Volk is entitled to pre-judgment interest on the commissions due of $21,065.12 from the date the Demand for Arbitration was filed at the statutory rate. Volk's Petition is denied in part, as to Volk's request for attorneys' fees. The Clerk is directed to enter judgment in favor of Lisa Volk and Color Concepts, *1136 Inc., in the amount of $629,704.24, plus interest at the applicable rate and costs. IT IS SO ORDERED. NOTES [1] UHC Management forecloses all of X-Rite's arguments. First, X-Rite argues Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. University, 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989), explicitly authorizes the use of state procedure in arbitration cases. While this Court agrees with that point of departure in the analysis, it is just that. UHC Management, discussing Volt, held that parties could substitute the default FAA provisions with state law only when the parties' arbitration agreement makes their intent to use state arbitration law "abundantly clear." UHC Mgmt., 148 F.3d at 995-97. Second, X-Rite argues the FAA does not preempt state arbitration laws that encourage arbitration but only preempts state laws that make arbitration more difficult. See Hudson v. ConAgra Poultry, Co., 484 F.3d 496, 502-03 (8th Cir.2007). However, whether or not the ambiguous choice-of-law clause encourages arbitration is not the relevant inquiry. UHC Mgmt., 148 F.3d at 995-97. The relevant interpretive rule is that federal courts must interpret choice-of-law provisions as favoring the FAA unless the parties make their preference for a more expansive state arbitration law "abundantly clear." UHC Mgmt., 148 F.3d at 995-97. Finally, X-Rite argues the Agreement's reference to AAA rules require application of Michigan law. However, the contract in UHC Management applied AAA rules but held that the arbitration clause did not make the parties preference for state law "abundantly clear." Id. at 994, 997. [2] In search of simplicity, efficiency, and cost-containment through arbitration, something approaching perfection is a knowing sacrifice. See, e.g., Hoffman v. Cargill, 236 F.3d at 462. [3] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). [4] In Lytle v. Malady, the Michigan Supreme Court held that the plaintiff "was nonetheless demoted and then discharged under circumstances giving rise to an inference of discrimination," and only in a footnote did the Lytle court articulate the original formulation of McDonnell Douglas' fourth prong. Lytle at 918 n. 30. Under MELCRA's application of the McDonnell Douglas' fourth prong, "discharged under circumstances giving rise to an inference of discrimination," the original McDonnell Douglas standard—other similarly situated persons were treated differently—is only an example of how to prove MELCRA's fourth prong. [5] X-Rite argues that an arbitrator is not free to interpret contracts that are not silent. See United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). However, Michigan law, and not federal law, controlled how the arbitrator interpreted the Agreement. [6] The arbitrator concluded although Volk was entitled to damages awarded for this five-month period, she could not collect those damages because it would constitute a "double recovery." [7] Volk relies on Toll Brothers, Inc. v. Fekete, 2008 WL 466596 (Mich.Ct.App. Feb. 21, 2008), to support her claim that attorneys' fees are mandatory. Fekete involved an arbitrator awarding attorneys' fees for $22,500. Toll Bros., Inc. v. Fekete, 2008 WL 466596 at *4. The reviewing trial court declined to award $3,925 in additional appellate attorneys' fees. Id. The Fekete court observed that "[t]he circuit court's decision not to award additional attorney fees in the amount of $3,925 was within the court's discretion. Under the circumstances, the circuit court's decision not to award additional attorney fees did not constitute an abuse of discretion." Id. However, the Michigan Court of Appeals did exercise its own discretion and awarded appellate attorney fees under Mich. Comp. Laws § 37.2802. Id.

43 Cal.App.3d 189 (1974) 118 Cal. Rptr. 341 V. HAL TREADAWAY, Plaintiff and Appellant, v. CAMELLIA CONVALESCENT HOSPITALS, INC., et al., Defendants and Respondents. Docket No. 14046. Court of Appeals of California, Third District. November 18, 1974. *192 COUNSEL Downey, Brand, Seymour & Rohwer and Joseph D. Genshlea for Plaintiff and Appellant. Rowland, Clowdus & Parker, Rowland & Parker, Dahl, Hefner, Stark, Marois & James, Archie G. Parker and John D. Bessey for Defendants and Respondents. OPINION JANES, J. Plaintiff appeals from a judgment which declares the amount of annual rental due to plaintiff, as lessor, from defendant Camellia Convalescent Hospitals Corporation, a Delaware corporation ("Del-Camellia"), under a written lease dated August 1, 1968. This case presents an issue of first impression — namely, whether there can be reformation of a written contract after a party to it, a corporation, has been merged into another corporation which thereby succeeded to the contract, where the latter corporation, having survived the merger, opposes reformation, resisting on the ground that it acquired the contract for value and without notice that the written terms thereof did not reflect the actual agreement of the contracting parties. FACTS Del-Camellia was not the original lessee under the subject lease. The original lessees were Helen M. Peterson, Jack D. Carter, and Camellia Convalescent *193 Hospitals, Inc., a California corporation ("Cal-Camellia"). Peterson and Carter signed the lease as individuals and as officers of Cal-Camellia on its behalf. Plaintiff was the first and only lessor. The lease was of real property in Woodland, California, including a hospital facility to be constructed by renovation of an existing building. In relevant part, the rental formula in the lease provided as follows: "As rentals hereunder Lessees shall pay annually an amount equal to eleven percent (11%) of the aggregate of (a) the cost of the real property to Lessors which it is agreed shall be the sum of THIRTY-FIVE THOUSAND DOLLARS ($35,000), and (b) the actual cost of the improvements to be constructed on the real property by Lessors. `Cost of the improvements,' as used herein shall be construed to be the actual cost of construction including contractors F.H.A. [Federal Housing Administration] allowable overhead and profit, F.H.A. allowable architect's fee, interest during construction, taxes during construction, property insurance during construction, mortgage insurance premium during construction, F.H.A. examination and inspection fees, title and recording expense, financing and loan discount expense, legal and organization expense. The parties hereto acknowledge that F.H.A. requires that the Lessors submit on F.H.A. forms No. 3378 and 3378A all items of cost for approval. `Cost of the improvements' shall not exceed EIGHT HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($875,000), including the cost of the real property referenced above." The original parties to the lease all understood that the annual rent would be 11 percent of the total F.H.A. allowable costs — such costs not to exceed $875,000. Those parties all understood that the F.H.A. allowable costs were to include not only the F.H.A. certified costs of renovating the existing building but also the F.H.A. appraised value of that building prior to renovation, as well as the F.H.A. appraised value of the land. However, as a result of careless drafting of the lease by an agent of plaintiff (copying of an earlier lease where bare land was developed), the written rental formula failed to include the F.H.A. appraised value of the existing building. Subsequently, in the spring of 1969, Cal-Camellia was merged into Gilmedco, Inc., a Delaware corporation ("Gilmedco").[1] As a result of this merger, Gilmedco acquired the assets of Cal-Camellia (including the Woodland lease, of which Cal-Camellia had become sole lessee). As consideration for the acquisition, the shareholders of Cal-Camellia received shares of stock in both Gilmedco and Gilmedco's parent company, Gilbert Shoe *194 Stores, Inc., an Ohio corporation which thereafter became The Gilbert Companies, Inc., a Delaware corporation. In May 1969, Gilmed, Inc., a Delaware corporation, was formed and acquired full ownership of Gilmedco (the surviving corporation of the merger with Cal-Camellia). Gilmed, Inc., in turn, was partially owned by The Gilbert Companies, Inc. In May 1969, Gilmedco changed its name to Camellia Convalescent Hospitals Corporation (defendant "Del-Camellia" herein), which was lessee of the Woodland property when judgment was entered in this action. The renovated hospital facility was completed and ready for occupancy in September 1969. Some time after the 1969 merger, a dispute arose between plaintiff and Del-Camellia with respect to the formula for computing the rent due under the lease. This action ensued. Plaintiff's complaint alleged two causes of action — one seeking reformation of the rental formula in the lease on the ground of unilateral mistake, the other for a declaratory judgment interpreting the rental formula. Gilmed, Inc., and The Gilbert Companies, Inc., are defendants herein with Del-Camellia (sued as a Doe). Cal-Camellia made no appearance. Prior to trial, plaintiff voluntarily dismissed Peterson and Carter as defendants. During trial, plaintiff voluntarily dismissed the cause of action for reformation. The cause of action for declaratory relief alleged that the cost of the existing building (approximately $240,000), rather than the F.H.A. appraised value, was to be included in the rental formula. At trial, however, plaintiff proceeded on the theory that the F.H.A. appraised value was to be used. THE APPLICABLE STATUTES In relevant part, section 4116 of the Corporations Code provides: "Upon merger or consolidation pursuant to this article, the separate existence of the constituent corporations ceases, and the consolidated or surviving corporation shall succeed, without other transfer, to all the rights and property of each of the constituent corporations, and shall be subject to all the debts and liabilities of each, in the same manner as if the consolidated or surviving corporation had itself incurred them. [¶] All rights of creditors and all liens upon the property of each of the constituent corporations shall be preserved unimpaired, limited in lien to the property affected by such liens immediately prior to the time of the consolidation or merger." (Italics *195 added.)[2] Section 4116 applies to the merger or consolidation of any domestic corporation with a foreign corporation, and to the effect of such merger or consolidation. (Corp. Code, § 4121.) Civil Code section 3399 provides: "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value." (Italics added.) FINDINGS AND JUDGMENT The trial court found that, because of the error of the draftsman, the rental formula in the lease was inconsistent with the understanding of the original parties to it. However, the court also found that Gilmedco (now Del-Camellia) was a "third person" within the meaning of Civil Code section 3399 and that, at the time of the merger, Gilmedco had acquired the lease "for value" and "in good faith" (i.e., without actual or constructive notice of the true understanding of the original contracting parties). Accordingly, having also found that Del-Camellia would be prejudiced if the written formula were revised to include the F.H.A. appraised value of the building prior to renovation,[3] the court held that section 3399 barred plaintiff from obtaining reformation and that the actual understanding of the original parties was not a "debt" or "liability" within the meaning of Corporations Code section 4116 and did not bind Gilmedco (now Del-Camellia), the surviving corporation of the merger. Other findings will be mentioned during our discussion of the issues on appeal. The court therefore entered a declaratory judgment which decreed that plaintiff was entitled to annual rental from Del-Camellia under the lease *196 based upon a formula which omitted the F.H.A. appraised value of the unrenovated building, resulting in a lower annual rental than would have been payable under the original parties' actual agreement. (See fn. 3, supra.) In view of its findings and conclusions concerning the bar of Civil Code section 3399, the court made no determination concerning plaintiff's additional allegations that Gilmedco (now Del-Camellia) was an alter ego of Gilmed, Inc., and that Gilmed, Inc., was an alter ego of Gilbert Shoe Stores, Inc. (now The Gilbert Companies, Inc.). Nor did the court rule upon defendants' affirmative defenses that plaintiff was estopped and was precluded by waiver and laches from obtaining reformation of the lease. CONTENTIONS Plaintiff agrees with the trial court's finding that, at the time the lease was executed, the original parties to it all understood that the F.H.A. appraised value of the existing building was to be included in the rental formula. (1) Plaintiff contends, however, that the court erroneously determined that the language used in the written formula was patently inconsistent with the parties' actual agreement. The court did not err in this respect. In the written formula, "the cost of the real property to Lessors" was expressly agreed to be $35,000 — not the F.H.A. appraised value of the land and original building, which was $212,000. The "actual cost of the improvements" was limited in the formula to those improvements "to be" constructed on the property, and therefore excluded existing improvements. The formula clearly was 11 percent of the aggregate of $35,000 plus the cost of future improvements, such aggregate not to exceed $875,000. As stated in the findings, the lease was "bereft of language or suggestion that such an interpretation [as plaintiff urges] was intended or was possible." Although an express finding was neither made nor requested as to whether the original parties mistakenly believed that the written lease reflected their actual agreement, there is no suggestion that they knew of the error when they signed the lease or that they intended that the writing would be a nullity (See Witkin, Cal. Evidence (2d ed. 1966) § 740, p. 686.) A finding that the original parties were mutually mistaken in this respect is implicit in the findings that "there was a mistake in the lease" and that "the failure of the Woodland lease to express the understanding of the parties to it in regard to the rent formula was caused by careless drafting ... by Plaintiff's agent...." (2) Plaintiff argues that there was no "mutual mistake" in the sense that such term is used in Civil Code section 3399 because, as between *197 the original parties, there was no misunderstanding concerning the method of computing rental. Such argument misconceives the nature of the mutual mistake to which section 3399 refers. Reformation, on the ground of mutual mistake, presupposes actual agreement (i.e., no mistake) between the contracting parties as to what they intend, but further presupposes that all parties mistakenly believe that the written contract expresses their intention. (Civ. Code, § 3399; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 663 [297 P.2d 638]; Shupe v. Nelson (1967) 254 Cal. App.2d 693, 699-700 [62 Cal. Rptr. 352]; Campbell v. Republic Indemnity Co. (1957) 149 Cal. App.2d 476, 479-480 [308 P.2d 425]; Renshaw v. Happy Valley Water Co. (1952) 114 Cal. App.2d 521, 524-525 [250 P.2d 612].) Accordingly, since plaintiff sought from the trial court a declaration that the F.H.A. appraised value of the existing building should be utilized in the formula despite the fact that the lease could not be so construed, the court properly determined as a conclusion of law that, notwithstanding plaintiff's dismissal of his cause of action for reformation, he was in effect "seeking relief by way of reformation in his ... [remaining] cause of action for declaratory relief, and as such, must be bound by the provisions of Civil Code, Section 3399." (See 3 Witkin, Cal. Procedure (2d ed. 1971) § 710, p. 2333; Putnam v. Putnam (1942) 51 Cal. App.2d 696 [125 P.2d 525].) (3a) Plaintiff correctly contends, however, that the trial court erred when it held that the surviving corporation, Gilmedco (now Del-Camellia), was, within the meaning of section 3399, a "third person" which had acquired the lease "in good faith [i.e., without actual or constructive notice] and for value." We deal here with a statutory merger (Corp. Code, § 4100 et seq.). This case does not arise from a de facto merger, nor does it involve the mere transfer or sale of one corporation's assets to another corporation without extinction of the transferor company; and it is not a case where the transferee corporation had no independent character but was merely a reincarnation of the transferor. There is no suggestion in the record that the purpose of the merger was to defraud creditors. (See generally, Schwartz v. McGraw-Edison Co. (1971) 14 Cal. App.3d 767, 780-781 [92 Cal. Rptr. 776]; Pierce v. Riverside Mtg. Securities Co. (1938) 25 Cal. App.2d 248, 254-258 [77 P.2d 226]; Ballentine, Corporations (1946 ed.) § 280, pp. 664-666, and § 289, pp. 681-682; 2 Ballentine & Sterling, Cal. Corporation Laws (4th ed. 1974) § 312, pp. 552-557, and §§ 318-319, pp. 565-567; 15 Fletcher, Cyc. Corp. (Perm. ed. 1973 rev.) §§ 7043-7045.1, pp. *198 17-29, § 7102, pp. 147-148, and § 7129, p. 212; 19 Am.Jur.2d, Corporations, §§ 1491-1493, pp. 873-876, and § 1550, pp. 926-927.) (4) "In a statutory merger, the acquiring corporation assumes all liabilities, known and unknown, of its partner." (Kintner, Primer on the Law of Mergers (1973) p. 36.)[4] The assumption of unknown liabilities, including those which justify contract reformation after the merger, falls logically within the scope of Corporations Code section 4116. The section provides in broad terms and without exception that, upon merger, the surviving corporation "shall be subject to all the debts and liabilities of each [constituent corporation], in the same manner as if the... surviving corporation had itself incurred them," and that "[a]ll rights of creditors ... of each of the constituent corporations shall be preserved unimpaired...." (Italics added.) (See Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App.3d 289, 303-305 [98 Cal. Rptr. 547] (surviving corporation liable in punitive damages for tort of extinct corporation).) "`The general rule is that a court is not authorized in the construction of a statute, to create exceptions not specifically made. If the statute announces a general rule and makes no exception thereto, the courts can make none.' [Citations.]" (Ogle v. Heim (1968) 69 Cal.2d 7, 9 [69 Cal. Rptr. 579, 442 P.2d 659].) "Courts may not read into a statute an exception not incorporated therein by the Legislature [citation], unless such an exception must reasonably and necessarily be implied in order not to `disregard or overturn a sound rule of public policy.' [Citation.]" (Pacific Motor Transport Co. v. State Bd. of Equalization (1972) 28 Cal. App.3d 230, 235 [104 Cal. Rptr. 558].) (3b) Quite apart from the written lease, the actual common understanding of its original signatories created "debts and liabilities" of Cal-Camellia to plaintiff which existed prior to the merger and to which Gilmedco (now Del-Camellia) was "subject" under section 4116; and plaintiff *199 had a preexisting right to reformation which section 4116 "preserved unimpaired" after the merger. In relying upon that portion of Civil Code section 3399 which prohibits reformation where "rights acquired by third persons, in good faith and for value" will be prejudiced, the court applied a general statute, whereas section 4116 is a special statute applicable to mergers. It is an established principle of statutory construction that "a special statute dealing expressly with a particular subject controls and takes priority over a general statute." (Brill v. County of Los Angeles (1940) 16 Cal.2d 726, 732 [108 P.2d 443]; see also People v. Gilbert (1969) 1 Cal.3d 475, 479 [82 Cal. Rptr. 724, 462 P.2d 580].) Even more fundamentally, where the surviving corporation has succeeded to a contract through merger, and where reformation of that contract is later sought as against the surviving corporation, the surviving corporation is not a "third person" within the qualifying language of section 3399. In applying section 3399 in the instant case, the trial court erroneously ascribed to the surviving corporation the surviving corporation's pre-merger character as a "third person" — a character it no longer had at the time the issue arose as to whether it would be prejudiced by reformation of the lease. In legal effect, the surviving corporation (Gilmedco, now Del-Camellia) is, among other things, the constituent corporation (Cal-Camellia) which lost its separate identity upon merger. (Jackson v. Continental Telephone Co. (1963) 212 Cal. App.2d 510, 513-514 [28 Cal. Rptr. 1].)[5] (5) The surviving corporation must therefore be deemed to have the extinct corporation's understanding of the latter's contractual rights and duties. The surviving corporation is charged with at least constructive notice of the claims of creditors of the extinct corporation even though the surviving corporation lacks actual notice of such claims. To that extent, the surviving corporation is not a taker "in good faith" (Civ. Code, § 3399). A contrary rule would work a constructive fraud upon those creditors. (See Morrison v. Snuff Co. (1901) 79 Miss. 330 [30 So. 723] (rule applied *200 to consolidated company).) "The protected `third persons' referred to in section 3399 are not those who purchase with notice, actual or constructive, of the rights of other persons whose interests have been described defectively in written instruments...." (Shupe v. Nelson, supra, 254 Cal. App.2d at p. 698.) (6) Moreover, as concerns the rights of creditors of the extinct corporation, when shares of stock in the surviving corporation and its parent company are issued to the shareholders of the extinct corporation as the only consideration for the acquisition of the latter's assets by the corporation which survives the merger, such acquisition cannot be viewed as having been made "for value" (Civ. Code, § 3399) notwithstanding that the consideration for it may have been lawful (Corp. Code, § 4103). Here again, the rule is salutary and is designed to prevent a constructive fraud upon the creditors of the corporation which has lost its separate identity. It would be inequitable to require the creditors of the extinct corporation — who, before the merger, could have looked to the assets of that corporation — to resort instead to shares of stock of speculative value, or to compel those creditors to follow those shares into the hands of the several stockholders. (See Gibson v. American R. Exp. Co. (1923) 195 Iowa 1126, 1131-1132 [193 N.W. 274, 277]; American Ry. Express Co. v. Commonwealth (1920) 190 Ky. 636, 648, 653 [228 S.W. 433, 438-441, 30 A.L.R. 543]; 15 Fletcher, Cyc. Corp. (Perm. ed. 1973 rev.) § 7127, pp. 204-206; 19 Am.Jur.2d, Corporations, §§ 1552-1553, pp. 928-929; cf. Bing Crosby Minute Maid Corp. v. Eaton (1956) 46 Cal.2d 484, 487 [297 P.2d 5]; Healy v. Young (1962) 198 Cal. App.2d 834, 835-836 [18 Cal. Rptr. 359].) "The creditors of a corporation cannot prevent its consolidation or merger with another corporation even if the new debtor corporation is not as satisfactory to them as the old. In general the only remedy of the creditors of the constituent corporations, unless their existence is continued, is either against the united corporation, or to pursue the assets of the [nonsurviving] constituents into its hands on the ground of fraudulent conveyance. In merger or consolidation proceedings nothing passes by way of consideration to the [nonsurviving] constituent corporations, which are stripped of their assets. Unless their obligations followed their assets to the new or surviving corporation, as far as creditors are concerned the transfer of their assets would constitute a gift and perpetrate a fraud upon their creditors. The liability of the united corporation does not depend upon whether such corporation has received assets sufficient to cover such debts and liabilities from the [nonsurviving] constituent, although the contrary has sometimes been asserted. A personal liability is imposed by statute for contract and tort claims and is also usually expressly assumed in the agreement *201 of union." (Ballentine, Corporations (1946 ed.) § 294, pp. 690-691.) (Fns. omitted.) (3c) The written agreement of merger between Gilmedco and Cal-Camellia provided that "all rights of creditors and all liens upon the property of the Constituent Corporations shall be preserved unimpaired and all debts, liabilities and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred and contracted by it."[6] Since this language was merely a reiteration of the provisions of Corporations Code section 4116 which are here relevant, we reach our decision herein upon the basis of the surviving corporation's liability under that section rather than upon the ground that Gilmedco, in a consensual sense, expressly or impliedly assumed liability. Our decision also rests upon the nonapplicability of the exception in Civil Code section 3399. Defendants' reliance upon Black v. Richfield Oil Corporation (9th Cir.1944) 146 F.2d 801, is unavailing. Black did not involve a merger. In Black, reorganization proceedings were had under section 77B of the Bankruptcy Act (11 U.S.C. former § 207, now § 501 et seq.), and a newly organized corporation simply purchased the assets of the debtor corporation from the reorganization trustee, in whom title to those assets had vested under the act (11 U.S.C. former § 207(c)(2), now § 586). The debtor corporation was not absorbed by the new corporation. Therefore, unlike the surviving corporation in the case at bench, the newly organized corporation in Black was a "third party" within the meaning of Civil Code section 3399 and was not chargeable with constructive notice; and the new corporation in Black acquired the assets of the debtor corporation "for value," having raised $20,000,000 to purchase the assets and to assume confirmed liabilities. (See Black opinion below, (S.D.Cal. 1941) 41 F. Supp. 988, 995.) Moreover, in contrast to Corporations Code section 4116, section 77B of the Bankruptcy Act provided that the assets when transferred to the new corporation were to be free and clear of all creditors' claims except such claims as might consistently be reserved in the order of confirmation entered by the court in the reorganization proceedings. The right to reform the contract sued upon in Black had been neither claimed in the *202 section 77B proceedings nor reserved in the confirmation order issued by the bankruptcy court. (146 F.2d at p. 805.)[7] (7) Contrary to defendants' contention, such right as plaintiff may have to reformation is not affected by the fact that the failure of the lease to express the understanding of the original parties resulted from careless drafting by plaintiff's own agent. "[I]t makes no difference who wrote the instruments to be reformed so long as all parties were in common mistake as to what was contained therein." (Renshaw v. Happy Valley Water Co., supra, 114 Cal. App.2d at pp. 524-525.) "Mistake by a scrivener or draftsman in reducing the intent of the parties to writing is ground for reformation...." (Shupe v. Nelson, supra, 254 Cal. App.2d at pp. 700-701.) In this connection, defendants cite Fraters G. & P. Co. v. Southwestern C. Co. (1930) 107 Cal. App. 1 [290 P. 45], and Knerr v. Baruch Corporation (1941) 47 Cal. App.2d 601 [118 P.2d 488]; but neither of those cases involved a mistake which was mutual. In view of our foregoing conclusions, it is unnecessary for us to rule upon plaintiff's contention that the evidence did not support the court's finding that Gilmedco (now Del-Camellia) lacked actual notice of the understanding which the original parties to the lease had in respect to the rental formula. The judgment is reversed. Friedman, Acting P.J., and Paras, J., concurred. A petition for a rehearing was denied on December 9, 1974, and the following opinion was then rendered: THE COURT. Defendants' petition for rehearing points out that our opinion omits mention of the trial court's finding that, shortly before the merger of Cal-Camellia into Gilmedco, "[p]laintiff, in writing, consented to the assignment and to the transfer by operation of law of the Woodland lease to Gilmedco, and represented that the lease had not been modified since its execution on August 1, 1968." The omission was no oversight. The finding in question is not material to any issue on this appeal. It was not a finding that plaintiff represented that the written lease, when executed (signed), conformed with the actual agreement of its signatories. Respondents' petition for a hearing by the Supreme Court was denied January 29, 1975. Richardson, J., did not participate therein. NOTES [1] "A merger is the absorption of one or more corporations by an existing corporation which survives and continues the combined business. A consolidation is the union of two or more existing corporations to form a new corporation." (2 Ballentine & Sterling, Cal. Corporation Laws (4th ed. 1974) § 318, p. 565.) (Fns. omitted.) [2] "Constituent corporation" means a corporation which is merged or consolidated with one or more other corporations, and, in case of a merger, includes the surviving corporation. (Corp. Code, § 4102.) "Surviving corporation" means the corporation into which one or more other corporations are merged, and "consolidated corporation" means the new corporation into which two or more other corporations are consolidated. (Corp. Code, § 4101.) [3] The court found that the F.H.A. allowable costs totaled $920,000 — i.e., the sum of the F.H.A. appraised value of the land and original building ($212,000) plus the F.H.A. certified costs of renovation ($708,000). Therefore, if the actual agreement of the lease signatories controlled (rather than the written lease), the annual rental would be $96,250 (11 percent of the $875,000 agreed maximum F.H.A. allowable costs). In contrast, under the written lease, the annual rental would be $81,730 — i.e., 11 percent of (a) the $35,000 "agreed" cost of the "real property" and (b) the $708,000 F.H.A. certified costs of renovation. [4] "Caution dictates that provision be made at the time of the merger to protect the acquiring corporation. Protection can come in one of several ways. Warranties can be obtained from the acquired corporation or its principal shareholders guaranteeing the nature and amount of liability. Warranties from the corporation, however, will not survive the closing in a statutory merger.... Although the warranties of principal shareholders would offer greater protection to the acquiring corporation, those shareholders may be extremely reluctant to face unlimited liability and possible participation in protracted litigation. [¶] To avoid these problems, it has become common practice for acquiring corporations to withhold or deposit in escrow part of the purchase price for a specified period of time to be used to satisfy unknown or contingent liabilities. This procedure can be simplified further if the purchase price is to be paid in installments. Thus, the uncertainty inherent in any purchase of a going concern can be reduced." (Kintner, op. cit. supra, pp. 37-38.) [5] In Jackson v. Continental Telephone Co., supra, 212 Cal. App.2d at pages 513-514, the court quoted Mutual B. & L. Assn. v. Wiborg (1943) 59 Cal. App.2d 325, at page 329 [139 P.2d 73], as expressing what happens upon the merger of corporations: "`Although the distinct corporate entity of Title Guarantee passed out of existence or became extinct upon the completion of the act of consolidation, its corporate activities did not cease but were continued and carried on through the new channel. [Citation.] While the Title Guarantee merger with Title Insurance caused it to lose its identity as to its separate existence, yet it became an integral part of Title Insurance, and carried with it all of its rights, powers, liabilities, and assets "except the indicia and attributes of a corporate body distinct from that into which it is merged." [Citation.] The consolidation did not create an entirely new entity but "merely directs the blood of the old corporation into the veins of the new, the old living in the new." [Citation.]'" [6] Similar language appeared in a written "Plan of Reorganization and Agreement of Merger" concurrently executed by Gilmedco, Cal-Camellia, and Gilbert Shoe Stores, Inc. The latter document also contained Cal-Camellia's warranty of the accuracy of an attached schedule of contracts to which Cal-Camellia was a party. (See fn. 4, supra.) The attached schedule showed that the maximum annual rental which might be payable to plaintiff under the lease was 11 percent of $875,000. (See fn. 3, supra.) [7] The opinion of the trial court in Black states: "There is no contention that [the newly organized corporation] is a continuation and reorganization of [the debtor corporation]. Both parties recognize that the new company is a separate entity and the rights of the parties are definitely fixed by the agreement and plan of reorganization whereby [the new company] became a purchaser, through the court, of the assets of the old company." (41 F. Supp. at p. 992.)

153 P.3d 46 (2006) 2007-NMCA-024 William F. McNEILL, Page McNeill, Marilyn Cates and The Black Trust, Plaintiffs-Appellants/Cross-Appellees, v. BURLINGTON RESOURCE OIL & GAS COMPANY, Defendant-Appellee/Cross-Appellant. No. 25,469. Court of Appeals of New Mexico. December 4, 2006. Certiorari Granted February 9, 2007. *48 Law Offices of James P. Lyle, P.C., James P. Lyle, Albuquerque, NM Branch Law Firm, Turner W. Branch, Albuquerque, NM, for Appellants/Cross-Appellees. Lynch Chappell & Alsup, P.C., Harper Estes, Steven C. Kiser, Midland, TX, Maddox & Holloman, P.C., Scotty Holloman, Hobbs, NM, for Appellee/Cross-Appellant. Certiorari Granted, No. 30,162, February 9, 2007. OPINION BUSTAMANTE, Chief Judge. {1} The Defendant-Appellee/Cross-Appellant filed a motion for rehearing. This Court has considered the motion and the motion is hereby denied. The opinion filed in this case on October 26, 2006, is withdrawn and the following opinion is substituted therefor. {2} This case requires us to determine the correct measure of damages for injury to real property. We conclude that the correct measure of damages depends on whether the injury is permanent or temporary, which is an issue of fact for the jury. Where the injury is permanent, the correct measure of damages is the diminution in the fair market value of the property. Conversely, where the injury is temporary, the correct measure of damages is the cost of repair or remediation, as long as the cost is less than the diminution in fair market value. Furthermore, the Plaintiff should be allowed to present evidence on the cost of repair or remediation in either situation because such evidence will normally be relevant in both cases. Finally, when determining the diminution in value of damaged property, the jury should consider the decrease in value to the entire property, not just the damaged portion of land. We therefore reverse and remand for proceedings consistent with this opinion. *49 BACKGROUND {3} Plaintiffs are the owners of the surface rights of the McNeill Ranch, a cattle ranch in Lea County, New Mexico. The McNeill Ranch covers approximately 31,000 acres over two large tracts. Defendant, Burlington Resource Oil and Gas Co., is the former oil, gas, and mineral lessee under a portion of Plaintiffs' property. Defendant's predecessor-in-interest owned and operated an oil well on a tract of land on the McNeill Ranch, known as Tract 2, since approximately 1950. Standard practice when operating an oil well is to dig a pit in the ground in the immediate vicinity of the oil well in order to contain waste by-products of oil production. These by-products, known as "produced water," may contain many types of petroleum, hydrocarbons, salt water, and other contaminants. {4} The oil well ceased production in 1986, and in 1992 Defendant closed the pit. After closure of the pit, the surface area looked like any other abandoned oil field operation, and it was not evident to the untrained eye that an old pit was buried at the site. In 1996, Plaintiff William McNeill received information leading him to suspect that there might be an old pit buried under Tract 2 of his ranch. After learning of the pit and possible contamination, Plaintiff William McNeill contacted Defendant and asked for the contaminated materials to be removed. Defendant did not remove or replace the contaminated materials. Although there have been no additional deposits into the pit since 1986, the existing contaminants had been accumulating on the property since 1950 and will not disappear or abate on their own. Instead, the contaminants will require removal and replacement of a large amount of contaminated soil. It is not disputed that Defendant is the successor-in-interest to the companies that drilled, operated, plugged, and cleaned up this well and the associated pit. {5} Plaintiffs filed suit on June 1, 1999, then filed a second amended complaint on January 13, 2000, alleging negligence, trespass, and private nuisance for contamination of their property resulting from Defendant's operation of an oil well. Specifically, Plaintiffs allege that Defendant's failure to properly close the associated pit resulted in subsurface contamination of their property. Furthermore, Plaintiffs assert that the contamination has affected the water supply in the area and that, as a result, Plaintiffs' cattle will not drink the water. {6} Defendant filed an answer to the second amended complaint on September 28, 2004, raising the defenses of statute of limitations, estoppel, waiver, and release, among others. The district court ruled, in response to a motion in limine filed by Defendant, that the appropriate measure of damages in the case is diminution in value, if any, to the fair market value of the property involved. The district court further ruled that Plaintiffs' experts could only testify as to the applicable standard for permanent damage to real property, which the court determined to be the diminution in the fair market value of the land involved, and that Plaintiffs' experts could not testify regarding the remediation costs. The case went to trial before a jury. At the close of the evidence, Defendant moved for a directed verdict on the private nuisance claim, arguing that the New Mexico Supreme Court declined to adopt private nuisance as a theory of recovery. The district court granted the motion for directed verdict. The jury then returned a verdict for Plaintiffs on the theories of negligence and trespass and awarded damages in the amount of $135,000. Plaintiffs appeal on the issues of the jury instructions for damages and private nuisance. Defendant cross-appeals, raising several other issues. DISCUSSION {7} Plaintiffs argue that the district court erred in ruling that the injury was permanent, thus preventing the jury from considering whether the cost of removal of the contaminated material exceeded the value of the property, as well as stigma damages. Plaintiffs also argue that the district court erred in directing a verdict in favor of Defendant on the private nuisance claim. Defendant cross-appeals, raising three issues: (1) all claims for surface damages have been waived by deed, (2) the Black Trust Plaintiffs do not own the causes of action they have asserted, and (3) Plaintiffs' claims are barred by the statute of limitations. We address Defendant's *50 issues on cross-appeal first, because if there is merit to any of Defendant's contentions, Plaintiffs' claims on appeal are moot. DEFENDANT'S ARGUMENTS ON CROSS-APPEAL 1. Estoppel by Deed or Waiver {8} We address this issue summarily by noting that Defendant failed to raise it in a timely manner. Defendant raised the issue of estoppel by deed or waiver for the first time as an affirmative defense in an answer to Plaintiffs' second amended complaint, which was filed on January 13, 2000. Defendant filed its answer to the second amended complaint on September 28, 2004, more than four and a half years after Plaintiffs filed the second amended complaint. Defendant therefore waived the defense of estoppel by deed or waiver by operation of Rule 1-012(A) (providing that a defendant shall serve an answer within thirty days of service of the complaint). Alternatively, if we view the untimely answer to the second amended complaint as an attempt to amend the original answer, Defendant failed to comply with the deadlines applicable to the amendment of pleadings, which are required by Rule 1-015(A) NMRA. {9} Rule 1-015(A) sets forth the relevant deadlines for amendments to pleadings and states that, where such deadlines have passed, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Id. Defendant failed to move for leave to amend the original answer, as required by Rule 1-015(A). Moreover, Defendant does not challenge the district court's pretrial ruling precluding Defendant from presenting evidence on the issue of estoppel by deed or waiver. Rather, Defendant asserts that the district court considered the issue anew when Defendant reintroduced it by motion for directed verdict and during Defendant's post-trial motion for judgment as a matter of law and alternative motion to alter or amend the judgment. This argument is without merit. {10} The district court summarily denied each of Defendant's motions regarding the defense of estoppel by deed or waiver without explaining its reasons for doing so. Defendant asserts that the district court, despite its pretrial ruling, agreed to weigh the merits of Defendant's legal argument at a later time and that the court did so in the process of denying Defendant's motions on the issue. However, the record is far from clear on this point and we can find no indication that the court ever limited or vacated its prior ruling. Without more, we must assume that the district court was simply upholding the prior ruling by denying the motions. {11} In sum, we decline to entertain Defendant's appeal on the estoppel by deed or waiver issue because to do so would frustrate the purpose of our Rules of Civil Procedure. Holding otherwise would allow any litigant to "sneak in" an appropriately barred claim or defense by simply reintroducing the issue by motion at trial and, if the motion is denied, appealing the denial of the motion. We therefore conclude that the affirmative defense of estoppel by deed or waiver in the answer was not properly raised, and thus will not be addressed on appeal. We next turn to Defendant's second claim of error on cross-appeal. 2. The Black Trust Plaintiffs Own the Causes of Action {12} Defendant next argues that the Black Trust Plaintiffs do not own the causes of action in this case because the language in the quitclaim deed by which the property was conveyed to them was insufficient to convey personal causes of action. Defendant moved for a directed verdict on the issue, contending that Plaintiffs presented no evidence of title or ownership of the property. Defendant asserts that the language in the quitclaim deed to the Black Trust states that the grantor quitclaims all of his or her "right, title, and interest" in the property to the Black Trust, but fails to convey any personal causes of action, such as the claims at issue in this case. Defendant relies on a series of Texas cases for the proposition that a cause of action for injury to real property accrues when the injury is committed, and is a personal right belonging to the person who owns the property at the time of the injury. See, e.g., Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.2002); Lay v. Aetna Ins. Co., 599 *51 S.W.2d 684, 686 (Tex.Civ.App.1980). The district court denied Defendant's motion for a directed verdict. {13} "[A] directed verdict is appropriate only when there are no issues of fact to be presented to a jury." Hedicke v. Gunville, 2003-NMCA-032, ¶ 9, 133 N.M. 335, 62 P.3d 1217. In considering a directed verdict motion, a district court considers all the evidence, "and any conflicts in the evidence or reasonable interpretations of it are viewed in favor of the party resisting the directed verdict." Id. The district court's ruling on the motion is a question of law, and we review questions of law de novo. Id. {14} The district court properly denied Defendant's motion for a directed verdict. In New Mexico, a cause of action arises not necessarily at the time of injury, but rather at the time a plaintiff knows or should have known of the claims. See NMSA 1978, § 37-1-7 (1880) (stating "the cause of action shall not be deemed to have accrued until the fraud, mistake, injury or conversion complained of, shall have been discovered by the party aggrieved"). This is referred to as the "discovery rule." {15} The jury found that Plaintiffs knew or should have known of the cause of action on or after July 1, 1995. Plaintiffs presented testimony at trial that they discovered the contaminated pit in 1997, two years before the lawsuit was filed. The Black Trust received its conveyance of interest in the property in 1997 and evidence of the conveyance was admitted at trial. Applying the discovery rule to the evidence presented at trial, the causes of action accrued at the time the injury or trespass to the land was discovered, which according to Plaintiffs was in 1997. Defendant fails to point to any persuasive evidence indicating otherwise. Plaintiffs' evidence established that the grantor conveyed the land to the Black Trust by quitclaim deed, the Black Trust thereby acquiring all right, title, and interest in the land that the grantor owned. Thus, the Black Trust Plaintiffs own the causes of action because the causes of action accrued, or was "discovered," after the conveyance of the property to them. Defendant's contentions otherwise are without merit. 3. Statute of Limitations {16} Finally, Defendant argues that Plaintiffs' claims are barred by the statute of limitations. The jury received a special interrogatory on this issue that required the jury to determine when the Plaintiffs knew or reasonably should have known of the causes of action. Since the issue was presented to the jury to determine as a factual issue, we review the jury's finding for substantial evidence. "Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion." Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990). In reviewing for substantial evidence, "the appellate court resolves all disputes of facts in favor of the successful party and indulges all reasonable inferences in support of the prevailing party." Las Cruces Prof'l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. "The question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached." Id. {17} Substantial evidence supports the jury's determination. The jury found that only after July 1, 1995, did Plaintiffs or their predecessors-in-interest know, or in the exercise of reasonable diligence they should have known, of their causes of action. At trial, Plaintiffs presented testimony from Plaintiff William McNeill stating that he became aware of a problem in 1997. This testimony was sufficient evidence for the jury to have found that Plaintiffs knew or should have known of the causes of action on or after July 1, 1995. Thus, when Plaintiffs filed suit on June 1, 1999, they did so within the four year statute of limitations under NMSA 1978, § 37-1-4 (1880). Concluding that all of the arguments Defendant raises on cross appeal fail, we now turn to the issues Plaintiffs raise on appeal. PLAINTIFFS' ARGUMENTS ON APPEAL 1. Jury Instructions and Damages {18} Plaintiffs contend that the district court erred in prohibiting the jury from *52 hearing evidence on the cost of remediation or repair of the property. Prior to trial, the district court ruled that the damages in this case were permanent, and thus the proper measure of damages was the difference between the fair market value of the land before the injury and the fair market value after the injury. The district court expressly prohibited Plaintiffs from presenting to the jury any evidence of the cost of repair or remediation. Plaintiffs assert that the issue of whether cost of repair or diminution in value is the proper measure of damages is determined by the characterization of the injury as temporary or permanent, which is a question of fact for the jury. According to Plaintiffs, if the cost of repair or remediation is less than the diminution in fair market value, then the cost of repair is the correct measure of damages. Plaintiffs also argue that the district court erred by instructing the jury to consider only damage to such land that was actually injured, rather than the diminution in value of the entire property, which limited the award of damages. STANDARD OF REVIEW {19} Whether the district court erred in determining, as a matter of law, that the injury was permanent and the jury instructions should be limited to diminution in value is a question of law, which we review de novo. Sitterly v. Matthews, 2000-NMCA-037, ¶ 22, 129 N.M. 134, 2 P.3d 871 (when the matter to be decided is a question of law, the standard of review is de novo); Sowder v. Sowder, 1999-NMCA-058, ¶ 7, 127 N.M. 114, 977 P.2d 1034 (same). To the extent we are required to review for error in the Uniform Jury Instructions, we note that the Court of Appeals may consider error in the Uniform Jury Instructions, except that it may not overrule "those instructions that have been considered by [the Supreme Court] in actual cases and controversies that are controlling precedent." State v. Wilson, 116 N.M. 793, 795, 867 P.2d 1175, 1177 (1994). Furthermore, we note that if a legal theory is supported by the evidence, a party is entitled to have the jury instructed on that theory. Thompson Drilling, Inc. v. Romig, 105 N.M. 701, 705, 736 P.2d 979, 983 (1987). However, "[i]t is not error to deny requested instructions when the instructions given adequately cover the law to be applied." Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127, 1131 (1984). A civil case will not be reversed due to error in jury instructions unless the result is fundamentally unjust. Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, ¶ 27, 129 N.M. 436, 10 P.3d 115. Furthermore, the complaining party must be able to show that the erroneous instructions were prejudicial. Id. 1. The correct measure of damages for injury to real property depends on whether the injury is permanent or temporary {20} The objective in awarding damages, whether in tort for physical harm to property or in breach of contract or warranty, is to place the plaintiffs in the same financial position regarding the property as they would have been in had there been no damage to the property in the first place. Camino Real Mobile Home Park P'ship v. Wolfe, 119 N.M. 436, 443, 891 P.2d 1190, 1197 (1995). Our Uniform Jury Instructions provide for the measure of damages to real property as follows: "You shall determine what was the value of the property immediately before the occurrence and immediately after the occurrence. The difference between these two figures is the legal measure of damages to real property." UJI 13-1819 NMRA. The UJI is silent with respect to any distinction between permanent and temporary damages. However, the committee commentary to UJI 13-1819 cites to three cases for the proposition that "[t]he Supreme Court of New Mexico has recognized that under certain circumstances the measure of damages to real property may vary." {21} In Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952), the Court upheld a measure of damages based on the cost of restoration of a cabin complex that was destroyed by an explosion. The Court allowed the cost of repair and restoration of the damaged building as the appropriate measure of damages. Id. at 614, 247 P.2d at 185. Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1958), addressed whether strict liability could be imposed for damage to buildings that resulted from blasting operations. *53 The Court upheld an award of damages for actual damage to the building from fragments and debris hitting the building, as well as damage from shock waves passing through the building. Id. at 291-92, 327 P.2d at 803. Finally, in Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975) the Court determined "that the difference between the before and after . . . market values of a business enterprise correctly measure[d] the damages resulting from the destruction of or injury to the enterprise." Id. at 302, 540 P.2d at 232 (internal quotation marks omitted). However, the Court also stated that this method of calculating damages "was [not] the only method by which the claimed damages could properly have been measured." Id. Unfortunately, the Court did not provide any further explanation of what other methods might be appropriate. {22} None of the three cases discussed in the committee commentary for the proposition that damages to real property may vary involve damage to the surface or subsurface of real property. Instead, the cases involve damage to buildings or to businesses in terms of economic losses. We therefore do not find these cases instructive on the issue of when a court should deviate from the standard instruction on damages to real property. See Cress v. Scott, 117 N.M. 3, 5-6, 868 P.2d 648, 650-51 (1994) (noting that committee comments to UJIs are not the law of New Mexico). However, other case law not cited in the commentary seems to indicate that there may be alternate methods of calculating damages to real property, depending on whether they are permanent or temporary. {23} The cases of Amoco Production Co. v. Carter Farms Co., 103 N.M. 117, 703 P.2d 894 (1985) ("Carter Farms") and Ruiz v. Varan, 110 N.M. 478, 797 P.2d 267 (1990), although not cited in the committee commentary, are instructive. Both parties in the present matter rely upon Carter Farms, and the case is controlling precedent. Carter Farms addressed, among other things, the issue of the proper measure of damages for injury to real property. 103 N.M. at 118, 703 P.2d at 895. Without any mention of the UJI prescribing diminution in fair market value as the proper measure of damages to real property, the Court instead stated the following as the proper measure of damages to real property: Damage to the surface estate by the owner of the mineral estate is founded upon the unreasonable, excessive or negligent use of the surface estate. The measure of damages under a negligence theory of liability for permanent damage to real property is the difference between the fair market value of the land prior to the injury and the fair market value of the land after the full extent of the injury has been determined. When the actions of the owner of the mineral estate have rendered the surface totally unusable for a period of time, then the damages are determined by the land's rental value for that same period. Where temporary damage results to the surface estate, but it can be repaired, then the damages are the cost of repair or restoration if the cost of restoration does not exceed the value of the property. Id. at 120-21, 703 P.2d at 897-98 (citations omitted). This passage in Carter Farms indicates that the measure of damages for injury to real property depends on whether the damage is permanent or temporary. {24} However, in Ruiz, our Supreme Court again relied on the general rule for damages to real property, as stated in UJI 13-1802 NMRA and 13-1819. Ruiz, 110 N.M. at 481, 797 P.2d at 270. The Court stated that UJI 13-1802, which is the instruction concerning the general measure of damages, "is intended to provide for an `amount of money which will reasonably and fairly compensate' for an injury as established by evidence." Ruiz, 110 N.M. at 481, 797 P.2d at 270. This amount is ordinarily found "by instructing the jury to determine what was the value of the property immediately before the occurrence and immediately after the occurrence. The difference between these two figures is the legal measure of damages to real property." Id. (internal quotation marks and citations omitted). However, the Court went on to state that "nothing in our case law precludes substituting a `lost use' measure for the standard `before and after' measure set out in UJI 13-1819 where such a *54 measure represents fair and reasonable compensation." Ruiz, 110 N.M. at 481, 797 P.2d at 270. Thus, the proper measure of damages is not constrained by the guidelines set forth in UJI 13-1819, but rather will "depend[] on the proof offered to establish and quantify the harm." Ruiz, 110 N.M. at 481, 797 P.2d at 270. {25} The existence of a single UJI on damage to real property indicating one measure of damages, contrasted with case law indicating that the measure of damage to real property depends on whether the damage is temporary or permanent, clearly illustrates the difficulty in the present case in determining the correct measure of damages. We are bound by the precedent in Carter Farms and therefore conclude that the measure of damages for injury to real property depends on whether the injury is temporary or permanent. As stated in Carter Farms, the measure of damages for permanent injury is the diminution in the fair market value of the property. This is the general measure of damages, as stated in UJI 13-1819. If the damage to real property is temporary, the measure of damages is the cost of repair or remediation, so long as this cost is less than the diminution in fair market value. But the difficulty does not end there. Having made the determination of the correct measure of damages, we must now determine whether the issue of damages being temporary or permanent is a question for the jury, or one for the judge to decide as a matter of law. 2. The determination of whether an injury to real property is permanent or temporary is a question of fact to be decided by the jury {26} In the present case, the district court decided as a matter of law that the damages were permanent. Plaintiffs argue that whether damages are permanent or temporary is an issue of fact to be decided by the jury, not as a matter of law by the judge. Plaintiffs also contend that the district court erred by limiting the evidence to the fair market value of the property, thus prohibiting the introduction of evidence on the cost of repair or remediation. We agree. {27} The holding in Carter Farms supports Plaintiffs' contention that the measure of damages for injuries to real property differs depending on whether the damage is permanent or temporary. We recognize, however, that the distinction between permanent and temporary damages is often problematic. Temporary damages are generally defined as damages that can be remedied, removed, or abated within a reasonable period and at a reasonable expense. Morsey v. Chevron, USA, Inc., 94 F.3d 1470, 1476 (10th Cir.1996). "Inherent in the concept of temporary damages is an element of feasibility, comprised of (but not limited to) both economic and temporal concerns." Id. {28} In contrast, permanent damages are defined as those damages caused by an injury that is fixed and where the property will always remain subject to that injury. Id. "Permanent damages are damages for the entire injury done — past, present, and prospective — and generally speaking those which are practically irremediable." Id. Nevertheless, "the distinction between permanent and temporary injuries has not always been considered helpful, because the classification of the injury often turns on whether the cost of restoration is more than the value of the property." 22 Am.Jur.2d Damages, § 257 (2006). Another commentator suggests that: [P]ermanency is a word of art that stands for policy concerns rather than a simple physical description; the damages appear to be as permanent in some of the cases allowing repair-costs as they are in the cases limiting the damages to the diminution measure. . . . [C]ourts appear to describe harm to land as permanent in this sense when the cost of repair would be likely to exceed the diminished value by a substantial margin. 1 Dan B. Dobbs, Law of Remedies § 5.2(2) at 717 (2d ed.1993). In other words, the determination of whether an injury is permanent often depends on whether the cost of repair exceeds the diminution in fair market value. It is true that even with a temporary injury, if the cost of repair is greater than the diminution in value, the plaintiff will only receive the latter. This rule makes sense *55 given the purpose of awarding damages, which is to fully compensate a plaintiff, or restore plaintiff to his rightful position. Allowing a recovery that is greater than the value of a plaintiff's loss would put the plaintiff in a better position than he or she had been in before the injury, which is never the purpose of compensatory damages. See Camino Real Mobile Home Park P'ship, 119 N.M. at 444, 891 P.2d at 1198 (noting that if the cost of repair or replacement involves economic waste, the measure of damages is the difference between the reasonable market value of the property as warranted and the reasonable market value in the actual condition). {29} In light of the authority cited above, we conclude that the determination of whether damage to real property is permanent or temporary is an issue of fact for the jury to decide. See Santa Fe S. Ry., Inc. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, ¶ 18, 124 N.M. 430, 952 P.2d 31 (noting that issues of fact are for the jury to decide); Silva v. State, 106 N.M. 472, 476, 745 P.2d 380, 384 (1987) (same). In making this determination, the jury should take into account the nature and extent of the injury and, in turn, the reasonableness of awarding the cost of repair versus the diminution in value. Furthermore, even where the jury has determined that the injury is permanent, the plaintiff should not be precluded from presenting evidence on the cost of repair or remediation, as such evidence will often have a significant relationship to the diminution in value of the land. See 1 Dobbs, supra at 720 ("The diminution measure . . . should not forbid introduction of evidence as to repair costs, which are ordinarily at least some evidence as to diminished value."). {30} Thus, in the present case, the district court erred in making the determination, as a matter of law, that the damages to Plaintiffs' real property were permanent and by precluding Plaintiffs from presenting evidence on the cost of repair or remediation. Proper jury instructions would include an instruction on permanent versus temporary damages, as well as the cost of repair or remediation versus the diminution in fair market value. {31} We note that the Dobbs treatise uses the terms "diminished value" and "diminution in value" interchangeably, although these terms arguably have distinct meanings. We have elected to use "diminution in value" and clarify that this term means the amount representing the difference between the fair market value of the property before the occurrence of the harm and the fair market value of the property after the harm occurred. {32} We also note that the measure of damages we adopt here is not rigid or inflexible. As the cited commentators note, there may be unusual or exceptional circumstances warranting an award of the cost of repairs even when that amount exceeds the property's diminution in value. See, e.g., Dobbs, supra at 715 (noting that in some cases "costly repairs might be justified even though the land's value has been reduced only slightly," and observing that "[i]n many instances the plaintiff is using land in a way that suits the plaintiff very well but that does not maximize its economic value"); Restatement (Second) of Torts, § 929 cmt. b (explaining that, where repair or restoration costs exceed the land's diminution in value, damages are measured by the diminution in value "unless there is a reason personal to the owner for restoring the original condition"). We are confident that the district courts can recognize these exceptional circumstances and craft appropriate jury instructions in such instances. {33} We now address Plaintiffs' contention that the district court erred by instructing the jury to consider only damage to such land that was actually injured, rather than the diminution in value of the entire property. 3. The measure of damages for permanent injury to real property should include diminution in value of the entire property, not just the portion of land that is physically injured {34} Plaintiffs assert that, even if diminution in fair market value were the correct measure of damages, the district court erred in instructing the jury that it could only consider the decrease in value of the land actually injured and not the entire ranch. *56 The jury was instructed that, "[i]n awarding damages, you may consider only so much of the land as may have been actually physically injured by any negligence you may have found." According to Plaintiffs, the jury should have been able to consider the diminution in value of the entire property. We agree. {35} We find the Restatement (Second) of Torts instructive on this point. In discussing damages for harm to land from "past invasions," the Restatement notes that damages for harm to land include compensation for the difference in value of the land before the harm and the value after the harm, or in an appropriate case, the cost of restoration. Restatement (Second) of Torts § 929 (1979). The Restatement goes on to note that, when the measure of damages is the difference in fair market value, "[i]f only a portion of a tract of land has been directly harmed, the diminished value of the entire tract is considered." Id. cmt. a. (Emphasis added.) {36} The diminution in value of the entire property provides the correct measure of damages for permanent injury to real property. If the injury is only to a small portion of land within the property, as in the present case, then the diminution in value of the entire property will take into account the degree or amount of injury. Under these circumstances, evidence regarding cost of repair may be quite helpful in determining the diminution in value of the entire property, since a reasonable prospective buyer will want to subtract the cost of repair from the sale price of the land. The same is true regarding stigma damages; the decrease in market value of the property necessarily takes into account any stigma associated with the property as a result of the injury. In other words, to the extent stigma is an issue, it will be reflected in the decrease in fair market value of the property. {37} In sum, we hold that the question of whether the injury to real property is temporary or permanent is an issue of fact for the jury to decide. If the injury is permanent, the correct measure of damages is the diminution in fair market value of the entire property. If the injury is temporary, then the correct measure of damages is the cost of repair or remediation. If the cost of repair or remediation is greater than the diminution in fair market value, then the latter is the correct measure of damages. Finally, even where the jury finds that the injury is permanent and thus the correct measure of damages is diminution value, evidence regarding cost of repair or remediation should be allowed. We now turn to Plaintiffs' claim of private nuisance. PRIVATE NUISANCE {38} Plaintiffs asserted a claim for private nuisance in their amended complaint. Plaintiffs allege that the spilled or allowed flow of oil onto Plaintiffs' lands resulted in contamination of the land, and that such conduct was unreasonable and interfered with their use and enjoyment of the land. According to Plaintiffs, the nuisance resulted in diminution in the value of the land and caused Plaintiffs annoyance and inconvenience. {39} We find the decision in Carter Farms determinative on Plaintiffs' private nuisance claim. Although the jury awarded damages based on a finding of private nuisance in Carter Farms, the Court noted that such a theory had not been pled in the original complaint. Carter Farms, 103 N.M. at 119, 703 P.2d at 896. The Court declined to adopt private nuisance as a theory of recovery in Carter Farms, noting that "state courts have rarely utilized a private nuisance theory since recovery ordinarily can be based upon standard theories of negligence." Id. at 120, 703 P.2d at 897 (internal citation omitted). Although the parties disagree as to whether Carter Farms essentially precluded private nuisance as a theory of recovery in New Mexico, we believe the Court declined to adopt the theory of private nuisance in Carter Farms because it was not pled by the plaintiffs. To the extent a plaintiff can recover under other theories such as negligence, private nuisance is rarely utilized. We thus interpret the Court's decision in Carter Farms to allow recovery for private nuisance in circumstances where private nuisance has been properly pled by the plaintiffs *57 and other theories of recovery are not available. {40} In the case before us, Plaintiffs did plead private nuisance in their amended complaint. However, other theories of recovery, including standard negligence and trespass, were available to Plaintiffs. Therefore, applying Carter Farms, we conclude that the district court did not err in disallowing Plaintiffs' claim of private nuisance to go to the jury. Furthermore, we note that in this case, even without the theory of private nuisance available, the damages available to Plaintiffs are the same. CONCLUSION {41} We reverse and remand for proceedings consistent with this opinion. {42} IT IS SO ORDERED. WE CONCUR: A. JOSEPH ALARID and CYNTHIA A. FRY, Judges.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 395 KA 09-02128 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER JEFFREY P. ERLE, DEFENDANT-APPELLANT. ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. JEFFREY P. ERLE, DEFENDANT-APPELLANT PRO SE. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered August 17, 2009. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (three counts), rape in the first degree (two counts), rape in the third degree (two counts) and attempted criminal sexual act in the first degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him of, inter alia, two counts of rape in the first degree (Penal Law § 130.35 [1], [2]), defendant contends that the indictment was fatally defective because it lacked sufficient specificity to enable him to prepare a defense. We conclude that defendant failed to preserve his contention for our review (see People v Soto, 44 NY2d 683; People v Adams, 59 AD3d 928, lv denied 12 NY3d 813). “In any event, that contention lacks merit inasmuch as the time frames set forth in the indictment, [e.g., on or about a day in June 2008], were sufficiently specific in view of the nature of the offense[s] and the age of the victim” (Adams, 59 AD3d at 929 [internal quotation marks omitted]; see People v Franks, 35 AD3d 1286, lv denied 8 NY3d 922; People v Risolo, 261 AD2d 921; see generally People v Morris, 61 NY2d 290, 295-296). Defendant further contends that County Court erred in admitting in evidence the medical report of a physician who testified at trial because it was based entirely on inadmissible hearsay. Defendant objected to the admission in evidence of that report only with respect to its relevance, however, and he therefore failed to preserve his present contention for our review (see People v Billip, 65 AD3d 430,  -2- 395 KA 09-02128 lv denied 13 NY3d 834; People v Nicholopoulos, 289 AD2d 1087, lv denied 97 NY2d 758). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe. In his pro se supplemental brief defendant contends that the conviction is not supported by legally sufficient evidence because the dates of the incidents as alleged in the indictment were inconsistent with the dates of the incidents as established at trial. We reject that contention. The indictment alleged that the incident upon which the first count was based occurred on a day in June 2008, and it set forth time periods for the remaining counts that referred to the time period for the first count. The victim testified at trial, however, that the incident upon which the first count was based occurred “towards the end of May” 2008. Where, as here, time is not an essential element of an offense, “the prosecution is not required to prove the exact date and time the charged offenses occurred” (People v Glover, 185 AD2d 458, 460; see People v Cunningham, 48 NY2d 938, 940). We thus conclude that the variance between the dates alleged in the indictment and the dates established at trial does not render the evidence legally insufficient to support the conviction (see People v Jones, 37 AD3d 1111, lv denied 8 NY3d 986; People v Davis, 15 AD3d 920, lv denied 4 NY3d 885, 5 NY3d 787; People v Morgan, 246 AD2d 686, 687, lv denied 91 NY2d 975). Defendant failed to preserve for our review his remaining challenges to the legal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that, contrary to the contention of defendant in his pro se supplemental brief, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury . . ., and the testimony of the victim . . . was not so inconsistent or unbelievable as to render it incredible as a matter of law” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]; see People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982). Finally, we reject the further contention of defendant in his pro se supplemental brief that the court erred in permitting the People to elicit testimony that defendant threatened the victim with a knife. That testimony was admissible “to explain the victim’s failure to make a prompt complaint” (People v Chase, 277 AD2d 1045, lv denied 96 NY2d 733), “to develop the necessary background and [to] complete the victim’s narrative” (People v Shofkom, 63 AD3d 1286, 1287, lv denied 13 NY3d 799, appeal dismissed 13 NY3d 933). Entered: April 1, 2011 Patricia L. Morgan Clerk of the Court 

Filed 10/14/14 P. v. Stenroos CA3 NOT TO BE PUBLISHED 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 THIRD APPELLATE DISTRICT (Butte) ---- THE PEOPLE, C075478 Plaintiff and Respondent, (Super. Ct. No. CM035566) v. TAWNYA RENEE STENROOS, Defendant and Appellant. This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In July 2012 defendant Tawnya Renee Stenroos pleaded no contest to felony false personation. (Pen. Code, § 529; undesignated section references are to the Penal Code.) The parties stipulated that the factual basis for the plea could be taken from the probation report. Defendant was advised she could receive a maximum sentence of three years in state prison. According to the probation report, on November 30, 2011, Julie Chapman contacted the Oroville Police Department to report that she had received a citation for a 1 seat belt violation of which she was unaware. She stated that a few years before, defendant had falsely used Chapman’s identity when arrested for a drug-related case. The owner of the vehicle listed on the traffic citation told the police that defendant had been a passenger when the vehicle was pulled over and the occupants received seat belt citations. When contacted, defendant admitted that she had identified herself to the police as Chapman on both the present occasion and in 2008. In September 2012 the trial court suspended imposition of sentence and granted defendant formal probation for three years, including 30 days in county jail. In December 2012 a petition for violation of probation was filed, alleging that defendant had tested positive twice for methamphetamine and had failed to sign up for and participate in a substance abuse education class as required by her probation conditions. In May 2013 defendant admitted the violation of probation. Finding at the sentencing hearing in October 2013 that the allegations of the petition provided the factual basis for defendant’s admission, the trial court declined to reinstate probation and sentenced defendant to the middle term of two years in county jail. The court awarded defendant 30 days of presentence custody credit (15 actual days and 15 conduct days). The court imposed a $240 restitution fine (§ 1202.4, subd. (b)) and a $240 probation revocation restitution fine (§ 1202.44), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $286 presentence investigation report fee (§ 1203.1b), a $25 criminal justice administration fee (cf. § 1202.4, subd. (l)), and an aggregate amount of $760 pursuant to section 672 and appurtenant assessments.1 1 This sum consisted of a base fine of $200 (§ 672) plus a $40 court surcharge (§ 1465.7), a $100 state court facilities construction fund assessment (Gov. Code, § 70372, subd. (a)), a $200 state penalty assessment (§ 1464), a $140 county penalty 2  We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. We remand the matter to the trial court, however, with directions to prepare an amended abstract of judgment that includes the $25 criminal justice administration fee orally imposed by the trial court and sets out its statutory basis. DISPOSITION Defendant’s conviction and sentence are affirmed. The matter is remanded for the preparation of an amended abstract of judgment as explained above. We direct the trial court to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy thereof to the relevant authorities. RAYE , P. J. We concur: BLEASE , J. HULL , J. assessment (Gov. Code, § 76000), a $20 DNA identification fund assessment (Gov. Code, § 76104.6), and a $60 DNA identification fund assessment (Gov. Code, § 76104.7). 3 

                            No. 3--94--0600    _________________________________________________________________                                                                     IN THE                                                           APPELLATE COURT OF ILLINOIS                                                                 THIRD DISTRICT                                                                   A.D., 1996                                     JOHNNY HENDON,                   )  Appeal from the Circuit Court                                 )  for the 10th Judicial Circuit     Petitioner-Appellant,       )  Peoria County, Illinois                                 )     v.                          )  No. 72--CF--4290                                 ) ILLINOIS DEPARTMENT OF         ) CORRECTIONS,                     )  Honorable                                 )  Robert Cashen     Respondent-Appellee.        )  Judge, Presiding _________________________________________________________________     JUSTICE SLATER delivered the opinion of the court: _________________________________________________________________     The petitioner, Johnny Hendon, filed a petition for habeas corpus against the respondent, Illinois Department of Corrections (IDOC).  The petitioner argued that he should be discharged from his sentence of incarceration because an unreasonably long time had elapsed between his conviction and the imposition of sentence.  The trial court denied the petition.  We affirm.     The petitioner was convicted of rape.  On August 23, 1973, he was sentenced to serve not less than 4 years nor more than 20 years in prison.  He appealed his conviction.  During the pendency of the appeal, on December 11, 1974, the petitioner was released on an appeal bond.     This court affirmed the petitioner's conviction on November 28, 1975, (People v. Hendon, 33 Ill. App. 3d 745, 338 N.E.2d 472 (1975)), and the Illinois Supreme Court denied his petition for leave to appeal on March 25, 1976.  The appellate court's mandate was issued on April 19, 1976, and was filed by the Peoria County Circuit Clerk's Office the following day.     No further action was taken on this matter until February 8, 1982, when the petitioner's appeal bond was returned to him.  On October 6, 1989, the State filed a motion requesting that the petitioner be directed to report to the Peoria County Jail for transport to IDOC.  A warrant for the petitioner's arrest was issued on October 11, 1989.  However, he was not taken into custody until August 8, 1991.  He was released on bond until September 5, 1991, when he was remanded to IDOC to serve the remainder of his sentence.     On October 20, 1992, the petitioner filed the instant petition for habeas corpus.  In his petition, he claimed that he should be released from prison because the delay in taking him into custody waived the State's right to lawfully incarcerate him.  Thereafter, the State filed a motion to dismiss the peti- tion.     When no action had been taken on his habeas petition by July 1994, the petitioner filed a petition for writ of mandamus seeking to force the circuit court to act.  He alleged that the unreasonable delay between his conviction and the imposition of sentence entitled him to discharge.  On July 7, 1994, the circuit court dismissed the petitioner's petition for writ of mandamus and denied his habeas petition.     On appeal, the petitioner contends that the trial court erred in summarily dismissing his habeas petition.  He claims that he was entitled to an evidentiary hearing to determine:  (1) whether he received notice of the issuance of the appellate court's mandate; and (2) whether his due process rights were violated by the lengthy delay.     A defendant released on an appeal bond has a duty to remain apprised of the status of his appeal.  People v. Santos, 146 Ill. App. 3d 818, 497 N.E.2d 374 (1986).  Once the mandate of the appellate court has been issued, it is incumbent upon the defen- dant to surrender himself to serve his sentence.  Walker v. Hardiman, 116 Ill. 2d 413, 507 N.E.2d 849 (1987); Crump v. Lane, 117 Ill. 2d 181, 510 N.E.2d 893 (1987).       In the case at bar, the lengthy delay between the defendant's conviction and his incarceration was not caused by any failure on the part of the State.  The delay was caused by the defendant's failure to keep abreast of developments in his case and to turn himself over to authorities upon the issuance of the appellate court mandate.  Consequently, we hold that the trial court properly denied his petition for habeas corpus.     The judgment of the circuit court of Peoria County is affirmed.     Affirmed.     MICHELA, J., concurs. PRESIDING JUSTICE HOLDRIDGE, dissenting:     I respectfully dissent.  The petitioner maintains on appeal that his petition for habeas corpus should not have been denied without an evidentiary hearing to determine whether he had received notice of the issuance of the mandate of the appellate court denying the appeal of his conviction.  I agree, and would reverse the trial court and remand for a hearing to determine whether the petitioner or his attorney received notice of the issuance of the appellate court's mandate.       An unreasonable delay between the pronouncement and imposition of sentence may be a circumstance warranting the release of a habeas corpus petitioner.  People ex rel. Millet v. Woods, 55 Ill. 2d 1 (1973), citing, People ex rel. Powers v. Shattuck, 274 Ill. 491 (1916).  It is well-settled, however, that once the mandate of the appellate court has been issued, and spread of record in the circuit court, any ensuing delay in the petitioner serving his sentence is attributable to him.  Walker v. Hardiman, 116 Ill. 2d 413 (1987); Crump v. Lane, 117 Ill. 2d 181 (1987).       The petitioner maintains that implicit in the Walker and Crump holdings is a requirement that he or his attorney receive notice that the mandate was issued and spread of record.  I agree.  In Walker, the our supreme court stated:       "We also believe that our decision in this case       will now make it clear that once the State moves       to have the appellate court mandate spread of       record in the circuit court, and the defendant is       so notified, any delay in surrendering will be       attributable to the defendant."  (Emphasis added.)       Walker, 116 Ill. 2d at 424.            Likewise, the Crump court expressly followed the language from Walker:         "Thus, as we held in Walker, the appellate court       mandate having been spread of record in the       circuit court promptly after the denial of Crump's       petition for leave to appeal and Crump's attorney       having been notified, the ensuing delay in Crump's       incarceration was chargeable to him and not the       State."  (Emphasis added.)  Crump, 117 Ill. 2d at       185.            I also note that the Walker court discussed with approval People ex rel. Rogers v. Elrod, 35 Ill. App. 3d 26 (1975) wherein the court framed the issue before it as:       "[W]hether counsel for petitioner and the       petitioner, who had been admitted to bail, had       notice of the issuance of the mandate so as to       have established an affirmative duty on petitioner       to surrender in compliance with section       110-10(b)(5) of the Code of Criminal       Procedure***."  Rogers, 35 Ill. App. 3d at 27.            In the matter sub judice, the mandate was issued from the appellate court to the circuit court of Peoria County on April 19, 1976.  On April 20, 1976 the mandate was filed in the circuit court.  The record does not establish, however, whether the petitioner or his attorney received notice of the issuance of the mandate so as to have established his duty to surrender himself without further notice.  In order to properly rule on the petitioner's petition for habeas corpus, the trial court must take evidence and make a factual determination as to whether the petitioner or his attorney was notified of the issuance of the mandate.     For the foregoing reasons, I respectfully dissent.

[Cite as State v. Kidd, 2011-Ohio-6323.] IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2010 CA 109 v. : T.C. NO. 03CR44 DAVID KIDD : (Criminal appeal from Common Pleas Court) Defendant-Appellant : : .......... OPINION Rendered on the 9th day of December , 2011. .......... ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee JASON A. CAVINDER, Atty. Reg. No. 0081371, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant .......... FROELICH, J. {¶ 1} David Kidd appeals from a judgment of the Clark County Court of Common Pleas following resentencing for the purpose of properly imposing post-release control. For the following reasons, the trial court’s judgment will be affirmed.  2 I {¶ 2} In May 2003, Kidd pled guilty to two counts of trafficking in cocaine in the vicinity of a school, both second degree felonies. In exchange for the plea, the State dismissed additional charges. The parties further agreed to a five-year sentence on each count, to be served consecutively, and that Kidd would forfeit a total of $1,474 and a 1987 Camaro. The trial court imposed the agreed sentence and required Kidd to pay a mandatory fine. The court told Kidd that post-release control was “optional in this case up to a maximum of three years.” Several motions and appeals followed, most of which are not relevant to this appeal. {¶ 3} In February 2010, Kidd filed a motion for resentencing, claiming that his sentence was a nullity because the judgment entry included an optional three-year period of post-release control. The trial court denied the motion without explanation. Kidd appealed, arguing that the three-year term of post-release control was mandatory. The State conceded error. We reversed the trial court’s order and remanded the matter for “resentencing according to law.” State v. Kidd, Clark App. No. 2010 CA 39, 2010-Ohio-4161, ¶6. {¶ 4} In October 2010, Kidd was resentenced by the trial court. At the sentencing hearing, the trial court imposed the same sentence that had been ordered in 2003. The court further informed Kidd that “because these are second degree felonies post-release control is mandatory for three years so when you are released from prison, you will be placed on three years of post-release control.” The court explained the consequences if Kidd failed to comply with the conditions of post-release control.  3 {¶ 5} In its subsequent judgment entry, the trial court stated, in relevant part: {¶ 6} “The Court notified the defendant at the time of his guilty plea that PRC is mandatory in this case for three years and the Court informed him of the possible consequences of violating the terms of that PRC. The defendant is Ordered to serve as part of this sentence three (3) years of PRC.” {¶ 7} Kidd appeals from the trial court’s judgment. II {¶ 8} In his sole assignment of error, Kidd claims that the trial court erred in failing to inform him that post-release control is mandatory on each count of trafficking in cocaine.1 Kidd further states that the summary of docket, which lists the filings in the trial court’s record, did not indicate that the three-year term of post-release control was mandatory for each count. {¶ 9} “Post-release control” involves a period of supervision by the Adult Parole Authority after an offender’s release from prison that includes one or more post-release control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). “[A]mong the most basic requirements of post-release control notification per R.C. 2967.28 and the Ohio Supreme Court’s existing precedent is that the court must both notify the offender of the length of the term of post-release control that applies to his conviction(s) and incorporate that notification into its journalized judgment of conviction pursuant to Crim.R. 32(C).” 1 Prior to the appointment of appellate counsel, Kidd filed a “Motion to Appeal,” which was purportedly a pro se brief. After appointed counsel filed a brief on his behalf, Kidd moved for this court to remove his appellate counsel and to permit him to represent himself. Kidd further asked that his appointed counsel’s brief be dismissed. We denied Kidd’s motion and accepted his appointed counsel’s brief as filed on May 21, 2011.  4 State v. Terry, Darke App. No. 2009 CA 05, 2010-Ohio-5391, ¶15, citing State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶69. Post-release control is mandatory for some offenders and is imposed at the discretion of the Parole Board for others. R.C. 2967.28(B); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, ¶11. {¶ 10} Under R.C. 2967.28(B), each prison sentence for a second degree felony “shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender’s release from imprisonment.” A second degree felony that is not a sex offense is subject to a mandatory three-year period of post-release control. R.C. 2967.28(B)(2). {¶ 11} Kidd claims that the trial court was required to separately impose post-release control for each count of trafficking in cocaine. We have stated, however, that “[w]hen identical postrelease control requirements apply to multiple prison terms, the same notification may apply to each of the offenses concerned.” State v. Sulek, Greene App. No. 2009 CA 75, 2010-Ohio-3919, ¶23. See, also, State v. Scott, Sandusky App. No. S-10-023, 2011-Ohio-5527, ¶51-54 (upholding a single notification that defendant was subject to a possible three years of post-release control when all counts carried the same discretionary three-year term of post-release control); State v. Deskins, Lorain App. No. 10 CA 9875, 2011-Ohio-2605, ¶22. {¶ 12} In this case, the trial court told Kidd at the October 2010 re-sentencing hearing that “because these are second degree felonies post-release control is mandatory for three years so when you are released from prison, you will be placed on three years of post-release control.” (Emphasis added.) The trial court’s statement served to notify Kidd  5 that both counts of trafficking in cocaine were subject to a mandatory term of three years of post-release control. The trial court did not err by failing to impose separate terms of post-release control for each of Kidd’s two counts of trafficking in cocaine, both of which were second degree felonies and were subject to the same mandatory three-year term of post-release control. {¶ 13} Kidd also raises that the trial court’s docket entry for October 12, 2010, does not indicate that the three-year term of post-release control was mandatory for each count. Docket entry #81 states: “Judgment Entry of Conviction to Penitentiary --- David Kidd was resentenced --- Same as previous conviction entry of 5/21/03 except to instruct deft that PRC is mandatory for 3 years.” {¶ 14} A trial court speaks through its journal entries. E.g., State v. Boles, Montgomery App. No. 23037, 2011-Ohio-3720, ¶34, citing Hairston v. Seidner, 88 Ohio St.3d 57, 2000-Ohio-271. Docket entry #81 is an entry in the summary of docket, which is an enumerated list of the filings in the case. The summary of docket is prepared by the clerk of courts, not the trial court. In short, Docket entry #81 is the clerk of court’s summary of the trial court’s judgment entered after Kidd’s resentencing hearing; it is not an order or judgment by the trial court. As we stated above, the judgment entry of the court does include a mandatory three-year period of post-release control. Docket entry #81 has no bearing on whether the trial court properly imposed post-release control. {¶ 15} Kidd’s sole assignment of error is overruled. III {¶ 16} The trial court’s judgment will be affirmed.  6 .......... DONOVAN, J. and HALL, J., concur. Copies mailed to: Andrew R. Picek Jason A. Cavinder Hon. Douglas M. Rastatter 

NO. 07-08-00346-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A -------------------------------------------------------------------------------- MAY 26, 2010 -------------------------------------------------------------------------------- IN THE INTEREST OF B.L.M. AND C.D.M., MINOR CHILDREN -------------------------------------------------------------------------------- FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 34,251; HONORABLE LEE W. WATERS, JUDGE -------------------------------------------------------------------------------- Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION G.D.M. (Father) and J.P. (Mother) are the parents of B.L.M. and C.D.M. Through eight issues Father appeals the trial courts order modifying a final decree of divorce. We will affirm. Background Father and Mother were divorced in the Lubbock County Court at Law Number 3 by decree signed November 2, 1998. The decree appointed Father and Mother joint managing conservators of B.L.M. and C.D.M. with Mother receiving the right to designate the primary residence of the children. Father was ordered to make child support payments of $80 per week and provide health insurance. Father and Mother were each ordered to pay fifty percent of any uninsured healthcare expenses. Mother remarried and moved from Lubbock County to Pampa in Gray County. The record does not establish the date of her move. On December 1, 2005, however, the Office of Attorney General filed a motion to transfer the case to Gray County. On December 12, the Lubbock County Court at Law Number 3 heard a motion to modify the decree brought by Mother. A resulting order was signed on January 13, 2006. Among other things, the modification order required Mother to provide health insurance for the children and Father to pay Mother $80 per month medical support for the children. On February 15, 2006, the trial court signed a second modification order arising from the December 12 hearing. It added to the January 13 order requirements affecting the amount of Fathers child support obligation. Also on February 15, the trial court signed an order directing Father's employer to withhold current support from Father's earnings. On March 6, 2006, the case was transferred to Gray County. On April 25, Mother, apparently appearing pro se, filed a motion entitled Correction and Justification for Motion to Modify. The pleading bears no signature or indication of service on Father. Through it Mother requested modification or clarification of a prior order or orders. Also on April 25, the transferee court signed an order bearing the printed heading Order in Suit to Modify-Parent Child Relationship. To this title, the trial judge added in longhand, Nunc Pro Tunc. The order granted some of the relief requested in Mothers April 25 motion. It altered Fathers support obligation based on what Mother alleged was a mathematical error in the February 15 order. It also ordered Father pay fifty percent of uninsured healthcare expenses incurred for B.L.M. and C.D.M. Contrary to a recital in the April 25 order, the record before us does not contain a modified order of withholding for support. On April 25, 2006, Mother also filed an unsigned motion requesting the trial court hold Father in contempt. Father was not served with this motion until March 23, 2007. Father answered and in August 2007 filed a motion to modify seeking appointment as sole managing conservator of the children. Also in August 2007, Mother, now represented by counsel, filed an amended motion to enforce child support. Following a September 6, 2007, hearing the court signed a temporary order on November 27 providing that Father have primary custody of C.D.M. and Mother have primary custody of B.L.M. The order specified "withholding orders directing [Father] to pay child support are modified effective September 21, 2007, to provide that child support be paid in the amount of $410.00 per month. Credit for any overpayments shall be applied to future child support owed." The order perpetuated the mutual obligation of the parties for payment of fifty percent of health care expenses not reimbursed by insurance. On May 8, 2008, the court held a final hearing of the parties pending motions. Prior to the hearing, Mother and Father agreed that Father would be appointed managing conservator of C.D.M. and Mother would be appointed managing conservator of B.L.M. After hearing the other matters raised, the trial court issued a letter ruling setting the child support obligations of Father and Mother, ordering Father reimburse Mother one-half of uninsured healthcare expenses incurred for the children, awarding attorneys fees of $1,200 to Mothers attorney, and taxing court costs against Father. The letter ruling was formalized in an order signed June 30. Father timely filed a notice of appeal expressly challenging the June 30 order. Discussion In his second issue, Father argues the evidence was insufficient to support the trial courts award to Mother of $850 for uninsured healthcare expenses. In a finding of fact, the court found Mother incurred $1,700 of reasonable and necessary uninsured medical expenses for B.L.M. and C.D.M. and one-half this amount was the obligation of Father under an unspecified "previous order." We review a trial courts ruling on a motion for enforcement under an abuse of discretion standard. See In re M.K.R., 216 S.W.3d 58, 61 (Tex.App.Fort Worth 2007, no pet.) (reviewing trial courts ruling on child support arrearages and payment of attorneys fees under abuse of discretion standard); In re T.J.L., 97 S.W.3d 257, 265 (Tex.App.Houston [14th Dist.] 2002, no pet.) (abuse of discretion standard applied in reviewing order enforcing payment of childs healthcare expenses and uninsured medical expenses). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under the abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but if implicated are relevant factors for determining whether the trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.Dallas, no pet.). See also Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). We review findings of fact for legal and factual sufficiency under the same standards applied on review of a jurys findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In determining the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 809 (Tex. 2005). When considering a factual sufficiency challenge of a finding on which the appellant did not bear the burden of proof, we first examine all of the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986), and, having considered and weighed all of the evidence, set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). The trier of fact is the sole judge of the credibility of the witnesses and the weight given their testimony. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). The 1998 decree orders Father and Mother each pay 50 percent of all reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of the parties child . . . . At the May 8, 2008 modification hearing, Mother presented evidence that she paid $1,700.37 in uninsured medical expenses for B.L.M. and C.D.M. She testified that Father owed one-half this total. The court admitted without objection an exhibit containing Mothers calculations supporting the total and copies of medical bills for the children. Father did not challenge this evidence by cross-examination or direct evidence. Father also argues under this issue that the January 13 and February 15, 2006, orders contain no language obligating him to pay one-half of uninsured medical expenses for the children. Concerning these orders, this is correct. But as noted, the 1998 decree fixed the obligation for payment of uninsured medical expenses and the record contains no order modifying this obligation. Moreover, the orders of January 13 and February 15 each provide [a]ll other terms of the prior orders not specifically modified in this order shall remain in full force and effect. A valid order thus existed obligating Father for payment of one-half any uninsured medical expenses incurred for B.L.M. and C.D.M. We find in ordering reimbursement, the trial court did not abuse its discretion. We overrule Fathers second issue. By his fifth issue, Father contends the trial court failed to properly credit him for overpayment of child support under temporary orders. We review issues regarding payment of child support under the abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The November 27, 2007, temporary order provides in part, Credit for any overpayments shall be applied to future child support owed [by Father]. In its findings of fact and conclusions of law following the final hearing the trial court stated, Any alleged overpayment of temporary child support was taken into account when awarding attorneys fees to [Mothers] attorney. Counsel for Mother sought attorneys fees of $2,400. The court awarded $1,200. Under the facts presented, the trial court did not abuse its discretion by applying any credit due Father to the amount Father owed Mothers attorney rather than to future child support payments. We overrule Father's fifth issue. Through his sixth and seventh issues, Father contends the trial court ordered him to make excessive child support payments because it failed to find Mother was intentionally underemployed. If the actual income of a parent obligated to make child support payments is significantly less than what the parent could earn because of intentional unemployment or underemployment, the trial court may apply the support guidelines to the earning potential of the parent. Tex. Fam. Code Ann. 154.066 (Vernon 2008). The evidence shows Mother held a cosmetology license but was unable to work in this trade because of a back injury. The existence of the injury was not challenged. The evidence further shows at the time of trial Mother held a part-time position for a school district transporting students twenty-seven miles between Pampa and Borger in a school district Suburban. This position produced more income than Mothers immediate past position with a drugstore. On cross-examination, Mother testified she took the position with the school district to be at home with her children and for insurance benefits. Finally, the record does not show what Mother could earn under another employment scenario, such as practicing cosmetology with or without the limitations of a back injury. Under these facts, the trial court acted within its discretion in finding Mother was not intentionally underemployed. We, accordingly, overrule Fathers sixth and seventh issues. By his third and fourth issues, Father argues the evidence did not support taxing him with costs of court and adjudging him responsible for payment of a portion of Mothers attorneys fees. The basis of the argument is neither party was completely successful at the May 8 hearing. Thus, Father contends, [f]airness and equity dictate that each party should be responsible for their own attorney fees and court costs.... The trial court has broad discretion to award attorneys fees and costs under the Family Code. See Tex. Fam. Code Ann. 106.001, 106.002 (Vernon Supp. 2008); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). We accordingly apply an abuse of discretion standard on review of such awards. Bruni, 924 S.W.2d at 368; In re M.A.N.M. 231 S.W.3d 562, 567 (Tex.App.Dallas 2007, no pet.). Counsel for Mother testified that his fee in the case was $200 per hour which he believed reasonable. He incurred twelve hours preparing for and trying the issues then before the court. In his opinion, $2,400 was a reasonable fee for these services. The court awarded Mothers attorney a judgment of $1,200 against Father for attorneys fees. It also taxed costs of court against Father. At issue in the May 8 hearing were Fathers motion to modify, Mothers motion to enforce, and Mothers motion to sanction Father. In his motion to modify, Father sought sole managing conservatorship of B.L.M. and C.D.M. or alternatively supervised visitation between the children and Mother. He also sought an order of child support, including healthcare coverage of the children, and attorneys fees and costs. Father contended Mother was intentionally underemployed. Mother sought payment of fifty percent of uninsured healthcare expenses and medical insurance premiums for B.L.M. and C.D.M., a contempt citation, confinement of Father for contempt, modification of visitation exchange procedure, increased child support, a money judgment for intentional infliction of emotional distress, and attorneys fees and costs. Before the hearing, the parties agreed that each would have primary custody of a child. Fathers support obligation increased based on his net resources. But because of mothers support obligation, net support due her decreased. Father was ordered to reimburse Mother $850 for uninsured healthcare expenses. Father was not, however, required to reimburse Mother for health insurance premiums. Father was not held in contempt nor sanctioned. And Mother did not present her claim for intentional infliction of emotional distress. Visitation was necessarily altered because of the primary custody agreement of the parties. The number and diversity of issues presented to the trial court with their concomitant differences in breadth and scope render it impossible to declare one party the prevailing party at the May 8 hearing. [I]n family law cases, it is not always so easy to determine who the prevailing party is. In re M.A.N.M., 231 S.W.3d at 566. But determining the prevailing party in the trial court is unnecessary to our decision as attorneys fees may be awarded even against the successful party in a family law case if based on the best interest of the child. Nordstrom v. Nordstrom, 965 S.W.2d 575, 583 (Tex.App.Houston [1st Dist.] 1997, pet. denied). See In re A.M., 974 S.W.2d 857, 866 (Tex.App.San Antonio 1998, no pet.) (best interest of children is paramount in family law cases so that award of attorneys fees and costs to prevailing party not always appropriate). Here, in its findings of fact and conclusions of law issued after its June 30, 2008, final order, the court found Mother's attorney's fees were incurred "in relation to the children." After review of the entire record, we are unable to say that the trial court abused its discretion by taxing attorneys fees and costs against Father. We overrule Fathers third and fourth issues. In his first issue, Father complains that the April 25, 2006, order is not a proper judgment nunc pro tunc but the product of a judicial determination improperly modifying a prior final order. He variously characterizes the April 2006 order as "void" and "voidable," and appears to contend it forms the foundation for the June 30, 2008 order that is the subject of this appeal. Although the April 2006 order addresses Father's support obligation, by motions to modify filed during August 2007, Father and Mother continued litigating disputed issues including custody and support. A September 2007 hearing produced an extensive temporary order affecting conservatorship, possession and access to the children, support, and payment of uninsured health care expenses of the children. This order remained in place until the June 30, 2008, final order now on appeal. Assuming for the sake of argument the April 2006 order was improperly rendered, nothing before us demonstrates the error probably caused the rendition of an improper judgment on June 30. See Tex. R. App. P. 44.1(a)(1). Father has not shown that error in the signing of the April 2006 order constitutes reversible error with regard to the present appeal. Appellant's first issue is overruled. Finally, although not designated an issue on appeal, Father requests remand of the case to a different court. The record contains no indication that Father challenged venue or sought a transfer in the trial court. Absent presentation of the venue issue to the trial court and preservation of an adverse ruling, nothing is preserved for appellate review. See Tex. R. App. P. 33.1(a). This issue is overruled. Conclusion Having overruled each of Fathers issues, we affirm the judgment of the trial court. James T. Campbell Justice

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4535 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMELL MASON, a/k/a JAH, a/k/a Tremaine Mason, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:09-cr-00087-JPB-DJJ-6) Submitted: January 31, 2012 Decided: February 16, 2012 Before SHEDD, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Erin K. Reisenweber, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamell Mason pled guilty to two counts of possession of heroin with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West Supp. 2011), and was sentenced as a career offender to a term of 210 months imprisonment. See U.S. Sentencing Guidelines Manual § 4B1.1 (2010). Counsel for Mason has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising seven issues on Mason’s behalf and questioning the district court’s denial of a competency evaluation requested by the government and its denial of Mason’s suppression motion. Counsel states, however, that he has found no meritorious grounds for appeal. Mason has filed a pro se supplemental brief raising four constitutional issues, which he states he wishes to reserve for a later motion to vacate under 28 U.S.C.A. § 2255 (West Supp. 2011). We affirm. To the extent that the validity of Mason’s guilty plea is before us, we are satisfied that it was a knowing and voluntary plea. Because Mason did not seek to withdraw his plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525- 26 (4th Cir. 2002). We have reviewed the record of the Rule 11 colloquy before the magistrate judge, to which Mason consented, which occurred after a jury had been empanelled for Mason’s trial. We conclude that the magistrate judge adequately 2 complied with Rule 11. Mason’s remaining claims are without merit. He was correctly sentenced as a career offender, which was the determining factor in setting his Guidelines range. The district court’s decision not to depart below the Guidelines range is not reviewable. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). The court’s denial of a three-level adjustment for acceptance of responsibility, USSG § 3E1.1, which Mason did not request, is not plain error. The record does not establish conclusively that Mason’s attorney was ineffective; therefore this claim is not properly raised on direct appeal. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). By pleading guilty, Mason waived his right to contest any pre-indictment delay in his prosecution. Tollett v. Henderson, 411 U.S. 258 (1973). No error appears in the district court’s decision, following a hearing, that Mason was competent to stand trial and its consequent denial of the government’s motion for a psychological evaluation. The court’s denial of Mason’s motion to suppress all evidence obtained during his search and arrest is an issue that Mason waived when he entered his guilty plea. We therefore affirm the conviction and sentence imposed by the district court. In accordance with Anders, we have reviewed the entire record in this case and the ripe issues raised in Mason’s pro se supplemental brief and have found no 3 meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. Finally, we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4 

95 Cal.Rptr.2d 917 (2000) 80 Cal.App.4th 1291 Blossom Lum JANG, Cross-complainant and Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Cross-defendant and Respondent. No. A085617. Court of Appeal, First District, Division Two. May 24, 2000. As Modified June 8, 2000. *918 Wild, Carey & Fife, John E. Carey, Jr., Susan A. Bush, for Appellant. Thornton, Taylor, Downs, Becker, Tolson & Doherty, Clarke B. Holland, James F. Thornton, for Respondent. *919 RUVOLO, J. I. INTRODUCTION Appellant Blossom Lum Jang appeals from the trial court's award of summary judgment in favor of respondent State Farm Fire and Casualty Company on her cross-complaint for civil conspiracy and bad faith. Appellant contends the trial court erred when it determined her cross-complaint was an action on the insurance policy, which was barred by the policy's one-year statute of limitations. We reject this contention and affirm the trial court. II. BACKGROUND In 1990, Frank and Shirley Stonich (the Stoniches) owned property (the property) that was insured under a policy issued by respondent (the policy). Appellant held a second mortgage on the building, and was a loss payee under the policy. Bay View Federal Bank (Bay View) held the first mortgage, and others held the third and fourth mortgages. On June 11, 1990, the Stoniches' building was severely damaged by a fire. At that time, the balance on the first mortgage was approximately $1.7 million, and the balance on appellant's second mortgage totaled $530,000 in principal and $52,470 in deferred interest. After the fire, respondent paid approximately $1.5 million to the Stoniches and Bay View to cover the fire loss. In September 1991, State Farm issued a check payable to the Stoniches and Bay View for $145,456 in additional insurance proceeds. Thereafter, Bay View and appellant entered into a "Forbearance Agreement" under which these proceeds were held by Bay View for appellant's benefit. Under this agreement, appellant agreed to maintain payments on the Bay View loan, and Bay View agreed not to foreclose on the loan for nine months. The agreement provided that in the event appellant foreclosed on the property, the additional insurance proceeds held in trust for appellant would be applied to the Bay View loan balance. On June 11, 1991, the Stoniches filed suit against respondent, alleging that the policy entitled them to additional payments to cover the fire loss. In July 1992, appellant foreclosed on the property. At the trustee's sale, appellant purchased the property for a credit bid of $550,000, and assumed the Bay View mortgage obligations. Bay View deducted the additional insurance proceeds from the loan balance on October 1, 1992, pursuant to the forbearance agreement. In September 1994, appellant sold the property for approximately $3.7 million and paid off the Bay View loan. On June 7, 1996, the parties to the Stonich lawsuit entered into a settlement agreement whereby the adequacy of respondent's payments for the fire loss would be resolved through binding arbitration under the following conditions: (1) respondent would pay a minimum of $200,000 and a maximum of $1.5 million in additional policy proceeds plus a maximum of $150,000 in interest; (2) the mortgagees would be notified of the arbitration and given an opportunity to participate; (3) if the mortgagees declined to participate in the arbitration, the Stoniches would receive $200,000 in settlement of their claims at the conclusion of the proceedings; and (4) any excess monies awarded by the arbitrator would be deposited in an interest-bearing account and disbursed in accordance with a declaratory relief action. Shortly thereafter, appellant confirmed she had received notice of the settlement agreement, but made no effort to participate in the arbitration or object to the terms of the agreement. Instead, appellant clarified that she did not intend to waive any interest in the settlement funds. The arbitration commenced in July 1996, with the Stoniches represented by the law offices of Pillsbury, Levinson & Mills. The arbitrator determined that the insurance *920 payments for the fire loss were inadequate, and ordered respondent to pay an additional $382,604 in policy proceeds plus $167,812 in prejudgment interest. Under the terms of the settlement agreement, the total amount of the award was reduced to $532,604. Appellant was notified of this award on October 28, 1996. On January 31, 1997, Pillsbury, Levinson & Mills instituted an action to force the Stoniches to allocate a certain amount of the settlement funds to cover attorney fees. When respondent was named as a cross-defendant, it filed a cross-complaint in interpleader, and deposited the settlement funds with the clerk of the court. Appellant filed this cross-complaint against respondent on May 1, 1998, contending that the manner in which it negotiated the settlement agreement gave rise to a cause of action for civil conspiracy and bad faith. On August 27, 1998, respondent filed a motion for summary judgment, contending that appellant's cross-complaint was barred by the policy provision requiring claims to be filed within one year of the loss or damage.[1] Appellant opposed the motion, arguing that her cross-complaint was not subject to the time limitations set forth in the policy because it was not a complaint "on the policy." On October 30, 1998, the trial court concluded the cross-complaint was time-barred, and entered a judgment in respondent's favor. This timely appeal followed. III. Discussion A. Standard of Review Summary judgment is proper only where "there is no triable issue as to any material fact and ... the moving party is entitled to ... judgment as a matter of law." (Code Civ. Proc.,[2] § 437c, subd. (c).) We review de novo the trial court's award of summary judgment. (Jacobs v. Universal Development Corp. (1997) 53 Cal. App.4th 692, 697, 62 Cal.Rptr.2d 446 (Jacobs).) "`Inasmuch as summary judgment is a drastic procedure and should be used with caution [citation], the moving party's papers are strictly construed, while the opposing party's papers are liberally construed [citations].'" (Id. at pp. 697-698, 62 Cal.Rptr.2d 446.) Additionally, any doubts regarding the propriety of awarding summary judgment are resolved in favor of the party opposing summary judgment. (Ibid.) B. Application of the One-Year Statute of Limitations 1. Law "Under California law, all fire insurance policies must be on a standard form and, except for specified exceptions, may not contain additions thereto. ([Ins. Code,] § 2070.) This standard form provides that no suit or action for recovery of any claim shall be sustainable unless commenced within 12 months after the `inception of the loss.' ([Ins. Code,] § 2071.)" (Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 682, 274 Cal.Rptr. 387, 798 P.2d 1230 (Prudential).) The one-year statutory limitations period on insurance actions has "`long been recognized as valid in California.'" (Ibid., quoting C & H Foods Co. v. Hartford *921 Ins. Co. (1984) 163 Cal.App.3d 1055, 1064, 211 Cal.Rptr. 765.) The Stoniches' insurance policy contained a limitation-of-suit provision consistent with section 2070 of the Insurance Code. It provided: "No action shall be brought unless there has been compliance with the policy provisions ... and the action is started within one year after the occurrence causing loss or damage." Relying on Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 147 Cal.Rptr. 565 (Murphy) and Frazier v. Metropolitan Life Ins. Co. (1985) 169 Cal.App.3d 90, 214 Cal.Rptr. 883 (Frazier), appellant contends the trial court erred when it concluded that her cross-complaint was barred by the policy's one-year statute of limitations. She argues that the court should have applied the four-year statute of limitations for breach of fiduciary duty (§ 343), or the two-year statute of limitations for torts (§ 339, subd. (1)), because the cross-complaint was not an action on the policy. We disagree. In Murphy, supra, 83 Cal.App.3d at page 44, 147 Cal.Rptr. 565, the plaintiffs brought an action against their insurance company for fraud, conspiracy to defraud, bad faith and intentional infliction of emotional distress. They claimed the insurer had wrongfully withheld payments for their fire loss, and caused additional damage to their home by using unqualified contractors to repair the property. The complaint alleged that these unqualified contractors: (1) failed to cover plaintiffs roof so that the home and contents were further damaged by the elements; (2) performed the reconstruction so poorly that others had to be employed to correct the work; (3) returned carpeting from the home in damp, moldy and insect-infested condition; and (4) failed to return various items of personal property and home furnishings, or returned them to the home in worse condition. (Id. at p. 42, fn. 1, 147 Cal.Rptr. 565.) Division Two of the Fourth District Court of Appeal concluded these claims were not barred by the policy's one-year statute of limitations because they did not constitute an action on the insurance policy. (Murphy, supra, 83 Cal.App.3d at p. 46, 147 Cal.Rptr. 565.) The Murphy court explained, "For the most part, the conduct complained of is alleged wrongful conduct of [the insurer] with respect to the repair and restoration of the damaged property and the employment of persons to do that work and the allegedly unjustified initiation and prosecution by [the insurer] of the interpleader action with its attendant delay of several years in payment to plaintiffs of even those moneys admittedly owing under the appraisal award. The damages sought are not for any loss covered by the insurance policy but for damage to plaintiffs' home and personal property resulting from the untimely and unworkmanlike efforts of the persons and firms [the insurer] either employed or caused plaintiffs to employ, for the expenses incurred by plaintiffs in connection with the interpleader action and the suit by [one of the contractors] against plaintiffs allegedly resulting from [the insurer's] failure to make prompt payment, and for plaintiffs' emotional distress resulting from all of the foregoing." (Ibid.) With regard to plaintiffs tort claims based on breach of the duty of good faith and fair dealing, the Murphy court rejected the insurer's contention that because the duty arises from the insurance contract, such claims necessarily constituted an action on the policy. (Murphy, supra, 83 Cal.App.3d at pp. 48-49, 147 Cal.Rptr. 565.) It opined that the insurer's tort duty to act fairly and in good faith "is not strictly a contractual obligation" such as the requirements "mandated by the terms of the policy itself—to defend, settle, or pay." (Ibid.) Instead, it is a separate and distinct obligation "imposed by law which governs a party to a contract in discharging its contractual responsibilities." (Id. at p. 48, 147 Cal.Rptr. 565.) *922 The Murphy court explained, "there is a significant difference between `arising out of the contractual relationship' and `on the policy.' In a broad sense, all of plaintiffs' alleged causes of action may be said to `arise out of the contractual relationship' but as we have seen, they are not actions `on the policy.' Much of the conduct complained of in the third and fourth causes of action occurred long after the fire loss and related to the repair and restoration of plaintiffs' home and personal property and the employment of persons and firms to do that work, the institution and prosecution of the interpleader action. Here again, the damages claimed were not caused by any risk insured against under the policy and were not recoverable under the policy." (Murphy, supra, 83 Cal.App.3d at p. 49, 147 Cal.Rptr. 565.) In Frazier, supra, 169 Cal.App.3d 90, 214 Cal.Rptr. 883, plaintiff brought an action against the company that issued her husband's life insurance policy, alleging its refusal to pay her an accidental death benefit violated the covenant of good faith and fair dealing. Plaintiff filed a timely claim on the policy on or before the deadline, June 11,1975; however, the insurance company determined her claim was based on a suicide, and denied it on February 24, 1976. (Id. at p. 103, 214 Cal.Rptr. 883.) The complaint was filed two years and 24 days later, on March 20, 1978. (Ibid.) Division Five of the Second District Court of Appeal concluded that the bad faith action was not barred by the two years and 90 days statute of limitations set forth in the insurance policy because the policy's statute of limitations did not commence to run until February 24, 1976, when the insurance company denied her claim. The court reasoned: "Suppose [the insurer] had written to [plaintiff] on February 24, 1976, an equivocal letter stating that they were still in doubt whether her husband's death was caused by suicide but that they would make further efforts to run down evidence. Suppose [the insurer] then should make further efforts and uncover no new significant evidence, yet wait until February 24, 1977, or February 24, 1978, before writing to [plaintiff] the same letter actually sent on that date—could [the insurer] still urge that an action would still have to be filed no later than June 11, 1977? [¶] As the above example demonstrates, and as found by the trial judge, [plaintiffs] action does not commence until [the insurer] denies her claim on the ground of suicide. Prior to such time [plaintiff] has a right (so far as the policy limitation is concerned) to sit back and wait until denial of the claim before urging bad faith. Because it is not until [the insurer] actually denies the claim on the ground of suicide that [plaintiff] can actually ascertain whether or not [it] has acted in bad faith. So long as [the insurer] continues to tell [plaintiff] they are trying to uncover new evidence, they have not committed an ultimate act of bad faith, and [she] has a right to rely upon their assurances." (Frazier, supra, 169 Cal.App.3d at pp. 103-104, 214 Cal.Rptr. 883.) Relying on Murphy, supra, 83 Cal.App.3d 38, 147 Cal.Rptr. 565, the court alternatively concluded that the action was exempt from the policy's statute of limitations "based upon the hybrid contractual nature of the implied covenant of good faith and fair dealing." (Id. at p. 104, 214 Cal.Rptr. 883.) Subsequent cases have construed the holdings set forth in Murphy and Frazier narrowly, and limited the application of the Murphy and Frazier exemption to their specific facts. (Velasquez v. Truck Ins. Exchange (1991) 1 Cal.App.4th 712, 720-721, 5 Cal.Rptr.2d 1 (Velasquez). The Velasquez court provided this insightful analysis of the law's evolution in this area: "[C]ourts [following Murphy and Frazier have] declined to extend a blanket exemption from policy limitations clauses where the gravamen of the bad faith action pertained to the insurer's handling of the initial claim for loss. [¶] In Lawrence v. Western Mutual Ins. Co. [1988] 204 Cal. App.3d 565 [251 Cal.Rptr. 319], a homeowner *923 brought a bad faith action based on the denial of his claim under a homeowner's policy for damages due to earth subsidence. The claim had been denied for a number of reasons including the insurer's assertion that the damage existed prior to the date of coverage, that the claim had been presented after the homeowner had repaired the damage, precluding investigation by the insured, and on grounds of timeliness. (Id. at p. 570 [251 Cal.Rptr. 319].) The insurer successfully moved for summary judgment under the policy's limitations clause. The Court of Appeal affirmed. "The court rejected the argument that the action was not on the policy, and therefore not subject to the limitations clause. `Lawrence's allegation of tortious bad faith relates to the complete denial of the claim on the underlying policy. In both Murphy and Frazier, a subsequent event occurred after the initial policy coverage was triggered which was the basis for the [bad faith] cause of action. The subsequent event related to the policy, but either was not a claim directly on the policy (Murphy) or was a claim which arose after the insurer paid on the policy but did so not to the satisfaction of the beneficiary of the policy (Frazier). Here, Lawrence's cause of action for bad faith in purportedly misrepresenting the scope of coverage in the policy is fundamentally a claim on the policy and is thus time barred.' (Lawrence v. Western Mutual Ins. Co., supra, 204 Cal. App.3d at p. 575 [251 Cal.Rptr. 319].) "Likewise, Abari v. State Farm Fire & Casualty Co. [1988] 205 Cal.App.3d 530 [252 Cal.Rptr. 565], also involved a bad faith action brought after denial of a claim for subsidence damage to the insured's property. The insurer's demurrer was sustained on grounds of the limitations clause, and the ensuing judgment affirmed on appeal. In Abari, too, the appellate court rejected the insured's reliance on Murphy because Murphy involved wrongful conduct by the insurer subsequent to their fire loss....' (Abari v. State Farm Fire & Casualty Co., supra, [205 Cal. App.3d] at p. 536 [252 Cal.Rptr. 565].) By contrast, in Abari, the fact that the insured sought the policy benefits plus interest revealed that the action was `a transparent attempt to recover on the policy' and was time barred. (Ibid., italics omitted.) "The Lawrence and Abari decisions evince a trend by the appellate courts to limit the exemption from the limitations clause set forth in Murphy and Frazier to the facts of those cases. [Citations.] That exemption applies only where the events constituting bad faith occur after initial policy coverage. Where denial of the claim in the first instance is the alleged bad faith and the insured seeks policy benefits, the bad faith action is on the policy and the limitations provision applies." (Velasquez, supra, 1 Cal.App.4th at pp. 720-721, 5 Cal.Rptr.2d 1.) Based on this review of the case law, the Velasquez court concluded that a bad faith action alleging the insurer had wrongfully denied a fire loss claim for nonpayment of the premiums was governed by the policy's statute of limitations. (Velasquez, supra, 1 Cal.App.4th at p. 722, 5 Cal.Rptr.2d 1.) The court reasoned: "A bad faith action based on denial of a claim in the underlying policy is an action on the policy. [Citation.] Among the damages sought by appellants are the policy benefits plus interest, revealing that their action, like the insured's in Abari, is an `attempt to recover on the policy....' (Abari v. State Farm Fire & Casualty Co., supra, 205 Cal.App.3d at p. 536 [252 Cal.Rptr. 565], italics omitted.) It is true that appellants seek additional damages as well. Such damages, however, relate solely to their allegations of denial of their claim and wrongful cancellation and not to any additional acts by [the insurer]. The two claims are inextricably bound. None of the actions alleged by appellants as bad faith relate to events subsequent to initial policy coverage so as to convert their action from one on the policy to one which is *924 not." (Velasquez, supra, 1 Cal.App.4th at p. 722, 5 Cal.Rptr.2d 1.) In Prieto v. State Farm Fire & Casualty Co. (1990) 225 Cal.App.3d 1188, 275 Cal.Rptr. 362 (Prieto), Division Two of the Second District Court of Appeal soundly rejected the suggestion in Frazier and Murphy that the "hybrid" nature of claims under the covenant of good faith and fair dealing makes them exempt from the policy's statute of limitations. The Prieto court explained, "We recognize that the obligation to pay benefits due under the policy also constitutes a component of the duty of good faith and fair dealing imposed by law upon insurers. (Murphy, supra, 83 Cal.App.3d at pp. 48-49, 147 Cal.Rptr. 565, quoting Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032....) But we find neither reason nor authority to signify that a plaintiffs election to seek redress under the implied covenant rather than the express contract should nullify the legislatively prescribed limitation for actions that are `on the policy' because grounded in a failure to pay benefits that are due under the policy and indeed constitute its very reason for being. "Our conclusion that [Insurance Code] section 2071 applies to plaintiffs' bad faith and related causes of action appears confirmed by the Supreme Court's recent decision concerning the statute, Prudential-LMI Commercial Insurance v. Superior Court (1990) 51 Cal.3d 674 [274 Cal.Rptr. 387, 798 P.2d 1230] (Prudential). In Prudential the court held that inception of the loss under section 2071 occurs only when appreciable damage appears, sufficient to inform a reasonable insured `that his notification duty under the policy has been triggered.' (51 Cal.3d at p. 687 [274 Cal. Rptr. 387, 798 P.2d 1230].) In a further effort to import realistic flexibility into the statute, the court also held that the one-year period must be equitably tolled `from the time an insured gives notice of the damage to his insurer, pursuant to applicable policy notice provisions, until coverage is denied.' (Id. at p. 693 [274 Cal.Rptr. 387, 798 P.2d 1230].) But in the course of according insureds both of these favorable rules, the court specifically endorsed the decisions in Lawrence and Abari, supra, including the latter's holding that section 2071 applied to the bad faith claim there asserted. (Id. at pp. 685-686, 692 [274 Cal.Rptr. 387, 798 P.2d 1230].) While implying that some bad faith suits might survive the limitation, the court cited and quoted Abari to the effect that `[the] rule that one-year suit provision does not apply to bad faith suits [is] inapplicable when insured's bad faith action is a "transparent attempt to recover on the policy, notwithstanding his failure to commence suit within one year of accrual"....' (Id. at p. 692 [274 Cal.Rptr. 387, 798 P.2d 1230].)" (Id. at pp. 1195, 275 Cal.Rptr. 362, original italics; see also Bank of America Nat. Trust v. Allstate Ins. Co. (1998) 29 F.Supp.2d 1129, 1134 [finding that the Prieto court's view that "the statute of limitations on the policy applies to all `bad faith' actions" correctly states California law].) To the extent that Murphy and Frazier stand for the proposition that an insured may avoid the policy's statute of limitations by simply recasting contractual claims as claims sounding in tort, we agree with the Prieto court that Murphy and Frazier were wrongly decided. (Prieto, supra, 225 Cal.App.3d at p. 1195, 275 Cal. Rptr. 362.) Regardless of whether the insured elects to file a complaint alleging solely tort claims, we hold that an action seeking damages recoverable under the policy for a risk insured under the policy is merely a "transparent attempt to recover on the policy." (Abari v. State Farm Fire & Casualty Co. (1988) 205 Cal.App.3d 530, 536, 252 Cal.Rptr. 565 (Abari) cited with approval in Prudential, supra, 51 Cal.3d at p. 692, 274 Cal.Rptr. 387, 798 P.2d 1230, original italics.) As such, it is subject to the policy's statute of limitations. The question remains whether other portions of the Frazier and Murphy courts' analysis have any continuing vitality. *925 In answering this question, we join the majority of courts which have considered this issue, and conclude that Frazier and Murphy should be narrowly construed and limited to their own unique facts.[3] As stated previously, the Frazier court's reliance on the hybrid nature of bad faith actions in reaching its result has been thoroughly discredited by subsequent courts. (Ante at pp. 923-925.) However, the Frazier court also determined that the insured's action was not time-barred because the policy's statute of limitations was equitably tolled until the insurer denied coverage under the policy. The court concluded "Prior to such time [plaintiff] has a right (so far as the policy limitation is concerned) to sit back and wait until denial of claim before urging bad faith. Because it is not until [the insurer] actually denies the claim on the ground of suicide that [plaintiff] can actually ascertain whether or not [it] has acted in bad faith." (Frazier, supra, 169 Cal.App.3d at p. 103, 214 Cal.Rptr. 883.) Our Supreme Court has endorsed the Frazier court's view that principles of equitable tolling require the policy's one-year statute of limitations to be tolled from the time the insured timely files a claim until the insurer gives notice that it is denying coverage. (Prudential, supra, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230.) Thus, the portion of the Frazier analysis pertaining to equitable tolling appears to remain authoritative. In Murphy, the court also relied on considerations other than the tortious nature of the insured's action in order to conclude that it fell outside the policy. The Murphy court focused on the nature of the damages sought by the insured. It noted that the complaint was seeking damages attributable to the insurer's retention of unqualified workers to repair the residence after the initial fire loss. (Murphy, supra, 83 Cal.App.3d at p. 49, 147 Cal. Rptr. 565.) Thus, the insured in Murphy suffered a loss over and above the original loss that triggered the policy provisions. In essence, this was a "second loss because of the contractors' shoddy work." (Campanelli v. Allstate Ins. Co. (2000) 85 F.Supp.2d 980, 984.) Because these damages "were not caused by any risk insured against under the policy and were not recoverable under the policy," the Murphy court concluded that the insured's action was not an action on the policy. (Murphy, supra, 83 Cal.App.3d at p. 49, 147 Cal. Rptr. 565.) In keeping with the "trend" of narrowly construing Murphy (CBS Broadcasting Inc. v. Fireman's Fund Ins. Co. (1999) 70 Cal.App.4th 1075, 1086, 83 Cal. Rptr.2d 197), we conclude Murphy remains compelling only to the extent that it sets forth a narrow exemption for actions in which the insured seeks damages that are not recoverable under the policy, stemming from conduct by the insurer which results in the uncovered damages. 2. Analysis Here, appellant's cross-complaint includes causes of action for civil conspiracy and insurance bad faith based on respondent's participation in the June 10, 1996 arbitration agreement. The conspiracy claim alleges respondent agreed with others to pay the Stoniches $200,000 after the arbitration "with the express purpose of insulating said funds from the claims of parties who held security interest or mortgages on the insured property and were named as loss payees on the insurance policy or had any interests in or claim to the insurance proceeds." The bad faith claim alleged respondent "was aware that the Stoniches were not entitled to any sum from the insurance *926 proceeds because of other loss payees under the insurance policy[,] yet [respondent] with the purpose of minimizing its costs agreed to and did proceed to arbitration solely with the Stoniches in violation of [respondent's] duty of good faith and fair dealing with regard to the insurance policy and the loss payees who were express beneficiaries of the contract as additional insureds. [Respondent] thereby deprived said insured of benefits pursuant to the policy without proper cause and derogated [appellant's] rights under the policy." Our review of the allegations of appellant's cross-complaint reveals that the crux of her action is her claim that the arbitration agreement was structured so that she was denied payment of insurance proceeds allegedly due to her under the policy. Because the cross-complaint sought damages recoverable under the policy for a risk insured under the policy, we agree with the trial court that the cross-complaint is an action under the policy. Appellant's citations to Murphy and Frazier are unavailing. As previously discussed, the limited exemption set forth in Murphy does not apply because appellant primarily seeks to recover benefits allegedly owed to her under the policy stemming from the initial loss that triggered the insurance coverage. (Ante at pp. 925-926.) We acknowledge that, as a collateral matter, appellant seeks punitive damages based on the allegedly fraudulent, oppressive, or malicious nature of respondent's act of depriving her of these policy benefits. However, the mere fact that appellant's causes of action sound in tort, thereby entitling her to seek punitive damages, is insufficient to transform her action into an action outside of the policy. (Velasquez, supra, 1 Cal.App.4th at pp. 719-722, 5 Cal.Rptr.2d 1.) Frazier also provides no support for appellant's claim. In our view, the only portion of Frazier with any precedential value is the court's analysis of the principles of equitable tolling. However, in this case, regardless of whether we conclude that the one-year statute of limitations should be equitably tolled so that it is calculated from the date respondent allegedly committed insurance bad faith by entering into the June 7, 1996 settlement agreement, appellant's May 1, 1998 cross-complaint is still untimely. Finally, we reject appellant's contention that she is exempt from the policy's statute of limitations because the alleged bad faith occurred after the insurer determined the fire was a covered loss. While it has been emphasized that, "[The Murphy/Frazier] exemption applies only where the events constituting bad faith occur after initial policy coverage" (CBS Broadcasting, Inc. v. Fireman's Fund Ins. Co. (1999) 70 Cal.App.4th 1075, 1086, 83 Cal.Rptr.2d 197), the existence of a subsequent triggering event alone is insufficient to demonstrate that an action should fall within the extremely narrow exemption set forth in Murphy and Frazier. Where, as here, the only damage caused by the subsequent triggering event is the failure to receive benefits the plaintiff believes are owing under the policy, the action does not fall within the exemption because it is nothing more than a "transparent attempt to recover on the policy, notwithstanding [the plaintiffs] failure to commence suit within one year of accrual." (Abari, supra, 205 Cal.App.3d at p. 536, 252 Cal. Rptr. 565, original italics.) Thus, we conclude that the trial court properly awarded summary judgment to respondent after determining that appellant's cross-complaint was an action on the policy that was barred by the one-year statute of limitations. IV. DISPOSITION The judgment of the trial court is affirmed. KLINE, P.J., and LAMBDEN, J., concur. NOTES [1] Respondent also asserted the following contentions: (1) the first cause of action for conspiracy should be dismissed because it was not an independently viable claim; (2) the second cause of action should be dismissed because respondent's conduct did not constitute bad faith as a matter of law; (3) the second cause of action should be dismissed because appellant failed to demonstrate that she had been damaged by the settlement agreement as a matter of law; and (4) the claim for punitive damages failed because it was not supported by evidence of fraud, oppression or malice. Because we have concluded that the trial court correctly dismissed the cross-complaint as time-barred, we need not discuss the merits of these alternative contentions. [2] All further undesignated statutory references are to the Code of Civil Procedure. [3] In so doing, we note that two opinions broadly construing the Murphy/Frazier exemption have been depublished by the Supreme Court. (Umann v. Excess Ins. Co.* (Cal.App.) (1987) 236 Cal.Rptr. 89; Associates Nat. Mortgage Corp. v. Farmers Ins. Exchange† (Cal.App.) (1990) 266 Cal.Rptr. 56.) * Reporter's Note: Opinion A029996 deleted upon direction of Supreme Court by order dated July 2, 1987. † Reporter's Note: Opinion B042021 deleted upon direction of Supreme Court by order dated April 26, 1990.

225 F.Supp.2d 219 (2002) STEWART PARK AND RESERVE CO-ALITION, INCORPORATED (SPARC); Orange County Federation of Sportsmen's Clubs, Inc.; and Sierra Club, Plaintiffs, v. Rodney E. SLATER, as United States Secretary of Transportation; United States Department of Transportation; Kenneth R. Wykle, as Administrator of the Federal Highway Administration; Harold J. Brown, as New York Division Administrator of the Federal Highway Administration; Federal Highway Administration; Louis R. Tomson, as Chairman of the New York State Thruway Authority; New *220 York State Thruway Authority; Joseph H. Boardman, as Commissioner of the New York State Department of Transportation; and New York State Department of Transportation, Defendants. No. 00CV1606RFT. United States District Court, N.D. New York. September 30, 2002. *221 *222 *223 *224 John W. Caffry, Esq., Glens Fall, NY, for Plaintiffs. Joseph A. Pavone, United States Attorney for the Northern District of New York (James C. Woods, Esq., Assistant United States Attorney, of counsel), Albany, NY, Eliot Spitzer, Attorney General for the State of New York, New York State Department of Law (Lisa M. Burianek, Esq., Assistant Attorney General, of Counsel), Albany, NY, for Federal Defendants. MEMORANDUM-DECISION AND ORDER TREECE, United States Magistrate Judge. Plaintiffs bring this action pursuant to various federal and state environmental and transportation laws. Specifically, Plaintiffs challenge the sufficiency of the joint federal and state environmental review regarding the proposed construction of an interstate highway exchange between Interstate 84 ("I-84") and Drury Lane as well as improvements to connecting roads to facilitate access to Stewart International Airport ("Stewart Airport") pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., and the New York State Environmental Quality Review Act ("SEQRA"), N.Y. Envtl. Conserv. Law § 8-101, et seq. Plaintiffs also allege that the Federal Defendants violated transportation laws, including section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, and 23 U.S.C. § 111. The State and Federal Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56(b). Docket Nos. 31 & 33, respectively. Plaintiffs have cross moved for summary judgment pursuant to Fed. R.Civ.P. 56(a). Docket No. 37. The parties have consented to have the assigned U.S. Magistrate Judge conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c) and N.D.N.Y.L.R. 72.2. Docket No. 24. For the reasons that follow, the Federal and State Defendants' motions are granted and Plaintiffs' motion is denied. I. Background In 1969, the United States transferred ownership of the Stewart Air Force Base, which was approximately 1, 552 acres, to the Metropolitan Transportation Authority ("MTA"). Gorton Aff. (Docket No. 31), ¶ 6. The MTA acquired the air base to create Stewart Airport as a fourth major airport to service the New York City metropolitan area. Id. The property adjacent to Stewart Airport was identified as necessary for transportation purposes, including *225 airport access and expansion as well as compliance with Federal Aviation Administration ("FAA") requirements. Id. at ¶ 7. In 1971, the New York State Department of Transportation ("NYSDOT") was statutorily authorized to acquire 8,675 acres of land adjacent to, and in the vicinity of, Stewart Airport for transportation purposes. Id. The land was obtained in the name of the People of the State of New York on behalf of the MTA and was obtained through both purchase and eminent domain. Id. at ¶¶ 7 & 8. These 8,675 acres became known as "Stewart Buffer Lands" or "Stewart Properties." Id. In 1974, the MTA and the New York State Department of Environmental Conservation ("NYSDEC") executed a revocable management agreement whereby the NYSDEC would manage the Stewart Buffer Lands on behalf of the MTA. Gorton Aff., ¶ 8. The agreement was terminable upon sixty (60) days notice. Id. In 1982, jurisdiction over Stewart Airport, including the Stewart Buffer Lands, was transferred from MTA to the NYSDOT. Id. at ¶ 11. After obtaining jurisdiction over Stewart Airport, the NYSDOT chose to continue management of the property through NYSDEC. Id. A portion of the Stewart Airport, i.e., Crestview Lake, has been managed by the Town of New Windsor under a revocable license with the NYSDOT. Id. at ¶ 22. This license expired in April 2002. Id. at ¶ 23. In 1991, the New York State legislature ("the Legislature") directed the New York State Thruway Authority ("NYSTA") to acquire I-84. The Legislature transferred ownership of I-84 from the State of New York and the NYSDOT to the NYSTA effective March 19, 1992. In 1992, the Legislature also directed the NYSTA to undertake a project to provide direct access to Stewart Airport from I-84. Waite Aff. (Docket No. 31), ¶¶ 8 & 10. In 1992, the NYSDOT and the federal government issued a Final Environmental Impact Statement ("FEIS") analyzing proposals for the development of Stewart Airport. The development project was not implemented. Gorton Aff., ¶ 12. Intervening events, including the 1998 privatization of Stewart Airport and the permanent transfer of 5, 264 acres of the Stewart Properties rendered the 1992 FEIS obsolete. Thus, the State and Federal Defendants prepared new project proposals for improved access to Stewart Airport. See Def. Statement of Material Facts (Docket No. 31), ¶¶ 11 & 14. On December 10, 1997, the State and Federal Defendants published a Notice of Intent to prepare an Environmental Impact Statement ("EIS") relating to the improvement project in the Federal Register. Notices of Scoping meetings were sent out on December 12, 1997 and two scoping meetings were held on January 14, 1998. On April 5, 1999, a Draft Environmental Impact Statement ("DEIS") was released. On April 9, 1998, a Notice for a Public Hearing and availability of the DEIS was published in the Federal Register. On May 12, 1998, a public hearing was held and comments on the DEIS were allowed until June 1, 1999. See id. at §§ 24-26 After comments were received, the State and Federal Defendants made revisions to the DEIS. On April 14, 2000, the State and Federal Defendants released a FEIS, which selected Alternative 5b, Option 3 as the preferred design ("the Project"). The Project consists of: (1) a new diamond interchange at I-84 and Drury Lane at the existing Drury Lane overpass; (2) a new four-lane east-west connector roadway from Drury Lane to "C" Street; (3) reconstructing "C" Street to four lanes with a landscaped median; (4) modifications to Bruenig Road at the "Loop" in from the Stewart Airport passenger terminal' (5) widening of Drury Lane to four lanes between *226 the new I-84 interchange and the new east-west connector roadway; and (6) improvement to and/or realignment of the two-lane section of Drury Lane from I-84 to Route 17K and from the new east-west connector roadway to Route 207. Gorton Aff., ¶¶ 17-18; Nardone Aff., ¶ 4; Waite Aff., ¶¶ 13-14. On June 23, 2000, the Federal Defendants issued a Record of Decision documenting their decision to select Alternative 5b, Option 3. On July 11, 2000 and February 1, 2001, the State Defendants issued their Records of Decision documenting their selection of Alternative 5b, Option 3. This action followed. II. Standard of Review Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To defeat a motion for summary judgment, the non-movant must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the movant. Fed.R.Civ.P. 56(e); see also Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). This action is a review of an agency decision and therefore, is governed by the Administrative Procedure Act ("APA"). See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). Under the APA, the court's review is generally limited to determining whether an agency's decision was arbitrary, capricious or not in accordance with law. See 5 U.S.C. § 706.[1] In determining whether an agency's decision was arbitrary or capricious, "a court may not substitute its judgment for that of [the] agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (internal quotations and citation omitted). Rather, the court must only determine "whether the agency's decision *227 `was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" State of N.Y. Dep't of Social Servs. v. Shalala, 21 F.3d 485, 492 (2d Cir.1994) (quoting Motor Vehicle Mfrs. Ass'n. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Within the context of NEPA and SEQRA, the scope of review is narrow. See Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980). The court's review is limited to a determination of whether the agency took a "hard look at environmental consequences." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quotation marks and citation omitted); see also Akpan v. Koch, 75 N.Y.2d 561, 555 N.Y.S.2d 16, 20, 554 N.E.2d 53 (1990). NEPA does not mandate a particular result, "but simply prescribes the necessary process." Robertson, 490 U.S. at 350, 109 S.Ct. 1835 (citations omitted). SEQRA also gives "agencies considerable latitude [in] evaluating environmental effects and [in] choosing between alternative measures." Akpan, 555 N.Y.S.2d at 20, 554 N.E.2d 53. Similarly, while the requirements of section 4(f) of the Department of Transportation Act are stringent, the court's review is limited to determining whether the Secretary of Transportation's decision was wholly unreasonable or whether the Secretary failed to follow the necessary procedural requirements. See Adler v. Lewis, 675 F.2d 1085, 1091 (9th Cir.1982); see also National Parks & Conservation Ass'n v. F.A.A., 998 F.2d 1523, 1532 (10th Cir.1993). III. Section 4(f) of the Department of Transportation Act Plaintiffs contend that the Secretary of the Department of Transportation violated section 4(f) of the Department of Transportation Act when he determined that the Stewart Buffer Lands and the Crestview Lake Property were not entitled to section 4(f) protection. Section 4(f) of the Department of Transportation Act states in pertinent part: The Secretary [of Transportation] may approve a transportation ... project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance ... only if ... there is no prudent and feasible alternative to using that land; and the ... project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge.... 49 U.S.C. § 303(c). In order for land to be afforded section 4(f) protection, two conditions must be met. "[F]irst, ... the land must be publicly owned, and second, the land must be from one of the enumerated types of publicly owned land...." National Wildlife Fed. v. Coleman, 529 F.2d 359, 370 (5th Cir.1976); see also Geer v. FHA, 975 F.Supp. 47, 67 (D.Mass.1997). Here, there is no dispute that the land in question is publicly held. Indeed, it is owned by NYSDOT. The issue is whether any or all of the Stewart Buffer Lands or the Crestview Lake Property were designated or administered as a public park, recreational area or wildlife and waterfowl refuge. See National Wildlife Fed., 529 F.2d at 369-71; see also Ringsred v. Dole, 828 F.2d 1300, 1304 (8th Cir.1987). A. The Stewart Buffer Lands The parties do not dispute the following facts: In 1971, the MTA became the owner of approximately 8,675 acres that became known as the Stewart Buffer Lands. In 1974, the MTA agreed to permit approximately 7,000 acres to be used for hunting, *228 trapping and fishing. This land became known as the Stewart Airport Cooperative Hunting Area to be managed by NYSDEC. See Docket No. 51, Exs. 4 & 29. In 1982, ownership of the Stewart Buffer Lands was transferred to NYSDOT. In 1983, the NYSDOT continues the cooperative agreement with NYSDEC pursuant to N.Y. Envtl. Conserv. Law § 11-0501. Id. at Ex. 1. From 1974 to the present, the Stewart Airport Cooperative Hunting Area has been widely used for hunting, trapping and fishing. See id. at Ex. 11.[2] Plaintiffs contend that despite the fact the Stewart Buffer Lands were initially acquired for transportation, their historical use as a public park, recreation area and wildlife refuge entitle the land to section 4(f) protection. Plaintiffs rely upon two cases holding that where publicly held land is designated or administered either formally or informally as a park, recreation area or wildlife refuge, it is entitled to section 4(f) protection. See National Wildlife Fed'n, 529 F.2d at 370; Geer, 975 F.Supp. at 67. These cases, however, do not support a finding that the Stewart Buffer Lands are entitled to section 4(f) protection. In National Wildlife Fed'n, the issue was whether the proposed construction of a highway used land that was a refuge for the Mississippi Sandhill Crane, an endangered species. The Court held that the land was not designated or administered, either formally or informally, as a wildlife refuge and therefore, was not entitled to section 4(f) protection. 529 F.2d at 370. The mere presence of the crane was insufficient to establish the land as a type enumerated under the statute. Here, the Stewart Buffer Lands are not home to any endangered species. In Geer, the court determined that neither the state nor the state's conservation agency had formally designated the Charles River Basin as a park and therefore, it was not entitled to section 4(f) protection. 975 F.Supp. at 68-69. There was no discussion of what the court meant by informal administration as a park or recreation area.[3] Here, there has been no formal designation of the Stewart Buffer Lands as park or recreational land. Furthermore, the cooperative agreement entered into by MTA and the NYSDEC, then subsequently between NYSDOT and NYSDEC, did not alter the designation of the land. It was always held for transportation purposes. In fact, Plaintiffs do not dispute this. Rather, Plaintiffs contend that the management of the Stewart Buffer Lands by NYSDEC created an informal administration of a park, recreational area and wildlife refuge. The cooperative agreement was entered into pursuant to N.Y. Envtl. Conserv. Law § 11-0501. Nothing in the statute changes the designation of lands that are the subject of such cooperative agreements. Rather, the purpose of the statute is to allow for controlled hunting and fishing on lands that would not otherwise be available to the property and to manage what the statute refers to as wildlife areas. See N.Y. Envtl. Conserv. Law § 11-0303; Docket No. 51, Ex. 3. Thus, NYSDOT *229 entered into a management agreement with NYSDEC for NYSDEC to control the wildlife population and to permit interim use of the land by the public. It did not formally or informally administer the land as a park, recreational area or wildlife refuge. Indeed, the only two cases this Court could find on point supports the proposition that simply because the Stewart Buffer Lands were temporarily used for hunting, does not change their character. See Collin County, Texas v. Homeowners Ass'n for Values Essential to Neighborhoods, 716 F.Supp. 953, 971-72 (N.D.Texas 1989), vacated on other grounds, 915 F.2d 167 (5th Cir.1990); Citizens Envtl. Council v. Volpe, 364 F.Supp. 286, 295 (D.Kan.), aff'd, 484 F.2d 870 (10th Cir.1973). Once the land was purchased for transportation purposes, the mere fact that the owners of the property permitted interim use does not entitle the land to section 4(f) protection. To hold otherwise would discourage government agencies to permit such interim use. Plaintiffs further contend that the FHWA's determination that the Stewart Buffer Lands were not entitled to section 4(f) protection was contradicted by the Secretary of the Department of the Interior ("DOI"). Indeed, in a letter December 13, 1990, the DOI stated that it did "not entirely agree" with the position that the Stewart Properties were not subject to section 4(f) protection merely because of the terminable nature of the cooperative agreement. Docket No. 51, Ex. 19. Specifically, the DOI stated that "[f]or all practical purposes, the Properties are now a significant publicly-owned recreation and wildlife management area...." Id. Pursuant to regulations, the FHWA determines the application of section 4(f). See 23 C.F.R. § 771.135(b). While the FHWA must seek the advice and opinions of the agencies with jurisdiction over the land in question, it is the responsibility of the FHWA to determine the reasonableness of such advice and to make the final determination. See Geer, 975 F.Supp. at 67 (citations omitted). Since the proper procedures to determine the applicability of section 4(f) were followed, it cannot be said that the determination that the Stewart Buffer Lands were not entitled to section 4(f) protection was arbitrary or capricious. Accordingly, the Federal Defendants' motion for summary judgment on this ground is granted and Plaintiffs' cross-motion for summary judgment on this ground is denied. B. Crestview Lake Property In 1975, Charles Martin, the Stewart Airport Director, offered the Crestview Lake Property to the Town of New Windsor ("the Town") under a two year lease with a three year option for renewal. Docket No. 51, Ex. 34. When negotiations for renewal began, the Town sought "an insertion in the lease that the proposed master plan for the airport to be promulgated in or about the Spring of 1979 will endeavor to plan for the continued usage of the Crestview Lake facility as a recreation facility of the Town...." Id. at Ex. 35. There is no evidence in the record that this provision was added to the lease in 1978. Furthermore, there is no evidence in the record that a 1979 master plan created a park or recreation area. In 1982, the Town signed a 20 year lease for the Crestview Lake property and named it the Charles Martin Recreation Facility. Id. There is no provision in the 1982 lease creating a park or recreational area. See Meyers Aff. (Docket No. 31), Attachment A. Since the beginning of the lease, the Charles Martin Recreation Facility has undergone improvements such as tennis courts, barbeque grills, picnic tables and a snack bar. Id. Crestview Lake continues *230 to be operated by the Town and permits swimming, boating, fishing and picnicking. Id. at Ex. 33. Similar to the Stewart Buffer Lands, there is no evidence in the record that the owners of the Crestview Lake Property ever designated or administered the land as a park or recreational area. The land was originally purchased for transportation purposes and the Town's supervisor stated that the lease never conferred any rights on the Town to use the property for park or recreational purposes after the lease expired in April 2002. See Meyer Aff., ¶ 6. Accordingly, this Court cannot hold that the determination that the Crestview Lake Property was not entitled to section 4(f) protection was arbitrary or capricious. See, e.g., Falls Road Impact Comm. Inc. v. Dole, 581 F.Supp. 678, 686-89 (E.D.Wis.1984) (court should look at the purpose of the original purchase and whether the owners of the land converted the designation). Accordingly, the Federal Defendants' motion for summary judgment on this ground is granted and Plaintiffs' cross motion on this ground is denied. IV. NEPA and SEQRA Claims Plaintiffs bring seven causes of action pursuant to NEPA and SEQRA. Specifically, Plaintiffs allege that: (1) Defendants ignored and manipulated relevant traffic data used in the EIS and FEIS (Counts Two and Three); (2) Defendants improperly segmented the environmental review of the I-84 and Drury Lane interchange and the I-84 and I-87 interchange (Counts Four and Five); and (3) Defendants failed to consider the growth and cumulative impacts of other projects that are contemplated and in conjunction with the Project (Counts Six and Seven). A. Requirements of NEPA and SEQRA The two goals of NEPA are to ensure that agencies take a "hard look" at the environmental consequences of proposed action and to make information available to the public. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). To achieve these goals, NEPA requires agencies to follow specific procedures to determine what, if any, impact agency action will have on the environment. See City of New York v. U.S. Department of Transp., 715 F.2d 732, 747-48 (2d Cir.1983). One requirement is the preparation of an EIS whenever a federally funded project significantly affects the environment. 42 U.S.C. § 4332. Although this requirement "may effect substantive decision[s], NEPA does not mandate particular substantive outcomes." Knaust v. City of Kingston, New York, No. 96-CV-601, 1999 WL 31106, at *4 (N.D.N.Y. Jan. 15, 1999) (Scullin, J.). Thus, this Court's inquiry is limited to whether the federal agencies reviewed all relevant factors involving environmental impacts and "whether there was a clear error of judgment." Motor Vehicle Mfr. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856; see also Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980). Similar to NEPA, the purpose of SEQRA is "to inject environmental considerations directly into governmental decision making." Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674, 536 N.Y.S.2d 33, 35, 532 N.E.2d 1261 (1988). Pursuant to the statutory procedure, a [DEIS] is prepared and, after a comment period and any public hearings deemed necessary by the agency, is reevaluated *231 to determine in what way, if any, the EIS should be revised or supplemented so as to adequately address issues raised by the comments. The agency then files a [FEIS] and, after a final comment period and any appropriate public hearings, the agency must make express findings that SEQRA's requirements have been met. Akpan, 555 N.Y.S.2d at 19-20, 554 N.E.2d 53 (internal citations omitted). Unlike NEPA, "SEQRA also imposes substantive requirements delineating the content of the EIS and requiring the lead agency to act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects." Id. at 20, 554 N.E.2d 53 (internal citation and quotation marks omitted). Thus, the Court's review is limited to determining whether the procedural requirements were followed and "whether the agency identified the relevant areas of environmental concern, took a `hard look' at them, and made a `reasoned elaboration' of the basis for its determination." Id. (quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 304, 494 N.E.2d 429 (1986)). With these standards in mind, the Court turns to the specific allegations. B. Traffic Data One stated goal of the Project is to provide improved access to Stewart Airport and to divert airport bound traffic from the local roads, thereby minimizing the Project's environmental impact. Nardone Aff. (Docket No. 34), ¶ 4; Levine Aff. (Docket No. 37), ¶ 9. Presently, traffic bound for Stewart Airport can only gain access via local streets. Both the DEIS and the FEIS assumed that the proposed I-84 and Drury Lane interchange would be used by 90% of the airport related traffic and the remaining 10% would continue to use local streets. Plaintiffs contend that when Defendants learned that this so-called "traffic assignment" data was erroneous, they ignored proper data and failed to properly represent the traffic effects to the public. With respect to the erroneous data, the record demonstrates that the traffic data gathered for the Project included manual and automated traffic counts, traffic analyses, traffic flow mapping and traffic modeling. Meyer Aff., ¶¶ 7-11. Plaintiffs, however, allege that the data was erroneously gathered. In support of this allegation, Plaintiffs refer to an October 7, 1999 memo by consultant Adenrele Oshodi ("Oshodi") in which he states: "My dilemma centers on how to reconcile the inconsistencies or remove any ambiguity in the document ... and avoid creating a new round of traffic generation to account for all foreseeable developments which would mean redoing the traffic analyses for all the alternatives considered." Docket No. 51, Ex. 114, p. 2. Plaintiff, however, take this statement out of context. An entire reading of the memo reveals that Oshodi was commenting on the DEIS as well as addressing issues raised by public comment. Oshodi even refers to Plaintiffs' expert Lawrence Levin's ("Levin") concerns with the traffic data. The memo represents Oshodi's deliberative process in determining what needed to be done to assure an accurate result. Indeed, Oshodi has submitted an affidavit on behalf of Defendants affirming that the traffic data was complied using accepted methodology. See Oshodi Aff. (Docket No. 31), ¶ 6. Thus, the memo does not, as Plaintiffs suggest, demonstrate an effort by Defendants to manipulate data. Accordingly, Plaintiffs' contention is rejected. Plaintiffs also allege that Defendants ignored and improperly withheld from the public contrary traffic assignment *232 data from the Newburgh-Orange County Transportation Council ("NOCTC"), which opined that the traffic assignment was 60/40%. The record, however, demonstrates that Defendants did consider NOCTC's analysis. See Docket No. 49, Ex. 18. At worst, Defendants believed the analysis was flawed and relied upon the advice of their own experts and consultants. Defendants are completely within their discretion to rely on such advice. See Marsh v. Oregon Nat'l Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive."). Nonetheless, the record suggests that Defendants' consultants actually believed that the NOCTC's study actually supported their own analysis. Defendants' consultants and experts opined that if other facts not included in the NOCTC's study, such as driver behavior and proper signage, were considered, the two analyses are statistically consistent. See Docket No. 49, Ex. 14; see also Peters Aff. (Docket No. 40), ¶ 16. Since the NOCTC's report was a routine project quality assurance check and since Defendants' believed the statistical analyses were consistent, it was not arbitrary or capricious or clear error not to include it in the public record. Cf. County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1378 (2d Cir.1977) ("An EIS is required to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than to be so allencompassing in scope that the task of preparing it would become either fruitless or well nigh impossible.") (quotation marks are citations omitted). Therefore, Plaintiffs' allegation that Defendants' intentionally withheld the information is not supported by the record. Finally, Plaintiffs allege that the Defendants used erroneous and arbitrary truck traffic in determining the environmental impact of the Project. Specifically, Plaintiffs allege that the analysis that the percentage of trucks will go down between the years 2015 and 2022 has no basis in the record. Levine affirms that "[g]iven the large amount of industrial development planned for the area, truck numbers will continue to increase, not decrease." Levine Aff., ¶ 46 (internal citations omitted). Defendants, however, correctly point out that Levine interchanges the percentage of trucks and the number of trucks. Defendants affirm, and this Court agrees, that "[a] reduction in the percentage of trucks from 4% to 2% does not correspond to a 50% reduction in the number of trucks." Peters Aff., ¶ 21. Defendants further explain that the Project will increase the volume of other vehicles, therefore, while the number of trucks will increase, the percentage of trucks will decrease. Id. Thus, Defendants' determination of the percentage of trucks will decrease was not erroneous or arbitrary. Accordingly, Defendants' motions for summary judgment on this ground are granted and Plaintiffs' cross-motion for summary judgment on this ground is denied. C. Segmentation of the Project and Reconstruction of I-84 and I-87 Interchange Plaintiffs allege that Defendants violated NEPA and SEQRA by segmenting the environmental review of the Project from the environmental review of a proposed interchange between I-84 and I-87. Segmentation is "the division of the environmental review of an action such that various activities or stages are addressed ... as though they were independent, unrelated activities, needing individual determination of significance." 6 *233 N.Y.Code R. & Regs. § 617.2(gg). Segmentation is prohibited where the two proposed actions are connected and must be included in the same EIS. See 40 C.F.R. § 1508.25(a)(1); Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2d Cir.1988). Proposed projects are connected "if they are `closely related' such that they are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25(a)(1)(iii). The proper test to determine relatedness ... is whether the project has independent utility. Marsh, 859 F.2d at 1142. On October 5, 1992, the NYSTA published a "NEWS" bulletin which announced "Thruway Names Consultants for I-87/I-84/Stewart Airport Connection." The articles described the new interchanges linking I-87, I-84 and Stewart Airport as a two phase project: the "first phase of construction, [] will provide a local access interchange from I-84 to Stewart Airport. ... [T]he second phase of construction ... will include the creation of a direct connection between I-87 and I-84 in the vicinity of Newburgh. Federal funding totaling $15.7 million [was] committed to the project, [but] expected to cost in excess of $60 million." Docket No. 51, Ex. 59. Funding and design of the Project and the I-84/I-87 interchange were extensively coordinated until 1995. In 1995, the combined projects were divided into two separate projects due to funding and scheduling issues. Plaintiffs allege that the two projects were impermissibly segmented for environmental review. Plaintiffs contend that the two projects are really one project split into separate phases. In support of this contention, Plaintiffs point to the fact that Defendants coordinated the traffic counts, data collection efforts as well as mapping and traffic modeling. Plaintiffs also point to several documents in the record which they purport demonstrate that the two projects are complementary components of the same traffic control remedy. This Court disagrees. The record demonstrates that the purpose of the Project is to provide direct access to Stewart Airport. The purpose of the reconstruction of the I-84 and I-87 interchange is to create a more direct connection from one interstate to another and to separate local traffic from through interstate traffic. Waite Supp. Aff. (Docket No. 41), ¶ 2. Thus, the development of one project can continue without the development of the other project. The mere fact that the two projects are "interrelated as part of an overall transportation plan" does not mean that they do not "individually contribute to alleviation of the traffic problems ... and are therefore not improperly segmented as separate projects." Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152, 1184-84 (10th Cir.2002) (citing Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 440-41 (5th Cir.1981)). Accordingly, Defendants' motions for summary judgment on this ground are granted and Plaintiffs' cross motion for summary judgment on this ground is denied. D. Cumulative Effects of Related Projects As another aspect of segmentation, NEPA and SEQRA require agencies to consider the cumulative impact of related projects. The term cumulative impact refers to "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency ... or person undertakes such other action. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7. The agency *234 must include "other simultaneous or subsequent action which are: (i) included in any long-term plan of which the action under consideration is a part; (ii) likely to be undertaken as a result thereof; or (iii) dependent thereon." 6 N.Y.Code R. & Regs § 617.7(c)(2). The projects, however, must be more than "`tentative or speculative.'" Pogliani v. United States Army Corps of Engineers, 166 F.Supp.2d 673, 699 (N.D.N.Y.2001) (quoting Village of Grand View v. Skinner, 947 F.2d 651, 659 (2d Cir.1991)). Moreover, agencies may exercise their discretion not to examine separate actions within a geographic area. Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 646 (2d Cir.1999); Save the Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943, 948, 512 N.E.2d 526 (1987). Here, Plaintiffs allege that the FEIS did not consider the cumulative impacts of three related projects: (1) a General Electric Corporate Hangar ("GE Hangar"); (2) development of a First Columbia of Albany International Plaza ("First Columbia"); and the Maybrook Multimodal Corridor-Barron Road projects ("Barron Road"). With respect to the GE Hangar and the First Columbia Project, Defendants affirm that both development projects were considered in the FEIS See Peters Aff., ¶ 26 (GE Hangar was considered as part of the general development at Stewart Airport); and ¶ 20 (traffic from First Columbia was included in the non-air travel related traffic in the FEIS). Plaintiffs have not provided any sworn statements refuting Defendants' statement that the GE Hangar was included in the FEIS. Moreover, once Plaintiffs were provided with an affidavit stating where First Columbia was considered in the traffic data, they now argue that the "guesstimation" of the traffic growth was insufficient. Give the high deference this Court must give the agencies involved, Plaintiffs' conclusory argument is insufficient. With respect to the Barron Road projects, Plaintiffs contend that there are two developments considered by Defendants that were not included in the FEIS: (1) an interchange between I-84 and Barron Road; and (2) redevelopment and reuse of an abandoned rail corridor near Stewart Airport. With respect to the interchange, Defendants affirm that no such project exists. Peters Aff., ¶ 25. Plaintiffs argue that the administrative record refutes this statement because development of Barron Road was mentioned in the 1992 FEIS, but suspiciously absent from the 2000 FEIS. Plaintiffs argument ignores the intervening events, such as airport privatization and transfer of more than 5,200 acres of Stewart Properties to the NYSDEC, which resulted in Defendants abandoning the project.[4] With respect to the development and reuse of an abandoned rail corridor, Defendants affirm that preliminary studies indicate that the corridor is not suitable for redevelopment and that there are not any rail providers interested in using the corridor. Id. at ¶¶ 27-29. Plaintiffs do not refute this assessment. Thus, any redevelopment of this corridor is too remote to have been included in the FEIS. Accordingly, Defendants' motions for summary judgment on this ground are *235 granted and Plaintiffs' cross-motion for summary judgment is denied. V. 23 U.S.C. § 111 Section 111 prohibits states from adding any points of access to, or exit from, an interstate highway without the approval of the Secretary of Transportation. The Secretary of Transportation has delegated the approval authority to the FHWA Administrator. 49 C.F.R. § 1.48(b)(10). Prior to approving any project, the FHWA must prepare an Interchange Justification Report ("IJR"). The FHWA has promulgated guidelines and regulation in preparing the IJR. Here, Plaintiffs allege that defendant FHWA violated 23 U.S.C. § 111 and it own policies and regulations when it failed to analyze in its IJR all three proposed interchanges. With respect to the I-84 and Barron Road interchange, Plaintiffs merely rehash the arguments already rejected above. Since there is not a proposed I-84 and Barron Road interchange, it did not need to be included in the IJR. With respect to the I-84 and I-87 interchange, the project is reconstruction of an existing interchange, therefore, section 111 and its related regulations do not apply.[5]See West v. Secretary of the Dep't of Transp., 206 F.3d 920, 926 (9th Cir.2000). Nonetheless, Plaintiffs contend that the FHWA violated its own policies for approval of a project that is a modification of an existing interchange. See Docket No. 50, Ex. 108. The policy Plaintiffs refer to sets forth guidelines for the approval of such projects. Since they are merely guidelines, this Court must give great deference to the FHWA in determining whether to adhere to such guidelines for this specific project. Cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). Therefore, Plaintiffs' mere allegation that FHWA did not adhere to its guidelines, without more, is insufficient. Accordingly, the Federal Defendants' motion for summary judgment on this ground is granted and Plaintiffs' cross-motion for summary judgment on this ground is denied. WHEREFORE, it is hereby ORDERED that the Federal Defendants' motion for summary judgment (Docket No. 33) is GRANTED; ORDERED that the State Defendants' motion for summary judgment (Docket No. 31) is GRANTED; ORDERED that Plaintiffs' cross-motion for summary judgment (Docket No. 37) is DENIED; and it is ORDERED that the Clerk of the Court enter judgment for ALL DEFENDANTS and close the file. IT IS SO ORDERED. NOTES [1] Section 706 of the APA states: "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be—- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to section 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." [2] In their 7.1 Statement of Facts, Plaintiffs put forth undisputed facts relating to the various activities, including hunting, at the Stewart Airport Hunting Cooperative Area from 1974 through 1999. See Pl. 7.1 Statement of Facts (Docket No. 37), ¶¶ 2-21, 26 & 32. These facts involve whether the area is significant for purposes of section 4(f). The issue here, however, is whether the land is a park, recreational area or wildlife and waterfowl refuge under the statute. Thus, there is no need to recite the facts here. [3] Indeed, none of the courts referring to informal designation or administration defined what is meant by informal. [4] Apparently, the NYSDOT did retain approximately 430 acres of land on either side of Barron Road for future development. Plaintiffs admit, however, that all development proposal in this area are not "panning out." Pl. Reply Mem. of Law (Docket No. 46), p. 9. Nonetheless, Plaintiffs still insist that an interchange is "likely." Id. This argument demonstrates the speculative nature of any development project on Barron Road. [5] Plaintiffs also refer to regulation 23 C.F.R. § 630C. The only reference this Court could find to such a regulation is 23 C.F.R. §§ 630.301-307. These regulations involve application of 23 U.S.C. § 110(a), thus, the regulations have no relevance to Plaintiffs' contentions that the FHWA violated section 111.

635 F.Supp. 572 (1986) UNITED STATES of America v. Robert Clark GRAY, Defendant. Crim. No. 85-00059-B. United States District Court, D. Maine. April 28, 1986. *573 Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., for plaintiff. Charles Hodsdon, Bangor, Me., for defendant. MEMORANDUM DECISION AND ORDER ON MOTIONS TO SUPPRESS CYR, Chief Judge. FINDINGS OF FACT At about 3:45 a.m. on November 6, 1985, agents of the Drug Enforcement Administration (DEA) and officers of the Maine State Police (MSP) executed search warrants at the rural residence of Beatrice M. Dostie. The warrant for the search of the house[1] itself authorized a search for "money and records" in connection with a "controlled buy" of two ounces of cocaine for $3,600 at the residence on November 2, 1985. Ms. Dostie's arrest took place in the yard outside the same house immediately following a second controlled buy of cocaine (14 ounces) during the early morning hours of November 6, 1985. The search warrants were executed following the Dostie arrest. The police descended upon the Dostie residence in marked cruisers with blue lights flashing. Upon learning that unidentified individuals had been seen inside a bedroom of the Dostie house by other officers who had been surveilling the premises *574 in connection with the controlled drug buy, DEA Agent Wayne Steadman ordered that all persons inside the house show themselves at the windows and remain stationary. After waiting about four minutes, during which nobody appeared (except a male who appeared at a bedroom window), the officers broke in the door to the room at the end of the house adjacent to the garage. Detective Sergeant Michael Harrington, a deputy sheriff assigned to the MSP antidrug task force, first entered the door and emerged into a carpeted room measuring approximately 12 × 20 feet ("entry room"), which was furnished with a stove, a couch, a small metal table and some metal chairs. A doorway led from this room to the kitchen and from the kitchen to the remainder of the house, including the bedroom in which Ms. Dostie's parents were found. When he came into the entry room, Harrington saw defendant Gray and another man lying on the floor, between the couch, on one side of the room, and the stove, on the other. After both men had been handcuffed and while they remained on the floor, Steadman read them Miranda warnings. Each man acknowledged that he understood his rights. Both men were taken to the adjacent garage, where their handcuffs were removed and they were told that they were not under arrest. Agent Steadman then separately advised Gray of his rights and received Gray's acknowledgment that he understood those rights. Although Gray did not expressly "waive" his rights, he answered Steadman's questions concerning his reason for being at the Dostie house. Gray also said that he had been to New York City with Dostie. Meanwhile, Detective Harrington examined the pockets of two jackets he found in the entry room. Looking into the unfastened outside breast pocket of a nylon jacket draped over the back of one of the metal chairs in the entry room, Harrington found a laminated miniature facsimile of a high school diploma issued to "Robert Clark Gray," a rolled-up dollar bill and a transparent baggie containing a white powder resembling cocaine. Prior to discovering the diploma card Harrington neither knew who owned the jacket nor had he taken any particular note of its size or style (men's or women's). The jacket itself bore no name or other external identification. Following the discovery of cocaine in Gray's jacket pocket, he was brought back into the entry room and was asked by a MSP trooper whether the jacket belonged to him. Gray responded affirmatively. He was arrested and taken to jail, where a second search of his jacket disclosed an additional quantity of white powder, which field-tested as cocaine. MERITS A. Motion to Suppress Fruits of Jacket Searches Defendant seeks suppression of the fruits of the searches of his jacket on the grounds that the search warrant was not supported by probable cause, that the first search of the jacket exceeded the scope of the search warrant and that the fruits of the second search were tainted by the unlawfulness of the first. 1. Probable Cause The court is "not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the Magistrate's decision to issue the warrant." United States v. Badessa, 752 F.2d 771, 773 (1st Cir.1985), quoting Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2086, 80 L.Ed.2d 721 (1984). Suppression is not required unless the supporting affidavit was "`so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984), quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1973). Agent Steadman's search warrant affidavit, which incorporates his affidavit *575 in support of the arrest warrant for Beatrice Dostie in connection with the November 2d cocaine buy, provides a substantial basis for the Magistrate's finding of probable cause to believe that some of the $3,600 in currency received by Dostie during the November 2d cocaine buy, as well as records relating to that or other drug transactions, would be found on the premises, including the house. The Steadman affidavit details the November 2d drug transaction, during which the informant was taken into the Dostie house, to the adjoining garage (where the cocaine was obtained), back into the house and then to the motor home in the yard. Relying on common sense and on Steadman's opinion (based on 17 years of experience as a DEA agent), it was entirely reasonable for the Magistrate to conclude that there was a likelihood that a search of the house would disclose records and the "controlled buy" currency from which the serial numbers had been recorded. 2. The First Search of Defendant's Jacket Notwithstanding the fact that the defendant's jacket pocket certainly could have served as a repository for currency or records of the type sought in the warranted search of the premises, see United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir.1984), cert. denied., ___ U.S. ___, 105 S.Ct. 1188, 84 L.Ed.2d 334 (1985), the question remains whether the jacket, which belonged to the defendant but was not being worn by him at the time of its discovery or search, was within the scope of the valid warrant for the search of the premises. In United States v. Micheli, 487 F.2d 429 (1st Cir.1973), a divided First Circuit panel expressed disagreement as to the proper analysis for determining the lawfulness of a search of a briefcase discovered in the course of a warranted search of an office. "Without attempting to write in black letters ..," Chief Judge Coffin, writing for the majority, focused on "the relationship between the person [who owns the article] and the place" and on "why a person's belongings happen to be on the premises." Id. at 431-32. The majority upheld the search of the briefcase because (as the agents knew) it belonged to a co-owner of the business occupying the office and not to a "mere visitor or passerby who suddenly found his belongings vulnerable to a search of the premises. He had a special relation to the place, which meant that it could reasonably be expected that some of his personal belongings would be there." Id. at 432. Judge (now Chief Judge) Campbell found himself "unable to accept the broad ruling suggested by the court — that the police, although armed with a warrant, may search an individual's personal effects found on the premises only if they know at the time of a close relationship between the person and the premises." Id. at 432-33 (Campbell, J. concurring). One commentator has analyzed the problem this way: [T]he police cannot realistically be expected to avoid searching the property of a mere visitor to the premises unless they are aware of its ownership. Absent a requirement of such awareness, the effective execution of a warrant to search a place would be impossible since the police could never be sure that a plausible repository for items named in the warrant belongs to a resident, and hence is searchable, or to a nonresident, and hence is not searchable. Because of this, without notice of some sort of the ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant. 2 W. LaFave, Search and Seizure, § 4.10(b) at 156, quoting State v. Nabarro, 55 Haw. 583, 525 P.2d 573 (1974). The main message delivered by the Micheli majority is that the mere fact that a personal effect is not being worn or carried by its owner does not justify its search under the authority of a warrant for the premises if the owner of the article has no *576 more than a transitory connection with the premises. The Micheli majority did not need to reach the issue presented here, which is whether a warrant to search the premises authorizes the search of personal effects whose ownership or whose owner's connection with the premises is not known to the police. The majority opinion in Micheli, which focused on the relationship between the premises and the person whom the agents knew to be the owner of the briefcase, does not appear to preclude the search of an article belonging to a "mere visitor" unless the police are on notice "of some sort" that the article belongs to a "mere visitor." Other cases which have applied the Micheli majority analysis have pointed to relevant circumstances of which the officers were actually aware. See United States v. Branch, 545 F.2d 177, 181-82 (D.C.Cir.1976) [defendant, who arrived about 45 minutes after police had begun to conduct warranted search of apartment, held to be "apparently a mere visitor" whose shoulder bag could not be searched pursuant to the warrant]; United States v. Neet, 504 F.Supp. 1220 (D.Colo.1981) [where police, surveilling a house in which an earlier drug transaction (by others) had been completed, saw a woman enter the house in the afternoon, "there was not the inference ... that she could be involved as a courier"; therefore, absent knowledge of woman's involvement in any narcotics transaction, police were not entitled to search her purse pursuant to a search warrant subsequently acquired for the house]. In United States v. Hilton, 469 F.Supp. 94 (D.Me.1979) (Gignoux, C.J.), this court, applying Micheli, concluded that a warrant to search for "telephone notebooks, tally sheets and other documents" at a coastal estate (apparently being used as headquarters for a marijuana offload) permitted officers, executing the warrant at 6:30 a.m., to search a briefcase and pocketbooks belonging to persons, found sleeping in the house, who claimed to have been vacationers from out-of-state. Chief Judge Gignoux reasoned that, because they "had each spent at least one night, if not more, at the Estate and were clearly not mere passerbys .., `it could reasonably be expected that some of [their] personal belongings would be there.'" Id. at 111, quoting Micheli, 487 F.2d at 432. Prior to the first search of defendant's jacket, the officers did not know (nor did the circumstances prompt them to inquire) who owned the jackets found in the entry room. Defendant argues, not without some force, that the officers had good reason to believe that the two jackets were owned by the two men found in the room where the jackets were found. Nevertheless, the officers had detected movement inside the house prior to their forced entrance, thus making it quite plausible that other persons had been in the entry room immediately prior to the time the police forced open the door. Moreover, it was readily apparent to the officers that the room was an entry room, where any occupant or visitor (including Dostie or her parents) might have deposited their jackets. These circumstances tend to support Detective Harrington's testimony that he had no idea who owned the jackets, until after the search. Even assuming that the officers knew or should have known from the outset who owned the red jacket in which the cocaine was found, the circumstances of which the officers could have been aware at the time of the search strongly suggested that the defendant was no "mere visitor or passerby." The defendant was found in the Dostie house at about 3:45 a.m., shortly after an informant had made a controlled "buy" of cocaine in the yard outside the residence. There is no evidence that the defendant had arrived after the drug buy, and that, therefore, he could not be inferentially connected to that transaction. Compare United States v. Neet, supra. Nor did defendant simply happen into the Dostie residence while the warrant was being executed. Compare United States v. Branch, supra. There is nothing to suggest that defendant had not been there at least "overnight." Indeed, Detective Harrington testified that he had been told to expect to find Dostie's *577 parents and one other person in the house. Agent Steadman testified that he had been told by other officers that there were persons moving about inside the house. Harrington saw a male person through a bedroom window. Finally, the movement of persons inside the house and their failure to show themselves at the windows when the police ordered them to do so suggested that the two men found in the entry room may have been attempting to avoid detection and, thus, may have been accomplices of Dostie, who had just been arrested. Under these circumstances the officers reasonably could have viewed defendant as having a much more substantial connection to the Dostie residence than that of "a mere visitor or passerby who suddenly found his belongings vulnerable to a search of the premises," Micheli, 487 F.2d at 432. The Micheli majority expressed the view that "[a] visitor in a private home stands in a different position from an habitue of a `shooting gallery,' United States v. Johnson, 154 U.S.App.D.C. 393, 475 F.2d 977, 980 (1973) (Bazelon, C.J. dissenting in part)." Micheli, supra at 432. Though not exactly a "shooting gallery," the Dostie house was actually known to the police to be the residence of a person who had just been arrested following her second sale of illegal drugs in four days. Police engaged in the execution of a search warrant in the "dead of night" at residential premises where a controlled drug buy has just taken place cannot realistically be considered on any "sort of notice" that persons who have failed to show themselves on police command before the premises are forcibly entered are, if indeed they were, "mere visitors or passersby." Speaking of the "rare situation which might give us pause, e.g., the search of the restaurant customer's raincoat under authority of a warrant to search the restaurant ...," Judge Campbell stated in Micheli: "[i]f the warrant was issued because the restaurant was suspected to be a betting parlor, a reasonable execution of the warrant might include a search of customers' raincoats (assuming the coats to be deposited on the premises, and not still on the backs of the customers)." Micheli, supra at 434. It would be unrealistic in these circumstances to expect the officers to treat the deposited jacket as anything other than a plausible repository for the currency and records for which they held a valid warrant to search the premises. The Dostie house was actually known to the police to be the residence of a person who had just minutes earlier made a second sale of illegal drugs. The search of the red jacket was within the scope of the warrant for the premises. 3. The Second Search of Defendant's Jacket Having discovered what appeared to be cocaine in a jacket pocket containing a rolled-up dollar bill and a laminated diploma bearing the name "Robert Clark Gray," the officers had probable cause to arrest the defendant. Once at the place of detention, they were entitled to search his person, United States v. Deleo, 422 F.2d 487, 491-93 (1st Cir.1970), which included the jacket previously searched in the entry room of the Dostie residence. Thus, the discovery of an additional quantity of cocaine in another pocket of the jacket was lawful. B. Motion to Suppress Oral Statements Defendant moves to suppress oral statements which he claims were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Government has agreed not to use defendant's admission that he owned the jacket in which the cocaine and related materials were found. Apparently, other statements were made by defendant, but it is not clear that they have any evidentiary value. Defendant has not indicated whether a ruling is required on the admissibility of any of these other statements. In view of the Government's stipulation, the court will defer decision on defendant's motion to suppress oral statements until defense *578 counsel has learned from Government counsel whether any other statements of the defendant are to be offered at trial. CONCLUSION For the foregoing reasons, the motion to suppress the fruits of the searches of the pockets of defendant's jacket at the Dostie house and at the jail is DENIED. Ruling on defendant's motion to suppress oral statements of the defendant is DEFERRED, pending a conference between counsel, to be held within 5 days of this order, and subsequent notification to the court by the defendant, within 10 days of this order, as to whether defendant presses his motion to suppress oral statements. Absent such timely notification, the motion shall be deemed withdrawn. SO ORDERED. NOTES [1] Another warrant authorized a search for cocaine in the Dostie garage, adjacent to the house, and in a motor home located in the yard.

681 F.2d 810 U. S.v.Hall 81-2153 UNITED STATES COURT OF APPEALS Third Circuit 3/29/82 1 E.D.Pa. AFFIRMED

39 F.3d 327 Bonadonna (Philip Anthony)v.U.S. NO. 93-8487 United States Court of Appeals,Eleventh Circuit. Oct 20, 1994 N.D.Ga., 30 F.3d 1498 1 DENIALS OF REHEARING EN BANC.

123 Cal.App.2d 345 (1954) C. DANIELS, Respondent, v. ROY W. PITMAN, Appellant. Civ. No. 19838. California Court of Appeals. Second Dist., Div. Two. Feb. 18, 1954. Samuel A. Rosenthal and Norman Warren Alschuler for Appellant. Jacob Paull for Respondent. McCOMB, J. Defendant appeals from orders denying (1) his motion to set aside a default judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, and (2) his motion to reconsider the previous order. Facts: Plaintiff commenced an action to recover the sum of $4,000 representing a balance of defendant's indebtedness of $7,000 to plaintiff's assignor which was evidenced by a writing executed by defendant. The case was originally set for trial July 27, 1951, but due to the fact that certain depositions had not been returned it was ordered off calendar. *346 April 1, 1952, the commissioner appointed to take the depositions wrote a letter to the attorney of record for defendant enclosing copies of the interrogatories and cross-interrogatories put to the witnesses, and advising him that the original interrogatories had been transmitted to the clerk of the court. Thereupon plaintiff made a motion to have the case restored to the trial calendar and an order was entered setting the trial for July 31, 1952. Notice of motion to restore the case to the calendar was mailed to the attorney of record for defendant enclosed in an envelope containing plaintiff's attorney's return address. The same was never returned to plaintiff's attorney by the post office department. On April 17, 1952, plaintiff's attorney received a telephone call from a woman who represented that she was Mrs. Rollinson, the wife of defendant's attorney. She stated that her husband was due to come out of the hospital in about a week, and that it would take a little time for his recovery, and on that basis requested a continuance of the hearing of the motion to restore the case to the calendar. Plaintiff's attorney advised her that since the case would be set for trial for sometime in the future no purpose would be served in continuing the hearing; that after the trial date had been set, notice of trial would be mailed to the attorney for defendant and if for any reason his health would not permit his trying the case on that date, plaintiff's attorney would be willing to discuss with him a continuance of the trial. On April 10, 1952, in addition to mailing to the attorney for defendant a copy of the notice of motion to restore the case to the calendar, there was mailed under separate cover a copy of a notice to produce. This document was never returned by the post office department to plaintiff's attorney. April 18, 1952, a written notice of trial, indicating the case had been reset for trial on July 31, 1952, was mailed to the attorney for defendant at his office address enclosed in an envelope which bore the return address of plaintiff's attorney. This document was not returned to the attorney for plaintiff by the post office department, nor did plaintiff's attorney hear from defendant or his attorney between April 18, 1952, and the time that a default judgment was rendered against defendant on July 31, 1952. It likewise appears that on or about March 12, 1952, defendant visited the attorney for plaintiff without any prior notice, representing that he was visiting such attorney with the *347 knowledge and acquiescence of his own counsel. Defendant stated that the purpose of his visit was to ascertain the address of plaintiff's assignor, since he was desirous of discussing with the assignor a business deal similar to the one which resulted in his executing the written acknowledgment of indebtedness for $7,000, and that by such meeting he could in all probability work out a solution to the satisfaction of all persons concerned. The attorney for plaintiff referred defendant to the attorney for plaintiff's assignors from whom he might obtain the address he desired and stated to defendant that he doubted that any business transaction could be consummated with plaintiff's assignor in view of the pendency of the present action, and that if defendant desired to enter into any further negotiations he would first have to make a disposition of the pending action. He further advised defendant that in spite of the fact he was contemplating contacting plaintiff's assignor he would proceed with the pending action as soon as the depositions were received, and that, in all probability, based upon a motion which would then have to be made to restore the case to the calendar, the trial would probably take place sometime in June or July of 1952. On August 8, 1952, a copy of the memorandum of costs and disbursements together with a copy of notice of entry of judgment were mailed to the attorney for defendant in an envelope which bore plaintiff's attorney's return address. This envelope was not returned by the post office department. Defendant admitted that he had learned of the judgment on or about August 20, 1952. Defendant's original motion was based upon two grounds: 1. Mistake, inadvertence, surprise and excusable neglect; and 2. Extrinsic fraud of plaintiff and plaintiff's attorney. No facts were shown to establish any fraud. Therefore we need not consider the correctness of the court's ruling as to the second ground. We, of course, must disregard any statements in defendant's affidavits contradictory of those of plaintiff's affidavit, since, when there is substantial conflict in the facts presented by affidavits, the determination of the controverted facts by the trial court will not be disturbed on appeal. (Baratti v. Baratti, 109 Cal.App.2d 917, 922 [12] [242 P.2d 22]; Reeves v. Reeves, 34 Cal.2d 355, 360 et seq. [209 P.2d 937].) We are thus presented with this sole question: Under the foregoing facts did the trial court abuse its *348 discretion in denying defendant's motions to set aside the default judgment entered against him? No. [1] Mr. Justice Traynor, in Coyne v. Krempels, 36 Cal.2d 257, 263 [8] [223 P.2d 244], thus accurately states the rule: "A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal." [2] It is likewise settled that in the exercise of its discretion under section 473 of the Code of Civil Procedure, in setting aside a default judgment, it should appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question is not the result of mere forgetfulness or neglect but is based on other circumstances which would make the neglect excusable. In the instant case the above facts are supported by affidavits in opposition to defendant's motions and such facts do not show any excusable mistake, surprise or neglect. Therefore the trial court did not abuse its discretion in concluding that no proper showing of inadvertence or excusable neglect had been made. The orders are and each is affirmed. Moore, P. J., and Fox, J., concurred.

428 F.3d 1165 UNITED STATES of America, Appellee,v.Michael John WALKER, Appellant. No. 05-1557. United States Court of Appeals, Eighth Circuit. Submitted: September 16, 2005. Filed: November 17, 2005. COPYRIGHT MATERIAL OMITTED Paul C. Engh, argued, Minneapolis, MN, for appellant. CErika R. Mozangue, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee. Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges. MURPHY, Circuit Judge. 1 Michael John Walker appeals his conviction for possession of an unregistered firearm in violation of the National Firearms Act (NFA), specifically 26 U.S.C. §§ 5845(f), 5861(d) and 5871. Walker was indicted both for being a felon in possession of a firearm and for possession of an unregistered firearm based on his possession of Molotov cocktails, and he was found guilty of both offenses by a jury. After the district court1 dismissed the first count for insufficient proof that the Molotov cocktail ingredients had moved in interstate commerce, Walker was sentenced to ten years imprisonment on the second count. He contends on appeal that the court erred by admitting evidence of his prior conviction for making terroristic threats and by failing to give two of his requested jury instructions. We affirm. 2 On January 17, 2004 Minneapolis police and firefighters responded to an emergency call from the residence of Walker's former wife, Julie Crawford. When they arrived at her residence, they discovered fires on the front porch and in the backyard. They also saw burn patterns on a camper owned by Lonnie Allen, who was staying with Crawford at the time and had previously been married to her. They discovered two improvised incendiary bombs or Molotov cocktails, which had been made from Starbucks Frappucino coffee bottles filled with gasoline and wicked with blue rags. 3 At trial a neighbor testified that on the evening of the fires she had seen a man walking in the middle of the street with three bottles. Another neighbor described seeing a man throw an object towards Crawford's house and then crouch down and try to light something; his jacket caught fire and he put out the flames with his hand. Crawford's daughter Elizabeth Allen and her boyfriend Joshua Lewis were both in the house at the time of the attack, and they testified that they had seen Walker outside shortly before the attack. Joshua reported that Walker had yelled, "Josh, you better get out of the house!" before he lit what he was carrying. 4 Walker and Crawford had been married from 1993 to 1995 and had a long and tumultuous relationship. Walker was convicted in 1994 of making felony terroristic threats for telling Crawford he would kill her and put her in a body bag. Despite several attempts to reconcile, Crawford finally ended their relationship on December 19, 2003. Walker responded by presenting her with a list of demands, insisting she sign them. Crawford refused and subsequently obtained a restraining order. 5 Crawford did not hear from Walker again until shortly before the firebombing. He called to tell her that she had better comply with his demands or "hope they were on vacation." After the fires Walker made a number of calls to Crawford's home and her cell phone. In one call he left a message saying "I hope everyone got out ok because you know what, it's a great day for dying." When he reached her on the phone, Crawford asked him "why he did it"; he responded "because I love and care about you." A Minneapolis police officer investigating the incident was present during one call and heard Walker say "you better call out the fucking army because you're going to need it." 6 Walker was charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 921(a)(3), 921(a)(4)(A)(i), 922(g) and 924(e), and one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5845(f), 5861(d) and 5871. After the jury returned guilty verdicts on both counts, the district court granted Walker's motion for judgment notwithstanding the verdict on count 1, concluding that the government had not shown that the primary ingredients in the Molotov cocktails had traveled in interstate commerce. Walker was sentenced to ten years on count 2 with three years of supervised release. He appeals, arguing that the district court committed reversible error by admitting a certified conviction of his 1994 state offense despite his offer to stipulate that he had a felony conviction. He also argues that the court abused its discretion by not giving two of his requested jury instructions. 7 Walker first challenges the district court's decision to admit a certified conviction of his 1994 state felony when he had offered to stipulate to the fact that he was a convicted felon, an element of count 1. He contends that his prior conviction was otherwise irrelevant, prejudicial, and not close in time to the present charges, and that use of certified convictions has a prejudicial effect. The government counters that evidence of the 1994 conviction was properly admitted because it was relevant to motive and intent, not unfairly prejudicial, and sufficiently close in time. Moreover, certified convictions are the best form of evidence of the facts they are offered to prove, and any error was harmless. 8 Walker relies on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), to argue that his stipulation should have kept the nature of his prior felony from the jury. In Old Chief, the Supreme Court held that when a past conviction is an element of the offense for which the defendant is on trial, the defendant should be allowed to admit to the fact of the conviction rather than having the government offer additional evidence of it. Id. at 174, 117 S.Ct. 644. Nevertheless, Old Chief explicitly reaffirmed the rule that under most circumstances the prosecution is entitled to prove its case as it sees fit, and a criminal defendant may not "stipulate or admit his way out" of the full evidentiary force of the case against him. Id. at 186, 189, 117 S.Ct. 644; see also United States v. Ortiz, 125 F.3d 630, 632 (8th Cir.1997). 9 We have interpreted Old Chief to bar evidence of prior convictions offered solely to prove defendant's status as a convicted criminal. United States v. Hill, 249 F.3d 707, 711-12 (8th Cir.2001). In such circumstances the probative value of a defendant's admission to the prior conviction has equivalent value to a fuller record with less potential for prejudice, justifying a restriction on prosecutorial discretion. Id.; see also Old Chief, 519 U.S. at 190-91, 117 S.Ct. 644. In this case the charge in count 1 was the sort of status offense at issue in Old Chief so in respect to that count Walker was entitled to stipulate that he had a prior felony conviction, rather than have the prosecutor choose the method of proof for that element. The evidentiary issue was different for count 2, however, because on that charge his past conviction was offered to prove other elements of the offense and to refute his proffered defense. Such use was permissible, provided the evidence was admissible under the federal rules. See Old Chief, 519 U.S. at 189, 117 S.Ct. 644; see also United States v. Williams, 238 F.3d 871, 876 (7th Cir.2001); United States v. Bilderbeck, 163 F.3d 971, 977-78 (6th Cir.1999); United States v. Crowder, 141 F.3d 1202, 1203 (D.C.Cir.1998). 10 Federal Rule of Evidence 404(b) bars a defendant's other crimes or bad acts from being used as character evidence, while permitting such evidence to prove other factors such as motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. Fed.R.Evid. 404(b). It is a rule of inclusion, meaning that evidence offered for permissible purposes is presumed admissible absent a contrary determination. United States v. Henson, 939 F.2d 584, 585 (8th Cir.1991). Admissibility of 404(b) evidence is governed by four factors: the evidence must be 1) relevant to a material issue; 2) proven by a preponderance of the evidence; 3) of greater probative value than prejudicial effect; and 4) similar in kind and close in time to a charged offense. United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998). We review admission of such evidence for abuse of discretion and will reverse only when the evidence clearly had no bearing on the case and was introduced solely to show defendant's propensity to engage in criminal misconduct. Id. 11 In arguing that his 1994 conviction was irrelevant and unduly prejudicial, Walker relies heavily on a line of cases following United States v. Jenkins, 7 F.3d 803 (8th Cir.1994). In Jenkins we held that the government may not introduce evidence of other crimes or bad acts to contradict a defense that the defendant did not do the particular acts he was accused of in the indictment; in that situation knowledge and intent are not at issue. Id. at 806-07; United States v. Sumner, 119 F.3d 658, 660 (8th Cir.1997). Since Walker's defense was a denial that he was present at Crawford's residence at the time of the incident, he argues that evidence of his 1994 conviction should have been excluded as irrelevant and unduly prejudicial under Jenkins. 12 The reach of the Jenkins line of cases has been narrowed by the Supreme Court's reaffirmation of the government's right to prove its case in the manner it chooses. Old Chief, 519 U.S. at 186-87, 117 S.Ct. 644; Hill, 249 F.3d at 711. For example in Hill, we held that the defendant could not prevent the government from introducing evidence of his prior convictions by agreeing not to make intent an issue at trial. 249 F.3d at 712. As the Court observed in Old Chief, "evidence ... has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences ... necessary to reach an honest verdict." 519 U.S. at 187, 117 S.Ct. 644. Except in very limited circumstances, a defendant may not choose the manner in which the prosecution is to present its case. The mere fact that Walker did not actively dispute motive or intent did not preclude the government from offering otherwise admissible evidence as to these factors. See Hill, 249 F.3d at 712 ("Hill's attempt to remove intent as an issue in the case did not lift the Government's burden of proving Hill's intent."). 13 While Walker's prior offense of making terroristic threats could have a potential prejudicial effect with respect to possessing an unregistered firearm, its relative probative value was increased by the fact that both offenses were associated with the same victim. That fact and the purpose for which the evidence was admitted here distinguish this case from United States v. Crenshaw, 359 F.3d 977, 1001-02 (8th Cir.2004), where the probative value of the evidence was substantially outweighed by its prejudicial effect. In Crenshaw, defendant's prior convictions for reckless use of a firearm and assault could have been relevant on intent for the murder and racketeering charges, but the government relied on them primarily to impeach defendant's character which had not otherwise been put at issue. Id. In contrast, Walker's prior conviction for making terroristic threats against Crawford was part of the history of their relationship, and the trial court acted within its discretion in concluding that the conviction was relevant to his motive and intent and that its probative value outweighed its potential prejudicial effect. See United States v. Yellow, 18 F.3d 1438, 1441 (8th Cir.1994)(prior sexual abuse of victim relevant and not unduly prejudicial in relation to rape charge); Henson, 939 F.2d at 584 (prior threats against victim relevant and not unduly prejudicial in relation to charge of maliciously damaging and destroying a building by fire). Moreover, the district court gave a limiting instruction. See U.S. v. Thomas, 398 F.3d 1058, 1063 (8th Cir.2005) (limiting instructions may reduce the possibility of unfair prejudice). 14 Walker also complains that he was unduly prejudiced by the use of a certified conviction to prove the government's 404(b) evidence because such a document "gives a court's imprimatur upon the defendant's past criminality." A certified conviction is the best evidence of what occurred, however, and it can be less prejudicial to a defendant than other forms of proof since it recites only the "bare bones" fact of conviction rather than giving any details of the crime. See United States v. Burk, 912 F.2d 225, 229 (8th Cir.1990). We conclude that Walker was not unduly prejudiced. 15 Walker also contends that his prior conviction was not close in time because it took place ten years before his trial. We have noted in connection with Rule 404(b) that "there is no fixed period within which the prior acts must have occurred," United States v. Baker, 82 F.3d 273, 276 (8th Cir.1996), and we have approved the admission of other crimes evidence for acts committed up to thirteen years before the crime charged. United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981); see also United States v. Molina, 172 F.3d 1048, 1054-55 (8th Cir.1999) (upholding admission of trafficking and possession convictions from ten years prior to offense charged). Whether or not a prior act is close in time is a question of reasonableness under all the circumstances. United States v. Shoffner, 71 F.3d 1429, 1432-33 (8th Cir.1995)(quoting Engleman, 648 F.2d at 479). Since Walker's prior conviction for terroristic threats and his current offense involve the same individuals and a continuing relationship, the relative time periods are not unreasonably distant in terms of the Rule 404(b) test. 16 For all of these reasons, we conclude that the district court did not abuse its discretion in admitting the Rule 404(b) evidence. Because of the strength of the government's other evidence, any error in admission of the evidence would have been harmless in any event. The government's proof that Walker possessed Molotov cocktails included evidence of their residue at the scene, eye witness accounts, his own statements, and Crawford's testimony about the tumultuous nature of Walker's relationship with her. In these circumstances admission of the 404(b) evidence did not affect his substantial rights. See United States v. Carroll, 207 F.3d 465, 470 (8th Cir.2000). 17 Walker also maintains that the district court erroneously instructed the jury as to the requisite level of intent when it told the jurors only that Walker must have knowingly possessed and failed to register a Molotov cocktail. According to him, the district court should have told the jury that in order to be convicted for possession of a Molotov cocktail he must have been aware that it was a firearm within the meaning of the National Firearms Act. The government counters that Molotov cocktails are quasi suspect in nature so that they cannot be possessed innocently, relying on Staples v. United States, 511 U.S. 600, 611-12, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). We review a district court's formulation of jury instructions for abuse of discretion and consider whether the instructions "correctly state the applicable law." United States v. Milk, 281 F.3d 762, 768 (8th Cir.2002). We will reverse only where an abuse of discretion is prejudicial to one of the parties. United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir.1999). 18 To support his argument Walker relies principally on Staples, 511 U.S. at 602, 114 S.Ct. 1793, where the Supreme Court held that a defendant who possessed a semi automatic rifle modified into a machinegun could not be convicted without a showing that he knew the weapon fit the statutory definition of a machinegun. That decision was premised on our national tradition of lawful gun ownership, a tradition that makes the possession of many types of guns entirely innocent. Id. at 612, 114 S.Ct. 1793. Other dangerous devices, such as hand grenades, are outside this tradition, however, making their ownership "quasi-suspect." Id. (distinguishing United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971)). Quasi suspect status can justify a lower burden of proof as to intent so that a defendant need only have knowingly possessed the item. Staples, 511 U.S. at 608-09, 114 S.Ct. 1793. 19 We have applied Staples in United States v. Barr, 32 F.3d 1320, 1322 (8th Cir.1994), and that case is instructive here. In Barr, the defendant had been convicted of possessing an unregistered sawed off shotgun in violation of the NFA and on appeal she argued similarly to Walker, that the district court had erred in not instructing the jury that she could be convicted only if she knew the weapon was a firearm under the Act. We held that because sawed off shotguns are not traditionally lawful weapons but rather quasi suspect, Barr could have no legitimate expectation that their possession would be legal. Once the government established quasi suspect status, it had only to show knowing possession. Id. at 1324. Walker argues that Barr should be distinguished because the combination of "a bottle, a cup or two of gas" and "a blue towel" does not resemble a typical firearm and should not be found to be quasi suspect. Quasi suspect status under Staples does not turn on the superficial resemblance of the object in question to a normal weapon, however, but on the likelihood that the defendant knew he was engaging in illegal activity by possessing the object. See 511 U.S. at 610-11, 114 S.Ct. 1793. An assembled Molotov cocktail bears even less resemblance to a traditionally lawful item such as a rifle than does a sawed off shotgun. We conclude that Molotov cocktails are quasi suspect in nature and that the district court did not err by instructing on knowing possession rather than specific intent. 20 Walker finally argues that he was entitled to have the jury instructed that he could not be convicted for failing to register a Molotov cocktail if it was impossible to register such an object. The government counters that such an instruction was not needed because Walker could comply with the NFA by simply refraining from possession. For support Walker looks to the Tenth Circuit's decision in United States v. Dalton, 960 F.2d 121, 124 (10th Cir.1992), which overturned on impossibility grounds a conviction for failing to register a machinegun. We have declined to follow Dalton, reasoning that even if a firearm cannot be registered, an individual could still comply with the law by not taking possession of it. United States v. Elliott, 128 F.3d 671, 672 (8th Cir.1998). Elliot is settled law in our circuit, and a panel cannot overturn it. We conclude that Walker was not entitled to a jury instruction on impossibility. 21 Since the district court did not abuse its discretion or commit reversible error by admitting a certified conviction of Walker's 1994 offense or by denying his requested jury instructions on intent and impossibility, we affirm the judgment of the district court. 22 BRIGHT, Circuit Judge, concurs in the result only. Notes: 1 The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota

403 U.S. 573 (1971) UNITED STATES v. HARRIS. No. 30. Supreme Court of United States. Argued March 23, 1971 Decided June 28, 1971 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. *574 Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Richard B. Stone, and Mervyn Hamburg. Steven M. Umin, by appointment of the Court, 400 U. S. 955, argued the cause and filed a brief for respondent. Frank G. Carrington, Jr., and Alan S. Ganz filed a brief for Americans for Effective Law Enforcement, Inc., as amicus curiae urging reversal. MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK and MR. JUSTICE BLACKMUN join, and in Part I of which *575 MR. JUSTICE STEWART joins, and in Part III of which MR. JUSTICE WHITE joins. We granted certiorari in this case to consider the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity. In 1967 a federal tax investigator and a local constable entered the premises of respondent Harris, pursuant to a search warrant issued by a federal magistrate, and seized jugs of whiskey upon which the federal tax had not been paid. The warrant had been issued solely on the basis of the investigator's affidavit, which recited the following: "Roosevelt Harris has had a reputation with me for over 4 years as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information [sic] from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris' control during this period of time. This date, I have received information from a person who fears for their [sic] life and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following information: This person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as *576 the `dance hall,' and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons." Respondent was subsequently charged with possession of nontaxpaid liquor, in violation of 26 U. S. C. § 5205 (a) (2). His pretrial motion to suppress the seized evidence on the ground that the affidavit was insufficient to establish probable cause was overruled, and he was convicted after a jury trial and sentenced to two years' imprisonment. The Court of Appeals for the Sixth Circuit reversed the conviction, holding that the information in the affidavit was insufficient to enable the magistrate to assess the informant's reliability and trustworthiness. 412 F. 2d 796, 797 (1969). The Court of Appeals relied on Aguilar v. Texas, 378 U. S. 108 (1964), in which we held that an affidavit based solely on the hearsay report of an unidentified informant must set forth "some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable.' " Id., at 114. It concluded that the affidavit was insufficient because no information was presented to enable the magistrate to evaluate the informant's reliability or trustworthiness. The court noted the absence of any allegation that the informant was a "truthful" person, but only an allegation that the informant was "prudent." Having found the informant's tip inadequate under Aguilar, the court of Appeals, relying on Spinelli v. United States, 393 U. S. 410 (1969), looked to the remaining allegations of the affidavit to determine whether they provided independent corroboration of the informant. The Court of Appeals held that the constable's prior discovery of a cache on respondent's property within the previous four years was too remote, and, *577 citing certain language from Spinelli, it gave no weight whatever to the assertion that respondent had a general reputation known to the officer as a trafficker in illegal whiskey. For the reasons stated below, we reverse the judgment of the Court of Appeals and reinstate the judgment of conviction. I In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment's prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U. S. 102 (1965): "[T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." 380 U. S., at 108. Aguilar in no way departed from these sound principles. There a warrant was issued on nothing more than an affidavit reciting: "Affiants have received reliable information from a credible person and do believe that heroin, marijuana, *578 barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law." 378 U. S., at 109. The affidavit, therefore, contained none of the underlying "facts or circumstances" from which the magistrate could find probable cause. Nathanson v. United States, 290 U. S. 41, 47 (1933). On the contrary, the affidavit was a "mere affirmation of suspicion and belief" (Nathanson, supra, at 46) and gained nothing by the incorporation by reference of the informant's unsupported belief. See Aguilar, supra, at 114 n. 4. Significantly, the Court in Aguilar cited with approval the affidavit upheld in Jones v. United States, 362 U. S. 257 (1960). That affidavit read in pertinent part as follows: "In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the narcotics were secreated [sic] in the above mentioned places. The last time being August 20, 1957." Id., at 267-268, n. 2. The substance of the tip, held sufficient in Jones, closely parallels that here held insufficient by the Court *579 of Appeals. Both recount personal and recent[*] observations by an unidentified informant of criminal activity, factors showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information. Spinelli, supra, at 416. The Court of Appeals seems to have believed, however, that there was no substantial basis for believing that the tip was truthful. Indeed, it emphasized that the affiant had never alleged that the informant was truthful, but only "prudent," a word that "signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility." 412 F. 2d, at 797-798. Such a construction of the affidavit is the very sort of hypertechnicality—the "elaborate specificity once exacted under common law"—condemned by this Court in Ventresca. A policeman's affidavit "should not be judged as an entry in an essay contest," Spinelli, supra, at 438 (Fortas, J., dissenting), but, rather, must be judged by the facts it contains. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contains an ample factual basis for believing the informant which, when coupled *580 with affiant's own knowledge of the respondent's background, afforded a basis upon which a magistrate could reasonably issue a warrant. The accusation by the informant was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself. This will be developed in Part III. II In determining what quantum of information is necessary to support a belief that an unidentified informant's information is truthful, Jones v. United States, supra, is a suitable benchmark. The affidavit in Jones recounted the tip of an anonymous informant, who claimed to have recently purchased narcotics from the defendant at his apartment, and described the apartment in some detail. After reciting the substance of the tip the affiant swore as follows: "Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same. "This same information, regarding the illicit narcotic traffic, conducted by [the defendant] has been given to the undersigned and to other officers of the narcotic squad by other sources of information. "Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated [sic] in the above apartment . . . ." Id., at 268 n. 2. Mr. Justice Frankfurter, writing for the Court in Jones, upheld the warrant. Although the information in the affidavit was almost entirely hearsay, he concluded that *581 there was "substantial basis" for crediting the hearsay. The informant had previously given accurate information; his story was corroborated by "other sources" (albeit unnamed); additionally the defendant was known to the police as a user of narcotics. Justice Frankfurter emphasized the last two of these factors: "Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history." Id., at 271. Aguilar cannot be read as questioning the "substantial basis" approach of Jones. And unless Jones has somehow, without acknowledgment, been overruled by Spinelli, there would be no basis whatever for a holding that the affidavit in the present case is wanting. The affidavit in the present case, like that in Jones, contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant—a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information. Both recite prior events within the affiant's own knowledge—the needle marks in Jones and Constable Johnson's prior seizure in the present case—indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was "known . . . as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers." Spinelli, supra, at 422. To be sure there is no averment in the present affidavit, as there was in Jones, that the informant had previously given "correct information," but this Court in Jones never suggested that an averment of previous reliability was *582 necessary. Indeed, when the inquiry is, as it always must be in determining probable cause, whether the informant's present information is truthful or reliable, it is curious, at the very least, that MR. JUSTICE HARLAN would place such stress on vague attributes of "general background, employment . . . position in the community. . . ." (Post, at 600.) Were it not for some language in Spinelli, it is doubtful that any of these reputation attributes of the informant could be said to reveal any more about his present reliability than is afforded by the support of the officer's personal knowledge of the suspect. In Spinelli, however, the Court rejected as entitled to no weight the "bald and unilluminating" assertion that the suspect was known to the affiant as a gambler. 393 U. S., at 414. For this proposition the Court relied on Nathanson v. United States, 290 U. S. 41 (1933). But a careful examination of Nathanson shows that the Spinelli opinion did not fully reflect the critical points of what Nathanson held since it was limited to holding that reputation, standing alone, was insufficient; it surely did not hold it irrelevant when supported by other information. This reading of Nathanson is confirmed by Brinegar v. United States, 338 U. S. 160 (1949), in which the Court, in sustaining a finding of probable cause for a warrantless arrest, held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor. Such evidence would rarely be admissible at trial, but the Court took pains to emphasize the very different functions of criminal trials and preliminary determinations of probable cause. Trials are necessarily surrounded with evidentiary rules "developed to safeguard men from dubious and unjust convictions." Id., at 174. But before the trial we deal only with probabilities that "are not technical, they are the factual and practical considerations of *583 everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar, supra, at 175. We cannot conclude that a policeman's knowledge of a suspect's reputation—something that policemen frequently know and a factor that impressed such a "legal technician" as Mr. Justice Frankfurter—is not a "practical consideration of everyday life" upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer's knowledge of a suspect's reputation. III Quite apart from the affiant's own knowledge of respondent's activities, there was an additional reason for crediting the informant's tip. Here the warrant's affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased "illicit whiskey." These statements were against the informant's penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205 (a) (2), Title 26, United States Code, proscribes the sale, purchase, or possession of unstamped liquor. Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a "break" does *584 not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant's admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search. It may be that this informant's out-of-court declarations would not be admissible at respondent's trial under Donnelly v. United States, 228 U. S. 243 (1913), or under Bruton v. United States, 391 U. S. 123 (1968). But Donnelly's implication that statements against penal interest are without value and per se inadmissible has been widely criticized; see the dissenting opinion of Mr. Justice Holmes in Donnelly, supra, at 277; 5 J. Wigmore, Evidence § 1477 (3d ed. 1940), and has been partially rejected in Rule 804 of the Proposed Rules of Evidence for the District Courts and Magistrates. More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See Brinegar v. United States, supra, at 173. Whether or not Donnelly is to survive as a rule of evidence in federal trials, it should not be extended to warrant proceedings to prevent magistrates from crediting, in all circumstances, statements of a declarant containing admissions of criminal conduct. As for Bruton, that case rested on the Confrontation Clause of the Sixth Amendment which seems inapposite to ex parte search warrant proceedings under the Fourth Amendment. It will not do to say that warrants may not issue on uncorroborated hearsay. This only avoids the issue of whether there is reason for crediting the out-of-court statement. Nor is it especially significant that neither *585 the name nor the person of the informant was produced before the magistrate. The police themselves almost certainly knew his name, the truth of the affidavit is not in issue, and McCray v. Illinois, 386 U. S. 300 (1967), disposed of the claim that the informant must be produced whenever the defendant so demands. Reversed. MR. JUSTICE STEWART joins in Part I of THE CHIEF JUSTICE'S opinion and in the judgment of the Court. MR. JUSTICE WHITE agrees with Part III of THE CHIEF JUSTICE'S opinion and has concluded that the affidavit, considered as a whole, was sufficient to support issuance of the warrant. He therefore concurs in the judgment of reversal. MR. JUSTICE BLACK, concurring. While I join the opinion of THE CHIEF JUSTICE which distinguishes this case from Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), I would go further and overrule those two cases and wipe their holdings from the books for the reasons, among others, set forth in the dissent of Mr. Justice Clark in Aguilar, which I joined, and my dissent in Spinelli. MR. JUSTICE BLACKMUN, concurring. I join the opinion of THE CHIEF JUSTICE and the judgment of the Court, but I add a personal comment in order to make very clear my posture as to Spinelli v. United States, 393 U. S. 410 (1969), cited in several places in that opinion. I was a member of the 6-2 majority of the United States Court of Appeals for the Eighth Circuit in Spinelli v. United States, 382 F. 2d 871 (1967), which this Court by a 5-3 vote reversed, with the pivotal Justice concluding his concurring *586 opinion, 393 U. S., at 429, by the observation that, "Pending full-scale reconsideration of that case [Draper v. United States, 358 U. S. 307 (1959)], on the one hand, or of the Nathanson-Aguilar cases on the other, I join the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an evenly divided Court." Obviously, I then felt that the Court of Appeals had correctly decided the case. Nothing this Court said in Spinelli convinced me to the contrary. I continue to feel today that Spinelli at this level was wrongly decided and, like MR. JUSTICE BLACK, I would overrule it. MR. JUSTICE HARLAN, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting. This case presents the question of how our decisions in Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers. I cannot agree that the affidavit here at issue provided a sufficient basis for an independent determination, by a neutral judicial officer, that probable cause existed. Accordingly, I would affirm the judgment of the Court of Appeals. Five members of this Court, however, for four separately expressed reasons, have concluded that the judgment below must be reversed. Some of the theories employed by those voting to reverse are wholly unlike any of the grounds urged by the Government. *587 I Where, as in this case, the affiant states under oath that he has been informed of the existence of certain criminal activity, but has not observed that activity himself, a magistrate in discharging his duty to make an independent assessment of probable cause can properly issue a search warrant only if he concludes that; (a) the knowledge attributed to the informant, if true, would be sufficient to establish probable cause; (b) the affiant is likely relating truthfully what the informer said; and (c) it is reasonably likely that the informer's description of criminal behavior accurately reflects reality.[1] In the case before us, no one maintains that the magistrate's judgment as to elements (a) and (b) was not properly supported. Plainly the information set forth in the affidavit, if entitled to credit, establishes probable cause. And the magistrate was certainly entitled to rely on the agent's official status, his personal observation of the agent, and the oath administered to him by the magistrate in concluding that the affiant's assertions as to what he had been told by the informer were credible. The final component of the probable cause equation, here involved, is that it must appear reasonably likely that the informer's claim that criminal conduct has occurred or is occurring is probably accurate. Our *588 cases establish that this element is satisfied only if there is reason to believe both that the informer is a truthful person generally and that he has based his particular conclusions in the matter at hand on reliable data, Aguilar v. Texas, supra; Spinelli v. United States, supra, for it is not reasonable to invade another's premises on the basis of information, even if it appears quite damning when simply taken at face value, unless there is corroboration of its trustworthiness. The fact that the magistrate has determined that the agent probably truthfully reported what the informant conveyed cannot, of course, establish the credibility or reliability of the information itself. More immediately relevant here, our cases have established that where the affiant relies upon the assertions of confidants to establish probable cause, the affidavit must set forth facts which enable the magistrate to judge for himself both the probable credibility of the informant and the reliability of his information, for only if this condition is met can a reviewing court be satisfied that the magistrate has fulfilled his constitutional duty to render an independent determination that probable cause exists. Aguilar v. Texas, 378 U. S. 108 (1964); Spinelli v. United States, 393 U. S. 410 (1969). Cf. Giordenello v. United States, 357 U. S. 480 (1958); Nathanson v. United States, 290 U. S. 41 (1933); Whiteley v. Warden, 401 U. S. 560 (1971).[2] The parties are in agreement with these principles and have not urged that they be re-examined. Indeed, I think these precepts follow ineluctably from the constitutional command that "no Warrants shall issue, but upon probable cause." Whether, in this case, either of *589 these tests of the trustworthiness of the informer's tip has been met is, however, vigorously disputed. II Although the Court of Appeals did not address itself to this contention, respondent claims that the affidavit is insufficient to establish the reliability of the evidence upon which the informant based his conclusions. Of course, most of these data come from alleged direct personal observation of the informant, surely a sufficient basis upon which to predicate a finding of reliability under any test. However, respondent stresses that the allegation of direct observation of the criminal activity does not necessarily purport to embrace a period less than two weeks prior to the issuance of the search warrant. Moreover, the reliability of the source of the information that a purchase was made "within the past two days" is not established and, it is argued, the other information was too stale to support the issuance of a warrant. This argument is premised upon an overly technical view of the affidavit. The informant is said to have personally bought illegal whiskey from respondent "within the past 2 weeks," which could well include a point in time quite close to the issuance of the warrant. More importantly, the totality of the tip evidently reveals that the informer purported to describe an ongoing operation which he claimed he had personally observed over the course of two years. Giving due deference to the magistrate's determination of probable cause and reading the affidavit "in a commonsense and realistic fashion," United States v. Ventresca, 380 U. S. 102, 108 (1965), I must conclude that the affidavit sets forth sufficient data to permit a magistrate to determine that, if the informer was likely telling the truth, information adequate to support a finding of probable cause was likely obtained in a reliable fashion. *590 III I turn, then, to what the parties have treated as the crux of the controversy before us. Respondent contends, and the Court of Appeals so held, that the affidavit does not sufficiently set forth facts and circumstances from which the magistrate might properly have concluded that the informant, in purporting to detail his personal observation, was probably telling the truth. Conversely, the Government principally argues that two factors, singly or in combination, provided a factual basis for the magistrate's judgment that the tip was credible. First, the agent stated that he had "interviewed this person [and] found this person to be a prudent person." Second, the informant described the criminal activity in some detail and from his own personal knowledge.[3] A The Government's first contention misconceives the basic thrust of this Court's decisions in the Nathanson, Giordenello, Aguilar, Spinelli, and Whiteley cases, supra. The central proposition common to each of these decisions is that the determination of probable cause is to be made by the magistrate, not the affiant. That the agent-affiant determined the informer to be prudent cannot be a basis for sustaining this warrant unless magistrates are entitled to delegate their responsibilities to law enforcement officials. Nathanson held that an affidavit *591 to the effect that the affiant "has cause to suspect and does believe" that illicit liquor was located on certain premises did not sufficiently apprise the issuing magistrate of the underlying "facts or circumstances" from which "he can find probable cause." 290 U. S., at 47 (emphasis added). In Aguilar, a sworn assertion that the informant was "a credible person" was held insufficient to enable the magistrate to assess that conclusion for himself. Only two Terms ago, we held a warrant constitutionally defective because "[t]hough the affiant swore that his confidant was `reliable,' he offered the magistrate no reason in support of this conclusion." Spinelli v. United States, 393 U. S., at 416. Reading the assertion that the informer in this case was "prudent" in the broadest conceivable commonsense fashion, it does no more than claim he was "credible" or "reliable," i. e., that he was likely telling the truth.[4] Such an assertion, however, is no more than a conclusion which the Constitution requires must be drawn independently by the magistrate. What this portion of the affidavit lacks are any of the underlying "facts or circumstances" that informed the agent's conclusion and whose presentation to the magistrate would enable him to assess the probability that this determination was sufficiently plausible to justify authorizing a search of respondent's premises. B Nor do I think this void is filled by the fact that the informant claimed to speak from his personal knowledge. *592 It is true that in Nathanson the Court was not dealing with the sufficiency of the allegations respecting one or more of the above-described components of probable cause, but merely with a bare overall statement of the affiant that probable cause existed. Further, as the Government notes, our chief, but not sole, emphasis in Aguilar was upon the absence of any evidence communicated by the affiant from which a magistrate could infer that the confidant gathered his evidence from a reliable source. From this, the Government contends that Aguilar's reliability-of-the-informer test is not applicable in full force where, as here, it does seem clear that the sources of the informer's belief, if truthfully reported, were reliable. I think this argument makes too much of the circumstances of our previous cases. The central point of the discussion of probable cause in Aguilar is, as perhaps more precisely emphasized by our explicit twin holdings in Spinelli, see 393 U. S., at 416, that the two elements necessary to establish the informer's trustworthiness—namely, that the tip relayed to the magistrate be both truthful and reliable—are analytically severable. It is not possible to argue that since certain information, if true, would be trustworthy, therefore, it must be true. The possibility remains that the information might have been fabricated. This is why our cases require that there be a reasonable basis for crediting the accuracy of the observation related in the tip. In short, the requirement that the magistrate independently assess the probable credibility of the informant does not vanish where the source of the tip indicates that, if true, it is trustworthy. This is not to say, however, that I think the fact of asserted personal observation can never play a role in determining whether that observation actually took place. I can perceive at least two ways in which, in circumstances *593 similar to those of this case, that information might be taken to bear upon the informer's credibility, as well as upon the reliability of his sources of information. For example, to the extent that the informant is somehow responsible to the affiant, the fact of asserted personal observation might be of some value to a magistrate in assessing the informer's credibility. In such circumstances, perhaps a magistrate could conclude that where the confidant claimed to speak from personal knowledge it is somewhat less likely that the informant was falsifying his report because, if the search yields no fruit, when called to account he would be unable to explain this away by impugning the veracity or reliability of his sources. However, no such relationship is revealed in this case. Additionally, it might be of significance that the informant had given a more than ordinarily detailed description of the suspect's criminal activities. Although this would be more probative of the reliability of the information, it might also permissibly lead a magistrate, in an otherwise close case, to credit the accuracy of the account as well. I do not believe, however, that in this instance the relatively meager allegations of this character are, standing alone, enough to satisfy the credibility requirement essential to the sufficiency of this probable-cause affidavit. Reading this aspect of the affidavit in a not unduly circumspect manner, the allegations are of a character that would readily occur to a person prone to fabricate. To hold that this aspect of the affidavit, without more, would enable "a man of reasonable caution," Berger v. New York, 388 U. S. 41, 55 (1967), to conclude that there was adequate reason to believe the informant credible would open the door to the acceptance of little more than florid affidavits as justifying the issuance of search warrants. *594 C Some members of the Court would reverse the judgment below on the grounds that the magistrate might properly have credited the informant's assertions because they confessed to the commission of a crime. This rationale is advanced notwithstanding the Government's failure even to suggest it. Had this argument been pressed upon us, I would find it difficult to accept. First, the analogy to the hearsay exception is quite tenuous. The federal rule, although it is often criticized, is that declarations against penal interest do not fall within this exception. Donnelly v. United States, 228 U. S. 243 (1913). Moreover, because it has been thought that such statements should be relied upon by factfinders only when necessity justifies it, the rule universally requires a showing that the declarant cannot be produced personally before the trier of fact, C. McCormick, Evidence §§ 253, 257 (1954), an element not shown to be present here. See Part V, infra. Finally, we have not found any instance of the application of this rule where the witness declined to reveal to the trier of fact the identity of the declarant, presumably because without this knowledge it cannot be readily assumed that the declarant might have had reason to suspect the use of the statement would do him harm. Thus, while strict rules of evidence certainly do not govern magistrates' assessments of probable cause, it would require a rather extensive relaxation of them to permit reliance on this factor. And these rules cannot be completely relaxed, of course, since the basic thrust of Spinelli, Aguilar, Nathanson, Whiteley, and Giordenello, supra, is to prohibit the issuance of warrants upon mere uncorroborated hearsay. The simple statement by an affiant that an unspecified individual told the affiant that he and another had committed a *595 crime, where offered to prove the complicity of the third party, is little, if any, more than that. Secondly, the rationale for this exception to the hearsay rule is that the fact that the declaration was against the speaker's self-interest tends to indicate that its substance is accurate. 5 J. Wigmore, Evidence § 1457 (3d ed. 1940). But where the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government's general practice or as to the particular facts of this case, that the declarant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli, supra, at 425 (WHITE, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential. Thirdly, the effect of adopting such a rule would be to encourage the Government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the Government specifically eschews in its brief in this case upon the explicit premise that such persons are often less reliable than those who obey the law. Brief for the United States 14. In short, I am inclined to the view, although I would not decide the question here, that magistrates may not properly predicate a determination that an unnamed confidant is credible upon the bare fact that by giving information he also confessed to having committed a crime. More importantly at this juncture, it seems to me quite clear that no such rule should be injected into our federal jurisprudence in the absence of any representation by the Government that the factual assumptions underlying it do, indeed, comport with reality, and in the face of the Government's apparent explicit assertion, in this very *596 case, that those able to supply information sufficient to establish probable cause under such a new rule would tend to be less reliable than those who cannot. The necessity for this haste to embrace such a speculative theory, without any argument from those who will be affected by it, wholly escapes me. IV Finally, it is argued that even if the tip plus the affiant's assertion that the informant was "prudent" did not provide a reasonable basis for the magistrate's conclusion that the confidant was credible, two other factors would have sufficed. First, at some time in the past four or more years, in an abandoned house "under Harris' control," the local constable had located "a sizeable stash of illicit whiskey." While an assertion of "prior events within the affiant's own knowledge . . . indicating that the defendant had previously trafficked in contraband," ante, at 581, admittedly did not appear in the affidavit held insufficient in Spinelli, this hardly distinguishes that case in any purposeful manner. Surely, it cannot seriously be suggested that, once an individual has been convicted of bootlegging, any anonymous phone caller who states he has just personally witnessed another illicit sale (up to four years later) by that individual provides federal agents with probable cause to search the suspect's home. I can only conclude that this argument is a make-weight, intended to avoid the necessity of calling for an outright overruling of Spinelli. Secondly, the claim is made that a magistrate could conclude the confidant here was credible because the agent had "received numerous information from all types of persons as to [respondent's] activities." To rely on this factor alone, of course, is flatly inconsistent with Spinelli, where we held that "the allegation that Spinelli was `known' to the affiant and to other federal and local *597 law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision." Spinelli, supra, at 414. In the instant case, the affiant did not purport to "know" respondent was a dealer in illicit whiskey, nor did he identify the source of his information to that effect. Nevertheless, the contention is advanced that this aspect of Spinelli had "no support in our prior cases, logic, or experience," ante, at 583, and thus should be discarded. However, Nathanson held that "[m]ere affirmance of belief or suspicion is not enough" to establish probable cause for issuance of a warrant to search a private dwelling. 290 U. S., at 47. It is argued that Nathanson "was limited to holding that reputation, standing alone, was insufficient." Ante, at 582. But this is the precise problem here—only the respondent's reputation has been seriously invoked to establish the credibility of the informant, an element of probable cause entirely severable from the requirement that the confidant's source be reliable. See Parts I and III of this opinion. A narrower view of Nathanson is said to be confirmed by reading Brinegar v. United States, 338 U. S. 160 (1949), to have "held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor." Ante, at 582. But Brinegar itself was very carefully limited to situations involving the arrest of those driving moving vehicles, 338 U. S., at 174, 176-177, a problem that has typically been treated as sui generis by this Court. Further, the Court in Brinegar specifically held the arrest valid "[w]holly apart from [the agent's] knowledge that [the suspect] bore the general reputation of being engaged in liquor running." Id., at 170. While it is true that Jones v. United States, 362 U. S. 257, 271 (1960), cites the fact that the informant's *598 "story was corroborated by other sources of information," the opinion nowhere suggests that this factor, standing alone, would have been sufficient to enable a magistrate to assess the confidant's reliability. At least equal emphasis was placed upon the informant's previously proved veracity and his tangible proof of actual observation of the illegal activity. Thus, I conclude that Spinelli and Nathanson, without contradiction, stand for the proposition that the magistrate could not establish the likely veracity of the unidentified informant on the grounds that his story coincided, in unspecified particulars, with rumors circulated by unknown third parties. I am not certain what is meant by the claim that such a rule of law is illogical. It would, indeed, be illogical to argue that the agent could not have relied upon information as to respondent's reputation that he deemed credible and reliable in concluding that the informant had likely told the truth. But it was not the agent's task to determine whether a search warrant should issue. This was the magistrate's responsibility. As to the magistrate, I confess that I do not comprehend, where the issue is whether the confidant is to be believed, how the agent's assertion that he had "received numerous information from all types of persons as to [respondent's] activities," can, as a matter of logic or experience, be accurately described as other than "a bald and unilluminating assertion of suspicion." It is, at best, a conclusory statement that respondent had a deserved reputation as a dealer in illicit whiskey. The Fourth Amendment, I repeat, requires that such conclusions be drawn, from the underlying facts and circumstances, by the magistrate, not the agent. V The Government has earnestly protested that the result below, if permitted to stand, will seriously hamper the *599 enforcement of the federal criminal law. It is said that if this affidavit is insufficient to support the issuance of a search warrant, it will be extremely difficult to meet the Fourth Amendment's standards where the informer, although apparently quite credible, has never before given accurate information to law enforcement officers, especially where he, or the agent, is unwilling to have the informant's identity disclosed. It would, indeed, be anomalous if the Fourth Amendment dictated such results, for it surely was never intended as a hindrance to fair, vigorous law enforcement. Further, I think there is much truth in the Government's supporting assertion that the ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. "The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals." Government's Brief 14.[5] I do not, however, share the Government's concern that a judgment of affirmance would have such a constricting effect on legitimate federal law enforcement. For example, it would seem that such informers could often be brought before the magistrate where he could assess their credibility for himself. We cannot assume that the ordinary law-abiding citizen has qualms about this sort of cooperation with law enforcement officers. And I do not understand the Government to be asserting *600 that effective law enforcement will often dictate that the identity of informants be kept secret from federal magistrates themselves. Moreover, it will always be open to the officer to seek corroboration of the tip. Beyond these considerations, I do not understand why a federal agent, who has determined a confidant to be "reliable," "credible," or "prudent" cannot lay before the magistrate the grounds upon which he based that judgment. I would not hold that a magistrate's determination that an informer is "prudent" is insufficient to support the issuance of a warrant. To the contrary, I would only insist that this judgment be that of the magistrate, not the law enforcement officer who seeks the warrant. Without violating the confidences of his source, the agent surely could describe for the magistrate such things as the informer's general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like. VI This affidavit is barren of anything that enabled the magistrate to judge for himself of the credibility of the informant. We should not countenance the issuance of a search warrant by a federal magistrate upon no more evidence than that presented here. A person who has not been shown to possess any of the common attributes of credibility, whose name cannot be disclosed to a magistrate, and whose information has not been corroborated is precisely the sort of informant whose tip should not be the sole basis for the issuance of a warrant, if the constitutional command that "no Warrants shall issue, but *601 upon probable cause" is to be respected. And the assertion that such a person may be believed where he confesses that he is a criminal or where his statements dovetail with other, unspecified rumors carries its own refutation. With all respect, such an analysis bespeaks more a firm hostility to Aguilar, Nathanson, and Spinelli than a careful judgment as to the principles those cases reflect. Despite all its surface detail, this affidavit cannot be sustained without cutting deeply into the core requirement of the Fourth Amendment that search warrants cannot issue except upon the independent finding of a neutral magistrate that probable cause exists. For these reasons, I dissent. NOTES [*] We reject the contention of respondent that the informant's observations were too stale to establish probable cause at the time the warrant was issued. The informant reported having purchased whiskey from respondent "within the past 2 weeks," which could well include purchases up to the date of the affidavit. Moreover, these recent purchases were part of a history of purchases over a two-year period. It was certainly reasonable for a magistrate, concerned only with a balancing of probabilities, to conclude that there was a reasonable basis for a search. [1] Of course where, as here, the affiant provides information in addition to the informant's tip, the magistrate could alternatively find probable cause, without examining the tip, if he can conclude that (a) the affiant is probably telling the truth and (b) the affidavit apart from the tip is sufficiently informative to establish probable cause. See Spinelli v. United States, 393 U. S. 410, 414 (1969). Concededly, this latter element is not present here. Government's Brief 16. Without crediting the tip, the affidavit is insufficient. [2] Giordenello and Whiteley each involved an arrest warrant rather than a search warrant, but the analysis required to determine the validity of either is basically the same. [3] The Government makes brief reference to the assertion that the informant's verbal statement to the affiant was "sworn." Government's Brief 13 n. 2. I do not see how this affects the case. Surely there is no reason to suspect that this indicates the confidant anticipated potential perjury proceedings if he were subsequently proved a liar. Nor does that assertion reveal, in any meaningful sense, what sort of relationship this might have reflected or created between the agent and his informer. [4] The Court of Appeals in reversing respondent's conviction stated that "[t]he allegation that [the informant] is a `prudent person' signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility." 412 F. 2d 796, 797-798. I consider this a too restrictive construction of the affidavit and cannot accept that aspect of the reasoning of the Court of Appeals. [5] Of course, the magistrate was presented no evidence that this is, in fact, such a case. Indeed, the very allegations in the affidavit to the effect that the informant here had been a frequent purchaser from respondent would suggest that he "is, at least, someone who enjoys the confidence of criminals." The Government's argument, as I understand it, is that the affidavit in this case is typical of those that can be produced by agents who rely on first-time informers not bound up themselves in criminal activity. As I point out below, if this had been the situation here, and that fact had been communicated to the magistrate, this would be a very different case.

972 F.2d 1348 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.Ennis E. WHITE, Petitioner-Appellant,v.CITY OF SAN DIEGO, et. al., Respondent-Appellees. No. 91-55912. United States Court of Appeals, Ninth Circuit. Submitted July 27, 1992.*Decided Aug. 4, 1992. Before WRIGHT, FARRIS, and BEEZER, Circuit Judges. 1 MEMORANDUM** 2 Ennis E. White appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint prior to service and without prejudice. In his complaint, White alleged that the San Diego Police Department provided false information that was submitted at White's arraignment. The court held that the police officers were absolutely immune. We affirm. 3 In Demoran v. Witt, 781 F.2d 155 (9th Cir.1986), Demoran alleged that Witt, a California probation officer, filed an erroneous presentence report. We noted that "[c]ourts have extended absolute judicial immunity ... to officers whose functions bear a close association to the judicial process," id. at 156, and held that Witt was absolutely immune. In other words, parties who otherwise enjoy limited immunity enjoy absolute "quasi-judicial" immunity when their conduct relates to a core judicial function. See Antoine v. Byers & Anderson, Inc., 950 F.2d 1471, 1474 (9th Cir.1991) (immunity of court reporters), petition for cert. filed, No. 91-7604 (Mar. 11, 1992). 4 White alleges that the false information provided by the police officers--Detective Mike Conto in particular--was submitted at his arraignment. Based on the information, Pretrial Services recommended that White not be released pending trial. In providing the information to Pretrial Services, the police officers were implementing a judicial function. See id. White was able to contest the accuracy of the information at the arraignment proceedings. See Burns v. County of King, 883 F.2d 819, 823 (9th Cir.1989) (quasi-judicial immunity supported by availability of adversarial process and judicial supervision). 5 White argues that a pro se plaintiff must be given an opportunity to amend his or her complaint before it is dismissed. A pro se litigant must be given an opportunity to amend his complaint "unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (internal quotation omitted). The police officers were absolutely immune from damages arising out of the information that they provided to Pretrial Services. We understand White's arguments, but the deficiencies of his complaint could not have been cured by amendment. 6 AFFIRMED. * Pursuant to Ninth Circuit Rule 34-4, the panel unanimously finds this case suitable for disposition without oral argument ** This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-1109 ___________ Donald Kakaygeesick, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Ken Salazar, Secretary, United * States Department of Interior; * [UNPUBLISHED] George Skibine, Secretary of the * Bureau of Indian Affairs, * * Appellees. * ___________ Submitted: August 5, 2010 Filed: August 12, 2010 ___________ Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Donald Kakaygeesick appeals the district court’s1 adverse grant of summary judgment in his action under the Administrative Procedures Act (APA). Having carefully reviewed the record, we conclude that the November 2007 order of the Interior Board of Indian Appeals (IBIA) concluding that Kakaygeesick failed to 1 The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota. exercise due diligence in pursuing a land claim, was not arbitrary, capricious, an abuse of discretion, or otherwise inconsistent with the law. See South Dakota v. U.S. Dept. of Interior, 487 F.3d 548, 551 (8th Cir. 2007) (appellate standard of review and applicable legal standard under APA). Accordingly, the judgment of the district court is affirmed. See 8th Cir. R. 47B.2 ______________________________ 2 A July 2005 order from an administrative law judge (ALJ) “Determining Heirs and Decree of Distribution” is not properly before us because Kakaygeesick failed to appeal it to the IBIA. See 5 U.S.C. § 704 (judicial review of final agency action); 43 C.F.R. § 4.314(a) (no decision of ALJ will be considered final so as to constitute agency action subject to judicial review under § 704 unless it is has made effective by appeal to and decision by IBIA); Darby v. Cisneros, 509 U.S. 137, 153-54 (1993) (discussing prerequisite to judicial review under APA). -2- 

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00001-CR ______________________________ BENNIE LEE BENNETT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 06-0352X Before Morriss, C.J., Carter and Cornelius,* JJ. Memorandum Opinion by Justice Cornelius ________________________ *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment MEMORANDUM OPINION Bennie Lee Bennett was convicted of four offenses: attempted capital murder, felon in possession of a firearm, unlawfully taking a weapon from a police officer, and burglary of a building. A jury assessed Bennett's punishments at confinement for life, for twenty years, for ninety-nine years, and for twenty years, respectively. Bennett does not challenge the sufficiency of the evidence, but asserts trial court error in three respects: refusing to give a jury instruction on self-defense, refusing to give a jury instruction on the defense of necessity, and sustaining the State's challenge for cause against a veniremember. We overrule all these contentions and affirm the judgment. The facts, viewed most favorably to the State, are as follows. On the morning of April 18, 2006, a Marshall police officer, Lieutenant Ronald Rogé, discovered Bennett in a building owned by Marshall Pottery. An older model Ford truck was parked near the loading dock of the building. Rogé found several new, metal barbeque cooker lids in the bed of the truck. The lids were later found to match the barbeque cookers located inside the building. Also in the truck was a shirt with Bennett's name on it, along with some postal envelopes with Bennett's name on them, and a pair of bolt cutters. Rogé saw Bennett coming around a corner in the building. Rogé recognized Bennett and began to question Bennett about whether he had permission to be in the building. Bennett broke and ran. Rogé gave chase, but was unable to apprehend Bennett. Later that day, Rogé received information that Bennett might be found at Cole's Garage. Rogé arranged for Officer Brandon Rousseau to go to Cole's Garage to apprehend Bennett. Rogé was to follow Rousseau shortly afterward to act as his "back up." When Rousseau arrived at the garage, he decided to proceed alone even though Rogé had not arrived because he was afraid Bennett would get away before Rogé arrived. Bennett was seated in the back seat of a car that had two other men seated in the front seats. Rousseau approached the vehicle with his gun drawn and held to his side without his finger on the trigger. He asked Bennett to raise his hands. When Bennett failed to immediately respond to his request, Rousseau leveled his gun in Bennett's direction and repeated the request. Bennett then made some movement with his hands but did not hold them very high. Rousseau then told Bennett to get out of the car. Bennett did not immediately respond, but on Rousseau's second demand, it appeared to Rousseau that Bennett began "backing up." At that point, Rousseau opened the car door, reached in and grabbed Bennett's shirt, and started to pull him from the car. Bennett then came out of the car, lunging at Rousseau with both hands, going for Rousseau's gun. Rousseau ordered Bennett to stop, but he ignored the order. Rousseau was able to swing Bennett to the ground, where they struggled. At one point, Bennett pulled the trigger of the gun and shot Rousseau through the finger. When Rogé arrived, Rousseau had Bennett on the ground with his arm pinned down where he could not use the gun. Bennett had the gun in his hand with his finger on the trigger with the trigger depressed. Bennett was subdued and arrested. In Bennett's first point on appeal, he contends the trial court erred in failing to give the jury an instruction on self-defense. To be entitled to claim self-defense, a defendant must meet the requirements of Section 9.31 of the Texas Penal Code. That statute provides that, to justify the use of force to resist an arrest or search, even an illegal one, the officer, before the defendant offers any resistance, must use or attempt to use greater force than necessary to make the arrest or search; and the defendant must reasonably believe force is necessary to protect himself against the officer's use of greater force than necessary. Tex. Penal Code Ann. § 9.31 (Vernon 2003). Additionally, to claim self-defense at trial, the defendant must substantially admit that he committed the offense charged against him. Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999); Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd). Bennett was not entitled to an instruction on self-defense in this case. First, there is no evidence that Rousseau, who attempted to arrest Bennett, used excessive force. The evidence, viewed in the light most favorable to Bennett's defense, shows that, when Rousseau first approached the car Bennett occupied, he had his gun down and to his side, and his finger was not on the trigger. When he reached the car and saw Bennett was in the back seat, he leveled his gun and pointed it in Bennett's direction with his finger still not on the trigger. He then told Bennett to raise his hands. Bennett did not immediately do so, but then reluctantly partly raised his hands. Rousseau told Bennett to get out of the car. Bennett did not comply, but began to move in a way that looked to Rousseau as if he were trying to back up. Rousseau then reached into the car, took hold of Bennett's arm, and began to pull him out of the car. At that point, Bennett lunged at Rousseau and began scuffling with him, trying to pull the gun away. Thus, the actions of Rousseau, viewed in the light most favorable to Bennett, did not constitute excessive force under the circumstances. This is especially true when considered with the facts that Rousseau knew Bennett had tried to escape from detention earlier that day, had been previously convicted of felony escape, and was on community supervision. See Jackson v. State, 110 S.W.3d at 632; Evans v. State, 876 S.W.2d 459, 464 (Tex. App.--Texarkana 1994, no pet.). Second, Bennett did not admit the offense. He emphatically and repeatedly denied ever striking Rousseau or assaulting him in any way. He denied ever having the gun in his possession, or pulling the trigger, instead insisting that he was only trying to "get the gun away from me," and that the shooting of Rousseau in the finger was just an accident. He denied any intent to hurt Rousseau or any other law enforcement officer. He denied ever trying to take the gun away from the officer and use it to kill him. He said, "I was trying to keep the weapon away from me where it wouldn't harm me." As Bennett did not admit the offense, he was not entitled to an instruction on self-defense. See Jackson v. State, 110 S.W.3d at 631; Kimbrough v. State, 959 S.W.2d 634, 640 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). Bennett also contends the trial court erred in refusing to give the jury an instruction on the defense of necessity. The availability of the necessity defense is governed by Section 9.22 of the Texas Penal Code. That statute provides that conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; the desirability or urgency of avoiding the harm clearly outweighs the harm sought to be prevented by the laws proscribing the conduct; and a legislative purpose to exclude the justification does not otherwise plainly appear. Tex. Penal Code Ann. § 9.22 (Vernon 2003). In order to avail one's self of the necessity defense, one must not only produce evidence that he reasonably believed his conduct was immediately necessary to avoid imminent harm, but he also must substantially admit that he committed the charged offense. Young v. State, 991 S.W.2d at 839; Hubbard v. State, 133 S.W.3d 797, 801 (Tex. App.--Texarkana 2004, pet. ref'd). Bennett did neither. Officer Rousseau's actions in seeking to detain Bennett were not such as caused Bennett to reasonably believe his own actions were immediately necessary in order to avoid harm. And Bennett did not admit, but repeatedly denied, that he committed the offenses charged. His testimony was that he never had possession of the gun, he was not trying to take the weapon from Rousseau, he did not pull the trigger or otherwise harm Rousseau, and he had no intention to harm Rousseau, but would always submit to officers' arrests when they wanted him to. For all these reasons, the trial court did not abuse its discretion in refusing to give Bennett an instruction on the defense of necessity. In his last issue, Bennett contends the trial court erred in granting the State's challenge for cause against veniremember number 8, a Mr. Johnson. In voir-dire examination, Johnson initially testified that his religious beliefs would lead him to require the State to prove its case by "100%" instead of beyond a reasonable doubt as the law provides. Bennett contends Johnson was rehabilitated by defense counsel when he asked Johnson, "The question is would you hold the State to a higher burden than beyond a reasonable doubt?" Johnson answered, "Not the way he explained it." However, in other testimony, when asked if he could hold the State to the burden of beyond a reasonable doubt, Johnson answered, "I can't say for sure," and "I'm not sure." We cannot say the trial court abused its discretion in sustaining the State's challenge to Johnson. Johnson's testimony was ambivalent at best, and the overall sense of it was that he could not say for certain that he would follow the law as to the State's burden of proof. Moreover, even if it was error to excuse Johnson, Bennett was not harmed. The improper excusing of a member of the venire panel will constitute reversible error only if the error deprived the defendant of a lawfully constituted jury. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Bennett does not claim that he was not afforded a lawfully constituted jury. No reversible error is shown. For all the stated reasons, we affirm the judgment of the trial court. William J. Cornelius Justice *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment Date Submitted: May 14, 2007 Date Decided: July 11, 2007 Do Not Publish the fact-finder to determine.           It is well-established that a conviction may be based on the testimony of a single eyewitness. Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.—Texarkana 2004, pet. ref'd). Here, two eyewitnesses testified that Morgan was the person who robbed Springfield. This testimony was not too weak to support a finding of guilt beyond a reasonable doubt, and there is no contrary evidence of identity that is so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule Morgan's sole point of error.           We affirm the judgment.                                                                 Donald R. Ross                                                                 Justice   Date Submitted:      January 6, 2006 Date Decided:         January 12, 2006  Do Not Publish

777 F.Supp.2d 1245 (2011) ALABAMA CENTRAL CREDIT UNION, Plaintiff, v. CUMIS INSURANCE SOCIETY INC., et al., Defendants. No. CV-11-BE-0470-S. United States District Court, N.D. Alabama, Southern Division. April 8, 2011. *1246 Jeffrey L. Bowling, Bedford Rogers & Bowling PC, Russellville, AL, Stephen D. Heninger, Heninger Garrison Davis LLC, Birmingham, AL, for Plaintiff. John P. Scott, Jr., W. Drake Blackmon, Starnes Davis Florie LLP, Birmingham, AL, for Defendants. MEMORANDUM OPINION KARON OWEN BOWDRE, District Judge. This matter comes before the court on "Plaintiff's Motion for Remand" (doc. 5) and on Defendant William Joe Kiser, Jr.'s "Motion to Dismiss" (doc. 9). Both motions have been fully briefed and the court held a hearing on them on March 7, 2011. These motions required the court to assess whether Defendant Kiser was fraudulently joined for the purposes of defeating diversity jurisdiction. For the reasons stated on the Record and summarized below, the court finds that the Motion to Dismiss is due to be GRANTED and the Motion to Remand is due to be DENIED. The Plaintiff filed suit in Jefferson County Circuit Court against CUMIS Insurance Society, Inc. seeking to recover on a credit union bond. The Plaintiff claims CUMIS "breached the provisions of the Fidelity Bond ... by failing or refusing to cover and pay for losses sustained by Plaintiff as the result of a lack of faithful performance by Defendant William Joe Kiser," and that CUMIS "acted in bad faith in the intentional and/or reckless failure to properly investigate the claims *1247 made by Plaintiff under the Fidelity Bond." As to Defendant Kiser, Plaintiff contends that he "engaged in improper activities and a lack of faithful performance of his duties as a lending officer and Senior Vice-President by violating Plaintiff's loan policies and exposing Plaintiff to financial losses in his issuance/approval of the . . . loans." (Doc. 2, Ex. 1). The Defendants removed this case from state court, contending that non-diverse Defendant Kiser had been fraudulently joined to defeat diversity; but for his presence, the Defendants asserted jurisdiction pursuant to 28 U.S.C. § 1332. In its motion to remand, Plaintiff argues that it has a valid claim against Defendant Kiser and that he was not fraudulently joined. Both in the removal documents and in Defendant Kiser's motion to dismiss, the Defendants contend that Plaintiff has "no possibility" of establishing a cause of action against Defendant Kiser because the only claims against him are barred by the two-year statute of limitations of Alabama Code § 6-2-38. They contend that the cause of action accrued on the date of loss, October 17, 2007, making the claim filed against Defendant Kiser on January 3, 2011 time barred. While Plaintiff does not contest the date of loss, it contends that the applicable statute of limitations is six years because the claims against Defendant Kiser are for wanton conduct. See "Plaintiff's Response to Defendant's (Kiser) Motion to Dismiss and in Support of Plaintiff's Motion to Remand," at 4 (doc. 14). Instead of citing to the Alabama statute that contains the six-year statute of limitations (Ala.Code § 6-2-34), Plaintiff relies on a series of cases that applied the six-year statute of limitations for trespass to the person to claims of wanton conduct. See Carr v. Int'l Ref. & Mfg. Co., 13 So.3d 947 (Ala. 2009); McKenzie v. Killian, 887 So.2d 861 (Ala.2004); Walker v. Capstone Bldg. Corp., ___ So.3d ___, 2010 WL 1170094 (Ala.Civ.App.2010). While some language in those cases could be read to indicate that the statute of limitations for all wantonness claims is six years, the cases read in context do not go that far, and indeed, could not go that far. All three of these cases arose from allegations of wanton conduct based on trespass to the person resulting in injury. See McKenzie, 887 So.2d at 863 (alleging that wantonness claims grounded in trespass were governed by six-year statute of limitations of § 6-2-34(1)); Carr, 13 So.3d at 951, 954 (alleging that the defendants "acted willfully and/or wantonly, and committed trespass to the persons" and that their "wanton conduct . . . proximately resulted in [the plaintiffs'] physical injuries"); Walker, ___ So.3d at ___, 2010 WL 1170094, at *2 (alleging "that the statute of limitations applicable to wantonness claims is set forth in § 6-2-34(1), Ala.Code 1975, which provides that `[a]ctions for any trespass to person or liberty . . .' are subject to a six-year statute of limitations."). In all three cases, the courts applied the six-year statute of limitations found at § 6-2-34(1), which governs "[a]ctions for any trespass to person or liberty, such as false imprisonment or assault and battery." (emphasis added). In this case, Plaintiff does not allege that Defendant Kiser's actions in issuing loans in contravention of Plaintiff's policies somehow constituted a "trespass to the person or liberty." Instead, Plaintiff argues that its claims against Defendant Kiser fall within § 6-2-34(9): "actions upon any simple contract or specialty not specifically enumerated in this section." (emphasis added). The Plaintiff, however, cited to no case—and the court could find none— applying the six-year statute of limitations of subsection (9) to a claim of wanton conduct or defining "specialty." This *1248 court will not be the first to apply that subsection to extend the six-year statute of limitations beyond where the Alabama Supreme Court has applied it. Although Plaintiff argues that the six-year statute of limitations period applies to all wantonness claims, the court agrees with Judge Granade of the Southern District of Alabama that the cases on which Plaintiff relies do not go that far. See Chicago Title Ins. Co. v. Prosch, 2011 WL 250421 (S.D.Ala. Jan. 26, 2011). The Alabama courts have only extended the six-year statute of limitations to wantonness claims for personal injury involving trespasses under Alabama Code § 6-2-34(1). Id. at *6. As in Prosch, although Plaintiff contends that Defendant Kiser's actions were intentional, it has not explained or even argued that the claim constitutes a trespass to person or liberty. However, Plaintiff seeks to distinguish its argument from those made in Prosch by pointing to subsection (9) of § 6-2-34 as the provision applicable to its claim, an argument this court already rejected. Another reason for rejecting Plaintiff's argument that all wantonness claims carry a six-year statute of limitations lies in the statute itself. Section 6-2-34 reads: The following must be commenced within six years: (1) Actions for any trespass to person or liberty, such as false imprisonment or assault and battery; (2) Actions for any trespass to real or personal property; (3) Actions for the detention or conversion of personal property; (4) Actions founded on promises in writing not under seal; (5) Actions for the recovery of money upon a loan, upon a stated or liquidated account or for arrears of rent due upon a parol demise; (6) Actions for the use and occupation of land; (7) Motions and other actions against the sureties of any sheriff, coroner, constable, or any public officer and actions against the sureties of executors, administrators, or guardians for any nonfeasance, misfeasance, or malfeasance, whatsoever, of their principal, the time to be computed from the act done or omitted by their principal which fixes the liability of the surety; (8) Motions and other actions against attorneys-at-law for failure to pay over money of their clients or for neglect or omission of duty; and (9) Actions upon any simple contract or speciality not specifically enumerated in this section. The statute does not state on its face that it applies to all claims of wantonness or intentional conduct. The Alabama Supreme Court's discussion in McKenzie and Carr about intentional conduct and wantonness resulting in personal injury all arose in the context of distinguishing trespass to the person with a six-year statute of limitations from trespass on the case with a two-year statute of limitations. None of the other categories of causes of action listed in § 6-2-34 fits within the confines of a wantonness claim for personal injury. Interpreting a "trespass to person," traditionally an intentional tort, to include wanton conduct that causes personal injury falls within the purview of the Alabama Supreme Court. See Carr, 13 So.3d at 963 (J. Murdock dissenting) ("[O]ur own cases likewise hold that the types of claims described in § 6-2-34(1) involve intentional harm to the plaintiff." (citations omitted)). The Court in McKenzie, a case alleging trespass to the person, "abandoned any determination of whether the six-year statute of limitations applies based on the *1249 presence of direct force to cause the injury in a claim alleging wantonness." Carr, 13 So.3d at 953 (discussing McKenzie). The Court adopted the conclusion that "wanton conduct, resulting in injury, is actionable in trespass and governed by the six-year statute of limitations." Carr, 13 So.3d at 954 (citations and quotation marks omitted). Thus, under the interpretation given by the Alabama Supreme Court to "trespass to the person" in Alabama Code § 6-2-34(1), a plaintiff must allege wanton or intentional conduct by a defendant resulting in personal injury to trigger the six-year statute of limitations. As the present case demonstrates, not all allegations of wanton conduct necessarily implicate trespass to the person; indeed, not all wanton conduct results in injury to the person. Such wanton conduct that does not result in personal injury, then, cannot qualify as trespass to the person and, thus, cannot fall within the purview of § 6-2-34(1). Alabama law has long recognized that "[t]he distinction between a claim ex contractu and one ex delicto is found in the nature of the grievance. Where the wrong results from a breach of a promise, the claim is ex contractu. However, if the wrong springs from breach of a duty either growing out of the relationship of the parties, or imposed by law, the claim is ex delicto." Eidson v. Johns-Ridout's Chapels, Inc., 508 So.2d 697, 702 (Ala.1987) (quoting Jefferson County v. Reach, 368 So.2d 250, 252 (Ala.1978) (internal quotation marks omitted)), overruled on other grounds by McKenzie, 887 So.2d at 870; see also Braswell v. Conagra, Inc., 936 F.2d 1169, 1173 (11th Cir.1991) ("The Supreme Court of Alabama has long recognized that, while a defendant's failure ... to perform the act promised in a contract may give rise to an action ex delicto, such failure also gives rise to an action ex contractu when there is a breach of promise." (citations omitted)). The claims Plaintiff asserts against Defendant Kiser grow out of his former relationship to Plaintiff as Senior Vice-President and/or duties imposed at law, and thus, sound in tort—not based on personal injury or trespass to the person. As such, without any controlling authority to mandate a different result, the court finds these claims are controlled by the two-year statute of limitations at § 6-2-38. See Boyce v. Cassese, 941 So.2d 932, 945 (Ala.2006). As the Alabama Supreme Court noted, "[l]ike fraud claims, negligence and wantonness claims are governed by a two-year statute of limitations. See § 6-2-38, Ala. Code 1975." Boyce, 941 So.2d at 945. The Alabama Supreme Court decided Boyce two years after McKenzie, and the quoted language adds support to the finding that not all wantonness claims qualify for a six-year statute of limitations. See also Gilmore v. M & B Realty Co., 895 So.2d 200, 207-08 (Ala.2004) (decided a few months after McKenzie and applying the two-year statute of limitations to negligence and wantonness claims). Having determined that the six-year statute of limitations does not apply to Plaintiff's claims against Defendant Kiser, the court finds that the claims against him, brought more than two years after they accrued, are time barred. Because the statute of limitations bars the Plaintiffs claims against Defendant Kiser, the Plaintiff has no possibility of establishing a cause of action against the resident Defendant, and that Defendant, therefore, was fraudulently joined. See Russell Petroleum Corp. v. Environ Prods., Inc., 333 F.Supp.2d 1228, 1233 (M.D.Ala.2004). The only ground on which the Plaintiff challenges jurisdiction rests on the argument that it does have a proper claim against Defendant Kiser and that his presence defeats diversity jurisdiction. Having *1250 found against the Plaintiff on its claim against Defendant Kiser, the court specifically finds that the court has jurisdiction over this case as removed. Therefore, Plaintiffs Motion to Remand is due to be denied, and Defendant Kiser's Motion to Dismiss is due to be granted. A separate order will be entered. ORDER For the reasons stated on the Record at the hearing on March 7, 2011, and summarized in the Memorandum Opinion filed contemporaneously, the "Plaintiffs Motion for Remand" (doc. 5) is DENIED, and the Defendant William Joe Kiser, Jr.'s "Motion to Dismiss" (doc. 9) is GRANTED.

Order Michigan Supreme Court Lansing, Michigan March 30, 2011 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh 140576-7 Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly KIRT WREN, Personal Representative of the Brian K. Zahra, Estate of HIRAM DENT, Justices Plaintiff-Appellant, v SC: 140576-7 COA: 283726, 283727 Wayne CC: 04-425699-NH SOUTHFIELD REHABILITATION COMPANY, d/b/a GREAT LAKES REHABILITATION HOSPITAL, MOHAMMED S. SIDDIQUI, D.O., and ST. JOHN RIVERVIEW HOSPITAL, Defendants-Appellees. _________________________________________/ On order of the Court, the application for leave to appeal the January 5, 2010 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ., would grant leave to appeal. 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. March 30, 2011 _________________________________________ d0323 Clerk 

979 F.2d 1535 Certain Denkav.Woskow* NO. 91-2452United States Court of Appeals,Fifth Circuit. Nov 25, 1992 1 Appeal From: S.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a): 5th Cir.R. 34.2

654 F.2d 725 People of State of Ill. ex rel. Scottv.U. S. Dept. of Energy 80-1962 UNITED STATES COURT OF APPEALS Seventh Circuit 3/5/81 1 N.D.Ill. AFFIRMED

114 So.2d 893 (1959) STATE of Alabama and Tax Assessor of Jefferson County, v. LAMSON & SESSIONS COMPANY. 6 Div. 253. Supreme Court of Alabama. October 8, 1959. *894 John Patterson, Atty. Gen., Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellants. Martin & Blakey, Harold Williams and Donald L. Collins, Birmingham, for appellee. COLEMAN, Justice. The Tax Assessor of Jefferson County added to the ad valorem tax return of the appellee, taxpayer, an item listed as "20. Supplies, raw materials and manufactured articles of manufacturers, not including products manufactured within twelve months and stored at point of manufacture." in the assessed value of $229,100. Taxpayer appealed to the circuit court where ninety-five per cent of the additional assessment, being $217,645, was annulled and set aside. From the judgment of the circuit court, the tax assessor and the State have taken the instant appeal. Appellants insist that the trial court erred in holding that ninety-five per cent of the raw material inventory is not subject to ad valorem tax and is specifically exempt therefrom under Title 51, § 2, paragraph (I), Code 1940, which recites as follows: "The following property and persons shall be exempt from ad valorem taxation and none other: * * * (l) All raw material, including coke, produced during the current calendar year, when stocked at any plant or furnace, for manufacturing purposes in Alabama." This case is not concerned with the statutory requirement as to when the "raw material" was produced. As we understand the record, the State agreed that the material here in question was "produced during the current calendar year." For a condensed statement of the facts and the contentions of taxpayer, we quote the following excerpts from taxpayer's brief: "* * * Upon the evidence as presented to the trial court in accordance with the law and with sound logical reasoning, we most strongly insist that the trial court was correct in its holding. "The strongest argument of tax assessor in his brief, is to the effect that the statute applies only to material in its natural state. It is submitted that such is not the correct conclusion to be drawn from the statute. We come then to the question of what is the meaning of `raw material' within such statute. "The taxpayer is engaged in manufacturing bolts, nuts, rivets, special agricultural *895 implements, special products for stove manufacturers, special products for mines and special products for railroads, at its factory in Birmingham, Alabama. The basic materials used in its production process are bars or rods of iron or steel. The rods of steel are purchased primarily from TCI division of U. S. Steel, who manufacture(s) these rods or bars of steel. These steel rods, being a derivative of iron ore, cannot be classified as a raw material in its natural state, such as coal, iron ore, and other products actually taken from the earth. However, what is most compelling is the fact that such steel rods are the basic items employed by the taxpayer in its manufacturing processes. Therefore, whatever a steel rod might be as to TCI, it is a raw material to taxpayer." (Par. Added.) * * * * * * "The testimony of Mr. H. A. Frazer, production manager of taxpayer, with twenty-eight years of experience in his field, indicated that taxpayer's material is a special steel; that such steel material has a special chemistry for a particular use; that a steel company would not normally stock it; that it is produced on order, and that he did not know, specifically, of any use to which these inventory items could be put in their present form." Taxpayer's argument, in short, is that the legislature intended to exempt a manufacturer's basic material stocked for manufacturing purposes, whether such basic material is raw in the ordinary sense or not; that "raw material" is a relative term; and that which is a manufactured product to one taxpayer may be "raw material," within the meaning of the statute, to another taxpayer. The question in the case may be fairly stated as follows: Are the steel rods and bars, which are stored at taxpayer's plant for manufacturing purposes in Alabama, raw material, and, therefore, exempt from ad valorem tax under paragraph (l) of § 2, Title 51, Code 1940? We answer in the negative and hold that said roads and bars are not raw material within the meaning of the statute. Appellants state in brief, and correctly, so far as we have ascertained, that, as to construction of paragraph (l), supra, this is a case of first impression. We must undertake then, to construe the statute from its language and under applicable rules of construction. This court has said: "All `particular rules for construing statutes must be regarded as subservient to end of determining legislative intent.' * * * "The intention of the Legislature must primarily be determined from the language of the statute itself if it is unambiguous. * * * * * * * * * "The general rule is that where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. * * *." Dixie Coaches v. Ramsden, 238 Ala. 285, 287, 288, 190 So. 92, 94. We have found no definition of "raw material" in the statute. "* * * There is a generally accepted canon of statutory construction to the effect that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is accepted in popular everyday usage. * * *" Republic Steel Corp. v. Horn, 268 Ala. 279, 105 So.2d 446, 447; Ala.Digest, Statutes, "Raw" has been defined as: "Not cooked; as raw meat, raw fruit. In the natural state or approximately so; little changed by art; unwrought; unrefined; as raw material; * * *" Webster's New International Dictionary, 1925, page 1775. *896 Looking to the language of paragraph (l), supra, the statute grants exemption as to "raw material." If the legislature intended to grant exemption as to all "material" produced during current calendar year stocked for manufacturing purposes, why was the word "raw" used? The answer must be that only raw material was to be exempt, and material that was not raw should not be exempt. Immediately following the words "raw material," the words "including coke" were inserted. If the legislature intended to exempt all material stocked for manufacturing purposes, why was it felt necessary to expressly state that coke was to be included in the exempt material? Coke is defined as: "The solid left when a caking coal is deprived of its volatile constituents by heating in a retort or oven. It consists mainly of carbon, and is hard, porous, and gray with submetallic luster. It is much used in metallurgy, and also as a domestic fuel, etc." Webster's New International Dictionary, 1925, page 435. Appellee's witness, R. W. Mooty, a metallurgist with 35 years' experience, testified that coke is employed in refining iron ore. Coke is certainly not a raw material in the primary sense because it is not found in nature in the form of coke, but is a material made from coal. The legislature must have recognized this fact, recognized further that coke would not be considered as included within the term "raw material," and, in order to provide an exemption for coke, thought it necessary to expressly state that coke should be included as a raw material, although it would not ordinarily be so considered. Where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its operation all those things not expressly mentioned. Champion v. McLean, 266 Ala. 103, 112, 95 So.2d 82. Here the statute has expressly enumerated coke as a manufactured material which is to be included as a raw material. Under the rule of construction, the statute is to be construed as excluding from its operation all other manufactured materials not expressly mentioned. We think the language clearly shows that the legislature did not intend to include special clemistry steel rods and bars as raw material under paragraph (l), supra. If taxpayer's inventory of supplies is to be exempt from tax under the statute, the statute must show in clear and unambiguous terms the intention of the legislature to grant the exemption, "* * * for the right of taxation is essential to the existence of all governments, * * * and it is never to be presumed that this right is abandoned or surrendered unless it clearly appears that such was the intention. * * *" Stein v. Mayor, Aldermen and Common Council of Mobile, 17 Ala. 234, 239. "* * * `* * * "Taxation is the rule; exemption the exception." * * * When therefore it is claimed that by legislation any species of property, * * * is relieved from its just proportion of public burdens, the intention to release it ought to be expressed in clear and unambiguous terms; it ought not to be deduced from language of doubtful import, nor when there is room for just controversy as to the legislative intent. * * * A statute creating an exception from taxation, or substituting, for the benefit of an individual or a corporation, taxation less onerous than that which others must bear "belongs to a class of statutes in which the narrowest meaning is to be taken which will fairly carry out the intent of the Legislature." * * *'" Brown v. Protective Life Insurance Co., 188 Ala. 166, 168, 169, 66 So. 47; see also, Ala.Digest, Taxation, Giving full consideration to appellee's argument, we think the most that can be said is that it creates "room for just controversy as to the legislative intent." *897 The statute exempts "raw material." The taxpayer says that means to include "These steel rods" which "* * * cannot be classified as a raw material in its natural state." Under the rule of strict construction, the doubt must be resolved against taxpayer who seeks to enlarge the exemption to include material admittedly not in its natural state and which can be called "raw" only in the sense that from it taxpayer makes something else of different size and shape. In City of Henderson v. George Delker Company, 193 Ky. 248, 235 S.W. 732, decided in 1921 and relied on by appellee, the court held that taxpayer who finished and assembled parts into buggies was a manufacturer, and that the parts were "raw material" under the Kentucky statute. The court there said that "raw material" did not necessarily mean "crude material in its natural state," under the statute which exempted: "* * * `machinery and products in course of manufacture of persons, firms or corporations actually engaged in manufacturing and their raw material actually on hand at their plants for the purpose of manufacture,' * * *." 235 S.W. 732. The statute quoted contains no mention of any particular substance, such as "including coke," which is found in paragraph (l) of § 2, Title 51, Code 1940. This difference, we think, is sufficient to distinguish the cited Kentucky case from the case at bar. Moreover, the same Kentucky court, construing the same statute in 1943, decided that rough lumber, which had been made from logs by taxpayer and was held in stock for further processing, was not exempt as raw material. The 1943 opinion in pertinent part recites: "When raw material is converted by a factory into a finished product complete and ready for the final use intended, or so completed as that in the ordinary course of business it is ready to be put on the market for sale to any person wishing to purchase it, then it ceases to be raw material and becomes a manufactured product. * * * "Certainly, it was not intended by the Legislature to exempt from taxation an article completed, ready for and actually sold on the market for the use it was intended, merely because the company might further manufacture or process it at the instance of a customer. Tax exemption statutes are not favorites of the courts because they extend special privileges, hence they are strictly construed against those claiming their benefits. * * *" Stearns Coal & Lumber Company v. Thomas, 295 Ky. 808, 175 S.W.2d 505, 507. We have carefully examined the other cases cited by appellee. To discuss those authorities in detail would unduly lengthen this opinion. While the cited cases do contain expressions supportive of appellee's contentions, each of them, as it appears to us, can be distinguished from the instant case. The rods and bars here under consideration are made to order and vary as to diameter, cross-section, and length. Some bars or rods have chemical content different from that of other bars or rods, and are unquestionably manufactured products in the sense that iron ore has been refined, mixed with other elements, and shaped to fit varying specifications. They are clearly not in the same state as when found in nature, but have been made into something else by the hand of man. We are of opinion that the steel rods and bars which constitute taxpayer's inventory are not raw material within the meaning of the statute. The judgment of the circuit court is reversed and the cause is remanded. Reversed and remanded. LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur.

06-5571-cr United States v. Yannotti S.D.N.Y. Scheindlin, J. 04-cr-690 1 UNITED STATES COURT OF APPEALS FOR THE 2 SECOND CIRCUIT 3 4 August Term, 2007 5 (Argued: December 20, 2007 Decided: September 4, 2008 ) 6 7 Docket No. 06-5571-cr 8 9 UNITED STATES OF AMERICA, 10 Appellee, 11 – v. – 12 MICHAEL YANNOTTI, 13 Defendant-Appellant. 14 15 Before: KATZMANN, B.D. PARKER, and RAGGI, Circuit Judges. 16 Appeal from a judgment of conviction in the United States District Court for the Southern 17 District of New York (Scheindlin, J.) for racketeering conspiracy. See 18 U.S.C. § 1962(d). 18 Affirmed. 19 20 21 DIARMUID WHITE, White & White (Brendan White, 22 on the brief), New York, N.Y., for Defendant- 23 Appellant. 24 1  1 ELIE HONIG , Assistant United States Attorney (Katherine 2 Polk Failla, on the brief), for Michael J. Garcia, United 3 States Attorney for the Southern District of New York, 4 New York, N.Y., for Appellee. 5 6 BARRINGTON D. PARKER, Circuit Judge: 7 8 Michael Yannotti appeals from a judgment of conviction in the United States District 9 Court for the Southern District of New York (Scheindlin, J.). The jury convicted him of 10 conspiring to engage in racketeering in violation of the Racketeer Influenced and Corrupt 11 Organizations (“RICO”) Act. See 18 U.S.C. § 1962(d). The district court sentenced Yannotti 12 principally to 240 months’ incarceration. Yannotti’s appeal raises several issues. We consider 13 whether one of the counts of conviction was time-barred, whether the district court properly 14 admitted certain intercepted communications, and whether the evidence was sufficient to support 15 his conviction for racketeering conspiracy. We also review the reasonableness of his sentence. 16 We affirm. 17 BACKGROUND 18 On July 21, 2004, the government indicted Yannotti and his co-defendants, John Gotti Jr. 19 and Louis Mariani, alleging that they were members of the Gambino Crime Family,1 a 20 racketeering enterprise that engaged in, inter alia, extortion, extortionate extensions of credit, 21 securities fraud, as well as violent conduct including murder.2 Specifically, Yannotti was 22 charged with a substantive count of racketeering in Count One and with participating in a RICO 1 The indictment alleges that the Gambino Family operated through groups of individuals known as “crews.” Each “crew” was headed by a “capo” or “captain,” and consisted of “made” members who were also known as “soldiers.” 2 The jury failed to reach a verdict as to Gotti on three of the four counts naming him and acquitted him on one count. Following two subsequent mistrials, the government dismissed the remaining charges against him. Mariani was convicted on several counts. He was sentenced principally to 78 months’ imprisonment. 2  1 conspiracy that existed from the mid 1990s through 2004 in Count Two. See 18 U.S.C. 2 § 1962(c), (d). Count One specifically charged Yannotti with participation in four separate 3 predicate acts: Racketeering Act One charged Yannotti with conspiring to kidnap, kidnaping and 4 attempting to murder Curtis Sliwa; Act Two charged Yannotti with conspiring to murder and 5 murdering Robert Arena, and murdering Thomas Marenga; Act Three charged Yannotti with 6 attempting to murder Robert Tarantola and Act Seven charged Yannotti with loansharking, 7 specifically conspiring to make and collect extortionate extensions of credit throughout the 8 1990s. The aforementioned predicate acts were incorporated by reference in Count Two, along 9 with several other predicate acts, including securities fraud and extortion in the construction 10 industry, allegedly committed by Yannotti’s co-defendants in furtherance of the enterprise’s 11 affairs. Yannotti was also charged with murdering Arena and Marenga in aid of racketeering in 12 Counts Nine and Ten. 13 The government’s proof at trial included testimony from several members and associates 14 of the Gambino Crime Family, as well as from law enforcement officers. These witnesses 15 described Yannotti’s criminal activities as an associate of Family member Nicholas Corozzo, 16 whose crew was based in the Canarsie section of Brooklyn. In addition to Yannotti’s 17 loansharking activity, the government offered proof, primarily thorough Gambino Family 18 associate Andrew DiDonato, that Yannotti was involved in the 1987 shooting of Robert 19 Tarantola, an associate of the Colombo Crime Family, a rival criminal enterprise. Gambino 20 Family captain Michael DiLeonardo and soldier Joseph D’Angelo testified about Yannotti’s 21 involvement in a 1992 conspiracy to abduct and murder Curtis Sliwa, a radio host and founder of 22 the Guardian Angels, in retaliation for his public criticism of John Gotti, Sr., then head of the 23 Gambino Family. Finally, DiDonato and DiLeonardo testified that in 1996, Yannotti shot Robert 24 Arena and Thomas Marenga as a result of a conflict between Yannotti’s crew and members of 3  1 the Lucchese Crime Family, a rival criminal enterprise. In addition to testimonial evidence, the 2 government offered surveillance photographs, a beeper recovered at the scene of the Arena and 3 Marenga murders, records indicating that the beeper belonging to Yannotti, recorded 4 conversations between Yannotti and his loansharking customers, and additional loansharking 5 records. 6 During trial, two evidentiary issues arose that figure in this appeal. The first concerned 7 the admissibility of certain evidence secured as a result of a 1996 court authorized wiretap of a 8 cellular phone used by Corozzo and his associates in Florida. The affidavit in support of the 9 application averred that the phone was being used by Corozzo and “others yet unknown” in 10 furtherance of a racketeering conspiracy that engaged in loansharking and money laundering, 11 largely in New York. While the affidavit sought authorization to intercept conversations of 12 Corozzo and several other named individuals, it did not identify Yannotti among the anticipated 13 interceptees. It did, however, state that probable cause existed to suspect that “unknown others” 14 used the phone while engaging in illegal activity. 15 On April 22, 1996, the day that the application was approved, Corozzo left the cell phone 16 that was the subject of the application in Florida and returned to New York. The next day, the 17 FBI intercepted its first phone call from Yannotti made on the target phone. The government’s 18 initial ten-day progress report to the judge supervising the wiretap described two phone calls 19 made by Yannotti involving the collection of loansharking debts. The report explained that 20 “Michael Yannotti will be identified as a named interceptee [on the wiretap application] if an 21 extension affidavit is filed in this case.” Finally, the government informed the judge that it 22 believed that the phone would continue to be used by Yannotti, Corozzo, and unnamed others to 23 discuss the offenses described in the initial authorizing order. The government never intercepted 24 any phone calls from Corozzo or sought an extension of the wiretap, thus, Yannotti was never 4  1 formally named in the authorization. See United States v. Yannotti, 399 F. Supp. 2d 268, 270 2 (S.D.N.Y. 2005). 3 Before the start of the trial, Yannotti moved to suppress the two calls on the ground that 4 the agents had exceeded their authority in continuing to intercept calls well after learning that 5 Corozzo no longer possessed the phone. He argued that the agents were required to seek new 6 authorization to intercept his conversations and that the continued interception converted the 7 initial authorization into a general warrant proscribed by the Fourth Amendment. The district 8 court disagreed, pointing to the fact that the initial order permitted the interception not only of 9 Corozzo and others specifically named in the authorization, but also “others yet unknown”, and 10 consequently was not limited to the interception of calls placed by Corozzo himself. Yannotti, 11 399 F. Supp. 2d at 273. The court concluded that due to the easy mobility of cellular phones, the 12 government was not required to seek a new authorization each time that a new person used the 13 phone. Additionally, the government reasonably believed that the phone would continue to be 14 used as an instrument of the charged conspiracy while in Yannotti’s possession. Id. For these 15 reasons, the court concluded that the scope of the warrant and the reasonableness of the 16 government’s conduct posed no constitutional problems. 17 The second evidentiary issue relevant to this appeal concerned the admissibility of certain 18 lay opinion testimony and poses the question whether Andrew DiDonato, a government witness, 19 was properly allowed to interpret the two intercepted conversations involving Yannotti. 20 DiDonato first testified about his participation, and assistance to Yannotti, in the loansharking 21 conspiracy. He then explained that individuals who received extortionate loans usually made 22 weekly payments on the interest rather than on the principal and that the interest was usually 23 termed “points” by those involved in loansharking. In response to the government’s question 24 about the meaning of a loansharking victim’s statement to Yannotti that “I’m going to leave you 5 1 a two,” DiDonato testified that it meant “200 dollars” in interest. DiDonato also testified that the 2 intercepted conversations consisted of Yannotti seeking to collect a debt from an individual who 3 was “backed up on his payments.”3 Over objection, the court admitted this testimony after 3 The conversation that DiDonato was asked to interpret is as follows: YANNOTTI: Your [sic] way behind here. ...... ANDY: You got a calendar there? YANNOTTI: Not on me, but, uh, look, Monday’s gonna be six. ANDY: Okay. YANNOTTI: Altogether. What does that look like to you? ...... ANDY: I’ll call him by tomorrow and I’ll get together with him, and uh . . . I’ll see him . . . I’ll see him with six. YANNOTTI: Alright, then you’re good ‘till for three weeks. So three Monday’s from now. . . . . . . ANDY: And then that’ll leave us with what? Four? YANNOTTI: Two. ...... YANNOTTI: This . . . this Monday coming up will be six. ANDY: Okay. YANNOTTI: Alright, so then you’re fresh ‘till, you know . . . . At trial, the government asked DiDonato to describe what he had heard occur during the taped conversation: GOVERNMENT: And when they’re talking about getting calendars out, what is your understanding of what Michael Yannotti is telling this person named Drew or Andy? ...... DIDONATO: That he’s backed up on his payments 6  1 determining that DiDonato acquired his understanding of the conversation through personal 2 experience with loansharking. See Fed. R. Evid. 701. 3 At the conclusion of the government’s case, Yannotti moved for a judgment of acquittal 4 on Counts One and Two pursuant to Federal Rule of Criminal Procedure 29(a), arguing that the 5 government had presented insufficient evidence of his guilt. Further, he asserted that there was 6 insufficient proof that he had committed any predicate acts within the five-year statute of 7 limitations period. Yannotti claimed that most of the predicate acts alleged violent conduct 8 taking place in 1987, 1992, and 1996, all of which fell well outside of the statute of limitations. 9 See 18 U.S.C. § 3282(a) (“[N]o person shall be prosecuted, tried, or punished for any offense, not 10 capital, unless the indictment is found . . . within five years next after such offense shall have 11 been committed.”). With respect to the loansharking conspiracy, which was alleged to have 12 continued from 1993 to 2002, Yannotti argued that the evidence was insufficient to show either GOVERNMENT: What do you base that on? DIDONATO: I base that on coming this week will be six, then based on the other information here that said, well, after this, after you pay the six you’ll be starting off fresh, and looks like it’s three weeks. So to me it looks like a $200 a week interval. GOVERNMENT: That is for the jury to determine. ........ GOVERNMENT: Are you familiar with that term that Yannotti used, so all right, then you’re fresh, if you give him six now you’re fresh until, you know. Do you know what that term fresh means used in this context? DIDONATO: Not that particular term per se, but to me it means he’ll be even and won’t own any back money and he’ll be fresh to start again and start a new week off. 7  1 (1) that he participated in the conspiracy or (2) that the conspiracy continued into the limitations 2 period. The district court denied his motion. 3 The jury convicted Yannotti of engaging in the RICO conspiracy described in Count Two 4 but could not reach a verdict on the substantive RICO count described in Count One. On its 5 verdict sheet, the jury indicated that the government had proved that Yannotti conspired to 6 engage in loansharking, but had not proven the other racketeering predicate acts – – the 7 conspiracy to murder Arena, the murders of Arena and Marenga, or the attempted murder of 8 Tarantola. With respect to the racketeering act charging Yannotti with conspiring to kidnap, 9 kidnaping, and attempting to murder Curtis Sliwa, the jury found that the attempted murder was 10 not proven, but could not agree on whether the government proved the alleged conspiracy to 11 kidnap or Yannotti’s involvement in the kidnaping. The jury also acquitted Yannotti of the two 12 counts alleging violent conduct in aid of racketeering. 13 Following trial, the district court granted Yannotti’s renewed motion under Rule 29(c) for 14 a judgment of acquittal as to Count One. The court concluded that because there was insufficient 15 evidence that Yannotti had participated in loansharking after 1999, the loansharking conspiracy 16 – – the only predicate act for which Yannotti had been found guilty – – actually fell outside of the 17 five-year statute of limitations.4 United States v. Yannotti, 415 F. Supp. 2d 280, 289 (S.D.N.Y. 18 2005). The district court specifically found that the government had not proven that Yannotti 19 was involved in any loansharking activity after 1996 given that “[t]here were no recorded 20 conversations concerning loansharking after 1996, nor were any loansharking records found on 21 Yannotti at any time after 1996. Furthermore, Yannotti’s coconspirators . . . who, under the 4 As the district court noted, it was undisputed by the parties that the other predicate acts alleged against Yannotti – – the conduct involving Arena, Marenga, Sliwa and Tarantola – – fell outside of the statute of limitations. United States v. Yannotti, 415 F. Supp. 2d 280, 284 (S.D.N.Y. 2005). 8  1 Government’s own theory, provided Yannotti with loansharking money, were arrested in 2 December 1996, and were incarcerated for many years thereafter.” Id. at 288-89. 3 The government contended that the statute of limitations as to the substantive RICO 4 conduct had not expired because it was entitled to a presumption that Yannotti’s involvement in 5 the charged conspiracy continued until he demonstrated his withdrawal from, or abandonment of, 6 that conspiracy, citing United States v. Spero, 331 F.3d 57, 61 (2d Cir. 2003). The district court 7 disagreed, finding that this presumption could not continue indefinitely and that the government 8 failed to demonstrate that any of the conspirators engaged in loansharking on any date close to 9 the limitations period. Yannotti, 415 F. Supp. 2d at 290. The court concluded that “[g]iven the 10 facts presented here – – the length of the presumption, the proof that the co-conspirators in all 11 likelihood could not have continued with their illegal activities, and the absence of proof 12 regarding Yannotti’s loansharking activities within the limitations period . . . – – the presumption 13 alone is insufficient to sustain a conviction.” Id. at 291. For these reasons, the district court 14 dismissed Count One.5 15 However, the court denied Yannotti’s Rule 29(c) motion as to Count Two charging him 16 with participating in the RICO conspiracy. Yannotti argued that because the predicate acts 17 alleged against him fell outside of the statute of limitations, the government could not claim that 18 he timely participated in the conspiracy. The district court nevertheless determined that the 19 evidence established that “the activities of the Gambino Organized Crime Family continued into 20 the limitations period[,] . . . that Yannotti was a member of the conspiracy” and that there was no 21 evidence that Yannotti withdrew from the conspiracy. Id. at 292 (citing United States v. Persico, 22 832 F.2d 705, 713 (2d Cir. 1987) (“In order to convict a defendant of RICO conspiracy, only an 5 Because the government does not appeal the dismissal of Count One, we do not review the district court’s analysis of the legal insufficiency of the trial evidence as to this count. 9  1 agreement to commit two or more predicate acts, rather than the acts themselves, need be 2 proven.” (emphasis added))). The court found that the government had offered sufficient proof 3 that certain activities furthering the goals of the RICO conspiracy, specifically the charged 4 predicate acts of securities fraud and construction industry extortion by other members of the 5 enterprise, continued through 2002 and that Yannotti was responsible for the conduct of his co- 6 conspirators. Id. Thus, it held that Yannotti was not entitled to a judgment of acquittal despite 7 not being charged himself with the actual commission of timely racketeering acts. 8 The district court sentenced Yannotti in November 2006 and concluded that conduct 9 which the jury had not found proven by the government should, nevertheless, be considered in 10 calculating his applicable Guidelines range. The court acknowledged that the jury was unable to 11 reach a verdict on the charges surrounding the Sliwa assault and that it “was deeply split on the 12 issue with seven jurors out of twelve believing that there was proof beyond a reasonable doubt.” 13 However, the court determined that because one of the prosecution’s witnesses on this point was 14 credible and corroborated by another, only slightly less credible, witness, Yannotti’s participation 15 in the attack on Sliwa was supported by a preponderance of the evidence. Thus, Yannotti’s 16 involvement in the Sliwa activity could be considered relevant conduct for sentencing purposes. 17 Based on this finding, the court calculated Yannotti’s offense level at 36 and his Criminal 18 History Category at Level II, resulting in a Guidelines range of 210 to 262 months.6 It then 19 sentenced him to the statutory maximum of 240 months’ imprisonment, noting that Yannotti had 6 The district court calculated Yannotti’s base offense level as 32 for the kidnaping of Sliwa pursuant to U.S.S.G. § 2A4.1(a). It then enhanced the offense determination by four levels pursuant to U.S.S.G. § 2A4.1(b)(2) because the victim sustained life threatening bodily injury. After determining that the kidnaping resulted in the higher offense level in comparison with the other criminal conduct, the district court concluded that the level 36 calculation should stand. 10  1 been a long-time associate of the Gambino Family and had engaged in extensive illegal and 2 violent conduct in furtherance of that enterprise. This appeal followed. 3 DISCUSSION 4 Yannotti appeals his conviction and sentence on various grounds. He maintains 5 principally that the evidence was not legally sufficient to establish his conviction for RICO 6 conspiracy, the district court erred in admitting the contents of two intercepted phone calls and 7 allowing a witness to interpret those phone calls, one of the racketeering acts alleged in the 8 indictment was improperly vague, and the district court erred in rendering his sentence. We 9 review de novo a challenge to the sufficiency of the evidence and “affirm if the evidence, when 10 viewed in its totality and in the light most favorable to the government, would permit any rational 11 jury to find the essential elements of the crime beyond a reasonable doubt.” United States v. 12 Geibel, 369 F.3d 682, 689 (2d Cir. 2004). A defendant challenging his conviction on the basis of 13 the insufficiency of the evidence “bears a heavy burden.” United States v. Henry, 325 F.3d 93, 14 103 (2d Cir. 2003). Evidentiary rulings are reviewed for abuse of discretion. United States v. 15 Taubman, 297 F.3d 161, 164 (2d Cir. 2002). A district court’s factual findings are reviewed for 16 clear error. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005). The denial of a 17 motion to dismiss the indictment is reviewed de novo. United States v. Yousef, 327 F.3d 56, 137 18 (2d Cir. 2003). Finally, we review a district court’s sentence for its procedural and substantive 19 reasonableness. See Gall v. United States, 128 S. Ct. 586, 594-97 (2007); see also United States 20 v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). 21 I. 22 Yannotti first contends that the evidence supporting his conviction for participating in a 23 RICO conspiracy was legally insufficient. He asserts that he was not a member of the charged 24 RICO conspiracy which, he maintains, was defined by the pattern of racketeering alleged in the 11  1 indictment. Because there was no evidence that Yannotti engaged in the two timely acts of 2 racketeering found proved by the jury – – securities or construction industry fraud7 – – and 3 because the sole racketeering act committed by him – – loansharking – – fell outside the statute 4 of limitations, Yannotti maintains that the district court erred in sustaining his RICO conspiracy 5 conviction. He complains that, as support for its denial of his Rule 29(c) motion as to Count 6 Two, the district court improperly treated his alleged membership in the criminal enterprise – – 7 the Gambino Family – – as equivalent to membership in the charged conspiracy. Because the 8 RICO conspiracy was limited to specific predicate acts and involved conduct committed by 9 Gambino Family members to further their self-interests rather than the affairs “of any cohesive 10 Gambino family enterprise,” Yannotti argues that he should not be held liable for the acts of his 11 co-conspirators. 12 The government renews its argument that it is entitled to the presumption, first articulated 13 in United States v. Spero, that once the existence of the RICO conspiracy and Yannotti’s 14 membership in that conspiracy were established, Yannotti’s involvement continued until he 15 proved that he either withdrew from the conspiracy or it terminated. See Spero, 331 F.3d at 61. 16 Additionally, the government maintains that even if we do not apply the Spero presumption, the 17 evidence established that Yannotti participated in numerous racketeering activities attributable to 18 the enterprise and any lack of Yannotti’s involvement in the timely predicate acts alleged against 19 his co-conspirators is not dispositive of his connection to the conspiracy. 20 In assessing Yannotti’s sufficiency challenge, we are guided by precedent that 21 undermines Yannotti’s core argument that his conviction for RICO conspiracy cannot stand 7 It is uncontested that this conduct occurred within the limitations period. 12  1 absent proof of his personal involvement in a timely charged predicate act. We discuss this 2 precedent at the outset. 3 In United States v. Persico, we emphasized that “the agreement proscribed by section 4 1962(d) is [a] conspiracy to participate in a charged enterprise’s affairs, not [a] conspiracy to 5 commit predicate acts.” 832 F.2d at 713. To establish a RICO conspiracy, the government must 6 prove that a defendant agreed to participate in the affairs of the enterprise through a pattern of 7 racketeering activity. However, in Salinas v. United States, 522 U.S. 52 (1997), the Supreme 8 Court made clear that to establish this pattern, the government need not prove that the defendant 9 himself agreed that he would commit two or more predicate acts. See id. at 64 (noting that, 10 although the RICO statute “broadened conspiracy coverage by omitting the requirement of an 11 overt act; it did not, at the same time, work the radical change of requiring the Government to 12 prove [that] each conspirator agreed that he would be the one to commit two predicate acts”). 13 Indeed, Salinas held that to be found guilty of RICO conspiracy, a defendant need only know of, 14 and agree to, the general criminal objective of a jointly undertaken scheme. See id. at 63; see 15 also United States v. Ciccone, 312 F.3d 535, 542 (2d Cir. 2002) (stating that “a conspirator 16 charged with racketeering conspiracy need not commit or even agree to commit the predicate acts 17 . . . to be found guilty of the racketeering conspiracy, for it suffices that he adopt[] the goal of 18 furthering or facilitating the criminal endeavor” (internal citations and quotations marks 19 omitted)). 20 It is well-settled that a conspirator need not be fully informed about his co-conspirators’ 21 specific criminal acts provided that he agreed to participate in the broader criminal conspiracy 22 and the acts evincing participation were not outside of the scope of the illegal agreement. “A 23 conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every 24 part of the substantive offense. The partners in the criminal plan must agree to pursue the same 13  1 criminal objective and may divide up the work, yet each is responsible for the acts of each other.” 2 Salinas, 522 U.S. at 63-64 (internal citation omitted); see also United States v. Zichettello, 208 3 F.3d 72, 100 (2d Cir. 2000) (holding that “no rule” requires “the government to prove that a 4 [RICO] conspirator knew of all criminal acts by insiders in furtherance of the conspiracy” as long 5 as it shows that defendant possessed knowledge of “the general contours of the conspiracy”); 6 United States v. Rastelli, 870 F.2d 822, 828 (2d Cir. 1989) (stating that a defendant may agree to 7 join a RICO conspiracy without knowing the identities of “all the other conspirators” and without 8 “full knowledge of all the details of the conspiracy”). 9 With this precedent in mind, we reject Yannotti’s argument that the evidence was 10 insufficient to prove his participation in the charged RICO conspiracy. The government’s proof 11 convincingly established that the Gambino Crime Family was an enterprise whose members 12 routinely conducted its affairs through a nearly limitless range of racketeering activities, 13 including kidnaping, extortion, loansharking, and fraud. Yannotti does not dispute his 14 membership in the Gambino Family. Rather, he asserts that the government’s proof of his mid- 15 1990s involvement in loansharking on behalf of the Gambino Family was insufficient to prove 16 his agreement to the broader pattern of racketeering. The evidence, viewed in the light most 17 favorable to the government, supports a different conclusion. 18 Specifically, the evidence showed that Yannotti was formally inducted as a “soldier” into 19 the Gambino Crime Family at a ceremony in which inductees pledged themselves to use any 20 means necessary to further the objectives of the Family. A reasonable jury could certainly 21 conclude that when Yannotti agreed to participate in the affairs of the Gambino Family, he was 22 by no means limiting that participation to his own loansharking. Instead, it could have found that 23 Yannotti had agreed that he, and others, would engage in a jointly undertaken pattern of 24 racketeering activities reaching all of the predicates established by the government. Thus, the 14  1 fact that the government did not prove Yannotti’s specific knowledge of or participation in each 2 predicate act conducted by other members of the Gambino Family does not undermine the 3 sufficiency of the evidence establishing his conviction as to the charged RICO conspiracy. See 4 Salinas, 522 U.S. at 63-64; see also Ciccone, 312 F.3d at 542; Zichettello, 208 F.2d at 99-100. 5 To the extent Yannotti maintains that, even if the government proved his involvement in 6 the charged conspiracy, the statute of limitations required proof of his specific agreement to 7 commit predicate acts within five years of indictment, he conflates our precedent with respect to 8 substantive RICO and RICO conspiracy. Although a “substantive RICO charge is barred by 9 limitations as to any defendant unless that defendant committed a predicate act within the five- 10 year limitations period,” a RICO conspiracy “is complete, thus commencing the running of the 11 five-year statute of limitations, only when the purposes of the conspiracy have either been 12 accomplished or abandoned.” United States v. Salerno, 868 F.2d 524, 534 (2d Cir. 1989) 13 (emphasis in original). Accordingly, even if a defendant engaged in predicate conduct that 14 occurred outside of the statute of limitations, that defendant remains liable for RICO conspiracy 15 unless the evidence shows that the conspiracy concluded or he withdrew from that conspiracy 16 more than five years before the indictment. See id.; Persico, 832 F.2d at 713. This is because 17 once the government meets its burden of proof to establish a RICO conspiracy, “it is entitled to a 18 presumption that the conspiracy continued until [the] defendant demonstrate[s] otherwise.” 19 United States v. Spero, 331 F.3d at 61. 20 Yannotti relies on our dicta in a footnote in United States v. Bruno, 383 F.3d 65 (2d Cir. 21 2004) to suggest that Spero does not control because his association with the Gambino Family, 22 standing alone, is insufficient to toll the statute of limitations. In Bruno, we did not reach the 23 issue of “what implications a defendant’s continued membership in an ongoing organized crime 24 family may have on the statute of limitations for a RICO conspiracy charge.” Id. at 81 n.10. 15  1 Bruno involved a count charging the defendant with a substantive RICO violation in which four 2 of the five racketeering acts were committed outside of the limitations period and the defendants’ 3 conviction under the only timely act was unsupported by the evidence. Id. at 81. Here, however, 4 the securities fraud and construction extortion conspiracies established the charged RICO 5 conspiracy’s continuation well into the limitations period, and Yannotti does not challenge the 6 evidence proving those predicates. Further, for the reasons just discussed, the evidence permitted 7 a reasonable jury to conclude that these timely predicate acts by co-conspirators fell within the 8 broad pattern of racketeering activity through which Yannotti agreed that he and others would 9 conduct the affairs of the enterprise. Under these circumstances, and in the absence of any 10 evidence of Yannotti’s timely withdrawal, we conclude that the statute of limitations does not 11 preclude Yannotti’s conviction for RICO conspiracy. 12 II. 13 Yannotti also complains that the district court improperly admitted his phone 14 conversations because the government’s original wiretap application did not specifically name 15 him as a target. As previously noted, although the government was authorized to intercept 16 communications on a cell phone belonging to Corozzo, that authorization did not specifically 17 identify Yannotti. The government intercepted two calls in which Yannotti discussed his 18 loansharking activities. Yannotti maintains that this evidence, which he argued was 19 inadmissible, served as the government’s sole proof connecting him to the predicate act alleging 20 loansharking. 21 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides for court- 22 ordered interceptions of communications. 18 U.S.C. § 2518. The statute allows a court to 23 authorize a wiretap “if it determines, on the basis of the facts submitted by the applicant, that 24 there is probable cause to believe (1) that an individual was committing, had committed, or is 16  1 about to commit a crime; (2) that communications concerning that crime will be obtained 2 through the wiretap; and (3) that the premises to be wiretapped were being used for criminal 3 purposes or are about to be used or owned by the target of the wiretap.” United States v. Diaz, 4 176 F.3d 52, 110 (2d Cir. 1999). Intercepted communications are inadmissible if they were 5 “unlawfully intercepted,” intercepted pursuant to an authorization or approval that is “insufficient 6 on its face,” or intercepted not in conformity “with the order of authorization or approval.” 18 7 U.S.C. § 2518(10)(a). “In reviewing a ruling on a motion to suppress wiretap evidence, we 8 accord deference to the district court.” Because our role as an appeals court in reviewing the 9 issuance of a wiretap order “is not to make a de novo determination of sufficiency as if it were a 10 district judge, but to decide if the facts set forth in the application were minimally adequate to 11 support the determination that was made.” United States v. Miller, 116 F.3d 641, 663 (2d Cir. 12 1997) (internal quotation marks and brackets omitted) (alterations and omissions in original). 13 Given this deference, we find no error in the admission of the conversations. The 14 affidavit in support of the application did not solely request the interception of communications 15 made to and by Corozzo. Instead, it named Corozzo, six alleged associates and members of the 16 Gambino family, and “others as yet unknown.” In authorizing the interceptions, the court 17 determined that probable cause existed to believe that not only Corozzo, but also other unnamed 18 targets, would use the cellular phone to engage in illegal activities. The government is not 19 required to specify in the application each individual whose conversations may be intercepted. 20 Where, as here, the government is investigating numerous members of an extensive criminal 21 conspiracy, the government may not be able to identify in advance each person who will use the 22 phone for criminal purposes. In United States v. Figueroa, we held that “[a]t the outset of a 23 wiretap, surveillance under an order that authorizes interception of calls of ‘others as yet 24 unknown’ is not strictly limited to only those who are specifically named in the authorizing order 17  1 either as probable violators or as possible interceptees.”; Instead, “[t]he agents are required only 2 to make reasonable efforts to minimize their interceptions in light of all the relevant 3 circumstances.” 757 F.2d 466, 473 (2d Cir. 1985). Here, the order limited interception to 4 conversations which addressed conspiratorial activities and terminated “upon the attainment of 5 authorized objectives” or at the end of the thirty days; thus, it did not, as Yannotti avers, give the 6 government unfettered discretion to intercept phone calls unrelated to the alleged conspiracy. 7 Moreover, the order also required the government to submit regular reports to the supervising 8 judge “showing what progress has been made toward achievement of the authorized objectives 9 and the need for continued interception.” These restrictions were adequate safeguards that 10 foreclosed the possibility that the order could be transformed into a general warrant. 11 Additionally, the government had no reason to believe that Yannotti would indefinitely 12 maintain possession of the cell phone. Consequently, it acted reasonably in suspecting that 13 Corozzo would return to Florida and re-claim his phone. Regardless, as the government stated in 14 its progress report, it suspected that Yannotti’s intercepted conversation indicated that he had 15 used the phone in furtherance of the criminal activity identified in the initial application. Thus, 16 as the district court reasonably found, “although Corozzo no longer possessed the phone, there 17 was probable cause to believe that it remained an instrumentality of the alleged conspiracy.” 18 Yannotti, 399 F. Supp. 2d at 273. Under these circumstances, we agree with the district court’s 19 conclusion that the government did not exceed the wiretap authorization in its continued 20 interception of Yannotti’s calls. 21 III. 22 Yannotti next asserts that Andrew DiDonato, a government witness, provided 23 inadmissible opinion testimony which did not conform to the definition of lay testimony under 24 Federal Rule of Evidence 701 because it was based on DiDonato’s specialized knowledge as a 18  1 member of the Gambino Crime Family. DiDonato was allowed to testify about comments made 2 by Yannotti during the two intercepted phone conversations. Yannotti complains that the 3 government did not seek to admit this testimony as expert opinion testimony under Rule 702 and 4 that he was not afforded the protections provided by Federal Rule of Criminal Procedure 5 16(a)(1)(G). The government, on the other hand, claims that DiDonato was not an expert as 6 contemplated by Rule 702 because he acquired his particular knowledge about loansharking 7 through experience as a member of the conspiracy, rather than through specialized study or 8 training. 9 Under Rule 701, a lay witness’ testimony “in the form of opinions or inferences is limited 10 to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) 11 helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, 12 and (c) not based on scientific, technical, or other specialized knowledge within the scope of 13 Rule 702.” Fed. R. Evid. 701. A rational perception is one involving “first-hand knowledge or 14 observation.” United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992). The advisory note to 15 the 2000 Amendments to Rule 701 provides that “most courts have permitted the owner or 16 officer of a business to testify to the value or projected profits of the business, without the 17 necessity of qualifying the witness as an . . . expert. . . . Such opinion testimony is admitted not 18 because of experience, training or specialized knowledge within the realm of an expert, but 19 because of the particularized knowledge that the witness has by virtue of his or her position in the 20 business.” Fed. R. Evid. 701, advisory committee’s note. In contrast under Rule 702, a witness 21 purporting to offer expert opinion testimony must be first qualified to offer this testimony on the 22 basis of his knowledge, skill, or education. Fed. R. Evid. 702. 23 Although Yannotti challenges the admissibility of DiDonato’s testimony under Rule 701 24 only on the ground that it derived from specialized knowledge in contravention of the third 19  1 requirement under Rule 701, we conclude that DiDonato’s testimony easily met both the first and 2 second requirements under Rule 701, which are that the testimony be “rationally based on the 3 perception of the witness” and “helpful to a clear understanding of the witness’ testimony or the 4 determination of a fact in issue.” Id. 5 First, DiDonato’s testimony was rationally based on his own perception because it 6 derived from his direct participation in the loansharking activities of the charged enterprise, not 7 on participation in the loansharking activities of some unrelated criminal scheme.8 Second, there 8 is little question that DiDonato’s testimony was helpful to the jury. As we have explained in 9 another context, individuals engaging in illicit activities rarely describe their transactions in an 10 open or transparent manner and the government may call witnesses to provide insight into coded 11 language through lay opinion testimony. See United States v. Garcia, 291 F.3d 127, 139 (2d Cir. 12 2002). The conversation between Yannotti and the individual identified by the government as 13 “Andy” was cryptic and required interpretation. As discussed earlier, DiDonato explained that 14 the individual collecting the debts informed the loansharking victim about the amount of the 15 weekly interest by referring to a single number or “points.” DiDonato stated that in the phone 16 call with “Andy,” Yannotti was seeking exorbitant amounts of interest at regular intervals 17 ranging from two hundred to six hundred dollars. Given its discretion in such matters, the 18 district court did not err in allowing DiDonato to provide interpretative testimony because the 8 This distinction applies equally to evaluating the admissibility of agent testimony. An undercover agent whose infiltration of a criminal scheme has afforded him particular perceptions of its methods of operation may offer helpful lay opinion testimony under Rule 701 even as to co-conspirators’ actions that he did not witness directly. By contrast, an investigative agent who offers an opinion about the conduct or statements of conspirators based on his general knowledge of similar conduct learned through other investigations, review of intelligence reports, or other special training, does not meet the requirements of Rule 701 and must qualify as an expert pursuant to Rule 702. See United States v. Garcia, 413 F.3d 201, 216 (2d Cir. 2005). 20  1 “language on the tape [was] . . . punctuated with ambiguous references to events that are clear 2 only to the conversants.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988) (internal 3 quotation marks and alterations omitted). Accordingly, we find that DiDonato’s testimony met 4 the requirements of Rule 701 and was properly admitted as lay opinion testimony. 5 Mindful of making explicit the requirements for lay witness testimony in comparison to 6 expert testimony, we now conclude that where a witness derives his opinion solely from insider 7 perceptions of a conspiracy of which he was a member, he may share his perspective as to 8 aspects of the scheme about which he has gained knowledge as a lay witness subject to Rule 701, 9 not as an expert subject to Rule 702. See United States v. Rigas, 490 F.3d 208, 225 (2d Cir. 10 2007) (concluding the district court did not abuse its discretion in allowing a lay witness to 11 testify about an organization’s fraudulent financial conduct where that witness made first-hand 12 observations and was well aware of the organization’s financial misstatements). No different 13 conclusion is mandated by Rule 701's requirement that a lay opinion must be the product of 14 “reasoning processes familiar to the average person in everyday life,” and not “scientific, 15 technical, or other specialized knowledge.” United States v. Garcia, 413 F.3d 201, 216-17 (2d 16 Cir. 2005). While we do not profess that loansharking is an activity about which the average 17 person has knowledge, we find that the opinion DiDonato reached from his own loansharking 18 experience derived from a reasoning process familiar to average persons. In short, his opinion 19 did not depend on the sort of specialized training that scientific witnesses or statisticians rely 20 upon when interpreting the results of their own experiments or investigations. 21 IV. 21  1 Yannotti renews his pre-trial claim that subparts (b) and (c) of Racketeering Act Seven of 2 the indictment9 – – charging him with financing extortionate extensions of credit and conspiring 3 to make and collect extortionate extensions of credit – – violated Federal Rule of Criminal 4 Procedure 7(c) because they did not contain sufficient factual allegations. He maintains that 5 those portions of the racketeering act failed to allege sufficient facts and included overly broad 6 temporal and geographic spans by describing conspiratorial conduct occurring in both the 7 Southern and Eastern Districts of New York, and elsewhere with unnamed co-conspirators. The 8 district court denied his motion to dismiss the racketeering act, citing language from United 9 States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) and concluded that the indictment adequately 10 “track[ed] the language of the statute . . . and state[d] the time and place (in approximate terms) 11 of the alleged crime.”10 12 “An indictment is sufficient when it charges a crime with sufficient precision to inform 13 the defendant of the charges he must meet and with enough detail that he may plead double 14 jeopardy in a future prosecution based on the same set of events.” United States v. Stavroulakis, 15 952 F.2d 686, 693 (2d Cir. 1992). Moreover, “an indictment need do little more than to track the 9 The relevant portions of the indictment charged the following: (b) Conspiracy to Make Extortionate Extensions of Credit: From in or about 1993, up through and including in or about 2002, in the Southern District of New York, the Eastern District of New York, and elsewhere, Michael Yannotti . . . and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to make extortionate extensions of credit; . . . (c) From in or about 1993, up through and including in or about 2002, in the Southern District of New York, the Eastern District of New York, and elsewhere, Michael Yannotti . . . and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to participate in the use of extortionate means to collect and attempt to collect extensions of credit. 10 Yannotti’s pre-trial motion related to the inadequacy of the allegations provided in Racketeering Act Ten. The government subsequently renumbered this Act as Seven. 22  1 language of the statute charged and state the time and place (in approximate terms) of the alleged 2 crime.” United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). Federal Rule of Criminal 3 Procedure 7(c) requires only that an indictment be “a plain, concise, and definite written 4 statement of the essential facts constituting the offense charged.” 5 The contested portions of the racketeering act provided Yannotti with sufficient notice of 6 the allegations regarding loansharking so that he could defend against those allegations in the 7 instant prosecution and in any future prosecutions. Additionally, the government provided 8 Yannotti with discovery, including the tapes, records, and names of participants associated with 9 the loansharking conspiracy. Yannotti was well aware of the government’s theory of the 10 loansharking conspiracy as well as the identities of any victims and co-conspirators, even if that 11 information was not pled in the indictment. Moreover, despite Yannotti’s contentions, 12 Racketeering Act Seven makes clear the nature of the criminal conduct, the time span, and the 13 location where this conduct occurred. Since Rule 7(c) requires no more, we find that the 14 allegations in the indictment are sufficient. 15 16 V. 17 Finally, Yannotti challenges the sentence imposed by the district court as unreasonable 18 because it was based on the court’s unsubstantiated finding that he committed the kidnaping and 19 attempted murder of Curtis Sliwa alleged in Racketeering Act One. The jury found that the 20 government had not proven Yannotti’s involvement in Sliwa’s attempted murder, but could not 21 agree on whether the government had proven his participation in the conspiracy to kidnap or the 22 kidnaping of Sliwa. The jury also found unproven all of the other charged racketeering acts with 23 the exception of Racketeering Act Seven – – the loansharking conspiracy. 23  1 In calculating the sentence under the now advisory Sentencing Guidelines, the Probation 2 Officer determined in the Presentence Investigation Report that Yannotti’s base offense level for 3 his racketeering conspiracy conviction was 19 pursuant to U.S.S.G. § 2E1.1(a)(1), leaving to the 4 discretion of the district court any application of relevant conduct adduced at trial. The Probation 5 Officer further calculated his Guidelines range as 37-46 months’ imprisonment and 6 recommended a sentence of 41 months. During the sentencing proceeding, in response to the 7 court’s question about the impact of relevant conduct on Yannotti’s sentence, defense counsel 8 requested that conduct found unproven by the jury not be reviewed by the court. The 9 government retorted that all conduct presented at trial could be considered, given the credibility 10 of its witnesses as well as the multitude of evidence established concerning Yannotti’s 11 participation in the Sliwa kidnaping. The district court ultimately found that this activity, while 12 not proved to the satisfaction of a unanimous jury, had nonetheless been established by a 13 preponderance of the evidence and could be factored into Yannotti’s sentence as relevant conduct 14 pursuant to U.S.S.G. § 1B1.3. 15 Yannotti contends that procedural error occurred in the sentencing court’s approach. He 16 argues that the jury’s finding of his participation in the RICO conspiracy did not authorize the 17 court, when determining his Sentencing Guidelines range, to place any weight on his 18 involvement in the Sliwa assault. Moreover, he challenges the court’s employment of a 19 preponderance of the evidence, as opposed to a reasonable doubt, standard in finding him 20 responsible for the Sliwa assault. In support, he points to U.S.S.G. § 1B1.2(d) which provides 21 that a “conviction on a count charging a conspiracy to commit more than one offense shall be 22 treated as if the defendant had been convicted on a separate count of conspiracy for each offense 23 that the defendant conspired to commit.” Yannotti argues that, in light of this provision, his 24  1 Guidelines range for participation in a RICO conspiracy should be calculated based only on 2 predicate conduct that a fact-finder found him to have engaged in beyond a reasonable doubt. 3 We disagree with Yannotti on this issue of first impression in our circuit. 4 Yannotti’s argument depends on a construction of U.S.S.G. § 1B1.2(d) that would require 5 each predicate act alleged as part of a RICO conspiracy to be treated as a separate object of the 6 criminal agreement to be factored into a Sentencing Guidelines calculation only if that act was 7 proved beyond a reasonable doubt. However, he improperly assumes that multiple racketeering 8 predicates can transform a RICO conspiracy into the multi-object conspiracy referenced in 9 U.S.S.G. § 1B1.2(d) . 10 As Yannotti acknowledges, the RICO conspiracy with which he was charged had only 11 one object – – to conduct or participate in the affairs of the charged enterprise, the Gambino 12 Crime Family, through a pattern of racketeering. See 18 U.S.C. § 1962(c), (d). While the 13 intended pattern of this conspiracy may have involved a variety of criminal conduct, including 14 construction fraud, loansharking, kidnaping, and attempted murder, the underlying objective of 15 the conspiracy remained the singular one proscribed by § 1962(c). Indeed, to secure Yannotti’s 16 conviction for RICO conspiracy, the government was not required to prove the actual 17 commission of a single predicate act by Yannotti or any other conspirator. See Salinas, 522 U.S. 18 at 64 (noting that “[t]he RICO conspiracy statute, § 1962(d), broadened conspiracy coverage by 19 omitting the requirement of an overt act”). The underlying predicate acts are relevant merely to 20 establish the existence of the charged agreement among members of the conspiracy to conduct 21 the affairs of the enterprise through a pattern of racketeering conduct11 and do not constitute 11 Although the same predicate acts may be charged with respect to both substantive and RICO conspiracy counts, the jury inquiry may be different. In deciding whether a defendant is 25  1 separate criminal objectives. See United States v. Corrado, 227 F.3d 528, 542 (6th Cir. 2000). 2 Because overt acts are not distinct offenses that must be proven to sustain a RICO conspiracy 3 conviction, and the RICO conspiracy charged in this case is appropriately viewed as single-object 4 conspiracy, we now join the First and Sixth Circuits in concluding that U.S.S.G. § 1B1.2(d) is 5 inapplicable.12 See Corrado, 227 F.3d at 541; United States v. Carrozza, 4 F.3d 70, 79 (1st Cir. 6 1993). Thus, a sentencing court may consider predicate acts as relevant conduct under U.S.S.G. 7 § 1 because their commission need not be proven beyond a reasonable doubt. 8 Given our finding that the predicate acts alleged against Yannotti do not require proof 9 beyond a reasonable doubt to sustain his RICO conspiracy conviction, the kidnaping conduct was 10 properly viewed by the district court as relevant conduct. We have consistently emphasized that 11 a district court may consider all information adduced during trial, including acquitted conduct, 12 when sentencing a defendant. See United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir. 2005). 13 While a fact-finder is required to find guilt beyond a reasonable doubt, the sentencing court may guilty of substantive RICO, the jury identifies predicate acts committed by that defendant to determine if he has himself conducted the affairs of the enterprise through a pattern of racketeering. However, in deciding whether a defendant is guilty of RICO conspiracy, the jury identifies whether the charged predicate acts were, or were intended to be, committed as part of that conspiracy. Thus, the jury must consider these acts to determine whether the co- conspirators, not solely the defendant, agreed to conduct the affairs of the enterprise through a pattern of racketeering. As stated previously, to prove a defendant’s membership in the agreement, the government need not prove that the defendant committed or agreed to commit any of the charged predicate acts as long as the government proves that he participated in some manner in the overall objective of the conspiracy. See Salinas, 522 U.S. at 64; see also L. Sand, et al. Modern Federal Jury Instructions, (Criminal) Inst. 52-32 (2000) (providing that jury be instructed as to predicate acts charged in RICO conspiracy: “Again, the government must prove that two of these acts were, or were intended to be, committed as part of the conspiracy, although it need not prove that defendant committed or agreed to commit any of these acts as long as the government proves that defendant participated in some manner in the overall objective of the conspiracy.”). 12 In so holding, we reject the approach taken by the Eleventh Circuit in United States v. Farese, 248 F.3d 1056, 106-61 (11th Cir. 2001). 26  1 find facts relevant to sentencing by the lower preponderance of the evidence standard. Id. 2 Therefore, there was no clear error in the court concluding that based on a preponderance of the 3 evidence, Yannotti’s involvement in the assault on Sliwa could be taken into account in 4 sentencing. 5 The district court was in the unique position to consider the credibility of the witnesses 6 and to conclude, as it did, that two of the government’s witnesses had been particularly credible 7 in their testimony about Yannotti’s participation in the Sliwa kidnaping. The court appropriately 8 considered the Guidelines and the factors specified under 18 U.S.C. § 3553(a) and sentenced 9 Yannotti within the Guidelines range. We conclude that Yannotti’s sentence was both 10 procedurally and substantively reasonable. 11 12 13 CONCLUSION 14 The judgment of the district court is affirmed. 27 

139 P.3d 350 (2006) 157 Wash.2d 1007-1016 AMERICAN DISCOUNT CORP. v. SHEPHERD. No. 77974-1. Supreme Court of Washington, Department II. July 7, 2006. Disposition of petition for review granted.

616 F.2d 328 Kathy BRIGHT and Susan Barber, Plaintiffs-Appellants,v.BALL MEMORIAL HOSPITAL ASSOCIATION, INC., Defendant-Appellee. No. 79-1134. United States Court of Appeals,Seventh Circuit. Argued June 14, 1979.Decided Feb. 21, 1980. 1 Kenneth J. Falk, Legal Services Organization, Muncie, Ind., for plaintiffs-appellants. 2 Jon H. Moll, Muncie, Ind., for defendant-appellee. 3 Before TONE and BAUER, Circuit Judges, and WILL, Senior District Judge.* 4 WILL, Senior District Judge. 5 Appellants Kathy Bright and Susan Barber seek reversal of the district court's determination that appellee Ball Memorial Hospital Association, Inc. ("Ball Memorial" or "Hospital") was not a "creditor" within the meaning of the Truth in Lending Act ("Act"), 15 U.S.C. §§ 1601, et seq., and seek a further determination that Ball Memorial violated the provisions of the Act as to them. For the reasons stated, we affirm the district court's judgment on grounds other than those relied upon by the district court. BACKGROUND 6 Ball Memorial is a not-for-profit hospital incorporated under the laws of the State of Indiana. Located in Delaware County, Indiana, Ball Memorial serves its own and four surrounding counties and operates as the primary referral hospital for East Central Indiana. It is a general public hospital, admitting all persons without regard to ability to pay. 7 Upon admission to the hospital, inpatients are shown and asked to sign an "Initial Credit Disclosure Statement and Consent to Treatment" form. The Initial Credit Disclosure Statement initially states: "You are requested to remit the balance due on your account with the hospital at the time of discharge." This Statement further sets forth, however, conditions under which an inpatient may pay the account balance in installments "IF IT IS NECESSARY" for the patient to use such a procedure. The conditions include the imposition of a "FINANCE CHARGE of 3/4% per month on any unpaid balance, unpaid for more than thirty (30) days." Similarly, one of the pamphlets contained in the "Hospital Patient Guide" given to each inpatient informs the patient that the account is "payable at the time of your discharge," but also informs the patient that, if unable to pay the entire bill, 8 you or your relative must be prepared to talk with the credit manager . . . to make satisfactory credit arrangements. Our credit department will discuss with you financial arrangements and will set up the payment of your account according to your ability to pay. 9 This pamphlet also makes "FINANCIAL DISCLOSURE" of a "FINANCE CHARGE" which "will be added to all uncollected or past due accounts." 10 Pursuant to these written directives and additional oral instructions, Ball Memorial will make arrangements, prior to discharge, with inpatients without insurance or other third-party coverage who are unable to pay the bill in full upon discharge such that an installment payment schedule is established. These schedules sometimes call for payment in more than four installments. Regardless of whether the agreements contemplate more than four installments, a 3/4% monthly charge is assessed on the outstanding account balance each month while the installments are paid. Patients making these arrangements subsequently receive from the Hospital an initial bill and a coupon book embodying the installment plan arranged, and subsequently receive monthly statements of their balances as the installments are paid. They do not receive the billing statements which are described in Ball Memorial's general billing cycle, infra. 11 Inpatients not making such installment payment arrangements at the time of discharge receive an initial bill from Ball Memorial on the fourth day after discharge which delineates the specific charges assessed to their accounts. On the reverse side of this initial bill is a schedule of information headed "FINANCE CHARGE," which advises the patient that a "FINANCE CHARGE" of 3/4% per month or a 50cents "HANDLING CHARGE," whichever is greater, will be added to any unpaid balance of 30 days or more, but that no such charge would be imposed if the bill were paid in full within 30 days. The schedule concludes by stating that "All charges are in compliance with the Truth and (sic) Lending Act and Uniform Consumer Credit Code." 12 If an inpatient has not made payment arrangements with the Hospital, on the eighteenth day after discharge the patient is mailed the first billing statement which indicates the total amount due. On its face, the statement states: "Your account is now due and payable. Please remit today." This statement, as do all subsequent statements, also bears the language: "Payment is due in full when service is rendered." On its reverse side, the statement contains a schedule of information headed "FINANCE CHARGE" which is identical to the schedule of information contained on the reverse side of the initial bill, except for the addition of the following: 13 9) The chart below demonstrates the minimum monthly payment required 14 under Ball Memorial Hospital's credit policy. 15 ------------------------------------------------------------------------------- IF YOUR OVER ORIGINAL BALANCE IS 10-200 201-300 301-400 401-500 501-600 601-700 701-800 800 ------------------------------------------------------------------------------- YOUR MINIMUM MONTHLY PMT IS 10 15 20 25 30 35 40 5% ------------------------------------------------------------------------------- 16 10) You may pay a larger part or all of the balance of your account at any 17 time. 18 Where no payment arrangements have been made, on the forty-eighth day after discharge the patient is mailed a second billing statement identical to the first in all respects except that the face now bears the language: "No doubt you have overlooked payment of your account, please make your remittance now." It is at the forty-eighth day that Ball Memorial considers an account to be delinquent. If payment in full is received before this time, the monthly charge which would have been assessed on the first month is waived. At this point, the monthly charge of 3/4% of the unpaid balance or 50cents is first assessed. 19 If no payment arrangements are made, Ball Memorial mails a third statement on the sixty-second day after discharge. This statement is identical to the first two, except it bears the language: "We are surprised that you continue to ignore your past due account. We must insist on immediate payment." Along with this statement, inpatients automatically receive a coupon book, dividing the patient's obligation into monthly installment payments along lines consistent with the table set forth above. If at this point the patient begins making payments pursuant to the coupon book, the patient does not receive the fourth or fifth statements discussed below. Rather, the patient will receive a monthly statement showing the payments received, the monthly charges imposed, and the balance due. These bills are on forms identical to those used for inpatients who arranged installment payment schedules prior to their discharge from the Hospital, and continue until the bill is paid in full. 20 On the seventy-sixth day after discharge, a patient who has not arranged to pay his bill or begun making installment payments is mailed the fourth statement. This statement is identical to the first three, except it now bears the language: "It is apparent that you have ignored all our previous notices. If there is any reason for delay of your payment contact this office now." A fifth and final statement is mailed on the ninetieth day after discharge. This statement is identical to the first four, except it is stamped "Final Notice" in red, and contains the legend: "Final Notice. Unless this account is paid in full by ______ it will be turned over to an outside collection agency." 21 In addition to these written statements, Ball Memorial attempts to make contact with patients by telephone during the same time period in an effort to secure payment. The Hospital's decision finally to turn inpatient accounts over to an outside collection agency is apparently made on a case-by-case basis after the fifth and final statement is sent. Accounts are not assigned out for collection where patients are making installment payments. 22 Ball Memorial's billing procedures with respect to outpatients are similar to those used for inpatients, but differ in several respects. Outpatients apparently receive neither the Initial Credit Disclosure Statement nor the Hospital Patient Guide at the time of service. The Hospital generally treats these patients on a cash basis, and only in rare circumstances where the outpatient's bill is large will it initially attempt to arrange an installment payment plan. The initial bill received by outpatients on the fourth day after discharge is not identical to that received by inpatients. Rather, an outpatient's initial bill is mailed on the statement form used generally by Ball Memorial. Outpatients subsequently receive the same series of first through fifth statements, except that the periodic charge disclosed on the reverse side of the statement form is labeled a "HANDLING CHARGE." Coupon books are not mailed to outpatients routinely with the third statement, but are apparently sent only to those whose bill exceeds $40. Outpatient accounts are automatically turned over to a collection agency fourteen days after the fifth statement is sent. 23 Appellant Bright was an inpatient at Ball Memorial July 6-10, 1977. While in the Hospital, Bright was apparently shown a copy of the Initial Credit Disclosure Statement, but did not sign it. Presumably, she was also given a copy of the Hospital Patient Guide. At the time of her discharge, she made no arrangements with the Hospital to repay her bill. Bright subsequently received her initial bill, and the first, second, and third statements from the Hospital. She also received a coupon book with the third statement, containing more than four coupons. 24 Bright never utilized the coupon book to make a payment to the Hospital. Yet, even after the bill remained unpaid for more than 104 days, Bright's debt was not referred to an outside collection agency because she and the Hospital were working together to secure payment of the obligation. When efforts to secure public financial assistance for Bright were unsuccessful, Bright and Ball Memorial, on November 1, 1977, orally agreed to a payment plan whereby Bright would repay her bill in $15 monthly installments. Several days later, Bright and Ball Memorial orally modified the agreement to payments of $20 per month. Bright made no payments pursuant to either of these agreements. On March 1, 1978, Bright paid $30 to the Hospital, which was credited to her July 10, 1977 account and a previous account owing to the Hospital. Further contacts and negotiations followed, and on March 23, 1978, Ball Memorial and Bright agreed that her entire obligation (originally $933.35) would be satisfied if Bright would pay $15 per month for 24 months. Since March 23, 1978, Bright has made no payments to Ball Memorial. 25 Appellant Barber received outpatient care at Ball Memorial on numerous occasions, some of which entailed the provision of services charged at more than $40. Presumably, she received an initial bill and the first through fifth statements from the Hospital with respect to each outpatient visit. Along with the third statements she has received, Barber received at least one coupon book containing more than four coupons and presumably has received others for those bills which exceeded $40. Barber has never reached any agreement with the Hospital on repayment nor has she paid anything for any of the services. Handling charges were added to her accounts and her accounts were turned over to a collection agency. 26 Appellants filed suit as a class action against the Hospital, alleging that its billing and credit procedures were in violation of the Truth in Lending Act, 15 U.S.C. §§ 1601, et seq. Before reaching the issue of class certification, the district court granted Ball Memorial's motion to dismiss for lack of subject matter jurisdiction. Treating the motion to dismiss as one for summary judgment, the district court apparently held that Ball Memorial was not a "creditor" within the meaning of 15 U.S.C. § 1602(f) under any circumstances involving its billing practices. Specifically, the district court found that Ball Memorial neither extended "credit" "in the ordinary course of business" nor imposed a "finance charge" within the meaning of the Act, and that the purposes of the Act would not be served by extending its coverage to "institutions such as Ball Memorial." 27 Without approving the broad ruling of the district court that Ball Memorial is not a "creditor" under the Act, we affirm that court's judgment on the ground that Ball Memorial did not consummate credit transactions with either Bright or Barber. 28 CONSUMMATION OF CREDIT TRANSACTIONS WITH APPELLANTS 29 Regulation Z, 12 C.F.R. § 226.8(a) provides that all disclosures required of a "creditor" by the Act must be made prior to the time that the "transaction is consummated." Regulation Z, 12 C.F.R. § 226.2(kk) further specifies that: 30 A transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer or a lessor and lessee irrespective of the time of performance of either party. 31 In regard to a factual situation involving a hospital similar to this case, the Federal Reserve Board staff has stated: 32 If services are performed for patients under the general assumption that the bill will be paid upon discharge and if subsequently it is necessary for the hospital to finance that bill, the "transaction" for purposes of Section 226.8 is the credit transaction and not the physical act of performing the hospital services. Accordingly, in meeting the requirements of Section 226.8(a) that disclosures must be made "before the transaction is consummated" the hospital need only make disclosures prior to consummation of the financing arrangements. 33 Federal Reserve Board (FRB) Unofficial Staff Interpretation No. 170 (October 24, 1969), Cons.Cred.Guide (CCH) P 30,498.1 For appellants to be able to claim that the Hospital violated the Truth in Lending Act as to them, they must have consummated credit transactions with the Hospital. 34 Appellant Bright argues that credit transactions between Ball Memorial and her were consummated on a number of occasions. First, Bright apparently contends that her payment of $30 to Ball Memorial on March 1, 1978 evidences her acceptance of installment payment terms offered by the Hospital. The facts do not support this contention. Bright's $30 payment some four months after she had reached the $15 per month and $20 per month work-out agreements with the Hospital in November 1977 was clearly not responsive to either of those work-out agreements nor to the terms of the coupon book which Bright had even earlier received along with the third statement from the Hospital. Under these circumstances, Bright's March 1 payment was merely a one-time partial payment of her account, the acceptance of which by the Hospital does not constitute an agreement to a credit transaction. See, e. g., FRB Unofficial Staff Interpretation No. 170, supra. 35 Second, Bright contends that the two agreements which she reached with the Hospital in early November 1977, $15 and $20 per month respectively, satisfy the "consummation" requirement. As an initial matter, there is no indication in the record whether, in either of these agreements with the Hospital, the agreement embodied a commitment by Bright to pay the Hospital the 3/4% monthly charges on the outstanding balance in addition to repayment of the original balance of over $900.2 We do not, however, find that either agreement was one involving the extension of "credit" so as to require disclosures under the Act. 36 The Federal Reserve Board staff has consistently indicated that "informal workout arrangements" reached between a vendor and a customer do not require disclosures under the Act even though the workout involves more than four installments or payment in full of the underlying obligation. In FRB Official Staff Interpretation FC-0101 (July 19, 1977), Cons.Cred.Guide (CCH) P 31,637, the Federal Reserve Board staff reviewed a bank's plan which allowed its delinquent customers to repay their debts on terms different from those originally agreed upon. Specifically, the bank established a "deficiency balance" in each delinquent account and then made contact by telephone with the debtor, giving the debtor an opportunity to pay the deficiency balance in full or in installments. 37 If the debtor elected to pay in installments, a monthly payment commensurate with the debtor's ability to pay was established and the customer was mailed a form letter and coupon book reflecting the agreement. The staff concluded: 38 your bank's plan, as outlined above, is an informal workout arrangement requiring no new Truth in Lending disclosures. In staff's view, a formal written workout arrangement would involve some new evidence of indebtedness executed by the customer, such as a new note, contract or other form of written agreement. We do not believe that a unilateral written communication by either the creditor or the customer (such as a letter confirming matters previously discussed either orally or in writing) renders a workout arrangement formal and subject to the disclosure requirements of Regulation Z even though the plan might, like yours, involve repayment in more than four installments on terms differing from the original installment credit transaction. 39 Similarly, in FRB Unofficial Staff Interpretation No. 1230 (August 9, 1977), Cons.Cred.Guide (CCH) P 31,669, the staff stated that where a bank offered its delinquent customer the opportunity to pay the obligation in monthly installments smaller than the agreements previously agreed upon, and the customer then wrote or telephoned to agree to these or other monthly payment arrangements, it would not regard the situation as a "formal written prejudgment workout agreement" because no new evidence of indebtedness was executed. The distinctions drawn between informal and formal workout agreements clearly apply to entities other than banks. See FRB Unofficial Staff Interpretation No. 1221 (July 19, 1977), Cons.Cred.Guide (CCH) P 31,660. 40 Bright's early November 1977 oral agreements with Ball Memorial were reached more than 110 days after Bright's discharge as an inpatient on July 10, 1977. Given the computerized billing system utilized by the Hospital, by November 1, Bright had been mailed all five statements sent during the Hospital's billing cycle, including the coupon book sent along with the third statement. At this point on the billing cycle, the usual next step taken by the Hospital was to refer the account to a collection agency. At no time prior to November 1 did Bright ever make any explicit agreement with the Hospital to pay her bill nor did she take any action, such as making a partial payment, indicating implicit acceptance of the Hospital's installment payment option. 41 Given these circumstances, it is clear that the Hospital regarded Bright's account as delinquent and was seeking at the time of these notices and discussions to make some arrangement short of referring Bright's account to a collection agency. The terms of the agreements reached between Bright and the Hospital were substantially different from the terms for installment payments set forth generally on the billing statements previously sent by the Hospital. These statements indicate that for a bill the size of Bright's ($933.35), the minimum monthly payment was 5% of the outstanding balance: Bright's agreements were for the substantially smaller sums of $15 and $20 per month. Moreover, these agreements were reached without a new written evidence of Bright's indebtedness in a manner consistent with the Federal Reserve Board interpretations. Bright's November 1977 agreements were thus "informal workout agreements" not requiring the disclosures provided by the Act even though these agreements contemplated payment in more than four installments and may have entailed payment of monthly 3/4% charges on the outstanding balance.3 42 Finally, Bright and Barber contend that consummation occurred when they, having failed to make any payments on their accounts, had monthly charges assessed against them beginning on the forty-eighth day after discharge. Specifically, appellants argue that, since the Hospital's self-described "finance charges" were in fact levied against their accounts and since the Hospital, when it seeks judgments in cases filed to collect the accounts, includes the "finance charges," the Hospital itself considers them to have agreed to the charges. Appellants further contend that the charges assessed were "finance charges" within the meaning of the Act. 43 Ball Memorial conceded at oral argument that it assessed these charges on appellants' accounts (and others like them), but did so on the basis that these charges were "late payment" charges, and not "finance charges." Regulation Z, 12 C.F.R. § 226.4(c). The question before us is thus whether the charges assessed by the Hospital against Bright and Barber's accounts subsequent to the forty-eighth day after discharge were bona fide charges made for late payment or were "finance charges," such that Ball Memorial consummated a credit transaction with them. We conclude that these charges were "late payment" charges. 44 15 U.S.C. § 1602(f) defines a "creditor" as: 45 The term "creditor" refers only to creditors who regularly extend, or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.4 46 15 U.S.C. § 1602(e) provides the following definition of "credit":The term "credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.5 47 In light of these statutory definitions, it is clear that the district court erroneously held that Ball Memorial was not a "creditor" with respect to any of its patients. 48 While the Hospital clearly desires and encourages its patients to pay their bills in full at the time of discharge, the Hospital also deliberately established for inpatients the option of electing before discharge to arrange to pay their bills in installments. Inpatients are routinely informed of this option through the Initial Credit Disclosure Statement and a pamphlet in the Hospital Patient Guide. Inpatients, as well as presumably outpatients with large bills, are also informed orally of their responsibility to make arrangements for periodic payment if they are unable currently to pay in full. 49 Given the size of the Hospital's bills, there is no doubt that some patients are offered installment plans payable in more than four installments. Similarly, the terms of the installment payment plans offered to these patients contain the 3/4% monthly charge on the outstanding balance. In light of this record, Ball Memorial clearly "in the ordinary course of business regularly" both (1) extends credit which is payable in more than four installments and (2) extends credit for which the payment of a finance charge is required. 50 In addition to thus being a "creditor" within the statutory definition of 15 U.S.C. § 1602(f),6 Ball Memorial clearly consummates credit transactions with those patients who, prior to their discharge from the Hospital, reach agreements with the Hospital to pay their bills in more than four installments or on terms under which the 3/4% monthly charge is assessed. The fact, however, that Ball Memorial has consummated credit transactions with some of its patients or that Ball Memorial may have extended "credit" to these appellants prior to its imposition of the charges to their accounts on the forty-eighth day does not require the conclusion that the Hospital's imposition of these monthly charges consummated a credit transaction with them. 51 Regulation Z, 12 C.F.R. § 226.4(c) distinguishes between "late payment" and "finance" charges: 52 A late payment, delinquency, default, reinstatement, or other such charge is not a finance charge if imposed for actual unanticipated late payment, delinquency, default, or other such occurrence. 53 Appellants argue initially that the monthly charges imposed on their accounts were "anticipated" within the meaning of § 226.4(c) because the Hospital obtained approximately $78,000 in revenue from such charges during the period from July 1, 1977 through September 1978,7 and because it budgets for this revenue in the annual budget. This argument, however, misconstrues the meaning of "unanticipated" in § 226.4(c). The fact that a business may expect to have delinquent accounts and anticipate the possible receipt of some revenues from the charges imposed on such accounts does not automatically render such charges "finance charges." Rather, "unanticipated" within § 226.4(c) means that the failure of any customer to pay his bill on time is not anticipated in any particular case. See FRB Unofficial Staff Interpretation No. 1301 (May 23, 1978), Cons.Cred.Guide (CCH) P 31,792. 54 In an effort to clarify the difference between a "late payment charge" and a "finance charge," the Federal Reserve Board has issued an interpretive rule. 12 C.F.R. § 226.401. In this rule, which has been held valid, Kroll v. Cities Service Oil Co., 352 F.Supp. 357, 363 (N.D.Ill.1972), the Board considered a vendor which billed its customers so that the full bill was due within a stipulated period after billing, with no installment payment option. If the bill was not paid in full by the end of the period, the vendor imposed a periodic charge on the unpaid balance until fully paid. The Board stated: 55 When in the ordinary course of business a vendor's billings are not paid in full within that stipulated period of time, and under such circumstances the vendor does not, in fact, regard such accounts in default, but continues or will continue to extend credit and imposes charges periodically for delaying payment of such accounts from time to time until paid, the charge so imposed comes within the definition of a "finance charge" . . .. 56 This rule indicates that whether a charge ostensibly imposed for late payment is a "finance charge" depends on whether the vendor regards accounts not paid within the required period to be in default and whether the vendor continues to extend credit to the customer in default. See Continental Oil Co. v. Burns, 317 F.Supp. 194, 196 (D.Del.1970). 57 Whether or not the vendor considers its customers' accounts delinquent must be judged by its actions taken as a whole. See FRB Official Staff Interpretation FC-0060 (April 4, 1977), Cons.Cred.Guide (CCH) P 31,570; FRB Unofficial Staff Interpretation No. 1171 (March 31, 1977), Cons.Cred.Guide (CCH) P 31,568; FRB Unofficial Staff Interpretation (July 9, 1969), Cons.Cred.Guide (CCH) P 30,088. Particularly relevant is whether the vendor continues to extend credit to its customers after the time of default, though the continued extension of credit under exigent circumstances should not defeat a finding that the charges are in fact "late payment" charges. See FRB Unofficial Staff Interpretation No. 912 (August 13, 1975), Cons.Cred.Guide (CCH) P 31,246 (hospital furnishing services to delinquent patients only where "certified medical necessity" exists); FRB Unofficial Staff Interpretation (July 9, 1969), supra (occasional extension by hospital of credit to delinquent patients in emergency situations). 58 Also particularly relevant is whether the vendor takes "commercially reasonable" efforts to correct the delinquency situation both through clear notification to its customer that the customer is delinquent, see FRB Unofficial Staff Interpretation No. 797 (May 16, 1974), Cons.Cred.Guide (CCH) P 31,119; FRB Unofficial Staff Interpretation No. 414 (October 23, 1970), Cons.Cred.Guide (CCH) P 30,600, and through efforts to collect the delinquent account. See, e. g., FRB Official Staff Interpretation FC-0060, supra; FRB Unofficial Staff Interpretation No. 1171, supra. 59 Applying these general principles to the facts of this case, we conclude that the 3/4% monthly charge imposed upon Bright's inpatient bill and the 50cents handling charge imposed upon Barber's outpatient bills commencing with the forty-eighth day after discharge were bona fide late payment charges. Most importantly, Ball Memorial considers its patient accounts not paid within the forty-eight day period to be delinquent and takes "commercially reasonable" efforts to collect those accounts once they are determined to be delinquent. Subsequent to the forty-eighth day, Ball Memorial sends statements on the sixty-second, seventy-sixth and ninetieth days each clearly advising the patient that the account is considered overdue and insisting upon payment. Ball Memorial additionally attempts to make contact by telephone with its patients during this period in an effort to collect on the accounts. Accounts on which no payment agreement is reached and where no payments have been made are generally referred to an outside collection agency less than two months after the Hospital considers them delinquent. 60 Appellants argue particularly that the facts that (1) Ball Memorial mails the coupon book with the third statement, and does not continue to send dunning notices to or refer to a collection agency those patients who begin to pay through the coupon book and (2) Ball Memorial does not refer its accounts to a collection agency until after the 104th billing day demonstrates that the Hospital does not treat these accounts as delinquent. We disagree. 61 That Ball Memorial does not immediately refer its delinquent accounts to a collection agency hardly indicates commercially unreasonable efforts to collect these accounts. See Vega v. First Federal Savings & Loan Association of Detroit, 433 F.Supp. 624, 628 (E.D.Mich.1977). See also FRB Unofficial Staff Interpretation No. 1301, supra. Rather, the Hospital's combined use of telephonic and mail communications over the less than two months following the forty-eighth day prior to its referral to a collection agency appears well designed to attempt a repayment of the debt. This practice is hardly designed to amass large monthly charges while the account lies dormant and unpaid. 62 Nor does Ball Memorial's mailing of the coupon book with the third statement, nor its failure to send dunning notices to those patients who commence installment payments pursuant to the coupon book, indicate that the charges assessed to these appellants' accounts are "finance charges." We need not decide on this appeal whether patients who commence installment payments based on the coupon book consummate "credit" transactions with the Hospital since neither appellant did so. Insofar as appellants' accounts are concerned, the generalized mailing of such coupon books to delinquent inpatients and outpatients with balances over $40 indicates nothing more than a sincere effort on the Hospital's part to seek some repayment. The Hospital's practice not to mail dunning statements to or to assign the accounts of those delinquent patients who have commenced installment payments merely demonstrates the Hospital's good common sense. 63 Finally, appellants argue that the Hospital's use of the label "finance charge" on its printed materials indicates that the charges are, in fact, "finance charges" under the Act. While we agree with appellants that this terminology is relevant to our determination, see FRB Unofficial Staff Interpretation No. 1172, supra, it is by no means determinative. See FRB Unofficial Staff Interpretation No. 414, supra. In this regard, we agree with the district court that "the substance of the billing system controls, not its labels." We conclude, therefore, that the monthly charges assessed against Bright's and Barber's accounts were bona fide "late payment" charges under Regulation Z, 12 C.F.R. § 226.4(c). 64 Since the charges assessed against appellants' accounts were bona fide "late payment" charges, their imposition did not constitute the consummation of a credit transaction by the Hospital with either appellant. Thus, even though the Hospital may have been a potential "creditor" under the Act in its offering the extension of credit to the appellants, the disclosure obligations imposed by the Act did not arise as to them. Regulation Z, 12 C.F.R. § 226.8(a). 65 Accordingly, we need not address the question of whether Ball Memorial's credit and billing procedures violated the Act, and we affirm the judgment of the district court on the grounds stated. * The Honorable Hubert L. Will, Senior District Judge of the Northern District of Illinois, is sitting by designation 1 While the Federal Reserve Board interpretive regulations and staff opinion letters are not binding upon the courts, these constructions of the statute and the Board regulations are entitled to substantial deference "because of the important interpretive powers granted to the agency in this very complex field." Croysdale v. Franklin Savings Association, 601 F.2d 1340, 1344 n.4 (7th Cir. 1979). See also Smith v. No. 2 Galesburg Crown Finance Corp., Nos. 78-2155, et al., 615 F.2d 407 at 417-418 (7th Cir. 1980) 2 Even if these agreements did not involve an agreement to pay a monthly 3/4% finance charge, they could still be a "credit" agreement requiring disclosures since payment was to be in more than four installments. See, e. g., Manzina v. Publishers Guild, Inc., 386 F.Supp. 241, 244 (S.D.N.Y.1974) 3 Our holding with respect to the November 1977 agreements applies with equal force to Bright's contention that "consummation" of a credit transaction occurred when she agreed with the Hospital on March 23, 1978 to satisfy her entire obligation by making monthly payments of $15 for 24 months. This agreement, also entered without a new written evidence of Bright's indebtedness and at a time when the Hospital clearly regarded Bright's account as in default, is a classic example of an "informal workout arrangement" not within the coverage of the Act 4 Regulation Z, 12 C.F.R. § 226.2(s) provides a similar, though slightly expanded, definition: "Creditor" means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit, which is payable by agreement in more than four installments, or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. 5 Regulation Z, 12 C.F.R. § 226.2(q) defines "credit" as: the right granted by a creditor to a customer to defer payment of debt, incur debt and defer its payment, or purchase property or services and defer payment therefor. 6 The district court apparently concluded that Ball Memorial did not extend "credit" "in the ordinary course of business" because the Hospital's general policy considers accounts due at the time services are rendered and because Ball Memorial only allowed installment payments "because of necessity." Additionally, the court reasoned that the Act did not apply because Ball Memorial is a not-for-profit hospital having "no incentive to extend credit other than to encourage payment of debts already due." Without questioning Ball Memorial's motivation in making installment payment options available to its patients, we do not find the district court's analysis of incentive or motivation relevant to the question of whether Ball Memorial is a "creditor" under the Act. While the Act was clearly intended to protect the consumer against unscrupulous credit practices and providers of credit, the Act was equally designed to promote generally the consumers' informed use of credit. See 15 U.S.C. § 1601(a). Ball Memorial's patients have a need equal to that of consumers generally to make an informed choice between repaying their account in full immediately, whether through personal savings or other sources of funds, or repaying in installments pursuant to the Hospital's plan. Neither the Act, see 15 U.S.C. § 1603, nor the interpretive letters issued by the Federal Reserve Board, see FRB Unofficial Staff Interpretation (June 6, 1969), Cons.Cred.Guide (CCH) P 30,033; FRB Unofficial Staff Interpretation (May 7, 1969), Cons.Cred.Guide (CCH) P 30,027, have recognized a blanket exemption from the Act for not-for-profit hospitals. We find no such per se exemption warranted. 7 The $78,000 which the Hospital obtained from its "finance charges" apparently includes all charges gathered from both patients who, unlike appellants, prior to default arranged installment plans with periodic payments and patients who, like appellants, have charges imposed on their accounts where they have neither agreed to pay their bills nor commenced to pay their bills in installments. There is no calculation in the record of the amount derived by the Hospital from its assessment of charges against patients in the latter category. This amount is undoubtedly small

772 N.E.2d 487 (2002) Russell J. WELLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 92A04-0202-CR-84. Court of Appeals of Indiana. July 30, 2002. *488 Christanne C. Howe, Hampton & Voelz, Warsaw, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. OPINION FRIEDLANDER, Judge. Russell J. Wells appeals his conviction of Operating a Vehicle While Intoxicated With a Prior Conviction Within Five Years,[1] a class D felony. Wells presents as the sole issue on appeal the contention that the trial court improperly denied his motion to suppress evidence obtained from a traffic stop that violated his federal constitutional right against unreasonable search and seizure.[2] *489 We affirm. The facts favorable to the conviction are that on May 2, 2001, Churubusco police officer Garry Jones received a call from dispatch alerting him to a possible drunk driver traveling eastbound on State Road 205 in a silver Nissan, license plate DXG 282. The information about the driver was obtained from dispatch by an "anonymous tip." Record at 5. After receiving the information, Jones waited by a high school until he spotted the vehicle. It was later determined that Wells was driving the vehicle. Jones followed the vehicle for approximately 6 blocks. Jones observed the vehicle swerving within its lane toward the fog line and the sidewalk. At one point, the vehicle came very close to the centerline and oncoming traffic. Officer Jones also noticed that Wells was driving more than ten miles an hour below the posted speed limit. Jones then pulled Wells over. When he approached the vehicle, he noticed the smell of alcohol emanating from inside the automobile. He also saw a bottle of vodka on the front passenger floor. When the officer reported the stop to dispatch with Wells's information, he was informed that Wells had an outstanding arrest warrant. Officer Jones placed Wells in custody and administered a portable breath test, which registered a .10 blood alcohol content (BAC). Wells registered a.18 and .17 BAC in subsequent tests administered at the hospital and jail. Prior to trial, Wells filed a motion to suppress all evidence gathered during the traffic stop, contending that the stop was illegal under the United States and Indiana Constitutions. The trial court denied his motion. At trial, Wells objected to the admission of that evidence. The trial court overruled his objection. A jury found Wells guilty of operating a vehicle while intoxicated, a class A misdemeanor. Because Wells had a prior conviction for operating a vehicle while intoxicated, the trial court elevated Wells' conviction to a class D felony. The ruling on a motion to suppress is reviewed on appeal in a manner similar to claims of insufficient evidence. Washington v. State, 740 N.E.2d 1241 (Ind.Ct. App.2000), trans. denied. We will not reweigh the evidence, and conflicting evidence is viewed in a light most favorable to the trial court's determination. Id. We consider uncontested evidence in a light most favorable to the defendant. Fair v. State, 627 N.E.2d 427 (Ind.1993). The Fourth Amendment to the United States Constitution guarantees "the right of people to be secure in their persons ... against unreasonable searches and seizures." A search must be reasonable and conducted pursuant to a properly issued warrant. Webb v. State, 714 N.E.2d 787 (Ind.Ct.App.1999). When a search is conducted without a warrant, the State must prove it is justified under the limited exceptions to the warrant requirement. Id. A police officer may stop a person to investigate possible criminal behavior without the probable cause required for an arrest, if they have a reasonable and articulable suspicion that the person has been, is, or is about to break the law. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The "reasonable suspicion" requirement is satisfied when the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Reasonable suspicion entails something more than an inchoate and unparticularized suspicion or hunch, but considerably something less than proof of wrongdoing by a preponderance of the evidence. *490 Crabtree v. State, 762 N.E.2d 241, 246 (Ind.Ct.App.2002). The United States Supreme Court has held that an anonymous tip is not enough to support the reasonable suspicion necessary for a "Terry" stop. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). An anonymous tip is considered less reliable than a tip from a known informant. Id. Anonymous tips must be accompanied by specific indicia of reliability or must be corroborated by a police officer's own observation in order to pass constitutional muster. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Reasonable suspicion may be established by the totality of circumstances. Id. Thus, although an anonymous tip alone will be insufficient to establish reasonable suspicion, where significant aspects of the tip are corroborated by the observations of police, a subsequent investigatory stop is likely valid. Id. In this case, the anonymous tip was corroborated in two ways. The tipster gave very specific information regarding the color, make, and license plate number of the car, which Officer Jones was able to verify. Furthermore, Officer Jones was able to corroborate the information provided by the anonymous tip with respect to the manner in which Wells was operating the vehicle. While following Wells, Officer Jones noted that he was traveling ten miles per hour slower than the speed limit, and he was swerving in his own lane. Officer Jones recognized this behavior, from his training and experience, as indicia of intoxication. This case is clearly distinguishable from Washington v. State, 740 N.E.2d 1241, which Wells urges as controlling authority. In Washington, the investigating officer received an anonymous tip of a possible drunk driver with a vehicle description. Without making an independent verification of drunken or erratic driving, the officer stopped the driver and arrested him. This court considered the stop improper because the only corroboration of the anonymous tip was the identification of the vehicle. Id. In the instant case, the anonymous tip was corroborated by both the positive identification of Wells's vehicle and Officer Jones's determination that Wells was driving in a manner consistent with that of intoxicated drivers. Viewing the totality of circumstances, it is clear that Officer Jones had the requisite reasonable suspicion to stop and investigate Wells. Thus, the evidence seized as a result of the stop was admissible at trial. The trial court properly denied Wells's motion to suppress. Judgment affirmed. BROOK, C.J., and SHARPNACK, J., concur. NOTES [1] Ind.Code Ann. § 9-30-5-3 (West, PREMISE through 2001 1st Reg. Sess.). [2] Wells also contends that the admission of evidence was in violation of his state constitutional rights. Although Wells sets out the analysis applicable to the relevant Indiana constitutional provision, he does not explain how the facts of his particular case fit within that framework. The issue is waived. Ind. Appellate Rule 46(A)(8)(a) (requiring that the appellant present arguments supported by cogent reasoning).

850 F.Supp. 503 (1994) Gene KING, et al. v. E.I. DU PONT DE NEMOURS, et al. Civ. A. No. 91-2051-M. United States District Court, W.D. Louisiana, Monroe Division. April 29, 1994. *504 J. Michael Hart, Theus Grisham Davis & Leigh, Monroe, LA, for plaintiffs Gene King, dba AGM Miniature Roses Inc. and Melanie King. W. Michael Adams, J. David Garrett, Donald J. Armand, Jr., Joseph C. Wiley, Blanchard Walker O'Quin & Roberts, Shreveport, LA, for defendants E.I. Du Pont de Nemours & Co. and Plate Chemical Co. Donald J. Anzelmo, Crawford & Anzelmo, Monroe, LA, for defendant Terra Intern. RULING NAUMAN S. SCOTT, District Judge. Before the court is a Motion for Partial Summary Judgment filed on behalf of defendants E.I. Du Pont de Nemours and Company (Du Pont), Platte Chemical Company (Platte) and Terra International, Inc. (Terra). Defendants urge the court to render partial summary judgment dismissing plaintiffs', Gene King d/b/a A.G.M. Miniature Roses, Inc. and Melanie King, claims for exemplary damages as set forth in Count IV (erroneously entitled Count III and hereinafter referred to as Count IV) of the First Amended Complaint and Count V of the Second Amended Complaint (erroneously entitled Count IV and hereinafter referred to as Count V). I. Factual and Procedural Background Plaintiffs operate a miniature rose nursery. They allege that a Du Pont fungicide, Benlate DF 50 (Benlate),[1] caused severe damage to their 1989 stock of plants, including many of the "mother plants" used to propagate and continue their inventory of roses. Plaintiffs fault defendants for allowing Benlate to become contaminated with the herbicide atrazine and other harmful substances, improperly labelling the product, and packaging Benlate in such a manner that it would decompose and form harmful chemicals. Plaintiffs also allege claims of misrepresentation against Du Pont and Terra and seek exemplary damages under such claims.[2] Plaintiffs further seek exemplary damages pursuant to Louisiana Civil Code article 2315.3. II. Law and Analysis Louisiana law is well settled on the point that exemplary (punitive) damages may not be imposed unless expressly authorized by statute. International Harvester Credit Corp. v. Seale, 518 So.2d 1039, 1041 (La. 1988). Moreover, statutes authorizing the imposition of exemplary damages must be strictly construed. Id.; see also Vincent v. Southwest Louisiana Elec. Membership Corp., 666 F.Supp. 94, 96 (W.D.La.1987). Accordingly, defendants seek to dismiss plaintiffs' claims for exemplary damages under the misrepresentation causes of action and article 2315.3. A. Misrepresentation In Count IV of the First Amended Complaint, which sets forth claims of misrepresentation aimed at Du Pont and Terra, plaintiffs vaguely state that the actions giving rise to the misrepresentation and detrimental reliance of complainants herein occurred in states other than the State of Louisiana and, pursuant to the Louisiana Civil Code, complainants would be entitled to exemplary damages where it is shown that such action took place in a state allowing for exemplary damages, to-wit, Texas and/or Delaware, *505 or such other states as may be shown to be applicable to the actions of defendants herein. First Am.Compl. at para. 31. While we find it difficult to extract any definite meaning from such obtuse verbiage, it is clear why plaintiffs seek the application of the law of a state other than Louisiana to their misrepresentation claims. As noted above, Louisiana prohibits recovery of exemplary damages in the absence of an express statutory provision. Because no such statute exists, plaintiffs cannot recover exemplary damages under their misrepresentation claims if Louisiana law applies. Defendants set forth an excellent exposition of Louisiana's conflicts law and make a cogent argument as to why Louisiana choice of law principles mandate application of Louisiana law to plaintiffs' misrepresentation claims and the concomitant damages issue.[3] Plaintiffs apparently recognize the soundness of defendants' position, as their opposition fails to mention the issue of the availability of exemplary damages under their misrepresentation claims. In light of defendants persuasive conflicts of law analysis and the lack of opposition thereto, we find it unnecessary to set forth an in-depth conflicts analysis. Instead, it suffices to say that we find that Louisiana law applies to plaintiffs' misrepresentation claims and the concomitant issue of the availability of exemplary damages. Because no Louisiana statute provides for recovery of exemplary damages under a claim for misrepresentation, we must grant defendants' Motion for Partial Summary Judgment on this issue. B. Article 2315.3 In Count V of their Second Amended Complaint, plaintiffs set forth a claim for exemplary damages under Louisiana Civil Code article 2315.3. Article 2315.3 provides: In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiff's injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. As used in this Article, the term hazardous or toxic substances shall not include electricity. La.Civ.Code art. 2315.3. Plaintiffs allege that "the Benlate product, as contaminated or from the contents of its active ingredients, is a hazardous substance" and the damage to their miniature rose nursery "resulted from the defendants' wanton or reckless disregard for public safety in the handling of the hazardous substances." Second Am.Compl. at para. 33 and 34. Defendants challenge the applicability of article 2315.3 to the facts of this case on two grounds. First, defendants assert that "courts have generally ruled that the hazardous materials which allegedly cause a plaintiff's injuries must have been within the possession or control of the defendant at the time of the injury in order for exemplary damages to be recoverable from the defendant." Mem. in Supp. of Mot. for Summ. J. at 11-12 (citing Strauch v. Gates Rubber Co., 879 F.2d 1282 (5th Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 841, 107 L.Ed.2d 836 (1990); Galjour v. General American Tank Car Corp., 769 F.Supp. 953 (E.D.La.1991); Wiltz v. Mobil Oil Exploration and Producing North America Inc., 702 F.Supp. 607 (W.D.La.1989) (emphasis added)).[4] The cases cited by defendants do provide that in order for article 2315.3 to be applicable, the defendant must have been in possession and control of the hazardous substance prior to the time plaintiff sustained his injury. Galjour, 769 F.Supp. at 956; Wiltz, 702 F.Supp. at 608. Indeed, this very court held in Wiltz that "[i]mplicit in storing, handling or transporting is the requirement that the hazardous substance be in the possession or control of a person who then handles or otherwise deals with that substance." 702 F.Supp. at 608. No court, however, has stretched this implicit requirement as far as defendants *506 contend; that is, to the point where the defendant must be in possession and control of the hazardous substance at the time of plaintiff's injury. In Wiltz, plaintiffs performing workover operations at an oil well cite were injured during a flash fire. 702 F.Supp. at 607. "The accident was caused by emissions from the well, of naturally occurring gas from an underground formation, which had never been reduced to possession by [defendant]." Id. at 608. Because defendant never gained possession of a hazardous substance (gas), it "could not be said to have been storing, handling or transporting the gas." Accordingly, we found that article 2315.3 did not apply to plaintiffs' claims. Id. Clearly, our holding is quite different than defendants' representation — i.e., an implicit requirement that defendant be in possession and control of the hazardous substance at the time of plaintiff's injury. Moreover, the other cases cited by defendants for this proposition, Strauch and Galjour, do not hold as defendants say they do. Indeed, the court in Galjour quoted directly from our holding in Wiltz, 769 F.Supp. at 956, and the Fifth Circuit in Strauch did not squarely address the implicit requirement of possession and control over the hazardous substance. The court in Strauch dealt instead with the broad question of who might be subject to the exemplary damage provisions of article 2315.3. The court held that only those "engaged in" the storing, handling or transporting of hazardous substances fall within the reach of article 2315.3. Strauch, 879 F.2d at 1287-88. The court found that the manufacturer of a synthetic hose used by others to store, handle and transport anhydrous ammonia, a hazardous substance, did not itself engage in any of the three activities listed in article 2315.3. Id. at 1288.[5] Accordingly, the court affirmed the district court's dismissal of the exemplary damage claims filed against defendant under article 2315.3. Id. Hence, Strauch focused on the issue presented here in the defendants' second challenge to the applicability of article 2315.3. That is, are the defendants in this case among those who fall within the purview of article 2315.3? Strauch instructs us to answer this question by determining whether defendants "engage in" storage, handling, or transportation of hazardous substances. Defendants ignore this clear Fifth Circuit guidance and urge us to adopt a broad rule barring the application of article 2315.3 to manufacturers of hazardous substances. In support of this position, defendants rely exclusively on the pre-Strauch opinion of Williams v. A.C. & S., Inc., 700 F.Supp. 309 (M.D.La.1988). There, plaintiff, who was employed in occupations which required him to handle asbestos products, sued several asbestos manufacturers. Plaintiff contended that the manufacturers' asbestos products irreparably damaged his lungs and sought compensatory damages and exemplary damages under article 2315.3. Id. at 310. The court granted defendants' motion for summary judgment, which sought to dismiss plaintiff's claims on the grounds that article 2315.3 did not apply to them. The court noted that "[p]laintiff does not allege he was injured as a result of the defendants' `storage, handling, or transportation' of asbestos. Defendants' fault, if any, arises from the manufacture, design, and labelling of the products — conduct which, although within the realm of products liability, lies outside the scope of article 2315.3." Id. We are in agreement with the opinion in Williams to the extent that it dismissed plaintiff's claims because he did not allege injury resulting from the storage, handling, or transportation of hazardous or toxic substances. Indeed, the clear language of article 2315.3 compels dismissal of claims for exemplary damages against defendants who are not engaged in any of these three activities. Defendants mischaracterize the second sentence of Williams quoted above in an *507 effort to support their contention that manufacturers are not subject to article 2315.3.[6] They portray this sentence as "the Williams court's conclusion that manufacturers are beyond the scope of" article 2315.3. Reply Mem. in Supp. of Mot. for Summ.J. at 5. The court in Williams did not hold so broadly. Instead, the court simply held that a defendant's manufacturing, designing, and labelling activities are not within the reach of article 2315.3. That is not to say, however, that one engaged in these activities — i.e., a manufacturer — could not also engage in the three article 2315.3 activities. Indeed, such may be the case in the instant lawsuit. As we indicated before, we are well aware that statutes authorizing the imposition of exemplary damages must be strictly construed. International Harvester Credit Corp. v. Seale, 518 So.2d at 1041; see also Vincent, 666 F.Supp. at 96. In line with this principal of strict statutory construction, we similarly refuse to read any restrictions or exceptions into a statute beyond its plain meaning. See La.C.C. art. 9, 11.[7] Therefore, we reject defendants' argument that there exists a broad shield protecting manufacturers from the reach of article 2315.3. In light of the foregoing and because we find that there are outstanding genuine issues of material facts as to whether defendants were engaged in the storage, handling or transportation of hazardous or toxic substances, we must deny defendants Motion for Partial Summary Judgment on this issue. Accordingly, defendants' Motion for Partial Summary Judgment on the issue of the availability of exemplary damages under plaintiffs' misrepresentation claims is hereby GRANTED and defendants' Motion for Partial Summary Judgment on the issue of the applicability of Louisiana Civil Code article 2315.3 is hereby DENIED. DONE AND SIGNED. NOTES [1] Although Benlate is sold and distributed under the Du Pont name, plaintiffs allege that Terra manufactured "at least a portion" of the product, Original Compl. at para. 5, and "the chemical sold by Du Pont and used by complainant was formulated by Platte Chemical Company from chemicals either produced by Platte Chemical Company or used in conjunction with chemicals formulated by defendant, Terra International." Second Am.Compl. at 21. [2] We dismissed plaintiffs' misrepresentation claim against Platte in our Ruling dated November 18, 1993. [3] When sitting in diversity, we must, of course, apply the conflicts law of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). [4] Since none of the cases cited support this contention, we feel that defense counsel have come dangerously close to pushing their position past the point of supported argument and into the chasm of misrepresentation to the court. [5] The court left open the issue of "[w]hether it is ever appropriate to assess exemplary damages against the manufacturer of material that is used for the storage, handling or transportation of hazardous substances for the dangerous or reckless design of its product." Strauch, 879 F.2d at 1288. [6] We need not engage in an analysis of whether this sentence constitutes the holding of the court or merely dicta, an issue receiving much attention by the parties. [7] This statement should not be read to be inapposite to our holding in Wiltz, where we found that defendant "was not engaged in storing, handling or treating hazardous or toxic substances. Implicit in storing, handling or transporting is the requirement that the hazardous substance be in the possession and control of a person who then handles or otherwise deals with that substance." 702 F.Supp. at 608. Determining the meaning of words used in a statute is quite different, of course, from adding restrictions beyond the face of the statute.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 99-1999 ___________ Bonnie Nickerson, * * Appellant, * * Appeal from the United States v. * District Court for the District of * South Dakota. Allied Mutual Insurance Company, a * corporation, * [UNPUBLISHED] * Appellee. * ___________ Submitted: October 21, 1999 Filed: October 28, 1999 ___________ Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges. ___________ PER CURIAM. While on a business trip driving a personal vehicle, Catherine Day Breitag and Bonnie Nickerson were seriously injured in a two-car accident. After recovering from the other driver's insurer and from their own, Breitag and Nickerson brought this diversity action against the company that insures their employer's fleet of nine vehicles, Allied Mutual Insurance Company, seeking underinsured motorist coverage under the policy's temporary substitute vehicle provision. The district court granted Allied's motion for summary judgment. Only Nickerson appeals, and we affirm.  We review the grant of summary judgment de novo, applying the same standards that the district court used. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998). Summary judgment was properly granted if the evidence, viewed in the light most favorable to Breitag and Nickerson, shows there is no genuine issue of material fact and Allied is entitled to judgment as a matter of law. See id. The parties agree that South Dakota law applies in this diversity case. The underinsured motorist coverage endorsement in Allied's policy defines an insured as "[a]nyone . . . 'occupying' . . . a temporary substitute for a covered 'auto.' The covered 'auto' must be out of service because of its breakdown, repair, servicing, loss or destruction." In the only South Dakota case involving this provision, the court stated the provision unambiguously extends coverage to a person using a vehicle not listed in the policy "as a substitute for the insured automobile which has been withdrawn from its normal use because of breakdown, repair, servicing, loss or destruction." Nelson v. St. Paul Mercury Ins. Co., 153 N.W.2d 397, 399-400 (S.D. 1967). The purpose of this provision is to "reasonably define coverage by limiting the insurer's risk to one operating vehicle at a time for a single premium." Id. at 400. Other courts are in agreement that the provision extends temporary coverage to an insured, here, the employer, who is using a borrowed vehicle because the employer cannot use the vehicle designated in the policy for one of the specified reasons. See Houston Gen. Ins. Co. v. American Fence Co., 115 F.3d 805, 807 (10th Cir. 1997). Nickerson asserts she and Breitag were using Breitag's personal vehicle as a temporary substitute for one of their employer's vehicles because one of the employer's vehicles was out of service. In her deposition, Breitag said she decided to take her own car on the business trip to avoid causing "disruption to [her employer] by having a car gone," and because she felt "psychologically more comfortable" driving her own. Breitag specifically denied any knowledge that any of the employer's vehicles would be out of service during her trip. After Allied moved for summary judgment, however, Breitag submitted an affidavit stating she knew before taking her own vehicle that one -2- of the employer's cars would be in the shop during her trip, and this was the reason she drove her personal car. Because Breitag's affidavit contradicts her earlier deposition testimony, we must disregard her affidavit. See Schiernbeck v. Davis, 143 F.3d 434, 438 (8th Cir. 1998); Plymouth Foam Prods., Inc. v. City of Becker, Minn., 120 F.3d 153, 155 n.3 (8th Cir. 1997). Stated simply, "'parties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment.'" Schiernbeck, 143 F.3d at 438 (quoting RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995)). Once we disregard Breitag's affidavit, we conclude there is no genuine question of material fact and Allied is entitled to judgment as a matter of law. There is no indication Breitag's car was being used in place of the employer's insured vehicle because the employer's vehicle was out of use. See American Fence, 115 F.3d at 808. Instead, Breitag drove her own car for the convenience of her employer and herself. Convenience is an insufficient reason to bring even actual substitution within the terms of the coverage afforded by a temporary substitute automobile provision. See id. In sum, Nickerson is not covered by the temporary substitute vehicle provision of Allied's policy. We affirm the district court's grant of summary judgment to Allied. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3- 

578 F.2d 871 O'Quinnv.Estelle No. 77-2767 United States Court of Appeals, Fifth Circuit 7/31/78 S.D.Tex., 574 F.2d 1208

 116 Nev. at 801, 8 P.3d at 133. This court will uphold the district court's termination order if it is supported by substantial evidence. In re D.R.H., 120 Nev. at 428, 92 P.3d at 1234. Here, the district court found that parental fault was established based on appellant's token efforts and abandonment of the child between 2007 and 2010. In particular, the district court found that while appellant was initially prevented from contacting the child for a period of time because of a protective order against him, he did obtain legal advice about enforcing his parental rights in 2006, but he failed to pursue those rights until 2011. The court found no credibility in appellant's claim that he was unable to find respondent and the child during the relevant time period. It is the duty of the trier of fact, not an appellate court, to weigh the credibility of witnesses. See Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004). The district court further concluded it was in the child's best interest to terminate appellant's parental rights. The court determined that appellant was a stranger to the child, and introducing him as a father figure would be detrimental and disruptive to the stability of the child's life. Having reviewed the appellate record, we conclude that the district court applied the correct legal standard and the court's decision is supported by substantial evidence. Accordingly, we ORDER the judgment of the district court AFFIRMED. , J. Hardesty poi.4.0„,„ J. J. SUPREME COURT ar Praguirre OF NEVADA 2 (0) 1947A  cc: Ninth Judicial District Court Department 1 Daniel L.T. Fahrendorf, Viloria, Oliphant & Oster, LLP Douglas County Clerk SUPREME COURT OF NEVADA 3 (0) 1947A 

749 F.Supp. 1439 (1990) FRONT ROYAL AND WARREN COUNTY INDUSTRIAL PARK CORP., Plaintiff, v. TOWN OF FRONT ROYAL, VIRGINIA, et al., Defendants. Fred W. McLAUGHLIN, et ux., Plaintiffs, v. TOWN OF FRONT ROYAL, VIRGINIA, et al., Defendants. Civ. A. Nos. 87-0019-H, 87-0020-H. United States District Court, W.D. Virginia, Harrisonburg Division. October 22, 1990. *1440 Myron C. Smith, Robert C. Fitzgerald, Fairfax, Va., for plaintiffs. David N. Crump, Jr., Adamson, Crump & Sharp. P.C., Front Royal, Va., and Glenn M. Hodge, Douglas L. Guynn, WAW, Harrisonburg, Va., for defendants. MEMORANDUM OPINION MICHAEL, District Judge. Plaintiffs in these consolidated actions own land in the town of Front Royal, Virginia. As a result of the town's failure to supply the plaintiffs' properties with sewer and water service in a timely fashion, as required by a decree of a state annexation court, this court previously held as a matter of law that the defendants had effectuated a taking of the plaintiffs' properties. Front Royal & Warren County Industrial Park Corp. v. Front Royal, 708 F.Supp. 1477, 1484 (W.D.Va.1989) ("Front Royal I"). The court also granted plaintiffs' motions *1441 for summary judgment on their Fourteenth Amendment Equal Protection claims. Id. at 1487. Subsequently these actions came before the court, sitting without a jury, for a trial on damages. The court heard testimony from January 30 to February 1 and also on February 21, 1990. Plaintiffs seek both actual and punitive damages. This court has jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(a)(3), (a)(4). Both parties have submitted post-trial memoranda and proposed findings of fact and conclusions of law; this matter is now ripe for disposition. The court fully set forth the facts which supported the finding that a taking had occurred in Front Royal I and will not recite them again here. The court will, however, briefly summarize the facts from its previous explication in order to place the present issue — the amount of damages which the plaintiffs claim — in context. Plaintiffs are several individuals and a corporation who own land in an area annexed from Warren County by the Town of Front Royal (the "Town") under separate Annexation Court orders of 1976 and 1978. The orders of annexation required the Town to extend sewer service to the annexed areas as expeditiously as possible, but not later than five years after the entry of the orders. At the time the plaintiffs filed the present suits, the Town had not yet provided sewer service to any of the subject parcels. Because the failure to provide the sewer rendered the land unusable,[1] this court found that a taking in violation of 42 U.S.C. § 1983 had occurred. Additionally, although the Town had not made sewer available to the plaintiffs' properties, it had made the service available to other similarly situated parcels in the area. Most notably, the Town provided sewer to property belonging to the then Mayor of the Town, who was subsequently able to develop the property into a subdivision. Based on these facts, the court further found that the defendants' actions violated plaintiffs' Equal Protection rights. I Pursuant to Federal Rule of Civil Procedure 52(a), the court finds the following facts. Plaintiffs Fred W. McLaughlin and his wife, Gladys L. McLaughlin, own as tenants in common a tract of land of approximately 55 acres known as Happy Creek Knolls. The McLaughlins purchased this tract of land for $14,350.00 as an investment property in July of 1964 when it was a part of Warren County. On December 31, 1976, the Town annexed a large parcel of land including the Happy Creek Knolls tract. Immediately before the annexation, the plaintiffs subdivided their property and it was taken into the Town as a subdivision. The property is zoned R-1, which allows the construction of single family homes on lots of at least 10,000 square feet. The Front Royal and Warren County Industrial Park Corporation (the "Corporation") is a private stock company of which Fred W. McLaughlin is President. In 1973 and 1974 the Corporation purchased parcels of land totalling 86 acres in Warren County. The purchase price was approximately $107,000.00. The Town annexed this land, along with other property, in 1978. The Corporation's property was zoned industrial and had been subdivided into 16 lots before the annexation. By Order of the annexation court in 1976, the Town was given a maximum of five years within which to provide sewer service to the Happy Creek Knolls property. In accordance with the annexation court's order, sewer was to have been available to the property no later than December 31, 1981. Sewer service was not actually available to the property until October 11, 1989. Because sewer service is now available to the Happy Creek Knolls property, the court finds that the taking of that property has ceased. The plaintiffs are entitled, however, to appropriate damages for the period of the taking. *1442 By Order of the annexation court in 1978, the Town had a maximum of five years within which to provide sewer service to the Industrial Park property. In 1983 the annexation court granted the Town a two year extension of the sewer provision date. In accordance with the annexation court's order, the property was to be provided with sewer no later than December 31, 1985. As of the date of trial, sewer service was not yet fully available to the Industrial Park property.[2] The court finds that the failure of the Town to provide sewer service in a timely fashion was the sole reason why the plaintiffs were unable to develop their property: the defendants' failure to provide appropriate sewer service prevented the plaintiffs from putting their property to its fullest and best use. Even though at various times during the relevant period the property was not appropriately configured to comply with local zoning ordinances, the court finds that this was due entirely to the absence of sewer service. For the plaintiffs to have undertaken the efforts necessary to comply with the ordinances when it was readily apparent that sewer service would still be unavailable, thus leaving the property still unsalable, would have been futile. II As noted previously, the sole issue before the court is the amount of damages to which the plaintiffs are entitled. The court's previous Orders have established that a constitutional taking has occurred and that the defendants are not immune from liability for damages. Some of the evidence offered at the hearing on damages represented efforts of the parties, principally the defendants, to offer new evidence which would bolster their arguments in opposition to the court's previous rulings on liability. The court cautioned counsel on several occasions that it would consider only the evidence adduced at the hearing solely in regard to the issue of damages as the liability issues had previously been resolved. Whether such non-damages evidence was offered for the purpose of making a record is immaterial; it was not considered on the damages issue and obviously was not considered on the liability issue. A. Compensatory Damages A takings action can fall under two constitutional provisions, the fifth amendment of the United States Constitution or 42 U.S.C. § 1983.[3] In Front Royal I, this court found that the defendants had effectuated a compensable taking by violating the plaintiffs' due process rights under § 1983. That the plaintiffs' action arose under § 1983 and not the fifth amendment does not affect the appropriate measure of damages to which they are entitled. Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270 n. 3 (11th Cir.1987) [Wheeler III].[4] *1443 The question of which measure of damages the court should employ in this case is hardly clear. The court has looked to the vast array of takings jurisprudence and cannot find definitive precedent on the issue before it. As noted previously, this case does not involve condemnation proceedings, nor does it concern a taking which resulted from an unconstitutional regulation. The defendants effectuated the taking by failing to act on the annexation court's order. However, when examined in light of the Eleventh Circuit's definition of a regulatory taking in Wheeler III — "a taking that is ultimately invalidated by a court" — id., the facts of this case can most appropriately be analogized to a regulatory takings case.[5] Even so, the lack of definitive precedent on compensating a temporary regulatory taking compels the court to examine the relevant case law. Just compensation for the government's permanent acquisition of private property is the property's fair market value at the time of the taking. Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10, 104 S.Ct. 2187, 2194, 81 L.Ed.2d 1 (1984). In a temporary taking, however, "the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period." First Lutheran Church, 482 U.S. at 319, 107 S.Ct. at 2388; Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1580-81 (Fed.Cir.1990) (just compensation "is the value of the use of the property during the temporary taking, i.e., the amount which the owner lost as a result of the taking."); Nemmers v. City of Dubuque, 764 F.2d 502, 504-05 (8th Cir.1985) ("for a temporary taking, the government is responsible for compensating the owner for the interim during which it effected the taking."). The issues before the Supreme Court in First Lutheran unfortunately did not include how to measure appropriately "the value of the [temporary] use of the land" in temporary regulatory takings cases. The Court offered some guidance, however, when it held that a temporary regulatory taking is no different from the government's temporary use of private property and should be similarly compensated.[6]First Lutheran, 482 U.S. at 318-19, 107 S.Ct. at 2387-88. Indeed, the Court contemplated this measure of damages for temporary regulatory takings — that just compensation for such a taking should be determined as is just compensation for the temporary use of private property — on two occasions prior to First Lutheran. In United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958), the Court stated that if the government were to abandon a condemnation proceeding, the taking would be temporary and "[i]n such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily." Id. at 26, 78 S.Ct. at 1046. Justice Brennan similarly expressed this in his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981). In his discussion of the proper measure of relief in a temporary regulatory taking, Justice Brennan stated, "Rules of valuation for temporary `takings' may be particularly useful ... although additional rules may need to be developed." Id. at 659, 101 S.Ct. at 1308 (Brennan, J. dissenting) (citations omitted). *1444 Although the Supreme Court has yet to rule definitively on the proper measure of just compensation in a temporary regulatory taking, some of the United States Courts of Appeals which have addressed the issue have adopted Justice Brennan's approach in San Diego Gas. See Nemmers, 764 F.2d at 505 n. 2. In so doing, the courts have formulated a computation for damages which parallels that used for temporary use of private property takings.[7]See Wheeler III, 833 F.2d at 271; Nemmers, 764 F.2d at 505. The Eleventh Circuit recently addressed the issue of measuring damages from a temporary regulatory taking in a case similar to this one, Wheeler v. City of Pleasant Grove, 896 F.2d 1347 (11th Cir.1990) [Wheeler IV]. The plaintiff in Wheeler had obtained a building permit to construct an apartment complex on his property. After community opposition to the project, the City Council passed an ordinance which forbade the construction of the complex. Wheeler brought his action under 42 U.S.C. §§ 1983 and 1985. A federal district court found that the ordinance, as applied to the plaintiffs, was unconstitutional,[8]Wheeler III, 833 F.2d at 268-69, even though it did not deny the plaintiff all use of his property. Wheeler IV at 1351. In Wheeler III, the Eleventh Circuit set forth the following guidelines by which the district court was to determine the amount of damages suffered by the plaintiffs: In the case of a temporary regulatory taking, the landowner's loss takes the form of an injury to the property's potential for producing income or an expected profit. The landowner's compensative interest, therefore, is the return of the portion of fair market value that is lost as a result of the regulatory restriction. Accordingly, the landowner should be awarded the market rate return computed over the period of the temporary taking on the difference between the property's fair market value without the regulatory restriction and its fair market value with the restriction. Wheeler III, 833 F.2d at 271 (citations omitted) (footnote omitted). On remand, the district court chose not to follow the appellate court's instructions, finding instead that the plaintiffs could recover nothing because "the value of the property had increased despite the ordinance and since the ordinance had not destroyed the highest and best use of the land, `the fair market value of the ... property was not diminished by the enactment of [the ordinance].'" Wheeler IV, 896 F.2d at 1350 (citing the memorandum opinion of the district court). Once again on appeal, however, the Eleventh Circuit reversed. While noting that the land's fair market value probably did not decline as a result of the government action, id. at 1351, the appellate court rejected the district court's determination that the property's increase in value over the period of the taking necessarily negated the plaintiff's right to recover damages.[9] Repeating its previous instructions for adequately compensating the plaintiff, the Eleventh Circuit *1445 held that the district court should have determined the "difference in the fair market value of appellants' right to develop their property when they received their building permit and the fair market value of what remained after the City's actions against appellants." Id. Applying this method, the appellate court took the amount of the plaintiff's interest in the undisputed fair market value, at the time of the taking, of the complex which appellants had a right to build, and subtracted from that the plaintiff's interest in the value of the land only to get the "difference in fair market value lost as a result of the regulatory restrictions." Id. The court then computed the market rate of return on that amount to arrive at the correct amount of damages. Id. at 1352. To determine the appropriate computation of damages in the Wheeler cases, the Eleventh Circuit relied upon the Eighth Circuit's analysis in another temporary regulatory takings case, Nemmers v. City of Dubuque, 764 F.2d 502 (8th Cir.1985). In Nemmers, the plaintiff had invested in developing his land as an industrial park. The land was subsequently annexed and zoned residential, and the district court found that a temporary taking had occurred. The Eighth Circuit held that the proper method for calculating the damages which resulted from the taking was to determine "the difference between the property's fair market value when zoned [for industrial use] and its fair market value when zoned [for residential use]." Id. at 505. That amount, plus the return over the number of years at the appropriate interest rate, was the plaintiffs just compensation. Id. This court finds the opinions of the Eighth and Eleventh Circuits persuasive on the appropriate measure of damages for a temporary regulatory taking. Both Nemmers and Wheeler indicate that, in computing damages, the court should determine the market value as of the date of the taking. Wheeler, 896 F.2d at 1351; Nemmers, 764 F.2d at 504. This is consistent with permanent takings jurisprudence, which bases just compensation on the fair market value at the date of the taking. Furthermore, the approach mirrors that used in takings involving the temporary use of private property — in which cases the owners are compensated for the period of use only — as the Supreme Court in Dow and Justice Brennan in San Diego Gas indicated would be proper. By determining the difference in value between what the plaintiff would have had absent the taking and what remained after the taking became effective, and adding the appropriate interest, the court can grant a remedy which is fair and adequate. The evaluation accounts for the fact that the owner still retains the property after the taking is invalidated and thus the plaintiff is justly compensated. Before the court can apply the damages formula to the case at hand, it must briefly address alternative damages calculations proposed by the parties. During the hearing on damages, and in the parties' briefs on damages, the parties offered evidence as to the appropriateness of factors besides fair market value which the court could consider in determining the appropriate amount of compensatory damages. In particular, the plaintiffs seek economic redress for development expenses which accrued during the period of the taking. In essence, the plaintiffs suggest that they are entitled to compensation for consequential damages. Fifth Amendment takings jurisprudence conclusively establishes that when the government effectuates a taking, "[t]he owner is to be put in the same position monetarily as he would have occupied if his property had not been taken." United States v. Reynolds, 397 U.S. 14, 15-16, 90 S.Ct. 803, 804-05, 25 L.Ed.2d 12 (1970). Consequently, the Court has indicated in both permanent and temporary takings cases that just compensation does not include the consequential damages which an owner might suffer as a result of the taking. United States v. General Motors Corp., 323 U.S. 373, 380, 65 S.Ct. 357, 360, 89 L.Ed. 311 (1945) ("[T]hat which is taken or damaged is the group of rights which the so-called owner exercises in his dominion of the physical thing, and that damage to those rights of ownership does not include *1446 losses to his business or other consequential damage." (footnote omitted)). Indeed, courts have uniformly held that lost profits,[10] lost opportunities, and other consequential damages suffered because of a taking are not compensable. See United States v. 565.54 Acres of Land, 441 U.S. 506, 511, 99 S.Ct. 1854, 1857, 60 L.Ed.2d 435 (1979) ("[F]air market value does not include the special value of the property to the owner arising from its adaptability to his particular use."); United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 282, 63 S.Ct. 1047, 1056, 87 L.Ed. 1390 (1943) ("[T]he sovereign must pay only for what it takes, not for the opportunities which the owner may lose."); Yuba, 904 F.2d at 1581-1582 (in a temporary taking of mineral rights, the difference in the value of the property's gold during the taking period and after the taking is "precisely the kind of claim for consequential damages—here, lost profits— that is not an appropriate element of just compensation for the temporary taking of property."); Helenic Center, Inc. v. Washington Metro Area Transportation Authority, 815 F.2d 982, 984 (4th Cir.1987) ("ordinarily, indirect costs to the owner resulting from the taking ... are not part of the just compensation which the owner is entitled to recover."); United States v. 1735 N. Lynn St., Situated in Rosslyn, VA, 676 F.Supp. 693, 701 (E.D.Va.1987) (Damages for frustration of renovation plans are impermissible because "[t]he Fifth Amendment allows only fair market value, it does not guarantee a return on investment."). These cases clearly indicate that consequential damages are not appropriate in takings cases. Despite the overwhelming authority against awarding consequential damages, the plaintiffs have noted that many courts have espoused the principle that courts are not bound by a specific formula in determining just compensation. United States v. Virginia Elec. & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961); United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 93 L.Ed. 1392 (1949); United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 402, 70 S.Ct. 217, 221, 94 L.Ed. 195 (1949). Rather, courts should examine the equities of a specific case to ascertain, in fairness, the appropriate amount of damages. United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973); A.G. Davis Ice Co. v. United States, 362 F.2d 934 (1st Cir.1966); United States v. Lee, 360 F.2d 449, 452 (5th Cir. 1966); Foster v. United States, 2 Cl.Ct. 426, 446 (1983). The plaintiffs advance compelling arguments that equity and fairness concerns should compel this court to allow them damages beyond those ascertained by the formula governing temporary regulatory takings. They allege that economic relief should lie for certain acts, aside from the "taking" act of not providing sewer, which the defendants undertook during the course of the takings.[11] During the period of the takings, the Town of Front Royal passed two measures which increased the plaintiffs' expense of developing their property. The first, effected in 1984, was a raise in the Town's front foot charge for sewer line extension from $6.00 per linear foot to $15.00 per linear foot. Because the Town should have provided sewer service to the Happy Creek *1447 Knolls property by 1983, the higher front foot charge would not have applied to that property had the town abided by the annexation order. The Town had an extension until 1985 to provide sewer to the Industrial Park, however, and so the plaintiffs would not have had the benefit of the lower cost for sewer line extension to that property even if the Town had complied with the order. The second Town action causing economic damage to the plaintiffs was the passage of a slope ordinance in 1989.[12] Again, had the Town not willfully disobeyed the annexation court's order, the plaintiffs would not have had to comply with the slope ordinance. Because of the ordinance, however, the plaintiffs are unable to develop some of their lots, and additional lots will require a special use permit. These facts surrounding the plaintiffs' situations present a strong case for which equity and fairness demand compensation for consequential damages. The losses plaintiffs suffered at the hands of the Town government do indeed seem greater than the amount which plaintiffs would recover under the formula endorsed in Wheeler and Nemmers. Although the Eighth and Eleventh Circuits did not specifically hold that just compensation for a temporary regulatory taking does not include consequential damages,[13] this court sees no reason to invoke an exception to the well-established rule that consequential damages are not recoverable. The facts in this case are indeed compelling ones for this court to attempt to forge new ground in fashioning an appropriate measure of damages by issuing a rule that would grant compensatory damages; however, absent guidance from this circuit to do so, the court will follow the well-reasoned approaches of the Eighth and Eleventh Circuits. Accordingly, the court will not award relief for the plaintiffs' consequential damages. In addition to the lack of authority for granting consequential damages, another reason exists for denying them in this case. Concededly, because economic evaluations often depend upon assumptions, some amount of speculation is inherent in establishing market values. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943); Foster v. United States, 2 Cl.Ct. 426, 446-47 (1983). Nonetheless, a court, in its consideration of just compensation, must be wary of those elements of damages which are speculative and conjectural. Olson v. United States, 292 U.S. 246, 257, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934); Foster, 2 Cl.Ct. at 446. The court finds that the evidence in the record pertaining to consequential damages is not sufficiently founded to be the basis for compensatory relief. Even if this court concluded that the increase in the front foot charge is a consequential damage for which the owners of the Happy Creek Knolls property could be compensated, the record contains no evidence indicating how many linear feet of sewer line are at issue. Thus, the court could not compute the proper amount of damages suffered due to the higher front foot charge. Likewise, had the court found that the losses attributable to the slope ordinance were compensable consequential damages, the plaintiffs must have proved that they indeed sustained such damages by showing that they would have sold or developed the properties subject to the ordinance before it was passed in order to recover for those losses. If no demand for the affected lots existed before the regulation became applicable, then the plaintiffs suffered no damages because of it. Based on the evidence before it, the court could not find that the lots subject to the slope ordinance would have been sold or developed prior to 1989 even if the lots had sewer. Consequently, the court concludes that, even if it could appropriately award consequential damages, the evidence does not sufficiently establish the extent — if any — to which the plaintiffs sustained such damages. *1448 Having determined the appropriate method for measuring damages, the court must now apply the formula to the case at hand. The plaintiffs offered several experts on the issue of damages. Although the defendants cross-examined these witnesses, they did not present their own experts to testify on damages. They have relied instead on their assertion that the plaintiffs have not been able to complete their subdivisions because of their own failure to comply with various zoning requirements, not because of the Town's failure to provide sewer service. Thus, the defendants argue, their temporary taking did not cause any damages beyond those already resulting from the plaintiffs' noncompliance with applicable regulations. The court believes that this contention is fatally flawed because, to put it in the vernacular, it puts the cart before the horse: it assumes that the plaintiffs would have performed objectively futile activities, hoping that such actions would spur the defendants to meet obligations which, despite a court order, they had refused to do. Consequently, if the plaintiffs' experts' testimony on damages meets acceptable standards for determining the applicable market values, the court will use them to determine just compensation. The plaintiffs' expert on the market value of the land used a comparable sales approach to determine the value of both properties at the dates of the takings. The comparable sales approach — analyzing sales of similar commercial property in order to arrive at a fair market value — is generally accepted as providing the best evidence of fair market value. United States v. 179.26 Acres of Land, 644 F.2d 367, 371 (10th Cir.1981); Houser v. United States, 12 Cl.Ct. 454, 472-73 (1987). The Eighth Circuit has approved the use of the evidence of comparable sales as the "`best evidence' of damages on the rationale that comparable sales `on the whole reflect the principle of a willing seller and a willing buyer concluding arms-length negotiations.'" Nemmers, 764 F.2d at 505 (citing United States v. 47.14 Acres of Land, More or Less, 674 F.2d 722, 725 (8th Cir. 1984)). The comparability of real estate sales involves such factors as time of transaction, location of the property, quantity and quality of property sold, nature of the sale, the primary interests of the parties as well as other factors peculiar to a particular transaction. The plaintiffs' experts engaged in such an examination in order to estimate the fair market values of the properties, both with and without sewer. Because they supported their findings with a strong factual and analytical framework, and as their testimony was essentially unrebutted, the court adopts their figures in order to obtain the appropriate amount of damages. In 1981, the time of the taking of the McLaughlin property, the fair market value of that property was $148,000 with sewer and $66,000 without sewer, leaving a difference of $82,000. The period of the taking, that time in which the City ought to have provided sewer but did not, extended from January 1, 1981, to October 11, 1989. Applying the applicable interest rates, with interest compounded annually, to $82,000 for the period of December 1981 to October 11, 1989,[14] the court finds that the amount of just compensation is $176,526.56. In 1985, the time of the taking of the Industrial Park property, the fair market value of that property was $405,000 without sewer and $810,000 with sewer, leaving a difference of $405,000. Because the record shows that sewer lines run through three of the sixteen lots in the Industrial Park, and as the evidence does not show the value of the remaining thirteen lots with and without sewer service at the time of the taking, the court will reduce the $405,000 difference in value by three-sixteenths, leaving an amount of $329,062.50. The period of the taking has extended from January 1, 1985 to the present time. Again *1449 using the interest rates indicated above, the just compensation for the Industrial Park property to date is $489,072.59. The owners of the Industrial Park property shall continue to receive compensation, determined as this court has outlined, until the defendants cease their taking and provide the sewer service mandated by the annexation court. B. Punitive Damages The Supreme Court has endorsed punitive damages awards in § 1983 actions. Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625, 1637, 75 L.Ed.2d 632 (1983). Such damages are appropriate when the defendants violate federal law with evil motive or intent, or when they act with "reckless or callous disregard for the plaintiff's rights" Id. The Fourth Circuit summarized the Supreme Court's precedent for awarding punitive damages in Stephens v. South Atlantic Canners, Inc., 848 F.2d 484 (4th Cir.1988). The appellate court stated that such damages are "an extraordinary remedy ... designed to punish and deter particularly egregious conduct." Id. at 489 (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268, 101 S.Ct. 2748, 2760, 69 L.Ed.2d 616 (1981)). In Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir.1987), the court discussed the standard for awarding punitive damages, stating, "the callous indifference required for punitive damages is essentially the same as the deliberate indifference required for a finding of liability on the § 1983 claim." Although this court's determination that the defendants effected a deprivation of the plaintiffs' rights under § 1983 and the equal protection clause could support a punitive damages award, see Smith, 461 U.S. at 51-55, 103 S.Ct. at 1639; Cooper, 814 F.2d at 948, the evidence on record does not satisfy this court that such an award is meritorious. The plaintiffs' contention that the defendants need only act with "reckless or callous indifference to the [plaintiffs'] federally protected rights" is correct; they need not show malicious or evil intent. Piver v. Pender County Bd. of Education, 835 F.2d 1076, 1082 (4th Cir.1987). In its opinion granting summary judgment on the taking issue, this court concluded that the "defendants ought to have known, and that a reasonable person in their shoes would have known, that the defendants were under a legal obligation to provide sewer service to the parcels in question." Front Royal and Warren County Industrial Park Corp. v. Town of Front Royal, and McLaughlin, et ux., v. Town of Front Royal, 708 F.Supp. 1477, 1482 (W.D.Va.1989). However, this court did not make a finding regarding the defendants' malicious intent or callous indifference. The same is true regarding the equal protection claim. The basis for this court's summary judgment on the equal protection claim was not that the defendants had acted with "invidious discrimination", but because no permissible state interest existed to which defendants' decision could bear a rational relationship. Id. at 1487. After reviewing the evidence on damages, the court reaches the same conclusions as to the defendants' subjective intent. The record contains no evidence showing that the four council members who actually voted on the plaintiffs' application for sewer service were reckless or callously indifferent to the plaintiffs' rights. The Mayor and the Town Manager testified about the meetings at which the council discussed the applications for sewer, but the court cannot attribute their testimony to the voting members of council. Nor can the court base an award of punitive damages on inferences that the defendants acted egregiously or with malice. Stephens, 848 F.2d at 492. Though the evidence does show that the Town Attorney told the council, "You are required to provide [sewer] to whoever wants it within the entire annexed areas", the record does not sufficiently demonstrate that the defendants acted contrary to their understanding — however skewed or incorrect it may have been — of this advice. As to the Town Manager and Mayor Marlow, neither voted on the sewer service applications. Moreover, the strong evidence of Mayor Marlow's purported bad faith is contradicted by the factual differentiations between his application for sewer *1450 and those of the plaintiffs. Although the court is not completely convinced that the plaintiffs' allegations of corruption, impropriety and graft on the part of the defendants are without some merit, the record does not contain the substantially high measure of evidence necessary for a punitive damages award. Consequently, the court will not award punitive damages. Because the plaintiffs brought these actions under 42 U.S.C. § 1983, the court has discretion to award attorneys fees to the prevailing party under 42 U.S.C. § 1988. The court believes that this is an appropriate case for such an award. The Front Royal-Warren County Industrial Park, Inc., expended $68,096.25 for legal fees and costs in this litigation as of December 4, 1989. The plaintiffs in the McLaughlin case incurred similar expenses of $39,371.30 through the same date. The court hereby orders such amounts, plus any additional fees incurred from December 4, 1989 to the present date as may be shown to the court, to be paid by the defendants as reasonable attorney's fees. An appropriate order shall this day issue. ORDER For the reasons stated in the accompanying Memorandum Opinion, the court hereby finds as follows: (1) The Front Royal and Warren County Industrial Park Corporation, plaintiffs in Civil Action No. 87-0019-H, are entitled to recover compensatory damages in the amount of $489,072.59, costs and attorney's fees incurred through December 4, 1989 in the amount of $68,096.25, plus additional costs and fees as may be shown to the court; and (2) Fred W. McLaughlin, et ux., plaintiffs in Civil Action No. 87-0020-H, are entitled to recover compensatory damages in the amount of $176,526.56, costs and attorney's fees incurred through December 4, 1989 in the amount of $39,371.30, plus additional costs and fees as may be shown to the court. In light of these findings, it is hereby ADJUDGED AND ORDERED as follows: (1) The indicated damages amounts shall be paid by the defendants. (2) The plaintiffs herein shall make an appropriate showing of such additional attorney's fees and costs to the court by November 12, 1990. NOTES [1] Indeed, as is detailed more fully below, at the time of the trial on damages the industrial park property had still not been provided the required sewer and the individuals plaintiffs' property had had sewer services for only a matter of months. [2] Because the Industrial Park property was taken into the Town already subdivided, the Town was required to provide service to each of the lots, not merely to one point on the edge of the entire tract. Service is currently available to some of the Industrial Park lots but not the majority. [3] The fifth amendment, applicable to the states through the Fourteenth Amendment, provides "nor shall private property be taken for public use, without just compensation." Though the government may take property pursuant to formal condemnation proceedings, condemnation for "public use" is not a constitutional requisite. Government regulation can so restrict the use of land that it constitutes a taking. First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987). Even where no regulation is involved, government actions which interfere with a landowner's beneficial use of property can constitute a taking. Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200, 1206 (4th Cir.1986). Takings which do not result from condemnation proceedings are technically not entitled to fifth amendment just compensation; however, such takings may be the basis of a 42 U.S.C. § 1983 claim if they violate fourteenth amendment due process rights. Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270 n. 3 (11th Cir.1987). A governmental taking need not be permanent; the government must compensate the landowner even if a taking is temporary. First Lutheran Church, 482 U.S. at 318-319, 107 S.Ct. at 2387-88. [4] Wheeler was appealed from the district court on four separate occasions. The court will cite to both the third and fourth appellate court decisions herein. [5] Although the taking at issue in this case is technically not a "regulatory taking," the cases concerning regulatory takings are analogous for the purpose of determining the appropriate compensation. As in a regulatory taking, the defendants in this case have prevented the plaintiffs from developing their property as they chose without initiating formal condemnation proceedings. The City Council in Wheeler passed an ordinance forbidding the plaintiff to build, whereas the Town of Front Royal made the conscious decision not to act according to the mandate of the annexation court's order. The governing bodies in both cases took affirmative steps to deny unconstitutionally the plaintiffs use of their property, and therefore the facts are comparable. [6] In First Lutheran, the Court found that temporary regulatory takings were compensable by comparing them to takings in which the government temporarily exercises its right to use private property, in which cases the owners are entitled to compensation for the temporary use. First Lutheran, 482 U.S. at 318-19, 107 S.Ct. at 2387-88. [7] The method for determining appropriate damages for cases in which the government has exercised its right to temporarily use private property is well established. In such cases, the government essentially takes over an ongoing concern of the plaintiff, and just compensation is the fair rental value of the property over the period of the taking. Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949) ("[T]he proper measure of compensation ... is the rental that probably could have been obtained.") For example in Yuba, where the government had temporarily taken the mineral rights in the plaintiff's property, the Federal Circuit noted that "the usual measure of just compensation for a temporary taking ... is the fair rental value of the property for the period of the taking." Yuba, 904 F.2d at 1581. [8] The court further held that the City Council had arbitrarily and capriciously enacted and implemented an ordinance which was confiscatory in nature and had no rational purpose. Wheeler III, 833 F.2d at 268-69. [9] The Supreme Court has also rejected the proposition that "the difference between the market value of the fee on the date of the taking and its market value on the date of its return" was the appropriate measure of just compensation for a temporary taking because "there might frequently be situations in which the owner would receive no compensation whatever because the market value of the property had not decreased during the period of the taker's occupancy." Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949). [10] When courts have awarded damages akin to lost profits, the government had taken an existing business or going concern. See Kimball Laundry, 338 U.S. at 15, 69 S.Ct. at 1442 (one element of just compensation was whatever "demonstrable loss of going-concern value" the taking caused.). In this case, the taking did not involve an ongoing concern. [11] Although the plaintiffs make claims for lost profits and interest income caused by a lack of sewer service, the court need not address them separately. In Wheeler, the Eleventh Circuit held that the formula it used for compensating a temporary regulatory taking — the measure this court has adopted — accounted for the landowner's loss of "the property's potential for producing income or an expected profit." Wheeler III, 833 F.2d at 271. Moreover, specific claims of opportunity costs clearly fall within the scope of consequential damages which are routinely denied in takings cases. See Coastland Corp. v. Third National Mortgage Co., 611 F.2d 969, 977 (4th Cir.1979), Carley Capital Group v. City of Newport News, 709 F.Supp. 1387 (E.D.Va.1989). Cf. Scott v. Greenville County, 716 F.2d 1409 (4th Cir.1983). [12] The ordinance prevents development of slopes of 25% or greater and requires a special use permit for development of slopes between 15% and 25%. [13] Neither court awarded compensatory damages, nor is it apparent that the plaintiffs in those cases asked for such an award. [14] The plaintiff's experts provided the market rates of return through December of 1988. Because the record contains no evidence of the applicable interest rates from December 31, 1988 through the present, the court has used the Administrative Office of the United States Courts 52-week Treasury Bill Rate Table of Changes to determine the appropriate amount of interest accrued after January 1, 1989.

963 F.2d 380 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.Robert Barry JORDAN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Kimberly Ann JORDAN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Gregory Allen ETHERTON, Defendant-Appellant. Nos. 91-30190, 91-30191 and 91-30210. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 1992.Decided May 13, 1992. Before CYNTHIA HOLCOMB HALL, O'SCANNLAIN and LEAVY, Circuit Judges. 1 MEMORANDUM* 2 Defendants Robert Jordan, Kimberly Jordan and Gregory Etherton pleaded guilty to conspiracy to manufacture and distribute more than fifty marihuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846. All defendants appeal the denial of their motion for a Franks hearing, the sufficiency of the evidence supporting the plant count, and the calculation of their sentences. In a separate opinion, we affirm the calculation of their sentences. In this disposition, we affirm the denial of the Franks hearing and the plant count. 3 * Defendants first argue that the district court should have granted their motion for a Franks hearing. Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant is entitled to an evidentiary hearing challenging the truthfulness of statements made in a supporting affidavit only if he "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Id. at 156. 4 Defendants filed four affidavits challenging many statements in Agent Constantine's Supporting Affidavit. On appeal, Defendants narrow their focus and challenge the truthfulness of five specific statements or omissions. 5 * Defendants contend that Agent Constantine deliberately omitted the fact that he visited the Jordan property one month prior to the search and did not see or smell marihuana. They argue that if included in the Supporting Affidavit, such information would have negated probable cause. Defendants' argument is unpersuasive. There is no direct evidence of a deliberate omission, and contrary to Defendants' assertions, deliberateness cannot be inferred by examining the consequences of including this information in the Supporting Affidavit.1 Agent Constantine may have simply regarded it as unimportant that he neither saw nor smelled marihuana during that visit. The fact that Agent Constantine visited the property and did not smell or see freshly growing marihuana would not indicate that the operation had been terminated because marihuana growing is "an ongoing criminal business of a necessarily long-term nature." United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991). "[G]reater lapses of time are permitted [before information becomes stale] if the evidence in the affidavit shows the probable existence of the activity at an earlier time." Id. 6 Defendants argue that Agent Constantine deliberately omitted this information because it would undermine the reliability of CRI 1 and CRI 2. They reason that if a trained DEA agent cannot detect marihuana, it is highly unlikely that an untrained individual would be able to do so. Their argument, however, has two fact based weaknesses. First, it depends on the assumption that growing marihuana gives off a constant odor. Defendants have submitted no such proof. Second, by the time Agent Constantine visited the property, he suspected that Defendants might have moved the marihuana operation to the basement of the newly constructed outbuilding. This suspicion explains why Agent Constantine would not believe his failure to smell growing marihuana affected the probative value of the information given by CRI 1 and CRI 2. 7 Finally, even if Agent Constantine deliberately omitted the information, inclusion of the information would not negate probable cause. The Supporting Affidavit indicated that both CRI 1 and CRI 2 smelled freshly grown marihuana. This information is believable because the Supporting Affidavit indicated that at the time they detected the odor, the grow operation was probably located in the barn loft, and that warm temperatures cause the marihuana to give off an odor. CRI 1 reported seeing bright lights and aluminum foil, both of which are used in marihuana operations. CRI 3 indicated that Jordan was growing approximately 350 marihuana plants. Finally, CRI 1 noticed that a large generator operated on the property constantly, and Agent Constantine indicated that generators are frequently used in indoor grow operations to keep electric bills low and avoid detection. All of this information is sufficient to support a finding of probable cause. B 8 Understanding that they may not challenge the veracity of CRI 1's statement regarding his detection of marihuana odor, Franks, 438 U.S. at 171, Defendants argue that in light of Agent Constantine's failure to smell marihuana during his visit, he could not give credence to CRI 1's statement without demonstrating reckless disregard for the truth. This argument is unpersuasive. Agent Constantine believed that the marihuana operation had been moved to the underground bunker. He reasonably could have believed that this change in location accounted for the lack of odor during his visit. 9 We do not find United States v. Kerr, 876 F.2d 1440 (9th Cir.1989) relevant. In Kerr, the court found it "quite remarkable" that an officer could smell growing marihuana from 50 yards away. Id. at 1444-45. The present case is different because Defendants have to show that Agent Constantine did not believe CRI 1, not that a court would not believe him. In the Supporting Affidavit, Agent Constantine stated that the intense heat created by indoor operations must be blown outside by fans in order to avoid killing the plants. "When this air is vented to the outside a number of factors including natural breezes, air temperature and topographical features control it's [sic] dissipation. Because of this the distinctive odor of the growing marihuana is discernible often times for some distance away from these buildings." Agent Constantine obviously believed it was physically possible for CRI 1 to smell growing marihuana from a distance of 200 yards. 10 Again, even assuming that Agent Constantine recklessly included the information concerning CRI 1, the rest of the information in the affidavit supports a finding of probable cause. C 11 Defendants allege that Agent Constantine deliberately omitted the fact that CRI 3's statement concerning the existence of 350 plants on the Jordan property was not based on CRI 3's personal knowledge. We reject this argument. There is no tactical reason for the omission because "[h]earsay reported by informants is no bar to a finding of probable cause." United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir.1986); see also United States v. Woods, 720 F.2d 1022, 1029 (9th Cir.1983) ("There is no requirement ... that the tip contain the basis for the information or that the informer be a percipient witness to the reported facts."). All that is required is a showing of the informant's veracity and the reliability of his knowledge. Angulo-Lopez, 791 F.2d at 1396-97. 12 CRI 3 was a reliable informant with knowledge of Jordan's affairs, whatever the source of that knowledge. Agent Constantine and other law enforcement officers corroborated CRI 3's detailed travel information about Robert Jordan's February, 1990 trip to Oregon. See Woods, 720 F.2d at 1029 ("the detailed and accurate predictions in [the] tip indicated that, however his information was obtained, it was reliable.") (quotation omitted); see also Illinois v. Gates, 462 U.S. 213, 244 (1983) ("because an informant is right about some things, he is more probably right about other facts...."). D 13 Defendants next allege that Agent Constantine could not have believed CRI 1's statement that he had seen aluminum foil and lights through a hole in the floor of the barn loft. Defendants attempt to prove recklessness by arguing that no reasonable person would have believed CRI 1 because the hole in the loft floor was the size of a quarter and was located two feet above CRI 1's head, making it impossible for CRI 1 to see into the loft. This argument fails because Defendants did not demonstrate that, at the time Agent Constantine learned of CRI 1's observations, Agent Constantine knew the size of the hole, or that CRI 1 made the observations from a two-foot distance. Without this information, Agent Constantine had no reason to doubt the reliability of CRI 1's statement. Moreover, even if Agent Constantine had known that CRI 1 stood two feet below a hole the size of a quarter, it would have been reasonable to believe that CRI 1 could see at least the bright lights through the hole. Defendants did not demonstrate why it would be impossible for CRI 1 to notice some aluminum foil from a distance of two feet. E 14 Finally, Defendants challenge the truthfulness of the statements concerning CRI 1's prior experience with marihuana. The affidavit submitted by Stephen Sady points out inconsistencies between the statements in the Supporting Affidavit relating to CRI 1's prior drug experience, and CRI 1's testimony at the pretrial hearings. The government calls Defendants' characterization of the pretrial testimony into question. Even accepting the Defendants' version of the pretrial testimony, however, the inconsistencies do not entitle Defendants to an evidentiary hearing for three reasons. First, there is no evidence that Agent Constantine deliberately misrepresented CRI 1's prior drug experience. Defendants have not demonstrated what information Agent Constantine had gathered at the time he drafted the Supporting Affidavit. Without such a showing, it is impossible to prove deliberate or reckless misrepresentation. Second, the pretrial testimony supports the conclusion that CRI 1 had at least some experience with marihuana grows. Whether he had seen one or twenty marihuana grows, either indoor or outdoor, Agent Constantine could conclude that CRI 1 had experience in this area, and had been associated with persons who grow marihuana. Third, CRI 1's prior drug experience does not affect the probable cause determination.2 His prior experience is merely background information to establish basis of knowledge and reliability. Without this background information, there is sufficient information to establish reliability because D/S Manning corroborated other information given by CRI 1. See Gates, 462 U.S. at 244 (corroboration of some information renders other information trustworthy); Woods, 720 F.2d at 1029 (corroborated tip renders hearsay information reliable). II 15 Defendants next contend that the district court's plant count cannot be supported by the evidence because "the government relied merely on hearsay testimony regarding another officer's plant count." An official count was conducted by a DEA agent, at the direction of Agent Constantine. The count was limited to "living viable plant material that had a root structure." The record at sentencing also included a video tape of the seized plants and photographs of the plants prior to seizure. 16 Defendants' argument is meritless because sentencing judges may consider evidence that would not be admissible at trial when determining facts relevant to sentencing, provided that the evidence is reliable. U.S.S.G. § 6A1.3(a) ("the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability...."). 17 Kim Jordan argues that the video tape and photographs do not provide a "reasonable review of the officer's hearsay testimony" because they show that the plants were not pulled up by the roots, but rather cut off at the stalks. She does not state why cutting off at the stalk renders it impossible to tell if the plant is "a propogating [sic] unit ... and could survive on its own." The fact that the roots were not attached does not mean that the plants had not yet formed roots and were not capable of survival. We reject her argument and find the evidence sufficient to support the district court's plant count. 18 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 Defendants also attempt to scare up a motive for omitting the visit by stating that they did not receive notice of Agent Constantine's visit until cross-examination during the pretrial hearings. This is untrue. In its brief responding to Defendants' motion to suppress, the government expressly mentioned Agent Constantine's visit 2 While the extent of CRI 1's prior experience with marihuana growing operations may have been relevant to his ability to identify the scent of freshly growing marihuana, we have already noted that this olfactory evidence was not essential to the probable cause determination

101 Ill. App.2d 69 (1968) 242 N.E.2d 4 The People of the State of Illinois, Plaintiff-Appellee, v. Orville McCoy, Defendant-Appellant. Gen. No. 10,931. Illinois Appellate Court — Fourth District. November 12, 1968. Hagin Harper, of Champaign, for appellant. *70 No brief for appellee. SMITH, P.J. Convicted in a bench trial of involuntary manslaughter for conduct arising out of an automobile accident, the defendant pleaded not guilty, waived a jury trial, was found guilty by the court and admitted to probation. One of the probationary terms was a one-year sentence to the Illinois State Farm at Vandalia. Defendant appeals not only from the judgment of guilty, but also from the order granting probation and "denying the defendant the State's recommendation that a thirty-day jail sentence be imposed." His motion for new trial attacks the judgment of guilty on the ground that "the State did not prove the guilt of the defendant beyond a reasonable doubt." [1] On oral argument in this court, defense counsel suggested that we should treat the "not guilty" plea as a tacit "guilty" plea and clearly indicated that the spectre of a wrongful death action was either pending, impending or working in the hinterlands and that it casts its spell over this entire proceedings. Patently in this court, we cannot treat a not guilty plea as a "tacit" plea of guilty. "The law of Illinois does not recognize a `provisional or pro forma' plea.... (People v. Miller, 264 Ill. 148.)" People v. Grabowski, 12 Ill.2d 462, 464, 147 NE2d 49, 50. There was a not guilty plea in the trial court and that is where it must remain on this record on review. Defendant's motion for new trial attacks the judgment of guilty on the ground that "the State did not prove the guilt of the defendant beyond a reasonable doubt." In his brief to the court accompanying the motion for new trial, he sets up as the sole ground that the only evidence heard by the court was hearsay evidence; that such evidence has no probative value, and that accordingly there was no evidence upon which the court could find (1) that a crime was committed or (2) that the accused did it. The *71 sole question therefore is whether uncontradicted hearsay testimony received without objection and standing alone may establish guilt beyond a reasonable doubt. When the case was called for trial, the court inquired as to whether or not both sides were ready to proceed. Defense counsel said, "I might say to the Court, off the record...." (Not reported.) The State's Attorney then said, "Both sides are ready and I would like to be sworn." He then testified that he had attended the coroner's inquest, heard the witnesses testify at that inquest and had also made some independent investigation of the circumstances himself. He related the occurrence events as told to him, gave the names of all the witnesses, stated that these facts could be established by evidence that is not hearsay and rested. The facts related, if competent and true, fully justify the court's decision in the case and its disposition. The defense counsel then stated, "The defendant rests." The record shows that both parties waived argument, the court found the defendant guilty of involuntary manslaughter and entered judgment on that finding. Defendant moved for probation. On May 26, the matter came on on the petition for probation. No evidence was offered by either side, but both attorneys argued the merits of probation. The probation officer's report was filed that morning with a recommendation for probation and a "short sentence." After reviewing the circumstances, the court then stated that he saw no reason why he should not grant probation, but that "I think I should impose as a condition of this probation a very decisive jail sentence or a state farm sentence. Now what that should be, I don't know ... but it can't be less than 1 year." The defense then said, "I wonder if we might see the Court in chambers? With the State's Attorney." The Court, "I will be glad to talk to you. I want to take all these things in consideration." Whatever may have transpired in chambers *72 is not reported, but its result was an order admitting the defendant to probation with a term of 1 year at the Illinois State Farm at Vandalia. [2] The statement that hearsay testimony has no probative value and has no tendency to prove a substantive fact is much too broad. Evidence received under the many exceptions to the hearsay rule does not change its name; it is still hearsay. It is, nevertheless, admissible and it does have probative value. Originally stigmatized as a sibling of the gossip family, a general dubiety arose about its accuracy and its truth and it was denied admissiblity. Through permissive and restrictive legislative rules of evidence, judicial decisions, necessity, the experience of mankind, the passage of time and where the circumstances under which the statements are made establish that the probability of its truth and its accuracy outweighs its heritage of unreliability, the rule against admissibility has been steadily eroded. The fact that such testimony is received without objection has no effect on its inherent quality and adds nothing to its probative value. People v. Harrison, 25 Ill.2d 407, 185 NE2d 244. The fundamental purpose of the hearsay rule was and is to evaluate the quality of the evidence by subjecting the source of the assertion to cross-examination by the party against whom it is offered. Absent the opportunity for cross-examination and in the face of an appropriate objection, the objection must be sustained and the proffered evidence rejected. See discussion in People v. Carpenter, 28 Ill.2d 116, 190 NE2d 738. In 79 ALR2d 897, II, § 3, it is stated: "It appears to be the general rule, supported by the overwhelming weight of authority, that where inadmissible hearsay evidence is admitted without objection, it may properly be considered in determining the facts, the only question being with regard to how much weight should be accorded thereto." *73 In Town of Cicero v. Industrial Commission, 404 Ill. 487, 89 NE2d 354, 360, it is stated: "... Testimony, although hearsay and incompetent, if received without objection is to be considered and given its natural probative effect as if it were in law admissible...." The rationale of this rule is aptly stated in Poluski v. Glen Alden Coal Co., 286 Pa 473, 133 A 819, 79 ALR2d, pp 911, 912, in these words: "... Hearsay evidence may accurately portray a given set of circumstances. The reasons which exclude such a portrayal do not detract from its truth or accurateness. These reasons are the legal barriers which have been erected by the law, and which, in the interest of justice, the parties may move aside. Under this reasoning, the evidence is then competent to the full extent of such probative value as it may have under all the circumstances." Received into evidence without objection, this evidence does have probative value. How much? The trial court examined, tested and weighed it. In the crucible in which it was presented to him, he found its accuracy and its authenticity without blemish and felt and found that it was sufficient to prove the guilt of the defendant beyond a reasonable doubt. It would be fictional fantasy to conclude that anyone in the courtroom on the day this evidence was presented, including the defendant and his counsel, doubted or disputed but that the recitation of the occurrence events did accurately and truthfully state the facts. Nothing in this record — save the unsavory reputation of hearsay testimony — weakens this conclusion. The trial court's vision was clear and his scales were accurate. This record must be appraised in its unusual and unique factual background. The indictment charged involuntary *74 manslaughter through the operation of a motor vehicle in a reckless manner. It is thus clear that the spectre of a wrongful death action either pending, impending or lurking in the hinterlands casts it spell over this proceedings. With commendable forthrightness, it was so indicated on oral arguments in this court. There was no objection to the testimony of the State's Attorney, there was no motion to strike it as hearsay, there was no motion for a verdict of not guilty because of its insufficiency. Both sides waived argument on the issue of guilt. There was a motion for admission to probation; there was a hearing on that motion with neither side offering any evidence, with both sides arguing for probation, and with the only basic issue presented being whether or not there should be confinement as a part of the probation order and if so, how long. The only disenchantment came in the length of the jail sentence. In its absence, there is little doubt but that this case would have been laid to rest in the trial court. [3-5] In this court, the defendant now seeks only an absolute discharge or in the alternative a new trial. It is almost universally recognized in this State that an accused may by stipulation waive the necessity of proof of all or any part of the case which the People have alleged against him. Having done so, he cannot complain in this court of evidence which he has stipulated into the record. People v. Hare, 25 Ill.2d 321, 324, 185 NE2d 178, 179. Citing People v. Polk, 19 Ill.2d 310, 167 NE2d 185; People v. Pierce, 387 Ill. 608, 57 NE2d 345; People v. Malin, 372 Ill. 422, 24 NE2d 349. Stipulated facts may be hearsay, but are accepted as the truth because they are stipulated to in open court and are treated either as admissions by the defendant or as the mutual agreement of the parties as to the truth. It would be traveling on a treadmill to return this case to the trial court for proof of facts accepted as true by everyone. Neither in the trial court nor in this court is it remotely suggested by *75 the defendant that the facts recited by the State's Attorney as to the occurrence events are untrue. The proceedings was patently an attempt to dispose of an unpleasant matter in a pleasant manner. While purportedly on its face an adversary proceeding, it was in truth and in fact an "agreed hearing." There was no agreement either as to probation or a jail sentence. The probation officer recommended probation, the State's Attorney did not oppose it, and both attorneys discussed only the desirability of or the necessity for a jail sentence. There was no seduction or betrayal of the defendant by the State. It warps reality beyond recognition to assert that the acquiescence in, consent to, approval of or a waiver by the defendant of either the admissibility of or the weight attributable to this testimony is not shown by this record. Both the procedure and the result, save only the jail sentence, were in effect and in fact mutually agreed to. Neither due process, fair play nor simple justice require us to exonerate this defendant from the procedure and the result to which he knowingly, willingly, and we submit, intentionally subscribed. In so doing, we do not excommunicate from criminal proceedings either the rules of evidence or the requirement that the defendant's guilt be established beyond a reasonable doubt. We impose no onerous burden on the defendant. We require him only to use the procedural tools available to him in the trial court before complaining in this court. He can't complain of the weeds in the garden which he joined in planting if he elects, as he did here, not to use the hoe. The judgment is affirmed. Affirmed. TRAPP, J., concurring. CRAVEN, J., dissenting. *76 CRAVEN, J., dissenting: Although it is difficult to conceive of a criminal case in which there is no evidence of the crime charged nor of the defendant's guilt other than pure hearsay, this is such a case. My colleagues affirm the trial court, sitting without a jury, in finding the defendant guilty, with the record in such an inconceivable state. I cannot agree with either the result reached nor the route traveled. It is, of course, fundamental that in a criminal proceeding the accused is presumed innocent until his guilt is established. The burden of proof is upon the prosecution to establish beyond all reasonable doubt the fact of the crime and the defendant's criminal responsibility for its commission. The burden of proof does not shift, and inaction by the defendant can never be a replacement for the affirmative burden on the prosecution. In this case the defendant is charged with involuntary manslaughter, being section 9-3 of chapter 38, Ill Rev Stats 1965, the specifics of the charge being that the defendant, "acting in a reckless manner, on October 8, 1966, struck and killed Nellie LeCrone, with an automobile, without lawful justification." The defendant entered a plea of not guilty. The cause was set for trial on May 11, 1967. The defendant waived jury trial. Both the defense and prosecution announced that they were ready to proceed. The state's attorney, at his request, was sworn and testified. His testimony, the only testimony in the case, is as follows: "... I am State's Attorney of this County. On the eighth of October, 1966, Orville McCoy, who is the defendant in this proceeding, and who is the gentleman sitting at the counsel table here in the Court Room, was driving an automobile in a southernly direction from Monticello, apparently headed toward Bement at about ten o'clock in the morning. I attended the Coroner's inquest, which was held in Bement, on November third, and heard the witnesses *77 testify at that inquest. I also made some independent investigation of the circumstances concerning this incident. While Mr. McCoy was driving in a southernly direction he crossed the center line of the pavement so that he was driving on the wrong side of the pavement, and narrowly missed having an accident with a Mrs. Scrimager, who was forced off the road in order to avoid a head-on collision with the car being driven by Mr. McCoy. The next car was being driven by a daughter of Mrs. LeCrone and while the car being driven by Mr. McCoy was also on the left-hand side of the road there was a head-on collision between his car and the LeCrone car, and as a result of that collision Mrs. LeCrone died. My further investigation brought out the fact that before Mr. McCoy left Monticello he had been in a local tavern, The Corner Tavern, and had two shots of whiskey with beer chasers, and this matter was presented to the Grand Jury and an indictment returned indicting him for involuntary manslaughter. These facts could be established by evidence, which is not hearsay evidence, by Michael William LeCrone, who was a passenger in the LeCrone car, by Clifford Scrimager, who was on the highway and saw Mr. McCoy driving in an erratic fashion, by Susan Scrimager who was also driving on the highway, and was forced off the highway in order to avoid a collision with Mr. McCoy, by Donald Blickensderfer, who was a State Trooper, who investigated the accident after it occurred, by Margaret A. Camden who was the driver of the automobile in which Nellie LeCrone was a passenger, and that is all I care to say at this time." No objection to this narrative recitation by the state's attorney was made by defense counsel and no question was raised as to the propriety of the prosecuting attorney's testifying. No other evidence was offered by *78 the People and none was offered by the defense. The only pertinent thing in the record attributable to the defense relevant to the merits of the proceeding is the one phrase that "the defense rests, ...." Both sides waived argument and the court found the defendant guilty. The foregoing is the entire record other than those portions of the record relating to the probation proceedings, and those are irrelevant to the issue in this case as I see it. The issue here, and the only issue, is whether hearsay evidence, admitted without objection and unsupported by any other evidence of any kind or character, will support a finding of guilty in a criminal case. I think it will not. Hearsay evidence is excluded when objection is made because it is not reliable evidence. It is indeed and in fact a prominent member, if not the patriarch, of the gossip or rumor family. "Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay is totally inadmissible." Queen v. Hepburn, 11 U.S. 290, 3 L Ed 348 (1813). This is the apt language of Mr. Chief Justice John Marshall. In addition, the inability to subject hearsay to the cleansing effect of cross-examination is one of the fundamental reasons for its judicial rejection. See People v. Carpenter, 28 Ill.2d 116, 190 NE2d 738 (1963). This rule is a rule of evidence. It can be, and in this case was, waived. The effect of the waiver means only that the hearsay evidence is admitted and may be considered. Once it's admitted, what is its weight, its worth, what is its reliability? Certainly it is not enough to prove guilt beyond a reasonable doubt. The rule applicable to the great majority of jurisdictions is stated: *79 "Hearsay evidence, admitted without objection, has been held to have probative value, and should be considered and given its natural probative effect, subject to any infirmative suggestion due to its inherent weakness, and may establish a material fact in issue, support a finding, and sustain a verdict or judgment. However, such evidence should be given only the weight to which it is entitled, and the failure to object adds no weight to the evidence if intrinsically it had none. In some jurisdictions it has been held that hearsay evidence, although admitted without objection, is without probative force, is incompetent to establish a material fact in issue, and will not sustain a finding or sustain a verdict or judgment when unsupported by other evidence." 88 CJS, Trial, § 153. (Citations omitted.) See also 30 Am Jur2d, Evidence, § 1103; 4 Jones, Evidence, § 984 (5th ed 1958); and the annotation on the subject in 79 ALR2d 890. Although many cases are cited and discussed in the annotation, none suggests that hearsay alone will support a criminal felony conviction. The relevant Illinois cases certainly do not lead one to that conclusion. In Grier v. Barkley, 182 Ill. App. 541, the court held that hearsay evidence to the effect that a loan was made by a husband to his deceased wife in consideration of her signing a contract to sell certain land was not proof of such fact even though the evidence was admitted without objection. Mr. Justice Solfisburg, speaking for the Appellate Court Second District, in Looby v. Buck, 20 Ill. App.2d 156, 155 NE2d 641, 644 (2nd Dist 1959), observed that "A statement by a witness whose testimony is based not upon personal knowledge but upon hearsay has no tendency to prove anything." The court cited 2 Wigmore on Evidence (3rd ed, 1940), § 657. *80 In People v. Harrison, 25 Ill.2d 407, 185 NE2d 244 (1962), the court recognized the unreliability of hearsay and observed that its probative value was not enhanced by the fact that it was received without objection. One Illinois Appellate case, Arkansas Sweet Potato Growers' Exchange v. Wignall-Moore Co., 249 Ill. App. 34, held that unobjected to hearsay was sufficient to establish the graded rating of some potatoes. In People v. Jones, 382 Ill. 603, 48 NE2d 364 (1943), hearsay evidence as to corporate existence was held sufficient to establish that fact. In cases where the burden of proof is by the preponderance of the evidence, hearsay may be sufficient, if believed by the trier of fact, to establish a fact in controversy. On appeal hearsay may be sufficient to support a civil judgment. Carraway v. Johnson, 63 Wash2d 212, 386 P.2d 420. However, if the quantum of proof required is "substantial evidence," hearsay alone is not sufficient. There must be a residuum of legal evidence or evidence of some probative value. William H. Van Vleck, Inc. v. Klein, 50 Misc2d 622, 271 NYS2d 64. In Benjamin v. Benjamin (Mo), 370 S.W.2d 639 (1963), the court indicated that if a social worker report, admittedly hearsay, had been the only basis of a child custody award, the court would seriously consider reversal. While I may not be in accord with the minority view, as evidenced by Texas, Georgia and some New York cases, that hearsay has no probative value and will not support a finding of fact, no case has been cited that suggests that hearsay, whatever the source, can, unaided by some residuum of reliable evidence, support a finding of guilty in a felony case. The majority opinion discusses the fact that this record is in such an unorthodox posture possibly because of a civil action for wrongful death either pending or impending. *81 That, to me, has no bearing on the issue and certainly does not excuse the unorthodox procedure here employed. The defendant here pleaded not guilty and the burden of proof was on the prosecution. A wrongful death case, actual or contemplated, does not alter the criminal proceeding, nor affect it in any way. I find nothing in the record that justifies a conclusion that the defendant "stipulated" to anything. The failure to object to the narrative statement of hearsay renders it admissible, but such failure to object is not a stipulation as to its truth. The failure of the defendant to object when objection should have been imposed, as a matter of reflex, cannot be translated so as to make passive conduct active and the equivalent of a stipulation as to the truth of the narrative statement. To do so is to effectively nullify the plea of not guilty and to create a provisional or pro forma plea or a nolo contendere plea, both of which are alien to the criminal law of this jurisdiction. People v. Grabowski, 12 Ill.2d 462, 147 NE2d 49 (1958). There is in this case an undisposed of motion for a new trial, alleging as the grounds therefor that there was a failure to prove the defendant guilty beyond a reasonable doubt. Failure to prove guilt beyond a reasonable doubt is not grounds for a new trial, and even if we would like to send this case back for a new trial with a fresh start, we would be precluded from doing so. See the thorough discussion of this point by Mr. Justice English in the supplemental opinion on petition for rehearing in People v. Brown, 99 Ill. App.2d 281, 241 NE2d 653 (1st Dist 1968). It is regrettable that the state's attorney did not see fit either to file a brief or to argue this matter orally before this court. This failure leaves the judgment of the trial court without the support of a brief and argument and, in part at least, casts this court in the dual *82 role of advocate and judge. This failure could well justify a reversal without consideration of the merits. See People v. Spinelli, 83 Ill. App.2d 391, 227 NE2d 779 (2nd Dist 1967); People v. Keeney, 96 Ill. App.2d 323, 238 NE 2d 614 (4th Dist 1968). Two reasons exist, therefore, that in my view compel a reversal. I find none that justify an affirmance. Accordingly, I dissent.

                                                                           In The                                                 Court of Appeals                         Sixth Appellate District of Texas at Texarkana                                                   ______________________________                                                                No. 06-10-00106-CV                                                 ______________________________                   KEITH DICKEY AND WIFE, SUZANN DICKEY, Appellants                                                                   V.               CHARLES E. WARE AND COLE TITLE COMPANY, Appellees                                                                                                                                                   On Appeal from the 336th Judicial District Court                                                              Fannin County, Texas                                                             Trial Court No. 37473                                                                                                                                                       Before Morriss, C.J., Carter and Moseley, JJ.                                             Memorandum Opinion by Justice Moseley                                                      MEMORANDUM  OPINION                         Keith Dickey and Suzann Dickey, the appellants in this case, have filed a motion seeking to dismiss their appeal.  Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, their motion is granted.  Tex. R. App. P. 42.1.             We dismiss the appeal.                                                                             Bailey C. Moseley                                                                         Justice   Date Submitted:          March 14, 2011 Date Decided:             March 15, 2011

478 F.2d 575 73-1 USTC P 9439 AIR TERMINAL CAB, INC., Appellee,v.UNITED STATES of America, Appellant.AIRWAY TAXI COMPANY, INC., Appellee,v.UNITED STATES of America, Appellant. No. 72-1348. United States Court of Appeals,Eighth Circuit. Submitted Jan. 10, 1973.Decided April 30, 1973.Rehearing and Rehearing En Banc Denied May 22, 1973. Wesley Filer, Atty., Dept. of Justice, Washington, D. C., for appellant. William I. Rutherford, St. Louis, Mo., for appellees. Before LAY, HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. 1 The question before the Court is whether drivers of respondent's taxicabs are employees within the provisions of the Federal Insurance Contributions Act (FICA) (26 U.S.C. Sec. 3101 et seq.) and the Federal Unemployment Tax Act (FUTA) (26 U.S.C. Sec. 3301 et seq.), which impose taxes on employers to finance government benefits for employees. 2 These consolidated cases are suits for refund by two taxicab companies of partial payment of an assessment of withholding, FICA and FUTA taxes, penalties and interest allegedly owed by the plaintiffs. The plaintiff taxpayers have each paid one quarter of the alleged liabilities under protest.1 The Government counterclaimed below for alleged liabilities for other quarters. The years in question are 1965 through 1968. The District Court for the Eastern District of Missouri, Judge Wangelin presiding, found that the taxicab drivers were not employees for purpose of federal income tax withholding, FICA and FUTA taxes. Air Terminal Cab, Inc. v. United States, 341 F.Supp. 1257 (E.D.Mo.1972). 3 The resolution of the question whether the taxicab drivers are employees must be made by applying common law definitions of "employee" and "independent" contractor. It was thought by some that the decisions in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947) resulted in a more relaxed meaning of the term "employee" as used in the tax statutes. Shortly after those decisions, however, Congress amended the definition sections of the pertinent acts to make it clear that the term "employee" should be read "under the usual common law rules." 26 U.S.C. Sec. 3121(d)(2) and Sec. 3306(i). See H.Conf.Rep.No. 2771, 81st Cong. 2d Sess. p. 104. See also, Hoosier Home Improvement Company v. United States, 350 F.2d 640, 642 (CA 7 1965). 4 The working relationship between the taxicab drivers and the appellees is undisputed and the facts are fully stipulated. The pertinent facts necessary for determination of the issue are as follows: Appellees, Air Terminal Cab, Inc. (Air Terminal) and Airway Taxi Company (Airway) are corporations organized and existing under and by virtue of the laws of Missouri. The method of operation of the two companies is substantially similar, but each is separately owned and operated. The two companies obtained franchises from St. Louis County to operate a specified number (12 each) of taxicabs within that county. Their cabs can only pick up passengers within the unincorporated areas of St. Louis County. The primary source of passengers in this restricted area is Lambert Airfield where passengers are picked up by the taxicabs waiting in line. The County granted franchises to appellees whose businesses involve company owned cabs operated by drivers who receive their compensation by retaining a percentage of the fares collected. 5 The companies do not have formal business offices but are operated from the homes of their respective presidents. They do not advertise nor do they have listed telephone numbers in the telephone directory. The taxicabs owned by the companies are not radio equipped, nor is there any kind of an operational dispatcher system. The drivers do not regularly report their whereabouts, nor do they receive instructions from the company presidents. The presidents may, if it becomes necessary to contact a driver, leave messages at the service stations where the taxicabs are left overnight, or they may call the drivers at their homes after working hours. 6 The taxicabs used in the businesses were owned and insured for liability by appellees. The drivers do not carry any insurance on their operation of the taxicabs. They are equipped with fare meters and have the company name, either "Lambert Airfield Cab, Co." or "Lambert Airport Cab, Co." painted in black letters on the door. When not in use, the taxicabs owned by each company are parked at separately owned service stations, in return for which each company contracts out to the particular service station the minor maintenance work needed on the taxicabs. 7 During the years in suit-1965 through 1968-the drivers of the companies' taxicabs operated in the following way: 8 (a) At the beginning of their shifts, each of the drivers pick up the taxicab he is to drive at the service station where the particular driver's company keeps the taxicabs pursuant to the maintenance-parking arrangement described above. 9 (b) From the service station, the drivers usually proceed directly to Lambert Airfield to pick up fare-paying passengers. 10 (c) After a passenger has been left at his destination, the drivers usually return directly to Lambert Airfield to pick up another fare-paying passenger. A driver makes an average of six (6) trips a day, consisting of transportation of a passenger from Lambert Airfield to the passenger's destination and return to the Airfield. 11 (d) The drivers maintain a trip sheet on which is to be noted the pick up point and destination of each fare-paying passenger and the amount of the fare paid by each passenger. 12 (e) At the end of the shift, each driver deducts from the total amount of fares collected, the amount expended for gasoline and oil. The amount remaining is then divided equally between the company and the driver. The driver takes the company's share and puts it in an envelope then along with the trip sheet drops the envelope through a slot in a metal strong box at the service station where the taxicabs are parked when not in use. The driver retains his own share of the fares collected and receives no other remuneration. These envelopes are picked up regularly by the president of the company. The trip sheets and envelopes are furnished to the drivers by the companies. 13 (f) The drivers do not use the taxicabs for their personal use. At the end of their shift, the drivers return the taxicabs to the service station to be parked and left until the next shift. 14 The drivers who drive the taxicabs owned by the plaintiff companies, as well as drivers for other taxicab companies in the St. Louis and St. Louis County areas, are organized into and are members of Local 688 Warehouse und Distribution Workers Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen of America. Pursuant to contracts entered into with Local 688, effective September 1, 1965 and extending through 1968, "owner-drivers"2 are regarded as employees of taxpayers and taxpayers reserve "the right to control the manner, means and details of, and by which the owner-operator performs his services, as well as the ends to be accomplished." 15 The drivers are required to work a minimum of nine hours per day, five days per week pursuant to the union contract. They may work a maximum of 14 hours per day and six days per week. In addition, starting times and days to be worked are set by taxpayers. After drivers have completed one year of work they are entitled to a one-week paid vacation, sick leave benefits, and specified paid holidays. Article XII of the union contract gives the companies the right to discharge drivers pursuant to the union grievance procedure. 16 The issue of whether an employer-employee relationship exist for purposes of employment taxes has generally been held to be one of fact. Saiki v. United States, 306 F.2d 642, 648 (CA8 1962); American Consulting Corp. v. United States, 454 F.2d 473, 477 (CA3 1971); Lanigan Storage & Van Co. v. United States, 389 F.2d 337, 340-341 (CA6 1968); Lifetime Siding, Inc. v. United States, 359 F.2d 657, 662 (CA2 1966); Hoosier Home Improvement Co., Inc. v. United States, 350 F.2d 640, 643 (CA7 1965); McGuire v. United States, 349 F.2d 644, 646 (CA9 1965); Service Trucking v. United States, 347 F.2d 671, 672 (CA4 1965). 17 In the instant case the trial court likewise held it was a question of fact, stating at page 1263 of 341 F.Supp.: 18 "The question of plaintiffs' control over the manner and means of the operation of the taxicab is a factual question. Considering all factors, the Court concludes that the plaintiff had little, if any, control over the means and method by which the drivers performed their services." (emphasis added) 19 However, this Court has not hesitated to reverse where the evidence did not support the conclusion reached by the trier of fact. Saiki v. United States, supra, 306 F.2d 642, 652 (CA8 1962); United States v. Kane, 171 F.2d 54 (CA8 1948). 20 Where the facts are stipulated "and there is no conflict in the evidence, or in the inferences which reasonably can be drawn therefrom, this Court may rule upon the question of law presented and is not restricted by the limitation of Rule 52(a) F.R.Civ.Proc." United States v. Kavanaugh, 308 F.2d 824, 828 (CA8 1962); United States v. Mississippi Valley Barge Line Co., 285 F.2d 381, 388 (CA8 1960); Compare, Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Azad v. United States, 388 F.2d 74, 78 (CA8 1968). 21 Moreover, even if we would apply the "clearly erroneous" rule, the Supreme Court has pointed out that "a finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." United States v. U. S. Gypsum Company, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In the case at bar the facts are largely stipulated and there is no dispute as to them. Whether the question for determination is viewed as one of fact or law, we are convinced that under applicable standards a mistake has been committed in the result arrived at by the trial court. 22 This Circuit has not directly passed on the question of whether a taxicab driver is an employee for federal employment tax purposes. The two leading cases in this area appear to be Party Cab Company v. United States, 172 F.2d 87 (CA7 1949), cert. denied, 338 U.S. 818, 70 S.Ct. 62, 94 L.Ed. 496 (1949) and United States v. Fleming, 293 F.2d 953 (CA5 1961). In Party Cab the taxicab drivers worked essentially on a rental basis whereby they paid a fixed fee for the use of a cab and were subject to little control over their daily routine other than fixed working hours. The court held that the drivers were not employees for employment tax purposes. In Fleming, the drivers were directed to pickups by radio dispatcher calls, were required to account for their trips by use of trip reports, were subject to discharge, did not pay for their own gas and oil, and were required to split their fares with the company (65% to the company). In finding that the taxicab drivers were employees, the court in Fleming relied heavily on the fare-splitting arrangement between the drivers and the company. 293 F.2d at 957. The court there stated: 23 "The large measure of control here present, the operation by the Company of a taxi business rather than merely a renter of cabs, and other factors require a determination that the employer-employee relationship existed." (emphasis added) 24 We stated, supra, that common-law tests are to be used to determine the status of the taxicab drivers. These common law tests mentioned in the Internal Revenue Code sections here involved, 26 U.S.C. Secs. 3121(d)(2) and 3306(i), are elaborated in corresponding sections of the Treasury Regulations, 26 C.F.R. Secs. 31.3121(d)-1 and 31.3306(i)-1, which provide: 25 "Generally such relationship exists [of employer-employee] when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work to the individual who performs the services." 26 ****** 27 * * * 28 "Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case." (Emphasis added.) 29 Thus, control, either actual or the right to it, is the basic test used to determine the relationship in question. Here there were no supervisory employees, no officers, no garages, no radios, no dispatchers, no telephones, and no regular contact between appellees and their drivers. On the other hand, the drivers had regular working hours, were limited as to where they could pick up customers, could not use cabs for their personal use, were required to account for fares by submitting "trip sheets," and were required to split (after deducting amounts spent for gas and oil) their fares evenly with appellees. This arrangement closely resembles that in Fleming, supra, where the court held that the taxpayers were conducting a business as a common carrier with employees rather than the rental operation as found in Party Cab, supra. The Internal Revenue Service has also ruled that the receipt or fare sharing arrangement diminishes the likelihood of a true lessor-lessee relationship because of the company's interest in receipt of the maximum amount of income possible in return for its financial risks. Rev.Rul. 71-572, 1971-2 Cum.Bull. 347.3 Where a company has a general measure of control over the manner in which services of their taxicab drivers are performed, such as operation in a restricted territory, control of hours worked, and the governing of income to the drivers, the employer-employee relationship exists for purposes of the federal employment taxes. Cf. Westover v. Stockholders Publishing Co., 237 F.2d 948 (CA9 1956). 30 Even if actual control was absent, it is the right to control which is determinative. In McGuire v. United States, 349 F.2d 644, 646 (CA9 1965) the court stated: 31 "The absence of need to control should not be confused with the absence of right to control. The right to control contemplated by the Regulations relevant here and the common law as an incident of employment requires only such supervision as the nature of the work requires." 32 Where the nature of a person's work requires little supervision, there is no need for actual control. Some occupations such as unloaders, see McGuire, supra; United States v. Kane, 171 F.2d 54, 59 (CA8 1948), or doctors, Cody v. Ribicoff, 289 F.2d 394 (CA8 1961); Flemming v. Huycke, 284 F.2d 546 (CA9 1960), are unsuited to direction and close control by an employer. In the instant case, the nature of appellees' businesses simply do not require close hour by hour supervision, but the right to control is not lacking.4 33 Other factors in this case lead us to believe that the employer-employee relationship exists. The cab drivers have no capital investment in the business. They do not even supply their own oil or gas. All they provide is their labor since the company owns the taxicabs and purchases liability insurance. Daily reporting sheets must be submitted by the drivers to the company. The appellees may discharge the drivers for cause pursuant to the labor contract. See Treasury Regulations, supra. Moreover, the companies provide fringe benefits such as paid vacations and holidays, sick leave, and pension plans. All of these are consistent with an employeremployee relationship.5 These taxicab drivers were performing personal services constituting an integral part of appellee's business operations. They were not pursuing any separate trade, business, or profession involving capital outlay and were subject to general control over the manner and means of performing their services. They were, in effect, common-law employees for purposes of federal employment taxes here involved. 34 Reversed. 1 Alleged liability for Air Terminal for all taxes due is stipulated to be $71,235.02. Airway's liability is $60,778.86 2 Appellees in their brief contend that the term "owner-drivers" found in the labor contract excludes their drivers because they do not own their own taxicabs. We agree. Read in its entire context, the labor contract's use of the term refers only to situations where the driver owns his own cab. Other parts of the labor contract, however, do apply to the appellees' drivers 3 Revenue Ruling 71-572 was issued in 1971 after the appellees filed their suits for refund on May 21, 1971 Attached to the stipulation of facts in the record is a letter ruling by the Internal Revenue Service to the District Director of St. Louis, Mo., which pertains to Laclede Cab Co. and Red Top Cab Company which also operate under franchises in St. Louis County. Appellee relies on this letter for support. In those situations. a daily rental fee was paid by the drivers for the use of the taxicabs. The drivers could use the taxicab for a maximum shift, obtain orders from the company's radio dispatcher and generally operate as a taxicab. There was a union contract, similar to those herein. The driver, however, paid all expenses and retained for himself all fares. It was held by the I.R.S. that the Laclede and Red Top drivers were not employees for employment tax purposes. The instant case is distinguishable, however, in the method that the financing is arranged. The Laclede and Red Top drivers rented the taxicabs and ran their own business, quite similar to the Party Cab case. The faresplitting arrangement in the instant case is similar to Fleming where a similar arrangement resulted in the employer-employee relationship. 4 Appellees base much of their argument on the fact that the taxicabs are not equipped with two-way radios or any kind of a dispatcher system. The nature of the appellees' businesses is such that such a system is unnecessary because almost all passengers are picked up at the airport on a random basis. This feature is not determinative of control. Almost all of the taxicab cases we have read involve a dispatcher system of some type, but the decisions have gone both ways 5 See Restatement (Second) of Agency Sec. 220 (1958) for a summary of common law factors to be considered in finding the employer-employee relationship. Missouri has accepted the criteria set out in the Restatement of Agency for determining whether or not an employer-employee relationship exists. Dean v. Young, 396 S.W. 2d 549, 553 (Mo.1965). The element of control, or right to control is most frequently used in Missouri cases as distinguishing a servant from an independent contractor. Id. Thus, Missouri's common law on this issue is consistent with the federal law

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a0939n.06 No. 12-6312 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JAMES ELLIS, ) FILED ) Oct 31, 2013 Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk ) v. ) ) ON APPEAL FROM THE UNITED SHELBY COUNTY LAND BANK ) STATES DISTRICT COURT FOR THE DEPARTMENT, ) WESTERN DISTRICT OF TENNESSEE ) Defendant-Appellee. ) Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge.* SUTTON, Circuit Judge. James Ellis alleged that the Shelby County Land Bank Department retaliated against him because he complained about discrimination. The district court granted summary judgment in favor of the Land Bank. We affirm. I. James Ellis, an African-American male, began working at the Shelby County Support Services Department as a custodian in 1991. He worked his way up to a supervisory position, which he held until 2003. That year he was fired for allowing employees to receive credit for hours they had not worked. He appealed the decision to the Shelby County Circuit Court. He also filed a * The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting by designation. No. 12-6312 Ellis v. Shelby County Land Bank Department charge of discrimination with the EEOC alleging discrimination on the basis of race and gender. The EEOC issued a notice of right to sue, but he did not pursue the discrimination claim. In 2006, the circuit court ruled that Ellis had been fired without cause and ordered his reinstatement. The department reinstated Ellis in September 2006, allegedly telling him that he had been reinstated to his position as a supervisor C. At the end of that year, however, Ellis received an evaluation that listed his occupation as a maintenance helper, not as a supervisor. In mid-2007, he received another evaluation, this time listing his position as a landscape maintenance foreman. In November 2007, he was transferred to a supervisory position with the newly created Land Bank Department. Ellis’s employment at the Land Bank went smoothly until early 2009. Around that time, he spoke to Kathy Ramage, a compensation advisor in the human resources department. Ramage told Ellis that, as of October 2006, all supervisor C positions had been reclassified as supervisor B positions, which carried a higher pay grade. Ramage said that Ellis should have been reclassified in October 2006 because he had been reinstated as a supervisor C. In May 2009, Ellis filed a second charge of discrimination with the EEOC repeating Ramage’s statements and alleging retaliation for his prior charge of discrimination. Starting in November 2009, the Land Bank classified and paid Ellis as a supervisor B. The Land Bank also issued him retroactive pay to make up for the difference between his salary and the supervisor B salary for the period between November 2007 and October 2009. -2- No. 12-6312 Ellis v. Shelby County Land Bank Department In June 2009, Ellis received a positive performance review but one that pointed out he could do more to avoid equipment failures. He believes someone tampered with his equipment to make him look bad. He also thinks his supervisors set him up to fail by giving him impossible tasks. As a result, he amended his second charge in January 2010 to allege that the Land Bank deliberately hampered his ability to perform his job. In July 2010, the EEOC issued a right-to-sue notice. In March 2010, Ellis was supervising a crew at a tire recycling facility when he got into a fight with an equipment operator. The facility suspended operations for over half an hour due to the disruption. The Land Bank issued a written reprimand reminding him to act in a professional manner and ordered him to attend anger management counseling. Later that year the Land Bank investigated a report that Ellis had used one of his crews to perform work at his church. It issued Ellis a verbal warning because it could not verify the report. He filed a third charge of discrimination with the EEOC alleging that the disciplinary actions were in retaliation for his earlier charges of discrimination. In January 2011, the EEOC issued a right-to-sue notice. Ellis filed a lawsuit against the Land Bank and alleged retaliation under Title VII. The Land Bank moved for summary judgment, and the district court granted the motion. -3- No. 12-6312 Ellis v. Shelby County Land Bank Department II. As always, we give fresh review to the district court’s summary judgment decision. Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 877 (6th Cir. 2013). And as always, we apply Civil Rule 56 in doing so—drawing all reasonable inferences in favor of the non-movant (Ellis) and affirming the judgment only if no genuine issues of material fact cloud the dispute and the movant (the Land Bank) deserves judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ellis offers no direct evidence of retaliation. That means we must apply the familiar burden- shifting framework applicable to Title VII claims premised on indirect evidence of retaliation. Warf, 713 F.3d at 880. Under that framework, Ellis must establish a threshold claim of retaliation by showing that (1) he took an action protected under Title VII, (2) the Land Bank knew of that action, (3) the Land Bank took an adverse employment action against him and (4) the Land Bank did so because of the protected action. Id. Once he satisfies this requirement, the burden shifts to the Land Bank to offer a non-discriminatory reason for its action. After that, Ellis bears the burden of showing that the offered reason is pretextual. Id, Ellis claims that the Land Bank committed four retaliatory acts: (1) It underpaid him from 2006 to 2009; (2) it gave him a written reprimand in 2010 after he was involved in a fight while on the job; (3) it gave him a low performance evaluation in 2010; and (4) it investigated allegations that he used a Land Bank crew to perform work at his church. -4- No. 12-6312 Ellis v. Shelby County Land Bank Department For starters, it is not clear whether the last three acts amount to adverse employment actions within the meaning of Title VII. An adverse employment action is one that a reasonable employee would find “materially adverse, which in [the retaliation] context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). An investigation by itself, as opposed to the results of an investigation, does not sound like an adverse employment action. And presumably that is the case when the result of the investigation favors the employee, here with a finding that the employer “could not determine[] the factual accuracy” of the allegation. R.21-7 at 17. Nor is it clear whether a written reprimand or a low evaluation unaccompanied by any change in the worker’s terms or conditions of employment would satisfy this test. Ellis claims he was denied a department-wide raise because of the evaluation. But that is wrong. He received the evaluation in September, the department-wide raise went into effect before then (in July), and Ellis received the raise. But we need not resolve the appeal on this ground. Even if we assume for the sake of argument that all four incidents amount to adverse employment actions and that Ellis has established a threshold case on these claims, he falls short in showing that the Land Bank’s explanations amounted to a pretext. First up is Ellis’s claim that the Land Bank underpaid him for three years. As Ellis sees it, he returned to work as a supervisor C and should have received a salary increase when all supervisor C positions were reclassified as supervisor B positions and moved to a higher pay grade. According -5- No. 12-6312 Ellis v. Shelby County Land Bank Department to the Land Bank, Ellis was a supervisor C when he was fired, but there were no supervisory positions available when it reinstated Ellis. As a result, it gave Ellis his old salary at the supervisor C level, but he did not perform supervisor C duties so it did not list him in the human resources system as a supervisor C. Later, when the Land Bank transferred Ellis to a supervisory position, he remained at the lower pay grade based on an administrative misunderstanding. Once the Land Bank identified the problem, it adjusted Ellis’s salary to the correct pay grade. Ellis also received back pay to cover the time period when he should have received higher pay. The Land Bank maintains that Ellis is not entitled to further back pay because he was not classified as or working as a supervisor from September 2006 through October 2007. There is nothing remotely pretextual about this explanation, and Ellis has not argued otherwise. Ellis next points to the written reprimand he received after his on-the-job fight. The Land Bank explains that it received an incident report from a Memphis police officer that Ellis and an equipment operator had fought over “the placement of trailers” in the tire recycling facility. R.21-6 at 10. Each man accused the other of initiating the fight. Ellis admitted he was involved in the fight but maintained that he was defending himself. In response, the Land Bank issued Ellis a written reprimand explaining that, as a supervisor, he needed to act “professional[ly] at all times.” Id. at 19. Ellis filed a grievance in response, and the Land Bank denied the grievance after a hearing, leaving the reprimand in place. Here too there is nothing pretextual about this explanation for the reprimand. -6- No. 12-6312 Ellis v. Shelby County Land Bank Department As for the low performance evaluation in 2010, Ellis claims the Land Bank set him up for that evaluation by requiring him to supervise an unreasonable number of crews. The Land Bank’s explanation appears in the evaluation itself. Ellis received a “needs improvement” rating for three reasons: (1) his fight with the contractor; (2) the need to “manage supplies and equipment for work crews” more effectively and to improve “monitoring of work crews[’] assignments”; (3) and his frequent use of sick leave. R.33-20 at 1–3. At Ellis’s performance evaluation meeting, the Land Bank offered suggestions on how to improve his supervision of work crews. And the supervision- related comments were not the tipping point. Ellis would have fallen within the “needs improvement” category even without them. Here too there is nothing pretextual about this explanation or sequence of events. Ellis, lastly, claims that the Land Bank put him at risk of discipline when it investigated allegations that he had a Land Bank work crew perform construction work on his church. The Land Bank received a report that a work crew was “picking up shingles and cleaning up” at Ellis’s church. R.21-6 at 5. A foreman provided a signed statement that Ellis had ordered the crew to perform the work. The Land Bank held a hearing and concluded that it could not verify the allegations. It issued Ellis a verbal warning not to perform or order work without a Land Bank work order. The foreman received an identical verbal warning. Here too this was an eminently reasonable resolution of this complaint, one that was favorable to Ellis to boot. Ellis responds that the Land Bank’s explanations create a genuine dispute of fact that precludes summary judgment, but that is not how burden-shifting works. Ellis cannot defeat -7- No. 12-6312 Ellis v. Shelby County Land Bank Department summary judgment by saying, “They have their story, and I have mine.” He instead has to show that the Land Bank’s explanations are pretext. He has not. He does not point to or analyze any facts that demonstrate pretext; indeed, his brief does not even mention the term. On this record, the district court correctly found that Ellis had not met his burden of demonstrating retaliation and properly granted summary judgment in favor of the Land Bank. III. For these reasons, we affirm. -8- 

Case: 17-40918 Document: 00514520497 Page: 1 Date Filed: 06/20/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-40918 FILED Conference Calendar June 20, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. JUAN HUNERTO PEREZ, JR., Defendant–Appellant. Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:15-CR-12-1 Before SOUTHWICK, WILLETT, and ENGELHARDT, Circuit Judges. PER CURIAM: * The attorney appointed to represent Juan Hunerto Perez, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Perez has not filed a response. We have reviewed counsel’s brief and the relevant parts of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. * 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: 17-40918 Document: 00514520497 Page: 2 Date Filed: 06/20/2018 No. 17-40918 Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

283 S.W.2d 819 (1955) SCURRY AREA CANYON REEF OPERATORS CORP. et al., Appellants, v. R. C. POPNOE, Appellee. No. 3205. Court of Civil Appeals of Texas, Eastland. November 4, 1955. Rehearing Denied November 25, 1955. *820 Ross Madole, Dallas, Earl L. Creasey, Ft. Worth, Conner & Conner, Eastland, for appellants. Garland Armstrong, Snyder, Hawkins & Dean, Breckenridge, for appellee. LONG, Justice. R. C. Popnoe sued Scurry Area Canyon Reef Operators Corp., Cities Service Oil Corporation, Magnolia Petroleum Company and Magnolia Pipe Line Company, seeking an injunction to restrain them from severing a gas connection on his land in Scurry County, Texas. The court granted a temporary restraining order and upon a hearing granted a temporary injunction as prayed for. The defendants have appealed. Appellants, by their first point, urge that the court erred in granting the temporary injunction because appellee failed to allege or establish the probable existence of a right which would be irreparably injured by said threatened action of appellants. This point is overruled. *821 Appellee alleged and the evidence shows that he is the owner of 160 acres of land in Scurry County; that he retained the right in an oil and gas lease on said land to use gas from gas wells located thereon; that in accordance with his right to use gas from said wells he had, at considerable expense and with the consent of appellants, made connection with said wells and used the gas therefrom for domestic purposes and that appellants were threatening to sever said connection, which would cause him irreparable injury. The evidence discloses that appellee, for over five years, had been using gas from these wells for heat and light in his home. There is evidence that appellants were threatening to sever appellee's connection with the wells and thereby disturb appellee in his use of the gas for such purposes. We believe these facts are sufficient to sustain the action of the court in granting the temporary injunction. The evidence shows that appellee, for about 40 days prior to the trial, had been using gas from these wells in operating a pump for irrigation purposes. Appellants contend that such use violates the terms of the lease and for this reason appellee is not entitled to an injunction. The evidence shows that he was not using the gas for such purposes at the time of the trial. The fact that appellee may have at some time used gas for irrigation purposes in violation of the terms of the lease would not authorize appellants to sever appellee's connection and thus deprive him of the contract right to use gas for domestic purposes. It is the settled law of this state that where it appears that a continuance of a temporary injunction cannot imperil the rights of the adverse party but that its dissolution may seriously imperil the rights of the complaining party, a motion to dissolve should be denied. Pearce v. Atlanitc Life Ins. Co., Tex.Civ.App., 36 S.W.2d 553. It is shown that appellants were threatening to sever the gas connection used by appellee in obtaining gas for use in his home for heat and lights. This would work a great hardship on appellee. He depended upon this gas for fuel in his dwelling house. The temporary injunction does nothing more than restrain appellants from severing the connection until the matter can be heard on its merits. We cannot see how appellants will be injured thereby. By their second point appellants say the court erred in granting the temporary injunction because it had the effect of not maintaining the status quo of an existing right but afforded appellee all relief to which he claimed to been entitled upon a trial on the merits. We cannot agree with this contention. The temporary injunction does nothing more than preserve the status quo of the property. It merely prevents appellants from severing the gas connection used by appellee in obtaining gas for his home. It does not restrain appellant from severing the connection at the irrigation pump. The granting of a temporary injunction for the preservation of the status quo is within the discretion of the trial court. In the absence of a showing of an abuse of such discretion the trial court's action will not be disturbed on appeal. Gillian v. Day, Tex.Civ.App., 181 S. W.2d 327. See also 6 Tex.Jur., 10 Year Supp., page 26, Sec. 85. We hold that no abuse of discretion is shown. The court was preserving the status quo until the rights of the parties could be finally determined. It is never permissible to grant a temporary injunction when there are substantial issues of fact to be determined at the final trial that would probably result in defeating the relief sought. City of University Park v. Rahl, Tex.Civ.App., 36 S. W.2d 1075. But, there are no substantial fact issues to be determined so far as we can determine. Appellants raised the question that the wells from which the gas is obtained are oil wells and not gas wells as contemplated by the lease. The facts are undisputed that the wells produced both gas and oil. It will be for the determination of the court on a final hearing whether the lease means that appellee has the right to use gas from wells producing gas only and not from wells producing both oil and gas. By their third point appellants contend the trial court erred in granting the temporary injunction against the appellants *822 who are non-residents of Scurry County, with no other parties before the court in view of Article 4656, Vernon's Annotated Civil Statutes, which requires that a suit for injunction shall be brought in the county of the domicile of one of the defendants. We cannot sustain this contention. Appellee pleaded that the defendant, Scurry Area Canyon Reef Operators Corp., had its principal office in the City of Snyder, Scurry County, Texas, with H. H. Allen as its local manager. The judgment granting the temporary injunction recites that all the parties appeared. We believe that with one of the parties to the action being domiciled in Scurry County the court had jurisdiction over the other parties thereto. We find no reversible error in any of the points presented and they are accordingly overruled. The jugment of the trial court is affirmed.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* TERESA THOMPSON, * * No. 16-722V Petitioner, * Special Master Christian J. Moran * v. * * Filed: June 15, 2018 SECRETARY OF HEALTH * AND HUMAN SERVICES, * Attorneys’ fees & costs. * Respondent. * ********************* Maximillian J. Muller, Muller Brazil LLP, Dresher, PA, for petitioner; Sarah C. Duncan, United States Dep’t of Justice, Washington, DC, for respondent. UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 Teresa Thompson brought a successful petition for compensation from the National Childhood Vaccine Compensation Program. She now seeks an award for attorneys’ fees and costs. She is awarded her requested amount in full, $19,276.00. * * * Represented by Maximillian Muller, Ms. Thompson filed her petition for compensation on June 21, 2016. Ms. Thompson claimed that a tetanus-diphtheria vaccine she received on June 29, 2015, which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to suffer a right shoulder injury. The 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. parties were able to informally resolve the case, entering a joint stipulation that was then adopted. Decision, issued Jan. 29, 2018, 2018 WL 2948761. On February 5, 2018, petitioner moved for reimbursement of attorneys’ fees and costs, requesting $18,844.00 in fees and $435.00 in costs. On February 13, 2018, respondent filed his response to petitioner’s motion. In his response, respondent did not object to petitioner’s request. Resp’t’s Resp. at 2. Instead, respondent stated that he “defers to the Special Master to determine whether or not petitioner has met the legal standard for an interim fees and costs award” and that aside from the issue of whether an interim fees award is appropriate, he is “satisfied that the statutory and other legal requirements for an award of attorneys’ fees and costs are met.” Id. This matter is now ripe for adjudication. * * * Because Ms. Thompson received compensation, she is entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question at bar is whether Ms. Thompson’s requested amount is reasonable. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. A. Reasonable Hourly Rate Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. There is, however, an exception (the so-called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid 2 Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorney’s work was done outside of the District of Columbia. Petitioner requests $255.00 per hour for 2016, $275 per hour for 2017, and $300 per hour for 2018. In addition, paralegal work was billed at a rate of $125.00 per hour. The requested rates are reasonable. B. Reasonable Number of Hours The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The Secretary also did not directly challenge any of the requested hours as unreasonable. In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See Shea v. Sec’y of Health & Human Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr Dec. 10, 2015) (“special masters are not obligated to evaluate an attorney’s billing records on a line-by-line basis in making the reasonableness determination … and certainly need not do so when Respondent has not attempted to highlight any specific alleged inefficiencies”). The entries describe the activities with sufficient detail that the reasonableness of the work may be assessed. In general, the work and the charge for the work are reasonable. C. Costs Petitioner also requests $435.00 in costs, comprising the $400.00 filing fee, $30.00 for the cost of obtaining medical records, and $5.00 for a notary’s fee. These costs are reasonable and are also awarded in full. * * * Accordingly, petitioner is awarded: A lump sum of $19,276.00 in the form of a check made payable to petitioner and petitioner’s attorney, Maximillian J. Muller. 3  These amounts represents reimbursement attorneys’ fees and other litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. s/Christian J. Moran Christian J. Moran Special Master 4 

713 So.2d 1231 (1998) STATE of Louisiana v. James Kevin WOODS. No. 97 KA 0800. Court of Appeal of Louisiana, First Circuit. June 29, 1998. Rehearing Denied August 28, 1998. *1233 John Wayne Jewell, Donald Cazayoux, Jr., New Roads, for State of Louisiana. C. Jerome D'Aquila, New Roads, for Defendant-Appellant James Kevin Woods. Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ. LOTTINGER, Chief Judge. The defendant, James Kevin Woods, was charged by bill of information with one count of armed robbery. La. R.S. 14:64. He pleaded not guilty, and after trial by jury, was found guilty as charged. The defendant was sentenced to fifty years at hard labor. A habitual offender petition was filed against the defendant charging him as a fourth felony habitual offender. After the habitual offender hearing, the court took the matter under advisement. However, pursuant to a subsequent plea agreement, the defendant later admitted to being a second felony habitual offender and was sentenced to sixty-five years at hard labor without benefit of parole, probation, or suspension of sentence. The court vacated the defendant's previous sentence. The defendant has appealed, urging six counseled assignments of error and one pro se assignment of error. FACTS On November 4, 1994, at approximately 1:15 p.m., the defendant entered the Guaranty Bank in Jarreau, Louisiana and robbed bank tellers Marjorie Plauche and Becky Roy of more than $6,000.00. The defendant fled the scene in a dark blue automobile. According to Plauche, the defendant wore two bandannas (one over his nose and the other over his neck and shirt), small sunglasses, brown gloves, and carried a small silver gun. The defendant pointed the gun at Plauche and Roy and threatened to kill them. The defendant subsequently was apprehended as the assailant after a man who had been with the defendant just before the robbery gave law enforcement officials information concerning the defendant's involvement in the robbery. ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In assignments of error numbers one and two, the defendant contends that the trial court erred in overruling his objections, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the systematic exclusion of a person from the jury based on race. In his brief to this court, the defendant argues that the state peremptorily challenged seven black members of the venire. Defense counsel admits that the prosecution did offer reasons for these challenges after being instructed to do so by the court; however, he contends that the reasons were not race-neutral thus, the trial court erred in overruling his objections to the state's challenges. In Batson, the United States Supreme Court adopted a three-step analysis to determine whether or not the constitutional rights of prospective jurors have been infringed by impermissible discriminatory practices: *1234 First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (citations omitted). "The second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). Because a trial judge's findings pertaining to purposeful discrimination turn largely on credibility evaluations, such findings ordinarily should be entitled to great deference by a reviewing court. Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Reasons offered to explain the exercise of peremptory challenges should be deemed race-neutral unless a discriminatory intent was inherent in those reasons. See Hernandez v. New York, 500 U.S. at 359, 111 S.Ct. at 1866. Our careful review of the entire record of the voir dire proceedings fails to disclose any error in the rulings of the trial court. Initially, we note that there is no evidence in the record that any of the prospective jurors were questioned as to their race. The only indication of race is defense counsel's statement in his brief to this court that the prospective jurors in question were black. Further, there was no indication in the record of the racial composition of the actual jurors. Toward the end of voir dire, defense counsel made a Batson objection to the prosecution's peremptory challenges of five particular prospective jurors from the previous panels. Without the trial court ruling as to whether or not the defendant had established a prima facie case under Batson, the court asked for the prosecution's reasons for the challenges. In regard to Robert Bergeron, the prosecutor stated that although Bergeron indicated that the prosecutor represented him in a lawsuit, the prosecutor explained that Bergeron was mistaken, as he has corresponded with Bergeron but that he represented a party in an ongoing lawsuit whom Bergeron "did work for and not him." The court then stated that Joann Toulouse, another juror peremptorily challenged by the prosecutor, was nervous at the beginning and "at one point stated something about not wanting to judge her fellow man, but kind of recanted that and I think that's a racially neutral reason." In regard to Kenneth Temple, the prosecutor stated that he worked at Angola, his sibling was married to one of the state's witnesses, and because he worked in the prison system he stated that he has followed inmates around and "seen D.A.'s tear them up in the Courtroom and make them say things they didn't want to say." The court further indicated that Temple stated that if he were a defendant, he would not want anyone connected with any type of law enforcement or corrections being a member of his jury. In regard to Serena Smith McClean, the prosecutor proclaimed that she had stated some of her adult children had been in trouble, and incarcerated in Orleans Parish and she indicated that she did not know how she would feel about convicting someone. In regard to Joseph Early, the court and the prosecutor stated that Early stated that he had been awake all night and when the prosecutor asked him if he had ever been in trouble with the law, he responded, "Not really." The court then denied the defendant's Batson objection stating it felt the state had given "more than ample" racially neutral reasons for the challenges. Subsequently, defense counsel made a Batson objection to two more prospective jurors peremptorily challenged by the state. Without a ruling from the court as to whether or not there was a prima facie case under Batson, the state responded that with regard to Shirley Epps, she stated that she had a family member that had been in trouble, but the case had been dismissed. The prosecutor stated that the situation bothered him because sometimes in that type of scenario *1235 someone might believe the person was picked up for no reason. The prosecutor also noted that when he asked Epps a standard question regarding believing police officers over non-police officers "[s]he almost had to fight back the laughter." The trial judge then indicated that he saw Epps rolling her eyes. In regard to Mary Lenette Bazile, the prosecutor stated that he felt that there would be a problem because Bazile indicated that she knew two of the state's witnesses, one of whom the prosecutor stated that they were going to have to impeach. The court then denied the defendant's Batson objection. According to the record, the defense failed to establish a prima facie case of discrimination. See State v. Ross, 95-1240, pp. 5-6 (La.App. 1st Cir. 5/10/96), 674 So.2d 489, 492-93. Although the defendant failed to meet his burden under step one, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. at 359, 111 S.Ct. at 1866. The reasons given by the state for exercising the peremptory challenges of the prospective jurors in question are facially "race-neutral." They contain none of the cultural, geographic, or linguistic classifications which, due to the ease with which such classifications may serve as a proxy for an impermissible classification, invite particularly exacting scrutiny. Cf. Hernandez v. New York, 500 U.S. at 363, 111 S.Ct. at 1868 (wherein a prosecutor's striking of Spanish-speaking jurors "raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges"). Hence, we conclude that none of the reasons articulated by the state are readily associated with the suspect class which is alleged to be the object of the state's discriminatory use of peremptory strikes, i.e., prospective black jurors. For these reasons, we find that the state sustained its burden of articulating "race-neutral" reasons for the exercise of the peremptory strikes at issue. Whether these reasons are substantial and, more importantly, whether they are substantiated by the record, is a question to be determined in the third stage of the Batson analysis. See State v. Green, 94-0887, p. 27 (La.5/22/95), 655 So.2d 272, 289. Reviewing courts owe the trial judge proper deference in assessing the credibility of in-court testimony. Thus, the proper inquiry in this final stage of the Batson analysis is not whether the state has disproved the existence of purposeful discrimination suggested by a defendant's prima facie case; rather, the question is whether a defendant's proof, when weighed against the prosecutor's offered "race-neutral" reasons, is strong enough to persuade the trier-of-fact that such discriminatory intent is present. Any other approach would violate the principle that the ultimate burden of proving racially motivated strikes in violation of Batson rests with the opponent of the strike. See State v. Green, 94-0887 at p. 29, 655 So.2d at 290. After carefully reviewing the entire record of voir dire, we find no abuse of discretion or error by the trial court in its denial of the defendant's Batson objections. The trial court heard the prospective jurors and the prosecutors. The court obviously concluded that there were reasonable bases for the challenges in question. Although the defendant contests some of the reasons offered by the state for the challenges and contends that these reasons were not race-neutral, we fail to find anything in this record to show that the state employed a tactic of purposeful racial discrimination in its exercise of peremptory challenges in this case. See State v. White, 96-0592, pp. 3-8 (La.App. 1st Cir. 12/20/96), 686 So.2d 96, 98-101. These assignments of error are without merit. ASSIGNMENT OF ERROR NUMBER THREE In assignment of error number three, the defendant contends that the trial court erred in overruling his motion for mistrial. In his brief to this court, the defendant alleges that the prosecution failed to promptly notify the defense of one of the victim's prior identification *1236 of the defendant and this surprise testimony significantly strengthened the state's case. Defense counsel contends that, had he known about the identification, different tactical considerations would have been made. Thus, because of the state's failure to abide by its continuing duty to disclose any additional evidence that is subject to discovery, the defendant was deprived of his right to a fair trial. Marjorie Plauche, a bank teller who was one of the victims of the robbery, gave a description of her assailant and stated that she was able to get a look at part of his face. The prosecutor then asked her, "Did you see that person, who robbed you, since the time of that robbery?" Plauche responded, "I saw him when I came for the preliminary hearing in April." The prosecutor asked, "Is that April 19th, 1995?" Plauche responded, "Yes. I saw him and when I walked in the Courtroom, I think they were in this Jury room and he—they had several people and they were peeking out one at a time and when put his head out, I knew—I recognized him right away." The prosecutor then asked, "And you identified him?" Plauche answered, "Yes." At this point defense counsel objected, stating that the state failed to lay a proper foundation for the identification and that he had not heard about the identification of which she was speaking. He contended that the defense was prejudiced by the testimony of this identification because there was no information in the file or testimony at the preliminary examination regarding this identification. Out of the presence of the jury, the prosecutor, Mr. Jewell, stated that he had not heard the testimony before and that her testimony was only in response to a general question by him. Another prosecutor, Mr. Ward, stated that the witness told another prosecutor, Mr. Cazayoux, the preceding day and Cazayoux just conveyed it to Jewell, who asked the question. Ward indicated that they did not know what the answer would be. He further contended that defense counsel knew that Plauche was one of the state's witnesses and that they could have asked her the same question. Defense counsel agreed. Ward further stated that in response to the discovery request, they would not have disclosed the specifics of Plauche's testimony, but only that she could identify the defendant, which he claimed the defense already knew. The court asked if Plauche positively identified the defendant at the preliminary examination. Jewell responded that she positively identified him in open court and that the identification in question happened approximately five minutes prior to her in court identification. He stated that her testimony was simply cumulative of the testimony of that day. Cazayoux stated that, in order to show that there were no tricks, he would read to the court the note that he had just written to Jewell. The note stated, "Before identifying Woods in Court she i.d.'d him." Cazayoux indicated that Jewell did not know that she had made another identification before he asked her the question. The court responded that it did not find any prejudice, overruled defense counsel's objection, and denied his motion for a mistrial. The discovery rules of the Louisiana Code of Criminal Procedure require the court, upon the defendant's motion, to order the district attorney or the appropriate law enforcement agency "to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody." La.Code Crim.P. art. 717. Article 729.3 requires a party to promptly notify the other party and the court of the existence of additional evidence discovered after compliance with an earlier discovery order. The court may impose sanctions when it is brought to its attention that a party has failed to comply with discovery and inspection or an order issued pursuant thereto. La.Code Crim.P. art. 729.5(A). These sanctions include ordering the party to permit the discovery or inspection, granting a continuance, ordering a mistrial (on the defendant's motion), excluding the evidence, or entering such other order, other than dismissal, as may be appropriate. La.Code Crim.P. art. 729.5(A). Article 729.5 is permissive and does not mandate any particular remedy. Mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Failure to comply with discovery *1237 merits a mistrial only when the state's conduct substantially affects the defendant's right to prepare a defense. State v. Selvage, 93-1435, pp. 5-6 (La.App. 1st Cir. 10/7/94), 644 So.2d 745, 750, writ denied, 94-2744 (La.3/10/95), 644 So.2d 1174. The articles regulating discovery are intended to eliminate unwarranted prejudice which could arise from surprise testimony. Discovery procedures enable the defendant to properly assess the strength of the state's case against him in order to prepare his defense. If a defendant is lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such prejudice may constitute reversible error. The state's failure to comply with discovery requests does not constitute reversible error unless actual prejudice results to the defendant. State v. Selvage, 93-1435 at p. 6, 650 So.2d at 750. In the instant case, the state indicated that one of the prosecutors found out about this identification the day before the witness testified and did not communicate the information to the prosecutor questioning Plauche until her actual examination. That prosecutor indicated that he was only asking her general questions regarding her positive identification of the defendant in open court at the preliminary hearing when she testified regarding her prior identification. While one of the prosecutors knew of this identification the day before Plauche's testimony, we are unable to find that the defendant suffered actual prejudice due to the state's failure to provide the defense with this particular information as the defense was aware that during the preliminary hearing, Plauche positively identified the defendant in court as her assailant. After reviewing the record, we find that the state's failure to timely provide the defense with this information is not reversible error. The defense was aware that Plauche had made a positive identification of the defendant and she had testified at the preliminary examination that she had gotten a look at his face. The defendant was also identified by two other state's witnesses. Thus, the defense was aware that the defendant had been positively identified as the assailant and it is not likely that the defense strategy would have changed due to information regarding a second identification by Plauche at the preliminary hearing. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER FOUR In assignment of error number four, the defendant contends that the trial court erred in its jury instruction regarding the use of a toy gun. In his brief to this court, the defendant argues that the court erred in overruling his objection to the prosecution's special instruction regarding the use of a toy gun. He contends that this special instruction should not have been read to the jury because it required qualification, limitation, and explanation for the jury to understand. He argued that this instruction without any further explanation created a strong probability of confusion amongst the jurors, particularly since the jurors asked to hear this instruction twice more after its initial reading. The state's special charge objected to by the defense contained the following language: A toy gun may be a dangerous weapon for purposes of Armed Robbery prosecution if the Jury finds that the interaction between the offender and the victim created a highly charged atmosphere where there was a danger of serious bodily harm resulting from the victim's fear for [sic] his life. This special charge was read in conjunction with the definition of a dangerous weapon. Subsequently, the jurors returned to the courtroom with a request that the court read the instructions regarding all the possible verdicts. In reading this instruction, the court included the instruction regarding the toy gun. The jurors later returned to the courtroom and requested the court to reread the instruction on the toy gun. La.Code Crim.P. art. 802 mandates that a trial court shall charge the jury as to the law applicable in the case. The charge objected to by the defendant was a special charge requested by the state. A requested special charge shall be given by the court if it does not require qualification, limitation or explanation, *1238 and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge which is given. La.Code Crim.P. art. 807. This charge came directly from State v. Cittadino, 628 So.2d 251, 255 (La.App. 5th Cir.1993). The Cittadino court, citing State ex rel. Richey v. Butler, 572 So.2d 1043 (La. 1991), concluded that the plastic gun used by the defendant to facilitate the robbery constituted a dangerous weapon sufficient to convict the defendant of armed robbery. Because there was evidence presented that the gun used by the defendant in the instant case might have been a toy gun, the instruction was pertinent and correct. The charge was not included in the general charge and did not require qualification, limitation, or explanation. Although the jurors requested that the court reread this particular instruction, there did not appear to be any confusion amongst the jurors which indicated a need for further explanation. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER FIVE In his fifth assignment of error, the defendant contends that the trial court erred in denying the defendant's motion for a new trial. In his brief to this court, the defense counsel contends that the state failed to present sufficient evidence proving every element of the crime sufficient to establish the defendant's guilt beyond a reasonable doubt. He contends that the defendant's identity was not proven beyond a reasonable doubt as the testimony from the state's witnesses was inconsistent and there was no direct evidence linking him to the crime. Defense counsel further contends that there was evidence presented that a toy gun was used in the robbery, and although jurisprudence has indicated circumstances where a toy gun would rise to the level of a dangerous weapon, those circumstances were not present in the instant case as such a hostile environment which would cause a toy gun to be considered a dangerous weapon was not created during the commission of the crime. The standard of review for the sufficiency of evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime and the defendant's identity beyond a reasonable doubt. See La.Code Crim.P. art. 821; State v. King, 563 So.2d 449, 456 (La. App. 1st Cir.), writ denied, 567 So.2d 610 (La.1990); State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La.App. 1st Cir.), writ denied, 532 So.2d 130 (La.1988). Where the key issue raised by the defense is the defendant's identity as the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Johnson, 529 So.2d 466, 472 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1233 (La.1989). This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Polkey, 529 So.2d 474, 476 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1233 (La.1989). La.R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. According to La. R.S. *1239 14:2(3), dangerous weapon includes any gas, liquid, or other substance or instrumentality, which, in the manner used is calculated or likely to produce death or great bodily harm. A toy gun can be considered a dangerous weapon if the jury determines that the interaction between the offender and the victim created a highly charged atmosphere whereby there was a danger of serious bodily harm resulting from the victim's fear for his life. State v. Cittadino, 628 So.2d 251, 255 (La.App. 5th Cir.1993). In the instant case, Marjorie Plauche testified that she and Becky Roy were the only two people in the bank when the defendant entered. Although the defendant was wearing bandannas and sunglasses, she was able to see part of his face. According to Plauche, the defendant pointed a gun at her and told her that he would kill her if she looked at him and that if she pressed the alarm button he would kill her. After he received the money, the defendant told Plauche and Roy to lay on the floor and count backward from one hundred. Plauche stated that she only squatted because she did not think he would return. As soon as she heard an automobile motor, Plauche ran to the bank door and saw a blue car speeding away with one person in the car. Roy called the sheriffs office and reported the crime. Plauche identified photographs taken of the assailant by a camera in the bank. She also identified gloves and bandannas worn by the defendant. Plauche stated that she was shown a picture of a gun at the preliminary hearing but she was unable to identify the gun in the photograph as the gun used in the robbery. She explained that she was only able to see the shiny barrel of the gun because of the way he held the gun. Plauche stated that she did not know if the defendant had his finger on the gun's trigger; she thought that the gun was real. Plauche described the assailant as neat in appearance, having a round face, and that he was somewhat polite. According to Plauche, the defendant was in the bank approximately three minutes and she had a number of opportunities to look at him. Plauche identified the defendant at the preliminary hearing and at trial as being the person who robbed her. Becky Roy testified that she was working with Plauche at the Guaranty Bank on November 4, 1996. She and Plauche were the only workers in the bank when the defendant entered the bank. Roy stated that she was doing paperwork and had her back turned toward the door. When Roy turned around, there was a man standing in front of her wearing bandannas and sunglasses and pointing a gun toward her and Plauche. Roy stated that she was standing near Plauche. He told them to give him the money and not to look at him or press any buttons or he would kill them. He told Plauche not to move. Roy stated that she "really got scared more than normal because he kept saying, `I'm gon'na kill you.'" Roy stated that he kept telling her to hurry and at one point told Plauche "I told you not to move" and "I'm gon'na kill you." According to Roy, it was as if the defendant was going to "come across the counter" and she was "so scared." She was unable to remember giving him the bag of money but she stated that as he was leaving he told them to lay on the floor and count backwards from one hundred. Roy stated that she "hit the floor." According to Roy, the bank's camera was activated by a switch when she pulled "bait money" and put it in the bag. Roy identified several photographs taken with the bank's camera. She stated that the gun was silver and pointed it out in the photographs. According to Roy, the gun was small but all she could see was the barrel. Roy stated that she thought it was similar to a derringer and that she used to own a derringer. According to Roy, the gun did not appear to be a toy gun. She further identified state exhibit 4 and identified the bandannas and gloves as looking exactly like the items worn by the assailant. She described the assailant as a black male, approximately 27 years old, 5'7" and 140-150 pounds. Roy indicated that she was able to look at the defendant a number of times. She identified the defendant in court as the person who robbed her. Roy stated that she was "scared half to death" and indicated that she had never been robbed before. *1240 Anthony Wilson testified that he knew the defendant as he was married to his cousin. On November 3, 1994, at approximately 6:00 p.m., Wilson went to New Roads with the defendant in a blue Topaz automobile that belonged to the defendant's girlfriend. The men spent the night in New Roads and the following morning they purchased gasoline for the car and then returned a battery from the car to Wal-Mart because, according to Wilson, the defendant needed money. The defendant obtained a battery for the car from a friend. Wilson and the defendant then rode around and drank beer. According to Wilson, the defendant talked about robbing the bank. The defendant bought bandannas, gloves, and a toy gun. Wilson identified the gloves and bandannas in state exhibit 4 as resembling the items bought by the defendant. According to Wilson, the gun that the defendant bought looked like a small .38. The gun was shiny and silver. At approximately 11:30 a.m., the defendant and Wilson went to the home of Diana Bourgeois in order to visit his infant son, but Bourgeois made them leave. Subsequently, the defendant drove around the bank three or four times in order to see who was inside. Wilson stated that he tried to talk the defendant out of the robbery. Because he was unable to convince the defendant not to go through with the robbery, he asked the defendant to let him get out of the car. The defendant dropped Wilson off near the bank. He began walking away, but saw the defendant enter the bank wearing a white T-shirt, a bandanna, and glasses. He subsequently saw the defendant exit the bank, walking fast, and get into a blue Topaz. Wilson did not know what happened after that because he caught a ride back to Baton Rouge. Wilson talked to the defendant the following day but only for a minute. Wilson subsequently decided to contact the police and tell them what he knew before anyone implicated him in the crime. Wilson stated that he was 6'1" and was 33 years old. The law enforcement officers showed him a photograph which was faxed from New Roads to Baton Rouge and he stated that the photograph resembled the defendant. Wilson subsequently was given a book with a few hundred pictures in it and he picked the defendant from the book. Detective L.J. David of the Pointe Coupee Parish Sheriffs Office investigated the instant crime. He found a T-shirt, two bandannas, and gloves near the bank. According to David, no sunglasses or money were recovered. David stated that when Wilson picked the defendant from the book of over five hundred suspects, any other suspects were eliminated. Detective Brett Robillard of the Pointe Coupee Parish Sheriff's Office testified that he also investigated the crime and went to the crime scene where he took statements from the bank tellers. On November 8, 1994, he received a telephone call regarding a suspect in the crime. Robillard met with Wilson and later attempted to verify Wilson's statement by going to all the places of business that Wilson told him about. Robillard stated that he was able to verify Wilson's story. According to Robillard, the defendant was 29 years old, 5'6", and 160 pounds. On cross-examination, Robillard identified a photograph of a gun that he took at Wal-Mart in New Roads. He stated that the gun resembled the description of the gun given to him by Wilson and allegedly used in the robbery. Robillard admitted that Wilson initially identified someone other than the defendant as being the person that robbed the bank, but it was from a poor quality faxed photograph/. Stacy Gremillion, a representative from Wal-Mart, testified that the defendant's name was on an automotive receipt dated November 4, 1994, 8:39 a.m. The receipt was for a battery refund. Diane Bourgeois testified that her daughter, Tammy, knew the defendant and that Tammy and the defendant had a child together. The defendant did not live with them, but he did stop by their house on November 4, 1994, at approximately 11:00 a.m. in order to see the child. The defendant was driving a blue Topaz that belonged to Shannon Jasmine and was with a man that Bourgeois did not know. Bourgeois talked to the defendant, but he was not allowed inside her house. Tammy was not present. *1241 Shannon Jasmine testified that she lived with the defendant and identified him in court. She owned a Topaz automobile which, she identified as being pictured in S-1. According to Jasmine, the defendant frequently borrowed her car. A battery was purchased for her car at one point at Wal-Mart. She was unaware that the battery was returned to the store until the detectives looked in her car and she saw a battery from Western Auto. Detective Jerome Fontenot of the Pointe Coupee Parish Sheriffs Office was called to testify as a witness for the defense. He helped David in the investigation to verify Wilson's statement. He stated that he initially looked for a real gun until Wilson indicated that a toy gun was used in the robbery. He was not aware that any gun was ever found. According to Fontenot, when the defendant was arrested, the money that was found on his person did not match the money that was taken from the bank. In the instant case, the defendant was identified as the assailant by the two tellers and by Wilson. While there was some question regarding Wilson's initial identification of the defendant from a photograph, Wilson did pick the defendant's photograph from a book of hundreds of suspects. According to David, the other suspect in question was also in that book. Wilson testified that the defendant talked of robbing the bank and the defendant bought bandannas, gloves, and a gun. Wilson observed the defendant enter the bank wearing the bandannas and gloves and he also saw the defendant exit the bank very quickly shortly thereafter. Furthermore, although the defendant contends that a toy gun was used in the robbery and thus he could not be convicted of armed robbery, we disagree. Initially, we note that no weapon was recovered. While there was some indication a toy gun may have been used, based on Wilson's statement, both Plauche and Roy testified that they thought the gun was real. Moreover, even if the gun had been a toy gun, Plauche and Roy testified that the defendant pointed the gun at them and threatened to kill them. Roy testified that she was "scared half to death" and thought that the defendant was going to kill her. Thus, we find that the interaction between the defendant and the victims created such a highly charged atmosphere that there was a danger of serious bodily harm resulting from the victim's fear for her life. See State v. Cittadino, 628 So.2d at 255. The guilty verdict returned in this case indicates that, after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the state's witnesses and rejected that of the defense's witnesses. This court will not assess the credibility of the witnesses or reweigh the evidence. After reviewing the record, we are convinced that the evidence supports the jury's determination. We are convinced that a rational trier of fact, viewing all the evidence as favorable to the prosecution as any rational fact finder can, could have concluded that the state proved beyond a reasonable doubt the elements of armed robbery and the defendant's identification as the perpetrator to the exclusion of every reasonable hypothesis of innocence and negated any reasonable probability of misidentification. The trial court did not err in denying the defendant's motion for a new trial. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER SIX In his sixth assignment of error, the defense counsel contends that the defendant's sentence was excessive. Based on the record before us, the defendant is precluded from challenging his sentence on appeal. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement. La.Code Crim.P. art. 881.2(A)(2). The defendant originally was sentenced to fifty years imprisonment at hard labor. He subsequently was charged as a fourth felony habitual offender but pursuant to a plea agreement that he would be sentenced to sixty-five years at hard labor, he pled guilty to being a second felony habitual offender. The defendant was sentenced to the agreed upon sentence and the court vacated the original sentence. Therefore, the defendant *1242 is precluded from seeking review of his sentence as it was imposed in conformity with the plea agreement set forth at the time of his plea. See State v. Young, 96-0195, p. 7 (La.10/15/96), 680 So.2d 1171, 1175; State v. Lewis, 633 So.2d 318, 321 (La.App. 1st Cir. 1993). Thus, we do not consider the defendant's claim of excessiveness. This assignment of error is without merit. PRO SE ASSIGNMENT OF ERROR The defendant contends in his pro se assignment of error that the trial court erred in refusing to grant a mistrial or a continuance upon allowing an amendment of the bill of information after the trial began. In his brief to this court, the defendant contends that the bill of information was defective as it named the victim of the armed robbery as the Guaranty Bank. Thus, he claims the court erred in allowing the state to make a substantive amendment to the indictment by changing the name of the victim from the Guaranty Bank to the two tellers at the bank. According to the record, the bill of information originally stated, "... did unlawfully violate R.S. 14:64 by robbing the Guaranty Bank, located in Jarreau, LA, of $6,185.00, while armed with a dangerous weapon, to-wit; a small caliber handgun...." On March 12, 1996, after the jury was sworn in and prior to the beginning of witness testimony, the state amended the bill of information to read, "... did unlawfully violate R.S. 14:64 by robbing the [SIC] MARJORIE PLAUCHE & BECKY ROY, employees of Guaranty Bank...." At the hearing, the prosecutor made a motion to make a technical amendment of the bill of information. Defense counsel then made a motion for a mistrial under La.Code Crim. P. art. 487 due to a defective indictment. He argued that changing the victim's name was a substantive defect as although the bill read armed robbery, because a building was listed as the victim, the crime could have been misconstrued as burglary. Thus, he argued by changing the victim, the state was in essence changing the charge which he felt was prejudicial to the victim. In denying the defendant's motion and allowing the amendment, the court stated that the defect was technical. The court noted that only the victim's names were omitted from the bill and a preliminary examination was held regarding the instant case. La.Code Crim.P. art. 464 provides as follows: The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. La.Code Crim.P. art. 473 provides as follows: When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known. If the name, appellation, or nickname of the victim is not known, it is sufficient to so state and to describe him as far as possible. In stating any name of a victim it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names. It has been consistently held that where an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution. State v. Folse, 623 So.2d 59, 64 (La.App. 1st Cir.1993). In the instant case, prior to its amendment, the bill of information clearly stated that the defendant was being charged with *1243 armed robbery. The bill gave the date and location of the robbery, the amount of money taken, and the type of weapon used. While the bill did list the Guaranty Bank as the victim which was robbed, a preliminary examination was held wherein the two tellers at the bank testified that they were the victims of the robbery. Considering the above, we are unable to find that the defendant was prejudiced by the amendment of the bill of information. Accordingly, the trial court did not err in allowing the state to amend the bill of information. This assignment of error lacks merit. CONVICTION AND SENTENCE AFFIRMED.

738 F.2d 431 116 L.R.R.M. (BNA) 3264 N.L.R.B.v.Inta-Roto, Inc. 83-2080 United States Court of Appeals,Fourth Circuit. 6/1/84 1 N.L.R.B. ENFORCEMENT GRANTED

NO. 07-04-0347-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 28, 2004 ______________________________ IN THE MATTER OF TONY GIBBS _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-760,757; HONORABLE MARK C. HALL, JUDGE _______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. ORDER OF ABATEMENT AND REMAND Appellant Tony Gibbs, Jr., has given notice of appeal from a judgment that he engaged in delinquent conduct. The appellate court clerk received and filed the trial court clerk's record on August 16, 2004, and received and filed the trial court reporter's record on August 17, 2004. Appellant has timely filed a notice of appeal, and the trial court has certified that appellant has the right of appeal. Further, the trial court has found appellant indigent and appointed appellate counsel. Appellant's brief was due on September 16, 2004. On September 27, 2004, this court sent notice to appellant's counsel that the brief had not been filed. This notice further directed that appellant file a response by October 7, 2004, reasonably explaining the failure to file a brief. Tex. R. App. P. 38.8. Appellant has not responded to the notice. Accordingly, we abate the appeal and remand the cause to the trial court. Tex. R. App. P. 38.8(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appointed counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether appellant's present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney. The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter's record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the supplemental reporter's record; and (5) cause the records of the proceedings to be sent to this court. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, supplemental reporter's record, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than November 24, 2004. Per Curiam is court's August 6 letter indicates, though, that appellant's notice of appeal was filed with the trial court clerk by mail. Because the notice of appeal was untimely, we have no jurisdiction to take any action in this appeal but to dismiss it. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); see Olivo, 918 S.W.2d at 522. Appellant may have a remedy by filing a post-conviction writ of habeas corpus returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003). The appeal is dismissed for want of jurisdiction. Rule 43.2. James T. Campbell Justice Do not publish. 1. All references to rules are to the Texas Rules of Appellate Procedure. 2. April 21 is a legal holiday under Sections 662.003(b)(3) and 662.021 of the Government Code. (Vernon 1994 & Supp. 2003).

28 B.R. 591 (1983) In re Katherine Joan RUDD, d/b/a Lad & Lassie, Debtor. Walter DRAKE, Joan Rudd and Clyde Rudd, Plaintiffs, v. BANK OF TROY, Defendants. Bankruptcy No. 82-10795, Adv. No. 82-3220. United States Bankruptcy Court, W.D. Tennessee, E.D. April 1, 1983. *592 Albert D. Noe, Jackson, Tenn., for plaintiffs. Clint Butler, Jackson, Tenn., for Bank of Troy. Walter Drake, Jackson, Tenn., trustee. MEMORANDUM OPINION AND ORDER WILLIAM B. LEFFLER, Bankruptcy Judge. The debtor in this Chapter 7 case has filed a Complaint on behalf of the trustee requesting that the Court avoid the mortgage of the Bank of Troy ("bank") on the debtor's real property except to the extent of $10,000.00. The debtor and the trustee also filed an objection to the secured claim of the bank and request that the bank's security interest in the debtor's real property be limited to $10,000.00. The bank filed an Answer to the above-mentioned Complaint on December 29, 1982. An Order was entered on February 23, 1983, allowing the debtor's husband, Clyde Rudd, to join in the above-mentioned Complaint as a party-plaintiff and allowing the debtor and her husband to seek alternative relief in the form of reformation of a note and deed of trust signed by Mr. and Mrs. Rudd and given to the bank. The debtor started dealing with the bank in July, 1979, when the debtor opened her business. The debtor throughout the period that the business was in operation obtained several loans from the bank and pledged as security for the loans certificates of deposit, inventory, and fixtures. In February, 1981, the debtor owed the bank approximately $80,000.00. Needing a loan to continue operating her business, the debtor contacted Hickman Federal Savings & Loan, which held a first mortgage of approximately $12,000.00 on the home of the debtor and her husband. The debtor's home at the time had a value of $75,000.00. The debtor was advised by Gates Maloney, President of the Bank of Troy, that she could obtain a $10,000.00 loan from the bank if her husband signed a new note along with her and if the debtor and *593 her husband executed a deed of trust giving the bank a second mortgage on their home. After deciding that it would not be to their advantage to refinance the first mortgage because they would lose the low interest rate on the first mortgage loan upon refinancing, the debtor and her husband signed a blank note and blank deed of trust, and the loan proceeds were deposited in the debtor's business account at the bank. The note and deed of trust were later filled out in the amount of $90,000.00. The debtor and her husband contend that the bank's president led them to believe that the liability of the debtor's husband and the mortgage on the debtor's home would be limited, and therefore maintain that the note and deed of trust should be reformed accordingly to $10,000.00. The bank avers that the note and deed of trust were not blank when the debtor and her husband signed them and that they were aware of the effect of their actions. As mentioned above, the Court finds that the note and deed of trust were blank and did not contain the $90,000.00 figure when the debtor and her husband signed the instruments. The debtor and her husband testified that the instruments were blank. To attack the debtor's credibility, testimony of the debtor at a deposition held January 10, 1983, was introduced showing that the debtor was aware that the new $10,000.00 loan was being consolidated with the prior $80,000.00 balance for a consolidation loan in the amount of $90,000.00. However, the debtor also introduced evidence from the same deposition of the debtor showing consistent statements throughout the deposition in which the debtor claimed that the instruments were blank when she signed them and contained no figures thereon, e.g., deposition of debtor: page (p.) 8, line (l.) 22; p. 9, l. 1; p. 9, l. 21; p. 16, l. 18; and p. 24, l. 1. Also, several witnesses testified that they had obtained loans from the bank and signed blank instruments, thus, indicating a practice of the bank was to have parties sign blank instruments and then later the bank would fill in the blanks on the instruments. While the burden of proof is upon the party seeking to impeach the writing, a preponderance is all that is required. McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481 (1890); Stone v. Manning, 103 Tenn. 232, 52 S.W. 990 (1899). A preponderance of the evidence in this case shows that the debtor and her husband signed blank instruments. From the above findings, the argument could be made that no contract existed between the parties. It is well settled that mutual assent is a basic requirement for the formation of a contract, and in the absence of such mutual assent, if the parties intend different exchanges of performance, there is said to be no "meeting of the minds" and, thus, no contract. In re Jay's Trucking Co., Inc., 26 B.R. 73 (Bkrtcy.E.D. Va.1982), citing King Lumber Co. v. National Bank, 286 F. 906 (4th Cir.1923); Restatement (Second) of Contracts, §§ 17 and 20; 17 Am.Jur.2d, Contracts, §§ 18 and 146 (1964); 4 B Michie's Jurisprudence of Virginia and West Virginia, Contracts, § 26 (1974). It has also been stated that a material, fraudulent and unauthorized insertion in a blank space made by one party discharges any duty of the other party under the writing. P.R. Conway, Outline of the Law of Contracts, 672 (3rd Ed.1968); Restatement (Second) on Contracts, § 442(c). However, a finding that no contract and, thus, no mortgage existed in this case would be harsh and inequitable. Moreover, the Court finds that the parties in this case did, to an extent, have a "meeting of the minds". A finding that there was a meeting of the minds is a prerequisite to reforming a written instrument. Woodfin v. Neal, 16 Tenn.App. 481, 65 S.W.2d 212 (1933); 66 Am.Jur.2d Reformation of Instruments, §§ 1, 4 (1964). It is not necessary, in order to reform a written instrument, that it be shown that particular words were agreed upon by the parties as words to be inserted in the instrument, it being sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed *594 and that the instrument as executed is insufficient to effectuate their intention. 66 Am.Jur.2d at § 13. In In re McAlexander, BK. No. 80-10148 and 80-10149 (B.Ct.W.D.Tenn., 1980), citing Rolane Sportswear, Inc. v. U.S. Fidelity and Guaranty Co., 407 F.2d 1091, 1096 (6th Cir.1969), this Court stated that there are two grounds in Tennessee that form the basis for the equitable remedy of reformation: (1) mutual mistake, or (2) unilateral mistake induced by fraud or inequitable conduct. See also: Stokes v. Stokes, 19 Tenn.App. 504, 90 S.W.2d 543 (1935); Pittsburg Lumber Co. v. Shell, 136 Tenn. 466, 189 S.W. 879 (1916); Walker v. Walker, 2 Tenn.App. 279 (1925); Jones v. Jones, 150 Tenn. 554, 266 S.W. 110 (1924). To protect an innocent party a written instrument may be reformed, especially where there is ignorance or a mistake on one side and fraud or inequitable conduct on the other, as where one party to an instrument has made a mistake and the other knows it and fails to inform him of the mistake or conceals the truth from him. 66 Am.Jur.2d Reformation of Instruments, §§ 24, 28. Moreover, where the relation of the parties is one of trust and confidence and the means of knowledge as to the terms and conditions of the contract were not equally open and accessible to both parties, the Court will much more readily draw the inference of fraud than in cases in which the parties stand on equal terms. 66 Am. Jur.2d § 27. Also, one who, in reliance upon a false but not fraudulent representation by another who occupies toward the former a relation of trust and confidence, signs an instrument which, through mistake, fails to include a sum to which the signer is entitled, can have the mistake rectified and recover the amount so omitted. Id. In Town of McMinnville v. Rhea, 44 Tenn.App. 612, 316 S.W.2d 46 (Tenn.1958), the Tennessee Court of Appeals, in granting relief by ways of reformation, discussed the following: In Gibson's Suits in Chancery, Fifth Edition (Crownover), at Section 978, it is said that every person who has business dealings with another has the right to expect that he will, in every matter connected with such dealings, do whatever good reason and good conscience require. It is further said that the parties to the contract impliedly contract with each other that in making and performing their engagements, honesty, frankness and fidelity will characterize their conduct. In the present case all representations made by the bank to the debtor and her husband indicate an intent to limit the security interest in the home and the liability of Mr. Rudd to $10,000.00, and yet the bank had the debtor and her husband sign blank instruments, and then later the bank filled in the blank spaces with the $90,000.00 figure. This conduct of the bank, if not fraudulent, is at the very least inequitable or unconscionable. The Court would as a general rule deny reformation where a party signed a blank instrument because the Court would find the signer negligent in so doing, but in a case like the case at bar where the parties from prior dealings shared a relationship of trust and honesty, the Court can only conclude that as a matter of equity the instruments should be reformed. The bank contends that the debtor and her husband intended to mortgage all of the equity in their home for the consolidation loan. Not by any stretch of the imagination, can the Court find that any party would intend to mortgage his home with an equity of over $60,000.00 or intend to obligate himself on a $90,000.00 loan (on which he was never before liable) merely to obtain a $10,000.00 loan for a risky and dying business operation. Therefore, the Court concludes that the deed of trust at bar should be and is hereby reformed to reflect that the mortgage held by the bank is limited to a lien in the amount of $10,000.00 (plus interest on said amount) and that the note at bar should be and is hereby reformed to show that the indebtedness owed by Clyde Rudd to the bank is in the amount of $10,000.00 (plus interest on said amount). IT IS SO ORDERED.

.NOTE: ThiS order is nonprecedential United States Court of AppeaIs for the FederaI Circuit OLE K. NILSSEN, Plaintiff, and GEO FOUNDATION, LTD., Plaintiff-Appellant, V. WAL-MART STORES, INC., Defen,dant-Appellee, and COSTCO W'HOLESALE CORP., Defendcmt-Appellee, and MENARD, INC., ACE HARDWARE COR_P.,_ TRUSERV CORPORATION, and HOME DEPOT, INC., Defendcmts, and LOVVE’S HOME CENTERS, INC., Defendan,t-Appellee, and IKEA ILLINOIS, LLC, Defendan,t~Appellee. NILSSEN V. WAL-MART STORES 2 2010~1139 Appeal from the United States District C0urt for the Northern District of Illinois in case no. 04-CV-5363, Judge Robert W. Gettleman. ON MOTION Before LOURIE, Circuit Judge. 0 R D E R Ge0 Foundation, Ltd. moves to stay oral argument in this case pending the court’s disposition in Therasense, Inc. v. Becton, Dickin,son & Co., 2008-1511 et al. Wal- Mart Stores, lnc., Costco Wholesale Corp., Lowe’s Home Centers, Inc., and lKEA Illinois, LLC oppose. Geo replies Wal-Mart, Costco, Lowe’s, and lKEA lllinois move for sanctions pursuant to Fed. R. App. P. 38. Geo moves without opposition for a seven-day extension of time, until August 12, 2010, to respond to the sanctions motion. Geo opposes the sanctions motion. Wal-Mart, Costco, Lowe’s, and IKEA Illinois reply. ' ' Upon consideration thereof, IT ls 0RDERED THAT: (1) The motion to stay is granted Geo is directed to respond within 21 days of the date of issuance of the mandate in Therccsense how it believes this appeal should proceed. Any other party may also respond within that time (2) The motion for an extension of time to respond to the sanctions motion is granted 3 NILSSEN V. WAL-MART STORES (3) The motion for sanctions is deferred for considera- tion by the merits panel assigned to hear this case. The motion, opposition, reply, and a copy of this order shall be transmitted to the merits panel. FoR THE CoURT 1 0 fs/ Jan Horba1y Date J an Horbaly Clerk Cc: Leland W. Hutchinson,Jr., Esq. Anthony J ames Fitzpatrick, Esq. l\/largaret M. Duncan, Esq. Kimbal1 R. Anderson, Esq. u'Si1Eg%EDERAL&§%lb5nmR Gary William Smith, Esq. '_ 817 SEP 1 0 3919 JAN HGRBALY Ci.ERK

322 F.3d 728 The FUND FOR ANIMALS, INC., et al., Appellees,v.Gale A. NORTON, Secretary, Department of the Interior, et al., Appellees.Natural Resources Department of the Ministry of Nature and Environment of Mongolia, Appellant. No. 01-5346. United States Court of Appeals, District of Columbia Circuit. Argued February 21, 2003. Decided March 18, 2003. COPYRIGHT MATERIAL OMITTED Appeal from the United States District Court for the District of Columbia (No. 01cv00813). John J. Jackson III argued the cause and filed the briefs for appellant. Howard M. Crystal argued the cause for plaintiffsappellees. With him on the brief was Katherine A. Meyer. Jonathan R. Lovvorn entered an appearance. Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge GARLAND. GARLAND, Circuit Judge: 1 The Natural Resources Department of the Ministry of Nature and Environment of Mongolia (NRD) appeals from the denial of its motion to intervene in a case concerning the application of the Endangered Species Act to argali sheep located within Mongolia's borders. Because the NRD satisfies the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2), we reverse and direct that the NRD be allowed to intervene. 2 * The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., requires the Secretary of the Interior to determine whether any species is "endangered" or "threatened," id. § 1533(a)(1), a responsibility she has delegated to the Department of the Interior's Fish and Wildlife Service (FWS), 50 C.F.R. § 402.01(b). A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range," 16 U.S.C. § 1532(6), and is threatened if it "is likely to become an endangered species within the foreseeable future," id. § 1532(20). The ESA provides specified protections for endangered species, id. § 1538(a)(1), and instructs the Secretary to issue such regulations as she "deems necessary and advisable to provide for the conservation of" threatened species, id. § 1533(d). 3 The argali sheep, an Asian relative of the North American bighorn sheep, is the largest species of wild sheep in the world. Adult males weigh between 210 and 310 pounds and possess enormous spiral horns. Addition of Argali to List of Endangered and Threatened Wildlife, 57 Fed.Reg. 28,014, 28,014 (FWS, June 23, 1992). In 1992, the FWS listed the argali as endangered throughout most of its range. It listed the species as threatened rather than endangered, however, in Mongolia, Kyrgyzstan, and Tajikistan. Id. (codified at 50 C.F.R. pt. 17). 4 On April 16, 2001, The Fund for Animals, along with other organizations and individuals dedicated to wildlife conservation in general and protection of argali sheep in particular (collectively, the "Fund" or "plaintiffs"), filed suit against the Secretary of the Interior and the Director of the FWS. The plaintiffs alleged that the defendants violated the ESA, the Administrative Procedure Act, 5 U.S.C. § 706, and their own regulations by failing to list the argali as an endangered species in Mongolia, Kyrgyzstan, and Tajikistan, and by issuing hundreds of permits for sport hunters to import killed argali (or parts thereof) into the United States as "trophies." The plaintiffs asked the court, inter alia, to direct the defendants to list the argali as an endangered species in those countries, to declare unlawful all outstanding permits for the import of argali sheep, and to enjoin the defendants from issuing additional permits. 5 On April 27, 2001, the Foundation for North American Wild Sheep, as well as other organizations and individuals dedicated to wild sheep hunting and conservation (collectively, the "FNAWS intervenors"), filed a motion to intervene as defendants in the Fund's lawsuit. On June 4, 2001, "the Country of Mongolia, through its Natural Resources Department of the Ministry of Nature and Environment," sought to intervene as a defendant as well. Mot. to Add Intervenor at 1 (J.A. at 139).1 The NRD, represented by the same counsel who filed on behalf of the FNAWS intervenors, described itself as the agency of the Mongolian government responsible for "implement[ing] [the] policy and decision of [the] Government on rational utilization of natural resources, rehabilitation, and ... protection," including the country's "tourist hunting program." Id. at 2 (J.A. at 140). Another pair of organizations dedicated to hunting and conservation, the Safari Club International and the Wildlife Conservation Fund of America (collectively, the "Safari Club intervenors"), moved to intervene on June 27, 2001. 6 On September 4, 2001, the district court granted the motions for intervention filed by both the FNAWS and Safari Club intervenors, but denied the motion filed by the NRD. The court did not explain its decision, other than to state that denial of intervention was based "[u]pon consideration of [the NRD's motion], the opposition thereto, and the entire record herein." NRD Order at 1 (J.A. at 386). The instant appeal followed. II 7 Rule 24 of the Federal Rules of Civil Procedure provides for both permissive intervention and intervention as of right. See Fed.R.Civ.P. 24(a) & (b). The NRD's motion relied on both theories, and its briefs on appeal cite both. Because we conclude that the NRD is entitled to intervene as of right, we need not address the issue of permissive intervention. See Foster v. Gueory, 655 F.2d 1319, 1323-24 (D.C.Cir.1981). Rule 24(a)(2) states in relevant part: 8 Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. 9 Fed.R.Civ.P. 24(a)(2). Parsing the language of the rule, we have held that qualification for intervention as of right depends on the following four factors: 10 (1) the timeliness of the motion; (2) whether the applicant "claims an interest relating to the property or transaction which is the subject of the action"; (3) whether "the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest"; and (4) whether "the applicant's interest is adequately represented by existing parties." 11 Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.Cir.1998) (quoting Fed.R.Civ.P. 24(a)(2)) (citations omitted). We have further held that, in addition to establishing its qualification for intervention under Rule 24(a)(2), a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution. See Military Toxics Project v. EPA, 146 F.3d 948, 953 (D.C.Cir.1998); Mova Pharm., 140 F.3d at 1074; Building & Constr. Trades Dep't v. Reich, 40 F.3d 1275, 1282 (D.C.Cir.1994). As we have explained, "because a Rule 24 intervenor seeks to participate on an equal footing with the original parties to the suit, he must satisfy the standing requirements imposed on those parties." City of Cleveland v. NRC, 17 F.3d 1515, 1517 (D.C.Cir.1994). 12 The denial of a motion for intervention as of right is an appealable final order "because it is conclusive with respect to the distinct interest asserted by the movant." Smoke v. Norton, 252 F.3d 468, 470 (D.C.Cir.2001); see Alternative Research & Dev. Found. v. Veneman, 262 F.3d 406, 409-10 (D.C.Cir.2001). We have been somewhat inconsistent, however, in describing the standard of review for such appeals.2 As we have previously observed, that may be because we have not always distinguished between the different kinds of determinations necessary to establish the predicate for intervention. See Massachusetts School of Law at Andover, Inc. v. United States, 118 F.3d 776, 779 (D.C.Cir.1997). Notwithstanding that Rule 24(a) is entitled "Intervention of Right," the determinations necessary to establish that predicate are of three different kinds. Some are pure issues of law and hence are reviewed de novo. See Massachusetts School of Law, 118 F.3d at 779; Mova Pharm., 140 F.3d at 1074. Others involve findings of fact and are reviewed for clear error. Cf. Fed.R.Civ.P. 52(a) (providing that "[f]indings of fact ... shall not be set aside unless clearly erroneous"). And some involve a measure of judicial discretion and hence are reviewed for abuse of that discretion. See Massachusetts School of Law, 118 F.3d at 779 (noting "the existence of district court discretion over the timeliness and adequacy of representation issues under Rule 24(a)(2)") (citing Hodgson v. United Mine Workers, 473 F.2d 118, 125 n. 26 (D.C.Cir.1972)); Natural Res. Def. Council v. Costle, 561 F.2d 904, 907, 913 (D.C.Cir.1977) (same).3 Of course, where (as here) the district court has not accompanied its decision with either factual findings or explanation, there is nothing to which we can defer regardless of which standard of review applies. See Cook v. Boorstin, 763 F.2d 1462, 1468 (D.C.Cir.1985). 13 Because a would-be intervenor's Article III standing presents a question going to this court's jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002), we address it first, in Part III below. In Part IV, we consider the four factors set forth in Rule 24(a)(2). III 14 To establish standing under Article III, a prospective intervenor — like any party — must show: (1) injury-in-fact, (2) causation, and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Sierra Club, 292 F.3d at 898. The NRD argues that it meets these requirements because fees paid by sport hunters are the primary source of funding for its argali conservation program. If the Fund succeeds in barring American hunters from bringing their trophies home, some hunters will not travel to Mongolia to hunt the argali, and the revenues that support the conservation program will decline. 15 The NRD's argument is persuasive. The threatened loss of tourist dollars, and the consequent reduction in funding for Mongolia's conservation program, constitute a concrete and imminent injury. This injury is fairly traceable to the regulatory action — the placement of the argali on the endangered list and the cancellation of import permits — that the Fund seeks in the underlying lawsuit. And it is likely that a decision favorable to the NRD would prevent that loss from occurring. 16 In Military Toxics Project v. EPA, we considered a similar set of circumstances. There, the Chemical Manufacturers Association (CMA) sought to intervene on the side of the Environmental Protection Agency (EPA) in a lawsuit brought by the Military Toxics Project, a coalition of citizens' groups. 146 F.3d at 953. The Project sued to overturn an EPA rule that declared that most military munitions at firing ranges did not constitute "regulatory solid waste" for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., when used for their "intended purpose." Military Toxics Project, 146 F.3d at 952. We concluded that the CMA had standing to intervene because, inter alia, "some of its members produce[d] military munitions," those members "benefit[ed] from the EPA's `intended use' interpretation," and they "would suffer concrete injury if the court grant[ed] the relief the petitioners [sought]." Id. at 954. The parallels to this case are clear: Mongolia's sheep are the subject of the disputed regulations, the country benefits from the FWS's current regulations, and Mongolia would suffer concrete injury if the court were to grant the relief the plaintiffs seek. 17 The Fund does not dispute the logic of the NRD's reasoning. Instead, it contends that the agency has failed to support its claims with evidence. Quoting our decision in Sierra Club v. EPA, the Fund insists that the NRD's standing cannot rest on "mere allegations, but must set forth by affidavit or other evidence specific facts." 292 F.3d at 899 (quotation marks omitted). The Fund contends that the NRD has offered neither affidavits nor other evidence sufficient to satisfy this requirement.4 18 Sierra Club, however, does not require parties to file evidentiary submissions in support of standing in every case. To the contrary, our decision made clear that "[i]n many if not most cases the petitioner's standing to seek review of administrative action is self-evident." Id. at 899-900. "In particular, if the complainant is `an object of the action (or forgone action) at issue' — as is the case usually in review of a rulemaking and nearly always in review of an adjudication — there should be `little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.'" Id. at 900 (quoting Defenders of Wildlife, 504 U.S. at 561-62, 112 S.Ct. at 2137). In this case, while the NRD is not itself the object of the challenged agency action, sheep that Mongolia regards as its national property and natural resource plainly are its subject. And for the purpose of determining whether standing is self-evident, we see no meaningful distinction between a regulation that directly regulates a party and one that directly regulates the disposition of a party's property.5 19 But even if we were to harbor any doubts about NRD's standing, they would be dissipated by evidence in the district court record. First, there are the Fund's own pleadings, which are admissible as evidence in support of its opponent's cause. See First Bank of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir.1998); Dugan v. EMS Helicopters, Inc., 915 F.2d 1428, 1431-32 (10th Cir.1990). In aid of the Fund's attack on the FWS's import permit policy, but in complete accord with the NRD's standing contentions, the Fund's complaint declares: 20 A U.S. hunter who cannot import his "trophy" from the country where it is killed is unlikely to spend the resources required to travel to that country to kill the animal. Accordingly, the number of argali that are killed by U.S. hunters is directly related to the number of import permits the [FWS] issues. 21 Pls.' Second Am. Compl. ¶ 38. This point is further supported by affidavits filed by another set of parties to the district court litigation — the Safari Club intervenors. Confirming both the NRD's logic and the Fund's pleadings, two hunters aver that they will likely cancel their previously scheduled hunting trips to Mongolia if they are unable to obtain import permits. Jacklin Decl. ¶¶ 2, 5 (J.A. at 306); Ward Decl. ¶¶ 2, 5 (J.A. at 308). 22 We therefore conclude that the NRD has established its Article III standing, and that lack of standing is not a ground for rejecting its motion to intervene as of right.6 IV 23 Turning to the four-factor test of Rule 24(a)(2), see supra Part II, we find the balance of our analysis not difficult at all. 24 First, the NRD's motion was timely. The NRD moved to intervene less than two months after the plaintiffs filed their complaint and before the defendants filed an answer. Indeed, the NRD's motion was filed three weeks before that of the Safari Club intervenors — whose motion the district court granted. 25 The second factor is also readily dispatched. Our conclusion that the NRD has constitutional standing is alone sufficient to establish that the NRD has "an interest relating to the property or transaction which is the subject of the action," Fed.R.Civ.P. 24(a)(2). See Mova Pharm., 140 F.3d at 1076. In any event, because the relevant "property" is Mongolia's sheep and the relevant "transaction" is the FWS's decision to permit the importation of those sheep from Mongolia, there can be no question that the NRD has the requisite interest. See Foster, 655 F.2d at 1324 ("An intervenor's interest is obvious when he asserts a claim to property that is the subject matter of the suit...."); United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1291-93 (D.C.Cir.1980) (holding that a prospective intervenor possessed the requisite interest in a database that another company sought from the government, because the database had been prepared by the intervenor). 26 Third, the NRD is "so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect [its] interest." Fed.R.Civ.P. 24(a)(2). Prior to 1966, Rule 24(a)(2) required the applicant to show that it "may be bound by a judgment in the action." Fed.R.Civ.P. 24(a)(2) (1966); see Fed.R.Civ.P. 24(a)(2) advisory committee's note on 1966 amendment; Nuesse v. Camp, 385 F.2d 694, 701 (D.C.Cir.1967). But the 1966 amendments to Rule 24 eliminated that requirement and substituted the present language, which we have read "as looking to the `practical consequences' of denying intervention, even where the possibility of future challenge to the regulation remain[s] available." Natural Res. Def. Council, 561 F.2d at 909 (quoting Nuesse, 385 F.2d at 702). Regardless of whether the NRD could reverse an unfavorable ruling by bringing a separate lawsuit, there is no question that the task of reestablishing the status quo if the Fund succeeds in this case will be difficult and burdensome. See id. at 910 ("[I]t is not enough to deny intervention under 24(a)(2) because applicants may vindicate their interests in some later, albeit more burdensome, litigation."). Moreover, as the NRD further argues, its loss of revenues during any interim period would be substantial and likely irreparable. Cf. Mova Pharm., 140 F.3d at 1076 (holding that danger of loss of market share due to denial of a preliminary injunction satisfied the third Rule 24(a)(2) factor). 27 This leaves only the question of whether the NRD's interest is "adequately represented by existing parties." Fed.R.Civ.P. 24(a)(2). The Supreme Court has held that this "requirement of the Rule is satisfied if the applicant shows that representation of his interest `may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). Citing Trbovich, we have described this requirement as "not onerous." Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C.Cir.1986); see also Foster, 655 F.2d at 1325; American Tel. & Tel. Co., 642 F.2d at 1293 (stating that a petitioner "`ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee'" (quoting 7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1909 (1st ed.1972))). Measured by that standard, we conclude that neither of the two groups of existing parties in this case — the federal defendants and the other intervenors — adequately represents the NRD's interests.7 28 The NRD's interests plainly are not adequately represented by the federal defendants. It is true, as the Fund notes, that both the FWS and the NRD agree that the FWS's current rules and practices are lawful. But the FWS's obligation is to represent the interests of the American people, as expressed in the ESA, while the NRD's concern is for Mongolia's people and natural resources. There may be some overlap, since the ESA requires the FWS — when determining whether a species is endangered or threatened — to "tak[e] into account those efforts, if any, being made by any ... foreign nation, or any political subdivision of a ... foreign nation, to protect such species ... within any area under its jurisdiction." 16 U.S.C. § 1533(b)(1)(A). But taking the NRD's efforts "into account" does not mean giving them the kind of primacy that the NRD would give them.8 Nor must the FWS's appraisal of the NRD's efforts necessarily match the NRD's self-appraisal. It is, therefore, not hard to imagine how the interests of the NRD and those of the FWS might diverge during the course of litigation — when, for example, the FWS may be required to present its assessment of the quality of Mongolia's argali conservation program. 29 For just these reasons, we have often concluded that governmental entities do not adequately represent the interests of aspiring intervenors.9 For example, in holding that the District of Columbia did not adequately represent the interests of a private insurance company that wished to intervene to support the District against a challenge to its no-fault insurance law, we explained: 30 A government entity such as the District of Columbia is charged by law with representing the public interest of its citizens. [The insurance company], on the other hand, is seeking to protect a more narrow and "parochial" financial interest not shared by the citizens of the District of Columbia. The District would be shirking its duty were it to advance this narrower interest at the expense of its representation of the general public interest. 31 Dimond, 792 F.2d at 192-93. Although it is true that the NRD is itself a governmental entity, it is not an agency of our government. Hence, examined from the perspective of the FWS's responsibilities, the NRD's interests are "more narrow and `parochial'" — just as the FWS's interests may appear when viewed from the perspective of Mongolia. 32 Finally, we also reject the Fund's contention that the NRD's interest is adequately represented by the FNAWS and Safari Club intervenors — non-Mongolian organizations and individuals interested in sheep hunting and conservation. We could no more regard the NRD's interests as adequately represented by those intervenors than we could regard the FWS's interests as adequately represented by a Mongolian — or even an American — hunt club, however conservation-minded the club might be. Although there may be a partial congruence of interests, that does not guarantee the adequacy of representation. As we have recognized, "interests need not be wholly `adverse' before there is a basis for concluding that existing representation of a `different' interest may be inadequate." Nuesse, 385 F.2d at 703. Moreover, even "a shared general agreement... does not necessarily ensure agreement in all particular respects," Natural Res. Def. Council, 561 F.2d at 912, and "[t]he tactical similarity of the present legal contentions of the [parties] does not assure adequacy of representation or necessarily preclude the [intervenor] from the opportunity to appear in [its] own behalf," Nuesse, 385 F.2d at 703. 33 Nor does the fact that the NRD is represented by the same counsel as the FNAWS intervenors establish the adequacy of representation. Rule 24(a)(2) requires a showing that the existing parties, not their lawyers, will adequately represent the applicant. Sharing the same counsel does not guarantee that the clients' interests are congruent, and if there is a divergence, it is counsel and not the clients who must bend. We are satisfied that the NRD's interests in this litigation are not adequately represented as measured by the Trbovich standard, and we therefore find that the last of the Rule 24(a)(2) requirements for intervention has been met. V 34 Having concluded that the district court erred in denying the NRD intervention as of right, we could remand this case for reconsideration in light of the discussion set forth above. In the past, however, we have not hesitated to direct that intervention be allowed where we found denial to constitute error.10 That disposition is appropriate where, as here, we cannot envision a contrary determination that would withstand further appeal.11 Accordingly, we remand this case to the district court with directions to grant the NRD's motion to intervene as of right. 35 So ordered. Notes: 1 The NRD sought intervention through a motion, filed by the FNAWS intervenors, to add the NRD as an intervenor 2 Compare Smoke, 252 F.3d at 470-71 (stating that the court reviews denials of intervention as of right for clear error), and Foster, 655 F.2d at 1324 (same), with Mova Pharm., 140 F.3d at 1074 (explaining that "[t]o the extent that a district court's ruling on a motion to intervene as of right is based on questions of law, it is reviewed de novo; to the extent that it is based on questions of fact, it is ordinarily reviewed for abuse of discretion"), and Building & Constr. Trades, 40 F.3d at 1282 (stating that denials are reviewed under an abuse of discretion standard). 3 Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990) (prescribing a unitary abuse of discretion standard for reviewing determinations made under Federal Rule of Civil Procedure 11, but noting that a "district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence"). 4 We note that the above quotations fromSierra Club refer to a party's obligations at the summary judgment stage, but not at "the pleading stage" where "`general factual allegations of injury ... may suffice.'" Sierra Club, 292 F.3d at 898-99 (quoting Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137). In light of our disposition, we need not decide whether the NRD's motion to intervene is closer to a motion for summary judgment or to a pleading. 5 In fact, in some respects Mongolia is itself "an object of the action ... at issue,"Sierra Club, 292 F.3d at 900 (quotation marks omitted), because the Fund's complaint contends that the country's conservation program does not satisfy the statutory criteria for issuing import permits under the ESA. See Pls.' Second Am. Compl. ¶¶ 41-57. 6 The plaintiffs do not question the NRD's prudential standing, and rightly so. InBennett v. Spear, the Supreme Court held that the broad language of the citizen-suit provision of the ESA — which extends to departments of foreign governments, see 16 U.S.C. §§ 1532(13), 1540(g)(1)(C), and on which the plaintiffs rely in the present case — "negates the zone-of-interests test" and expands standing "to the full extent permitted under Article III." 520 U.S. 154, 164, 165, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). Even if that were not the case, the NRD's interests are "arguably within the zone of interests to be protected or regulated by the statute," In re: Vitamins Antitrust Class Actions, 215 F.3d 26, 29 (D.C.Cir.2000) (quotation marks omitted), because the ESA requires the Secretary of the Interior to take into account efforts "being made by any ... foreign nation, or any political subdivision of a ... foreign nation, to protect [threatened or endangered] species... within any area under its jurisdiction," 16 U.S.C. § 1533(b)(1)(A). 7 Our cases are inconsistent as to who bears the burden with respect to this factor. The language of some cases, particularly those that quote the above passage fromTrbovich, suggest that the burden is on the aspiring intervenor. See Foster, 655 F.2d at 1325; Dimond, 792 F.2d at 192. Others declare that the burden is on the opponent of intervention, because Rule 24(a)(2) states that if its first three factors are satisfied, intervention "shall" be permitted "unless" the applicant's interest is already adequately represented. See American Tel. & Tel. Co., 642 F.2d at 1293; Smuck v. Hobson, 408 F.2d 175, 181 (D.C.Cir.1969). In any event, Trbovich makes clear that the standard for measuring inadequacy of representation is low, and in this case it is satisfied regardless of who bears the burden. 8 See 16 U.S.C. § 1533(b)(1)(A) (requiring that determinations of threatened or endangered status be made "solely on the basis of the best scientific and commercial data available" after taking into account the conservation efforts of a foreign nation). 9 See, e.g., Natural Res. Def. Council, 561 F.2d at 912-13 (allowing rubber and chemical companies to intervene in support of EPA because their interest "is more narrow and focused than EPA's" and, "[g]iven the acknowledged impact that regulation can be expected to have upon their operations, appellants' participation in defense of EPA decisions that accord with their interest may also be likely to serve as a vigorous and helpful supplement to EPA's defense"); Smuck, 408 F.2d at 181 (holding that a school board did not adequately represent the interests of intervening parents because the "board represents all parents," while the intervenors "may have more parochial interests centering upon the education of their own children"). Similarly, in Trbovich the Supreme Court authorized intervention by a union member who sought to participate in a suit that the Secretary of Labor had instituted against the member's union, upon the member's own complaint. See 404 U.S. at 529, 92 S.Ct. at 631-32. The Court rejected the Secretary's claim that he adequately represented the petitioner, because "the Secretary has an obligation to protect the vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Id. at 539, 92 S.Ct. at 636 (quotation marks omitted). 10 See Mova Pharm., 140 F.3d at 1076-77; Dimond, 792 F.2d at 194; Foster, 655 F.2d at 1325; Natural Res. Def. Council, 561 F.2d at 913; see also Trbovich, 404 U.S. at 539, 92 S.Ct. at 637 (remanding with directions to the district court to allow intervention). 11 In opposingpermissive intervention in the district court, the Fund, quoting Federal Rule of Civil Procedure 24(b), expressed concern that the NRD would "unduly delay or prejudice the adjudication" by interjecting extraneous claims. At the oral argument of this appeal, however, the Fund agreed that the district court had shown itself able to prevent such delay or prejudice without denying intervention: in granting the motions of the FNAWS and Safari Club intervenors, the court limited their intervention to "the claims raised by the original parties" and barred them from raising "collateral issues." FNAWS Order at 1; Safari Club Order at 1. The same option is available to the district court with respect to the NRD. See Fed. R.Civ.P. 24(a) advisory committee's note on 1966 amendment ("An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.").

532 U.S. 782 (2001) PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION No. 00-6677. United States Supreme Court. Argued March 27, 2001. Decided June 4, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *784 *784 *785 O'Connor, J., delivered the opinion of the Court, Parts I, II, and III—A of which were unanimous, and Part III—B of which was joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 804. Robert S. Smith argued the cause for petitioner. With him on the briefs were Julia Tarver and John E. Wright. Andy Taylor, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were John Cornyn, Attorney General, Gregory S. Coleman, Solicitor General, Michael T. McCaul, Deputy Attorney General, Edward L. Marshall, Senior Assistant Attorney General, and Gena Blount Bunn and Tommy L. Skaggs, Assistant Attorneys General. Gene C. Schaerr argued the cause for the State of Alabama as amicus curiae urging affirmance. With him on the brief were Bill Pryor, Attorney General, J. Clayton Crenshaw, Assistant Attorney General, Carter G. Phillips, and Rebecca K. Smith.[*] *786 Justice O'Connor, delivered the opinion of the Court. In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. See Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I). The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. We now consider whether the jury instructions at Penry's resentencing complied with our mandate in Penry I. We also consider whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment. I Johnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25, 1979. In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty hearing, the jury was instructed to answer three statutorily mandated "special issues": "`(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; "`(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and "`(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.' " Id., at 310 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)). The jury answered "yes" to each issue and, as required by statute, the trial court sentenced Penry to death. 492 U. S., at 310-311. *787 Although Penry had offered extensive evidence that he was mentally retarded and had been severely abused as a child, the jury was never instructed that it could consider and give mitigating effect to that evidence in imposing sentence. Id., at 320. Nor was any of the three special issues broad enough in scope that the jury could consider and give effect to the mitigating evidence in answering the special issue. Id., at 322-325. While Penry's mental retardation was potentially relevant to the first special issue—whether he had acted deliberately—we found no way to be sure that the jurors fully considered the mitigating evidence as it bore on the broader question of Penry's moral culpability. Id., at 322-323. As to the second issue—whether Penry would be a future danger—the evidence of his mental retardation and history of abuse was "relevant only as an aggravating factor." Id., at 323 (emphasis in original). And the evidence was simply not relevant in a mitigating way to the third issue—whether Penry had unreasonably responded to any provocation. Id., at 324-325. The comments of counsel also failed to clarify the jury's role. Defense counsel had urged the jurors to vote "no" on one of the special issues if they believed that Penry, because of the mitigating evidence, did not deserve to be put to death. The prosecutor, however, had reminded them of their "oath to follow the law and . . . answe[r] these questions based on the evidence and following the law." Id., at 325 (internal quotation marks omitted). "In light of the prosecutor's argument, and . . . in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty," we concluded that "a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Id., at 326, *788 328. We thus vacated Penry's sentence, confirming that in a capital case, "[t]he sentencer must . . . be able to consider and give effect to [mitigating] evidence in imposing sentence," so that "`the sentence imposed . . . reflec[ts] a reasoned moral response to the defendant's background, character, and crime.' " Id., at 319 (quoting California v. Brown, 479 U. S. 538, 545 (1987) (O'Connor, J., concurring) (emphasis in original)). Penry was retried in 1990 and again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry's mental impairments and childhood abuse. One defense witness on the subject of Penry's mental impairments was Dr. Randall Price, a clinical neuropsychologist. On direct examination, Dr. Price testified that he believed Penry suffered from organic brain impairment and mental retardation. App. 276-279; 878. In the course of cross-examining Dr. Price, the prosecutor asked what records Price had reviewed in preparing his testimony. Price cited 14 reports, including a psychiatric evaluation of Penry prepared by Dr. Felix Peebles on May 19, 1977. Id., at 327. The Peebles report had been prepared at the request of Penry's then-counsel to determine Penry's competency to stand trial on a 1977 rape charge—unrelated to the rape and murder of Pamela Carpenter. Id., at 55-60, 125. The prosecutor asked Dr. Price to read a specific portion of the Peebles report for the jury. Over the objection of defense counsel, Dr. Price recited that it was Dr. Peebles' "professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons." Id., at 413. The prosecutor again recited this portion of the Peebles report during his closing argument. Id., at 668. When it came time to submit the case to the jury, the court instructed the jury to determine Penry's sentence by answering three special issues—the same three issues that *789 had been put before the jury in Penry I. Specifically, the jury had to determine whether Penry acted deliberately when he killed Pamela Carpenter; whether there was a probability that Penry would be dangerous in the future; and whether Penry acted unreasonably in response to provocation. App. 676-678. Cf. Penry I, 492 U. S., at 320. The court told the jury how to determine its answers to those issues: "[B]efore any issue may be answered `Yes,' all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issue should be `Yes.' . . . [I]f any juror, after considering the evidence and these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered `Yes,' then such juror should vote `No' to that Special Issue." App. 672-673. The court explained the consequences of the jury's decision: "[I]f you return an affirmative finding on each of the special issues submitted to you, the court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you, the court shall sentence the defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal culpability of the defendant, JOHNNY PAUL PENRY, in this case." Id., at 674-675. The court then gave the following "supplemental instruction": "You are instructed that when you deliberate on the questions posed in the special issues, you are to consider *790 mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." Id., at 675. A complete copy of the instructions was attached to the verdict form, and the jury took the entire packet into the deliberation room. Tr. of Oral Arg. 31. The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each special issue: "We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is `Yes,' " or "We, the jury, because at least ten (10) jurors have a reasonable doubt as to the matter inquired about in this Special Issue, find and determine that the answer to this Special Issue is `No.' " App. 676-678. After deliberating for approximately 2[1]20442 hours, the jury returned its punishment verdict. See 51 Record 1948, 1950. The signed verdict form confirmed that the jury had unanimously agreed that the answer to each special issue was "yes." App. 676-678. In accordance with state law, the court sentenced Penry to death. *791 The Texas Court of Criminal Appeals affirmed Penry's conviction and sentence. The court rejected Penry's claim that the admission of language from the 1977 Peebles report violated Penry's Fifth Amendment privilege against selfincrimination. The court reasoned that because Dr. Peebles had examined Penry two years prior to the murder of Pamela Carpenter, Penry had not at that time been "confronted with someone who was essentially an agent for the State whose function was to gather evidence that might be used against him in connection with the crime for which he was incarcerated." Penry v. State, 903 S. W. 2d 715, 759-760 (1995) (internal quotation marks and citation omitted). The court also rejected Penry's claim that the jury instructions given at his second sentencing hearing were constitutionally inadequate because they did not permit the jury to consider and give effect to his mitigating evidence of mental retardation and childhood abuse. The court cited Penry I for the proposition that when a defendant proffers "mitigating evidence that is not relevant to the special issues or that has relevance to the defendant's moral culpability beyond the scope of the special issues . . . the jury must be given a special instruction in order to allow it to consider and give effect to such evidence." 903 S. W. 2d, at 765. Quoting the supplemental jury instruction given at Penry's second trial, see supra, at 789-790, the court overruled Penry's claim of error. The court stated that "a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I]. " 903 S. W. 2d, at 765. In 1998, after his petition for state habeas corpus relief was denied, see App. 841 (trial court order); id., at 863 (Court of Criminal Appeals order), Penry filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254 (1994 ed. and Supp. V) in the United States District Court for the Southern District of Texas. The District Court rejected both of Penry's claims, finding that the Texas Court of Criminal Appeals' conclusions on both points were neither contrary *792 to, nor an unreasonable application of, clearly established federal law. App. 893, 920. After full briefing and argument, the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. 215 F. 3d 504 (2000). We stayed Penry's execution and granted certiorari to consider Penry's constitutional arguments regarding the admission of the Peebles report and the adequacy of the jury instructions. 531 U. S. 1010 (2000). II Because Penry filed his federal habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that law govern the scope of our review. Specifically, 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V) prohibits a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Last Term in Williams v. Taylor, 529 U. S. 362 (2000), we explained that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Id., at 404. A state court decision will be "contrary to" our clearly established precedent if the state court either "applies a rule that contradicts the governing law set forth in our cases," or "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id., at 405-406. A state court decision will be an "unreasonable application of" our clearly established precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id., at 407-408. *793 "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id., at 409. Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. Id., at 410-411. Although the District Court evaluated the Texas Court of Criminal Appeals' disposition of Penry's claims under a standard we later rejected in Williams, see App. 882 (stating that an application of law to facts is "unreasonable `only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect' " (citation omitted)), the Fifth Circuit articulated the proper standard of review, as set forth in § 2254(d)(1) and clarified in Williams, and denied Penry relief. Guided by this same standard, we now turn to the substance of Penry's claims. III A Penry contends that the admission into evidence of the portion of the 1977 Peebles report that referred to Penry's future dangerousness violated his Fifth Amendment privilege against self-incrimination because he was never warned that the statements he made to Dr. Peebles might later be used against him. The Texas Court of Criminal Appeals disagreed, concluding that when Dr. Peebles interviewed Penry, Peebles was not acting as an agent for the State in order to gather evidence that might be used against Penry. 903 S. W. 2d, at 759. Penry argues that this case is indistinguishable from Estelle v. Smith, 451 U. S. 454 (1981). In Estelle, we considered a situation in which a psychiatrist conducted an *794 ostensibly neutral competency examination of a capital defendant, but drew conclusions from the defendant's uncounseled statements regarding his future dangerousness, and later testified for the prosecution on that crucial issue. We likened the psychiatrist to "an agent of the State recounting unwarned statements made in a postarrest custodial setting," and held that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Id., at 467— 468. The admission of the psychiatrist's testimony under those "distinct circumstances" violated the Fifth Amendment. Id., at 466. This case differs from Estelle in several respects. First, the defendant in Estelle had not placed his mental condition at issue, id., at 457, n. 1, whereas Penry himself made his mental status a central issue in both the 1977 rape case and his trials for Pamela Carpenter's rape and murder. Second, in Estelle, the trial court had called for the competency evaluation and the State had chosen the examining psychiatrist. Id., at 456-457. Here, however, it was Penry's own counsel in the 1977 case who requested the psychiatric exam performed by Dr. Peebles. Third, in Estelle, the State had called the psychiatrist to testify as a part of its affirmative case. Id., at 459. Here, it was during the crossexamination of Penry's own psychological witness that the prosecutor elicited the quotation from the Peebles report. And fourth, in Estelle, the defendant was charged with a capital crime at the time of his competency exam, and it was thus clear that his future dangerousness would be a specific issue at sentencing. Penry, however, had not yet murdered Pamela Carpenter at the time of his interview with Dr. Peebles. We need not and do not decide whether these differences affect the merits of Penry's Fifth Amendment claim. *795 Rather, the question is whether the Texas court's decision was contrary to or an unreasonable application of our precedent. 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V). We think it was not. The differences between this case and Estelle are substantial, and our opinion in Estelle suggested that our holding was limited to the "distinct circumstances" presented there. It also indicated that the Fifth Amendment analysis might be different where a defendant "intends to introduce psychiatric evidence at the penalty phase." 451 U. S., at 472. Indeed, we have never extended Estelle `s Fifth Amendment holding beyond its particular facts. Cf., e. g., Buchanan v. Kentucky, 483 U. S. 402 (1987) (Estelle does not apply, and it does not violate the Fifth Amendment, where a prosecutor uses portions of a psychiatric evaluation requested by a defendant to rebut psychiatric evidence presented by the defendant at trial). We therefore cannot say that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim. Even if our precedent were to establish squarely that the prosecution's use of the Peebles report violated Penry's Fifth Amendment privilege against self-incrimination, that error would justify overturning Penry's sentence only if Penry could establish that the error "`had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)). We think it unlikely that Penry could make such a showing. The excerpt from the Peebles report bolstered the State's argument that Penry posed a future danger, but it was neither the first nor the last opinion the jury heard on that point. Four prison officials testified that they were of the opinion that Penry "would commit criminal acts of violence that would constitute a continuing threat to society." App. 94, 104, 138; 47 Record 970. Three psychiatrists testified *796 that Penry was a dangerous individual and likely to remain so. Two were the State's own witnesses. See App. 487, 557. The third was Dr. Price—the same defense witness whom the prosecutor had asked to read from the Peebles report. Before that recitation, Dr. Price had stated his own opinion that "[i]f [Penry] was in the free world, I would consider him dangerous." Id., at 392. While the Peebles report was an effective rhetorical tool, it was by no means the key to the State's case on the question whether Penry was likely to commit future acts of violence. We therefore have considerable doubt that the admission of the Peebles report, even if erroneous, had a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, supra, at 637. Accordingly, we will not disturb the Texas Court of Criminal Appeals' rejection of Penry's Fifth Amendment claim. B Penry also contends that the jury instructions given at his second sentencing hearing did not comport with our holding in Penry I because they did not provide the jury with a vehicle for expressing its reasoned moral response to the mitigating evidence of Penry's mental retardation and childhood abuse. The Texas Court of Criminal Appeals disagreed. The court summarized Penry I as holding that when a defendant proffers "mitigating evidence that is not relevant to the special issues or that has relevance to the defendant's moral culpability beyond the scope of the special issues . . . the jury must be given a special instruction in order to allow it to consider and give effect to such evidence." 903 S. W. 2d, at 765. The court then stated that the supplemental jury instruction given at Penry's second sentencing hearing satisfied that mandate. Ibid. The Texas court did not make the rationale of its holding entirely clear. On one hand, it might have believed that Penry I was satisfied merely by virtue of the fact that *797 a supplemental instruction had been given. On the other hand, it might have believed that it was the substance of that instruction which satisfied Penry I. While the latter seems to be more likely, to the extent it was the former, the Texas court clearly misapprehended our prior decision. Penry I did not hold that the mere mention of "mitigating circumstances" to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may "consider" mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence." 492 U. S., at 319 (emphasis added). See also Johnson v. Texas, 509 U. S. 350, 381 (1993) (O'Connor, J., dissenting) ("[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances" (emphasis in original)). For it is only when the jury is given a "vehicle for expressing its `reasoned moral response' to that evidence in rendering its sentencing decision," Penry I, 492 U. S., at 328, that we can be sure that the jury "has treated the defendant as a `uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence," id., at 319 (quoting Woodson v. North Carolina, 428 U. S. 280, 304, 305 (1976)). The State contends that the substance of the supplemental instruction satisfied Penry I because it provided the jury with the requisite vehicle for expressing its reasoned moral response to Penry's particular mitigating evidence. Specifically, the State points to the admittedly "less than artful" portion of the supplemental instruction which says: "If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, *798 when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues. " App. 675 (emphasis added). See also Brief for Respondent 16. We see two possible ways to interpret this confusing instruction. First, as the portions italicized above indicate, it can be understood as telling the jurors to take Penry's mitigating evidence into account in determining their truthful answers to each special issue. Viewed in this light, however, the supplemental instruction placed the jury in no better position than was the jury in Penry I. As we made clear in Penry I, none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry's mental retardation and childhood abuse. Cf. 492 U. S., at 322-325. In the words of Judge Dennis below, the jury's ability to consider and give effect to Penry's mitigating evidence was still "shackled and confined within the scope of the three special issues." 215 F. 3d, at 514 (dissenting opinion). Thus, because the supplemental instruction had no practical effect, the jury instructions at Penry's second sentencing were not meaningfully different from the ones we found constitutionally inadequate in Penry I. Alternatively, the State urges, it is possible to understand the supplemental instruction as informing the jury that it could "simply answer one of the special issues `no' if it believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of its initial answers to the questions." Brief for Respondent 16. The Texas Court of Criminal Appeals appeared to understand the instruction in this sense, when it termed the supplemental instruction a "nullification instruction." 903 S. W. 2d, at 765. Even assuming the jurors could have understood the instruction *799 to operate in this way, the instruction was not as simple to implement as the State contends. Rather, it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation. The jury was clearly instructed that a "yes" answer to a special issue was appropriate only when supported "by the evidence beyond a reasonable doubt." App. 672. A "no" answer was appropriate only when there was "a reasonable doubt as to whether the answer to a Special Issue should be . . .'Yes.' " Id., at 673. The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury's two choices with respect to each special issue. The jury could swear that it had unanimously determined "beyond a reasonable doubt that the answer to this Special Issue is `Yes.' " Id., at 676-678. Or it could swear that at least 10 jurors had "a reasonable doubt as to the matter inquired about in this Special Issue " and that the jury thus had "determin[ed] that the answer to this Special Issue is `No.' " Ibid. (emphasis added). In the State's view, however, the jury was also told that it could ignore these clear guidelines and—even if there was in fact no reasonable doubt as to the matter inquired about— answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful "yes" answers to an untruthful "no" answer in order to avoid a death sentence for Penry. We generally presume that jurors follow their instructions. See, e. g., Richardson v. Marsh, 481 U. S. 200, 211 (1987). Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry's mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. *800 And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a "`true verdict.' " Tex. Code Crim. Proc. Ann., Art. 35.22 (Vernon 1989). The mechanism created by the supplemental instruction thus inserted "an element of capriciousness" into the sentencing decision, "making the jurors' power to avoid the death penalty dependent on their willingness" to elevate the supplemental instruction over the verdict form instructions. Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality opinion). There is, at the very least, "a reasonable likelihood that the jury . . . applied the challenged instruction in a way that prevent[ed] the consideration" of Penry's mental retardation and childhood abuse. Boyde v. California, 494 U. S. 370, 380 (1990). The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence. Even though the Texas Court of Criminal Appeals focused solely on the supplemental instruction in affirming Penry's sentence, the State urges us to evaluate the instruction contextually, with reference to the comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire. Indeed, we have said that we will approach jury instructions in the same way a jury would—with a "commonsense understanding of the instructions in the light of all that has taken place at the trial." Id., at 381. Penry I itself illustrates this methodology, as there we evaluated the likely effect on the jury of the comments of the defense counsel and prosecutor. 492 U. S., at 325-326. As we did there, however, we conclude that these comments were insufficient to clarify the confusion caused by the instructions themselves. *801 Voir dire was a month-long process, during which approximately 90 prospective jurors were interviewed. See 3 Record (index of transcripts). Many of the venire members— including each of the 12 jurors who was eventually empaneled—received a copy of an instruction largely similar to the supplemental instruction ultimately given to the jury. After each juror read the instruction, the judge attempted to explain how it worked. See, e. g., 18 Record 966— 967 ("[I]f you thought the mitigating evidence was sufficient . . . you might, even though you really felt those answers [to the three special issues] should be yes, you might answer one or more of them no . . . so [Penry] could get the life sentence rather than the death penalty"). The prosecutor then attempted to explain the instruction. See, e. g., id., at 980 ("[E]ven though [you] believe all three of these answers are yes, [you] don't think the death penalty is appropriate for this particular person because of what has happened to him in the past . . . . [The] instruction is to give effect to that belief and answer one or all of these issues no"). And with most of the jurors, defense counsel also gave a similar explanation. See, e. g., id., at 1018 ("[I]f you believe[d] [there] was a mitigating circumstance . . . you [could] apply that mitigation to answer—going back and changing an answer from yes to a no"). While these comments reinforce the State's construction of the supplemental instruction, they do not bolster our confidence in the jurors' ability to give effect to Penry's mitigating evidence in deciding his sentence. Rather, they highlight the arbitrary way in which the supplemental instruction operated, and the fact that the jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence. Moreover, we are skeptical that, by the time their penalty phase deliberations began, the jurors would have remembered the explanations given during voir dire, much less taken them as a binding statement of the law. Voir dire *802 began almost two full months before the penalty phase deliberations. In the interim, the jurors had observed the rest of voir dire, listened to a 5-day guilt-phase trial and extensive instructions, participated in 2[1]20442 hours of deliberations with respect to Penry's guilt, and listened to another 5-day trial on punishment. The comments of the court and counsel during voir dire were surely a distant and convoluted memory by the time the jurors began their deliberations on Penry's sentence. The State also contends that the closing arguments in the penalty phase clarified matters. Penry's counsel attempted to describe the jury's task: "If, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence, . . . then, you get to answer one of . . . those questions no. The Judge has not told you which question, and you have to give that answer, even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes." App. 640. Again, however, this explanation only reminded the jurors that they had to answer the special issues dis honestly in order to give effect to Penry's mitigating evidence. For the reasons discussed above, such a "clarification" provided no real help. Moreover, even if we thought that the arguments of defense counsel could be an adequate substitute for statements of the law by the court, but see Boyde v. California, supra, at 384, the prosecutor effectively neutralized defense counsel's argument, as did the prosecutor in Penry I, by stressing the jury's duty "[t]o follow your oath, the evidence and the law." App. 616. At best, the jury received mixed signals. Our opinion in Penry I provided sufficient guidance as to how the trial court might have drafted the jury charge for Penry's second sentencing hearing to comply with our *803 mandate. We specifically indicated that our concerns would have been alleviated by a jury instruction defining the term "deliberately" in the first special issue "in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability." 492 U. S., at 323. The trial court surely could have drafted an instruction to this effect. Indeed, Penry offered two definitions of "deliberately" that the trial court refused to give. See Tr. of Oral Arg. 12, 14-15. A clearly drafted catchall instruction on mitigating evidence also might have complied with Penry I. Texas' current capital sentencing scheme (revised after Penry's second trial and sentencing) provides a helpful frame of reference. Texas now requires the jury to decide "[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed." Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001).[*] Penry's counsel, while not conceding the issue, admitted that he "would have a tough time saying that [Penry I] was not complied with under the new Texas procedure." Tr. of Oral Arg. 16. At the very least, the brevity and clarity of this instruction highlight the confusing nature of the supplemental instruction actually given, and indicate that the trial court had adequate alternatives available to it as it drafted the instructions for Penry's trial. Thus, to the extent the Texas Court of Criminal Appeals concluded that the substance of the jury instructions given *804 at Penry's second sentencing hearing satisfied our mandate in Penry I, that determination was objectively unreasonable. Cf. Shafer v. South Carolina, ante, at 40, 50 (holding on direct review that the South Carolina Supreme Court "incorrectly limited" our holding in Simmons v. South Carolina, 512 U. S. 154 (1994), because the court had mischaracterized "how the State's new [capital sentencing] scheme works"). The three special issues submitted to the jury were identical to the ones we found constitutionally inadequate as applied in Penry I. Although the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The comments of the court and counsel accomplished little by way of clarification. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 492 U. S., at 326. The judgment of the United States Court of Appeals for the Fifth Circuit is therefore affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Thomas, with whom The Chief Justice and Justice Scalia join, concurring in Parts I, II, and III—A, and dissenting in Part III—B. Two Texas juries have now deliberated and reasoned that Penry's brutal rape and murder of Pamela Carpenter warrants the death penalty under Texas law. And two opinions of this Court have now overruled those decisions on the ground that the sentencing courts should have said more about Penry's alleged mitigating evidence. Because I believe the most recent sentencing court gave the jurors *805 an opportunity to consider the evidence Penry presented, I respectfully dissent. As a habeas reviewing court, we are not called upon to propose what we believe to be the ideal instruction on how a jury should take into account evidence related to Penry's childhood and mental status. Our job is much simpler, and it is significantly removed from writing the instruction in the first instance. We must decide merely whether the conclusion of the Texas Court of Criminal Appeals—that the sentencing court's supplemental instruction explaining how the jury could give effect to any mitigating value it found in Penry's evidence satisfied the requirements of Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I) —was "objectively unreasonable." Williams v. Taylor, 529 U. S. 362, 409 (2000). See also 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V). At Penry's first sentencing, the court read to the jury Texas' three special issues for capital sentencing.[1] The court did not instruct the jury that "it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence." 492 U. S., at 320. The prosecutor also did not offer any way for the jury to give mitigating effect to the evidence, but instead simply reiterated that the jury was to answer the three questions and follow the law. In Penry I, this Court concluded that, "[i]n light of the prosecutor's argument, *806 and in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Id., at 326. At Penry's second sentencing, the court read to the jury the same three special issues. In contrast to the first sentencing, however, the court instructed the jury at length that it could consider Penry's proffered evidence as mitigating evidence and that it could give mitigating effect to that evidence. See ante, at 789-790. The Texas Court of Criminal Appeals concluded that this supplemental instruction "allow[ed] [the jury] to consider and give effect to" Penry's proffered mitigating evidence and therefore was "sufficient to meet the constitutional requirements of [Penry I] ."[2]Penry v. State, 903 S. W. 2d 715, 765 (1995). In my view, this decision is not only objectively reasonable but also compelled by this Court's precedents and by common sense. "In evaluating the instructions, [a court should] not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.' " Johnson v. Texas, 509 U. S. 350, 368 (1993) (quoting Boyde v. California, 494 U. S. 370, 381 (1990)). The Texas court's instruction, read for common sense, or, even after a technical parsing, tells jurors that they may consider the *807 evidence Penry presented as mitigating evidence and that, if they believe the mitigating evidence makes a death sentence inappropriate, they should answer "no" to one of the special issues. Given this straightforward reading of the instructions, it is objectively reasonable, if not eminently logical, to conclude that a reasonable juror would have believed he had a "vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 492 U. S., at 326. It is true that Penry's proffered evidence did not fit neatly into any of the three special issues for imposing the death penalty under Texas law.[3] But the sentencing court told the jury in no uncertain terms precisely how to follow this Court's directive in Penry I. First, the sentencing court instructed the jury that it could consider such evidence to be mitigating evidence. See App. 675 ("[W]hen you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case"). Next, the court explained to the jury how it must give effect to the evidence. Ibid. ("If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue"). And finally, the court unambiguously instructed: "If you determine, when giving *808 effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." Ibid. (emphasis added). Without performing legal acrobatics, I cannot make the instruction confusing. And I certainly cannot do the contortions necessary to find the Texas appellate court's decision "objectively unreasonable."[4] I simply do not share the Court's confusion as to how a juror could consider mitigating evidence, decide whether it makes a death sentence inappropriate, and respond with a "yes" or "no" depending on the answer. *809 Curiously, this Court concludes that the supplemental instruction "inserted `an element of capriciousness' into the sentencing decision, `making the jurors' power to avoid the death penalty dependent on their willingness' to elevate the supplemental instruction over the verdict form instructions." Ante, at 800 (quoting Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality opinion)). Any reference to Roberts, however, is wholly misplaced. Roberts involved a situation in which the jury was told to find the defendant guilty of a lesser included offense, unsupported by any evidence, if the jury did not want him to be sentenced to death. Id., at 334-335. In Penry's case there was no suggestion, express or implied, made to the jury that it could disregard the evidence. On the contrary, it was instructed on how to give effect to Penry's proffered evidence, as required by this Court in Penry I. Tellingly, the Roberts plurality stated in full that "[t]here is an element of capriciousness in making the jurors' power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge's instructions. " 428 U. S., at 335 (emphasis added). In Penry's case, the judge's instructions included an explanation of how to answer the three special issues and how to give effect to the mitigating evidence. Finally, contrary to the Court's claim that the jury received "mixed signals," ante, at 802, it appears that it is the Texas courts that have received the mixed signals. In Jurek v. Texas, 428 U. S. 262 (1976), this Court upheld the Texas sentencing statute at issue here against attack under the Eighth and Fourteenth Amendments. The joint opinion in Jurek concluded that the statute permits the jury "to consider whatever evidence of mitigating circumstances the defense can bring before it" and "guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death." Id., at *810 273-274 (opinion of Stewart, Powell, and Stevens, JJ.). Then, while purporting to distinguish, rather than to overrule, Jurek, this Court in Penry I determined that the same Texas statute was constitutionally insufficient by not permitting jurors to give effect to mitigating evidence. 492 U. S., at 328. See also id., at 355-356 (Scalia, J., dissenting) (explaining how Penry I contradicts Jurek `s conclusions). According to the Court, an instruction informing the jury that it could give effect to the mitigating evidence was necessary. 492 U. S., at 328. And in today's decision, this Court yet again has second-guessed itself and decided that even this supplemental instruction is not constitutionally sufficient. NOTES [*] Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, Jeffrey J. Pokorak, and Stanley S. Herr; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky, Lisa B. Kemler, John H. Pickering, and Christopher J. Herrling. Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for Justice for All by Patrick F. Philbin. Richard Wilson and William J. Edwards filed a brief for the International Association for the Scientific Study of Intellectual Disabilities et al. as amici curiae. [1] Another recent development in Texas is the passage of a bill banning the execution of mentally retarded persons. See Babineck, Perry: Death-penalty measure needs analyzing, Dallas Morning News, May 31, 2001, p. 27A. As this opinion goes to press, Texas Governor Rick Perry is still in the process of deciding whether to sign the bill. Ibid. [1] The special issues are: "`(1)whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; "`(2)whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and "`(3)if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.' " Penry I, 492 U. S. 302, 310 (1989) (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989)). [*] This Court's suggestion that the Texas court may have believed that any supplemental instruction,regardless of its substance, would satisfy Penry I `s requirement, see ante, at 796-797, is specious. The Texas court explained that a "jury must be given a special instruction in order to allow it to consider and give effect to such evidence "; itquoted the full text of the supplemental instruction; and it concluded that "a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I] ." Penry v. State, 903 S. W. 2d 715, 765 (1995) (emphasis added). It is quite obvious that the court based its legal conclusion on the content of the supplemental instruction. [1] I am still bewildered as to why this Court finds it unconstitutional for Texas to limit consideration of mitigating evidence to those factors relevant to the three special issues. See Graham v. Collins, 506 U. S. 461, 478 (1993) (Thomas, J., concurring). But we need not address this broader issue to uphold Penry's sentence. [2] I think we need not look beyond the court's instructions in evaluating the Texas appellate court's decision. But even if there were any doubt as to whether the instruction led the jurors to believe there was a vehicle for giving mitigating effect to Penry's evidence, the instruction was made clear "`in the light of all that ha[d] taken place at the trial.' " Johnson v. Texas, 509 U. S. 350, 368 (1993). The judge and prosecutor fully explained how to give effect to mitigating evidence during the voir dire process, and defense counsel made the instruction clear in closing: "[i]f, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence, . . . then, you get to answer one of . . . those questions no," App. 640. Even if the jurors had forgotten what they had been told at voir dire, see ante, at 801-802, an assumption that I find questionable given our presumptions about jurors' ability to remember and follow instructions, see, e. g., Weeks v. Angelone, 528 U. S. 225, 234 (2000), the defense counsel's explanation from closing arguments would have been fresh on their minds. Despite the Court's assertion that defense counsel told the jurors to answer the questions dishonestly, ante, at 802, it seems to me that the jurors reasonably could have believed that they could honestly answer any question "no" if they found that the death sentence would be inappropriate given the mitigating evidence. They could follow their "`oath, the evidence and the law,' " ibid. (quoting the prosecutor's statement, App. 616), by truthfully concluding that the evidence of Penry's childhood and mental status did not warrant the death penalty and by writing "no" next to one of the special issues.

J-S71015-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA TERRELL ANTWON Appellant No. 2161 EDA 2015 Appeal from the Judgment of Sentence June 23, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001160-2014 BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ. MEMORANDUM BY BOWES, J.: FILED FEBRUARY 08, 2017 Terrell Antwon appeals from the judgment of sentence of life in prison without parole plus ten to twenty years incarceration imposed after a jury found him guilty of murder in the first-degree, conspiracy, possession of a firearm in a public place, possession of an instrument of crime, and aggravated assault. We affirm. On May 28, 2012, Joel Watson was standing in front of Dante Davis’ house speaking with an acquaintance, Cassandra Nesmith, along the 4600 Block of North 16th Street in Philadelphia. Mr. Davis’ house was situated across the street from Stenton Park. While the two were talking, Appellant and Theodore Johnson emerged from the park. Since Mr. Watson and Ms. Nesmith were facing the house, they did not see Appellant and Mr. Johnson * Former Justice specially assigned to the Superior Court. J-S71015-16 approaching. Without warning, Appellant and Mr. Johnson fired a combined forty-one shots at Mr. Watson and Ms. Nesmith. Mr. Watson was fatally injured and Ms. Nesmith suffered three superficial wounds. Mr. Davis avoided harm by diving inside his house when he observed the gunmen approaching. After the prolonged volley, Appellant and Mr. Johnson fled through the park. At the time of the shooting, John Perkins was standing two blocks away on the other side of the park. Shortly after the gunfire ceased, Mr. Perkins saw Appellant and Mr. Johnson running through the park. He noted that Appellant was carrying a firearm. Although the two did not interact at that time, on two subsequent occasions Appellant insinuated to Mr. Perkins that he shot Mr. Watson due to money. Approximately one month following the shooting, Mr. Perkins saw the same gun in the possession of a man being chased by police. Officers recovered the weapon and a forensic analysis confirmed it was one of the guns employed during the shooting of Mr. Watson. Based on the foregoing, Appellant was charged with murder in the first degree, conspiracy, firearms not to be carried without a license, carrying firearms in public in Philadelphia, possession of an instrument of crime (“PIC”), aggravated assault, simple assault, and recklessly endangering another person. A jury found Appellant guilty of murder in the first degree, conspiracy, carrying firearms in public in Philadelphia, PIC, and two counts of -2- J-S71015-16 aggravated assault. The remaining charges were nolle prossed. After a sentencing hearing, the court imposed the mandatory sentence of life imprisonment without the possibility of parole on the count of murder in the first degree. The two counts of aggravated assault merged for the purpose of sentencing, and the court levied a term of ten to twenty years incarceration running consecutively to his conviction for murder. The sentence on the remaining counts was set to run concurrently to Appellant’s life imprisonment. Appellant did not file a post-sentence motion, but filed a timely notice of appeal to this court. He complied with the court’s order to file a Rule 1925(b) statement of matters complained of on appeal and the court filed its Rule 1925(a) opinion. This matter is now ready for our review. Appellant raises three questions for our consideration: I. Is [Appellant] entitled to an Arrest of Judgment on the charge of murder in the first degree and all related offenses where the evidence was insufficient to establish that [Appellant] was a principle, conspirator or an accomplice to the stated charge and where there was insufficient evidence to sustain the verdict? II. Is [Appellant] entitled to a new trial on the charge of Murder in the First Degree and all related charges where the greater weight of the evidence did not support the verdict? III. Is [Appellant] entitled to a new trial where the Trial Court erred by failing to take appropriate remedial action when the prosecutor engaged in misconduct by commenting on [Appellant’s] supporters in the room when there is absolutely no evidence to support the -3- J-S71015-16 prosecutor’s arguments that they were there to disrupt and intimidate people? Appellant’s brief at 3. Appellant’s first issue assails the sufficiency of the evidence supporting his conviction. Our scope and standard of review of a sufficiency claim is well-settled. In evaluating a sufficiency challenge, we evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016). Moreover, “[e]vidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused beyond a reasonable doubt.” Id. (citation omitted). However, the Commonwealth may sustain its burden by means of wholly circumstantial evidence. Id. In addition, “this Court may not substitute its judgment for that of the factfinder, and where the record contains support for the convictions, they may not be disturbed.” Id. Finally, “the finder of fact is free to believe some, all, or none of the evidence presented.” Id. at 262. Appellant asserts there was insufficient evidence to convict him for the crimes arising from Mr. Watson’s murder. In order to sustain a conviction for first-degree murder, the Commonwealth must prove that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the -4- J-S71015-16 killing; and (3) the accused acted with malice and specific intent to kill. Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. § 2502(a). Under the Crimes Code, murder in the first degree requires an “intentional killing,” which is defined as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). The use of a deadly weapon on a vital part of the body is sufficient to establish the specific intent to kill. Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016). Appellant maintains that the Commonwealth proffered no evidence which directly tied him to the shooting. Appellant emphasizes that Mr. Davis and Ms. Nesmith, who identified him as the shooter prior to trial, recanted that identification during trial when they testified that the police had forced them to implicate Appellant. Finally, he contends that Mr. Perkins did not identify him as the shooter, and thus, the verdict was based wholly on inferences, suspicion, and conjecture. Instantly, the Commonwealth offered evidence that Mr. Watson died from gunshot wounds to his head, chest, and leg. The record clearly supports the finding that Mr. Watson’s injuries were caused by two individuals who approached him from the park and fired forty-one projectiles at him and Ms. Nesmith. In support of its position, the Commonwealth offered the testimony of Ms. Nesmith. Ms. Nesmith testified that she gave a statement to police after receiving medical treatment for her injuries wherein she recounted the -5- J-S71015-16 events of the night and identified Mr. Davis and Mr. Watson as the other two victims. She stated that she did not want to get involved in the investigation, but that the police officers who took her for medical treatment forced her to do so. Ms. Nesmith also stated that she interacted with police on April 2, 2013, over a year after the incident. That day, she identified Appellant from a photographic array by signing her name underneath his photograph. However, Ms. Nesmith stated at trial that she had done so because a police officer had pressured her to, and that the officer had circled Appellant’s picture prior to handing her the array. The Commonwealth also offered the testimony of Mr. Davis. Mr. Davis admitted that he provided the police with a statement in the early morning hours following Mr. Watson’s murder. In that statement, he recounted the events surrounding Mr. Watson’s murder and observed that one of the shooters was a short, stocky black man wearing a hooded sweatshirt. Mr. Davis disputed evidence indicating that he had subsequently identified Appellant from a photographic array. In response to a Commonwealth exhibit showing that he circled Appellant’s image, wrote the words “shooter” and “had Mac/TEC” next to the photo, and signed his name to the identification, Mr. Davis refuted the suggestion that he had identified Appellant at any time during the investigation. N.T. Trial, 4/21/15, at 209- 211; 216-220. -6- J-S71015-16 Finally, the Commonwealth presented the testimony of Mr. Perkins. He testified that he saw Appellant and Mr. Johnson running through the park shortly after the gunfire ceased. He observed Appellant wearing a hooded sweatshirt and carrying the same style of firearm ultimately determined to have been used in the attack. Mr. Perkins also said that he encountered Appellant shortly after seeing him in the park. At that time, Mr. Perkins asked Appellant about the incident, and Appellant responded that “he had to take care of something for that bread.” N.T. Trial, 4/22/15, at 121. A few days later, Mr. Perkins again questioned Appellant. Appellant reiterated that he had to “take care of something for bread.” Id. at 123. Mr. Perkins clarified that “bread” referred to money. Id. Finally, Mr. Perkins testified that he witnessed police seize the same gun that Appellant was carrying on the night in question during a subsequent police chase of another individual. Forensic analysis determined that the weapon recovered by police was used in Mr. Watson’s slaying. We find, when viewing the evidence in the light most favorable to the Commonwealth as verdict winner, that the Commonwealth provided sufficient evidence to prove beyond a reasonable doubt that Appellant intentionally shot and killed Mr. Watson and injured Ms. Nesmith in concert with Mr. Johnson. Mr. Perkins’ testimony established that Appellant was seen fleeing from the scene of the crime moments after Mr. Watson was fatally injured. Furthermore, Mr. Perkins saw Appellant carrying one of the -7- J-S71015-16 weapons utilized in the attack. Based on this testimony, the jury could reasonably infer that Appellant was one of the two individuals who approached Mr. Watson and discharged a total of forty-one bullets, killing him and injuring Ms. Nesmith. Thus, Appellant is not entitled to relief. Appellant’s second issue challenges the weight of the evidence. In order to preserve a challenge to the weight of the evidence, “a defendant must present his challenge to the weight of the evidence to the trial court for a review in the first instance.” Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Commonwealth v. Ford, 141 A.3d 547, 556 (Pa.Super. 2016); Pa.R.Crim.P. 607. The failure to properly preserve a weight of the evidence claim will result in waiver, even if the trial court addresses the issue in its opinion. Commonwealth v. Thompson, 93 A.3d 478, 490-491 (Pa.Super. 2014). Appellant failed to preserve to claim based on the weight-of-the-evidence since he did not file a post-sentence motion raising the issue nor did he make an oral or written motion prior to sentencing. Thus, the claim is waived. Finally, Appellant alleges that the prosecutor made improper remarks during his closing statement which prejudiced the jury against him. We evaluate a claim of prosecutorial misconduct in a closing statement under the following standards: -8- J-S71015-16 any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Our review of a prosecutor’s comment and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Thus, it is well settled that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial “unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.” The appellate courts have recognized that not every unwise remark by an attorney amounts to misconduct or warrants the grant of a new trial. Additionally, like the defense, the prosecutor is accorded reasonable latitude, may employ oratorical flair in arguing its version of the case to the jury, and may advance arguments supported by the evidence or use inferences that can be reasonably derived therefrom. Moreover, the prosecutor is permitted to fairly respond to points made in the defense’s closing, and therefore, a proper examination of a prosecutor’s comments in closing requires review of the arguments advanced by the defense in summation. Commonwealth v. Scott, 146 A.3d 775, 778-779 (Pa.Super. 2016) (citations omitted). Appellant argues the following statement, made by the prosecutor during closing arguments, improperly prejudiced the jury: Prosecutor: And let’s face it, folks, even at trial it’s not easy to get up here and testify and sit in this chair in front of all these people, talk into the microphone, right, and testify about what happened right across from the person that you identified. The person that you saw do this. That’s not easy to do. It’s an open courtroom. It’s public. The Judge can’t even exclude people except in limited, unique circumstances if there’s a problem, right? So when all these people come in and watch, right? We got family, right? We got friends, people from the neighborhood. Anybody can come in and watch and do you -9- J-S71015-16 think that as we sat here . . . and all these people testified . . . and all these people in the back row coming and going and coming and going, do you think that all those adult men back there can’t hold it and not go to the bathroom for an hour while we work through a witness? N.T. Trial, 4/24/15, at 44-45. Appellant contends that the prosecutor’s statements indicated to the jury that the behavior of the individuals sitting in the back of the courtroom was conducted to intimidate certain witnesses, and as a result, those witnesses altered their testimony. Upon review of the record, we observe that Mr. Davis and Ms. Nesmith, who had previously identified Appellant in statements they made to the police, recanted that identification at trial. In his closing statement, defense counsel highlighted this fact and argued that the Commonwealth therefore did not offer any evidence as to who perpetrated the crime. N.T. Trial, 4/24/15, at 21. The prosecutor, in response, attempted to explain the witnesses’ recantation as resulting from distractions occurring in the courtroom during their testimony. Indeed, the record reflects that the trial court took remedial measures to mitigate ongoing distractions in the courtroom during the proceeding. N.T. Trial, 4/22/15 at 118, 140; 4/24/15, at 7 (stating, “Not only that, I started to say y’all can’t come in and out. You’re in, you stay in because it was a distraction with people coming in and out all the time.”). Thus, the prosecutor’s statement fairly responded to points made in the defense’s closing, and thus, were proper. Scott, supra. Hence, this claims fails. - 10 - J-S71015-16 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/8/2017 - 11 -