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Filed 12/8/14 P. v. Haynes CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F067601 Plaintiff and Respondent, (Super. Ct. No. 1459675) v. NORMAN JACK HAYNES, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Marie S. Silveira, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Levy, Acting P.J., Kane, J. and Cornell, J.  PROCEDURAL SUMMARY Appellant Norman Jack Haynes was charged in a criminal complaint filed on May 30, 2013, with two counts of carrying a concealed dirk or dagger (Pen. Code, § 21310).1 The complaint further alleged that appellant was ineligible for probation due to prior felony convictions (§ 1203, subd. (e)(4)), a prior serious felony conviction qualifying him for the three strikes law (§§ 667, subd. (d) & 1192.7, subd. (c)), and five prior prison term enhancements (§ 667.5, subd. (b)). On June 5, 2013, appellant entered into a plea agreement. In exchange for admission of one count and a stipulated term of 16 months, the remaining allegations would be dismissed. The court advised appellant of the consequences of his plea and his constitutional rights pursuant to Boykin/Tahl.2 Appellant stated that he understood and was waiving his rights. The parties stipulated to a factual basis for the plea.3 Appellant pled no contest to count 1. The trial court granted the prosecutor’s motion to dismiss the remaining allegations in the interest of justice. The trial court sentenced appellant to prison for 16 months. The court imposed a restitution fine, granted 9 days of actual custody credits and an additional 8 days of conduct credits, for total custody credits of 17 days. The court denied appellant’s request for a certificate of probable cause. Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). 1 Unless otherwise designated, all statutory references are to the Penal Code. 2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122. 3 As a factual basis for the plea, the prosecutor stated that on or about May 28, 2013, appellant was contacted by officers from the Modesto Police Department outside a closed business at Seventh and B Street in Modesto. The officers told appellant they were going to conduct a pat-down search. Appellant told the officers that he willfully possessed a concealed dirk or dagger inside of his waistband. The officers found a knife with a five-inch blade concealed inside appellant’s waist band. 2  APPELLATE COURT REVIEW Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on November 7, 2013, we invited appellant to submit additional briefing. To date, he has not done so. After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues. DISPOSITION The judgment is affirmed. 3 

78 Wn.2d 500 (1970) 476 P.2d 702 HERRON NORTHWEST, INCORPORATED, Petitioner, v. MERLYN E. DANSKIN et al., Respondents.[*] No. 41519. The Supreme Court of Washington, En Banc. November 12, 1970. Riddell, Williams, Voorhees, Ivie & Bullitt, by George E. Frasier, for petitioner. Arthur & Hanley, by Terence Hanley, for respondents. ROSELLINI, J. This action was brought by a broker to recover damages attributable to a customer's failure to pay for shares of stock which he had ordered the broker to purchase for him. The evidence showed that the customer, the respondent Merlyn E. Danskin, was unable to pay for the shares on the date set for payment, that the market was falling, and that the petitioner sold the shares at a price less than the price for which it had purchased them, resulting in a loss of approximately $12,000. The trial court's judgment for the petitioner was reversed by the Court of Appeals, which, on its own motion, raised the question of the jurisdiction of the state courts to hear and determine the action. *501 The trial court had based its judgment upon "Regulation T," promulgated by the Board of Governors of the Federal Reserve System pursuant to section 7 (a) of the Securities Exchange Act of 1934 (15 U.S.C. § 78g) which required the petitioner to sell the shares purchased for the respondent when they were not paid for within 7 days after the date of their purchase by the petitioner. The Court of Appeals took note of the fact that section 27 of the Securities Exchange Act confers exclusive jurisdiction upon the district courts of the United States "of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." It concluded that, if the obligation of the respondent to pay for the shares of stock was a duty created by the act, the trial court did not have jurisdiction; and that if it was a common law duty, the trial court's findings were inadequate to sustain it. Since the judge who tried the case had retired in the interim, the cause was ordered remanded for a new trial on the common law liability. This court has granted a petition for review. [1, 2] It is the rule, of course, that the trial court can be sustained on any theory within the pleadings and the proof. Northwest Collectors, Inc. v. Enders, 74 Wn.2d 585, 446 P.2d 200 (1968). Furthermore, we have said that where there is no serious dispute in the essential facts, a remand for the entry of findings of fact would be a useless act. Lambert v. Lambert, 66 Wn.2d 503, 403 P.2d 664 (1965) and cases cited. The Court of Appeals recognized its right to sustain the judgment upon a proper theory, if one could be found within the pleadings and the proof; but it concluded that, without the authority of the federal regulation or the express authorization of the defendant, the petitioner had no right to sell the stock and that sale of the stock by the petitioner would amount to a conversion. In this the Court of Appeals erred. The record shows that the respondent knew that under ordinary circumstances he must pay for stock purchased within four business days after the purchase, and that he *502 was granted three extra business days in this transaction. By his own testimony, he knew that payment was due on July 25. He insisted, on the one hand, that his loss was caused by the petitioner's failure to sell the stock earlier (even though he had not authorized such a sale) and, on the other hand, that it resulted from the petitioner's refusal to grant him an extra 2-day extension. The trial court found as a fact that the respondent's security transactions with the petitioner were handled through a "special cash account." The uncontradicted evidence was that such accounts required that payment be made within four business days after the date of purchase. The trial court also found that the petitioner had erroneously told the respondent on July 25, 1966, that a 2-day extension had been granted. Implicit in this finding is a further finding that the date originally set for payment was July 25; otherwise, no "extension" would have been needed. There was a further finding that respondent had strained his credit to the breaking point, that he had not made arrangements for payment for the stock and was unable to do so in view of the drop in its market value. He could not have paid for the stock on July 25, 26 or 27. Furthermore, for a considerable period of time after July 26, 1966, the trial court found, the respondent could have repurchased the stock at a much lower price than that for which it was sold, had he been willing and able. As the trial court observed in its oral opinion, the respondent could have recouped his losses had he done so, since the stock subsequently rose in price far above the price which the petitioner had paid when he purchased the stock for the respondent. Assuming, without deciding that the Court of Appeals was correct, that the trial court lacked jurisdiction to decide the case if it arose solely out of a violation of Regulation T of the Securities Exchange Act, the superior court nevertheless had jurisdiction to hear and determine the petitioner's common law action for breach of contract. The Court of Appeals acknowledged this but thought that the findings were inadequate. If a finding that the respondent had expressly *503 authorized the petitioner to sell the stock were necessary, there would be substantial merit in this view. However, the petitioner's right to recover does not depend in law upon the existence of such an express authorization. [3] It is the settled rule of law that where a customer defaults in the payment of stock purchased for him or refuses to accept and pay for such stock, the broker may sell the stock and hold the customer responsible for any deficit. Mass v. Gordon, 101 So.2d 836 (Fla. 1958); Geary v. Blomerth, 309 Mass. 91, 34 N.E.2d 922 (1941); Eastman v. Kendall, 256 Mich. 215, 239 N.W. 263 (1931); 12 Am. Jur. Brokers § 148, at 889 (1964); 12 C.J.S. Brokers § 95, at 231 (1938). See also Baldwin v. Peters, Writer & Christensen, 141 Colo. 529, 349 P.2d 146 (1960), stating the rule that, if the customer refuses to complete the transaction, the measure of damages is the difference between the authorized purchase price and the amount realized upon a subsequent sale. And see Richter v. Poe, 109 Md. 20, 71 A. 420 (1908), holding that where a customer had contracted for the purchase of stock but had failed to pay for it, and the broker sold it in a falling market, the broker was not liable for conversion. Even stock purchased on a margin account may be sold immediately in a falling market if the customer refuses to pay the balance of the purchase price or keep his margin good. See Sackville v. Wimer, 76 Colo. 519, 233 P. 152, 41 A.L.R. 1255 (1925). See Annot., Measures of damages for buyer's breach of contract to purchase shares of stock, 44 A.L.R. 358 (1926). The court, in Mass v. Gordon, supra, stated the applicable law as follows: In dealings between a stockbroker and a customer, when an authorized purchase of stock is made by a broker, and the customer defaults by refusing to accept and pay for the stock, the broker has an election of remedies. He may treat the stock as the property of the customer, and sue for the full purchase price upon a tender of the stock; or, he may sell the stock promptly or within a reasonable time, and recover the difference between the purchase price and the amount received on such sale. If the broker chooses to retain the stock and treats it as his *504 own, as was done in this instance, the second of those remedies is applicable, and the measure of his damages is the difference between the purchase price and the amount for which the stock could have been sold on the date of default or within a reasonable time thereafter. (Italics ours.) Mass, 101 So.2d at 837-38. We do not have a case directly in point in this jurisdiction but this court has recognized the right of a broker to pledge margin collaterals of his customers up to the amount of the debts due from them. Vance Lumber Co. v. Fraser, Goodwin & Colver, 162 Wash. 347, 298 P. 438 (1931). Both of these rules are designed to protect the broker from losses occasioned by the default of his customer, and the right of a broker to sell stock on a falling market, when the customer refuses to pay for it, has the additional virtue of enabling the broker to mitigate the damages which the customer is obligated to pay by reason of his failure to pay for the stock according to his agreement. It is plain from the trial court's findings that the respondent was in default on July 26 and that, even if he was not in default until July 28, he could not have and would not have raised the money to purchase the stock on that date. The market was falling. Within 5 days after the plaintiff sold it, the stock generally declined and did not return to the price at which it was sold until mid-October. The respondent's loss was caused, not by the petitioner's sale of the stock but by the decline in the market price, a situation over which the petitioner had no control. The evidence and the findings established the petitioner's right to recover its damages, which were the difference between the price which it paid for the stock, as authorized by the respondent, and the price at which it sold the stock upon the respondent's default. The respondent offered no legal defense to the action. It was obvious, as the trial court observed, that the respondent had gambled on a rise in the market price of the stock and had expected to finance its purchase by pledging it at the bank. When the price fell, the respondent's plan fell with it, since the bank would not finance the full purchase price. This misfortune of the respondent *505 was in no respect attributable to any act or failure to act on the part of the petitioner. The petitioner performed its duties under the agreement with the respondent and under the applicable law and is entitled to recover its losses. The decision of the Court of Appeals is reversed and the judgment of the trial court is reinstated. ALL CONCUR. January 18, 1971. Petition for rehearing denied. NOTES [*] Reported in 476 P.2d 702.

157 F.2d 68 (1946) 123 EAST FIFTY-FOURTH STREET, Inc., v. UNITED STATES. No. 308, Docket 20241. Circuit Court of Appeals, Second Circuit. July 15, 1946. John F. X. McGohey, U. S. Atty., of New York City (Stanley H. Lowell, of New York City, of counsel), for appellant. Benet Polikoff, of New York City (Jack Clareman, of Brooklyn, N. Y., of counsel), for appellee. Before L. HAND, SWAN, and CHASE, Circuit Judges. CHASE, Circuit Judge. After trial by court, judgment for the plaintiff for $7,629.53 and interest was entered in a suit brought in the District Court for the Southern District of New York to recover excise taxes paid and the defendant has appealed. The facts were stipulated and are as follows: The appellee has operated a restaurant and bar at 123 East 54th St., in the City of New York since January 2, 1942. Shortly after it began doing business it was advised by the Collector of Internal Revenue for the revenue district in which the restaurant was located that it was taxable under § 1700(e) of the Internal Revenue Code as amended by § 542 of the Revenue Act of 1941, 26 U.S.C.A. Int.Rev. Code, § 1700(e). It then filed monthly returns and paid the taxes for thirteen months until February, 1943, when it stopped paying. Thereafter the collector made a full investigation and found that the appellee's restaurant neither was nor had been a cabaret within the above statute and was not taxable thereunder, and, on November 23, 1943, so notified the appellee *69 which filed a claim on November 29, 1943, for the refund of the taxes it had paid. The claim was rejected because the claimant had not borne the burden of the taxes since it had collected the taxes from its patrons and had not refunded them. Then this suit was brought within the time allowed. The appellee concededly charged its patrons and was paid by them, as separate items designated tax on the checks it presented to them, the amount of the taxes it has recovered. Sec. 1700(e)(1) of the Code as amended levies a "tax equivalent to 5 per centum of all amounts paid for admission, refreshment, service, and merchandise, at any roof garden, cabaret, or other similar place furnishing a public performance for profit, if any payment, or part thereof, for admission, refreshment, service, or merchandise, entitles the patron to be present during any portion of such performance." Subdivision (e)(2) makes the person receiving such payments the taxpayer. The appellee was admittedly the person receiving such payments and paid as such taxpayer the taxes it seeks to recover. The taxes were admittedly erroneously paid by the appellee and illegally collected by the government. Were that all, they would be recoverable under § 24 of the Judicial Code, 28 U.S.C.A. § 41(20), which applies to the recovery generally of taxes illegally collected by the United States and which does not in terms limit recovery to taxpayers who have borne the burden of the taxes paid. But the appellant insists that recovery is nevertheless so limited by virtue of § 1722 of the Internal Revenue Code, 26 U.S. C.A. § 1722, which provides that, "All administrative, special, or stamp provisions of law, including the law relating to the assessment of taxes, so far as applicable, shall be extended to and made a part of this chapter." It argues that because §§ 1700(e) and 1722 are both found in Chapter 10 of the Code there is thus brought into that chapter and made a part thereof § 3443(d) of the Code, 26 U.S.C.A. Int. Rev.Code, § 3443(d), which is found in Chapter 29 under "General Administrative Provisions" dealing with manufacturers' excise and import taxes and which limits the recovery of them to a person who has paid the taxes and who can establish that he has borne the burden of them. The contention in brief is that Congress having indicated its intent not to permit a manufacturer or importer to secure a "windfall" did not intend to allow a cabaret owner to get one either and that the above statutes should be construed to prevent that. This argument proves too much. Sec. 1722 deals with administrative provisions applicable to taxation generally like those found in Chapter 37 but § 3443(d) in terms applies only to the excise taxes of Chapter 29 in which it is found. Had it been intended to limit the recovery of the different type of Chapter 10 taxes in the same way, one would expect to find either such a provision in that Chapter or at least in Chapter 37. The fact that Congress by § 902 of the 1936 Act, 26 U.S.C.A. Int.Rev. Acts, page 960, expressly limited the recovery of taxes paid under the Agricultural Adjustment Act to taxpayers who had borne the burden is a strong indication that it did not intend to make § 3443(d) an administrative statute generally applicable; and that § 1722 of Chapter 10 does not pull § 3443 of Chapter 29 into Chapter 10 is further indicated by the failure to mention § 3443(d) in Treas.Reg. 43 (1941 Ed.) which deals with the administrative provisions of the statutes relating to the refunding of cabaret taxes erroneously collected. When the constitutionality of above § 902 was upheld in United States v. Jefferson Electric Manufacturing Company, 291 U.S. 386, 54 S.Ct. 443, 449, 78 L. Ed. 859, it was pointed out that suits to recover taxes paid the United States are governed by equitable principles and the question at issue is whether the money "ex aequo et bono belongs to the plaintiff" and accordingly there was no constitutional infirmity in a statute which denied recovery to one who had not borne the burden of the taxes. The appellant relies on that case and that principle. It is true that a suit to recover taxes paid is like an action for money had and received and the plaintiff *70 must show that the government has money which belongs to him. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293. Since this plaintiff paid taxes actually assessed against it and was made by statute the taxpayer liable for such taxes if the assessment were not erroneous, the question now before us is whether on balancing the equities between the government and the plaintiff the government is entitled to keep the money it admittedly collected illegally. We may take it for granted that the patrons of the plaintiff paid more than they would have been charged had the plaintiff not supposed that it was liable for the taxes. Yet what the plaintiff saw fit to charge became the price of that which it furnished its patrons and when paid that price became the plaintiff's money. Lash's Products Co. v. United States, 278 U.S. 175, 49 S.Ct. 100, 73 L.Ed. 251. Though the patrons paid an item designated tax they did not become the taxpayers. No taxes were imposed upon them by law and the plaintiff could not levy taxes. It could and did make charges the sum of which fixed the price a patron paid and if the latter did not like the price charged he was free to refrain from patronizing the establishment. However the charges were labeled in the checks presented, no taxes as such were collected by the plaintiff for the government, Shearer v. Commissioner, 2 Cir., 48 F.2d 552; Biddle v. Commissioner, 2 Cir., 86 F.2d 718, affirmed 302 U.S. 573, 58 S.Ct. 379, 82 L.Ed. 431, for which the plaintiff was bound to account. If overcharges were mistakenly made its patrons they may have had an action against the plaintiff but only a debtor-creditor relationship was created and the actual money the plaintiff received when the checks were paid became its own to use as it pleased. Consequently the judgment below was not precluded by any statutory limitation as to the incidence of the taxes or any equitable principles and was in accordance with the provisions of § 41(20) of Title 28 U.S.C.A. Affirmed. L. HAND, Circuit Judge (dissenting). I agree that the defendant cannot invoke § 3443(d). Section 1722 was indeed a general section, when it appeared in the Act of 1924 as § 1000; and since then it has been distributed among various "Chapters" of the Code. However, § 3443(d) is particularly limited to Chapter 29, and a tax on cabarets is not a Manufacturers Excise. I cannot believe that the word, "special," in § 1722, or in the other places to which § 1000 has been distributed, includes provisions so expressly limited as is § 3443 (d). Besides, § 3443(d) speaks of "articles," and "purchases" and "vendees," all of which are not appropriate to admission fees. On the other hand, all refunds are based upon the theory of unjust enrichment, as laid down by Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005; and, although the defendant has no positive statutory sanction for its defence, the plaintiff on its part has no standing to claim the refund, unless it can show that it is inequitable for the defendant to keep the money. Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L.Ed. 1421. In disposing of that question I shall assume what is not, strictly speaking, in the record, but what, it seems to me, is fairly inferrable from it: I shall assume that, when the plaintiff charged its guests with the amount of the tax for which it supposed itself liable, it added the amount as a separate item and described it as a tax which it must pay, and which it was apparently collecting from the guests in order to pay it to the Treasury. If the plaintiff wishes to dispute this, I should allow it to do so, because I regard the distinction as crucial whether it made the charge in that form, or merely included in the bills rendered the amount of the supposed tax without saying anything about it. If it said nothing, I should agree with my brothers that the guests had no legally recognizable interest in the money collected, which gave them any claim to it superior to the plaintiff's; and in that case some statute would be necessary to deprive the plaintiff of its right to recover. On the other hand, if the plaintiff collected the money under what the guests must have understood to be a statement that it was obliged to pay it as a tax, and that it meant to do so, the money was charged with a constructive trust certainly so long as it remained in the plaintiff's *71 hands. For example, if, before the plaintiff had paid it, the Treasury had declared that the tax was not due, the plaintiff could not have successfully resisted the guests' demand that it be turned back to them, the very purpose for which they had paid it having then become incapable of execution. I can see no difference between that situation and the one actually at bar. When the plaintiff, having taken the money charged with the constructive trust, paid it to the collector, a claim against the collector and the defendant at once arose in its favor, based upon the collector's unlawful exaction. That claim was certainly a substitute for the money whose payment created it; in equity it was the same as though the plaintiff had used the money actually to purchase the claim; and, if a constructive trust attached to the money, the same trust attached to the claim. Shearer v. Commissioner, 2 Cir., 48 F.2d 552, 554, held nothing to the contrary; it turned upon whether the purchaser of the motor had paid a tax; a matter of statutory definition. If the plaintiff collects this claim, it will therefore hold it as trustee for its guests. That, I agree, would be no answer, if there was any possibility that the plaintiff would, or indeed could, distribute it to its guests; the defendant could not keep the money merely because it feared that the plaintiff would be truant to its duty. But it is plain that the plaintiff will not be able so to distribute the recovery, however much it may wish; or, at any rate, if that is too much of an assumption, certainly it is prima facie true, and the plaintiff should be required to prove that it can and will distribute it. That being so, the situation as it comes to us is the familiar one, in which the equities are equal and legal title should prevail. Williams v. Jackson, 107 U.S. 478, 2 S.Ct. 814, 27 L.Ed. 529; Ballard Bros. Fish Co. v. Stephenson, 4 Cir., 49 F.2d 581; Taggart v. Keim, 3 Cir., 103 F.2d 194, 199.

6 Ill. App.2d 85 (1955) 126 N.E.2d 859 Mary B. Babbitt et al., Appellees, v. V. Arthur May, Trading as May Universal Appliances, Appellant. Gen. No. 10,765. Illinois Appellate Court — Second District. February 17, 1955. Rehearing denied June 17, 1955. Released for publication June 20, 1955. *86 Little, Presbrey & Ohse, of Aurora, for appellant; Merritt J. Little, George W. Presbrey, and C. Robert Ohse, all of Aurora, of counsel. Sears & Streit, Simpson & Simpson, all of Aurora, for appellees; Edward F. Streit, Robert F. Casey, May R. Simpson, and John P. Simpson, all of Aurora, of counsel. MR. PRESIDING JUSTICE WOLFE delivered the opinion of the court. On January 6, 1951, Mary B. Babbitt and Clyde W. Babbitt, her husband, entered the appliance store known as May Universal Appliances, operated by V. Arthur May. They concluded a purchase for a television set and went with the salesman back to the wrapping counter where Mrs. Babbitt observed some electric roasters on some shelves back of where the television set had been placed. The salesman, Mr. Hergenhahn, told the Babbitts to go over and look at the roasters. There was a stairway close to these roasters and as Mrs. Babbitt stepped back to inquire the price of them, she stepped into the stairway and fell backwards, down to the bottom of the stairway. She had not noticed the stairway. The landing where the roasters were displayed was approximately four feet long and thirty-six inches wide. As she fell down the stairway, she bumped her head and received several bad bruises. She was taken to the office of Dr. Elmer M. Thomas, a local physician, and he examined her back, head, legs and shoulders. She and her husband started a suit in the city court of Aurora, in Kane county, Illinois, for damages that *87 she received on account of her injuries, alleging that it was through the negligence of the defendant, V. Arthur May, that caused her injuries. The husband started suit against V. Arthur May, for damages that he sustained for expenses that he had been put to, for doctor bills, nursing bills and hospital bills, and for the loss of consortium. The case was tried before a jury that rendered a verdict in favor of Mary B. Babbitt for $7,000 and for Clyde W. Babbitt for $1,200. At the close of plaintiffs' case the defendant entered a motion for a directed verdict. This motion was denied. Later the defendant entered a motion for a new trial; this motion was also denied, and a motion for judgment notwithstanding the verdict. This motion was also denied and judgment entered on the verdicts, and it is from these judgments that the appeal has been perfected to this court. Mrs. Babbitt was called as a witness and testified that she and her husband had gone to the May Universal Appliance Store for the purpose of purchasing a television set; that after they made the purchase, they went back to the wrapping desk and she noticed there were some roasters on a shelf close to the desk; that the salesman that she had been dealing with for the television set, told her to look at them. She went over and was looking at them and took one step backwards, to better see the price on the appliances, when she stepped into space and fell down into the stairway; that she rolled clear down to the bottom of the stairs; that in doing so she bumped her head on the stairway and received other bruises; that she was taken to Doctor Thomas' office and he there examined her and found that she had numerous bruises, a swelling on her head and left knee; that the doctor prescribed for her certain medicines and told her to stay in bed; that she was in and out of bed for a period of ten days to two weeks. The swelling on her head, back and knee disappeared; *88 that immediately after the accident, and it has continued since, to the time of the trial, she has suffered severe headaches; that she was not so afflicted before the accident, except one time that she relates that she had been up all night with her father-in-law the night he died, and that is the only time that she had ever consulted a doctor in regard to her headaches; that since the accident she suffers with them frequently and as much as four days' duration. Doctor E.M. Thomas' deposition was taken by consent of the parties and read to the jury. He stated that immediately after the accident he gave Mrs. Babbitt a general examination and disclosed she had a swelling on the top and back of her head, and injury or contusion to the back of her right arm and left knee, due to the twist that she sustained in falling down the stairs. The two bruises on her head were located on the top of her head where the cowlick would appear in the hairline and the other bruise was to the left of the mid-region between the mid-line and the ear; that he treated her several times for severe headaches; that whenever he made a house call for Mrs. Babbitt, she would be in bed and suffering from the headaches. None of this testimony was objected to by the defendant. The doctor was asked this question. "Now doctor, do you have an opinion, based upon a reasonable degree of medical certainty, as to whether or not there was a cause or connection between Mrs. Babbitt's fall on the stairway of the May Company on January 6, 1951, and the condition of illness that you have described, the headaches?" He answered, "I have an opinion." "Could you tell us what that opinion is?" He answered, "My opinion is that those headaches were increased in frequency and in severity by this fall." He did not have an opinion as to whether this was a temporary or permanent condition. These questions and answers were objected to by the defendant. *89 Helen Cearlock testified that she was a registered nurse. She was acquainted with the plaintiff, Mary Babbitt, prior to January 6, 1951; that Mrs. Babbitt acted as a baby sitter for her; that she would take her child to Mrs. Babbitt's house in the morning and pick her up in the evening. This she would do five days a week prior to January 6, 1951; that at that time Mrs. Babbitt appeared to her to be in normal health; that after January 6, 1951, she saw that Mrs. Babbitt had a lump on her head and a bruise on her back and one on her knee; that during the year 1951, and 1952, she saw Mrs. Babbitt twenty to fifty times, and Doctor Thomas and Doctor Wunsch arranged with her to give Mrs. Babbitt hypodermic injections, which were administered at Mrs. Babbitt's home; that Mrs. Babbitt would be in bed and appeared to her of being in pain. Doctor Harry E. Rice was called as a witness and testified as to the condition that he found Mrs. Babbitt in, in September 1952. She came to his office complaining of headaches. He gave her a thorough examination and told of the treatment that he prescribed for her, and advised having X-rays taken of her skull; that he continued to treat her for headaches from September 1952, until the time of the trial. He was asked the question whether he was able to ascertain pathologically what was causing these headaches, and he stated that he could not. In answer to the question whether these symptoms were subjective, this question was objected to by the defendant, but overruled and he answered, "Headaches are subjective sometimes and objective other times; I will say this, I have seen Mrs. Babbitt in my office when her head was bothering her, I am sure. I think from my own experience, I can say truthfully that from her appearance she was suffering from headaches." The abstract does not show, but the additional abstract shows that the doctor testified that he did not consider that Mrs. Babbitt was suffering from migraine headaches. He stated that he had an opinion based on *90 a reasonable degree of medical certainty whether or not this condition he had found in Mrs. Babbitt might or could be caused by trauma or injury. His answer was, "My honest opinion is that I feel Mrs. Babbitt was post-traumatic coming after injuries notwithstanding that I have not been able to demonstrate it pathologically." Neither the abstract nor additional abstract shows that there was any objection made by the defendant to this question and answer. In addition to the instructions given to the jury, the additional abstract shows that at the request of the defendant, and over the objection of the plaintiffs, four special interrogatories were submitted to the jury for their consideration. First, "Was the plaintiff, Mary B. Babbitt, in the exercise of ordinary care and caution for her own safety just before and at the time and place of the occurrence on January 6, 1951?" The jury answered, "Yes." The second, "Was the fall of the plaintiff, Mary B. Babbitt, on January 6, 1951, proximately caused by the negligence of the defendant?" The jury answered, "Yes." The third, "Was the defendant, Arthur May, on January 6, 1951, guilty of negligence with regard to the safety of Mary B. Babbitt?" The jury answered, "Yes." The fourth, "Do you find from the evidence that the plaintiff, Mary B. Babbitt, suffered bodily injury as a direct and proximate result of her fall?" The jury answered, "Yes." The appellant does not claim that either of the verdicts is excessive. [1, 2] It is not argued by the defendant that he was not guilty of negligence which was the proximate cause of the injury to the plaintiff, but he insists that the plaintiff, Mary B. Babbitt, was guilty of contributory negligence as a matter of law, and the court erred in not directing a verdict in favor of the defendant. The defendant offered no evidence to rebut that given by the plaintiffs, and the case went to the jury on the plaintiffs' evidence alone. The jury found that by their *91 special interrogatories, and by their general verdict, that the defendant was guilty of negligence which was the proximate cause of the plaintiffs' injury, and that she was free from contributory negligence. From a review of the evidence in the case, it is our conclusion that the jury properly found in favor of the plaintiffs. [3, 4] It is seriously contended by the appellant that the court committed reversible error in allowing the doctors to testify in regard to their opinion, as to the cause or connection of the headaches that the plaintiff was suffering from, and the injuries she sustained at the time of the fall in the defendant's store. The leading case on this subject is City of Chicago v. Didier, 227 Ill. 571. The court was considering the same question as presented here and in their opinion we find the following: "There is some apparent confusion in the authorities on the question as to whether, in such cases as this, a medical expert may be asked his opinion as to whether the physical conditions of the injured party are the result of the injuries complained of. Where there is a conflict in the evidence as to whether the plaintiff was injured in the manner claimed, it is not competent for witnesses to give their opinions on that subject; but where there is no dispute as to the manner of the injury, and the question is as to whether certain physical conditions were caused by the injury complained of, and the determination of the question involves a special skill or trade, or a knowledge of science that does not come within the experience of laymen possessing the education or knowledge common to those moving in the ordinary walks and engaged in the ordinary occupations of life, then persons possessing the special knowledge, skill or science may give their opinions on the subject. Appellant contends that the inquiry should be as to whether the injury might have produced the physical conditions, and not whether it *92 did produce them. Expressions will be found in some cases tending to support that view, but the weight of authority in this State, as well as in other jurisdictions, does not support appellant's contention." The court then reviewed the case of Illinois Cent. R. Co. v. Smith, 208 Ill. 608, and distinguished the facts and law in that case from the one that they had been considering. The Illinois Cent. R. Co. case is one strongly relied upon by the appellant in the instant case. After reviewing the case the court then concluded with this language: "We think the apparent confusion of the authorities arises from a failure to distinguish between cases where the manner in which the injury is received is admitted and cases where the manner of the injury is denied. Illinois Central Railroad Co. v. Smith, supra, belongs to the latter class of cases and the case at bar to the former class." An examination of the cases cited by the appellants to sustain their contention that this evidence was improper are found to be cases where there was a dispute in regard to how the accident occurred. In the instant case there is no dispute but Mrs. Babbitt fell down the stairway in the defendant's store and was injured and that she has been suffering from headaches ever since. The City of Chicago v. Didier, supra, case has been cited many times and approved both by our Supreme and Appellate Courts. In The People v. Minzer, 358 Ill. 345 it is stated: "None of his witnesses denied the fact that the deceased had been strangled. In cases where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound." *93 In the case of The People v. Fedora, 393 Ill. 165, the court uses this language: "The Fellows-Kimbrough case, People v. Rongetti, 338 Ill. 56, and subsequent cases cited by plaintiffs in error, state the rule to be that where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound. In City of Chicago v. Didier, 227 Ill. 571, we held that if there is no dispute that plaintiff was injured or as to the manner in which the injury was received, but the question is whether certain existing physical conditions are the result of the injury, the determination of which question requires special knowledge, physicians possessing such knowledge may express their opinions as to whether the physical conditions were the result of the injury." To the same effect is Hallis v. Stover Co., 275 Ill. App. 44 and Koch v. City of Chicago, 297 Ill. App. 103. It is our conclusion that the court properly admitted the evidence of the doctors and we find no reversible error in the case, and the judgment appealed from is hereby affirmed. Affirmed.

432 F.Supp. 821 (1977) CITRONELLE-MOBILE GATHERING, INC., Robert T. Dalton and Harold Enke, Plaintiffs, v. McLUCAS, John L., Adm., FAA: Coleman, William, Adm., Department of Transportation, Defendants. Civ. A. No. 75-584-P. United States District Court, S. D. Alabama, S. D. May 5, 1977. *822 Lester M. Bridgeman and Jeffrey M. Lang, Washington, D.C., G. Sage Lyons and Cooper C. Thurber, Mobile, Ala., for plaintiffs. Edward J. Vulevich, Jr., Asst. U.S. Atty., Mobile, Ala., Joan Truitt and Sandra Dawahare, Office of Chief Counsel, FAA, Washington, D.C., for defendants. OPINION AND ORDER PITTMAN, Chief Judge. This is an action by Citronelle-Mobile Gathering, Inc. (Citmoco), which owns and operates a Sabreliner 60 jet aircraft powered by two Pratt & Whitney JT-12A jet engines, and by Robert T. Dalton and Harold Enke, licensed pilots and employees of Citmoco, who pilot the aircraft. The plaintiffs seek to permanently enjoin the Secretary of Transportation, William Coleman, and the Administrator of the Federal Aviation Administration (FAA), John L. McLucas, from enforcing against plaintiffs an FAA regulation (Special Federal Aviation Regulation 27 (SFAR-27)), as amended (the amendment), and as applicable to Pratt & Whitney JT-12A class jet engines, for that (a) it is ultra vires in that it seeks to enforce a regulation issued by the Environmental Protection Agency (EPA) under the Clean Air Act to bar fuel emissions into the atmosphere during ground and flight operations but it actually applies only to aircraft fuel emissions onto the ground after ground and flight operations have terminated; (b) it is unenforceable because the amendment was issued by the FAA without complying with the statutory condition precedent that EPA must first publish comments on the environmental impact, including the safety of persons and property, of the proposed regulation; and, (c) it is arbitrary and capricious because the amendment issued by FAA (1) was without consideration or investigation of, or findings with respect to, safety hazards repeatedly brought to the attention of FAA; and (2) because compliance with the amendment would force plaintiffs to violate other regulations promulgated by FAA relating *823 to safety, and would not in any event, significantly affect air pollution resulting from fuel emissions. Another Judge of this court (Hand, J.) entered a temporary restraining order against the defendants on December 5, 1975, and granted a preliminary injunction after hearing. Defendants contend that (a) this court lacks jurisdiction of the subject matter of this action, and, (b) that the FAA's decisions as to the safety of the suggested technical means of compliance with the EPA standards as found in the amendment were not arbitrary, capricious, an abuse of discretion or otherwise a violation of law. By order of this court (Hand, J.) it was determined that ". . . the court has jurisdiction over the subject matter of the action as it relates to the said defendants [McLucas and Coleman] . . .." (see Order on defendants' McLucas and Coleman motion to dismiss, Doc. No. 23.). This action arises under the laws of the United States. The amount in controversy, exclusive of interest and costs, is more than $10,000.00. Jurisdiction is conferred upon this court by 28 U.S.C. §§ 1331, 1332, and 5 U.S.C. § 706. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201-2202. The findings of fact and conclusions of law are limited to the amendment as applicable to Pratt & Whitney JT-12A class jet engines. FINDINGS OF FACT Plaintiff Citmoco is a corporation organized and existing under the laws of Delaware, and has its principal place of business in Mobile, Alabama. Citmoco owns a Sabreliner 60 aircraft, United States Registration No. N1MN, equipped with two Pratt & Whitney Model JT-12A jet turbine engines. Plaintiff Harold E. Enke resides in Mobile, Alabama, and is employed by the plaintiff Citmoco as a pilot of the described aircraft. Enke holds Commercial License No. 1882026 issued September 9, 1974, and Flight Instructor's License No. 1882026-CFI issued June 23, 1975, by the FAA. Plaintiff Robert T. Dalton resides in Mobile, Alabama, and at all pertinent times was employed by Citmoco as a pilot of the aircraft. Dalton holds Airline Transport License No. 1625391 issued by FAA in 1972 and Flight Instructor's License No. 1625391-CFI issued by FAA in 1966. Dalton has terminated his employment with Citmoco. Defendant John T. McLucas was at the time of the filing of this action the Administrator of the FAA, which is part of the United States Department of Transportation. Defendant William Coleman was at the time of filing of this action the Secretary of the Department of Transportation. The Clean Air Act Amendments of 1970, 42 U.S.C. § 1857, et seq., established in § 1857f-9, standards to prevent "fuel venting emissions" from being "discharged into the atmosphere", "from any class or classes of aircraft or aircraft engines which in his [the EPA Administrator] judgment cause or contribute to or are likely to cause or contribute to air pollution which endangers the public health and welfare," and defined those emissions as "raw fuel . . . discharged . . . during all ground and flight operations." 40 CFR §§ 87.1(a)(26), 87.10, 87.11. Pursuant to § 231 of the Clean Air Act, 42 U.S.C. § 1857f-9, the EPA published the required report "Aircraft Emission: Impact on Air Quality and Feasibility of Control" and issued for public comment a notice of proposed rulemaking on December 12, 1972 (37 Fed.Reg. 26488).[1] Public hearings were held in Boston, Massachusetts, on January 29, 1973, and in Los Angeles, California, on *824 February 6, 1973. A final regulation was published by EPA on July 17, 1973, 38 Fed. Reg. 19088, 40 CFR §§ 87.10, 87.11, "Engine Fuel Venting Emissions (New and In-Use Aircraft Gas Turbine Engines.)." Prior to the EPA hearings in Boston and in Los Angeles, the FAA made available a comprehensive "Tentative FAA Regulatory Draft re: EPA Proposed Aircraft Emission Standards," for public review and comment, 38 Fed.Reg. 1949, on January 19, 1973, so that interested parties would be on notice of FAA's proposed methods for compliance with the EPA proposal. Pursuant to § 232 of the Clean Air Act, the Administrator of the FAA by delegation from the Secretary of Transportation, 49 CFR § 1.47(g), published a Notice of Proposed Rule Making on June 27, 1974, 39 Fed.Reg. 30272 for public comment. The Administrator of the FAA by delegation from the Secretary of Transportation published SFAR-27, 14 CFR Part 11, as originally proposed on December 28, 1973. In February, 1974, after FAA issued SFAR-27, the EPA amended 40 CFR § 87.11 by adding to the provisions of sub-paragraph (a) prohibiting fuel venting emissions into the atmosphere from gas turbine engines, the following sentence: "This paragraph is directed at the elimination of intentional discharge to the atmosphere of fuel drained from fuel nozzle manifolds after engines are shut down. . . ." EPA did not, however, change the definition of "fuel venting emissions." On June 27, 1974, the Administrator of the FAA published a Notice of Proposed Rule Making, 30 Fed.Reg. 23271, which was to be the amendment under consideration, to include "Class T1" aircraft turbofan or turbojet engines of rated power less than 8,000 pounds thrust. The NPRM was open for comments from interested parties for 30 days. On December 30, 1974, the Administrator of the FAA published the amendment to SFAR 27, 39 Fed.Reg. 45008, which set January 1, 1975, (later extended to September 1, 1975) as the effective compliance date for Class T1 category turbojet engines. Citmoco advised the FAA that it would not comply with the amendment on the ground that compliance would create hazards to the safety of persons and property. Without compliance, Citmoco's Sabreliner 60 will lose its airworthiness certificate and the individual plaintiffs will be in jeopardy of having their pilots' licenses suspended or revoked. The only EPA comment made pursuant to § 42 U.S.C. § 1857h-7[2] and pertinent to fuel venting, is the November 27, 1973, letter from Mr. Stork to Mr. Skully of the FAA (Defendants' Exhibit No. 5). It is evident that EPA considered the amendment proposals unsatisfactory from the standpoint of achieving the desired "environmental impact." No effort was made to consider "damage to or deterioration of property, and hazards to transportation as well as effects on economic values and in personal comfort and well being" that might result from the enforcement of the amendment. There was no referral to the Council on Environmental Quality. *825 SFAR-27 as originally promulgated and later the amendment under consideration, barred fuel venting emissions by gas turbine engines and provided that an acceptable means of compliance would include techniques: "Applied to the air frame or the engine that prevents the intentional discharge of fuel from nozzle manifolds after the engines are shut down. Acceptable means of compliance include the following: (1) Incorporation of an FAA approved system that recirculates the fuel back into the fuel system. (2) Capping or securing the pressurization and drain valve. (3) Manually draining the fuel from a holding tank into a container." There are presently two modes of compliance with the requirements of the amendment. One is the P & D valve plug. The P & D valve is a product of the post World War II jet engine industry. In the early jet engines there was no means of draining raw fuel remaining in the fuel manifolds after engine shut down. When these early engines were "stopcocked"[3] the residual raw fuel drained into the combustion and turbine sections of the engines.[4] When the raw jet fuel came into contact with the hot turbine parts an "after light" occurred, emitting sheets of flame out the tail pipe and in some cases out of the engine inlet. This phenomenon sometimes took place anywhere from one to three minutes after complete shut down. "After light" could and did cause damage to plane and ground crew and did extensive damage to engine parts. Subsequently, the air industry developed the P & D valve system.[5] The P & D valve is designed to open at engine shutdown and allow the excess raw fuel remaining in the fuel manifolds to drain onto the ramp. In the big commercial jet engines the quantity of fuel drained was substantial.[6] As a result of massive adverse publicity, engine manufacturers and the airline industry in the early 1970's built "catch tanks" for the fuel to drain into. These "catch tanks" for the most part incorporated a system of vent lines which carried the excess fuel into the catch tank and then used ram air to vent the fuel into the atmosphere after takeoff. The end result was that the fuel, in one form or another, was released into the atmosphere. Prior to the recent refinements to both the fuel nozzles and the raw jet fuel, the P & D valve further served the purpose of preventing coking of the fuel nozzles and "hot starts." "A "hot start" occurs when, during the start up procedure, engine temperatures reach approximately 510 F or above, which leads to destruction of engine parts. As an additional method of coping with the problem of excess fuel buildup in the combustion chambers a "flapper valve" was placed in the aft portion of the combustion case. This valve is completely controlled by pressure and is usually activated anywhere from a few seconds to a few minutes after "shutdown." In order for the "flapper valve" to be completely effective the engine should be in a tilted position in order for gravity to pull the excess raw fuel through the aft portion of the combustion case. It is clear that if the engine is not at the proper angle, the "flapper valve" will be of no use in purging the combustion chamber and/or case of the excess raw fuel. With the P & D valve plugged, the excess raw fuel which is trapped in the fuel manifolds after the engine is "stopcocked" can only go out the nozzles and into the combustion chamber. In the JT-12A engines this occurs only after shutdown. As the JT-12A engine compressor "spools" down, *826 the temperature in the combustion case and chambers rises temporarily and reaches a temperature of approximately 800° F. On "quick turn arounds" when the engine is shutdown and then, shortly thereafter, restarted,[7] there is a good likelihood of a "hot start" or an "after light" with the P & D valve plugged. With the accumulation of raw fuel in the combustion chamber this fuel will either be ignited or will be forced out into the atmosphere in the form of vapor and exhaust. An alternate means of compliance different from the one in controversy here has been certified by the FAA. This is a drain can which attaches to the airframe. (See 14 CFR 11, SFAR-27, § 14(3)). The can collects fuel which drains from the engine through a hose link-up. At appropriate intervals, the can is manually drained and the waste fuel is dumped into an appropriate collecting basin. Thus, instead of being drained out the P & D valve directly onto the ramp, the excess raw fuel is collected in a catch tank to be dumped later. It is uncontroverted that there is no specific place in which to dump excess raw fuel at the airports the plaintiffs normally use, Houston, New York, Palm Beach, or Washington International. There is a very small amount of fuel which accumulates in the JT-12A engines after shutdown, to wit, two ounces to five ounces, or less, per engine. This is vented through the "flapper valve" or is discharged into the atmosphere when "motoring" the engine on start up. By plugging the P & D valve the safest method of venting the excess raw fuel is preempted. The plugging has the potential of leading to unsafe conditions, i. e. "after lights" and "hot starts." It is clear that the FAA was fully apprised of the safety hazards that were presented with the P & D valve plugged on JT-12A engines. (See Plaintiffs' Exhibits 6, 7, 8, 9, 10, 11, 13, 14 and 16.) The testimony of plaintiffs' expert, Mr. Dugo, a man with more than 30 years in the jet engine industry, many of which were spent working on Pratt & Whitney engines (see Plaintiffs' Exhibit 2), leads this court to interpret his numerous warnings to both the EPA and the FAA as being more than unsubstantiated "rumors." The JT-12A engine was not tested. Larger jet engines such as used on the scheduled commercial airliners with similar drainage systems were tested. There were complaints about safety problems concerning the FAA requirements on the larger jet engines for a period of approximately one and one-half years. The documented tests run by the FAA (see Data Report No. 88 attached to Doc. No. 54) concerning the plugging of the P & D valve on the large jets plus the numerous complaints made to the FAA when the amendment was promulgated requiring the plugging of the P & D valve in the smaller JT-12A jet engines without testing, points up the arbitrariness of the Agency's action in this case. The vast majority of civil non-commercial aircraft operated in the United States are propeller driven aircraft and are, as such, entirely unaffected by the amendment. The evidence shows that it is a normal procedure to drain quantities of fuel on the ground from fuel tanks without any FAA bar. In fact, FAA encourages aircraft users to drain fuel from fuel tank sumps in order to insure that the tanks are free of water.[8] No where has it been shown that there is any prohibition from dropping these quantities of far more volatile fuel on the ground. To comply with the amendment an aircraft owner must either plug the P & D valve or install a "catch can" to gather the raw fuel which accumulates. There are approximately 200 aircraft in the United States which have the JT-12A jet engines. These are generally privately owned, executive aircraft of limited use as *827 contrasted to the commercial carriers using the large jet engines. The amount of jet fuel, two to five ounces, per engine per flight dumped on the ground or into the atmosphere is negligible. The lack of investigation of serious problems raised by the application of the amendment to the small JT-12A engines is inexcusable. It is a horrible example of bureaucracy extending its regulations to a different situation without any known weighing of probable disadvantages against possible advantages. This court finds the amendment to SFAR-27 as promulgated by the FAA and as applied by the FAA to JT-12A engines is arbitrary and capricious. CONCLUSIONS OF LAW This court has jurisdiction of this cause pursuant to 28 U.S.C. § 1331, 1332 and 5 U.S.C. § 706. Declaratory and injunctive relief is based on 28 U.S.C. § 2201-2202. Venue is properly in this District pursuant to 28 U.S.C. § 1391(e). The scope of judicial review of the FAA's actions concerning the amendment to SFAR-27 is whether the action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A), Carlisle Paper Co. v. NLRB, 398 F.2d 1, 6 (3rd Cir. 1968). A decision is arbitrary and capricious only where it is not supportable on any rational basis. Estep v. U. S., 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Dickinson v. U. S., 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). The safety determination of the means of compliance with the requirements of the amendment is a matter left to the FAA. 42 U.S.C. § 1857f-10. The FAA is the agency designated by Congress with ensuing aviation safety. 42 U.S.C. § 1857f-9(c); Clean Air Act Amendments of 1970, 42 U.S.C. § 1857f-10; § 307(c), 313(c), 313(a), 601 and 603 of the FAA Act of 1958, 49 U.S.C. §§ 1348(c), 1354(a), 1421 and 1423; and § 6(c) of the Department of Transportation Act. 49 U.S.C. § 1655(c), 49 U.S.C. § 1421, and § 1655. "[T]he court must give due deference to the agency's ability to rely on its own developed expertise." Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir. 1976), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976). The FAA's decisions are presumed valid but subject to judicial reversal if found to be arbitrary, capricious or an abuse of discretion. Ethyl v. EPA, supra. As stated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971): "Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' ". . . To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." [Citations omitted]. 401 U.S. at 416, 91 S.Ct. 824, 28 L.Ed.2d at 153. The FAA is under a statutory duty to assure safety in air operation and to make, or to require others to make, tests with respect to the safety of aircraft engines or appliances. 49 U.S.C. § 1421(a) and § 1423. The only recorded test by the FAA concerning the plugging of the P & D valve was on large jet engines (see Data Report No. 88 attached to Doc. No. 54) and none on the small JT-12A engine. The test results showing the possible link between the plugging of the P & D valve and "after lights" and "hot starts" combined with the numerous complaints passed on to the FAA by Mr. Dugo and others in the aviation community should have spurred the FAA to make an investigation into the propriety of applying by amendment SFAR-27 to JT-12A engines. Inasmuch as FAA made no tests concerning the plugging of the P & D valve in the *828 JT-12A engines, made no provision for receptacles for emptying catch cans (human nature is such that is more likely than not that the catch cans would be dumped behind the corner of the first building or place out of ready sight), the exceptionally small amount of jet fuel involved, dangers pointed out by competent JT-12A jet engine engineers, the failure to test the result of plugging the small JT-12A jet engine, and the apparent failure to balance the small amount (two to five ounces) against the much larger quantities dumped by propeller aircraft, leads this court to the inescapable conclusion that the amendment as applied to the JT-12A engine is an arbitrary and capricious act on the part of the FAA. This court fails to see how a regulatory agency which depended on the industry which it regulates for its only data[9] to determine that a technique as applied to JT-12A engines is safe can be termed anything but arbitrary, capricious and without any rational relationship to its intended purpose. It is evident the FAA has failed to take a "hard look"[10] at the problem that the regulation was supposed to cure and at the safety problem created by its application to the JT-12A engines. Therefore, this court must intervene to rectify this "arbitrary and capricious" act of the FAA. 5 U.S.C. § 706(2)(A). It is therefore ORDERED, ADJUDGED, and DECREED that the defendants herein and each of them, their agents, successors, deputies, servants and employees, and all persons acting by, through or under them, or any of them or by or through their order be, and are hereby, permanently ENJOINED from (a) taking any action whatever to suspend or revoke or seek to suspend or revoke the licenses issued by the Federal Aviation Administration and now held by plaintiffs Robert T. Dalton and Harold E. Enke, or the airworthiness certificate of Sabreliner 60 Aircraft Registration No. N1MN for the asserted reason or on the asserted grounds that the said aircraft was being operated in alleged violation of Special Federal Aviation Regulation 27 as amended or that the individual plaintiffs jointly or severally are operating, have operated or intend to operate said aircraft while it is in alleged violation of Special Federal Aviation Regulation 27 as amended; and (b) from applying or enforcing Special Federal Aviation Regulation 27 as amended against the individual plaintiffs jointly or severally in connection with the operation of its Sabreliner 60 Aircraft or aircrafts propelled by two model JT-12A jet turbine engines. The Clerk of this Court is hereby instructed to forthwith serve copies of this order on all defendants. Costs are taxed against the defendants. NOTES [1] The report defines ground and flight operations as follows: "Flight operations include the approach and climbout modes as well as landing and take off, even though the latter occur partially on the ground. Ground operations include the taxi and idle modes of the cycle." p. 71 [2] 42 U.S.C. § 1857h-7 requires the EPA Administrator to: "Comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this chapter . . . contained in any . . . (3) proposed regulations published by a department or agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review." Further: "In the event the Administrator [of the EPA] determines that any such regulation is unsatisfactory from the standpoint of the public health or welfare or environmental quality he shall publish his determination and the matter shall be referred to the Council on Environmental Quality." 42 U.S.C. § 1857h-7(b). 42 U.S.C. § 1857h(h) states: "All language referring to effects on welfare includes, but is not limited to, effects on soil, water, crops, vegetation, manmade materials, . . . damage to and deterioration of property, and hazards to transportation as well as effects on economic values and on personal comfort and well-being." [3] Stopcocking is the process of turning off the fuel flow by use of the cockpit power lever. [4] See Plaintiffs' Exhibits 3, 4 and 5. [5] See Plaintiffs' Exhibit No. 5. [6] See Plaintiffs' Exhibit No. 7 which is a letter to Mr. Herman Dugo from Norman Shutler, Director — Mobile Source Enforcement Division — EPA, where in he cites a study which estimated that 110 tons of castoff jet fuel were dumped into the air surrounding Washington's National Airport in 1970. [7] An example of this would be when plaintiffs are flying from Mobile to New York and have to stop in Nashville to pick up another passenger. [8] See Plaintiffs' Exhibit No. 1. The testimony indicates there are approximately 10,000 to 15,000 propeller aircraft in the U.S. [9] On August 6, 1975, the FAA's Engineering and Manufacturing Branch Chief sent a letter to Pratt & Whitney which raised specific safety problems. It requested the company to make an investigation into its own engine to determine whether or not such problems did exist. Within a few days Pratt & Whitney prepared and forwarded a three page equivocal reply which did not state that an investigation had been made but simply denied the existence of the problem. (See Plaintiffs' Exhibits Nos. 14 and 15.) [10] See Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 at 394 (1973); Greater Boston Television Corporation v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841, at 851 (1970).

Opinion issued January 12, 2017 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00146-CR ——————————— JOSEPH DURAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1373780 MEMORANDUM OPINION Appellant, Joseph Duran, pleaded guilty to the offense of murder without an agreed recommendation from the State regarding punishment. See TEX. PENAL CODE ANN. § 19.02(b) (West 2011). The trial court found appellant guilty and assessed punishment at 60 years’ imprisonment. Appellant timely filed a notice of appeal.  Appellant’s appointed counsel on appeal has filed a motion to withdraw, along with a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We have independently reviewed the entire record in the appeal, and we conclude that no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826– 27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). We note that an appellant may challenge a holding that there are no arguable grounds for appeal 2 by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6. We affirm the judgment of the trial court and grant counsel’s motion to withdraw. Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Attorney Kevin P. Keating must immediately send appellant the required notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b). 3 

400 U.S. 348 91 S.Ct. 479 27 L.Ed.2d 433 Bernard M. DECKER, United States District Judge, et al.v.HARPER & ROW PUBLISHERS, INC., et al. No. 113. Supreme Court of the United States January 12, 1971 Rehearing Denied March 1, 1971. See 401 U.S. 950, 91 S.Ct. 917. Lee A. Freeman, Jr., Chicago, Ill., for petitioners. H. Templeton Brown, Chicago, Ill., for respondents. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit. PER CURIAM. 1 The judgment is affirmed by an equally divided Court. 2 Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 19, 2007 Charles R. Fulbruge III Clerk No. 05-41583 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BARRY EUGENE BROOKS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CR-54-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges. PER CURIAM:* Barry Eugene Brooks appeals from the district court’s order revoking his supervised release. This court must examine the basis of its jurisdiction on its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Article III, § 2 of the Constitution limits federal court jurisdiction to actual cases and controversies. Spencer v. Kemna, 523 U.S. 1, 7 (1998). The case-or-controversy requirement demands that “some concrete and continuing injury other than the now-ended incarceration or * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 05-41583 -2- parole -- some ‘collateral consequence’ of the conviction -- must exist if the suit is to be maintained.” Id. Brooks has served the nine-month prison sentence that was imposed upon the revocation of his supervised release. The order revoking Brooks’s term of supervised release imposed no further term of supervised release. Accordingly, there is no case or controversy for this court to address, and the appeal is dismissed as moot. APPEAL DISMISSED. 

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 9, 2014 Decided August 8, 2014 No. 12-3074 UNITED STATES OF AMERICA, APPELLEE v. JAMES ODELL BAXTER, II, APPELLANT Appeal from the United States District Court for the District of Columbia (No. 1:03-cr-00516-1) Cheryl J. Sturm argued the cause and filed the briefs for appellant. Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and Sherri Berthrong, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance. Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Chief Judge GARLAND.  2 GARLAND, Chief Judge: James O. Baxter, II was convicted on multiple counts of defrauding the Washington Teachers Union. We have previously described the charges against him as arising from “a seven-year orgy of greed,” during which he and others “stole millions of dollars” from the union. United States v. Hemphill, 514 F.3d 1350, 1353 (D.C. Cir. 2008). Baxter now appeals the district court’s denial of his motion to vacate his convictions pursuant to 28 U.S.C. § 2255. Although we grant Baxter’s motion for a certificate of appealability to consider two of his three challenges, we conclude that he is not entitled to relief and therefore affirm the judgment of the district court. I The following description of the facts is taken from the trial record and from this court’s decision on direct review of Baxter’s convictions, Hemphill, 514 F.3d at 1353-54, 1361-63. In 1994, the Washington Teachers Union (WTU) elected new leadership, including Barbara Bullock as president, Esther Hankerson as vice president, and James O. Baxter, II as treasurer. In 1996, Bullock hired Gwendolyn Hemphill as her executive assistant and WTU office manager. At all relevant times, Baxter was the WTU’s treasurer. As treasurer, one of his duties included countersigning checks (also signed by either Bullock or Hankerson) for the WTU account. Bullock, Baxter, and Hemphill, with the help of other coconspirators, defrauded the WTU of millions of dollars between 1995 and 2002. See Hemphill, 514 F.3d at 1353-54. The fraud was effectuated in several ways. One involved WTU American Express cards, issued to Bullock, Hankerson, and Baxter, which the conspirators used to charge thousands of dollars in personal expenses. Hemphill, 514 F.3d at 1353-54.  3 Bullock’s spending was particularly extravagant. It totaled more than $1.2 million and included custom-made clothing, silverware, crystal, and a piano. J.A. 604, 607-17, 917-19 (Bullock Test.).1 Some of the credit card bills were paid directly with WTU checks signed by Bullock and Baxter. Id. at 612-14, 650. In addition, Hemphill wrote and Baxter signed WTU checks to Bullock’s driver, Leroy Holmes, for amounts far in excess of Holmes’ salary. Holmes then cashed the checks, giving some money to Hemphill and depositing other money in Bullock’s personal account. Hemphill, 514 F.3d at 1354. Similarly, Hemphill wrote and Baxter signed checks to a shell corporation, Expressions Unlimited, that Hemphill’s son-in-law, Michael Martin, and his friend, Errol Alderman, created. See Hemphill, 514 F.3d at 1363; J.A. 1347-49, 1364-68 (Martin Test.). Martin deposited some of the checks in Expressions Unlimited’s account and cashed others. Thereafter, he and Alderman wrote checks to Bullock on Expressions’ account, which they deposited in her personal account along with the money from the checks they had cashed. J.A. 1354-55, 1367-70 (Martin Test.). Bullock then wrote checks on her personal account to pay some of the American Express bills. J.A. 668-69 (Bullock Test.). Apparently she did so to make it seem that she was paying for personal expenditures out of her personal account, when in fact the money Bullock used came from the union. Baxter personally benefitted from the fraud. He wrote several checks to himself on the WTU general account, which he designated as “pension” payments during a period of time when no other employee was receiving pension payments 1 When asked at trial whether it was fair to say that she liked to shop, Bullock responded: “No, that’s not fair. I love to shop.” J.A. 601.  4 because there was no money in the WTU pension fund. Hemphill, 514 F.3d at 1362-63; J.A. 693-95, 724-28 (Bullock Test.). He also used union funds and the WTU credit cards to make personal purchases, including $19,660 for Washington Wizards basketball tickets for his and his coconspirators’ personal use, and $5,000 in art for his home. Hemphill, 514 F.3d at 1362-63. The government also presented evidence of Baxter’s involvement in concealing the crimes. He signed numerous fraudulent checks to himself, Bullock, Hemphill, Holmes, and Expressions Unlimited. Id. at 1363. In addition, he signed a fraudulent LM-2 (an annual financial report made by the WTU to the Internal Revenue Service) that did not include money paid to Hemphill or Holmes, even though notes recovered from his house recorded those payments. Id. at 1362. In Baxter’s files, the government recovered drafts of fraudulent financial reports that his coconspirators had faxed to him. Hemphill, 514 F.3d at 1362. One of those drafts contained handwritten notes showing how to falsely allocate the debits -- arising from the conspirators’ personal American Express charges -- to other budget categories. Id. Over half a million dollars in such charges were reclassified to the “employee benefit expense” and “travel and meeting expense” categories on those fraudulent financial documents. See Jury Trial Tr. 5490, United States v. Baxter, No. 03-CR-516 (D.D.C. Aug. 10, 2005). By early 2002, the fraud had so depleted the union’s funds that it could not pay membership fees it owed to its parent organization, the American Federation of Teachers (AFT). The coconspirators then devised a scheme to make up the shortfall. Hemphill, 514 F.3d at 1354. Under a collective bargaining agreement that the WTU had reached with the District of Columbia Public Schools, the WTU’s member teachers were entitled to a pay raise. As a result, each teacher owed a  5 supplemental lump sum dues payment to the WTU. J.A. 773-74 (Bullock Test.). Properly calculated, that dues payment was not enough to make up the shortfall, so the conspirators simply changed that amount. Instead of deducting $16.09 in union dues from each teacher’s paycheck, Baxter proposed deducting $160.09 and, if discovered, passing it off as a clerical error. Hemphill, 514 F.3d at 1354, 1362. Teachers who noticed the discrepancy alerted the AFT, which then contacted federal authorities. Hemphill, 514 F.3d at 1354. After the government was alerted to the situation, the FBI recovered evidence from Baxter’s home computer that showed the extent of his involvement in the dues scheme, as well as in a potential further cover-up. The WTU had sent a letter to the District of Columbia Office of Pay and Retirement, instructing the Office to deduct the $160.09 from the teachers’ paychecks. An FBI computer specialist found a copy of the letter with the $160.09 figure in Baxter’s email outbox. That letter was last printed on April 17, 2002. But the FBI specialist found that the letter had been saved again on September 23, 2002 -- after the investigation began -- in Baxter’s “My Documents” file. This time, the letter used the $16.09 amount. See Jury Trial Tr. 3836- 50, United States v. Baxter, No. 03-CR-516 (D.D.C. July 14, 2005). A grand jury indicted Baxter, Hemphill, and James A. Goosby (the WTU’s accountant) on November 20, 2003. Bullock, Holmes, Martin, and Alderman all pled guilty and testified for the government. Baxter was charged in 23 counts, including conspiracy to commit fraud and other offenses, wire fraud, mail fraud, making false statements, embezzlement from a labor union, theft, money laundering, and conspiracy to commit money laundering. J.A. 219-59. The trial against the three defendants lasted twelve weeks. The jury acquitted Goosby, but convicted Baxter and Hemphill on all counts.  6 Hemphill, 514 F.3d at 1354. On June 5, 2006, Baxter was sentenced to 120 months’ imprisonment. Id. Baxter and Hemphill appealed, and on February 8, 2008, this court affirmed the district court’s judgment as to both defendants on all counts. Id. at 1353. The Supreme Court denied Baxter’s petition for certiorari on November 10, 2008, Baxter v. United States, 555 U.S. 1020 (2008), and denied his petition for reconsideration on January 12, 2009, Baxter v. United States, 555 U.S. 1130 (2009). On January 11, 2010, Baxter filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.2 The district judge denied Baxter’s motion for § 2255 relief on August 28, 2012, based on “the parties’ briefs,” “the entire record,” and the knowledge the judge acquired from “[h]aving presided over petitioner’s trial and sentencing.” J.A. 480-81. On November 9, 2012, Baxter applied for a certificate of appealability, which the judge denied on January 10, 2013. J.A. 485. Thereafter, Baxter filed a notice of appeal from the denial of his § 2255 motion and moved for a certificate of appealability from this court. In challenging his conviction, Baxter raises three principal claims. First, he argues that the government 2 Section 2255 provides: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a).  7 violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), when it failed to turn over evidence that Bullock suffered from bipolar disorder. Second, he argues that his conviction for conspiracy to commit fraud and other offenses must be vacated because it was based on an honest-services fraud theory that is invalid under Skilling v. United States, 561 U.S. 358 (2010). Finally, he argues that his conviction for money laundering and conspiracy to commit money laundering is invalid under this court’s decision in United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007). We consider these arguments in Parts II, III, and IV below. II Barbara Bullock pled guilty to the fraud and associated charges that are the centerpiece of this appeal. At her January 2004 public sentencing hearing, she sought leniency on the ground that she suffered from bipolar disorder, which she claimed gave rise to her “obsession with shopping.” Sent’g Tr. 21 (Gov’t Supp. App’x 25), United States v. Bullock, No. 03- CR-435 (D.D.C. Jan. 30, 2004). Baxter’s trial commenced in May 2005, more than a year later, and Bullock testified against him. Baxter charges that the government failed to disclose Bullock’s bipolar disorder prior to trial, and that the failure violated its responsibilities under Brady v. Maryland. The government responds that Brady does not require disclosure of the information concerning Bullock’s disorder because that information was not material.3 3 The government also argues that the information does not fall within the Brady rule because the government did not “withhold” or “suppress” it, since it was part of Bullock’s testimony at her January 2004 public sentencing hearing, and the transcript was filed on the district court’s public docket in June 2004. Gov’t Br. 14. Because we conclude that Baxter has failed to show the information was material  8 “Unless a . . . judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). When the district judge has denied a certificate, as the judge did here, the applicant may seek one from the court of appeals. Fed. R. App. P. 22(b). The Antiterrorism and Effective Death Penalty Act (AEDPA) provides that such a certificate may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). This means that the prisoner must show, “at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 478. Under Brady, “the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012). “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. (internal quotation marks omitted). It is the “petitioner’s burden . . . to establish a reasonable probability of a different result.” Strickler v. Greene, 527 U.S. 263, 291 (1999); see United States v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008). Baxter has not even attempted to show how evidence of Bullock’s bipolar disorder might have changed the outcome of his trial. The only thing he says is that he could have used it “effectively to impeach” her testimony, Baxter Br. 26, and that “[b]ipolar disorder is material because it casts doubt on the ability and willingness of Ms. Bullock to tell the truth,” id. at 43. under Brady, we do not address this argument.  9 But he does not say how he would have used evidence of this illness to impeach her testimony or why it would have cast doubt on her ability or willingness to tell the truth. We have no doubt that medical records can be the “grist for effective cross- examination,” Reply Br. 18, but such a conclusory assertion is insufficient to establish materiality. Cf. United States v. George, 532 F.3d 933, 937 (D.C. Cir. 2008) (holding that a district court did not err in barring cross-examination about a witness’ bipolar disorder because nothing in the defendant’s proffer indicated that it “would reasonably cast doubt on her ability or willingness to tell the truth”); id. (“Mental illness is not a generic badge of incompetence or dishonesty.”). Bullock was extensively cross- examined at trial, particularly on the ground that her desire for a reduced sentence gave her a motive to inculpate Baxter, and he does not explain what additional impeachment value her disorder would have had. Moreover, even if the evidence could have been used to successfully impeach Bullock, the probability of a different outcome depends on the context of all of the evidence offered at trial. See Smith, 132 S. Ct. at 630. Other than declaring that Bullock was a “crucial witness,” Baxter Br. 43, Baxter does not explain why her impeachment would likely have resulted in a different verdict. To the contrary, the evidence of Baxter’s guilt was overwhelming, even if Bullock’s testimony had been compromised. See Hemphill, 514 F.3d at 1362-63. Baxter’s mere declaration to the contrary is insufficient to meet his burden.4 Accordingly, we conclude that Baxter has not stated a 4 Baxter makes the related claim that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to discover that Bullock suffered from bipolar disorder. Because one prong of the Strickland test requires a defendant to show prejudice from any alleged ineffectiveness of counsel, this claim fails for the same reason his Brady claim fails. See Strickland, 466 U.S. at  10 Brady claim that “jurists of reason” would find debatable, and we therefore deny his request for a certificate of appealability.5 III Baxter argues that his conviction on Count 1 was invalid in light of Skilling v. United States, 561 U.S. 358 (2010). Count 1 charged Baxter and others with conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371. The count charged the following offenses as among the objects of the conspiracy: (1) mail and wire fraud to obtain money and property, in violation of 18 U.S.C. §§ 1341 and 1343; and (2) mail and wire fraud to deprive the WTU of its intangible right to the defendants’ honest services, in violation of 18 U.S.C. §§ 1341, 1343, and 1346.6 The judge instructed the jury that it 694 (“[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution . . . .”); Montgomery v. Bobby, 654 F.3d 668, 679 n.4 (6th Cir. 2011) (“[I]t is well settled that the test for prejudice under Brady and Strickland is the same.” (internal quotation marks omitted)). 5 Baxter also contends that the district court abused its discretion in failing to grant an evidentiary hearing to develop his Brady claim. A “district judge’s decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also presided over the trial in which the petitioner claims to have been prejudiced.” United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996); accord United States v. Toms, 396 F.3d 427, 437 (D.C. Cir. 2005). We see no abuse of discretion and no warrant for granting a certificate of appealability on this issue. 6 As the Supreme Court explained in Skilling: “The mail- and wire-fraud statutes criminalize the use of the mails or wires in  11 could find Baxter guilty if the government proved he conspired to commit any of the charged object offenses. J.A. 1528.7 And the verdict form allowed the jury to return a general verdict on Count 1, without specifying upon which object it had based the conspiracy conviction. See J.A. 254.8 In Skilling, the Supreme Court held that the honest-services fraud statute, which prohibits a “scheme or artifice to deprive another of the intangible right of honest services,” 18 U.S.C. § 1346, “proscribe[s] bribes and kickbacks -- and nothing more.” Skilling, 561 U.S. at 410. The government had neither alleged nor proved that Skilling received bribes or kickbacks. Id. at 413. “Because the indictment alleged three objects of the conspiracy -- honest-services wire fraud, money-or-property wire fraud, and securities fraud,” the Court held that “Skilling’s conviction [wa]s flawed.” Id. at 414. As the Court noted, furtherance of ‘any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.’ 18 U.S.C. § 1341 (mail fraud); § 1343 (wire fraud). The honest-services statute, § 1346, defines ‘the term “scheme or artifice to defraud”’ in these provisions to include ‘a scheme or artifice to deprive another of the intangible right of honest services.’” 561 U.S. at 369 n.1. 7 “[T]he government is entitled to prove criminal acts in the disjunctive, notwithstanding that the indictment charges them in the conjunctive.” United States v. Coughlin, 610 F.3d 89, 106 (D.C. Cir. 2010) (citing Griffin v. United States, 502 U.S. 46, 56-60 (1991)). 8 Although the parties discuss Count 1 as if it merely charged a conspiracy to commit fraud (by wire and mail), it also charged as objects of the conspiracy embezzlement from a labor organization, in violation of 29 U.S.C. § 501(c), and making false statements in violation of 18 U.S.C. § 1001. Because the parties do not focus their arguments on these objects, we do not discuss them.  12 “constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.” Id. (citing Yates v. United States, 354 U.S. 298 (1957)). The Court did not vacate Skilling’s conviction, however, because errors of this “variety are subject to harmless-error analysis.” Id. Instead, it remanded the case for the court of appeals to determine whether the error was harmless. Id. at 414 & n.46. As in Skilling, it is undisputed that the scheme at issue in this case involved neither bribes nor kickbacks, and that the judge did not instruct the jury that honest-services fraud was so limited. Moreover, like Skilling’s jury, Baxter’s was instructed on alternative theories of guilt and returned a general verdict on Count 1 that may have rested on the legally invalid honest- services fraud theory. Accordingly, Baxter maintains that his conviction on Count 1 constituted constitutional error under Skilling.9 1. As we noted above, Baxter may not take an appeal on this issue unless we grant a certificate of appealability, and we may do so only if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional 9 Baxter contends that his convictions on the counts of substantive mail and wire fraud violations were also erroneous because they were tainted by the invalidity of the Count 1 conspiracy count. That is so, he says, because on those counts the trial court instructed the jury that it could convict him of foreseeable offenses committed by his coconspirators during the course of the conspiracy, pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). J.A. 1529. We do not reach this contention in light of the disposition we reach on his challenge to Count 1.  13 right.” Slack, 529 U.S. at 478.10 Baxter points to Skilling as demonstrating that his trial was tainted by constitutional error because of the possibility that the jury rested its verdict on the honest-services fraud theory of conspiracy. While the government contends that the court’s instruction on honest- services fraud amounted to harmless error because the flawed instruction did not have a “substantial and injurious effect or influence in determining the jury’s verdict,” Hedgepeth v. Pulido, 555 U.S. 57, 58 (2008) (internal quotation marks omitted), we conclude that jurists of reason would find debatable whether the submission of the invalid honest-services theory to the jury was harmless. We therefore grant the certificate of appealability. 2. Although we grant a certificate of appealability, there is another hurdle that Baxter must overcome before we can address the merits of his appeal. Baxter did not challenge his conviction on the honest-services fraud theory at trial or on direct appeal. As a consequence, he “procedurally defaulted the claim he now 10 Slack also held that, “when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. (emphasis added). Although there was a procedural default in this case, see infra Part III.2, the district court did not deny the § 2255 motion on procedural grounds, and we therefore consider only the first prong of the Slack test in deciding whether to grant a certificate of appealability.  14 presses on us.” Bousley v. United States, 523 U.S. 614, 621 (1998); see id. at 620-22.11 In Bousley, the Court explained that, “[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either [1] ‘cause’ and actual ‘prejudice,’ . . . or [2] that he is ‘actually innocent.’” Id. at 622 (citations omitted); see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931- 32 (2013). Baxter does not argue that there was a “cause” that excused the procedural default.12 Instead, he relies on the “actual innocence” exception, contending that his innocence of fraud on the honest services theory suffices to excuse his procedural default. 11 The government does not assert that Baxter also defaulted his claim on timeliness grounds, as it does with respect to his Adefehinti claim, see infra Part IV. Rather, it concedes that Baxter’s claim based on Skilling, which was not decided until June 2010, was timely. Gov’t Br. 4 & n.4. 12 The fact that the Supreme Court had not yet decided Skilling at the time of Baxter’s 2005 trial or 2008 direct appeal is insufficient to demonstrate “cause.” As the Court explained in Bousley, “[w]hile we have held that a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural default, . . . petitioner’s claim does not qualify as such [because the claim] . . . was most surely not a novel one.” 523 U.S. at 622. It was not novel, the Court said, because “the Federal Reporters were replete with cases involving” such challenges. Id. The same was true at the time of Baxter’s trial regarding the Skilling-like claim that he raises here. See, e.g., United States v. Rybicki, 354 F.3d 124, 144 (2d Cir. 2003) (en banc); United States v. Welch, 327 F.3d 1081, 1106 (10th Cir. 2003); United States v. Easton, 54 F. App’x 242, 243-44 (8th Cir. 2002); United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997); id. at 370 n.7 (collecting cases).  15 In response, the government again contends that the Skilling error was harmless. Gov’t Br. 22. This contention, however, puts the cart before the horse because we cannot address the merits of Baxter’s Skilling claim unless he overcomes his procedural default. We therefore begin (and end) with the question of Baxter’s actual innocence. “To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks omitted); see United States v. Caso, 723 F.3d 215, 218-19 (D.C. Cir. 2013). But convicted him of what? In all previous “actual innocence” cases except Bousley (which we discuss below), the Supreme Court has required the petitioner to demonstrate his actual innocence of the offense of which he was convicted.13 Although the Court has not yet considered the meaning of “actual innocence” in the context of a case in which a jury returned a general verdict when instructed on alternative theories of guilt, the rationale for the “actual innocence” exception to procedural default dictates that the defendant must show his 13 See, e.g., McQuiggin, 133 S. Ct. at 1936 (remanding for further proceedings to determine whether the petitioner’s challenge to his murder conviction met the actual innocence standard); Schlup v. Delo, 513 U.S. 298, 332 (1995) (same); House v. Bell, 547 U.S. 518, 555 (2006) (concluding that the petitioner made the requisite showing of actual innocence regarding his murder conviction to overcome procedural default); see also Sawyer v. Whitley, 505 U.S. 333, 340 (1992) (“A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the State has convicted the wrong person of the crime.”).  16 innocence of each of the alternative theories.14 As the court explained in McQuiggin, “[t]his rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” 133 S. Ct. at 1931 (quoting Herrera, 506 U.S. at 404). Or, as the Court put it in McCleskey v. Zant, the exception is designed to excuse procedural barriers to relief in only a “narrow class” of “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” 499 U.S. 467, 494 (1991). Unless Baxter can show that he is innocent of both money-and-property fraud and honest- services fraud, he cannot show that the Skilling error “probably has caused the conviction of one innocent of the crime” of 14 This is true at least when conviction on each of the other theories would lead to the same or a greater sentence than conviction on the invalid theory. See Caso, 723 F.3d at 223 (stating, in the context of evaluating an offense the government forwent because of a plea bargain, that “we should not require a person to spend 30 years in prison on an erroneous . . . conviction because he was guilty of [a less serious] offense that would carry a [lesser] sentence.”). In this case, there is no claim that conviction on a money-and-property theory would have led to a different (or lesser) sentence than conviction on an honest-services theory. See Baxter Presentence Investigation Report ¶¶ 46-47 (grouping the conspiracy count, the substantive counts that were its objects, and the money laundering counts together “because . . . the offense level is determined largely on the basis of the total amount of harm or loss”; noting that, in those circumstances, the “offense level applicable to the Group is the offense level corresponding to the aggregated quantity” and that the court is to apply “the offense guideline that produces the highest offense level”; and concluding that the money laundering conspiracy count produced the highest offense level).  17 which he was convicted: namely, conspiring to commit mail and wire fraud. Moreover, if we were to apply the exception whenever any one of several alternative theories of fraud were ruled invalid, it would no longer remain, as the Court contemplated, a “rare” exception “only . . . applied in the extraordinary case,” id. at 321. See McQuiggin, 133 S. Ct. at 1928 (noting that the “standard is ‘demanding’ and seldom met” (quoting House, 547 U.S. at 538)). Bousley considered what a defendant must show to prove his “actual innocence” when he pled guilty pursuant to a plea agreement, rather than -- as in the Court’s other cases -- when he was convicted after a trial. Kenneth Bousley pled guilty to “using” a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), a provision that makes it unlawful to use or carry a firearm during such a crime. After the Supreme Court clarified that “using” means “active employment,” see Bailey v. United States, 516 U.S. 137, 143 (1995), Bousley supported his 28 U.S.C. § 2255 motion with a claim that his guilty plea was involuntary because he had been misinformed about the elements of the § 924(c)(1) offense. The Court held that, although Bousley had procedurally defaulted his challenge by failing to raise it on direct appeal, a court could still review his claim in habeas if he could establish his actual innocence of the offense to which he pled guilty. Bousley, 523 U.S. at 622-23. Moreover, the Court stated that, “[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Id. at 624. In Bousley, the government argued that the petitioner should have to demonstrate that he was actually innocent of both “using” and “carrying” a firearm in violation of § 924(c)(1). The Court rejected the argument, holding that he need demonstrate only that he did not “use” the firearm as defined in  18 Bailey. 523 U.S. at 624. It did so, the Court said, because “petitioner's indictment charged him only with ‘using’ firearms in violation of § 924(c)(1) . . . [a]nd there [wa]s no record evidence that the Government elected not to charge petitioner with ‘carrying’ a firearm in exchange for his plea of guilty.” Id. In Baxter’s case, by contrast, the indictment charged alternative means of violating the charged statute: It charged him with conspiring to commit mail and wire fraud on both honest- services and money-and-property theories. J.A. 225-26. Thus, Bousley further supports the conclusion that Baxter must demonstrate his actual innocence of both objects of the conspiracy.15 Baxter maintains that he should not have to demonstrate his actual innocence of money-and-property fraud because we cannot be sure that his jury did not convict him on the invalid honest-services theory. Thus, he argues, the instruction had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Baxter Br. 37 (quoting Hedgpeth, 555 U.S. at 58). But this is the standard for harmful error on the merits, see Hedgpeth, 555 U.S. at 58, not for the actual innocence required to overcome a procedural bar. The type of “actual innocence” claim that Baxter presses is “‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’” Schlup, 513 U.S. at 315 (quoting Herrera, 506 15 In Caso, we suggested that the most likely rationale for Bousley’s rule -- that the showing of actual innocence must extend to more serious, and likely equally serious, charges forgone in exchange for a plea bargain -- is that the rule ensures “the defendant does not receive an unjustified ‘windfall.’” Caso, 723 F.3d at 223 (quoting Lewis v. Peterson, 329 F.3d 934, 936 (7th Cir. 2003)). This rationale applies a fortiori to alternative theories of an offense upon which a defendant was actually charged and convicted.  19 U.S. at 404). Without a demonstration of actual “innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Id. at 316. In sum, we conclude that, to establish “actual innocence” to overcome his procedural default, Baxter must demonstrate that “it is more likely than not that no reasonable juror would have convicted him” of the offense of which he was convicted, Bousley, 523 U.S. at 623 (internal quotation marks omitted). That offense was conspiracy to commit either honest-services fraud or money-or-property fraud, and Baxter must demonstrate his actual innocence of that offense. 3. Baxter cannot show that it is more likely than not that he was actually innocent of conspiracy to commit money-or- property fraud. Indeed, Baxter’s briefs say nothing in support of such a showing, other than to declare that he “was not stealing money and/or property from the WTU,” Baxter Br. 30, and that he “obtained nothing to which he was not entitled as Treasurer.” Reply Br. 21. The evidence is entirely to the contrary, as we laid out in Part I above, and as we said in our decision on Baxter’s direct appeal: For approximately seven years, Bullock, Hemphill, Baxter, and friends appropriated for their own benefit much of the money union members paid as dues. They embezzled these funds through several channels, including American Express (Amex) cards issued on WTU’s account, checks written for fraudulent purposes and for excessive amounts, and payments to a front company, Expressions Unlimited. All union checks required two signatures, those of Bullock and Baxter, the union’s president and treasurer  20 respectively. These two, therefore, had the key to the union treasury. Initially, Bullock and Baxter simply used their WTU Amex cards for personal expenses, and they spent quite a lot. But the thefts became more audacious when Hemphill was hired as Bullock's secretary and then also became the union’s bookkeeper. . . . Between 1995 and 2002, the conspirators stole millions of dollars from WTU and spent it on such things as a $50,000 silver set for Bullock’s house, a wedding reception for Hemphill’s son, $29,000 in dental work for her and her husband, $19,000 in Washington Wizards tickets for Baxter and Bullock, car insurance for him, and art for his house. Sometimes they simply wrote themselves checks from the union treasury. After WTU received an infusion of cash from the inflated assessment in 2002, Hemphill and Baxter wrote themselves more checks totaling $18,805 and $31,000, respectively. 514 F.3d at 1354. Baxter’s briefs neither say anything, nor point to any evidence, that would cause us to reach a different conclusion here than we did on direct appeal. In sum, although it is clear that Baxter was innocent of conspiring to commit honest-services fraud because the scheme did not involve bribery or kickbacks, it is equally clear that he cannot show he was actually innocent of conspiracy to commit money-or-property fraud. Accordingly, he cannot overcome the procedural default that bars us from considering his Skilling claim on the merits.  21 IV Finally, Baxter contends that his conviction for money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) was invalid in light of this court’s decision in United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007). Once again, Baxter requires a certificate of appealability to proceed and, once again, we grant it. See supra Part III.1. Baxter’s Adefehinti claim, while not explicit, appears to be that he was convicted under a legally invalid theory of money laundering because the alleged money laundering was not distinct from the crimes that produced the funds that were laundered. This would make his Adefehinti claim similar to his Skilling claim. See Skilling, 561 U.S. at 414 (“[C]onstitutional error occurs when a jury . . . returns a general verdict that may rest on a legally invalid theory.”). The underlying question of what legally constitutes money laundering is a difficult one, and we therefore conclude that “jurists of reason would find it debatable whether [Baxter’s] petition states a valid claim of the denial of a constitutional right,” Slack, 529 U.S. at 478. See Adefehinti, 510 F.3d at 322 (“It seems clear that . . . the necessary intent to conceal requires ‘something more’ than the mere transfer of unlawfully obtained funds, though that ‘“something more” is hard to articulate.’” (quoting United States v. Esterman, 324 F.3d 565, 572 (7th Cir. 2003))). But Baxter again faces another hurdle. Under AEDPA, Baxter had one year from “the date on which [his] judgment of conviction bec[ame] final” to file his § 2255 motion. 28 U.S.C. § 2255(f)(1). Baxter agrees that his conviction became final on November 10, 2008, the date the Supreme Court denied his petition for a writ of certiorari. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (agreeing with “the seven other circuits that have reached th[e]  22 issue” that a conviction becomes final when a petition for certiorari is denied, not when a subsequent petition for rehearing is denied). But he did not file the motion until more than a year after that date, not until January 11, 2010, thus rendering his filing untimely. Although Baxter acknowledges that his motion was untimely, he maintains that he is entitled to equitable tolling. A federal habeas petitioner “is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” McQuiggin, 133 S. Ct. at 1931 (quoting, inter alia, Holland v. Florida, 560 U.S. 631, 649 (2010)) (internal quotation marks omitted); see United States v. McDade, 699 F.3d 499, 503 (D.C. Cir. 2012). The only circumstance that Baxter proffers is that he “relied on orders entered by the district judge” that enlarged the time for filing until July 15, 2010. Baxter Br. 27-28. But the district court did not enter that order until January 14, 2010, two months after the filing deadline had passed and three days after Baxter filed his motion. See Order on Motion for Leave to File, United States v. Baxter, No. 03-CR-516 (D.D.C. Jan. 14, 2010). Needless to say, Baxter could not have let the deadline pass in reliance upon an order that the court had not yet entered. Although he has procedurally defaulted, that is, yet again, not the end of the matter. In McQuiggin v. Perkins, the Supreme Court held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations” contained in AEDPA. 133 S. Ct. at 1928. Baxter maintains that he is, in fact, actually innocent of “money laundering” under 18 U.S.C. § 1956. As we said above, to demonstrate actual innocence, “the petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no  23 reasonable juror would have convicted him” of that offense, Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327-28); see Caso, 723 F.3d at 218-19. This, the Supreme Court “stress[ed]” in McQuiggin, is a “demanding” standard. 133 S. Ct. at 1936. The provision of the money laundering statute at issue in Baxter’s case applies to: Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts . . . such a financial transaction which in fact involves the proceeds of specified unlawful activity-- . . . (B) knowing that the transaction is designed in whole or in part-- (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity. 18 U.S.C. § 1956(a)(1)(B)(i). Baxter’s claim of actual innocence rests on our statement in Adefehinti that the “‘transaction or transactions that created the criminally derived proceeds must be distinct from the money laundering transaction.’” Baxter Br. 41 (quoting Adefehinti, 510 F.3d at 324).16 In other words, to launder money, a defendant must have money to launder. Or, as the statute says, a money laundering 16 See also Adefehinti, 510 F.3d at 322 (“The money laundering statute . . . has no application to the transparent division or deposit of [illegally obtained] proceeds.”); id. at 324 (“Having carried out a fraud of which concealment was an integral part, defendants cannot be charged with the same concealment a second time, as if it were the sort of independent manipulation of the proceeds required for money laundering.”).  24 transaction must “in fact involve[] the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1). Because he seeks to invoke the actual innocence exception to the statute of limitations in 28 U.S.C. § 2255(f), Baxter bears the burden to show actual, “factual innocence.” Bousley, 523 U.S. at 623-24. But he has made no serious attempt to pinpoint what a reasonable juror would -- or would not -- consider proceeds and why subsequent transactions involving those proceeds could not manifest an intent “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds,” as required by § 1956(a)(1)(B)(i). The treatment of the subject in Baxter’s opening brief covers less than a page. It merely recites the elements of money laundering and then claims that “no matter how the facts are twisted, the transactions that created the criminally derived proceeds are not separate and distinct from the money laundering transaction.” Baxter Br. 41. Because he does not revisit the claim in his reply brief at all, this one sentence constitutes his entire argument on the subject. Without more, we cannot conclude that it is more likely than not that no reasonable juror would find an intent to conceal based on transactions that took place after proceeds existed. For example, Baxter signed WTU checks that initially went to a front company, Expressions Unlimited, and to a frontman, LeRoy Holmes. Hemphill and Bullock then instructed the fronts to transfer the proceeds to Bullock’s personal account before she paid her WTU credit card bills out of her supposedly personal funds. See supra Part I. A reasonable juror could conclude that those transactions involved unlawful proceeds and that those transfers by the fronts were designed to conceal the money’s illicit origins. Such a juror might infer that the conspirators feared that direct payment of such bills out of the fronts’ accounts might stir the curiosity of a vigilant WTU employee or external auditor reviewing credit card statements, more so than  25 would portraying the payment as merely that of an employee paying her personal expenses out of her personal account. Baxter’s terse briefing of the issue fails to explain why such an inference by a juror would be unreasonable, and we cannot independently verify its reasonableness because Baxter has presented such a meager and non-analytical account of the evidence. Accordingly, we cannot say it is more likely than not that no reasonable juror would have found the requisite concealment in transactions occurring after proceeds existed. Indeed, we note that, on direct appeal, Baxter and Hemphill raised a nearly identical argument -- that they could not be convicted of money laundering because the government did not prove that the transactions creating the proceeds were distinct from the transactions laundering them. See Baxter Br. 30-32, Hemphill Br. 52-55, Hemphill, 514 F.3d 1350 (D.C. Cir. 2008) (No. 06- 3089).17 In response, we concluded, tersely, that there was “abundant proof of the acts of concealment.” Hemphill, 514 F.3d at 1362.18 In effect, then, we have already concluded that 17 See also Baxter Hemphill Br. 32 (“In short, the Government’s theory at trial impermissibly allowed the jury to commingle the initial transactions that formed the basis of the unlawful activity with the transactions that ‘washed’ those illegal proceeds ‘clean’” (quoting United States v. Seward, 272 F.3d 831, 836 (7th Cir. 2001))); Hemphill Hemphill Br. 55 (“[I]n effect, the Government claimed that it could prove embezzlement and have it punished as money laundering.”). Although Baxter’s Hemphill brief did not cite Adefehinti (which issued after oral argument in Hemphill but before the opinion was released), it did cite United States v. Seward, 272 F.3d at 836, a case upon which Adefehinti relied for the same proposition. See Adefehinti, 510 F.3d at 324. 18 Although this portion of the Hemphill opinion was addressed to Hemphill’s money laundering challenge, Baxter expressly joined that  26 a reasonable juror could have found Baxter guilty of money laundering. Baxter’s briefing of the issue on this appeal provides no support -- and no reference at all to relevant evidence -- for the opposite proposition. As a consequence, he has failed to shoulder his burden to show the actual innocence required to overcome his untimely filing. V For the foregoing reasons, we conclude that Baxter is not entitled to relief. The judgment of the district court is Affirmed. portion of her brief. See Baxter Hemphill Br. 16 n.1. 

United States Court of Appeals for the Federal Circuit __________________________ NOVO NORDISK A/S AND NOVO NORDISK, INC., Plaintiffs-Appellants, v. CARACO PHARMACEUTICAL LABORATORIES, LTD., AND SUN PHARMACEUTICAL INDUSTRIES, LTD., Defendants-Appellees. __________________________ 2010-1001 __________________________ Appeal from the United States District Court for the Eastern District of Michigan in Case No. 2:05-CV-40188, Judge Avern Cohn. __________________________ ON MOTION TO AFFIRM INJUNCTION OF THE DISTRICT COURT __________________________ Before RADER, Chief Judge, CLEVENGER and DYK Circuit Judges. Order for the court filed by Chief Judge RADER. Opinion concurring in part and dissenting in part filed by Circuit Judge DYK. RADER, Chief Judge. NOVO NORDISK v. CARACO PHARMA 2 Defendants-Appellees Caraco Pharmaceutical Labora- tories, Ltd. and Sun Pharmaceutical Industries, Ltd. (collectively, “Caraco”) move for summary affirmance of the injunction of the United States District Court for the Eastern District of Michigan pursuant to the Supreme Court decision in Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670 (2012), which reversed this court’s judgment and remanded for further proceedings. Plaintiffs-Appellants Novo Nordisk A/S and Novo Nordisk, Inc. (collectively, “Novo”) oppose. Caraco replies. For the reasons set forth below, this court af- firms-in-part and modifies-in-part the District Court’s injunction. Novo argues that two issues remain to be resolved by this court on remand: (1) whether Novo’s current use code is “correct”; and (2) whether the district court erred in issuing a mandatory injunction requiring Novo to rein- state its prior use code. This court finds, in light of the admitted facts in this case, that the Supreme Court decision forecloses any argument that Novo’s use code is “correct.” The Court held that the counterclaim provided by 21 U.S.C. § 355(j)(5)(C)(ii)(I) can be used “to force correction of a use code that inaccurately describes the brand’s patent as covering a particular method of using the drug in ques- tion.” Caraco, 132 S. Ct. at 1675. The Food and Drug Administration (“FDA”) has found Novo’s current use code covers all three FDA-approved methods of using repag- linide. Id. at 1679; see Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., 601 F.3d 1359, 1363 (Fed. Cir. 2010). It is undisputed that Novo’s U.S. Patent No. 6,677,358 (“’358 patent”) claims only one of those three approved methods of use. Caraco, 132 S. Ct. at 1678-79; Novo, 601 3 NOVO NORDISK v. CARACO PHARMA F.3d at 1364. Thus, the current use code inaccurately describes Novo’s patent as covering two FDA-approved methods of using repaglinide that the ’358 patent admit- tedly does not cover. Caraco, 132 S. Ct. at 1688 (holding “Caraco may bring a counterclaim seeking to ‘correct’ Novo's use code ‘on the ground that’ the ’358 patent ‘does not claim . . . an approved method of using the drug’- indeed, does not claim two”) (emphasis added) (quoting 21 U.S.C. § 355(j)(5)(C)(ii)(I)). This court reviews a district court's grant of a perma- nent injunction and the scope of that injunction for abuse of discretion. Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed. Cir. 1993). The counterclaim statute provides that the remedy is “an order requiring the holder to correct or delete the patent information submitted by the holder” to the FDA. 21 U.S.C. § 355(j)(5)(C)(ii)(I). Dam- ages are prohibited. Id. § 355(j)(5)(C)(ii)(III). The District Court entered an injunction on Septem- ber 25, 2009, which provided: Novo Nordisk is hereby directed by mandatory in- junction under 21 U.S.C. § 355(j)(5)(C)(ii)(1)(bb) to correct within twenty (20) days from the date of this Order and Injunction its inaccurate descrip- tion of the ’358 patent by submitting to FDA an amended form FDA 3542 that reinstates its former U-546 listing for Prandin and describes claim 4 of the ’358 patent in section 4.2b as covering the "use of repaglinide in combination with metformin to lower blood glucose." Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., No. 2:05-cv-40188, 2009 U.S. Dist. LEXIS 88551 (E.D. Mich., Sept. 25, 2009) (emphasis added). NOVO NORDISK v. CARACO PHARMA 4 The relevant FDA regulations make the branded company responsible for drafting appropriate use codes and submitting them to the FDA. See 21 C.F.R. § 314.53(c)(2)(ii)(P) (describing information to be submit- ted on FDA Form 3542 for each method-of-use patent). The company must certify under penalty of perjury “that this is an accurate and complete submission of patent information.” FDA Form 3542, Part 6.1. In this context, an appropriate order granting relief under 21 U.S.C. § 355(j)(5)(C)(ii)(I) will give the branded company the opportunity to draft its own corrected use code. The use code offered by the branded company must not “sweep more broadly than the patent.” Caraco, 132 S. Ct. at 1683 n.7. Rather, the use code must accurately describe “the patented method of use”—i.e., the approved method of use claimed in the patent. 21 C.F.R. § 314.53(c)(2)(ii)(P)(3) (emphasis added). Here, the ’358 patent claims “[a] method for treating non-insulin de- pendent diabetes mellitus (NIDDM) comprising adminis- tering to a patient in need of such treatment repaglinide in combination with metformin.” ’358 patent, claim 4. An appropriate use code therefore must be limited to use of “repaglinide in combination with metformin” to treat NIDDM. This court holds that while the District Court was correct in issuing an injunction requiring correction of Novo’s use code listing for the ’358 patent, it abused its discretion in dictating the precise terms of the use code to be submitted on FDA Form 3542. To be clear, it is appro- priate for district courts to construe the scope of the patent claims and provide clear limits on the appropriate scope of the corresponding use code. Within those limits, the branded company is given the opportunity to propose the specific language of the use code. Therefore, this court modifies the injunction as follows to permit Novo to 5 NOVO NORDISK v. CARACO PHARMA draft an appropriate use code in light of the guidance above. Contrary to the dissent’s concerns, this holding does not give Novo unbounded discretion to propose a new overbroad use code. If the revised code offered is over- broad, the district court has the power to correct the error. Therefore, IT IS ORDERED THAT: Novo Nordisk is hereby directed by manda- tory injunction under 21 U.S.C. § 355(j)(5)(C)(ii)(1)(bb) to correct within twenty (20) days from the date of this Order and Injunction its inaccurate description of the ’358 patent by submitting to FDA an amended form FDA 3542 for Prandin that accurately describes the scope of claim 4 of the ’358 patent in section 4.2b. The descrip- tion shall be clearly limited to use of repag- linide in combination with metformin to treat non-insulin dependent diabetes melli- tus. FOR THE COURT July 30, 2012 /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Josh A. Krevitt, Esq. James F. Hurst. Esq.  United States Court of Appeals for the Federal Circuit __________________________ NOVO NORDISK A/S AND NOVO NORDISK, INC., Plaintiffs-Appellants, v. CARACO PHARMACEUTICAL LABORATORIES, LTD. AND SUN PHARMACEUTICAL INDUSTRIES, LTD., Defendants-Appellees. __________________________ 2010-1001 __________________________ Appeal from the United States District Court for the Eastern District of Michigan in Case No. 2:05-CV-40188, Judge Avern Cohn. __________________________ ON MOTION TO AFFIRM INJUNCTION OF THE DISTRICT COURT __________________________ DYK, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that under the Supreme Court’s decision in Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670 (2012), Novo’s use code is not correct and Caraco is entitled to an injunc- tion requiring Novo to correct its use code. I respectfully NOVO NORDISK v. CARACO PHARMA 2 dissent to the extent that the majority suggests the dis- trict court cannot order Caraco to adopt a compliant use code but only enjoin the use of an improper use code. As in the original decision, such an approach would read into the statute limitations that are not there. The counterclaim provision entitles Caraco to the remedy of “an order requiring the [NDA] holder [i.e., Novo] to correct . . . the patent information [i.e., the use code].” 21 U.S.C. § 355(j)(5)(C)(ii)(I). On its face this provision appears to allow the district court to require a particular use code as a corrective measure. See Webster’s Third New International Dictionary 511 (2002) (defining correct, in the year before the counterclaim provision’s enactment, as “to make or set right,” “remove the faults or errors from,” or “alter or adjust so as to bring to some standard or required condition”). Traditionally, district courts have broad inherent authority to shape remedial injunctive orders. See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (“In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow.”); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (noting that district courts have inherent equitable authority to “mould each decree to the necessi- ties of the particular case”). In particular, it is estab- lished that courts have authority to require specific affirmative acts through mandatory injunctions. See California v. Am. Stores Co., 495 U.S. 271, 280-83 (1990) (holding that a statute entitling a party to “have injunc- tive relief” entitles parties to both prohibitory and manda- tory injunctions under the “traditional principles of equity”); Morrison v. Work, 266 U.S. 481, 490 (1925) (stating that a mandatory injunction may be granted “in the exercise of a sound judicial discretion”); 1 Dan B. Dobbs, Dobbs Law of Remedies § 2.9 (2d ed. 1993). 3 NOVO NORDISK v. CARACO PHARMA “[T]he comprehensiveness of this equitable jurisdic- tion is not to be denied or limited in the absence of a clear and valid legislative command.” Weinberger v. Romero- Barcelo, 456 U.S. 305, 313 (1982) (emphasis added) (quot- ing Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)); see also United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001). There is no “clear and valid legislative command” constraining the district court’s broad discretionary power over the scope of the order requiring Novo to correct its use code. See 21 U.S.C. § 355(j)(5)(C)(ii)(I). The majority may suggest that the district court’s injunction was somehow improper because FDA regulations make the branded company responsible for initially proposing a use code, 1 but those regulations do not constrain the court’s authority under the counter- claim provision to order a correction, and do not purport to do so. No statute or regulation says that a use code cannot be corrected by a court under the counterclaim provision. The use code information is simply the descrip- tion of the scope of the patent. Courts routinely construe the scope of patent protection, so there is hardly anything unusual in the court’s doing exactly the same thing in the context of the counterclaim provision. Analogously, when the inventorship of a patent is challenged, 35 U.S.C. § 256 allows a court to “order cor- rection of the patent.” As with the FDA filings, the patent applicant is required to list the inventors in the first instance and to file an oath or declaration indicating that 1 Within 30 days of approval of a new drug, “the applicant shall submit FDA Form 3542 for each patent that claims the drug substance (active ingredient), drug product (formulation and composition), or approved method of use.” 21 C.F.R. § 314.53(c)(2)(ii). The required information on Form 3542 includes “[t]he description of the patented method of use” for each method-of-use pat- ent. Id. § 314.52(c)(2)(ii)(P)(3). NOVO NORDISK v. CARACO PHARMA 4 the inventor list is correct. 37 C.F.R. § 1.63. We have never limited district courts’ authority under this provi- sion to ordering only general correction of an incorrect list of inventors, rather than directing who should be added or removed as a co-inventor. See, e.g., Bd. of Educ. ex rel. Bd. of Trs. of Fla. State Univ. v. Am. Bioscience, Inc., 333 F.3d 1330, 1342 (Fed. Cir. 2003) (“[W]e conclude that Soon-Shiong and Desai are coinventors with Tao of the compounds claimed in the ’653 patent, but that Holton, Nadizadeh, and Yang are not.”). In its opinion in this case, the Supreme Court noted that “[a]n overbroad use code” like Novo’s “throws a wrench into the FDA’s ability to approve generic drugs,” and that the counterclaim provision was enacted to rem- edy this problem. Caraco, 132 S. Ct. at 1684. Novo should not be permitted to throw in a new wrench each time one is removed by offering new overbroad use codes and forcing Caraco to seek correction of each one. Such an approach could potentially hamstring the district court by denying it the authority to state what the correct code is. This is a particularly easy case because the district court merely ordered the reinstatement of the use code originally proposed by Novo. 

January 8, 1993 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 92-2226 THOMAS D. HITE, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, ET AL., Respondents. ON MOTION FOR STAY OF AN ORDER OF THE NATIONAL TRANSPORTATION SAFETY BOARD, ET AL. Before Torruella, Cyr and Stahl, Circuit Judges. Lawrence B. Smith on Motion for Stay, for petitioner. Joseph A. Conte on Response in Opposition to Petitioner's Motion for Stay, for respondents. Per Curiam. Petitioner moves for a stay, pending review, of an order issued by the National Transportation Safety Board ["NTSB"] affirming revocation of his air transport pilot's certificate. We conclude that petitioner has not shown sufficient reason for such extraordinary relief, and so we deny the stay. Petitioner's certificate was initially revoked by the Federal Aviation Administration ["the Administrator"] in June, 1989, following an incident in which an aircraft he was piloting, carrying a number of high school athletes and their coach, experienced severe control difficulty and was forced to return to its take-off point in Hyannis. The Administrator attributed the incident to petitioner's misfeasance and recklessness in operating an unairworthy aircraft in violation of a number of regulations. The Administrator claimed that the plane was improperly loaded beyond its weight and center of gravity limits when, shortly before take-off, the plane's tail fell back and hit the ground sharply, causing damage to the tail and controls. Allegedly petitioner was present when this occurred, but he then took the plane into the air without testing the controls or correcting its out-of-balance condition. Petitioner denied the charges. He appealed to the NTSB, thus gaining an automatic stay of the revocation order under 49 U.S.C. app. 1429(a). An evidentiary hearing was held before an administrative law judge ["ALJ"], who credited the passengers' testimony over petitioner's version, finding sufficient proof for all but one of the violations charged. 1 Petitioner then appealed to the full Board, which reviewed the record and affirmed in an opinion issued August 10, 1992. The Board ordered revocation of petitioner's certificate to begin within 30 days from the date of service of its order. The NTSB also denied petitioner's subsequent motion for a further stay of the revocation order pending this appeal, in accordance with the agency's long-standing practice in revocation cases. As explained by the NTSB, revocation, unlike suspension, "is based on the conclusion that the airman's conduct is sufficiently egregious as to demonstrate a lack of the qualifications required of a certificate holder." Administrator v. Hite, N.T.S.B. Order EA-3701, (Oct. 23, 1992) (quoting Administrator v. Balestra, N.T.S.B. Order EA-3065, 1990 NTSB LEXIS 3 (Jan. 9, 1990)). Denial of a stay in such cases is premised on the belief that "aviation safety and the public interest would be compromised by permitting an individual whose conduct demonstrates that he lacks the necessary care, judgment and responsibility to continue, pending judicial review, to exercise the privileges of a certificate he has been found unfit to hold." Administrator v. Haney, N.T.S.B. Order EA-3357, 1991 1. On this motion we have not been provided with a copy of the hearing transcript nor the ALJ's opinion, and so we rely on the description of the record in the Board's affirming decision. The one charge which the ALJ did not find to be supported by the evidence was that petitioner had not promptly reported the incident. -3- NTSB LEXIS 117 (July 16, 1991); see also Administrator v. Palmersheim, N.T.S.B. Order EA-3421, 1991 NTSB 204 (Oct. 22, 1991); Administrator v. Damsky, 3 N.T.S.B. 557 (1977). Petitioner urges that (1) under the Federal Aviation Act (the "Act") he is entitled to an automatic stay of the NTSB order during the pendency of his appeal in this court, and (2) in the alternative, this court should exercise its equitable powers under Fed. R. App. P. 18, to grant a stay. (1) Argument for an Automatic Stay Under 609 of the Act, 49 U.S.C. app. 1429(a), when the Administrator issues an order amending, modifying, suspending or revoking a certificate,2 the certificate holder is entitled to notice, an opportunity to answer, be heard, and a right to review by the NTSB.3 During these proceedings, there is an automatic stay of the effectiveness of the Administrator's order. An exception to the automatic stay is allowed only if the Administrator advises the NTSB that an "emergency" exists. In that event the Administrator's order is given immediate effect, and the NTSB's review is expedited, requiring the agency to finally dispose of the case within sixty days. 2. Section 1429 is directed to the Secretary of Transportation, but under 49 U.S.C. 106(g), all duties and powers of the Secretary relating to aviation safety are carried out by the FAA Administrator. 3. The NTSB treats the initial FAA order much as a civil complaint. After the preliminaries, there is an evidentiary hearing before an ALJ, and a right to review by the full Board. -4- Petitioner perceives in the design of 1429(a) a unique procedure extending to appeals to this court. He argues that the stay of the Administrator's order, automatically imposed in most cases pending an evidentiary hearing and review by the NTSB, also automatically stays any final NTSB order appealed to this court. Petitioner gleans support for this reading of the Act in the lack of any direct statutory statement as to how the automatic stay terminates, combined with the last sentence of 1429(a), which allows for judicial review of NTSB orders, "under the provisions of 1486."4 According to petitioner, this means that at the agency level, 1429(a) vests "exclusive power" to "deny" any stay of the NTSB's final orders in the Administrator, who makes the decision by declaring an "emergency" before the NTSB hearing. Petitioner has pointed to no authority for this interpretation, nor any direct evidence of Congressional purpose. He simply infers from the absence of any explicit statement to the contrary that the NTSB has no power to effectuate its own orders, even to protect the public interest and safety, during oft-times protracted appeals. 4. Title 49 U.S.C. app. 1486 shifts to this court exclusive power over the orders of the NTSB and Administrator once an appeal is filed. After notice to the agency, "interlocutory relief may be granted by a stay" or other appropriate mandate. The procedure envisioned by this section also seems inconsistent with the assumptions underlying petitioner's argument about the meaning of 1429(a). -5- We reject petitioner's counter-intuitive interpretation. We read the statute, instead, as embracing traditional and common understandings. By imposing an automatic stay during fact- finding, the statute preserves the normal balance between the individual's due process rights and the public interest in most cases, subject to the Administrator's "emergency" declaration and an expedited hearing in exceptional circumstances. Cf. Gallagher v. NTSB, 953 F.2d 1214, 1224-25 (10th Cir. 1992) ( 1429 creates an extraordinary class of emergency order petitioners who lose the usual procedural rights during the 60-day period in order to protect the public safety). We have no reason to believe that Congress intended to denude the NTSB of the ability to protect the public interest in the larger number of cases, once the full panoply of procedural rights had been accorded. Other courts, too, have assumed the NTSB's role in protecting the public. Cf. Grant v. NTSB, 959 F.2d 1483, 1485 (9th Cir. 1992) (since predominant purpose of 1429 is to promote air safety, in emergency cases ways must be sought by NTSB to vindicate individual's right to fair decisional process without impairing statute's mandate). In accordance with usual practice, the NTSB's final order of revocation, following a fact-finding hearing and administrative review is fully effective on appeal unless stayed by that agency or this court. See Administrative Procedure Act, 5 U.S.C. 705 (agency has authority to postpone effective date -6- of its own order when "justice so requires"); Fed. R. App. P. 18 (application for a stay of agency action must be made in first instance to agency). Petitioner's related argument that he is entitled to a stay because the NTSB did not publish a rule in the Code of Federal Regulations stating the agency's authority to stay its own orders, is also specious. Publication in the Federal Register is not required where the practice, as here, is traditional, longstanding, and follows the course of events clearly contemplated in the Administrative Procedure Act and the Federal Aviation Act. See Rochna v. NTSB, 929 F.2d 13, 15-16 (1st Cir.), cert. denied, 112 S. Ct. 305 (1991). Petitioner had actual notice of the policy and full opportunity to take advantage of it, which he in fact did, by moving for a stay before the NTSB. Thus there is no plausible due process claim. Rochna, 929 F.2d at 16. 5 (2) Argument for a Stay under Fed. R. App. P. 18 Petitioner also fails to make an adequate showing for the extraordinary remedy of a stay pending appeal under Fed. R. App. P. 18.6 Motions for a stay of an agency order are governed by 5. This is the same argument we addressed in Rochna. Petitioner's counsel here also represented the petitioner in that case, and in other cases cited therein, where the courts rejected the same argument in identical fashion. 6. Petitioner does not urge upon us the authority of 49 U.S.C. app. 1486, although it expressly provides parallel authority to this court to stay NTSB orders for "good cause shown". As the factors considered would be the same as under Rule 18, in this -7- the same considerations as motions for an injunction pendente lite. 9 James W. Moore, et. al., Moore's Federal Practice, 218.02[2] at 18-5 (2nd Ed. 1992); Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985); see also Conservation Law Found., Inc. v. Andrus, 617 F.2d 296 (1st Cir. 1979) (preliminary injunction); Providence Journal v. FBI, 595 F.2d 889 (1st Cir. 1979) (stay of district court order). It is the moving party's burden to demonstrate the need for a stay in light of (1) the likelihood that the movant will prevail on the merits of the appeal; (2) the likelihood he will be irreparably injured absent a stay; (3) the possibility of harm to other persons interested in the proceedings; and (4) the public interest. Cuomo, 772 F.2d at 974; Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Eastern Air Lines, Inc., 261 F.2d at 830. The relative weight assigned to each factor necessarily varies from case to case. Cuomo, 772 F.2d at 974. The public's interest in air safety is of obvious and paramount importance in this case. Petitioner ingenuously urges that safety is not in issue, however, because the Administrator's case there appears to be no practical reason to prefer one over the other. See Eastern Air Lines, Inc. v. Civil Aeronautics Bd., 261 F.2d 830 (2d Cir. 1958) (citing factors, denying stay under predecessor version of Act,); Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd., 215 F.2d 122 (2d Cir. 1954) (denying interlocutory stay of implementation of special air regulation). -8- choice not to use his emergency power to suspend petitioner's certificate in advance of the NTSB review "certified" that there was no risk to the public. This reasoning exaggerates and distorts the meaning of the Administrator's early processing decision. Especially in a case where the facts are in dispute, if any relevant inference can later be drawn from the Administrator's processing choice, it is only that the Administrator chose not to implement his order until the facts had been fully aired before the NTSB. Aside from the public safety issue, petitioner's claims under the remaining factors are not convincing. As to irreparable harm to petitioner and harm to others, petitioner relies solely upon his counsel's affidavit, which advises that petitioner's only source of support is a "one-man, one-aircraft on-demand air-taxi service." This service, counsel states, was put together by a "small group of businessmen, who require air- transportation from time to time, with the specific purpose of having [petitioner] as their pilot." Even giving full credit to this recitation as an accurate depiction of the facts, nevertheless we do not understand how denial of a stay will cause petitioner or his unnamed business associates "irreparable" injury. "The key word in this consideration is irreparable. Mere injuries, however substantial ... are not enough." Wisconsin Gas Co. v. Federal Energy Regulatory Comm'n, 758 F.2d 669 (D.C. Cir. -9- 1985) (quoting Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). We do not doubt that economic dislocation may accompany revocation of petitioner's certificate, perhaps necessitating the hiring of a substitute pilot. And we can imagine circumstances in which some of the loss will not be readily compensable. But this is not the type of injury which would justify the extraordinary appellate intervention requested here, especially in the absence of any showing of a high probability of later success on the merits of this appeal. Compare Providence Journal, 595 F.2d at 889 (where failure to stay district court's disclosure order would so utterly destroy the status quo as to render any later appeal moot, but grant of stay would cause relatively slight harm, appellants need not show an "absolute probability of success"). Petitioner presents here only one of the legal arguments which he says will lead to sucess on the merits of his appeal. He says that revocation of his certificate was improper because it was imposed as a "punishment," and not for "lack of qualification" to hold the certificate. "Lack of qualification," is the standard which the Board uses in determining when revocation is appropriate to insure "safety in air commerce ... and the public interest." Proud v. Civil Aeronautics Bd., 357 F.2d 221, 224 (7th Cir. 1966). -10- As we understand it on this abbreviated review, this argument too, may misapprehend the relative roles of the Administrator and NTSB and the means each uses to effect the regulatory purpose.7 But whatever the legal merit, the scant record before us does not support petitioner's statement of the issue. Instead, the initial FAA order recites that because of the listed safety violations the Administrator "has determined that safety in air commerce ... and the public interest require the revocation." And the NTSB expressly held that denial of the requested stay was predicated on the conclusion that petitioner's conduct demonstrated "a lack of the qualifications required of a certificate holder." 7. The agencies are generally accorded broad discretion to choose the proper remedy to effect the regulatory purpose, unconstrained by the semantical quibbling which petitioner's argument may suggest. See, e.g., Hill v. NTSB, 886 F.2d 1275, 1281 (10th Cir. 1989) (the Act gives the FAA "broad discretion to choose between ... section 609 certificate action and section 901 civil money damages," quoting from Go Leasing Inc. v. NTSB, 800 F.2d 1514 (9th Cir. 1986)); Twomey v. NTSB, 821 F.2d 63 (1st Cir. 1987) (FAA's emergency order revoking pilot's certificate for material misstatement of fact was not an abuse of discretion, since FAA was entitled to conclude that there was a connection between the pilot's falsehood and danger to public safety); Proud, 357 F.2d at 224 (agency is given broad discretion to choose among certificate remedies); Pangburn v. Civil Aeronautics Bd., 311 F.2d 349, 354-55 (1st Cir. 1962) (agency's consistent exercise of its broad discretionary authority to order certificate suspensions as a "sanction" under 1938 Act need not be changed because of language in 1958 Act providing for certificate suspension or revocation if required by "safety" and "public interest," since deterrent suspensions also serve the stated purposes). -11- In sum, petitioner has not demonstrated sufficient grounds for a stay of the NTSB order pending appeal, and so his motion is denied. -12-

38 F.3d 568 Helmsv.CMS-Trigem Computer*d NO. 94-40373 United States Court of Appeals,Fifth Circuit. Oct 04, 1994 1 Appeal From: E.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2 d Local Rule 47.6 case

557 S.W.2d 295 (1977) Clifford Allen McCARTY, Appellant, v. The STATE of Texas, Appellee. No. 30246. Court of Criminal Appeals of Texas. November 2, 1977. *296 Frank W. Sullivan, III, Fort Worth, for appellant. Tim Curry, Dist. Atty., Marvin Collins and Howard M. Fender, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., Austin, for the State. OPINION GREEN, Commissioner. In a trial before a jury in 1958 appellant was convicted of murder with malice. Punishment was assessed by the jury at life. On appeal appellant was not represented by counsel, and his conviction was affirmed in McCarty v. State, 167 Tex.Cr.R. 164, 319 S.W.2d 338. It being uncontested that appellant was indigent at the time of his original appeal, we granted appellant this out-of-time appeal on February 9, 1977 in Cause No. 53,725. Our examination of the record reflects that the factual summary set out in our original opinion in McCarty v. State, supra, is accurate and is as follows: "The State's testimony shows that on the night of the homicide the deceased was playing in a band at a night club on the Jacksboro highway near the City of Fort Worth. At the conclusion of the dancing around midnight, the deceased and Jack McCarty, a brother of the appellant, engaged in a fist fight on the dance floor. Witnesses called by the State testified that they saw no knife or anything in the hands of either combatant. While the fight was in progress appellant intervened and first cut the deceased in the back with a knife. Several spectators tried to stop the fight but were prevented when appellant would turn on them with the knife. During the fight appellant said he `was going to cut the deceased's privates' and began cutting him around the thighs. After the fighting ceased *297 and the deceased was on the floor, appellant, as he was leaving the scene reached down and again cut the deceased over the eye. "The deceased was carried from the scene to a hospital with a stab wound of the right chest, two stab wounds in the left thigh and one on the forehead and pronounced dead at 1:15 A.M. It was shown that the cause of death of the deceased was the knife wound in the chest. "As a witness in his own behalf appellant admitted cutting the deceased on the back but denied cutting him in the chest or above the eye. Appellant testified that he entered the fight to aid his brother when his brother hollered `Cliff get him off of me—he's cutting me'; that he saw a knife in the deceased's hand, was scared and cut him to get him off of his brother but did not intend to kill him." In appellant's first two grounds of error he contends the evidence is insufficient to support the conviction because there is a fatal variance between the allegations in the indictment and the proof adduced at trial and further contends he was arraigned under an improper indictment. The record contains two indictments, both bearing identical cause numbers and both filed with the trial court on the same date. The indictment contained in the original transcript filed with this Court on September 13, 1958, omitting the formal parts, alleges that appellant "did then and there unlawfully, voluntarily and with malice aforethought kill Jimmy Garner by slashing, stabbing and cutting him with a gun..." (Emphasis added.) The other indictment filed with this Court by supplemental transcript on September 19, 1958, tracks the language of the indictment contained in the original transcript but substitutes the word "knife" for the word "gun." Appellant asserts that the supplemental transcript containing the correct indictment is not properly before this Court for review and therefore a reversal is mandated because the indictment in the original transcript alleges the murder weapon to be a gun while the proof shows the same to be a knife. Art. 828, Vernon's Annotated Code of Criminal Procedure in effect at the time of appellant's original appeal,[1] provides: "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken. In cases where, after notice of appeal has been given, the record or any portion thereof, is lost or destroyed, it may be substituted in the lower court, if said court be then in session; and, when so substituted, the transcript may be prepared and sent up as in other cases. In case the court from which the appeal was taken be not then in session, the appellate court shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken; and the said record shall be substituted at said term as in other cases." Appellant contends that since the indictment contained in the original transcript was neither "lost or destroyed" the trial court had no authority to include any indictment in a supplemental transcript. We do not agree. As we stated in Morales v. State, 171 Tex.Cr.R. 124, 345 S.W.2d 537, in 1961, a case decided while Art. 828, supra, was in effect: "The only means by which a transcript may be completed is by supplemental transcript duly prepared and forwarded by the clerk of the trial court direct to the clerk of this Court. 5 Tex.Jur.2d 515, Sec. 316; Huskey v. State, 157 Tex.Cr.R. 247, 248 S.W.2d 131." The indictment completing the transcript was duly prepared and forwarded in *298 a supplemental transcript by the trial court clerk direct to the clerk of this court and is properly before us for review. The court's charge reflects that appellant was charged under the proper indictment contained in the supplemental transcript. The charge provided in pertinent part: "... if you find and believe from the evidence, beyond a reasonable doubt, that the defendant herein, on or about the 26th day of October, 1957, in the County of Tarrant and State of Texas, with malice aforethought, as that term is herein defined, did voluntarily kill the said Jimmy Garner by slashing, stabbing or cutting the said Jimmy Garner with a knife, as alleged in the indictment, you will find the defendant guilty of murder with malice, ..." (emphasis added). Further, there was sufficient proof adduced at trial to support the jury's finding of appellant's guilt of murder with malice by stabbing the deceased with a knife. We observed in McCloud v. State, Tex.Cr. App., 527 S.W.2d 885: "It is a cardinal rule of appellate procedure in this State that we must indulge every presumption in favor of the regularity of the proceedings and documents in the lower court." Also see Art. 847, Vernon's Annotated Code of Criminal Procedure in effect at the time of appellant's original appeal. Indulging such "presumption of regularity," we find and the record reflects that appellant was arraigned, tried, charged, and convicted under the indictment alleging the murder weapon to be a knife. Grounds of error one and two are overruled. In ground of error three appellant contends there is insufficient evidence to show that appellant inflicted the chest wound which caused the deceased's death. It is uncontroverted that Garner's death was caused by a "knife wound in the chest." Although none of the eyewitnesses to the stabbing testified that they saw appellant stab the deceased in the "chest," each testified that appellant stabbed the deceased in various parts of his body and that they observed no other wounds being inflicted upon the deceased, other than the knife wounds caused by appellant. We find this evidence sufficient to support a finding that appellant inflicted the fatal chest wound upon the deceased. Ground of error three is overruled. In grounds of error four and five appellant contends the trial court erred in admitting into evidence the hospital records of the admission, treatment and death of the deceased over appellant's hearsay objection. Appellant raised the same error in his original appeal in McCarty v. State, 167 Tex.Cr.R. 164, 319 S.W.2d 338, and in ruling adversely to his contention we stated: "The hospital records of the admission, treatment, and death of the deceased were sufficiently identified by the custodian of such records, and were admissible in evidence under the provision of Art. 3737e, Vernon's Ann.Rev.Civ.St. over appellant's objection that they were hearsay." Accordingly, grounds of error four and five are overruled. In ground of error six appellant complains of improper jury argument. The argument complained of is as follows: "Yes, I think you have a right in considering the punishment that might be meted out, you have a right to consider the life the family life, the past of the man killed, I think you have a right to do that, I think if you were faced with a man whose record could be smeared all over the wall that you might consider that in the punishment that should be assessed. I think you have that right to. "Attorney for Defendant: Your Honor, we're are going to object to counsel's argument and his last comment and ask the court to ask the jury not to consider it. "The Court: I will sustain the objection, you are so instructed, ladies and gentlemen. *299 "Attorney for Defendant: I would like at this time that the Court declare a mistrial. "The Court: I will overrule your motion." We note that following appellant's objection the State's Attorney explained to the jury that his comment, "I think if you were faced with a man whose record could be smeared all over the wall that you might consider that in the punishment that should be assessed ..." did not allude to a prior criminal record of appellant, but referred to the fact that the deceased did not have a criminal record. Further, the trial court's instruction to the jury to disregard the prosecutor's initial remarks removed the harmful effects thereof. No reversible error is shown. Spaulding v. State, Tex.Cr. App., 505 S.W.2d 919; Ramos v. State, Tex. Cr.App., 419 S.W.2d 359. The ground of error six is overruled. We have reviewed the appellant's contention raised in his pro se brief and find it without merit. The judgment is affirmed. Opinion approved by the Court. ROBERTS, J., not participating. NOTES [1] The appellate procedure applicable to an out-of-time appeal is the appellate procedure in effect at the time of the original appeal or attempted appeal. Ex parte Young, Tex.Cr. App., 517 S.W.2d 288 and cases there cited. Since the original appeal in the instant case was in 1958, the Code of Criminal Procedure, 1925, as amended is applicable.

460 So.2d 1043 (1984) Harry THOMPSON, Jr., et ux. v. Dr. Dabney M. EWIN, et al. No. 84-C-1870. Supreme Court of Louisiana. November 26, 1984. *1044 Denied. DIXON, C.J., and LEMMON, J., would grant the writ.

Case: 13-60210 Document: 00512579404 Page: 1 Date Filed: 03/31/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-60210 March 31, 2014 Summary Calendar Lyle W. Cayce Clerk MITCHELL LEE WEBER, Plaintiff - Appellant v. DOCTOR R. MCMICHAEL, Forensic Administrator; DOCTOR MARTHA MURRAY, Staff Psychiatrist; MISSISSIPPI DEPARTMENT OF MENTAL HEALTH, Defendants - Appellees Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:09-CV-482 Before JONES, BARKSDALE, and HAYNES, Circuit Judges. PER CURIAM: * Mitchell Lee Weber, a civilly-committed patient in the Mississippi State Hospital (MSH), appeals the summary-judgment dismissal of his action, filed pursuant to 42 U.S.C. § 1983. Weber asserts he should be transferred to a less secure unit at MSH and afforded additional grounds privileges. He contends * 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: 13-60210 Document: 00512579404 Page: 2 Date Filed: 03/31/2014 No. 13-60210 Defendants confine him to the maximum security unit because they have a personal vendetta against him. A summary judgment is reviewed de novo. E.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate if the record discloses “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). Weber, diagnosed with paranoid schizophrenia and a personality disorder with antisocial features, was admitted to psychiatric hospitals eight times between 1975 and 1996. Each hospitalization occurred after he threatened to harm, or harmed, others. Four of these hospitalizations ended when Weber escaped. In 1994, Weber was civilly committed to MSH, housed in a less secure unit, and given unescorted grounds privileges; however, he escaped in 1996. Three months later, he impersonated a police officer and attacked a MSH psychiatrist in her home. Weber pleaded guilty to these crimes, was sentenced to 30 days in jail, and was civilly committed to MSH for 90 days. In October 1996, the Hinds County Chancery Court extended his commitment indefinitely. After arriving at MSH, Weber was admitted to the maximum security unit, known as the Forensic Service Unit (FSU), due to his “overt acts of dangerousness and propensity to elope”. Weber’s treatment team (composed of psychiatrists, psychologists, nurses, and a social worker) prepares his treatment plans, which are updated annually. Several of these treatment plans note Weber does not appreciate the nature and extent of his mental illness, or its relationship to his aggressive behavior, escape risk, and interpersonal conflicts with staff members and patients. Accordingly, his 2  Case: 13-60210 Document: 00512579404 Page: 3 Date Filed: 03/31/2014 No. 13-60210 treatment team has always been of the opinion that Weber would present a danger to himself and others if treated in a less secure unit. MSH’s Discharge Advisory Committee (Committee) shares this opinion. The Committee determines whether high-risk patients should be afforded additional privileges within FSU or transferred to less secure units. In 1998, 2003, and 2007, Weber challenged his treatment team’s decision denying him grounds privileges. In 1998 and 2003, the Committee recommended Weber be denied those privileges because he was an escape risk and would present a significant risk to public safety. In 2007, the Committee concluded Weber remained a high risk for violence. As a result, he was granted only limited- escorted grounds privileges. Defendants’ treatment decisions (treating Weber in the FSU with limited-escorted grounds privileges) are presumptively valid. See Youngberg v. Romeo, 457 U.S. 307, 323 (1982). Weber failed to present competent evidence overcoming this presumption, and, therefore, has failed to establish a constitutional violation. See id. at 323 n.31 (noting expert testimony “may be relevant to whether [treatment] decisions” substantially depart from professional judgment, practice, or standards). AFFIRMED. 3 

67 P.3d 500 (2003) 116 Wash.App. 625 Evelyne GRUNDY, Appellant, v. The BRACK FAMILY TRUST, Calvin Brack and Joyce M. Brack, Trustees, Respondents, Thurston County, a municipal Corporation, and political subdivision of the State of Washington, Defendant. No. 26347-5-II. Court of Appeals of Washington, Division 2. March 18, 2003. Publication Ordered April 9, 2003. *501 Barnett N. Kalikow, Kalikow & Gusa, PLLC, Olympia, WA, for Appellant. Matthew Bryan Edwards, Owens Davies, PS, Olympia, WA, for Respondents. QUINN-BRINTNALL, A.C.J. Evelyne Grundy's neighbors, the Bracks, raised their existing seawall by 16 to 18 inches, which made their wall four inches higher than hers. Grundy claims Thurston County improperly exempted this project from the permitting process and thereby created a public nuisance, and she claims the raised seawall leaves her property vulnerable to flooding, creating a private nuisance. Grundy brought an action seeking declaratory and injunctive relief, but the trial court dismissed all claims against the Bracks on summary judgment, finding the case time barred under the Land Use Petition Act (LUPA). We agree and affirm. FACTS The Bracks, through the Brack Family Trust, own an undeveloped parcel on Johnson Point in Thurston County. Evelyne Grundy lives next door. In October of 1998, the Bracks applied for a permit to raise the seawall on their property to "roughly match the height" of the seawalls of their neighbors to the east and southwest. Clerk's Papers (CP) at 15. They also submitted a hydraulics permit to the Department of Fish and Wildlife. The County determined that the project qualified for an exemption from the permitting requirements for substantial development on the shoreline and issued a permit to allow the Bracks to raise their seawall.[1] *502 The County granted the building permit without notice to the neighbors. Grundy became aware of the raising of the seawall around March of 1999, when it was almost completed, and learned about the exemption about five months later (August of 1999).[2] She filed this nuisance action in November of 1999, approximately one year after the County made its decision and eight months after the Bracks completed the seawall improvements. Grundy did not file an appeal of the County's decision under LUPA.[3] PROCEDURAL HISTORY Grundy filed a nuisance action in November of 1999, alleging three causes of action. She sought a declaratory judgment that the permit to raise the seawall was null and void, orders of abatement, and attorney fees. Although the summary judgment order dismissed all three actions, Grundy only appeals that portion of the action concerning the validity of the permit authorizing the seawall.[4] The trial court granted the Bracks' motion for summary judgment in part. As a result, it dismissed Grundy's first two causes of action, noting that the County waived any objection to Grundy's amending her complaint to allege new causes of action against it. In so ruling, the trial court agreed with the Bracks' argument that LUPA was Grundy's proper avenue for relief. At the hearing on summary judgment the court stated: The court will hold the following: The failure to challenge the decision of a granted permit under LUPA, under the time stated of the seawall, constitutes what I consider summary judgment and order; I specifically reject the fact the bulkhead was built pursuant to an invalid permit; and I grant summary judgment for the Bracks to continue [to] have the seawall. However, I deny summary judgment to Thurston County ... as to whether or not the permit is illegal. It's a question of fact.[[5]] Report of Proceedings (RP) at 33. Grundy appealed. Since oral argument in this case, our Supreme Court has issued two opinions addressing standing under LUPA.[6] We requested and received additional briefing after the first of these was issued. We address two issues: First, was Grundy required to pursue her public nuisance claims *503 in an appeal under LUPA? And, second, does the common enemy doctrine provide a defense to Grundy's private nuisance claim? ANALYSIS This court engages in the same inquiry as the trial court when reviewing an order for summary judgment: review is de novo. Failor's Pharmacy v. Dep't of Soc. & Health Servs., 125 Wash.2d 488, 493, 886 P.2d 147 (1994). This court will affirm an order of summary judgment if no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c). We consider all facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Failor's Pharmacy, 125 Wash.2d at 493, 886 P.2d 147. LAND USE PETITION ACT APPEAL The County determined that the Bracks' project qualified for an exemption from the shoreline substantial development permitting process normally required under RCW 90.58.140 for "substantial development" on the shoreline. RCW 90.58.140(2). Projects that meet the precise terms of one or more of the listed exemptions under WAC 173-27-040 may be granted exemption from the substantial development permit process.[7] The Bracks claim that Grundy should have appealed the County's decision under LUPA, and, because she failed to do so, her claims are now time barred under the act's 21-day statute of limitations. The trial court agreed. Grundy bases her argument that she was not required to bring her claims in a LUPA appeal on her assertion that LUPA can afford her no relief because the project is already complete. She argues that she lacked standing under LUPA and lacked notice of the land use decision; therefore, dismissing her case because she did not challenge the decision under LUPA violates her right to due process. As a result she asserts that she should be allowed to seek injunctive relief from the wall itself. We disagree. Grundy argues that she lacks standing under LUPA. But the applicant, landowner, and any person "aggrieved or adversely affected by the land use decision" has standing to challenge a decision under LUPA. RCW 36.70C.060(1)-(2). A person is aggrieved or adversely affected only when all of the following conditions are present: (a) The land use decision has prejudiced or is likely to prejudice that person; (b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision; (c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and (d) The petitioner has exhausted his or her administrative remedies to the extent required by law. RCW 36.70C.060(2). A recent Supreme Court case addressed the application of LUPA to ministerial land use decisions, such as the one at issue here. *504 See Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002). In Nykreim, the "aggrieved party" was Chelan County, whose own planning director approved a boundary line adjustment (BLA) that was contrary to law (in that it created three lots out of one, instead of simply adjusting the boundary lines of existing lots). 146 Wash.2d at 911-12, 52 P.3d 1. Fourteen months after approving the BLA, the County discovered the mistake and challenged the decision in superior court; neighboring property owners intervened. Nykreim, 146 Wash.2d at 914, 52 P.3d 1. As here, the property owners who obtained the BLA approval claimed Chelan County should have challenged the BLA under LUPA. Nykreim, 146 Wash.2d at 917, 52 P.3d 1. The trial court and Division Three of this court viewed the decision to approve the BLA as a ministerial decision, and the appeals court reasoned that LUPA does not apply to ministerial decisions. Nykreim, 146 Wash.2d at 915-16, 918, 52 P.3d 1. Our Supreme Court disagreed and reversed, explaining that applying a distinction between ministerial and quasi-judicial decisions "is not consistent with the intent and express language of LUPA." Nykreim, 146 Wash.2d at 927, 52 P.3d 1. Under a plain reading of the statute, LUPA provisions apply equally to ministerial and quasi-judicial decisions, if they are "land use decisions," defined as a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on: (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used.... Nykreim, 146 Wash.2d at 927, 52 P.3d 1 (quoting RCW 36.70C.020(1)). Here, Grundy bases her public nuisance claim[8] on her allegation that raising the height of an existing seawall without a substantial development permit violates the Shorelines Management Act (SMA). According to Grundy, if the exemption was unlawful, it conferred no rights. Indeed, pre-LUPA case law holds that a void building permit confers no rights. See Steele v. Queen City Broad. Co., 54 Wash.2d 402, 408, 341 P.2d 499 (1959); Nolan v. Blackwell, 123 Wash. 504, 506, 212 P. 1048 (1923) But, as the Nykreim opinion points out, these cases predate LUPA. Post-LUPA case law holds that when the allegedly void action is a land use decision, it must be challenged under LUPA or it will be deemed valid. Nykreim, 146 Wash.2d at 925, 52 P.3d 1 (quoting Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 180-82, 4 P.3d 123 (2000)). Grundy's public nuisance argument hinges solely on her assumption that the exemption was unlawful. But under Nykreim the exemption is necessarily valid because Grundy failed to challenge it under LUPA. Thus there is no basis for Grundy's public nuisance claim. Grundy argues that she can bring her public nuisance claim as an original action under chapter 7.48 RCW. But LUPA is the exclusive avenue for appealing a land use decision. Nykreim, 146 Wash.2d at 917, 52 P.3d 1 (citing RCW 36.70C.030(1)). Even assuming Grundy lacked standing under LUPA that would not mean that she could challenge the decision in another forum. One who lacks standing under LUPA cannot appeal a land use decision at all. DUE PROCESS Grundy next asserts that the trial court's decision violates her right to due process because she had no notice or opportunity to be heard in the shorelines exemption process. *505 We disagree. We do not hold today that Grundy has no avenue of relief. We simply hold that Grundy cannot base her public nuisance claim on the County's alleged improper granting of an exemption because the only way to challenge the propriety of that exemption was under LUPA, which Grundy failed to do.[9] PRIVATE NUISANCE: COMMON ENEMY DOCTRINE Grundy also alleges that the Bracks' wall is a private nuisance on the theory that her property has been damaged, and will continue to be damaged as long as the Bracks' seawall is higher than her own. Every nuisance that is not a public nuisance (as defined in RCW 7.48.130) is a private nuisance. RCW 7.48.150. In defense, the Bracks assert the common enemy doctrine. The first Washington case to apply the common enemy doctrine specifically mentioned seawalls, explaining [i]f a land owner whose lands are exposed to inroads of the sea, or to inundations from adjacent creeks or rivers, erects sea-walls or dams, for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor, and wash it away, or cover it with water, the landowner so causing an injury to his neighbor is not responsible in damages to the latter, as he has done no wrong, having acted in self-defense and having a right to protect his land and his crops from inundation. Cass v. Dicks, 14 Wash. 75, 79, 44 P. 113 (1896), quoting (WEEKS, DAMNUM ABSQUE INJURIA, pp. 3 and 4) (emphasis added). The "common enemy" element of the doctrine stems from the idea that surface water "is regarded as an outlaw and a common enemy against which anyone may defend himself; if damages thereby result to another, it is damnum absque injuria." Marshland Flood Control Dist. of Snohomish County v. Great N. Ry. Co., 71 Wash.2d 365, 369, 428 P.2d 531 (1967). Surface waters are ordinarily those "vagrant or diffused waters produced by rain, melting snow, or springs." King County v. Boeing Co., 62 Wash.2d 545, 550, 384 P.2d 122 (1963). Surface water is defined as water on the surface of the ground, "the source of which is so temporary or limited as not to be able to maintain for any considerable time a stream or body of water having a well defined and substantial existence." Miller v. E. Ry. & Lumber Co., 84 Wash. 31, 35, 146 P. 171 (1915) (quoting 1 KINNEY, IRRIGATION & WATER RIGHTS, § 318). Surface waters are outlaw or common enemy waters, against which every proprietor of land may defend himself, even to the consequent injury of others. Boeing Co., 62 Wash.2d at 550, 384 P.2d 122 (citing Cass, 14 Wash. 75, 44 P. 113). Surface waters that may "become vagrant and subject to outlawry are waters accumulating and spreading in consequence of heavy rains and storms." Miller, 84 Wash. at 34-35, 146 P. 171 (citing Cass, 14 Wash. 75, 44 P. 113). No case since Cass has expressly mentioned seawalls and ocean surge water. A recent case from our Supreme Court, however, discussed the continuing viability of the common enemy doctrine: For over a century, Washington courts have adhered to the common enemy doctrine. See DiBlasi v. City of Seattle, 136 Wash.2d 865, 875, 969 P.2d 10 (1998); Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). This principle "provides that surface water is `an outlaw and a common enemy against which anyone may defend himself, even *506 though by so doing injury may result to others.'" DiBlasi, 136 Wash.2d at 875, 969 P.2d 10 (quoting Cass, 14 Wash. at 78, 44 P. 113). If a landowner "in the lawful exercise of his right to control, manage or improve his own land, finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another, it is damnum absque injuria [injury without redress]." Cass, 14 Wash. at 78, 44 P. 113. Halverson v. Skagit County, 139 Wash.2d 1, 14-15, 983 P.2d 643 (1999). Grundy contends that "[t]he Pacific Ocean does not become rain- or snow-swollen from localized storms, its damage is caused by currents, tides and wind and waves; thus the rule has no application." Br. of Appellant at 23. But as Halverson explains, it is the nomadic character of the water as it moves over the surface of the land, not the character of its source—pond, lake, river, stream, slough, etc.—that controls: The chief characteristic of surface water is its inability to maintain its identity and existence as a body of water. It is thus distinguished from water flowing in its natural course or collected into and forming a definite and identifiable body.... Halverson, 139 Wash.2d at 15, 983 P.2d 643. Consistent with the suggestion of our Supreme Court more than 100 years ago, we hold that the common enemy doctrine applies to sea water. The Bracks are entitled to prevent damage to their property from the vagrant surface water once confined in Puget Sound, even when a neighbor may be injured by their defense. See Halverson, 139 Wash.2d at 16, 983 P.2d 643. The trial court did not err by dismissing Grundy's private nuisance action. ATTORNEY FEES ON APPEAL The Bracks seek attorney fees on appeal, citing RCW 4.84.340.[10] The rule regarding attorney fees on appeal requires more than a bald request for such fees. RAP 18.1(b); Phillips Bldg. Co., Inc. v. An, 81 Wash.App. 696, 705, 915 P.2d 1146 (1996). The Bracks also claim the appeal is frivolous. The appeal is not frivolous under RAP 18.9(a). We award no fees. We concur: MORGAN and BRIDGEWATER, JJ. NOTES [1] The Bracks claim the County exempted the permit because it determined the seawall was a "normal protective bulkhead common to a single family residence" under WAC 173-27-040(2)(c). Clerk's Papers (CP) at 15. According to the County, however, it granted the exemption under section 4(c) of the Shoreline Master Program for the Thurston Region, which allows protective structures when the request is for "the repair and [re]placement of an existing protection device." CP at 33. Grundy claims neither section applies, because she argues the Bracks' dwelling is located on a separate parcel (therefore the seawall does not protect a dwelling) and that raising the wall by 16-18 inches qualifies as neither repair nor replacement. [2] Grundy explains that she did not discover the work on the seawall right away because her view is obstructed on the part of the Bracks' property on which work first began. [3] The Bracks have also been pursuing permits to build, grade, and landscape the property; at the time of the summary judgment hearing it appeared that a land use hearing was scheduled to address the grading/landscaping permits required to place fill behind the bulkhead. It is not clear from the record or the parties' briefs whether or when this hearing is scheduled. [4] Grundy's second cause of action involved a heap of dirt excavated in the early stages of construction of a house and garage on the Bracks' property. Grundy and several neighbors claimed the dirt was contaminated by chemicals from a gas tank that a previous owner maintained on the property, among other complaints. It is not clear from the record or briefs why Grundy dropped this issue on appeal. Grundy's third cause of action involved a gate placed across the road on the Bracks' property, which she claimed was across a prescriptive easement established by the neighbors. The Bracks removed the gate, and Grundy voluntarily nonsuited that cause of action. The dismissal of all claims against the Bracks made the case ripe for appeal; the claims against the County were not dismissed. See note 5. [5] Thurston County filed a brief in this appeal, mainly to clarify Grundy's presentation of facts, but it is not officially a party to the appeal. At oral argument, Grundy's counsel explained that she does not seek anything but the abatement of the nuisance, namely, the removal of the heightened portion of the sea wall. [6] See Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002), and Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wash.2d 440, 54 P.3d 1194 (2002). [7] WAC 173-27-040(2)(b) and (c) read in pertinent part as follows (emphasis added): (2) The following developments shall not require substantial development permits: .... (b) Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements. "Normal maintenance" includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. "Normal repair" means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to shoreline resource or environment.... (c) Construction of the normal protective bulkhead common to single-family residences. A "normal protective" bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill.... [8] A public nuisance is one that affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal. RCW 7.48.130. A nuisance consists of unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. RCW 7.48.120. [9] Grundy cites Phillips v. King County, 87 Wash.App. 468, 943 P.2d 306 (1997), aff'd, 136 Wash.2d 946, 968 P.2d 871 (1998), to support her argument that LUPA is not the correct forum to address her claims. Grundy argues that this case illustrates "the absurdity of requiring a LUPA petition after the construction is in place[.]" Br. of Appellant at 19. But in so arguing, Grundy misunderstands the nature of her public nuisance claim. Nothing that is done or maintained under the express authority of a statute can be deemed a nuisance. RCW 7.48.160; Miotke v. City of Spokane, 101 Wash.2d 307, 331, 678 P.2d 803 (1984). Grundy bases her public nuisance claim solely on the alleged unlawfulness of the permit exemption. The injury in this nuisance claim is this alleged unlawfulness of the exemption. Unlike the flooding that damaged the landowner in Phillips (and the flooding that Grundy claims damaged and threatens to further damage her property), a LUPA appeal was the exclusive forum in which to address that injury. [10] Although the Bracks' materials cite RCW 4.84.340, it is clear they intend to rely on RCW 4.84.350 and we have assumed as much for purposes of this request.

(2008) Rolando PALOMO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Action No. 07-0745 (RWR). United States District Court, District of Columbia. September 29, 2008. MEMORANDUM OPINION RICHARD W. ROBERTS, District Judge. Plaintiff brings this action under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security ("SSA") denying him childhood disability benefits. Now before the Court is defendant's motion for judgment of affirmance. For the reasons discussed below, the Court grants defendant's motion. I. BACKGROUND Plaintiff's father, Quirino Palomo, was "a regular U.S. Army Bataan Defender and a guerilla fighter during the dark days of Japanese Occupation of the Philip[p]ines who died a U.S. citizen." Compl. at 1. Based on his father's status as a wage earner and United States citizen, see id., plaintiff submitted an application to the Social Security Administration ("SSA") for child's insurance benefits on August 24, 2000.[1] A.R. 49-54. He reported that he suffered from pulmonary tuberculosis since March 1967, at which time he would have been about 15 years of age. See A.R. 93. He had obtained medical treatment at the Methodist Medical Mission, Mobile X-ray Clinic, in 1967, at the Tarlac Health Center in 1968, at the Philippine Tuberculosis Society in July 1982, and at the Angeles City Medical Laboratory in March 2000. See A.R. 95-96. SSA denied plaintiff's application in April 2001 for the following reasons: You said you have been disabled since 03/07/67 due to Tuberculosis. We have determined that your condition was not disabling on any date through 10/01/74, when you were last insured for disability benefits. In deciding this, we studied your records, including medical evidence and your statements, and considered your age, education, training and work experience in determining how your condition affected your ability to work. According to the Disability Report that you completed, no records are available for the time period 10/1970 through 10/1974. A.R. 26. Plaintiff timely requested reconsideration of the April 2001 determination. A.R. 30. He mentioned in this request that his pulmonary tuberculosis "was so severe (far-advanced) to the extent that on moderate exertion, it would cause [him] to cough out blood-streaked sputum." Id. This condition persisted, plaintiff stated, "[f]rom the early part of 1967 to over 10 years," and has severely restricted his ability to make a living. Id. SSA concluded that the original determination was proper, and that available medical records "do not show that [he was] totally disabled since 1967." A.R. 32. Plaintiff timely requested review by an Administrative Law Judge ("ALJ"), and waived his right to a hearing. A.R. 34, 36-37. In his September 22, 2005 decision, the ALJ concluded that plaintiff is not entitled to childhood disability benefits, A.R. 23, and the Appeals Council adopted the ALJ's decision on July 24, 2006. A.R. 7, 10. II. DISCUSSION The Court may affirm SSA's decision only if it is supported by substantial evidence in the record, and is not tainted by an error of law. See Smith v. Bowen, 826 F.2d 1120, 1121 (D.C.Cir.1987); see also 42 U.S.C. § 405(g). Substantial evidence "is such evidence as a reasonable mind might accept as adequate to support a conclusion." Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C.1994) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Although the ALJ's decision is entitled to considerable deference, the Court still must ensure that substantial evidence supports the decision. See Davis v. Shalala, 862 F.Supp. at 4. In order to qualify for childhood disability benefits, the claimant must show that, at the time of his application, he was under a disability which began before he attained 22 years of age.[2]See 20 C.F.R. § 404.350. "The term `disability' means ... [the] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A claimant whose "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work," may be determined to be "under a disability." 42 U.S.C. § 423(d)(2)(A). A "`physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is the claimant's burden to "furnish[] such medical and other evidence of the existence thereof as the Commissioner of Social Security may require." 42 U.S.C. § 423(d)(5)(A). There is a five-step evaluation process to determine whether a claimant, including a claimant applying for child's disability benefits, is disabled. See 20 C.F.R. § 404.1520(a). First, SSA considers a claimant's work activity. 20 C.F.R. § 404.1520(a)(4)(i). If he is working and his work is substantial gainful activity, he is not disabled regardless of his medical condition or age, education, and work experience. 20 C.F.R. § 404.1520(b). Second, SSA considers the medical severity of the claimant's impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If he has neither an impairment nor a combination of impairments of a certain duration, the claimant is not disabled. Id. Third, SSA again considers the medical severity of the claimant's impairment and determines both whether it meets or equals a recognized impairment and is of a certain duration. 20 C.F.R. § 404.1520(a)(iii); see 20 C.F.R. § 404, Subpart P, App. 1 (Listing of Impairments). Fourth, SSA assesses the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If he still can perform past relevant work, he is not disabled. Id. Fifth, SSA assesses the claimant's residual functioning capacity, age, education and work experience in order to determine whether he can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v). If he cannot make an adjustment to other work, he is disabled. Id. The claimant bears the burden of production and proof in the first four steps of the process. See Stankiewicz v. Sullivan, 901 F.2d 131, 133 (D.C.Cir. 1990). Only after reaching the fifth and final step does SSA bear the burden of showing that jobs exist for the applicant. See id.; see also Brown v. Bowen, 794 F.2d 703, 706 (D.C.Cir.1986). Here, the ALJ concluded that plaintiff "had no severe impairment or combination of impairments prior to age 22[,]" and reached "[a] finding of not disabled ... without consideration of the remaining steps in the sequential evaluation process." A.R. 22. 1. Step 1: Substantial Gainful Activity Work a claimant has performed "may show that [he is] able to work at the substantial gainful activity level." 20 C.F.R. § 404.1571. Substantial work activity is "work activity that involves doing significant physical or mental activities." 20 C.F.R. § 404.1572(a). Gainful work activity is done "for pay and profit," and work activity is gainful "if it is the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b). Plaintiff reported that he worked at some unspecified time after the alleged onset of his disability. See A.R. 93. The ALJ found that plaintiff "has no vocationally relevant past work experience," and concluded that plaintiff "has not engaged in substantial gainful activity since his alleged onset date." A.R. 19. 2. Step 2: Severity of Impairment The claimant's impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and be "established by medical evidence consisting of signs, symptoms, and laboratory findings." 20 C.F.R. § 404.1508. If a claimant has no "impairment or combination of impairments which significantly limits [his] physical or mental ability to do basic work activities," SSA will find that he "do[es] not have a severe impairment and [he is], therefore, not disabled." 20 C.F.R. § 404.1520(c). Before the ALJ were few medical records regarding plaintiff's medical treatment, and "only three exhibits ... actually refer[red] to medical care received by the [plaintiff] prior to October 1, 1974," his twenty-second birthday. A.R. 20. Dr. Melanio L. Cabaltica, the Medical Director of the Methodist Church Mobile Clinic and X-ray Unit from 1958 to 1970, recalled that clinic personnel screened "thousands of people" in remote areas of the Philippines, many of whom were diagnosed with and treated for pulmonary tuberculosis, a condition "endemic to the poor segment of the population." Dr. Cabaltica left the clinic in 1970, and the clinic folded in 1974 or 1975 for lack of funding. Id. He stated that "it is entirely possible that [plaintiff] was one of the Clinic's patients." A.R. 128. Id. However, he had "no specific recollection of [plaintiff's] case." Id. Mrs. Lydia B. Jimenez, formerly a bookkeeper at the clinic, certified that plaintiff received "a check-up during one of the now defunct Methodist Mobile Clinic and X-ray Unit's 1967 visit in Patling, Capas, Tarlac, and was found to have a pulmonary [tuberculosis]." A.R. 122. She further stated that the clinic's records were destroyed after the clinic ceased operations in 1974. Id. On August 23, 2000, Dr. Esmeraldo de Guzman, Jr. described plaintiff's medical history as follows: The present condition of the patient, described as frequent body malaise, shortness of breath and chest palpitations ("kumakaba") started in 1996. The shortness of breath was secondary to possible residuals of previous PTB. The patient's palpitations was [sic] described more as nervous episodes that unpredictably will come and give so much fright to the patient. The patient have [sic] a history of being treated for PRB from 1967 to 1968. He had bouts of occasional Bronchitis and Peripheral Neuropathy and was given Neurobion-5000. THE PATIENT, AT THE PRESENT TIME CLAIMS THAT HE IS STILL GETTING ATTACKS OF "kaba" OR CHEST PALPITATIONS. A.R. 126 (capitalization in original). The ALJ noted that plaintiff himself supplied this history. A.R. 21. The remaining medical records related "to treatment and evaluation of the [plaintiff] long after he attained age 22," including prescriptions and x-ray results from 1996 that were "negative for tuberculosis" and from 2002 "showing no active cardiopulmonary pathology." A.R. 21. The ALJ concluded that none of the records "contemporaneously document the treatment received by the [plaintiff] before he attained age 22 on October 1, 1974." A.R. 21. The records showed a reported history of pulmonary tuberculosis, yet "no clinical or laboratory findings, and no treatment records show[ed] any resulting deficits in the [plaintiff's] functional capacity for the period prior to October 1, 1974." Id. Nor did the records "establish the severity of the [plaintiff's] condition or functional limitations on or before he became age 22." Id. Absent documentation that plaintiff's "ability to sustain activity was significantly restricted before he attained age 22," plaintiff could not "be considered as having more than minimal, if any, functional limitations prior to attaining age 22." Id. A minimal functional limitation cannot be considered severe, and absent a severe impairment, plaintiff was not found to be disabled. Id. at 21-22. These findings were consistent with those reached by "the Office of Disability Office of Medical Evaluation medical consultant, whose summary report and analysis [found] no severe impairment prior to October 1, 1974." Id. at 22. Plaintiff also alleged that "he had feelings of depression," yet there were "no records documenting any such symptoms before October 1, 1974 when he attained age 22." A.R. 22. The ALJ further concluded that plaintiff "had no determinable limitations with respect to his ability to perform activities of daily living, to function socially and to concentrate as well as with respect to episodes of deterioration or decompensation due to any mental impairment." Id. In his opposition to SSA's motion for a judgment of affirmance, plaintiff asserts, without support, that there is "honest, truthful and substantial evidence depicting his pulmonary tuberculosis in an alarming degree of severity," which limits his ability to engage in gainful employment and daily activities, such as carrying firewood or raising crops. Plaintiff's Opposition to Defendant's Motion for Judgment of Affirmance ¶ 1. He states that "[m]any people in [his] sleepy and poor village ... knew of [his] chest condition." Id. ¶ 4. Plaintiff's opposition neither documents the existence of a severe physical or mental impairment nor establishes that the ALJ's decision is not supported by evidence in the record. III. CONCLUSION The Court concludes that SSA's decision is supported by substantial evidence in the record. Accordingly, the motion for summary affirmance will be granted. A final Order accompanies this Memorandum Opinion. NOTES [1] Plaintiff had filed an application for childhood disability benefits previously, and that request was denied on August 19, 1996. A.R. 18. [2] A claimant is "entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died" if he applies for such benefits and if he is: 1. the insured person's child, based upon a relationship described in 20 C.F.R. §§ 404.355 through 404.359; 2. dependent on the insured, as defined in 20 C.F.R. §§ 404.360 through 404.365; 3. unmarried; and 4. 18 years old or older and has a disability that began before he became 22 years old. See 20 C.F.R. § 404.350(a). Plaintiff meets "all of the nondisability requirements" for childhood disability benefits. A.R. 19.

46 F.3d 1147 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-Appellant,v.Glendon FORBES; Christian Martensen; Jeffrey Penkala,Defendants-Appellees. No. 94-10119. United States Court of Appeals, Ninth Circuit. Submitted: Jan. 25, 1995.*Decided: Jan. 30, 1995. Before: WALLACE, Chief Judge, HALL and KLEINFELD, Circuit Judges. 1 MEMORANDUM** 2 The government appeals the sentences of Glendon Forbes, Christian Martensen, and Jeffrey Penkala imposed following Forbes's guilty plea to conspiring to possess with the intent to distribute lysergic acid diethylamide (LSD), in violation of 21 U.S.C. Secs. 846, 841(a)(1), and Forbes's, Martensen's, and Penkala's guilty pleas to possessing with the intent to distribute LSD, in violation of 21 U.S.C. Sec. 841(a)(1). The government contends that the district court erred by failing to calculate the appellees' mandatory minimum sentences based upon the actual weight of the LSD and blotter paper "mixture" possessed by the appellees. We have jurisdiction under 18 U.S.C. Sec. 3742(b) and 28 U.S.C. Sec. 1291, and we vacate and remand. 3 The appellees possessed 20,000 doses of LSD carried on 200 sheets of paper and weighing over 126 grams. The district court, relying on newly amended U.S.S.G. Sec. 2D1.1, calculated the appellees' mandatory minimum sentence under 21 U.S.C. Sec. 841 by multiplying the 20,000 doses by 0.4 milligrams, arriving at a weight of 8 grams for the LSD and its paper carrier. The court stated that its method of determining the statutory minimum sentence was "reasonable" and an "appropriate way to make the carrier a factor" in determining the mandatory minimum sentence. 4 We review the legality of a sentence de novo. United States v. Dunn, 946 F.2d 615, 619 (9th Cir.), cert. denied, 112 S. Ct. 401 (1991). We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir. 1994). 5 If a defendant is convicted of a drug offense under 21 U.S.C. Sec. 841(a) in a case involving "10 grams or more of a mixture or substance containing a detectable amount of [LSD]," a minimum sentence of 10 years must be imposed. See 21 U.S.C. Sec. 841(b)(1)(A)(v). The Supreme Court, interpreting the minimum sentence provision of section 841, held that "the blotter paper used [to distribute LSD] in this case, and blotter paper customarily used to distribute LSD, is a 'mixture or substance containing a detectable amount' of LSD." Chapman v. United States, 500 U.S. 453, 461 (1991). The Court concluded that "the statute requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD." Id. at 468. 6 The Sentencing Commission, effective November 1, 1993, amended U.S.S.G. Sec. 2D1.1(c), which now provides that the sentencing court should exclude the gross weight of the carrier medium in determining the base offense level for LSD offenses, and instead "treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table." U.S.S.G. Sec. 2D1.1(c), n.*. The Commentary to Sec. 2D1.1 notes that, "[n]onetheless, this approach does not override the applicability of 'mixture or substance' for the purpose of applying any mandatory minimum sentence (see Chapman; [U.S.S.G.] Sec. 5G1.1(b))." U.S.S.G. Sec. 2D1.1(c), comment. (backg'd); see also U.S.S.G. App. C, amend. 488 (0.4 milligram per dose approach "does not override definition of mixture or substance" in Chapman). 7 Because the conversion factor in U.S.S.G. Sec. 2D1.1 is applicable only to determinations of the base offense level, the district court erred by using the 0.4 milligram per dose factor to determine the appellees' mandatory minimum sentences. See U.S.S.G. Sec. 2D1.1, comment. (backg'd) (noting that 0.4 milligram conversion rate is "for purposes of determining the base offense level"). Chapman's interpretation of section 841 requires that the sentencing court use the actual weight of the LSD-carrier mixture possessed by defendants to set their statutory minimum sentence. See Chapman, 500 U.S. at 455 (eligibility for mandatory minimum sentence based upon "the weight of the blotter paper containing LSD"); id. at 461 (Congress intended "penalties for drug trafficking [in section 841] to be graduated according to the weight of the drugs in whatever form they were found--cut or uncut, pure or impure"); see also United States v. Mosti, 936 F.2d 425, 426 (9th Cir. 1991) (weight of blotter paper must be included for determination of sentence). 8 Appellees' argument that neither section 841 nor Chapman preclude the determination of a statutory minimum sentence using the 0.4 milligram per dose conversion factor ignores two considerations. First, the Sentencing Commission was clear that its approach for weighing LSD "does not override" the approach set forth in Chapman. See U.S.S.G. Sec. 2D1.1, comment. (backg'd). Second, interpreting the language of section 841 or Chapman to permit the sentencing court to use alternative methods of weighing LSD-carrier mixtures is untenable. The only reasonable interpretation of section 841 and Chapman, as we previously noted, is that the sentencing court must set the statutory minimum sentence based upon the actual weight of the LSD-carrier mixture. Finally, because we find the due process and rule of lenity arguments advanced by appellees substantially similar to those in Chapman, we reject them. See Chapman 500 U.S. at 463-67. 9 Our conclusion that the 1993 amendments to U.S.S.G. Sec. 2D1.1 are irrelevant to determining a statutory minimum sentence comports with the conclusions of other courts that have confronted the issue. See, e.g., United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994); United States v. Dimeo, 28 F.3d 240, 241 & n.4 (1st Cir. 1994); United States v. Boot, 25 F.3d 52, 55 (1st Cir. 1994); cf. United States v. Tucker, 20 F.3d 242, 245 (7th Cir. 1994) (Chapman's interpretation of section 841 unchanged by Sentencing Commission's 1993 amendment of U.S.S.G. Sec. 2D1.1). 10 We VACATE the sentences imposed on the appellees, and REMAND with instructions to determine appellees' minimum sentences under 21 U.S.C. Sec. 841(b) based upon the actual weight of the LSD and blotter paper mixture involved in their offenses. * Because we unanimously find this case suitable for decision without oral argument, we deny the appellees' request for oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4 ** 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

831 F.Supp. 417 (1993) Elizabeth H. RUSCAVAGE, Plaintiff, v. John ZURATT, Defendant. Civ. A. No. 93-991. United States District Court, E.D. Pennsylvania. July 16, 1993. *418 Edward E. Kopko, Pottsville, PA, for plaintiff. Robert G. Hanna, Jr., Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, PA, Robert G. Hanna, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Norristown, PA, for defendant. MEMORANDUM HUYETT, District Judge. Plaintiff commenced this action under 42 U.S.C. § 1983 alleging that Defendant, a police officer with the Norwegian Township (Schuylkill County, Pennsylvania) Police Department, deprived her of her constitutional rights under color of state law. Following a nonjury trial, the Court concluded that Defendant issued a second traffic citation in bad faith for the purpose of retaliating against Plaintiff for exercising her constitutional right to plead not guilty and demand a hearing on a first traffic citation. The Court permanently enjoined Defendant from prosecuting Plaintiff pursuant to the second citation, awarded Plaintiff compensatory damages in the amount of $20,000, and concluded that Plaintiff was a prevailing party for the purposes of 42 U.S.C. § 1988 and was thus entitled to attorneys fees and expenses. Ruscavage v. Zuratt, 821 F.Supp. 1078 (E.D.Pa.1993). Defendant moves to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), claiming that the compensatory damage award of $20,000 is excessive. Defendant claims that counsel for Plaintiff asked only for nominal damages in this matter. In addition, Defendant contends that Plaintiff already experienced some emotional distress as a result of the first citation and that there is no justification to award $20,000 to compensate her for her additional distress as a result of the second citation. Furthermore, Defendant notes that Plaintiff did not provide any medical testimony to support an award of damages. Finally, Defendant points to cases in which plaintiffs were awarded compensatory damages in amounts far less than $20,000 for injuries incurred as a result of unlawful arrests, detentions, and physical abuse, none of which occurred in this case. The purpose of a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e) is to "correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). Motions under Rule 59(e) should be granted sparingly because of the interests in finality and conservation of scarce judicial resources. While Plaintiff correctly cites the standard in the Third Circuit for review of jury awards of damages — whether the "verdict is so grossly excessive as to shock the *419 judicial conscience," Edynak v. Atlantic Shipbuilding, Inc. CIE. Chambon, 562 F.2d 215, 226 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978) — here the Court awarded the damages in the first instance. The Court had discretion to award damages to compensate Plaintiff for her injuries caused by Defendant's bad faith issuance of the second traffic citation and has discretion to review its award upon reconsideration of the evidence. Defendant is incorrect when he states that Plaintiff requested only nominal damages at trial. Plaintiff in her complaint requested damages in excess of $100,000. When asked at trial what elements of damages he sought for his client, Plaintiff's counsel responded, correctly, that Plaintiff was entitled to at least nominal damages as a matter of law if the Court found a violation of Plaintiff's constitutional rights, and also requested damages to compensate for Plaintiff's humiliation, embarrassment, and mental strain and anguish. That point aside, upon reconsideration of the evidence in this case, and upon review of damage awards in other section 1983 cases involving similar injuries and factual circumstances, the Court believes that an award of $20,000 to compensate Plaintiff for the humiliation, embarrassment, mental strain and anguish, aggravation of her high blood pressure condition, nervousness, sleeplessness, and inability to concentrate on her work that she suffered as a result of the issuance of the second citation, while not excessive, is towards the upper end of the range of damages awarded to plaintiffs in cases with similar factual circumstances. Awards to plaintiffs to compensate them for embarrassment, humiliation, and physical discomfort span a broad range, with higher amounts awarded to plaintiffs who have suffered illegal detention or physical abuse. E.g. Trezevant v. City of Tampa, 741 F.2d 336 (11th Cir.1984) (jury verdict of $25,000 in favor of motorist who was incarcerated during booking process following citation for traffic violation was not excessive); Carter v. Duncan-Huggins Ltd., 727 F.2d 1225 (D.C.Cir.1984) ($10,000 award sustained as not unreasonable in discrimination action in which plaintiff suffered seventeen months of incessant humiliation, harassment, and feelings of isolation); Block v. R.H. Macy & Co., 712 F.2d 1241 (8th Cir.1983) ($12,402 award sustained where, as result of discrimination, plaintiff suffered sleeplessness, anxiety, embarrassment, and depression); Rhoads v. Horvat, 270 F.Supp. 307 (D.Colo.1967) (jury verdict of $5,000 for plaintiff's outrage at illegal arrest); Quinn v. Rosenberg, 399 S.W.2d 433 (Mo.App.1966) ($10,000 awarded to attorney falsely arrested, imprisoned, detained for four hours, and physically abused); Mahoney v. Kesery, 770 F.Supp. 472 (E.D.Wis.1991) ($20,000 jury award to victim of illegal arrest and malicious prosecution not excessive). The cases cited are by no means an exhaustive review of compensatory damage awards in section 1983 cases; awards of higher and lower amounts can surely be found. In this case, Plaintiff received two traffic citations. She was not arrested, incarcerated, or physically harmed. She was not subjected to prolonged harassment. While the Court by no means wishes to diminish the seriousness of Defendant's violation of Plaintiff's fundamental constitutional right to plead not guilty and request a hearing, the Court is convinced, upon reconsideration of the facts and circumstances of this case and upon examination of several damage awards in section 1983 cases, that an award of $10,000 more fairly and justly compensates Plaintiff for the mental strain and anguish, embarrassment, and humiliation that she sustained as a direct result of Defendant's bad faith issuance of the second traffic citation. An appropriate order follows. ORDER Upon consideration of Defendant's Motion to Alter or Amend Judgment Pursuant to Fed.R.Civ.P. 59(e), Plaintiff's response, and for the reasons stated in the foregoing memorandum, Defendant's motion is GRANTED. Paragraph 1 of the Order dated April 30, 1993 is AMENDED as follows: 1. JUDGMENT IS ENTERED in favor of Plaintiff and against Defendant in the amount of $10,000. *420 In all other respects, the Order dated April 30, 1993 shall remain in full force and effect. IT IS SO ORDERED.

731 F.2d 995 235 U.S.App.D.C. 293 Johnsonv.National Ass'n of Securities Dealers, Inc. 83-1365 United States Court of Appeals,District of Columbia Circuit. 3/12/84 1 D.C.D.C. AFFIRMED

351 S.E.2d 828 (1987) 84 N.C. App. 111 STATE of North Carolina v. Sturgiss Jackson WHITE. No. 865SC791. Court of Appeals of North Carolina. January 20, 1987. *829 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. W. Dale Talbert, Raleigh, for the State. R. Theodore Davis, Jr., Wilmington, for defendant-appellant. PARKER, Judge. Defendant first assigns as error the denial of his motion to suppress the results of the breathalyzer tests administered to him on the day of his arrest. The grounds for his motion were that the breathalyzer operator did not get his results from two consecutively administered tests, as required by G.S. 20-139.1(b3)(2)a. The evidence on voir dire revealed that defendant was asked to give a breath sample by blowing hard into the machine. He did this, and the machine measured a blood alcohol concentration of 0.20. When asked to give a second sample, defendant "puffed" into the machine, according to the testimony of the chemical analyst who administered the test. The machine failed to give a result and indicated that the breath sample had been insufficient. Defendant was again asked to give a breath sample and again it was insufficient. The analyst then warned defendant that another failure to give an adequate sample would be considered a willful refusal to submit to the breathalyzer. Defendant then gave a sufficient sample and a reading of 0.19 was obtained. Appellant argues that because of the two insufficient breath samples between the two readings, the readings should have been inadmissible. General Statute 20-139.1(b3) reads, in relevant part: (b3) Sequential Breath Tests Required.— By January 1, 1985, the regulations ... governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. Those regulations must provide: ..... (2) That the test results may only be used to prove a person's particular alcohol concentration if: *830 a. The pair of readings employed are from consecutively administered tests; and b. The readings do not differ from each other by an alcohol concentration greater than 0.02. Defendant relies on the phrase "sequential breath samples" of the first paragraph of subsection (b3). The State argues that under subparagraph (2)a, there were "consecutively administered tests," as the machine automatically rejects insufficient breath samples and, therefore, no "tests" were conducted on those samples. The purpose underlying requiring at least two tests is to ensure accuracy of the readings. See J. Drennan, The Safe Roads Act of 1983: A Summary and Compilation of Statutes Amended and Affected by the Act Ch. V, § A (1983). Sequential tests are required to minimize the time between tests. There are several factors beyond the control of either the accused or the breathalyzer operator which can affect the accuracy of the readings, such as body temperature of the accused, extraneous alcohol in the mouth of the accused, physical exercise or hyperventilation, even the humidity and barometric pressure in the testing room. See generally Mason and Dubowski, Breath-Alcohol Analysis, Uses, Methods, and Some Forensic Problems, 21 Journal of Forensic Sciences 9 (1976). Requiring sequential tests is one way of minimizing the effect these various factors could have on the accuracy of the breathalyzer readings by reducing the time between the two required samples. In the findings of fact made by the trial court below, the time of the first reading was 11:15 a.m., and the time of the second reading was 11:26 a.m. The first reading showed an alcohol concentration of .20 and the second showed a concentration of .19. Because these readings were taken from "consecutively administered tests" on adequate breath samples given within eleven minutes of one another, and because the readings are within .01 of one another, the statute requiring sequential testing was, in our view, complied with in this case. To hold otherwise would allow an accused to thwart the testing process by deliberately giving insufficient breath samples. Defendant's second assignment of error is that the trial court erred in denying his motion to suppress the breathalyzer results as the fruit of an illegal arrest. The evidence on voir dire showed that the Wilmington police had been called to the North Carolina Film Studio twice concerning a trespass and communicating threats. The defendant, identified by the Film Studio security guard, had gone by the time the officer arrived the first time. The second time, twenty minutes later, defendant was still there when the officer arrived. The studio security guard advised the officer that defendant had driven into the studio parking lot and was again making threats. The officer approached defendant and, seeing that he was obviously intoxicated, placed him under arrest for driving while impaired. General Statute 15A-401(b)(2) allows a law enforcement officer to make a warrantless arrest of "any person who the officer has probable cause to believe ... [h]as committed a misdemeanor, and ... [m]ay cause physical injury to himself or others, or damage to property unless immediately arrested." Based upon his own observation, the officer had probable cause to believe defendant was intoxicated. Based upon the statement of the security guard, the officer had probable cause to believe defendant had driven in that intoxicated state. Further, defendant's car was nearby and, knowing defendant had come and gone once already, the officer had probable cause to believe that defendant would get back in his car and drive in an intoxicated condition. Therefore, defendant's arrest was entirely proper and legal. The assignment of error is overruled. The third assignment of error raised by defendant is that the trial court erred in denying his motion to suppress the breathalyzer results on the grounds that G.S. 20-16.2, mandating a twelve-month license *831 suspension for refusal to submit to a breathalyzer, is unconstitutional, in that it coerces a defendant to give self-incriminating evidence. Both the United States Supreme Court and our state Supreme Court have held that chemical analyses of blood or breath are not within the protection of the Fifth and Fourteenth Amendments to the U.S. Constitution, or Article I, Section 23 of the North Carolina Constitution. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Howren, 312 N.C. 454, 323 S.E.2d 335 (1984). The rationale underlying these holdings is that such chemical analyses are not evidence which is "testimonial" or "communicative" in nature. Howren, supra. Our Supreme Court has applied the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 23 of the North Carolina Constitution co-extensively. See State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970). The assignment of error is overruled. Defendant's next assignment of error is that the testing officer did not give him the proper warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to administering the breathalyzer. However, as breathalyzer results are not testimonial evidence, it has been held that the Miranda warnings are not required prior to administering a breathalyzer. Howren, supra. By his next assignment of error, defendant contends that his case should have been dismissed as he alleges he was denied a speedy trial as defined in The Speedy Trial Act, G.S. 15A-701, et seq. The record is devoid of any indication that defendant moved the trial court prior to trial or entry of a guilty plea to dismiss the case for violations of the Act. Therefore, defendant has waived his right to dismissal under the statute. G.S. 15A-703(a). The assignment of error is overruled. Defendant's remaining assignments of error have been brought forth by counsel, without supporting authority, asking this Court to review the record relating to the assignments for error on its face. After carefully reviewing the record and briefs, we conclude that there is no merit in these assignments of error and they are overruled. Defendant's contentions have been carefully considered, and we conclude that they are without merit. Therefore, his guilty plea was properly entered and accepted. The judgment is Affirmed. WELLS and MARTIN, JJ., concur.

56 F.3d 64NOTICE: 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. Thomas BURRELL, Plaintiff-Appellee,v.TENNESSEE DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant,Tipton County Board of Education, Sharon Sanders, LaniSimmons Bright, Defendants. No. 94-5754. United States Court of Appeals, Sixth Circuit. May 23, 1995. On Appeal from the United States District Court, for the Western District of Tennessee, No. 94-02105; Odell Horton, Judge. W.D.Tenn. REVERSED. Before: BOGGS, SILER, and GIBSON,* Circuit Judges. PER CURIAM. 1 Defendant Tennessee Department of Human Services (TDHS) challenges the district court's denial of its motion to dismiss Plaintiff Thomas Burrell's action under 42 U.S.C. Sec. 1983 against TDHS on the basis of Eleventh Amendment immunity. This case comes before us on an interlocutory appeal. See Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 5 F.3d 147, 149 (6th Cir. 1993). For the reasons stated herein, we reverse the decision of the district court and remand the case for further proceedings against the remaining defendants. I. 2 Burrell is the father of a minor child, Lina Hanako Simmons. Burrell was allegedly the legal custodian of Lina until February 10, 1993, when TDHS, in connection with other defendants, allegedly "counselled and conspired to deprive plaintiff" of the custody of Lina.1 3 Burrell filed a Sec. 1983 action, seeking actual and punitive damages against TDHS, the Tipton County Board of Education, Sharon Sanders, an employee of the Board, and Lani Simmons Bright, Lina's mother. He did not seek injunctive relief. As stated in his complaint, Burrell contends that defendants should have known that he had not abused or neglected Lina and that, if defendants had done a cursory investigation, they would have determined the allegations of abuse to be baseless. 4 TDHS moved the district court for dismissal of the action on the following grounds: (1) TDHS is not a proper party under Sec. 1983; (2) TDHS is immune from suit under the Eleventh Amendment; and (3) the district court lacks jurisdiction over TDHS. The district court denied the motion, stating that, in the court's opinion, plaintiff could prove facts which would prevent TDHS's immunity. The court based this ruling on the Sixth Circuit case of Achterhof v. Selvaggio, 886 F.2d 826, 829 (6th Cir. 1989). TDHS now appeals the district court's decision. II. 5 The Eleventh Amendment to the United States Constitution states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State...." U.S. Const. amend. XI. This provision "precludes not only actions in which the state is directly named as a party, but also actions brought against a state agency or state officer where the action is essentially one for recovery of money from the state treasury." Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986)(citing Edelman v. Jordan, 415 U.S. 651 (1974)). A state agency is presumptively immune from Sec. 1983 damages actions unless Congress abrogates, or the State expressly waives, immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989); Welch v. Texas Dept. of Highways & Public Transp., 483 U.S. 468, 472-73 (1987). 6 In the present case, Burrell attempts to directly sue TDHS, an agency of the State of Tennessee, for the recovery of compensatory and punitive damages. This action is clearly precluded. Congress has not abrogated Tennessee's Eleventh Amendment immunity and Tennessee has not expressly waived its right to sovereign immunity. See Gross v. University of Tennessee, 620 F.2d 109, 110 (6th Cir. 1980). Indeed, Tenn. Code Ann. Sec. 20-13-102(a) explicitly provides that 7 No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds or property, and all such suits shall be dismissed.... 8 The decision in Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989), upon which both Burrell and the district court rely, does not compel a different result. Achterhof involved a plaintiff's Sec. 1983 suit against a number of state social workers in their individual and official capacities. No state agency was named in the suit. Indeed, the Achterhof court dealt entirely with qualified and absolute immunity issues; Eleventh Amendment immunity was never an issue in the case. For this reason, we find that the district court erred in applying Achterhof to the present issue. Burrell cannot sue TDHS directly for damages, Graham, 804 F.2d at 959, so his Sec. 1983 action against TDHS must fail. 9 REVERSED. * The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation 1 Although not directly stated, it seems that TDHS initiated an investigation for Burrell's alleged abuse and neglect of Lina

892 S.W.2d 469 (1995) 319 Ark. 435 STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Billy C. MIDGETT, Appellee. No. 94-800. Supreme Court of Arkansas. February 13, 1995. *470 Robert L. Coleman, Blytheville, for appellant. Preston G. Hicky, Forrest City, for appellee. NEWBERN, Justice. Billy C. Midgett, the appellee, was awarded damages, a statutory penalty, and attorney's fee against State Farm Insurance Company (State Farm), the appellant. The claim arose from an accident in which Mr. Midgett's tractor and sprayer attachment, which operated from the tractor's power take-off, were damaged in a collision with another vehicle. State Farm contends the evidence was insufficient to support the verdict and, in the alternative, that its motion for a new trial should have been granted due to trial errors. While we cannot say the evidence was insufficient to support the verdict, we must reverse the judgment and remand the case because the jury was given an instruction on ambiguity in the insurance policy which we deem to have been prejudicial to State Farm because there was no evidence of any ambiguity. Mr. Midgett asserted the damages to his tractor were covered by his homeowner's policy. The policy provided coverage of Mr. Midgett's personal property with a $500 deductible clause. The policy also declared that, with respect to property used or intended to be used in a business, coverage was limited to $250 when the property was away from the residence premises. The tractor was being driven on a highway when the collision occurred. State Farm concluded, based on statements made by Mr. Midgett shortly after the accident, that the tractor was being used in a business. It thus paid only $250 on Mr. Midgett's claim for over $6,000. A separate declaration in the policy provided coverage was included for a motor propelled vehicle not licensed for use on public highways "used solely to service the insured location." The definitions section of the policy included the following: * * * * * * 2. "business" means a trade, profession or occupation. This includes farming. 5. "insured location" means: a. the residence premises; b. the part of any other premises, other structures and grounds used by you as a residence. This includes premises, structures and grounds you acquire while this policy is in effect for your use as a residence; c. any premises used by you in connection with the premises included in 5.a. or 5.6; *471 d. any part of a premises not owned by an insured but where an insured is temporarily residing; e. vacant land owned by or rented to an insured. This does not include farm land. * * * * * * 1. Sufficiency of the evidence In statements made shortly after the accident, Mr. Midgett said the tractor was used in his business of renting houses and his sod farm business. In response to a request for admission he admitted the sprayer attachment was used on his farm. His testimony at the trial, however, was quite different. He said he referred to his home place as the "farm," and he did not use the tractor in conjunction with his business of renting an office building or houses in Forrest City. He said the sod farm was his son's business and he derived no income from it. Despite the inconsistencies, the jury apparently believed the trial testimony, and we cannot say it was insufficient to support the verdict in Mr. Midgett's favor. The credibility of the witness presents a question for the jury to determine. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992); Takeya v. Didion, 294 Ark. 611, 745 S.W.2d 614 (1988). 2. Ambiguity Over State Farm's objection, the Trial Court instructed the jury as follows: "Where language used in an exclusionary clause as to policy coverage is ambiguous, it should be construed in favor of the insured." That was a correct statement of the law. See Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994); Cooper Tire and Rubber Company v. N.W. Nat'l Cas. Co., 268 Ark. 334, 595 S.W.2d 938 (1980). An ambiguity exists, however, only when a provision is susceptible to more than one reasonable interpretation. Keller v. Safeco, supra. If there is doubt or uncertainty as to the policy's meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Arkansas Farm Bureau Ins. Fed'n v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992). The only argument made during the trial to the effect that the policy was ambiguous was Mr. Midgett's contention that the term "solely" as used in the phrase "used solely to service the insured location" was ambiguous. When arguing for the instruction to the effect that any ambiguity should be construed against State Farm, Mr. Midgett's counsel asked, "What does `solely' mean? Does that mean solely on that day, solely forever? And I think that's an ambiguous term, and I'm going to argue that it is." During cross-examination of a witness for State Farm, Mr. Midgett's counsel apparently attempted to show that the term "solely" was ambiguous, again asserting through questions that it might have some time limit. The witness responded that the word meant that the tractor would not be covered if it were "ever" used other than to service the insured location. That testimony is supported by common dictionary authority. Webster's Third New International Dictionary 2168 (1968). Just as the witness knew what "solely" meant, we have no difficulty with the word. There was no confusion whatever demonstrated at the trial with respect to it or to any other term in the policy. To be ambiguous, a term must be susceptible to more than one reasonable construction. As was stated in an opinion authored by Justice Frank Holt in Southern Farm Bur. Cas. Ins. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976): It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Cas. Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. We agree the giving of the instruction may have suggested ambiguity existed in other *472 terms of the policy, such as "business" or "insured location." No such ambiguity was suggested or shown. The instruction, while it was a correct statement of the law, was prejudicial to State Farm's case, and it requires reversal for a new trial. A final allegation of error is addressed for guidance in the event the issue arises upon retrial. 3. Parol evidence State Farm moved in limine to prevent testimony that its agent had assured Mr. Midgett that the tractor was covered. The Trial Court granted the motion but then held he would allow Mr. Midgett to testify as to his "impressions" which he formed after a conversation with the agent. The testimony ultimately allowed during direct examination of Mr. Midgett by his counsel was: Q Okay. And when you bought this tractor, did you go see Meredith [the State Farm agent]? A Yes. A And what was your reason for going there? A To insure my tractor. Q Now did you buy any new insurance? A No. Q When you left Mr. Meredith's office— now don't tell anything that he told you— but what was your impression when you left there to go buy insurance? [Objection renewed] Q You can tell the jury what your impression was when you left there that day as far as insurance on that tractor. A I believed it was covered. It was covered; it was insured. Q Under what policy? A My homeowner's. While such testimony could have come dangerously close to violating the parol evidence rule, it did not do so. The only testimony was that the visit with the agent left Mr. Midgett with the impression that the tractor was "covered" or "insured." Indeed it was covered and insured in the circumstances described by the policy. The question, however, was whether those circumstances existed. We find nothing in the testimony to indicate any statement made by the agent to the effect that the tractor was covered in any manner other than as provided by the terms of the policy. Reversed and remanded.

NO. 12-12-00374-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN THE ESTATE OF § APPEAL FROM THE RUBY RENEE BYROM, § COUNTY COURT DECEASED § CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION Jerry Byrom appeals from the county court’s order for the sale of real property and appointment of a receiver. In one issue, he contends the county court erred in imposing a constructive trust on his homestead property and ordering its sale to pay guardian’s fees, accounting fees, attorney’s fees, and the interest thereon. We affirm. BACKGROUND1 Jerry Byrom was appointed executor of the estate of his mother, Ruby Renee Byrom. In June 2005, Roy Anderson, the temporary guardian of Mrs. Byrom’s estate prior to her death, filed a $31,992.75 claim against her probate estate for temporary guardian’s fees and attorney’s fees. Byrom rejected the claim. Byrom also filed an inventory and appraisement of Mrs. Byrom’s estate. Anderson objected to the inventory claiming that Byrom had omitted assets that existed at Mrs. Byrom’s death. On July 1, 2008, the county court removed Byrom as executor citing gross mismanagement, misappropriation of funds, and gross misconduct. On August 10, 2009, the county court granted the joint request of Anderson and Duane Coker2 to impose a constructive trust on Byrom’s home constructed with estate funds. The court ordered Byrom to pay 1 For a somewhat more extended recital of the procedural history of this case, see In re Estate of Byrom, No. 12-09-00279-CV, 2011 WL 590588 (Tex. App.–Tyler Feb. 16, 2011, pet. denied) (mem. op.). 2 Coker was the attorney ad litem for Mrs. Byrom in the guardianship proceeding. $200,000.00 into the court’s registry within thirty days. If Byrom failed to comply with the court’s order, his home was to be sold to satisfy the estate’s debts. Byrom appealed the order to this court asserting, inter alia, that he had no legal notice of the hearing that resulted in the order impressing a constructive trust on his homestead. See In re Estate of Byrom, No. 12-09-00279-CV, 2011 WL 590588, at *5 (Tex. App.–Tyler Feb. 16, 2011, pet. denied) (mem. op.). Byrom also maintained that the county court exceeded its authority in imposing a constructive trust on his homestead and conditionally ordering its sale. See id. at *6. In all respects pertinent to this appeal, the judgment was affirmed. On September 4, 2012, the county court ordered the sale of part of Byrom’s property, and Byrom appealed. THE COUNTY COURT’S ORDER In his sole issue, Byrom contends the county court erred in imposing a constructive trust on his homestead property and ordering its sale to pay guardian’s fees, accounting fees, attorney’s fees, and the interest thereon. Anderson argues that Byrom’s complaints are barred by res judicata. We agree. Applicable Law The homestead of a family or of a single adult person is exempt from forced sale for the payment of all debts except for those classes of indebtedness enumerated in Article 16, Section 50(a) of the Texas Constitution. However, “[i]t has long been decided that [the] homestead and exemption laws of this State were never intended to be, and cannot be, the haven of wrongfully obtained money or properties.” Baucom v. Texam Oil Corp., 423 S.W.2d 434, 442 (Tex. Civ. App–El Paso 1967, writ ref’d n.r.e.). “[T]he homestead protection afforded by the Texas Constitution was never intended to protect stolen funds. Bransom v. Standard Hardware, 874 S.W.2d 919, 928 (Tex. App.–Fort Worth 1994, writ denied). Res judicata bars assertion of a claim in a later case when (1) there is a prior final determination on the merits in a court of competent jurisdiction, (2) the parties in the second action are the same or in privity with those in the first action, and (3) the second action is based on the same claims as were raised or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of claims that were finally adjudicated “as well as related matters that, with the use of diligence, 2 should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). Discussion Byrom contends that the trial court erred in imposing a constructive trust on property he claims as homestead and in ordering the sale of that property. Byrom raised these same issues in the prior proceeding between the same parties and arising out of the same facts. This court ruled adversely to Appellant on both claims. See In re Estate of Byrom, 2011 WL 590588, at *7. Therefore, the doctrine of res judicata bars the relitigation of Byrom’s claims. Moreover, the record indicates that sometime during the course of the litigation, Byrom admitted that, while executor, he paid for the construction of the home on the subject property with money from his mother’s estate. Byrom was removed as executor for misappropriation of funds and gross misconduct. Now, apparently, the estate has no money to pay the claims against the estate. Byrom wrongfully used the estate’s money to construct the home he now claims as homestead. The homestead law does not protect property or funds obtained with money misappropriated by a fiduciary. See Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d at 928. Appellant’s sole issue is overruled. DISPOSITION The judgment of the trial court is affirmed. BILL BASS Justice Opinion delivered July 31, 2013. Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment. (PUBLISH) 3  COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JULY 31, 2013 NO. 12-12-00374-CV IN THE ESTATE OF RUBY RENEE BYROM, DECEASED Appeal from the County Court of Cherokee County, Texas. (Tr.Ct.No. 10745) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, JERRY BYROM, for which execution may issue, and that this decision be certified to the court below for observance. Bill Bass, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment. 4 

716 F.2d 900 *Friedv.Sears, Roebuck & Co. 83-3117 UNITED STATES COURT OF APPEALS Fifth Circuit 9/8/83 1 M.D.La. AFFIRMED IN PART 2 --------------- * Fed.R.App. P. 34(a); 5th Cir. R. 34.2.

FILED June 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re the Custody of: ) No. 33132-6-III ) M.S., LS., and R.s.,t ) ) Children, ) ) TRACY CRISWELL, ) UNPUBLISHED OPINION ) Petitioner, ) ) DCFS, ) ) Respondent. ) LAWRENCE-BERREY, J. -Tracy Criswell appeals the superior court's order dismissing her petition for nonparental custody of her three grandchildren. She argues the superior court made multiple errors and improperly found that she had not established adequate cause for a hearing on the merits. We affirm on an alternative basis argued below and on appeal: the superior court did not have authority to hear the nonparental custody petition because there was a pending dependency action involving these children, t For purposes of this opinion, the minor children's initials are used in place of their names. No. 33132-6-III In re Custody of MS., I.S., and R.S. and there is no record that the dependency court ever granted the superior court concurrent jurisdiction. FACTS The Department of Social and Health Services, Division of Children & Family Services (Department) removed M.S., LS., and R.S. from their mother's care in July 2012. The dependency court later found the children to be dependent. Early on in the dependency, Ms. Criswell, the children's maternal grandmother, asked the Department to place the children with her in California. With Ms. Criswell's permission, the Department requested records from Butte County Children's Services in California (California Department). Those records revealed that Ms. Criswell, who has legal custody of a previous boyfriend's two grandchildren, was involved in a domestic violence incident with her new boyfriend in March 2013. The incident involved alcohol and marijuana, and the children were present. The police arrested Ms. Criswell and her boyfriend, and the Department detained the children. The California Department investigated Ms. Criswell for allegations of emotional abuse and general neglect of the two children, and determined that those allegations were substantiated. In the year leading up to this incident, the police responded to Ms. Criswell's home 16 times for calls involving domestic violence, noise 2 No. 33132-6-III In re Custody of MS., I.S., and R.S. complaints, welfare checks, neighbor disputes, vandalism, and public intoxication. Ms. Criswell successfully participated in domestic violence counseling, substance abuse treatment, counseling, and parent education in California, and the California Department returned the two children to her care after two months. In light of the information contained in the California records, the Department was unable to approve a home study for Ms. Criswell or place M.S., I.S., and R.S. in her care. After several other placements, the Department eventually placed all three children in the same licensed foster care home in January 2013. The children all have behavioral or developmental issues, and the foster parents regularly take the children to counseling, have support systems and programs in place through their church, and have a paraprofessional who provides additional support and supervision. The Department offered services to both biological parents. The parents did not complete services or remedy their parental deficiencies, and they both relinquished their parental rights in May 2014. The foster parents are willing to adopt the children. A contract issue with the Department home study evaluator held up the home study process, but the foster parents and the Department are working to get a home study done. 3 No. 33132-6-III In re Custody of MS., 1.S., and R.S. In December 2014, Ms. Criswell filed a prose petition for nonparental custody of the three children. In her petition, Ms. Criswell alleged that awarding her custody of the children would be in their best interests because they would be able to be with the family they grew up with. At one time I had all five children living in my home and I would really love to see us as a hole [sic] again. I also believe they belong with family who loves them dearly and not strangers. They deserve to know their blood relatives. Clerk's Papers (CP) at 10. Ms. Criswell later filed a handwritten affidavit in support of her petition, in which she testified that "[t]he reports regarding [the California step- children], yes they are true but they were returned back in my care after only being detained for two months." CP at 66. Ms. Criswell also stated that since her involvement with the California Department in 2013, she has attended counseling, parenting classes, and has been sober for two years. After Ms. Criswell petitioned for custody, the dependency court appointed Janelle Carman to represent the children. Ms. Carman opposed Ms. Criswell's petition in light of her history with the California Department and the fact that the children are stable in their current placement. The Department moved to dismiss Ms. Criswell's petition on the grounds that the superior court did not have the authority to hear it, and argued the dependency court had exclusive jurisdiction. 4 No. 33132-6-III In re Custody of MS., I.S., and R.S. The superior court held a hearing on Ms. Criswell' s petition. The court reviewed the pleadings and dismissed Ms. Criswell' s petition on the grounds that her affidavits did not establish adequate cause to require a hearing on the merits. In dismissing Ms. Criswell's petition, the court noted the California Department's substantiated findings of emotional abuse and neglect. The superior court did not address the Department's argument that it lacked authority to hear Ms. Criswell's petition. The superior court then sealed the file associated with Ms. Criswell' s petition, except as to the parties to the dependency case. 1 Ms. Criswell appeals. ANALYSIS The Department argued below and on appeal that the superior court lacked authority to hear Ms. Criswell' s petition because there was a pending dependency proceeding and the dependency court never granted concurrent jurisdiction to the superior court. Where an issue was raised, briefed, and argued by the parties below but not decided by the trial court, and the parties on appeal have had sufficient opportunity to brief the issue, an appellate court may affirm the trial court on that alternative basis. LK 1 In her brief, Ms. Criswell notes that the clerk's office initially denied her access to the court file, but that she was eventually able to access the full record by September 2015. Br. of Appellant at 4. This court gave Ms. Criswell two extensions to file her opening brief, which she eventually filed on November 6, 2015. There is no indication that the sealed file hindered Ms. Criswell's ability to argue her case on appeal. 5 No. 33132-6-III In re Custody of MS., I.S., and R.S. Operating, LLCv. Collection Grp., LLC, 181 Wn.2d48, 70-71, 331 P.3d 1147 (2014). To the extent the meaning of chapter 26.10 RCW and chapter 13.34 RCW are at issue, statutory interpretation is a question of law reviewed de novo. State v. Gonzalez, 168 Wn.2d 256,263,226 P.3d 131 (2010). The legislature has enacted numerous statutes to distribute and assign various superior court matters to dependency courts and family courts, which are both divisions of the superior court. 2 In re Dependency of E.H, 158 Wn. App. 757, 765, 243 P.3d 160 (2010). One of these statutes, RCW 13.04.030(1), provides that "the [dependency] courts in this state shall have exclusive original jurisdiction over all proceedings ... [r]elating to children alleged or found to be dependent as provided in chapter 26.44 RCW and in RCW 13.34.030 through 13.34.161." RCW 26.10.030( 1) permits a nonparent to petition for custody of a child. That statute provides that "[e ]xcept as authorized for proceedings brought under chapter 13. 34 RCW, ... a child custody proceeding is commenced in the superior court by a person other than a parent, by filing a petition seeking custody of the child." RCW 26.10.030(1) 2 "While these statutes often speak of 'jurisdiction' they are not jurisdictional because they are not the source of the superior courts' power to hear and determine the issues before them." E.H, 158 Wn. App. at 765. "Article IV, section 6 of the state constitution is the source of that power." Id. 6 No. 33132-6-III In re Custody of MS., IS., and R.S. (emphasis added). RCW 13.34.155(1) authorizes the dependency court hearing a dependency action to hear nonparental custody petitions. Partly to prevent multiple courts from entering inconsistent orders, the superior court must determine whether the subject children are involved in a pending dependency action before hearing a nonparental custody petition. See RCW 26.10.030(1). If they are, and unless the dependency court grants concurrent jurisdiction to the superior court, the superior court must either dismiss or stay the nonparental custody petition. See E.H., 158 Wn. App. at 764 (dependency court did not err by granting concurrent jurisdiction to the superior court to hear the nonparental custody action); In re Dependency ofJ. WH., 106 Wn. App. 714, 726-27, 24 P.3d 1105 (2001) (superior court correctly stayed the custody action pending resolution of the dependency proceeding), rev'd on other grounds, 147 Wn.2d 687, 57 P.3d 266 (2002); In re Marriage of Rich, 80 Wn. App. 252,256,907 P.2d 1234 (1996) (superior court had authority to enter final parenting plan in dissolution proceeding because dependency court had already dismissed dependency petition); In re Marriage of Perry, 31 Wn. App. 604,608,644 P.2d 142 (1982) (superior court had authority to proceed with postdivorce custody modification after dependency court expressly granted superior court concurrent jurisdiction). 7 No. 33132-6-III In re Custody of MS., I.S., and R.S. Here, there was a pending dependency involving the subject children, and there is no record that the dependency court ever granted the superior court concurrent jurisdiction. The superior court thus did not have authority to hear the nonparental custody petition. Because the superior court lacked the authority to hear the nonparental custody petition, we do not reach Ms. Criswell's other assignments of error relating to the superior court proceedings. Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Lawrence-Berrey, J. WE CONCUR: Pennell, J. 8 

200 F.3d 456 (6th Cir. 2000) United States of America, for the use and benefit of Interstate Mechanical Contractors, Inc., Plaintiff-Appellant,v.International Fidelity Insurance Company, Defendant-Appellee. No. 96-6013 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Submitted: August 4, 1999Decided and Filed: January 14, 2000 1 Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 95-00585--Thomas W. Phillips, Magistrate Judge. 2 John M. Neal, THE NEAL LAW FIRM, Knoxville, Tennessee, for Appellant. 3 David R. Duggan, NICHOLSON, GARNER & DUGGAN, Maryville, Tennessee, for Appellee. 4 Before: NELSON and MOORE, Circuit Judges; McKEAGUE, District Judge.* OPINION 5 DAVID W. McKEAGUE, District Judge. 6 Plaintiff Interstate Mechanical Contractors, Inc. ("Interstate"), a subcontractor, commenced this action under the MillerAct, 40 U.S.C. § 270a et seq. Interstate seeks to recover against a payment bond issued by the defendant International Fidelity Insurance Co. ("Fidelity"), as surety for the prime contractor, Parmeco, Inc. ("Parmeco"). On cross-motions for summary judgment, the magistrate judge held that Interstate's complaint was not filed within the Miller Act's one-year statute of limitations period and granted summary judgment in favor of Fidelity. This appeal followed, and, for the reasons set forth below, we AFFIRM the judgment of the magistrate judge. 7 * In November 1993 Interstate contracted with Parmeco to provide and install heating, ventilating, and air-conditioning systems at a U.S. Department of Commerce facility located in Morristown, Tennessee. Pursuant to § 270a of the Miller Act, Parmeco, as principal, posted a bond to guarantee payment under the contract with Fidelity as surety. 8 Under part 3.2 of the contract, Interstate agreed to install electric duct heaters, to coordinate the heaters' installation with other work, and to "[test] operate installed duct heaters to demonstrate compliance with requirements." Interstate further agreed to have substantially completed its work on the construction project by January 21, 1994, and to have finally completed all work by February 8, 1994. In fact, Interstate completed its construction in early June 1994, having installed two electric duct heaters as part of the heating, ventilating, and air-conditioning system. On June 17, 1994, after having been notified that construction was complete, the government took beneficial occupancy of the facility. 9 In late September or early October 1994, Sam Neeley, the subcontractor hired by Interstate to conduct testing of the system, noticed a discrepancy as he prepared his final reports. The numbers reported to him by his employees when they performed initial tests of the system did not satisfy the contract's requirements. Assuming that his employees had inaccurately performed the tests, Neeley went to the facility to inspect the system. He discovered that the two electric heaters installed into the ducts did not meet the contract's specifications. Although the heaters were the right size, fit properly into the ducts, and bore labels from the manufacturer indicating the correct wattage, in fact the heaters' electrical output did not conform to the contract's specifications. Interstate then replaced the heaters in early October, necessitating a third round of testing. Consequently, on October 18, 1994, Neeley returned to the facility and tested the heaters to confirm that they had been properly installed and that they were functioning as specified. 10 Exactly one year after this last test of the heaters, on October 18, 1996, Interstate filed suit in the Eastern District of Tennessee to recover the alleged $30, 967.00 that it claimed it was owed under the contract. Jurisdiction over the subject matter of the action was provided by 40 U.S.C. § 270b(b) and 28 U.S.C. § 1352. 11 The Miller Act requires that suits to recover against a payment bond be filed no more than "one year after the day on which the last of the labor was performed . . . ." 40 U.S.C. § 270b(b). A magistrate judge heard the case by consent of the parties, and found that Neeley's inspection and testing of the heaters on October 18, 1994 was properly characterized as a correction or repair to work previously performed by Interstate. Ruling that testing did not constitute "labor" under the Miller Act, the magistrate judge found that the statute of limitations barred Interstate's claim and awarded summary judgment to Fidelity. Interstate filed a timely notice of appeal, and this Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 636(c)(3). II 12 This court reviews a district court's grant of summary judgment de novo. SeeTerry Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 178 (6th Cir. 1996). A motion for summary judgment should be granted "if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We view the facts and all inferences drawn therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 13 The Miller Act, 40 U.S.C. § 270a et seq., requires a prime contractor on a federal construction project to post both a performance bond and a payment bond. The payment bond provides security to persons who supply labor or materials for the project. Such suppliers are precluded from filing liens on government facilities, and instead are granted a federal cause of action to satisfy any deficiency in payment by the prime contractor. Because of the remedial nature of the Act, its provisions are to be liberally construed. However, recovery under the Act requires a plaintiff to bring a claim within the Act's one-year statute of limitations period. See United States ex rel. Consol. Pipe & Supply Co. v. Morrison-Knudsen Co., 687 F.2d 129, 131 (6th Cir. 1982); United States ex rel. Martin Steel Constructors Inc. v. Avanti Constructors, Inc., 750 F.2d 759, 761 (9th Cir. 1984); Canion v. Randall & Blake, 817 F.2d 1188, 1191 (5th Cir. 1987). 14 The Act provides a supplier of labor or material who has not been paid in full a right of action to sue on the payment bond. See 40 U.S.C. § 270b(a). In order to provide repose, however, the Act specifies that "no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied . . . " § 270b(b). The meaning of the words "labor" and "material" is not self-evident from an examination of the text alone. Unfortunately, turning to the Miller Act's legislative history provides no more insight in interpreting § 270b(b). Prior to a 1959 amendment, the limitations period under the Act commenced on the "date of final settlement" of the contract. See S. Rep. No 86-551 (1959), reprinted in 1959 U.S.C.C.A.N. 1995. In amending the provision, Congress sought to relieve the government of the burden of establishing final settlement dates and to provide "those entitled to sue . . . a simple, fixed, and certain method for determining the period within which the suit must be filed." Id., at 1996. Despite Congress' stated intention, the courts that have been called upon to interpret § 270b(b) have not found the task of establishing the limitations period under the revised statute to be simple, fixed, or certain. 15 This Court has not previously considered in a published opinion exactly when "the last of the labor was performed or material was supplied" for purposes of § 270b(b). As a question of statutory interpretation, we consider the issue de novo. See Vergos v. Gregg's Enters., Inc., 159 F.3d 989, 990 (6th Cir. 1998). We agree with the majority of courts that have interpreted the phrase and have concluded it connotes more than mere substantial completion or substantial performance of the plaintiff's obligations under its contract. See United States ex rel. Austin v. Western Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964). Furthermore, we agree that work done at the request of the government and pursuant to a warranty, subsequent to final inspection and acceptance of the project, falls outside the meaning of labor performed as set forth in § 270b(b). If post-completion work performed pursuant to a warranty could toll the Miller Act's statute of limitations, then the surety would have no repose until all such warranties expired. The challenge before the Court is to assess whether tests of replacement components fall between substantial completion of the project and its final completion, and are thus included as laborunder the Act, or whether such tests are more properly analogized to warranty work and excluded. 16 The majority of circuits that have addressed this issue have held that remedial or corrective work or materials, or inspection of work already completed, falls outside the meaning of "labor" or materials" under § 270b(b). Hence, performing such work or supplying such materials will not toll the Miller Act's one-year statute of limitations. See, e.g., United States for the use of Billows Elec. Supply Co. v. E.J.T. Constr. Co., Inc., 517 F.Supp. 1178, 1181 (E.D. Pa.1981), aff'd 688 F.2d 827 (3rd Cir.), cert. denied, 459 U.S. 856 (1982); United States for the use of Magna Masonry, Inc., v. R.T. Woodfield, Inc., 709 F.2d 249, 250 (4th Cir. 1983); United States ex rel. Austin v. Western Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964); United States for the use of State Elec. Supply Co. v. Hesselden Constr. Co., 404 F.2d 774, 776 (10th Cir. 1968). The majority rule requires the trier of fact to distinguish "whether the work was performed . . . as a 'part of the original contract' or for the 'purpose of correcting defects, or making repairs following inspection of the project.'" Austin, 337 F.2d at 572-73 (quoting United States ex rel. Gen. Elec. Co. v. Gunnar I. Johnson & Son, Inc., 310 F.2d 899, 903 (8th Cir. 1962)). 17 Although this line of inquiry has received criticism, this Court concludes the correction-or-repair versus original-contract test presents a useful framework to determine when the Miller Act's statute of limitations begins to run. As set forth in Austin, the correction-or-repair versus original-contract test provides a bright-line rule from which each interested party--the government, contractor, subcontractor, and surety--can gain a clear understanding of what work constitutes labor under § 270b(b). Furthermore, the majority rule induces the parties to structure their contractual obligations to account for the statute of limitations. Although the liberal purposes of the Miller Act may not be effectuated in each and every case, the benefits of certainty and administrability afforded by a bright-line rule here outweigh the inherent risk of over or under inclusive results presented by bright-line rules. See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.Chi.L.Rev. 1175 (1989). Hence, for the foregoing reasons, we adopt the majority rule for our Circuit. III 18 Having adopted the correction-or-repair versus original-contract test, we turn to address Interstate's particular contentions. Interstate claims a threshold question exists as to whether the inspection and testing that Neeley performed on October 18, 1995, qualifies as "labor" under the Miller Act. Interstate's phrasing of the issue, however, begs the ultimate question before this Court: whether the work performed by Neeley was pursuant to the original contract, or performed as a correction or repair. 19 Interstate argues the inspection and testing of the heaters by Neeley is "labor" because it was required under the contract, not performed in response to a government demand for repair. Fidelity argues in response that the case law clearly distinguishes between repair or remedial work and work performed under the contract; thus, inspection, testing and measurement are by their nature remedial and not "labor." Applying the correction-or-repair versus original contract test to the facts, we hold that the inspection and testing that Neeley performed on his second trip to the facility on October 18, 1995, were remedial in nature. While the contract required Interstate to test the heaters it installed, such testing was performed at least once by Neeley's employees prior to the discovery of the defect in the heaters' manufacture and the government's beneficial occupancy of the facility. A second round of testing occurred in early October. Neeley himself went to the facility and tested the heaters, and discoveredthey were not manufactured to the contract's specifications. Interstate then replaced the heaters. Subsequently, Neeley returned to the facility on October 18, 1995, and tested the replacement heaters. These last tests were of corrective work performed by Interstate, and were not tests required by the original contract. Hence, while we do not decide whether inspection, testing, and measurement are by their nature remedial, we hold that tests of remedial or corrective work do not qualify as "labor" for purposes of the Miller Act. 20 Interstate further contends, however, that the tests Neeley performed on October 18, 1995, logically qualify as "labor" because the failure to perform such testing would have constituted a breach of its contractual obligations. Fidelity responds that an analogous argument was made and rejected by the Fifth Circuit in General Insurance Company of America v. United States for the Use of Audley Moore & Son, 409 F.2d 1326 (5th Cir. 1969). In Audley Moore & Son, the Fifth Circuit held that "[l]abor furnished in the prosecution of the work is not coterminous with the outer limits of all duties provided by the contract." United States for the Use of Audley Moore & Son, 409 F.2d at 1327. Although we agree with the holding in Audley Moore & Son, we are concerned that its ponderous language obscures its reasoning. A contractor's duties under a contract may extend, by virtue of warranty or other obligation, to a point in time far beyond that date when the project has been completed and the "last of the labor was performed or material was supplied" for purposes of the Miller Act. Interstate's argument would have this Court interpret the Miller Act to equate the term "labor" to the term "contractual duties." As a result, the statute of limitations period would commence only after the end of the warranty period, perhaps many years after the project's completion. To interpret the Miller Act as Interstate suggests would frustrate the policy of repose that the limitations period serves, and we find no support for such a construction in the Miller Act's text, legislative history, or in the applicable case law. We thus reject Interstate's proposed construction as contrary to the Act's language and underlying policy. 21 Lastly, Interstate argues that a distinction should be made between corrective work caused by the contractor's own error, and that necessitated by the error of a third party. Interstate suggests that corrective work caused by third party error should constitute labor under the Miller Act, because a contractor who repairs the defective work of others is less culpable than a contractor who repairs its own defective work. Fidelity replies that because defective materials are, in most cases, defective when they are supplied by the manufacturer, adopting a rule that includes the correction of such defects as labor performed would create an exception to the correction-or-repair versus original contract test that would swallow the rule. We fail to see the significance of the proposed distinction. Compared with the surety, the contractor who replaces defective material supplied by a third party is no more worthy of recovery than a contractor who corrects work that was initially improperly performed. In either case, the contractor, and not the surety, should bear the cost of correcting the defective labor or material. Contractors choose the manufacturers from whom they purchase their materials, and can seek to recover against such a supplier in the event that a manufacturer provides a defective product. IV 22 Because the correction-or-repair versus original contract test first enunciated in United States ex rel. Austin v. Western Elec. Co. offers predictability and administrability when applying the Miller Act's statute of limitations, we adopt it for our Circuit. Under this majority rule, tests of remedial work, or tests performed of replacement materials do not constitute laborunder § 270b(b) for purposes of the Miller Act. The Act's inquiry focuses on the nature of the work performed, not its cause. Hence, under § 270b(b), neither repairs necessitated by work improperly performed by the contractor nor repairs necessitated by defective material supplied by a manufacturer qualify as "labor performed" or "material supplied." For those reasons stated above, we AFFIRM the order of the district court granting summary judgment to Fidelity. Notes: * The Honorable David W. McKeague, United States District Judge for the Western District of Michigan, sitting by designation. DISSENT 23 KAREN NELSON MOORE, Circuit Judge, dissenting. 24 I respectfully dissent from the majority's decision to adopt the approach articulated in United States ex rel. Austin v. Western Electric Co., 337 F.2d 568, 572 (9th Cir. 1964), which directs a court to ask "whether [certain] work was performed . . . as a 'part of the original contract' or for the 'purpose of correcting defects, or making repairs following inspection of the project'" in those cases that involve a dispute over the statute of limitations contained in the Miller Act. Id. at 572-73 (quoting United States ex rel. Gen. Elec. Co. v. Gunnar I. Johnson & Son, Inc., 310 F.2d 899, 903 (8th Cir. 1962)). I am concerned that this test, as it has been applied, has caused courts to focus excessively on the question of whether certain work constitutes a correction or repair and to lose sight of the more important question - was the project complete at the time the work in question was performed? 25 Two cases illustrate my concerns with the majority's approach. First, in United States ex rel. Noland Co. v. Andrews, 406 F.2d 790 (4th Cir. 1969), it was discovered, after the government had inspected and accepted a construction project, that two valves that had been required under the contract had never been furnished or installed. "It seems plain to us," the court stated, "that the installation of the two missing valves cannot be characterized as a mere correction of a defect." Id. at 792. Accordingly, the court held that provision of the missing valves constituted material supplied for the purposes of 40 U.S.C. § 270b(b). 26 Second, in United States ex rel. State Electric Supply Co. v. Hesselden Construction Co., 404 F.2d 774, 777 (10th Cir. 1968), the court held that equipment delivered by the plaintiff to replace lost or damaged equipment "concerned materials used for repair or correction and not for the accomplishment of the original contract." The court found it significant that the project had been billed as complete before the replacements were delivered, and the court rejected the plaintiff's argument that the government would not accept the project as finished until the replacement equipment had been installed. See id. at 776. 27 The foregoing cases, like the approach taken by the majority in the present case, could be read as suggesting that whether remedial work performed constitutes labor performed for the purposes of the Miller Act limitations period turns on whether the same work has been done incorrectly in the past or whether the work has not been done at all. See also Austin, 337 F.2d at 573 & n.15 ("punch list" work comprising sixty items including painting, "finish plumbing," and "paving access road" was required for project completion and constituted original contract work). I believe, however, that this approach, which focuses literally upon the distinction between repair or replacement and the performance of omitted work, imports a false dichotomy into the analysis. See, e.g., Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 173 (5th Cir. 1973) ("[S]weeping rules about 'repairs' offer little help in the necessary analysis."). 28 Indeed, a contract is deficient whether a certain widget specified is missing or is defective; after the contract has been accepted and the warranty period has begun, the contract is no more incomplete because of a missing widget than because of a defective one. Moreover, if a contractor discovers an error and, as required by its contract, corrects the work at an earlystage of the project, it could not be reasonably maintained that such corrective work was not performed under the contract. The work may or may not be reimbursable under the contract, but it is not warranty work. If such corrective work constitutes contract work early in the project and midway through the project, it surely would be anomalous to conclude that such corrective work is of a different nature simply because the contractor discovered and corrected the deficiency at the conclusion of its labors. 29 The Miller Act simply refers to labor performed, and, as noted above, the language is to be construed liberally. Although work performed under a warranty subsequent to project completion has no impact on the running of the limitations period of § 270b(b), I believe that a court must be careful to avoid excluding other labor from the protection of the Act. I would therefore conclude that the proper approach to the problem is to determine whether the work at issue is warranty work or work conducted prior to contract completion. See Johnson Servs. Co. v. Transamerica Ins. Co., 349 F. Supp. 1220, 1225 (S.D. Tex. 1972) (stating test as whether the work "was a part of the original contract or was for the purpose of what is sometimes called warranty work, that is, correcting defects or making repairs after the job was complete"), aff'd, 485 F.2d 164 (5th Cir. 1973). 30 Although determining when the contract has been completed and the warranty period has begun may be more difficult than determining whether work is new or repair, the former approach finds strong support in the legislative history. In his letter proposing the 1959 amendment that replaced the "final settlement" language, the Comptroller General noted that an additional purpose to the amendment was to extend the protection of the Act beyond the settlement date of the contract in some instances: 31 It sometimes happens, also, that a supplier will be called upon to furnish labor or materials after 'final settlement,' or even after the limitation has run, in connection with the correction of deficiencies after substantial completion and acceptance of the contract work and 'final settlement' (based upon withholding the value of the deficiencies). Under the proposed amendment, such suppliers will not have lost most or all of the protection intended by the Miller Act but will receive full protection for 1 year after furnishing labor or material. 32 S. Rep. No. 86-551, 1959 U.S.C.C.A.N. at 1999. 33 The Comptroller General describes a situation in which a project has been substantially completed and accepted by the government with recognition that deficiencies remain. Correction of the deficiencies constitutes original contract work and § 270b(b) labor, however, because payment for the remaining work has been withheld pending completion. In speaking of deficiencies, the Comptroller General did not distinguish between omitted work and unacceptable work, nor should he have so distinguished, as correction of either deficiency in this circumstance should constitute § 270b(b) labor. 34 Citing this legislative history, the court in Trinity Universal Insurance Co. v. Girdner, 379 F.2d 317, 318 (5th Cir. 1967), held "that the 'last labor or materials' language [of § 270b(b)] is broad enough to include work performed upon the demand of the government to correct defects in the work as originally completed." As "[t]here [was] no contention that this work was a sham to extend the period of limitation," the court held that replacement of defective insulation and a seal constituted the last labor performed. Id. 35 Following the implication of the legislative history and agreeing with the Trinity court's interpretation of the Act and the history, I would hold that in ascertaining the § 270b(b) limitations period the dispositive question is whether the work at issue was performed or materials were suppliedbefore the project was complete or after completion in accordance with a warranty.1 This test yields a fact-intensive inquiry, but not an unbounded one. Normally, the inspection and unconditional acceptance of a project by the government will indicate project completion. However, acceptance conditioned on the completion of a punch list does not constitute completion until the punch list work is accomplished. Of course the completion date specified in the contract is not dispositive. 36 Applying my proposed analysis to the instant case, I would hold that a material issue of fact exists that precludes the grant of summary judgment in favor of the defendant. Although the labor performed in replacing the duct heaters undoubtedly was corrective, the magistrate judge did not determine whether this corrective action took place before the contract was complete or afterwards as warranty work. I believe that the dispositive question is whether the reinstallation of the duct heaters at some time before October 18, 1994, occurred before the contract was complete. If it did, the work of Interstate's contractor, Neeley, on October 18, 1994, was § 270b(b) labor. The contract contained detailed air balancing and testing requirements, and the performance of this work constitutes labor as the term is used in § 270b(b). 37 It is not at all clear that Interstate's contract was complete when the duct heaters were reinstalled in October 1994. In his deposition, Terry Self, an Interstate official, stated that to his knowledge the company had never received notice that Interstate's work or the building had been accepted. Self did state in an August 1994 letter that "[t]o our knowledge, Interstate finished all work on this project in early June, 1994," but he did so in response to a letter from Parmeco that apparently asserted that Interstate had not completed its work. J.A. at 100. Self went on to note that "[i]f any work is unfinished, it would have to be in the nature of punch list work. This is the first project on which we have had difficulty finding out what work remains unfinished." Id. 38 Furthermore, the circumstances in which the heaters were reinstalled suggest ongoing contract work rather than warranty work. Apparently, the original heaters were installed in April, May, or June 1994. Neeley stated in his deposition that "[w]e were there probably six or seven times off and on from then until October the 18th." J.A. at 42. Apparently, Neeley discovered the heater installation error in early October. From what can be gleaned from the record before the court, it appears that Neeley was on site during this period performing the balancing and testing required under Interstate's contract. Interstate's contract specified that "[t]est runs shall be made over the full design load range where possible and shall continue for as long as necessary to demonstrate that systems will operate as designed." J.A. at 37. The contract also specified that "[a]ny piece of equipment or any item not meeting the system requirements shall be repaired or replaced and the systems rebalanced until the performance is confirmed." Id. (emphasis added). Apparently, the installation error was discovered in the course of these tests and the corrections followed in accordance with the contract. If this is so, this workshould be held to constitute § 270b(b) labor, unless it is shown clearly that the project was accepted as complete prior to October 1994 despite Interstate's failure to comply with the testing requirements of the contract. 39 Often the final labor performed under a construction subcontract will be in response to a punch list. The punch list may include items omitted by the subcontractor or work that inspection indicates must be repaired or replaced. In either case, the completion of the punch list work constitutes labor performed under the contract, and this is well understood within the construction industry. To hold that corrective work performed pursuant to such a punch list does not constitute labor performed within the meaning of § 270b(b) would be inappropriate and, because contrary to everyday understanding, would create a trap for the unwary and undermine the protective effect of the Miller Act. Accordingly, I believe that the corrective or remedial nature of the work performed should not be dispositive for the purposes of § 270b(b). Rather, a court should determine whether the work was performed prior to contract completion, as in the case of a punch list, or was performed after the project was completed under a warranty. 40 The record before us is incomplete. Based upon what is before the court, however, I see no evidence that the work performed by Interstate and its subcontractor in October 1994 was performed after the contract was completed. Thus, I would remand the case for further consideration in light of the foregoing analysis. Notes: 1 Referring back to the widget example, one may ask whether there is a qualitative difference between the performance of corrective work at the end of the project pursuant to a punch list and the performance of corrective work after project completion pursuant to a warranty. For the purposes of the Miller Act, I believe that the difference is significant. The obligation to make the final payment under a construction contract normally commences with the completion of the work, including the completion of punch list work. Thus, under a more logical approach, i.e., one that is based on contract completion, the commencement of the limitations period for suing to recover on the bond for nonpayment will coincide with the accrual of the obligation to pay. Remedial work performed pursuant to a warranty, on the other hand, should have no bearing on either the obligation to make final payment or on the limitations period.

2009 UT App 33 State of Utah, Plaintiff and Appellee, v. Brandon Kyle Rowley, Defendant and Appellant. Case No. 20070489-CA. Court of Appeals of Utah. Filed February 12, 2009. This opinion is subject to revision before publication in the Pacific Reporter. Margaret P. Lindsay, Spanish Fork, for Appellant. Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee. Before Judges Greenwood, Bench, and Orme. OPINION BENCH, Judge: ¶ 1 Defendant Brandon Kyle Rowley appeals his convictions for possession of methamphetamine in a drug free zone, claiming that the evidence against him was seized in violation of the United States and Utah Constitutions. We affirm because searches and seizures by private parties who are not acting in concert with law enforcement officers do not implicate constitutional protections. BACKGROUND ¶ 2 In May of 2006, Rowley was taken into police custody for reasons not pertinent to the instant appeal. As he was taken away, Rowley asked his parents to take care of the things in the bed of his pickup truck, which was parked on the street in front of his parents' home. Rowley's father (Father) was concerned about possible weather damage to the items in the bed of the truck. Because Father could not lift the items, he opted to simply move Rowley's truck inside the garage. ¶ 3 While in the cab of the truck, Father saw a syringe containing an unknown substance and a porcelain cup containing a similar substance in an open cubby hole under the dashboard. Father took these items into the house and showed them to his wife (Mother). Mother then searched the bags that were in the back of Rowley's truck and found a digital scale. Father contacted Story Provstgaard of the Utah County Sheriff's Office (the Officer), whom Father knew from an unrelated police matter, and informed him of what he and Mother had found in their son's truck. Father followed the Officer's instructions and returned the items to where they had been found. When the Officer arrived at Father's home, Father invited him into the garage and the Officer retrieved the evidence in question from Rowley's truck. The unknown substances in the syringe and the porcelain cup were later tested and determined to be methamphetamine. ¶ 4 Rowley was charged with possession of methamphetamine and drug paraphernalia in a drug free zone. Following a preliminary hearing, Rowley was bound over for trial. After losing his motion to suppress the evidence obtained from his truck, Rowley entered a conditional guilty plea to possession of methamphetamine in a drug free zone, reserving the right to appeal the trial court's denial of his motion to suppress. The trial court stayed the execution of Rowley's sentence pending the outcome of this appeal. ISSUE AND STANDARD OF REVIEW ¶ 5 Rowley challenges the trial court's denial of his motion to suppress the evidence obtained from his truck. We review a trial court's decision on this issue under a nondeferential, correctness standard. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699 ("abandon[ing] the standard which extended `some deference' to the application of law to the underlying factual findings in search and seizure cases in favor of non-deferential review"). ANALYSIS ¶ 6 Rowley argues that the Officer's seizure of the incriminating evidence violated his rights guaranteed by the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution. See U.S. Const. amend. IV; Utah Const. art. I, § 14. Rowley centers his appellate argument on language in the trial court's order regarding the plain view doctrine, his parents' lack of actual or apparent authority to consent to the Officer's search of his truck, and the lack of exigent circumstances. These arguments, however, miss the significance of the trial court's factual findings and legal conclusions justifying the seizure on the ground that the evidence was discovered by Rowley's parents' private search of Rowley's truck, which did not implicate constitutional protections.[1] ¶ 7 The United States Supreme Court has long held that "[t]he Fourth Amendment gives protections against unlawful searches and seizures, and . . . its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon . . . sovereign authority, and was not intended to be a limitation upon other than governmental agencies." Burdeau v. McDowell, 256 U.S. 465, 475 (1921). The protections of the Fourth Amendment are "wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the [g]overnment or with the participation or knowledge of any governmental official." United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks omitted). ¶ 8 Courts have subsequently relied on United States v. Jacobsen, 466 U.S. 109 (1984), for the proposition that, in situations where the private searchers repackage or replace the evidence before government agents arrive on the scene, the agents may legally re-search the area or container without a warrant—so long as the agents do not exceed the scope of the original private search. See id. at 119 (stating that government agents could reopen a package that had already been searched and effectively resealed by private parties); United States v. Moore, 943 F.2d 884, 888 (8th Cir. 1991) (holding that "the legality of a subsequent government search is not dependent upon whether the private party conveys the [evidence] to a government agent in a sealed or unsealed condition, but rather, whether the government search exceeds the scope of the antecedent private search" (emphasis added)); State v. Miller, 2004 UT App 445, ¶ 10, 104 P.3d 1272 (allowing for the search of a briefcase previously searched and resealed by private individuals who then contacted the police, because the police search did not exceed the scope of the private search, in accordance with Jacobsen). The Jacobsen court based its "scope of the search" approach on the idea that a person's expectation of privacy, once lost as the result of a private-party search, cannot be restored by that same private party's mere resealing of the container prior to the government's arrival. See Jacobsen, 466 U.S. at 120; accord Miller, 2004 UT App 445, ¶ 10 (stating that a defendant's expectation of privacy in the viewed materials was extinguished by the private actors' search (citing Jacobsen, 466 U.S. at 115, 120)). ¶ 9 In United States v. Mithun, 933 F.2d 631 (8th Cir. 1991), the Eighth Circuit applied Jacobsen, focusing on the scope of the subsequent governmental search as compared to the antecedent private search, to privately discovered evidence found in an automobile. See id. at 634. In Mithun, hotel employees searched a guest's car and found incriminating evidence. See id. at 632. After they replaced the evidence and relocked the car, the employees contacted the police. See id. The employees took the responding officer to the car in question and, under the direction of the officer, re-searched the areas that they had already searched to produce the evidence. See id. at 632-33. This subsequent search involving the police officer was upheld based on the premise that the legality of the search and seizure in Jacobsen "d[id] not turn on whether the private party hands the [evidence] over to the government in a sealed or unsealed condition, so long as the government's subsequent warrantless search does not exceed the scope of the [prior] private search." Id. at 634 (third alteration in original) (internal quotation marks omitted). The Mithun court also equated a governmental re-searching of an automobile to the opening of a privately resealed package, stating that the reopening of a car is "no more significant" than the government having to open a package resealed by private actors, as was done in Jacobsen. See id. ¶ 10 In the instant case, just as in Jacobsen, Mithun, and State v. Miller, 2004 UT App 445, 104 P.3d 1272, the private party who performed the original search effectively "resealed" the container in which the evidence was found. We agree with the Mithun court that a private party's replacement of the items back into a vehicle is no more significant than the items having been found in a mailed package and replaced therein. Rowley's expectation of privacy in the contents of his truck was lost when his parents searched his truck and seized the evidence. Father's replacement of the evidence back into the truck in no way resuscitated Rowley's expectation of privacy, especially in light of the fact that Father had already informed the authorities of the evidence's existence and where it was located.[2] The Officer's subsequent search of the truck was therefore not a violation of Rowley's constitutional protections, unless it exceeded the scope of the prior search performed by Father and Mother. ¶ 11 On appeal, Rowley does not argue that the Officer exceeded the scope of his parents' private search of the truck, nor would the record support such an assertion. The Officer's search and seizure of the evidence in question does not, therefore, implicate Rowley's constitutional protections. CONCLUSION ¶ 12 The evidence Rowley seeks to suppress was found through a private search, which extinguished his expectation of privacy in the evidence. Under the private search doctrine outlined by the Supreme Court in Jacobsen and recently relied upon by this court in Miller, a private party may reveal information to police without implicating constitutional protections. As long as the scope of the private search is not exceeded, the government may even re-search a container or an area already privately searched and resealed. The replacement of the evidence back into Rowley's truck, which is akin to the resealing of a container or package, is legally insignificant and did not restore Rowley's lost expectation of privacy. Because the Officer did not exceed the scope of the parents' original search, the Officer's seizure of the evidence in question did not violate any of Rowley's constitutional protections. The trial court therefore did not err in denying Rowley's motion to suppress.[3] ¶ 13 Affirmed. ¶ 14 WE CONCUR: Pamela T. Greenwood, Presiding Judge, Gregory K. Orme, Judge. NOTES [1] Rowley also does not argue that the private search doctrine should be applied differently in the federal and state constitutional contexts. [2] Rowley's appellate counsel appropriately conceded at oral argument that without the Officer's direction to Father to replace the discovered evidence back in the truck, Rowley would have no tenable argument against the application of the private search doctrine. [3] Because our decision based on the private search doctrine is dispositive, we do not address the other arguments Rowley advances on appeal.

96 B.R. 249 (1989) In re Gary T. ADAM and Connie Adam, Debtors. Phillip D. ARMSTRONG, Trustee of the Estates of Gary T. Adam and Connie Adam, Plaintiff, v. UNITED STATES of America, acting Through FARMERS HOME ADMINISTRATION, Defendant. Bankruptcy No. 86-05546, Adv. No. 88-7095. United States Bankruptcy Court, D. North Dakota. February 6, 1989. *250 Phillip D. Armstrong, Minot, N.D., for Trustee. Clare R. Hochhalter, Bismarck, N.D., for FmHA. MEMORANDUM AND ORDER WILLIAM A. HILL, Bankruptcy Judge. The Chapter 7 trustee, armed with the avoiding powers of section 544 of the Bankruptcy Code, commenced the instant adversary proceeding on July 19, 1988, seeking to avoid Farmers Home Administration's (FmHA) security interest believed to be infirm by virtue of a continuation statement that failed to conform to the requirements of N.D.Cent.Code § 41-09-42(3) (U.C.C. § 9-403(3)). In issue are the cash proceeds stemming from the sale of the secured collateral including farm machinery and livestock. The parties have agreed that the issue as framed by the pleadings may be determined on stipulated facts, exhibits and briefs. Findings of Fact FmHA perfected a security interest in the Debtors' livestock, supplies, farm equipment, inventory and other farm products by filing a UCC-1 financing statement on January 27, 1971, as document file number 143390. Effectiveness was properly continued by the filing of continuation statements on September 8, 1975, and *251 again on September 11, 1980. Both of these continuation statements refer to the original financing statement file number and the trustee does not challenge their validity. On April 18, 1985, a third continuation statement was filed. However, instead of referring to the original financing statement by its filing number, it bore a file number referencing the 1980 continuation statement, to-wit: "This statement refers to original Financing Statement #14851 filed with Register of Deeds Date Filed 9-11-80". The 1980 continuation statement referred to by the 1985 continuation statement does contain the original financing statement file number as well as its filing date. The Debtors filed for relief under Chapter 7 on June 19, 1986. Conclusions of Law 1. The effectiveness of a filed financing statement lapses upon the expiration of five years from the date of filing and the security interest becomes unperfected unless a continuation statement is filed prior to lapse. N.D.Cent.Code § 41-09-41(2) (U.C.C. § 9-402(2)). In re Hilyard Drilling Co., Inc., 840 F.2d 596, 599 (8th Cir. 1988). N.D.Cent.Code § 41-09-42(3) (U.C.C. § 9-403(3)) provides: "A continuation statement may be filed by the secured party within six months prior to the expiration of the five-year period specified in subsection 2. Any such continuation statement must be signed by the secured party, identifying the original statement by file number, and state that the original statement is still effective . . . Upon timely filing of the continuation statement, the effectiveness of the original statement is continued for five years after the last date to which the statement was effective. . . . " The trustee charges that FmHA's security interest lapsed because it failed to conform to U.C.C. § 9-403(3) requirements in several respects. First, that it does not recite the original Financing Statement file number and secondly, that it was filed earlier than six months prior to the expiration of the original five-year period, as continued. FmHA argues that despite these perceived infirmities, the continuation statement substantially complies with the section 9-403(3) requirements and the infirmities ought to be regarded as "harmless error". N.D.Cent.Code § 41-09-41(8) (U.C.C. § 9-402(8)) provides that a "financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading". Minor errors which are not seriously misleading will not invalidate a financing statement or continuation statement which otherwise is in substantial compliance with statutory requirements. The materiality of minor errors in a continuation statement becomes relevant only in those situations where the continuation statement, on its face, substantially complies with section 9-403(3). Compliance with this section requires that a continuation statement (1) be filed within six months prior to the expiration of the original filing; (2) contain the signature of the secured party; (3) identify the original statement by file number; (4) state that original statement is still effective. If any of the foregoing are obviously missing, then there is no substantial compliance and the omission is fatal to the continuation statement's effectiveness. In the case of In re Hilyard Drilling Co., Inc., 60 B.R. 500 (Bankr.W.D.Ark.1986), aff'd, 74 B.R. 125 (W.D.Ark.1986), a secured creditor attempted to qualify a second financing statement as a continuation of an earlier financing statement. The court, noting the second financing statement failed to refer to the earlier financing statement, failed to state that the original financing statement was still effective and had not been filed within six months of the original financing statement, said that the second financing statement did not substantially comply with U.C.C. § 9-403(3) and thus could not come within the "harmless error" exception of section 9-402(8). *252 2. Although the 1985 continuation statement in issue did not bear the original financing statement file number, it did bear the file number of the immediately preceding continuation statement which, in turn, bore file number as well as date of filing of the original financing statement. The reason for requiring a filing number reference is, of course, so that a party searching the record will be directed to the original financing statement. Several courts, considering erroneous file numbers on continuation statements, have held them to be nonetheless in substantial compliance with § 9-403(3) because the requisite notice is provided. In In re Edwards Equipment Co., 46 B.R. 689, 692 (Bankr.E.D.Okla. 1985), the continuation statement bore the file number of an amended financing statement rather than the original. The amended financing statement did, however, refer to the original financing statement by the correct file number. The court, pointing to the "notice concept", held that the error was not misleading because, "a creditor searching the index for this particular debtor is assuredly provided with information sufficient to be directed back to the original financing statement." Similarly, in In re Vincent Gaines Implement Co., Inc., 71 B.R. 14 (Bankr.E.D.Ark.1986), a continuation statement referencing the original financing statement by an erroneous file number was found to be not seriously misleading because a searcher coming upon the continuation statement would be placed on notice to search the debtor index whereupon the correct file number would be discovered. Indeed, the Eighth Circuit in its appellate decision in the Hilyard case, supra, intimated that so long as a continuation statement gives an indication that it was filed for the purpose of continuing an earlier financing statement and provides some linkage to the original, it is in substantial compliance with U.C.C. § 9-403(3) and the omission of the original file number is harmless error. In re Hilyard Drilling Co., Inc., 840 F.2d at 600. Because the 1985 continuation statement clearly references the previous 1980 continuation statement which, in turn, contains a file number reference to the original financing statement, it does provide definite linkage to the original financing statement sufficient to put an inquiring searcher on notice. In this respect the 1985 continuation statement is in substantial compliance with U.C.C. § 9-403(3) and the incorrect file number is not seriously misleading. 3. The original financing statement was filed on January 27, 1971, with subsequent continuation statements being filed on September 8, 1975, September 11, 1980, and April 18, 1985. FmHA asserts that the previous continuation statement would have expired on September 11, 1985, and hence its April 18, 1985, continuation was within six months of expiration. FmHA in making this argument misconstrues the statutory method for calculating the time period necessary for effective continuation statement filings. Section 9-403(3) requires that a continuation statement be filed within six months prior to the expiration of five years from the date of filing of the original financing statement. Succeeding continuation statements must be filed within six months prior to the expiration of the original financing statement as continued. Cases are uniform in holding that extension periods occasioned by continuation statements do not commence on the filing date of a prior continuation statement, but rather from conclusion of the initial five year financing statement period and the end of any subsequent five-year extension period. Matter of Hubka, 64 B.R. 473 (Bankr.D.Neb.1986); In re Vermont Fiberglass, Inc., 44 B.R. 505 (Bankr. D.Vt.1984); In re Davison, 29 B.R. 987 (Bankr.W.D.Mo.1983). See also: Op.Atty. Gen.Montana, 40 Op. No. 60, 39 U.C.C.Rep. 709 (1984); Op.Atty.Gen.Iowa, Op. No. 73-5-6, 12 U.C.C.Rep. 1251 (1973); Op.Atty. Gen.North Carolina, 22 U.C.C.Rep. 266 (1977); Op.Atty.Gen.Iowa, Op. No. 74-025, 14 U.C.C.Rep. 360 (1974). To be effective, a continuation statement must be filed within the six-month time period prescribed by section 9-403(3). The requirement is unambiguous and renders a prematurely *253 filed continuation statement ineffective. Matter of Hubka, supra; In re Hays, 47 B.R. 546 (Bankr.N.D.Ohio 1985); see generally 1A Benders U.C.C.Code Serv. § 6C.06A[1] (Supp.1988). FmHA calculates the five year period from the date of the preceding 1980 continuation statement was filed which is incorrect. Commencing with the original financing statement filed January 27, 1971, each subsequent five-year period must be fully run out without regard to the filing date of intervening continuation statements. Thus, the original financing statement ran to January 27, 1976, continued by the September 8, 1975 continuation statement to January 27, 1981, and finally continued by the September 11, 1980 continuation statement to January 27, 1986. In order to effectively continue the financing statement beyond January 27, 1986, the continuation statement had to have been filed within six months preceding January 27, 1986, which is July 27, 1985. The April 28, 1985 filing was premature and clearly fails to meet one of the requirements of U.C.C. § 9-403(3). This failure cannot be overcome by resorting to U.C.C. § 9-402(8) because by this failure the continuation statement was not in substantial compliance with section 9-403(3). The effect of FmHA's failure to file its continuation statement within six months prior to the expiration of the original five-year period as run out by the 1975 and 1980 continuation statements renders it ineffective. See Hilyard, supra. The Debtors' Chapter 7 petition was filed on June 19, 1986, and as of that date the trustee became vested with the status of a lien creditor with priority over any security interest that was unperfected as of that date. FmHA's security interest was unperfected on June 19, 1986, because the effectiveness of its financing statement lapsed on January 27, 1986, due to its failure to file its continuation statement in conformity with U.C.C. § 9-403(3). Accordingly, the trustee has a first lien in the Debtors' livestock, supplies, farm equipment, inventory and other farm products which is paramount to the interest of FmHA which is unperfected and avoided. Further, that the trustee, in consequence of his priority position, shall be entitled to possession of all collateral and the proceeds thereof. JUDGMENT MAY BE ENTERED ACCORDINGLY. SO ORDERED.

612 F.Supp. 118 (1985) Minnie CARLTON, Plaintiff, v. INTERFAITH MEDICAL CENTER, Defendant. No. 83 CV 1485. United States District Court, E.D. New York. June 18, 1985. *119 *120 Charles E. Morrison, New York City, for plaintiff. Guggenheimer & Untermyer, David H. Diamond and Richard A. Covin, New York City, for defendant. MEMORANDUM AND ORDER McLAUGHLIN, District Judge. Plaintiff, a former employee of defendant Interfaith Medical Center ("Interfaith"), brings this action for damages and injunctive relief arising from the conditions of her former employment and from her ultimate discharge. Plaintiff alleges violations of the Equal Pay Act, 29 U.S.C. § 206; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626; Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e-5; and 42 U.S.C. § 1981. In addition, plaintiff contends that her lay-off was in breach of an alleged employment agreement and of an implied covenant of good faith. Finally, plaintiff alleges that Interfaith fraudulently induced her to continue working at the hospital and that she relied on that inducement to her detriment. Defendant moves for summary judgment. Fed.R.Civ.P. 56. For the reasons set forth below, defendant's motion is granted in part and denied in part. Facts Plaintiff, a fifty-nine year old black female, was employed by Jewish Hospital and Medical Center of Brooklyn ("JHMCB") from October 9, 1969 until December 31, 1982. From 1969 until 1974, plaintiff worked as a registrar in the outpatient area of the accounting department. From 1974 until her discharge, plaintiff held the title of Supervisor-OPD Registration. Interfaith contends, however, that plaintiff did not perform supervisory work. On January 1, 1983, Interfaith, a New York not-for-profit corporation, commenced operations of an acute health care facility on the former site of JHMCB, which had filed a petition under Chapter 11 of the Bankruptcy Act, 11 U.S.C. § 701 et seq. All JHMCB employees initially were retained by Interfaith to insure continuity of *121 patient care. As a condition to approving the establishment and operation of Interfaith, however, the State of New York mandated a substantial reduction in the number of patient beds and employees. Accordingly, significant lay-offs took place at Interfaith in early 1983. Plaintiff was among the several hundred employees, including 33 non-union[1], non-professional employees, laid off. Plaintiff contends that on February 5, 1983, she was advised by her supervisor, Ms. Porter, that no staff member's job would be in jeopardy as a result of the merger. Ms. Porter, a black female, states in her affidavit that she cannot recall making such a representation. In any event, plaintiff was advised on or about February 7, 1983 that she would be laid off effective February 18, 1983. Discussion Equal Pay Act 29 U.S.C. § 206(d) states that: No employer ... shall discriminate ... on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work.... Plaintiff bears the burden of proving equality of work. Strecker v. Grand Forks County Social Service Board, 640 F.2d 96, 99-100 (8th Cir.1980). The relevant inquiry is "whether the performance of the jobs requires substantially equal skill, effort and responsibility under similar working conditions." Orahood v. Board of Trustees, et al., 645 F.2d 651, 654 (8th Cir.1981). Plaintiff claims that she was paid less than a male supervisor who performs an allegedly comparable function in the in-patient accounting department. Interfaith contends, however, that a supervisor of in-patient accounting deals with more paper work and supervises more employees than does his out-patient counterpart, and, thus, that the two jobs are not equal. "[O]n a motion for summary judgment the Court cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce and Industry Insurance Company, 524 F.2d 1317, 1319-20 (2d Cir.1975). Clearly, material questions of fact exist as to (a) whether plaintiff did, in fact, perform supervisory duties, and (b) whether the supervisory positions in the in-patient and out-patient departments involve equal skill, effort and responsibility performed under similar working conditions. Accordingly, defendant's motion for summary judgment on the Equal Pay Act claim is denied.[2] Discriminatory Discharge Plaintiff alleges that her lay-off constitutes age, sex and race discrimination, in violation of the ADEA, Title VII, and 42 U.S.C. § 1981. The Supreme Court has set forth the controlling legal standards regarding the burden of proof in such cases: First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." ... *122 Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Even assuming that plaintiff has made out a prima facie case of discrimination, she has adduced no evidence whatsoever to demonstrate that Interfaith's proffered reasons for her discharge are pretextual. Interfaith asserts, initially, that plaintiff's lay-off was part of a massive reduction in force which was mandated by the State of New York as a condition to certifying Interfaith's operation. This fact cannot be disputed, and indeed, is substantiated by a newsletter article attached to plaintiff's responsive papers. See Plaintiff's Ex. #4. Of course, the mere existence of a reduction in force scenario does not remove defendant's actions from the scrutiny of this Court, since the method defendant chooses to carry out that force reduction could be discriminatory. See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983). When faced with such a scenario, however, the courts have placed greater emphasis on the requirement that plaintiff prove intent to discriminate. See Williams v. General Motors, Corp., 656 F.2d 120, 128 (5th Cir. 1981); Coburn v. Pan American World Airways, Inc., 711 F.2d 339, 343 (D.C.Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983). Interfaith provides a legitimate non-discriminatory business reason for laying off plaintiff Carlton. The affidavits submitted by Interfaith reflect that to achieve the mandated force reductions, a business decision was made to reorganize the out-patient accounting department. The plan was to eliminate the two intermediate supervisory positions held by plaintiff and another female and to create, instead, a new position of assistant manager. That position, which entails an expanded range of duties, was filled by a black female who was transferred from the in-patient accounting area where her position also had been eliminated. Plaintiff's former supervisor, Valerie Porter, a black female, indicated that she recommended plaintiff's lay off, in part, because she concluded that plaintiff was not performing supervisory work.[3] Clearly, it is the perception of the decision-maker, and not that of plaintiff herself, which is relevant. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980). Moreover, Porter states in her affidavit that neither race, sex nor age was a factor in her recommendation. Inasmuch as Interfaith has articulated a legitimate, non-discriminatory reason for plaintiff's discharge, plaintiff, to survive a motion for summary judgment, must "prove the existence of factual issues demonstrating that the stated reasons were merely a pretext for discrimination." Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985). Mere conclusory allegations of discrimination will not suffice. Zahorik v. Cornell University, 729 F.2d 85, 94 (2d Cir.1984). Plaintiff asserts that direct and circumstantial evidence exists in the form of "memorandums, notices, letters and statistics" tending to show that age was a factor in Interfaith's decision to discharge her. Insofar as the memoranda, notices and letters are concerned, plaintiff fails to provide details as to what documents she is referring to and how they indicate that age is a factor. Clearly, the documents she has submitted fail to provide the slightest hint *123 that either age, race or sex was a factor in Interfaith's decision. Moreover, plaintiff admits that no one in a supervisory capacity at Interfaith ever made any disparaging remarks about her race, sex or age; nor did anyone indicate that her lay-off was because of her race, sex or age. Plaintiff relies primarily upon statistical evidence. Although it is clearly proper for a plaintiff to rely on statistical evidence in proving pretext, McClain v. Mack Trucks, Inc., 532 F.Supp. 486, 489 (E.D.Pa. 1982), aff'd, 707 F.2d 1393 (3d Cir.1983), the mere existence of such evidence does not preclude summary judgment, Kahn v. Pepsi Cola Bottling Group, 547 F.Supp. 736, 739 (E.D.N.Y.1982). As the Second Circuit has noted, "[w]here, as here, the statistical evidence ... leads to an indisputable result, the judge is justified in taking the evaluation of the statistics away from the jury." Geller v. Markham, 635 F.2d 1027, 1034 (2d Cir.1980). The statistical evidence in this case reveals that while 57% of the 33 non-union, non-professional employees laid off by Interfaith in 1983 were forty years of age or older, 58% of those retained were over forty. Likewise, while 66% of those laid off were black, 61% of those retained are black. Approximately 45% of those laid off were black females, with an equal percentage of black females retained. Accordingly, plaintiff has simply failed to put forth any evidence which supports her claim that Interfaith's reduction in force had a disparate impact upon members of her class.[4]See Geller, 635 F.2d at 1032. Likewise, the record is devoid of evidence indicating that Interfaith acted with the discriminatory motive necessary to establish a claim of disparate treatment. Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, n. 15, 52 L.Ed.2d 396 (1977)[5]. Indeed, the lack of proof or admission of intentional discrimination is dispositive of plaintiff's § 1982 claim. Firefighters Local Union No. 1784 v. Stotts, ___ U.S. ___, 104 S.Ct. 2576, 2590 n. 16, 81 L.Ed.2d 483 (1984); General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 383, 102 S.Ct. 3141, 3146, 73 L.Ed.2d 835 (1982). In short, there simply is nothing in the record to indicate that either age, sex or race was a determinative factor in plaintiff's lay off. Hagelthorn, 710 F.2d at 86.[6] As the Second Circuit recently has stated: To allow a party to defeat a motion for summary judgment by offering purely *124 conclusory allegations of discrimination absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly [may grant] summary judgment. Meiri v. Dacon, 759 F.2d at 998. Accordingly, defendant's motion for summary judgment on plaintiff's ADEA, Title VII and § 1981 claims is granted. State Law Claims Plaintiff asserts various state law claims in connection with her discharge, including breach of employment contract, breach of an implied covenant of good faith, fraud, detrimental reliance and tortious wrongful discharge. For the reasons set forth below, defendant is granted summary judgment on these claims. Clearly, summary judgment must be granted as a matter of law on plaintiff's claims of breach of implied covenant of good faith and tortious wrongful discharge, since both theories of recovery specifically have been rejected by the New York Court of Appeals. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 297, 304-05, 461 N.Y.S.2d 232, 233, 237, 448 N.E.2d 86, 87, 91 (1983). Cf. Boniuk v. New York Medical College, 535 F.Supp. 1353, 1355 (S.D.N.Y.), aff'd, 714 F.2d 111 (2d Cir.1982). Nor can plaintiff succeed on her claim of breach of employment contract. Plaintiff acknowledged at her deposition that she had no written employment contract, and that no one in a position of authority ever promised her anything regarding the length of her employment. Nonetheless, plaintiff contends that certain statements allegedly made by her supervisor, together with a December 16, 1982 newsletter distributed to employees, created a contract of employment. I am not persuaded. The newsletter article, after acknowledging Interfaith's obligation to reduce the work-force, refers to a statement by the State Health Commissioner that "the state would attempt to provide every hospital worker who lost his/her job through the merger with the same level hospital job." Plaintiff's Ex. 4 (emphasis added). This statement, attributed to a state official, can hardly form the basis of a claim against Interfaith. Thus, plaintiff's claim rests solely upon the statements attributed to her supervisor, Ms. Porter. Plaintiff alleges that Ms. Porter told the employees at a meeting held two or three days before plaintiff learned of her lay-off that their jobs would not be affected by the merger. Clearly, a question of fact exists as to whether this statement was made. Defendant argues, however, that assuming arguendo that the statement was made, it is nonetheless entitled to summary judgment. I agree. As the New York Court of Appeals recently has stated: [A]bsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired. Murphy v. American Home Products Corp., 58 N.Y.2d at 305, 461 N.Y.S.2d at 237, 448 N.E.2d at 91. Of course, an express limitation on an employer's right to discharge an at-will employee must be given effect. See Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 460, 457 N.Y.S.2d 193, 194, 443 N.E.2d 441, 442 (1982). In Weiner, the Court of Appeals held that the plaintiff, although not employed for a fixed term, had pleaded a good cause of action for breach of employment contract where he was "discharged without the `just and sufficient cause' or the rehabilitative efforts specified in the employer's personnel handbook and allegedly promised at the time he accepted the employment." Id. at 460, 457 N.Y.S.2d at 194, 443 N.E.2d at 442. The New York courts, however, have refused to extend the Weiner decision beyond the facts of that case. See, e.g., O'Donnell v. Westchester Community Service Council, Inc., 96 A.D.2d 885, 466 N.Y.S.2d 41, 42 (2d Dep't 1983); Utas v. *125 Power Authority of the State of New York, 96 A.D.2d 940, 940-41, 466 N.Y.S.2d 390, 391 (2d Dep't 1983). The Weiner case is clearly distinguishable from this case, since (a) plaintiff was not induced to take her job at Interfaith because of Porter's alleged representation, (b) the representation was not incorporated into an employment application, (c) plaintiff produces no support for her allegations that she rejected other offers of employment in reliance on the representation and (d) the representation was not contained in an employee handbook. See Utas, 96 A.D. at 940-41, 466 N.Y.S.2d at 381. Clearly, plaintiff cannot succeed on her breach of contract claim since there was no employment agreement to be breached. Accordingly, summary judgment is entered for the defendant. Likewise, plaintiff has failed to demonstrate a question of fact as to the detrimental reliance necessary to form a claim of promissory estoppel. Plaintiff alleges that she continued to work at Interfaith and did not look for work elsewhere because she believed Porter when she said that plaintiff's employment at Interfaith was secure. Plaintiff provides absolutely no details to support her bald allegation that she relied to her detriment on Porter's statement allegedly uttered a mere two-three days before plaintiff was notified of her lay-off. To the contrary, plaintiff testified at a deposition that she did not turn down any job offers on the basis of Porter's statement, Deposition at 55, and that she does not know if she would have looked for other employment during the two-day period if the statement had not been made, id. at 51. I am reminded of the Second Circuit's frequent admonition that "[a] party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial for in doing so he risks the possibility that there will be no trial." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). Plaintiff offers no indication that evidence exists that would permit a reasonable inference that she detrimentally relied on Porter's statements. Accordingly, defendant is granted summary judgment on the claim of detrimental reliance. Finally, the absence of evidence of detrimental reliance is also fatal to plaintiff's claim of fraud. Galvez v. Local 804 Welfare Trust Fund, 543 F.Supp. 316, 318 (E.D.N.Y.1982); Cable v. Hechler, 532 F.Supp. 239, 244 (E.D.N.Y.), aff'd, 685 F.2d 423 (2d Cir.1981).[7] Moreover, "an essential element of an action for fraud or deceit is a representation as to a past or present fact, not [as is the case here] as to what will be done in the future." Galvez, 543 F.Supp. at 318. Conclusion Defendant's motion for summary judgment on the Equal Pay Act claims is denied. In all other respects, defendant's motion for summary judgment is granted. SO ORDERED. NOTES [1] Plaintiff has not been represented by a union since 1974. [2] Defendant also argues that it is liable, if at all, only for Equal Pay Act violations occurring on or after January 1, 1983, the date of the merger. The presence of this issue also precludes summary judgment, however, since "the test for successor liability is fact specific and must be conducted `in light of the facts of each case....'" In re National Airlines, Inc., 700 F.2d 695, 698 (11th Cir.1983) (quotation omitted). The factors to be considered include (1) whether Interfaith had notice of the violations, (2) whether the predecessor hospital is in a position to provide relief, (3) whether there exists a substantial continuity of business, (4) whether the supervisory personnel is substantially the same, and (5) whether the same jobs exist under substantially the same working conditions. See E.E.O.C. v. Sage Realty Corp., 507 F.Supp. 599, 612 n. 20 (S.D.N.Y.1981). [3] Defendant also has provided evidence that plaintiff received several less than satisfactory performance evaluations in 1980-81. Plaintiff's 1982 evaluation reflects significant improvement. It is unclear whether plaintiff's supervisor considered the 1980-81 evaluations in making her recommendation that plaintiff be laid off. [4] In addition to the statistics referred to above, plaintiff has submitted several pages of a computer printout which she allegedly received from the EEOC. See Plaintiff's Exhibit 5. Plaintiff claims that the data obtained from the EEOC differs from the statistics provided by defendant, thus, creating a question of fact. Plaintiff offers no explanation, however, as to what this raw data represents and/or how it contradicts defendant's statistics. Absent such analysis, plaintiff's data lacks real meaning and need not be considered on this motion. Kahn v. Pepsi Cola Bottling Group, 547 F.Supp. 736, 739 n. 1 (E.D.N.Y.1982). In any event, defendant's statistics were set forth fully in its Statement of Material Facts Not In Dispute. Thus, these statistics are "deemed to be admitted unless controverted by the statement required to be served by the opposing party." Local Rule 3(g). Defendant's statistics are not controverted by plaintiff's Rule 3(g) statement; indeed, plaintiff's statement merely consists of five conclusions of law. Accordingly, defendant's statistics are deemed admitted. [5] Significantly, the Second Circuit recently has noted: The summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation. Meiri v. Dacon, 759 F.2d at 998. [6] Although plaintiff complains of inadequate discovery, plaintiff had ample opportunity to complete discovery before the May 18, 1984 cut-off date. Inasmuch as plaintiff makes no showing of good cause for her failure to complete discovery within the allotted time, her claim of inadequate discovery will not be considered on this motion. Cf. Zahorik v. Cornell University, 729 F.2d 85, 91 (2d Cir.1984). [7] Under New York law, the five elements of a fraud claim are misrepresentation, knowledge of falsity, intent to deceive, reliance and damages. Mallis v. Bankers Trust Co., 615 F.2d 68, 80 (2d Cir.1980); Freschi v. Grand Coal Venture, 551 F.Supp. 1220, 1230 (S.D.N.Y.1982).

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 17, 2002 Session EFFIE LOUISE HAYES v. ROGER STRUTTON, ET AL . Appeal from the Circuit Court for Hamilton County No. 01-C-700 Jackie Schulten, Judge FILED JUNE 11, 2002 No. E2001-01765-COA-R3-CV Plaintiff/Appellant, Effie Louise Hayes, appeals the Hamilton County Circuit Court's judgment on the pleadings dismissing her complaint wherein she asserted that the Defendants/Appellees, Roger Strutton, Betty Strutton, Gary Lester and Mark Rothberger, defrauded her of real property. We affirm the judgment of the Circuit Court. Tenn.R. App.P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and D. MICHAEL SWINEY , JJ., joined. Effie Louise Hayes, Chattanooga, Tennessee, pro se Arthur P. Brock and Daniel M. Stefaniuk, Chattanooga, Tennessee, for the Appellee, Mark G. Rothberger Gary E. Lester and Robert S. Grot, Chattanooga, Tennessee, for the Appellees, Roger Strutton, Betty Strutton and Gary Lester MEMORANDUM OPINION This is an appeal from a judgment of the Circuit Court for Hamilton County granting motions for judgment on the pleadings filed by the Defendants/Appellees, Roger Strutton, Betty Strutton, Gary Lester and Mark Rothberger, and dismissing the complaint of Effie Louise Hayes wherein she asserted that the Defendants/Appellees, Roger Strutton, Betty Strutton, Gary Lester and Mark Rothberger defrauded her of real property. We find this is an appropriate case for affirmance under Rule 10 of this Court.  Two orders were entered by the Circuit Court setting forth its final judgment in this matter. The first of these orders, which was entered on June 22, 2001,dismisses Ms. Hayes' complaint as to Defendant Mark Rothberger. The second of the orders, which was entered on August 10, 2001, dismisses Ms. Hayes' complaint as to Defendants Roger Strutton, Betty Strutton and Gary Lester. The order dismissing Ms. Hayes' complaint as to Mr. Rothberger sets forth the following findings: 1. The gravamen of the plaintiff's Complaint against Rothberger is malpractice, and the plaintiff's cause of action against defendant Rothberger is barred by the applicable statute of limitations, T.C.A. sec 28-3-104(a)(2); 2. This Court is without jurisdiction to undertake disciplinary proceedings as T.C.A. sec 28-3-202(a) has been repealed; 3. There is no genuine issue as to any material fact and defendant Rothberger is entitled to judgment as a matter law given that the claims against defendant Rothberger asserted in the plaintiff's Complaint are barred by the doctrine of res judicata as they have been dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by the United States District Court, Eastern District of Tennessee in Effie Louise Hayes vs. United States Bankruptcy Court, et al., Docket No. 1:-CV-055. The order of the Circuit Court entered July 30, 2001, dismisses Ms. Hayes's claim against the remaining Defendants based upon the following findings: 1. The plaintiff fails to state a claim upon which relief can be granted; 2. Plaintiff's claims based on 42 U.S.C. sec.s 1982, 1983, 1984, and 1985 and Tenn.Code.Ann. sec.s 39-14-117, 39-11-710, 39-11-710 and 39-11-712 are barred based on the doctrine of res judicata being that Federal District Court for the Eastern District of Tennessee, Southern Division dismissed all of plaintiff's claims against the same defendants based on those very same statutes in case number 1:00-CV-055; 3. Plaintiff's claims against Roger and Betty Strutton and Gary Lester for common law fraud are barred by the doctrine of res judicata in that a court of competent jurisdiction entered judgments on the merits concerning the same cause of action and involving the same parties in the General Sessions Court of Hamilton County, Tennessee in cases number D441497 and 444008; 4. This Court is without jurisdiction to undertake disciplinary proceedings as T.C.A. sec. 23-3-202(a) has been repealed. -2-  We note that on March 20, 2002, Ms. Hayes filed two briefs in this appeal. One of these briefs is styled "EFFIE LOUISE HAYES Appellant, vs. MARK G. ROTHBERGER Appellee.". The other brief is styled "EFFIE LOUISE HAYES Plaintiff/Appellant, vs. ROGER STRUTTON, BETTY STRUTTON, AND GARY E. LESTER Defendant/Appellees" In her brief with regard to Mr. Rothberger, Ms. Hayes has failed to state in what respect she contends that the Circuit Court erred in its order of August 10, 2001, dismissing her complaint against Mr. Rothberger. She has further failed to articulate issues presented for our review and she summarizes her argument as follows: If someone stole your money, that person would probably be serving time. It appears that a difference has been made between civilian and law. It appears that because of Mark Rothberger's position, he has a license to steal. It was stated by Hayes that Attorney Rothberger used the U.S. Bankruptcy Court to steal. This summary fails to address any of the grounds for dismissal set forth by the Court in its order August 10, 2001. Because Ms. Hayes has failed to assert any grounds for contesting the order of the Court entered August 10, 2001, we find her appeal to be without merit. In her brief with respect to Mr. and Ms. Strutton and Mr. Lester, Ms. Hayes designates "Questions/Answers Presented for Review" as follows: A. Was the trial court correct in granting Roger and Betty Strutton's and Gary Lester's Motion for Judgment on the Pleadings where the pleadings showed that Effie Hayes' fraud claim was barred under the doctrine of res judicata? Answer: No, the trial was incorrect B. Was the trial court correct in granting Roger and Betty Strutton's and Gary Lester's Motion for Judgment on the Pleadings where the pleadings showed that Effie Hayes' claims based on Tennessee and federal statutory law were barred under the doctrine of res judicata? Answer: Incorrect C. Was the trial court correct in dismissing Mrs. Hayes' claim seeking disbarment of Gary Lester, because it did not have jurisdiction to hear such a claim? Answer: Incorrect Although Ms. Hayes presents the above issues for our review, at no point in her brief does she set forth an argument which articulates the basis for her assertions that the Court erred as to -3- these issues nor does she cite any authority which would support such assertions. As recognized in State v. Brown, 795 S.W.2d 689 (Tenn.Cr.App. 1990) at page 698: Failure of a defendant to cite authority for propositions in his argument on appeal constitutes waiver of the issue. State v. Houston, 688 S.W.2d 838 (Tenn. Crim.App.1984); Moorman v. State, 577 S.W.2d 473 (Tenn.Crim.App.1978). The brief of the appellant should contain an argument setting forth the contentions of the appellant with respect to the issues presented with citations to the authorities and appropriate references to the record. Accordingly, we find that Ms. Hayes has waived those issues set forth in her brief as to Mr. and Ms. Strutton and Mr. Lester. For the foregoing reasons the judgment of the Circuit Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against Effie Louise Hayes. _________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE -4- 

Case: 10-60879 Document: 00511596114 Page: 1 Date Filed: 09/08/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 8, 2011 No. 10-60879 Summary Calendar Lyle W. Cayce Clerk BACKARI MACKEY, Petitioner-Appellant v. FEDERAL BUREAU OF PRISONS; BRUCE PEARSON, Warden, Respondents-Appellees Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:09-CV-90 Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Backari Mackey, federal prisoner # 21282-001, appeals the denial of his 28 U.S.C. § 2241 petition, which he filed to challenge his disciplinary proceeding. Mackey was convicted of use of marijuana and was sanctioned with a 30-day term of disciplinary segregation, which was suspended pending 180 days of clear conduct, loss of 40 days of good conduct time, and visitation restrictions. We review the district court’s legal conclusions de novo; factual findings are * 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: 10-60879 Document: 00511596114 Page: 2 Date Filed: 09/08/2011 No. 10-60879 reviewed for clear error. Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). Mackey does not challenge the district court’s determination that he received the required due process protections. See white brief, 1-12. Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Thus, Mackey has abandoned any challenge to the district court’s determination that he received the protections mandated by the Due Process Clause. See id. Mackey’s claims for habeas relief are based on the assertion that prison officials acted arbitrarily and capriciously by failing to follow certain federal regulations and Bureau of Prisons (BOP) policy statements. Specifically, he contends that he is entitled to relief because prison officials (1) failed to comply with BOP Policy Statement 6060.08 in that they did not mail his urine sample for testing within 72 hours of collection; (2) failed to investigate the presence of another inmate’s identification number on his incident report, as required by BOP Policy Statement 5270.07; (3) failed to record a statement he gave to the Unit Discipline Committee; (4) improperly referred his case to the Disciplinary Hearing Officer (DHO) “for appropriate sanctions”; (4) failed to advise him of the right to challenge the testing process of his urine sample through the Administrative Remedy Procedure, as required under 28 C.F.R. § 541.14; and (6) improperly allowed the prison unit’s Case Manager Coordinator to act as the Alternate DHO. Collateral relief is not available for failure to comply with the formal requirements of rules in the absence of any indication that the petitioner was prejudiced. See Davis v. United States, 417 U.S. 333, 346 (1974) (28 U.S.C. § 2255 case). Here, the National Toxicology Laboratories reported that a urine sample provided by Mackey tested positive for marijuana. Mackey has not established that there were any defects in the chain of custody as to his urine 2  Case: 10-60879 Document: 00511596114 Page: 3 Date Filed: 09/08/2011 No. 10-60879 sample, nor has he shown that any delay in mailing the sample for testing affected the results of the laboratory analysis. The evidence of Mackey’s positive drug test was considered at Mackey’s disciplinary hearing; additionally, Mackey admitted at the disciplinary hearing that he had smoked marijuana. Given the positive laboratory test, and Mackey’s admission of guilt, Mackey fails to establish that any of the alleged violations of federal regulations and/or BOP policy statements resulted in the required prejudice. See id. AFFIRMED. 3 

146 F.3d 73 UNITED STATES of America, Appellee,v.Leonid ABELIS, a/k/a "Shatera"; a/k/a "Lyonya"; YakovVolovnik, Leonard Lev; And Yelena Lev, Defendants,Valery Novak; Vladimir Topko; Sergey Ilgner; VyacheslavKirillovich Ivankov, a/k/a "Yaponchik,"Defendants-Appellants. Nos. 97-1077, 97-1080, 97-1088, 97-1107 and 97-1140 to 97-1142. United States Court of Appeals,Second Circuit. Argued Sept. 5, 1997.Decided May 29, 1998. 1 Richard Ware Levitt, New York City, for Defendant-Appellant Valery Novak. 2 Jerry L. Tritz, New York City, for Defendant-Appellant Vladimir Topko. 3 Elizabeth M. Fink, Brooklyn, NY, for Defendant-Appellant Sergey Ilgner. 4 Judd Burstein, Burstein & Fass LLP, New York City, for Defendant-Appellant Vyacheslav Kirillovich Ivankov. 5 Bridget M. Rohde, Benton Campbell, Asst. U.S. Attys., Eastern District of New York (Zachary W. Carter, U.S. Atty., Eastern District of New York, Emily Berger, Asst. U.S. Atty., on brief), for Appellee. 6 Before CARDAMONE and LEVAL, Circuit Judges, and KOELTL,* District Judge. KOELTL, District Judge: 7 Valery Novak ("Novak"), Vladimir Topko ("Topko"), Sergey Ilgner ("Ilgner"), and Vyacheslav Kirillovich Ivankov ("Ivankov") appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York (Carol Bagley Amon, Judge) following a six week jury trial. The jury convicted all four of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951, and appellants Novak, Ilgner, and Ivankov of attempted extortion, in violation of 18 U.S.C. §§ 1951 and 2. 8 The appellants have asserted numerous grounds for alleged error. Finding no such error, we affirm. BACKGROUND 9 On appeal, we view the facts in the light most favorable to the Government. See United States v. Doyle, 130 F.3d 523, 526 (2d Cir.1997); United States v. LaBarbara, 129 F.3d 81, 82 (2d Cir.1997). Viewed in that light, the jury could have found that the evidence supported the following facts. 10 The victims of the attempted extortion in this case were Alexander Volkov ("Volkov") and Vladimir Voloshin ("Voloshin"), the president and vice-president, respectively, of Summit International ("Summit") a purported New York City investment firm. Both Volkov and Voloshin had a significant criminal history of their own, including ties to Russian criminal groups. 11 Summit, which began operations in September 1993, marketed itself to the Russian public as an investment firm with knowledge of Wall Street, and ultimately received over $8 million from its various Russian investors. However, Volkov and Voloshin had little or no experience in investing, and, rather than investing all of the money, spent much of it on themselves. As of 1995 they had only a small fraction of their investors' funds remaining. 12 The extortion at issue in this case was an attempt to force Volkov and Voloshin to pay the funds from one such investment in Summit, a $2.6 million loan by Moscow's Chara Bank ("Chara"), to various members of the conspiracy. Volkov and Voloshin had obtained this investment through a Chara Bank officer, Rustam Sadykov ("Sadykov"), whom they had known since their student days together at Moscow State University. Sadykov told Chara's President, Vladimir Rachouk ("Rachouk") about Summit and Rachouk agreed to loan the money to Summit to be invested in the stock market. No written agreement memorialized the transaction. 13 On November 25, 1994, Rachouk died under suspicious circumstances during a period when Chara was suffering financial difficulties. Shortly after Rachouk's death, Sadykov traveled to New York City to meet Volkov and Voloshin to discuss the Chara loan. He was accompanied by Maxim Korostishevsky ("Korostishevsky") and Topko, Sadykov's close friend. These three met with Volkov and Voloshin on December 1, 1994. Sadykov was not authorized by Chara to travel to the United States, and neither Korostishevsky nor Topko were Chara employees. 14 At the December 1 meeting, Korostishevsky told Volkov and Voloshin of Rachouk's death and informed them that Rachouk's wife was trying to recoup Chara's money with the help of Russian criminal groups. Korostishevsky and Sadykov proposed to split the Chara money with Volkov and Voloshin, and, in return, Korostishevsky promised Volkov and Voloshin his protection from the various criminal groups attempting to collect the outstanding Chara loans. No agreement on a split was reached at this meeting, and all five went to the Russian Samovar restaurant for dinner. They were joined there by Yakov Volovnik, a Summit employee. At the Russian Samovar, Korostishevsky repeated that Rachouk's wife was going to hire criminals if the money was not returned. 15 Following dinner, on the street outside the restaurant, Topko introduced Voloshin to Novak, who was Topko's business partner, and the three drove to a nightclub. At some point during the evening, Voloshin asked Topko whether Topko was going to act as a representative for Korostishevsky and Sadykov regarding the payment of the Chara money. Topko replied, "Yes, something like that." 16 The next day, December 2, 1994, Korostishevsky, Topko, and Sadykov met for a second time with Volkov and Voloshin at Summit's office. After again discussing the division of the money, Volkov and Voloshin agreed to pay back the money, although they requested more time to consider the specific percentages for the division of the money. However, no payments were made because Voloshin flew to Moscow, where he remained until December 23, 1994. Volkov and Volovnik met with Sadykov and Novak at Michael's restaurant later in December. Novak, reminding Volkov of his promise to pay the money to Sadykov and Korostishevsky, said that "the people in Moscow are getting nervous now," asked when Volkov would begin making payments on the Chara loan, and reported that Summit's delay was putting Sadykov in a "bad" situation. Novak said that because Summit refused to repay Chara's investment, Sadykov could not return to Russia since he could not repay Chara's own investors. 17 After this last meeting, Sadykov and Topko returned to Moscow. Korostishevsky and Sadykov made frequent calls to Volkov and Voloshin who refused to speak with them. Finally, Korostishevsky was able to arrange another meeting with Volkov and Voloshin for February 21, 1995. 18 Sadykov and Korostishevsky traveled to New York where they met with Ivankov in an effort to obtain his aid in recovering the money. Ivankov agreed to become involved in the matter. On February 21, 1995, the day of the scheduled meeting with Korostishevsky and Sadykov, Volkov and Voloshin became aware that Ivankov had become involved. As Voloshin testified at trial, Ivankov had a reputation as one of the most powerful members of the Russian criminal world, and Volkov and Voloshin were frightened. They left the Summit Office to avoid meeting Ivankov and waited at a nearby restaurant while Volovnik watched the entrance to Summit's office from across the street. When Volovnik saw Ivankov arrive at Summit's office, he called Volkov and told him that Ivankov had arrived. With this confirmation of Ivankov's participation, Volkov and Voloshin fled to Miami, Florida to seek assistance from a business partner, Leonid Venjik ("Venjik"). Volkov's wife testified at trial that Volkov did not return home to get his luggage and that he called her to warn her not to leave their apartment. 19 In Miami, with Venjik's assistance, Voloshin and Volkov pursued different strategies to attempt to evade or shield themselves from Korostishevsky, Sadykov, and Ivankov. Voloshin contacted his friends at another criminal group based in Lyubertsky in Russia and ultimately met with them in San Francisco. Voloshin told them falsely that the Chara money had been repaid. Voloshin believed that they would relay this information to Ivankov and that Ivankov would then leave Volkov and Voloshin alone. 20 While Voloshin was in California, Volkov met with the F.B.I. in Miami to obtain protection. Voloshin also met with the F.B.I. later and obtained their help by also telling them falsely that Summit had already repaid the Chara loan. The F.B.I. began an inquiry into Ivankov's activities at this point and requested and received authorization to tap Ivankov's cellular phone. 21 Although they returned to New York City in mid-March 1995, Volkov and Voloshin continued to hide from Ivankov and Sadykov. Meanwhile, Ivankov and his associates planned how to obtain the Chara money from Summit. On April 10, 1995, Ivankov met with Leonid Abelis at the Troika Restaurant in New Jersey. Abelis, an associate of Ivankov who had worked with him on several other alleged extortions during the previous two years, testified for the Government pursuant to a cooperation agreement. Abelis testified that during the course of the meeting, Ivankov said that a representative of Chara had "appealed" to him for his help to recover "a substantial amount of money" that an American company "refused to repay." Furthermore, Ivankov told Abelis that if the money were recovered, they would get a share of it for themselves. At Ivankov's request, Abelis contacted Sergey Ilgner to help with "an interesting matter." Ilgner in turn contacted Yura Gladun. During a telephone call on April 12, 1995, Ivankov again told Abelis that "everything will be under his auspices" and that they would have a meeting the next day in an effort to stake out their claim. It was Abelis' understanding that Ivankov meant that other criminal groups who might otherwise be interested in making their own attempt to recover the money would be deterred from doing so once they were aware that Ivankov was involved. 22 At their scheduled meeting on April 13, Ivankov emphasized for a third time to Abelis, Ilgner, and Gladun that "the most important thing was to stake [the matter] out in his name." Sadykov also attended the meeting and offered to pay the group for their assistance, at which point Ivankov interjected that everyone at the meeting would get their share. Sadykov provided Abelis and Ilgner with pictures of Volkov and Voloshin, as well as with their telephone numbers, and told them that Volovnik might be useful as a contact. Ivankov later called Abelis and said that he expected that they would keep the $2.6 million for themselves rather than returning it to Sadykov, or at the very least, that they would take half of what each side retained if Sadykov, Volkov, and Voloshin reached a compromise solution. 23 Abelis met Volovnik and asked to be contacted when Volkov or Voloshin went out to a restaurant so that Abelis could discuss the matter with them at a neutral spot. Volovnik, however, was unable to arrange the meeting immediately. On April 25, 1995, Abelis, Ilgner, and Gladun met with Volovnik to find out why Volovnik had been unsuccessful. Abelis criticized Volovnik for his failure to arrange the meeting, and told him that the case was under the control of Ivankov, that no one could change that, and that Volovnik's "absence of desire to help [them], maybe it could be understood in a wrong way." 24 Throughout this period, Abelis kept Ivankov abreast of their progress by cellular phone. Abelis and Ivankov did not mention names over the phone in case the phone was tapped. In fact, Ivankov on several occasions expressed annoyance to Abelis that Sadykov persisted in using the parties' given names over the phone, placing everyone at risk. Finally, on Abelis' suggestion, Ivankov told Sadykov to call Abelis when he wanted an update on their progress. 25 Ultimately, Abelis arranged a meeting with Sadykov at the Russian Samovar restaurant. Topko also attended the meeting. During the course of their conversation, in considering the appropriate methods they should take to recover the money, Abelis asked Sadykov if he were willing to pay for their lawyers or to pay their bail if they were arrested. Sadykov told Abelis that he was not prepared to pay for either, at which point Abelis told Sadykov that he should wait while Ivankov and his group pursued the money "quietly." Topko did not speak during the discussion. 26 After several aborted attempts at a meeting, on May 25, 1995, Volovnik was finally able to tell Abelis that Volkov and Voloshin could be found at a neutral location that evening. He informed Abelis that Volkov and Voloshin would be at dinner with Venjik, now a Summit officer, at a New York City Hilton Hotel. Abelis, Ilgner, Gladun, and Volovnik traveled to the hotel, where they found Volkov and Voloshin in the Hilton's restaurant. When Voloshin saw Abelis, Voloshin testified that he was scared, fearful and very nervous, because he knew him to be Ivankov's right-hand man, and he knew Ivankov's reputation as "the most influential figure of the Russian criminal world." 27 After Volkov told them that the money had already been paid back, Abelis responded that "if you want to play these games of silence or not say things, then I'm washing my hands and I cannot vouch for what would happen to you tomorrow or the day after tomorrow." As Abelis testified at trial, the implication of his statement was clear--failure to settle with Ivankov could result in a physical attack at a later date. Voloshin took Abelis's statements as threats to his security and the safety of his family. 28 After the conversation at the Hilton, Volkov and Voloshin traveled in Abelis' car to the Troika Restaurant in New Jersey. The group soon went upstairs to the second floor office, and around 1:00 a.m., Sadykov arrived with Topko and Novak. Sadykov, Volkov, and Voloshin began to argue, and Abelis directed them to another room to try to work out an arrangement. Sadykov demanded $5 million at first, and Voloshin requested Abelis' assistance to force Sadykov to lower his demand. At this point, Voloshin and Volkov told Abelis that Sadykov had already been paid a $100,000 fee during the original transfer of the Chara money to Summit. Sadykov subtracted the $100,000 that he had already been paid, and, at Abelis' insistence, calculated a lower figure of $3.5 million, to which both Volkov and Voloshin assented. Voloshin testified that Volkov and he had agreed to make the payments because they felt that it was the only way that they would be allowed to leave. Voloshin also testified that Abelis constantly referred to Ivankov having given Abelis authority to act on behalf of Ivankov and that Abelis had to report to Ivankov. As Voloshin said, "I mean that the only way out of the situation was for us to sign the document." Voloshin testified that Abelis said several times that Volkov "will not walk out of here until this document is signed." 29 Sadykov and Novak then typed up the agreement that had just been reached. The payments totaling $3.5 million were to be wired to Novak's offshore bank account at Barclay's Bank in the Bahamas rather than to Chara Bank itself. However, the agreement did not contain a payment schedule because Voloshin refused to agree to one without assessing the ability of Summit to make the payments. Voloshin was to contact Ilgner after he had determined a possible payment schedule. Volkov and Voloshin signed the agreement in the presence of Abelis, Ilgner, Topko, Sadykov, and Novak. The proceedings concluded at dawn and Ilgner gave Volkov and Voloshin a ride back to Manhattan. Sadykov left and returned to Moscow the next day. Abelis testified that Ivankov's reputation in the Russian crime world was used to compel Volkov and Voloshin to agree to return the money. 30 Ivankov contacted Abelis a few days later to find out how the meeting had proceeded. When Abelis told him that Sadykov had already received a $100,000 payment from Summit, Ivankov decided that Sadykov should not receive any money and that the money should be transferred to an account controlled by Ivankov instead of the Novak account. Abelis understood that no money would go to Chara Bank, and that Sadykov would only receive compensation for his personal assistance in procuring the money. 31 On May 30, 1995, Abelis spoke to Voloshin and surmised that Voloshin was attempting to back out of the arrangement. In response, Abelis said that he had thought they had settled the matter without the use of physical violence. Abelis told Voloshin that he had already informed Ivankov about the agreement and that Ivankov was a "special" person. Shortly thereafter, Voloshin provided Ilgner with the payment schedule. Voloshin then told Abelis that he had provided the payment schedule and that he understood that payment was to be made to an account provided by Ivankov rather than to Novak's account. 32 On May 31, 1995, Abelis, Ilgner, Gladun, and Volovnik went to Summit's office to meet with Volkov and Voloshin. However, when they arrived, neither Volkov nor Voloshin were present. The four walked into Volkov's and Voloshin's office and discovered video equipment provided by the F.B.I. that had been used to tape Ilgner's meeting with Voloshin the previous day. When Volkov and Voloshin arrived, Ilgner confronted them about the tape, but Voloshin was able to explain that it was used to tape Summit meetings only and that the equipment had not been activated when Ilgner had been in the office the previous day. At some point during the course of the discussion, Ivankov called Abelis by cellular phone. When Abelis said that he was meeting with Volkov and Voloshin, Ivankov asked to speak to either of them. Ivankov then spoke with Voloshin, discussed the transaction with him and informed him that he would have to repay the money because Ivankov was now involved. They also agreed to meet at a future date. Abelis provided Voloshin with the new account number for payment, an account at National Westminister Bank in London. 33 Ivankov, along with Abelis, Ilgner, and Gladun, met with Volkov and Voloshin on June 5, 1995. Before Ivankov arrived, Abelis questioned Volkov and Voloshin about whether the first payment had been made. Voloshin told Abelis that, because of difficulties with the bank, the first payment had not been made. Abelis then told Volkov and Voloshin about a recent conversation that he had had with Topko. Topko had called Abelis and had asked him why Abelis had been "so soft" on Volkov and Voloshin. Abelis told Topko to keep out of the case, that it was no longer his business, and that he could not treat the case the same way it would be treated in Russia. 34 When Ivankov arrived, Voloshin discussed that the account had been changed; Ivankov told him not to worry and to stay in touch with Abelis. It was agreed that all payments would be made according to the schedule. 35 The next day, June 6, 1995, Voloshin called Abelis and told him that the first payment had been made. Using false wire transfer documents provided by the F.B.I., Voloshin faxed Abelis a record of the purported first payment. Voloshin promised Abelis that the transfer would take one day, until June 7, 1995, to clear. When the payment was not received by Ivankov's bank, Abelis called Voloshin to find out what had happened to the money. After telling Abelis that he would check with his banker, Voloshin called Abelis back later on June 7 to tell him that Voloshin's banker was not in his office. Abelis did not have the opportunity to determine whether the first payment had been made. The next day, F.B.I. agents arrested Ivankov, Abelis, Ilgner, Topko, and Novak. DISCUSSION I. 36 Appellants Novak and Topko challenge the sufficiency of the evidence supporting their respective convictions. It is well settled that "[i]n challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden." United States v. Giraldo, 80 F.3d 667, 673 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996); see also United States v. Al Jibori, 90 F.3d 22, 26 (2d Cir.1996); United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994) (quoting United States v. Rivera, 971 F.2d 876, 890 (2d Cir.1992)). We view the evidence as a whole "in the light most favorable to the government, drawing all inferences and resolving all issues of credibility in the government's favor." Giraldo, 80 F.3d at 673 (citations omitted); see also United States v. Desimone, 119 F.3d 217, 223 (2d Cir.1997). Further, "pieces of evidence must be viewed in conjunction, not in isolation." United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994), cert. denied sub nom., Romano v. United States, 513 U.S. 1135, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995). Our ultimate determination is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see, e.g., Amato, 15 F.3d at 235; United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397, 113 L.Ed.2d 453 (1991). The government need not disprove "every possible hypothesis of innocence," and the jury may properly "base its verdict upon inferences from circumstantial evidence." Roldan-Zapata, 916 F.2d at 802 (citations omitted); see also Desimone, 119 F.3d at 223. 37 While only slight evidence is required to link another defendant with a conspiracy once the conspiracy has been shown to exist, a defendant's "mere presence" at the scene of a crime is not enough to show knowing participation in the conspiracy. See Giraldo, 80 F.3d at 673; Amato, 15 F.3d at 235; Rivera, 971 F.2d at 890-91; United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983). Nor is " '[a]ssociation with a conspirator, without more, [ ]sufficient to establish the requisite degree of participation in a conspiratorial venture.' " United States v. Scarpa, 913 F.2d 993, 1005 (2d Cir.1990) (first alteration in original) (quoting United States v. Steinberg, 525 F.2d 1126, 1134 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976)). However, "a defendant's ... presence may establish his membership in the conspiracy if all of the circumstances considered together show that by his presence he meant to advance the goals of that conspiracy." Giraldo, 80 F.3d at 673. Thus, the evidence must demonstrate purposeful behavior by a defendant to further the conspiracy to show membership in that conspiracy. See Scarpa, 913 F.2d at 1005. 38 We turn first to Novak's contention that the evidence did not support his conviction for conspiracy to commit extortion and attempted extortion. Novak does not dispute that a conspiracy to commit extortion existed, but rather argues that he was not a member. However, at trial, the government presented evidence from which the jury could have rationally drawn the opposite conclusion. The evidence showed that Novak was a close friend of both Sadykov and Topko. During his trips to New York City to obtain the Chara money, Sadykov stayed in Novak's home and used Novak's home telephone to call Ivankov. Novak was present at and participated in key meetings involving the payment of the Chara money. Novak attended the December meeting at Michael's Restaurant among Volkov, Sadykov, and Volovnik at which additional pressure was placed on Volkov to pay Sadykov. In fact, Volovnik testified that Novak berated Volkov for not paying the money to Sadykov, telling Volkov that the failure to make the payments, as Volkov had previously promised to do at the December 2, 1994 meeting, had placed Sadykov in a difficult situation such that Sadykov could not return to Russia. This statement indicated that Novak, who had not been present at the early December meetings at which a split of the Chara funds in return for protection had been discussed, had been informed of the status of the Chara money by Sadykov, Korostishevsky, or Topko. The jury could reasonably have drawn the inference from Novak's presence at this discussion, his understanding of Volkov's past promise to pay, his knowledge that no payment had been made, and Novak's attempt to get Volkov to make the payments, that Novak was aware of and involved in the extortionate attempt to recover the money paid by Chara from the inception of the conspiracy. 39 Most significantly, however, was the evidence regarding Novak's actions at the May 25, 1995 meeting at the Troika Restaurant. Novak drove two hours late at night in a rainstorm with Sadykov and Topko to reach the Troika restaurant where Volkov and Voloshin had been taken by Abelis, Ivankov's acknowledged associate, following an initial confrontation at the Hilton Hotel in Manhattan. After Novak arrived with Sadykov and Topko, and in response to pressure from Abelis, Volkov and Voloshin agreed early in the morning of May 26, 1995 to pay Sadykov $3.5 million, accounting for Chara's investment of $2.6 million plus interest. Although not involved in the actual negotiations, Novak typed the written agreement on a Troika office computer with Sadykov. Further, Novak provided his offshore bank account in Barclay's Bank to serve as the repository for the $3.5 million to be paid by Volkov and Voloshin. Finally, Novak was present with Abelis, Sadykov, Ilgner, and Topko when Volkov and Voloshin signed the agreement. 40 Viewing this evidence in the government's favor, the jury could reasonably have inferred that Novak, with Sadykov and Topko, had gone to the Troika to participate in the extortion with full knowledge of its existence and to share in its spoils, specifically, the $3.5 million that was to be paid into Novak's account. Novak's active participation in the evening's events--typing the contract and providing his bank account as the destination of the funds--as well as his presence at the signing of the agreement, could reasonably be interpreted as acts in furtherance of the conspiracy. The jury could reasonably conclude that Novak was not a mere bystander and that this was not a lawful attempt to recover funds for Chara Bank, but rather an effort to obtain the funds from Volkov and Voloshin by the wrongful use of fear. 41 Moreover, the jury was entitled to place great weight on the fact that the other conspirators trusted Novak to safeguard the $3.5 million payment that was to be made into an offshore bank account to which Novak was the sole signatory. We have noted on other occasions the significance of such evidence. See United States v. Pitre, 960 F.2d 1112, 1122 (2d Cir.1992) (where the evidence showed, in part, that the defendant was arrested with $292,920, the jury could infer that the defendant was aware of his role in a narcotics conspiracy); Scarpa, 913 F.2d at 1006 (jury could view acceptance of $6,000 as evidence of participation in a conspiracy and could reject the defendant's contention that he accepted the money as a favor to his brother); see also United States v. Sisca, 503 F.2d 1337, 1343 (2d Cir.) ("the suggestion that members of a conspiracy would entrust $60,000 in cash and a large quantity of narcotics to one who was not a full partner strains credulity"), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). Nor does it matter that Ivankov later decided not to use Novak's bank account, since dissension among coconspirators does not change the fact that the conspiracy existed or that a given individual was a member in it. See Amato, 15 F.3d at 234. 42 Thus, we find that there was sufficient evidence to sustain Novak's conviction for conspiracy to commit extortion. The same result is warranted for Novak's conviction for attempted extortion since the evidence that sustained the conspiracy conviction adequately supports the attempted extortion conviction. 43 Topko's challenge to his conviction is even less substantial. The evidence at trial showed that Topko was present at the December 1, 1994 meeting among Sadykov, Korostishevsky, Volkov, and Voloshin at the outset of the conspiracy. At that meeting, Korostishevsky and Sadykov proposed to split the $2.6 million owed by Summit to Chara between Sadykov's group and Volkov and Voloshin, in exchange for which Korostishevsky would provide protection from whichever criminal groups were trying to recover the money on behalf of Rachouk's wife. Voloshin testified at trial that he asked Topko that evening whether Topko was serving as a representative of Sadykov and Korostishevsky in the matter of the Chara money, to which Topko replied, "Yes, something like that." Abelis testified that Topko attended the April 1995 meeting at the Russian Samovar restaurant between Abelis and Sadykov at which Abelis asked Sadykov if Sadykov was willing to pay for a lawyer and for bail if they were caught. Topko was also at the meeting at the Troika Restaurant on May 25, 1995, and was present along with Abelis, Ilgner, Sadykov, and Novak when the "agreement" was signed by Volkov and Voloshin. Furthermore, Voloshin testified that Abelis told Volkov and Voloshin that Topko had called Abelis to ask why Abelis had been "so soft" on Volkov and Voloshin. The jury was entitled to conclude from the evidence presented at trial that Topko had joined the conspiracy and that he had acted to further it by serving as a representative of Sadykov and Korostishevsky and by his presence at the various meetings. II. 44 All defendants challenge both the propriety of the district court's jury instruction on the "fear" element of extortion and the refusal to give their proffered instruction. In charging the jury, the district court gave the following charge with respect to the "fear" element of extortion: 45 The essence of the crime of attempted extortion is a defendant's knowing an[d] willful attempt to use fear. What the law prohibits is knowingly and willfully attempting to create or instill fear, or knowingly and willfully attempting to use or exploit existing fear, when this is done with the specific purpose of inducing another to part with his or her property. A defendant need only attempt to exploit a fear to be guilty of attempted extortion; he need not attempt to create it. However, although the alleged victims' fear of harm or loss need not be instilled by the defendant, there must be proof that the defendant, aware of the victims' fear did or said something in an attempt to exploit that fear. (A-252.) (emphasis added.) 46 The appellants contend that this charge allowed the jury to convict Ivankov--and those with whom he allegedly conspired--on the basis of Ivankov's reputation as a prominent figure in the Russian criminal underworld alone, since almost anything he did could be interpreted as an "attempt to exploit" fear of him. (Ivankov Br. at 22.) Instead, they argue that the district court should have included their requested language which requires that "the defendant, aware of the victims' fear[,] did or said something in an attempt to exploit that fear ... through the use of a threat or implicit threat." (Ivankov Br. at 22.) 47 We review the propriety of a jury instruction de novo. See United States v. Russo, 74 F.3d 1383, 1392 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 293, 136 L.Ed.2d 213 (1996). An appellant bears the burden of showing that the requested instruction " 'accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.' " United States v. Dove, 916 F.2d 41, 45 (2d Cir.1990) (quoting United States v. Ouimette, 798 F.2d 47, 49 (2d Cir.1986), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 134 (1988)); see also United States v. Thompson, 76 F.3d 442, 454 (2d Cir.1996). " 'A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.' " United States v. Masotto, 73 F.3d 1233, 1238 (2d Cir.) (quoting Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994)), cert. denied, --- U.S. ----, 117 S.Ct. 54, 136 L.Ed.2d 18 (1996). 48 Because appellants' requested instruction on the "fear" element of extortion under the Hobbs Act did not "accurately represent[ ] the law in every respect," we find that the district court properly rejected the additional charge. See Dove, 916 F.2d at 45 (quoting Ouimette, 798 F.2d at 49). First, the language of the Hobbs Act in no way requires the instruction which the appellants sought from the trial court. Title 18, Section 1951(b)(2) defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." The statute does not limit the definition of extortion to those circumstances in which property is obtained through the wrongful use of fear created by implicit or explicit threats, but instead leaves open the cause of the fear. 49 Further, the law within this Circuit is clear that the wrongful use of fear need not be a consequence of an implicit or explicit threat as the appellants contend. In United States v. Capo, 817 F.2d 947, 951 (2d Cir.1987) (en banc), there was no dispute that the following instruction was correct: "[i]t is not necessary that the Government prove that the fear of economic loss was the consequence of a direct threat made by the defendant." See id. at 955 ("[W]e all agree that the instructions given to the jury were correct.") (Kearse, J., dissenting). The Courts of Appeals in other Circuits share this view. See, e.g., United States v. Williams, 952 F.2d 1504, 1513 (6th Cir.1991); United States v. Nedza, 880 F.2d 896, 902 (7th Cir.), cert. denied, 493 U.S. 938, 110 S.Ct. 334, 107 L.Ed.2d 323 (1989); United States v. Lisinski, 728 F.2d 887, 890-91 (7th Cir.), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984). Therefore, the district court correctly refused to give the additional instruction. 50 Moreover, appellants' argument that Ivankov could have been convicted solely on the basis of his reputation as a prominent Russian gangster is not an accurate reading of the charge as a whole. The charge made it clear that, to be found guilty of attempted extortion, a defendant must knowingly and willfully create or instill fear, or use or exploit existing fear "with the specific purpose of inducing another to part with his or her property." The district court emphasized that the statute required that the defendant "aware of the victims' fear did or said something in an attempt to exploit that fear." 51 This requirement of affirmative exploitation of fear was stressed by the district court's repeated emphasis on the need for the Government to show the "wrongful use of actual or threatened force, violence, or fear." This statement was made in the course of reading the indictment, in reading the relevant provisions of the Hobbs Act, in describing the elements of the offense in general and in detail, and in describing the unlawful agreement at issue in the case. (See A-249 line 14; A-250, line 3; A-250, line 11; A-251, line 3; A-258, line 24; A-260, line 16, A-263, line 23). Thus, the jury was repeatedly told that only the "wrongful" use of fear to obtain property was extortion. Further, the district court instructed the jury that the Government was required to prove that the defendants acted "knowingly and intentionally." The Court defined intentionally as "to do an act willfully with a bad purpose, to do something the law forbids; that is, to obtain money from another with his consent, induced by wrongful use of actual or threatened force, violence or fear." (A-253-54.) Hence there could be no question that the Government was required to prove, not simply that Ivankov had a bad reputation, but that the defendants knowingly and intentionally, with a bad purpose, wrongfully and affirmatively exploited fear to obtain money. This was sufficient. See United States v. Locascio, 6 F.3d 924, 942 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994) (finding no error in charge where the district court "as a whole accurately charged the jury, especially considering that the court did properly impart the motive requirement numerous times and did give the jury the indictment," which also used the proper language.) 52 It is true that care must be taken to assure that apparently innocent activities are not swept up by the Hobbs Act. For example, a burglar alarm salesman may exploit a customer's fear of burglary. But it could not be said that he was "wrongfully" using fear or that he intentionally used that fear "with a bad purpose." In this case, to avoid question, it would have been better if the charge had read that: "The essence of the crime of attempted extortion is a defendant's knowing and willful attempt to use fear wrongfully." Similarly, it would have been better to say, "there must be proof that the defendant, aware of the victims' fear did or said something in an attempt wrongfully to exploit that fear." However, the charge in this case did adequately inform the jury that it was the "wrongful" use of fear that was prohibited by statute. 53 Hence, taken as a whole, the charge in this case provides no basis for reversal. III. 54 The appellants also challenge the district court's refusal to give a "missing witness" instruction with respect to Alexander Volkov, who was not called to testify at trial by either side. The decision to give a missing witness charge "lies in the sound discretion of the trial court." United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir.1988). The instruction "permits the jury to draw an adverse inference against a party failing to call a witness when the witness's testimony would be material and the witness is peculiarly within the control of that party." United States v. Caccia, 122 F.3d 136, 138 (2d Cir.1997); see also Torres, 845 F.2d at 1169. In determining whether a witness was "available," we consider " 'all the facts and circumstances bearing upon the witness's relation to the parties, rather than merely on physical presence or accessibility.' " Torres, 845 F.2d at 1170 (quoting United States v. Rollins, 487 F.2d 409, 412 (2d Cir.1973)). See also Caccia, 122 F.3d at 139 ("The requirement that the witness be 'peculiarly within the control' of the party ensures that the inference is not available to be drawn against a party who, in comparison with an adversary, lacks meaningful or pragmatic access to the witness.") 55 Although Volkov declined to be interviewed by the defendants' attorneys, he was willing to testify if called and was in fact at the trial on several occasions. Significantly, the government represented to the district court that it had provided the appellants with all F.B.I. records documenting conversations with Volkov, as well as Summit business records and any other material regarding him. Given these facts, the witness "was not so peculiarly within the Government's control as to require the defendant's requested instruction." Caccia, 122 F.3d at 139. Moreover, the district court made no comment in the charge with respect to "uncalled" witnesses, but instead allowed defense counsel to argue the issue to the jury. See id. (noting with approval the possibility of not giving any instruction for uncalled witnesses who are equally available). Therefore, we find no error in the district court's decision not to give a "missing witness" instruction. See also United States v. Sorrentino, 72 F.3d 294, 298 (2d Cir.1995). CONCLUSION 56 We have reviewed all of the appellants' remaining contentions and find them to be without merit. Therefore, the judgment of the District Court is affirmed. * The Honorable John G. Koeltl, District Judge of the United States District Court for the Southern District of New York, sitting by designation

393 F.2d 534 Application of Dow D. WARREN and Clement M. Kucera. Patent Appeal No. 7961. United States Court of Customs and Patent Appeals. May 2, 1968. J. Vincent Martin, Joe E. Edwards, Houston, Tex. (Carl T. Mack, Washington, D. C., of counsel), for appellants. Joseph Schimmel, Washington, D. C., (Jere W. Sears, Washington, D. C., of counsel), for the Commissioner of Patents. Before WORLEY, Chief Judge, and Judges RICH, SMITH, ALMOND, and KIRKPATRICK.* WORLEY, Chief Judge. 1 Warren and Kucera appeal from the decision of the Board of Appeals affirming the examiner's rejection of claims 1, 2, 4-6, and 9-18 in their application1 for "Drill String Member" as unpatentable in view of certain prior art under 35 U.S.C. § 103. 2 The invention relates to drill collars used in drilling oil and gas wells. The specification describes the problems resulting from the use of certain prior art drill collars: 3 One of the most important purposes in the use of drill collars is to concentrate the weight load near the bit at the lower end of the rotary drill string. A drill collar comprises a long and heavy member located in the drill string above the bit, and is connected to the lower end of a lighter string of drill pipe. The string is used for rotating the drilling bit, and to conduct drilling fluid downwardly therethrough and through the bit to remove formation cuttings being dislodged by the drill bit. Two or more drill collars may be connected in series with one another, depending on the desired weight to be applied to the bit. 4 The outside dimension of a drill collar is less than the diameter of the bit so as to permit the drilling fluid and cuttings to be returned upwardly to the surface of the earth through the space between the bore wall, drill collar and drill pipe. In some formations, especially if rotation is suspended, the drill collars may become stuck in the well bore, and it is believed that in the drilling of oil and gas wells, such sticking may be caused by a force acting on the collar when it engages a side wall of the bore. In such cases the hydrostatic pressure of the drilling fluid conventionally employed in this type of drilling, may be greater than that of the formation pressure at the drill collar location in the bore, such that the collar may be held against the wall of the bore with a force dependent upon the area of drill collar contact and the pressure differential between the hydrostatic pressure of the drilling fluid and that of the formation at such location in the well bore. 5 Appellants obviate the likelihood of the drill collar sticking to the well bore by either placing grooves in the surface of the collar, or providing holes extending through portions of the collar to relieve any differential pressure which may exist. In cross-section, the drill collar may be square with rounded corners, as recited in claims 1, 2, 9, 10 and 16, or circular as recited in the remaining claims. Claims 1 and 4 are illustrative: 6 1. A drill collar connectable at its ends into a rotary drill string, and having a substantially square cross-sectional shape with rounded corners, the said corners having a plurality of axially spaced grooves therein, the said grooves adapted to permit the passage of a fluid therethrough. 7 4. A drill collar connectable at its opposite ends into a rotary drill string, and being general-cylindrical [circular?] in cross-sectional shape, a bore extending longitudinally through said collar, the wall of said drill collar having a plurality of holes therethrough extending substantially transversely of said member to establish communication through said wall from one area of the drill collar to another area remote therefrom. The references are: 8 Fox 2,999,552 Sept. 12, 1961 Toelke 3,175,374 Mar. 30, 1965 (Filed June 22, 1962) The Oil and Gas Journal, Mar. 19, 1962 (pages 177 and 178) 9 The Journal publication discloses a drill collar of square cross-section having rounded corners which tend to center the drill string in the well bore and lessen the chance of boring a crooked hole with "severe dog legs." According to the specification, appellants employ such a construction to achieve the same result. But, as appellants point out, the publication does not disclose the use of grooves or holes in the surface of the drill collar as fluid passageways. 10 Toelke acknowledges prior proposals "to center the drill string in the well bore to inhibit sticking, and various means of grooving of the drill string." He discloses a drill collar of circular cross-section wherein axially spaced grooves or recesses form passageways for conducting fluid from one surface area to another surface area of the collar, thus relieving the differential pressure acting to stick the collar to the well bore wall. The recesses may be arranged "at an angle relative to the longitudinal axis of the drill string." 11 The board regarded Fox as cumulative to Toelke. We need not discuss Fox further, beyond noting that he, like Toelke, recognized the problem of the collar sticking to the well bore, and consequently provided the collar with helical grooves in its outer surface to allow passage of fluid and "lessen the likelihood of its sticking." 12 The board sustained the examiner's rejection of claims 1, 2, 9, 10 and 16 as unpatentable over the Oil and Gas publication in view of Toelke, and claims 4-6, 11-15, 17 and 18 as unpatentable over Toelke alone. Both were of the opinion that, in view of Toelke's disclosure of the use of grooves in the outer wall of a drill collar of generally circular cross-section to establish fluid passageways from one outer surface area to another in order to decrease any differential pressure, it would be obvious to a person of ordinary skill in the art to provide grooves in the outer wall surface of the drill collar of square cross-section described by the publication to achieve the same result. The examiner regarded the use of holes extending through the wall of the drill collar to be obvious as "merely a matter of design or choice," the board adding that the functional uses of a recess, groove, conduit or hole "are so closely related" and interchangeable as to leave nothing unobvious in the substitution of one for another in the present instance. 13 Appellants' arguments do not convince us of error in those positions. It is no doubt true, as appellants contend, that the cited references per se do not preclude "further invention in the drill collar field." Nevertheless, Congress has said that a patent may not be obtained if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. We are satisfied that, for the reasons advanced by the tribunals below, the presently claimed subject matter does not conform to the conditions for patentability expressed in section 103. 14 The decision is affirmed. 15 Affirmed. Notes: * Senior District Judge, Eastern District of Pennsylvania, sitting by designation 1 Serial No. 298,180, filed July 29, 1963

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1740-16T3 SEIDMAN & PINCUS, LLC, and MITCHELL B. SEIDMAN, Plaintiffs-Respondents, v. RICHARD J. ABRAHAMSEN, and ABRAHAMSEN LAW FIRM, LLC, Defendants/Third-Party Plaintiffs-Appellants, v. NICHOLAS G. SEKAS, Defendant/Third-Party Defendant, and SEKAS LAW GROUP, LLC, and SEKAS & ABRAHAMSEN, LLC, Defendants/Third-Party Defendants-Respondents. ____________________________________  Argued September 13, 2018 - Decided October 4, 2018 Before Judges Ostrer and Mayer. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2961-14. Richard J. Abrahamsen argued the cause for pro se appellants. Mitchell B. Seidman argued the cause for pro se respondents Seidman & Pincus, LLC, and Mitchell B. Seidman (Mitchell B. Seidman and Andrew Pincus, on the brief). Nicholas G. Sekas argued the cause for pro se respondents Sekas Law Group, LLC, and Sekas & Abrahamsen, LLC. PER CURIAM Defendants/third-party plaintiffs Richard J. Abrahamsen and Abrahamsen Law Firm, LLC (Abrahamsen defendants) appeal from thirteen separate Law Division orders issued in connection with this litigation.1 We affirm all of the orders appealed by the Abrahamsen defendants. 1 The orders that are the subject of this appeal are as follows: a May 4, 2015 order denying appointment of a custodian and compelling arbitration; a May 12, 2015 order denying disqualification of counsel and indemnification; a November 6, 2015 order denying a motion to strike co-defendants' answer for failure to provide discovery; a November 6, 2015 protective order; a January 8, 2016 order quashing subpoenas and granting attorney's fees; a February 5, 2016 order quashing subpoenas and granting attorney's fees; a February 5, 2016 order A-1740-16T3 2  In August 2014, plaintiffs Seidman & Pincus, LLC (S&P) and Mitchell Seidman filed a complaint in Passaic County against Sekas Law Group, LLC and Sekas & Abrahamsen, LLC (Sekas defendants) and the Abrahamsen defendants, alleging defamation and tortious interference (defamation action). The law firm of Sekas & Abrahamsen, LLC (S&A), consisting of Nicholas G. Sekas and Richard J. Abrahamsen, dissolved in December 2013, prior to the filing of the defamation action. Litigation related to the dissolution of S&A was filed in Monmouth County (dissolution action) two weeks after plaintiffs filed their defamation action.2 The underlying facts are not complex. However, the procedural history is convoluted based on the sheer number of motions filed by the Abrahamsen denying a motion to compel discovery; a February 17, 2016 order compelling payment of counsel fees; a February 26, 2016 order vacating the February 17, 2016 order and awarding counsel fees; a February 26, 2016 order awarding counsel fees; a December 5, 2016 order denying reconsideration; a December 5, 2016 order compelling reimbursement; and a December 5, 2016 order denying sanctions. 2 In the dissolution action, Sekas sought to enforce the terms of S&A's partnership operating agreement and recover assets taken by Abrahamsen when he left S&A in December 2013. Sekas claimed Abrahamsen was responsible for his percentage share of debts and obligations of S&A, and for fees and costs on S&A cases that Abrahamsen took to his new law firm. Abrahamsen claimed the partnership's operating agreement required S&A to indemnify him against plaintiffs' defamation action. A-1740-16T3 3 defendants. The procedural background related to the defamation action is further muddled due to the Abrahamsen defendants' repeated conflating of the issues in the defamation action and the dissolution action. Consequently, a more detailed recitation of the procedural background is required to provide context for this appeal. Plaintiffs filed the defamation action against the Abrahamsen defendants and Sekas defendants on August 6, 2014, alleging all defendants caused S&P to lose a long-time client. One month later, the Abrahamsen defendants sent a notice to plaintiffs demanding withdrawal of the defamation action as frivolous. In response, plaintiffs requested a copy of a memorandum authored by Abrahamsen to assess the merits of their claim and determine whether the memorandum caused the loss of a long-term client. Instead of replying to plaintiffs' request for a copy of the memorandum, the Abrahamsen defendants filed a motion to dismiss the complaint. Plaintiffs then filed a cross-motion to amend the complaint. Leave to amend the complaint was granted and, in January 2015, plaintiffs filed an amended complaint, adding Sekas Law Group, LLC as a defendant and asserting a new claim based on fraudulent transfer. The Abrahamsen defendants A-1740-16T3 4 filed an answer, cross-claim for indemnification against the Sekas defendants, and third-party complaint against the Sekas defendants and Nicholas G. Sekas. In March 2015, the Abrahamsen defendants moved to consolidate the defamation action with the dissolution action. The judge denied consolidation. In May 2015, the judge dismissed the third-party claims against the Sekas defendants. The judge also issued an order on May 4, 2015 denying a motion by the Abrahamsen defendants to appoint a custodian and compel arbitration of the dispute between the Abrahamsen defendants and the Sekas defendants. A motion to compel the Sekas defendants to indemnify the Abrahamsen defendants in the defamation action was denied on May 12, 2015. Failing to succeed in their earlier motions, the Abrahamsen defendants requested discovery from the Sekas defendants. In the fall of 2015, the Abrahamsen defendants moved to strike the Sekas defendants' answer for failure to provide discovery. In response, the Sekas defendants sought a protective order related to the discovery requests. The judge denied the motion to strike and granted the motion for a protective order. These orders, dated November 6, 2015, granted attorney's fees to the Sekas defendants. The judge expressly warned the Abrahamsen defendants that additional sanctions would be imposed A-1740-16T3 5 for their "continued contempt and violation of the intent and spirit of the prior [o]rders issued by the [c]ourt." Notwithstanding the unequivocal warning issued by the judge in the defamation action, the Abrahamsen defendants served multiple subpoenas on individuals and companies associated with the Sekas defendants. The Sekas defendants demanded the Abrahamsen defendants withdraw the subpoenas, but the Abrahamsen defendants refused. The Sekas defendants then filed a motion to quash the subpoenas, a motion for a protective order, and sought to hold the Abrahamsen defendants in contempt of the court's prior orders in the defamation action. On January 8, 2016, the judge quashed certain subpoenas and granted the request for a protective order in favor of the Sekas defendants. The order also denied discovery sought by the Abrahamsen defendants; ordered the Abrahamsen defendants to stop demanding discovery from the Sekas defendants; barred the Abrahamsen defendants from requesting discovery without leave of the court; ordered Abrahamsen, individually, to show cause why he should not be held in contempt; found the Abrahamsen defendants to be in contempt; and ordered the Abrahamsen defendants to pay attorneys' fees to the Sekas defendants. One month later, the judge quashed additional subpoenas A-1740-16T3 6 served by the Abrahamsen defendants and reiterated his prior warning regarding the imposition of sanctions for continued service of improper discovery demands. On February 17, 2016, the judge awarded counsel fees to the Sekas defendants in the amount of $6,310. On February 26, 2016, the judge vacated the February 17, 2016 award of counsel fees and, instead, awarded counsel fees to the Sekas defendants in the amount of $5,740. The judge also awarded additional counsel fees to the Sekas defendants in the amount of $11,410. The Abrahamsen defendants sought reconsideration of the judge's orders issued in January and February 2016. Because the Abrahamsen defendants claimed the judge who issued the January and February 2016 orders had a conflict based on his law clerk's employment with Sekas as of April 2016, a different judge heard argument on the motions for reconsideration, indemnification, and sanctions. These motions were denied by order dated December 5, 2016. The factual history preceding the filing of the defamation action is relevant to understanding the issues on appeal. In 2003, Mariner's Bank retained plaintiffs to handle various legal matters, including litigation actions, bankruptcy matters, and foreclosure proceedings. A-1740-16T3 7  Around July 2009, Mariner's Bank retained plaintiffs to pursue an action against Carver Federal Savings Bank (Carver) for default of a loan.3 Around the same time, Mariner's Bank decided to sell thirteen defaulted loans to Purchase Partners, LLC (Purchase Partners). Carver asserted counterclaims in the Carver action against Mariner's Bank before its loan was sold to Purchase Partners. Because the interests of Mariner's Bank and Purchase Partners were aligned, plaintiffs discussed whether they could represent both parties in the Carver action. Plaintiffs asked Mariner's Bank and Purchase Partners to sign a conflict waiver letter before plaintiffs would undertake dual representation of the parties in the Carver action. Mariner's Bank and Purchase Partners signed the conflict waiver letters, and agreed to equally share payment of plaintiffs' legal fees in the Carver action. Purchase Partners fell behind on its payments to plaintiffs for legal services. Plaintiffs requested payment in return for continued representation of Purchase Partners in the Carver action. Purchase Partners was unable to pay plaintiffs' legal fees. Purchase Partners then sought a more economical arrangement with another law firm to represent it in the Carver action. 3 The action, entitled Mariner's Bank v. Carver Federal Savings Bank, was filed in United States District Court for the Southern District of New York (Carver action). A-1740-16T3 8  Thereafter, Purchase Partners retained S&A to represent its interest in the Carver action. Plaintiffs filed a motion in the Carver action to impose a charging lien against Purchase Partners for outstanding legal fees and for any recovery obtained by Purchase Partners in the Carver action. The federal judge handling the Carver action granted plaintiffs' motion. Plaintiffs then filed a motion in federal court to establish the amount of the charging lien against Purchase Partners. S&A advised Purchase Partners to oppose the motion, and dispute plaintiffs' outstanding fees based on an alleged conflict of interest arising from plaintiffs' dual representation of Mariner's Bank and Purchase Partners. Plaintiffs' motion to establish the amount of the charging lien was not decided by the federal judge handling the Carver action until early 2014.4 In August 2013, the parties settled the Carver action. At that time, Abrahamsen authored a confidential memorandum to Purchase Partners regarding the Carver action. The memorandum, entitled "Memo on Mariner[']s Bank and Purchase Partners and the Dual Representation of Seidman & Pincus," discussed the events that transpired after S&P undertook 4 On February 5, 2014, the federal judge in the Carver action determined plaintiffs had no conflict of interest and awarded the fees owed by Purchase Partners to plaintiffs for legal work related to the Carver action. A-1740-16T3 9 representation of both Mariner's Bank and Purchase Partners in the Carver action. The memorandum opined that "S&P turned on his client [Purchase Partners] and was [Mariner's Bank] against [Purchase Partners] on this point while still counsel of record for both parties." Mariner's Bank received a copy of the Abrahamsen memorandum and stopped paying plaintiffs for legal services in the Carver action and other matters. After receipt of the Abrahamsen memorandum, Mariner's Bank did not hire plaintiffs to represent it in any new matters. In early 2014, plaintiffs requested overdue payment for legal services from Mariner's Bank. A representative of Mariner's Bank told plaintiffs the bank was discontinuing S&P's legal services based on the Abrahamsen memorandum and Abrahamsen's advice that plaintiffs had a conflict of interest due to S&P's dual representation of Mariner's Bank and Purchase Partners in the Carver action. Believing the bank's decision to discontinue plaintiffs' legal services was due to the Abrahamsen memorandum, plaintiffs filed the defamation action seeking damages against defendants. Soon after commencing the defamation action, plaintiffs sought a copy of the Abrahamsen memorandum. Rather than provide a copy of the memorandum or explain why the memorandum could not be produced, the Abrahamsen defendants filed a series of motions for discovery A-1740-16T3 10 and other relief unrelated to plaintiffs' defamation action as described earlier in this opinion. The defamation action then proceeded for nearly two years. On March 28, 2016, plaintiffs served a subpoena on Mariner's Bank, seeking the Abrahamsen memorandum. Mariner's Bank provided the document to plaintiffs on April 1, 2016. The Abrahamsen memorandum opined S&P had a conflict of interest based on the law firm's dual representation of Mariner's Bank and Purchase Partners in the Carver action. Three months after receipt of the Abrahamsen memorandum, plaintiffs deposed several individuals affiliated with Mariner's Bank. Based on the deposition testimony, plaintiffs determined they would be unable to prove the Abrahamsen memorandum caused Mariner's Bank to terminate S&P's legal services. Therefore, on July 28, 2016, plaintiffs elected to discontinue the defamation action. Plaintiffs and the Sekas defendants promptly signed a stipulation dismissing the complaint. However, the Abrahamsen defendants did not sign the stipulation until January 2017. While the defamation action was pending, in or around April 2016, the judge's law clerk accepted employment with Sekas and his new law firm. The judge handling the defamation action had not issued any orders in the defamation action subsequent to February 2016. The Abrahamsen defendants A-1740-16T3 11 did not file a motion for reconsideration and other relief until around March 2016. Due to an alleged conflict based on the judge's law clerk's acceptance of a position with the Sekas firm, the reconsideration motion and other motions filed by the Abrahamsen defendants were heard by the presiding judge of the Civil Division. The presiding judge denied those motions on December 5, 2016. The parties filed a stipulation of dismissal in the defamation action on January 17, 2017, and the Abrahamsen defendants then appealed from thirteen separate orders issued in the defamation action. On appeal, the Abrahamsen defendants argue four points. 5 First, they argue plaintiffs' complaint constituted frivolous litigation because it was without basis in law or in fact, and the judge erred in failing to impose sanctions against plaintiffs. Second, they argue entitlement to indemnification and counsel fees from the Sekas defendants pursuant to S&A's partnership operating agreement related to plaintiffs' claims in the defamation action. Third, they contend the judge handling the defamation action improperly denied discovery, quashed subpoenas, granted protective orders, and awarded counsel fees. Fourth, they claim all orders issued by the 5 The Notice of Appeal lists the May 4, 2015 order, the February 5, 2016 order denying a motion to compel discovery; and the December 5, 2017 order denying reconsideration of prior orders. However, because the issues related to these orders were not briefed, the issues are deemed waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014). A-1740-16T3 12 original judge assigned to the defamation action should be vacated because his law clerk was subsequently hired by Sekas' new law firm. We review the issues raised in this appeal for abuse of discretion. An abuse of discretion arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Our review of a trial court's imposition of sanctions is similarly reviewed for abuse of discretion. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). We likewise review a judge's decision to impose discovery sanctions and award attorney's fees as a discovery sanction under an abuse of discretion standard. Shore Orthopaedic Grp. v. Equitable Life Assurance Soc'y of U.S., 397 N.J. Super. 614, 629-30 (App. Div. 2008); Innes v. Carrascosa, 391 N.J. Super 453, 496 (App. Div. 2007). A judge, in his or her discretion, has the inherent authority to sanction a party for behavior that is vexatious, burdensome, and harassing. See Brundage v. Estate of Carambio, 195 N.J. 575, 610 (2008) (recognizing the inherent power of courts to sanction parties as means of enforcing ordinary rules of practice); A-1740-16T3 13 Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499, 513 (1995) (recognizing the inherent power to punish for discovery violations); Dziubek v. Schumann, 275 N.J. Super. 428, 439-40 (App. Div. 1994) (reasoning a court's inherent power may include awarding attorney's fees in the form of a sanction). Although the power to sanction should be invoked sparingly, the circumstances presented in this case support the award of attorney's fees as the proper sanction for the Abrahamsen defendants' vexatious and harassing motion practice in the defamation action. We conclude there is sufficient, credible evidence in the record to support the judge's award of attorney's fees as a sanction against the Abrahamsen defendants. The Abrahamsen defendants repeatedly sought discovery and filed motions relating to the dissolution action in the defamation action. The judge's orders clearly and unambiguously instructed that issues and discovery requests related to the dissolution action had to be pursued in the dissolution action. The judge expressly warned that if the Abrahamsen defendants continued to file such applications in the defamation action, rather than in the dissolution action, he would impose sanctions. The Abrahamsen defendants failed to heed the judge's admonition to cease filing repetitive discovery motions and other motions unrelated to the defamation action. A-1740-16T3 14  Because the Abrahamsen defendants disregarded the judge's orders related to motion practice and discovery in the defamation action, the judge awarded attorney's fees as a sanction for the Abrahamsen defendants' improper use of the defamation action to gain discovery in the dissolution action. The judge found the Abrahamsen defendants were acting in bad faith, contrary to N.J.S.A. 2A:15- 59.1, by attempting to use the defamation action to obtain information relevant to the dissolution action. The judge also imposed further sanctions against the Abrahamsen defendants in accordance with Rule 1:4-8(c). When an attorney signs a pleading, motion, or other paper, the attorney certifies that the "paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." R. 1:4-8(a)(1). We discern no abuse of discretion in the trial court's decision to sanction the Abrahamsen defendants by imposing attorney's fees in favor of the Sekas defendants. The Sekas defendants were forced to oppose a barrage of motions filed by the Abrahamsen defendants unrelated to the defamation action. The record does not reflect favorably on the Abrahamsen defendants' litigation tactics, which lead the judge to impose sanctions in the form of attorney's fees to deter continued violations of the court's orders regarding discovery and A-1740-16T3 15 motion practice in the defamation action. The filing of continued requests for discovery by the Abrahamsen defendants, after the judge's issuance of a warning not to seek such discovery, was contrary to Rule 1:10-3, and the judge did not abuse his discretion under the circumstances. The Abrahamsen defendants also contend the judge should have sanctioned plaintiffs because the defamation action was frivolous. The frivolous litigation statute permits a court to award reasonable counsel fees and litigation costs to a prevailing party in a civil action if the court determines that the complaint, counterclaim, cross-claim, or defense is frivolous. N.J.S.A. 2A:15- 59.1. A claim is considered frivolous when: "no rational argument can be advanced in its support"; "it is not supported by any credible evidence"; "a reasonable person could not have expected its success"; or "it is completely untenable." Belfer v. Merling, 322 N.J. Super. 124, 144 (App. Div. 1999). "[F]alse allegations of fact [will] not justify [an] award . . . unless they are made in bad faith, 'for the purpose of harassment, delay or malicious injury.'" McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561 (1993) (quoting N.J.S.A. 2A:15-59.1(b)(1)). An honest attempt to pursue a perceived, A-1740-16T3 16 though ill-founded, claim is not considered to be frivolous. Id. at 563. The burden of proving bad faith is on the party who seeks fees and costs. Id. at 559. Rule 1:4-8 supplements N.J.S.A. 2A:15-59.1, and governs the conduct of attorneys. A Rule 1:4-8 sanction is "specifically designed to deter the filing or pursuit of frivolous litigation." LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009). "For purposes of imposing sanctions under Rule 1:4-8, an assertion is deemed 'frivolous' when 'no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.'" United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009) (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)). "Where a party has [a] reasonable and good faith belief in the merit of the cause, attorney's fees will not be awarded." Ibid. The Abrahamsen defendants sought counsel fees, claiming plaintiffs "persist[ed] in frivolous litigation" pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8. We reject this argument. When plaintiffs filed the complaint, they knew their long-term relationship with Mariner's Bank was abruptly terminated after the bank received the Abrahamsen memorandum. However, plaintiffs also knew as of the date they filed the defamation action that a federal judge determined S&P did not have a conflict of interest in the Carver action. A-1740-16T3 17  In deciding the Abrahamsen defendants' motion for sanctions against plaintiffs, the judge stated: I do think it's a close call. I don't think its mere speculation. . . . I think there was some indicia that defamation could have occurred. It didn’t. And I agree. But – but, you know, [plaintiffs] also ha[d] a problem with obtaining a memo which . . . is the smoking gun that, in fact, wasn't smoking. But the only way to obtain it would have been to file litigation. And, obviously, through discovery or subpoena power [plaintiffs have] been able to obtain it through that method. He did. And then he dropped his complaint. The judge found plaintiffs never conceded the defamation action was without merit. Plaintiffs voluntarily dismissed the defamation action after obtaining the Abrahamsen memorandum (sixteen months after requesting a copy of that document) and deposing several representatives of Mariner's Bank. Only after receipt of the Abrahamsen memorandum and completion of depositions in July 2016 did plaintiffs conclude they lacked direct or admissible evidence to prove their claims in the defamation action. Plaintiffs' claims were not frivolous. Based on circumstantial evidence, plaintiffs believed the Abrahamsen memorandum resulted in the loss of Mariner's Bank as a client, facts sufficient to establish a claim for defamation and tortious interference against one or more defendants. Based on the refusal of the Abrahamsen defendants to provide the Abrahamsen memorandum, A-1740-16T3 18 plaintiffs had a good faith basis as to the merits of their claims, and the complaint was not frivolous under N.J.S.A. 2A:15-29.1 or Rule 1:4-8. We next review the Abrahamsen defendants' argument related to the judge's denial of indemnification from the Sekas defendants. The judge determined the indemnification issue should be resolved in the dissolution action, not the defamation action. Rule 4:38-2 "vest[s] [a] determination whether or not to sever claims to the sound exercise of a trial court's discretion." Rendine v. Pantzer, 141 N.J. 292, 310 (1995). The judge denied the Abrahamsen defendants' motion to consolidate the defamation action with the dissolution action, finding the matters "do not share 'the same transaction or series of transactions' warranting consolidation under Rule 4:38-1." The judge then dismissed the Abrahamsen defendants' third-party complaint against the Sekas defendants seeking indemnification. The judge noted the Abrahamsen defendants could seek indemnification from S&A in the dissolution action as that court had "appropriate venue" to decide the issue and was the forum where the "matter properly belongs." The judge instructed that the indemnification issue be determined in the dissolution action, and denied the motion without prejudice to allow the filing of the indemnification claim in the dissolution action. We discern no abuse of discretion in the judge's decision A-1740-16T3 19 directing the Abrahamsen defendants to pursue their claim for indemnification in the dissolution action rather than the defamation action. We turn to the claim by the Abrahamsen defendants that the judge abused his discretion in denying various discovery requests in the defamation action. The Abrahamsen defendants did not appeal from the order dismissing the defamation action. When a party fails to appeal from the dismissal of an action, that party is barred from appealing any prior adverse discovery orders. Mac Auto Imports, Inc. v. Jaguar Cars, 244 N.J. Super. 254, 257 (App. Div. 1990). "Discovery is provided to prepare for trial. In light of plaintiff's dismissal of its complaint, there will be no trial. Thus, the discovery issues are moot." Ibid. As the claims against the Abrahamsen defendants were extinguished by the execution of a stipulation of dismissal, the Abrahamsen defendants have no reason to obtain discovery, and their appeal of any discovery orders is moot. 6 Lastly, we address the argument that the judge's orders should be vacated based on his law clerk's subsequent employment with Sekas Law Group. "[A]ppellate courts will decline to consider questions or issues not properly 6 Because we decline to address the Abrahamsen defendants' appeal of discovery orders as moot, we similarly decline to address the Abrahamsen defendants' appeal of the judge's orders related to the issuance of protective orders and the quashing of subpoenas. A-1740-16T3 20 presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public importance." Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (internal citation omitted). The Abrahamsen defendants never raised the issue to the trial court despite the motion for reconsideration being heard several months after the law clerk began his employment with Sekas. Because the question does not relate to jurisdiction or constitute a matter of great public importance, we decline to reach this issue on appeal. Moreover, the judge who issued most of the orders in the defamation action did not issue any orders after February 2016. Therefore, there is no evidence in the record the judge was influenced by his law clerk's acceptance of a job with Sekas in or around April 2016. Affirmed. A-1740-16T3 21 

366 S.C. 339 (2005) 622 S.E.2d 526 In the Matter of Walter Henry SMITH, Respondent. Supreme Court of South Carolina. November 9, 2005. ORDER The Office of Disciplinary Counsel has filed a petition asking this Court to place respondent on interim suspension pursuant *340 to Rule 17(b), RLDE, Rule 413, SCACR, and seeking the appointment of an attorney to protect clients' interests pursuant to Rule 31, RLDE, Rule 413, SCACR. IT IS ORDERED that respondent's license to practice law in this state is suspended until further order of the Court. IT IS FURTHER ORDERED that John Barron McArthur, Esquire, is hereby appointed to assume responsibility for respondent's client files, trust account(s), escrow account(s), operating account(s), and any other law office account(s) respondent may maintain. Mr. McArthur shall take action as required by Rule 31, RLDE, Rule 413, SCACR, to protect the interests of respondent's clients. Mr. McArthur may make disbursements from respondent's trust account(s), escrow account(s), operating account(s), and any other law office account(s) respondent may maintain that are necessary to effectuate this appointment. This Order, when served on any bank or other financial institution maintaining trust, escrow and/or operating accounts of respondent, shall serve as an injunction to prevent respondent from making withdrawals from the account(s) and shall further serve as notice to the bank or other financial institution that John Barron McArthur, Esquire, has been duly appointed by this Court. Finally, this Order, when served on any office of the United States Postal Service, shall serve as notice that John Barron McArthur, Esquire, has been duly appointed by this Court and has the authority to receive respondent's mail and the authority to direct that respondent's mail be delivered to Mr. McArthur's office. /s/ Jean Hoefer Toal, C.J. FOR THE COURT

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 17-50338 Plaintiff-Appellee, 18-50449 v. D.C. No. 2:14-cr-00471-GW-1 JAMES ROBERT MILLER, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California George Wu, District Judge, Presiding Argued and Submitted January 10, 2020 Pasadena, California Filed March 20, 2020 Before: Paul J. Watford and Mark J. Bennett, Circuit Judges, and Jed S. Rakoff, * District Judge. Opinion by Judge Rakoff * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 UNITED STATES V. MILLER SUMMARY ** Criminal Law The panel affirmed a conviction for wire fraud and filing false tax returns in a case in which a jury found that the defendant embezzled over $300,000 from the company for which he served as manager and president. Overruling prior decisions of this court in light of the Supreme Court’s intervening decision in Shaw v. United States, 137 S. Ct. 462 (2016), the panel held that wire fraud under 18 U.S.C. § 1343 requires the intent to deceive and cheat — in other words, to deprive the victim of money or property by means of deception — and that the jury charge instructing that wire fraud requires the intent to “deceive or cheat” was therefore erroneous. The panel nevertheless held that the erroneous instruction was harmless. The panel wrote that it was deeply troubled by the disregard of elementary prosecutorial ethics by an Assistant U.S. Attorney from the Central District of California who, with a personal and financial interest in the outcome of this case, impermissibly tainted the prosecution by involving himself in the early stages of the investigation and then continuing to express interest even after the U.S. Attorney’s Office for the Central District recused itself from the matter. The panel held that the misconduct of the AUSA does not entitle the defendant to any relief because as soon as the Department of Justice became aware of the impropriety, it ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  UNITED STATES V. MILLER 3 took every necessary step to cure any resulting taint, including turning over the entire prosecution to disinterested prosecutors from the Southern District of California. The panel held that the district court correctly denied the defendant’s motion for a new trial, and did not abuse its discretion in denying his motion for an indicative ruling on additional discovery, based on a special agent’s failure to disclose his romantic relationship with an AUSA in the recused Central District office. The panel concluded that there was sufficient evidence to establish the interstate wire element of the wire fraud offenses. COUNSEL Katherine Kimball Windsor (argued), Law Office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant. Rebecca Suzanne Kanter (argued), Assistant United States Attorney; Daniel E. Zipp, Special Attorney for the United States; Robert S. Brewer Jr., United States Attorney; William P. Barr, United States Attorney General; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee. 4 UNITED STATES V. MILLER OPINION RAKOFF, District Judge: A jury in the Central District of California convicted defendant-appellant James Miller of five counts of wire fraud and four counts of filing false tax returns, finding that he had embezzled over $300,000 from the company for which he served as managing member and president. Miller now appeals his conviction, as well as the district court’s denial of various pre- and post-trial motions seeking dismissal of the indictment, additional discovery, and other forms of relief. This appeal presents two main questions. The first is whether the jury charge misstated the law by instructing that wire fraud under 18 U.S.C. § 1343 requires the intent to “deceive or cheat” rather than the intent to “deceive and cheat.” We conclude that the charge was erroneous. Several other circuit courts have long held that the crime of wire fraud requires the specific intent to utilize deception to deprive the victim of money or property, i.e., to cheat the victim, and we now align the law of the Ninth Circuit with that of the other circuits and with recent Supreme Court precedent. Nevertheless, we find that the erroneous instruction was harmless in this case. The second question here presented is whether an Assistant U.S. Attorney (AUSA) from the Central District of California who had a personal and financial interest in the outcome of this case impermissibly tainted the prosecution by involving himself in the early stages of the investigation and then continuing to express interest in the case even after the entire U.S. Attorney’s Office for the Central District of California recused itself from the matter. We are deeply troubled by this Assistant’s disregard of elementary  UNITED STATES V. MILLER 5 prosecutorial ethics. But we also note that as soon as the Department of Justice became aware of the impropriety, it took every necessary step to cure any resulting taint, including turning over the entire prosecution of the case to disinterested prosecutors from the Southern District of California. We therefore hold that the misconduct of the Central District Assistant does not entitle Miller to any relief. Because we also find Miller’s remaining arguments to be without merit, we affirm his conviction. Background Trial testimony established that, during the relevant time period, defendant-appellant James Miller served as the president and managing member of an online retail platform called MWRC Internet Sales, LLC. Some years earlier, an entrepreneur named Russell Lesser, who was Miller’s long- time friend, had founded MWRC and recruited Miller to work for the company. As he took on more senior roles, Miller’s job responsibilities grew to include management of MWRC’s day-to-day finances, with limited oversight by Russell Lesser. In 2009, Miller, who was experiencing personal financial difficulties, began writing himself checks from one of MWRC’s bank accounts. He did so without the knowledge or consent of Russell Lesser or anyone else at MWRC. By the end of 2010, he had issued a total of about $130,000 to himself and had paid back roughly $30,000. In March 2011, Miller disclosed to Russell Lesser a hint of what he had done, but falsely told Lesser that he had only written himself checks totaling $30,000. Upon hearing this, Lesser told Miller, “you can’t do that. That is stealing.” Miller then expressed remorse and promised to never write himself checks again. 6 UNITED STATES V. MILLER Miller only kept this promise for two months. He then wrote himself another $3,000 check on April 29, 2011, and over the rest of 2011 and 2012, wrote himself around fifty additional checks from MWRC, totaling additional amounts of another $200,000 or so. To disguise his payments, Miller often listed them in MWRC’s ledger as internal transfers between the company’s two bank accounts. Russell Lesser eventually noticed that these ledger entries did not correspond to actual deposits into the purported recipient account. He then obtained bank records and cancelled checks, which led to his discovery of the continuing check- writing fraud. By the time of this discovery, Miller had embezzled about $330,000 from MWRC. 1 Miller had also failed to report any of this money as income on his tax returns. Based on the foregoing, a grand jury indicted Miller on five counts of wire fraud in violation of 18 U.S.C. § 1343 and four counts of filing false federal tax returns in violation of 26 U.S.C. § 7206(1). Miller pled not guilty on all counts and proceeded to trial in June 2017. His chief defense was that he always intended to (and eventually did) pay back the full amount he had taken from MWRC. He also argued that he always believed the funds to be loans that he was authorized to issue to himself. At the conclusion of trial, however, the jury convicted Miller on all counts. On September 11, 2017, the trial court sentenced Miller to nine months’ imprisonment, to run concurrently on all counts, two years of supervised release, and a special 1 At this point, Miller had repaid to MWRC about $95,000 of the embezzled funds. Of course, subsequent repayment is of itself no defense to embezzlement or wire fraud, though it may bear on the issue of intent.  UNITED STATES V. MILLER 7 assessment of $900. Miller is on bail pending disposition of this appeal. At trial, Miller requested a jury instruction stating that, to be guilty of wire fraud, he must have intended to “deceive and cheat” MWRC. The trial court, however, delivered the Ninth Circuit’s model jury instruction, which states that wire fraud instead requires only the intent to “deceive or cheat” (emphasis supplied) the victim. As his first issue on this appeal, Miller argues that this jury instruction misstated the law. The facts that give rise to Miller’s second issue on appeal occurred early in the investigation of this case. Indeed, Miller goes so far as to speculate about whether law enforcement would even have investigated him in the first place were it not for the early involvement of Russell Lesser’s son, Gregory (“Greg”) Lesser, an AUSA in the U.S. Attorney’s Office for the Central District of California and himself a 1.25% member of MWRC. Upon learning from his father of Miller’s embezzlement, Greg Lesser called a friend at the FBI to report Miller. 2 This outreach, Miller argues, may well have expedited, or otherwise influenced, the agency’s decision to open an investigation and to begin coordinating with prosecutors in the Central District office. In addition, over the next three weeks, the FBI arranged a meeting at which Russell Lesser, wearing a wire, confronted 2 Specifically, AUSA Lesser reached out to a friend at the FBI, who put the Lessers in touch with another agent. That agent in turn referred the case to Special Agent Joseph Swanson “to open an investigation.” Shortly thereafter, Swanson called Greg Lesser to inform him that the FBI would be reaching out to the U.S. Attorney’s Office about the Miller matter. 8 UNITED STATES V. MILLER Miller about his check-writing, leading to some admissions from Miller. 3 It was not until approximately three weeks after he had first called his friend in the FBI that Greg Lesser reported his obvious conflict-of-interest in the Miller case to his supervisor in the Central District. At that point the supervisor recused the entire office and turned over the matter to the U.S. Attorney’s Office for the Southern District of California. 4 However, unbeknownst to the Southern District prosecutors, Greg Lesser continued for a while to maintain a tangential but still inappropriate level of involvement in the case. For example, as detailed below, AUSA Lesser had additional direct and indirect contact with Special Agent Swanson concerning the progress of the case. The Government disclosed all of this to Miller well in advance of trial, at which point Miller filed a motion for additional discovery into Greg Lesser’s involvement in the case. The district court denied this motion except to order the Government to produce the grand jury testimony from Miller’s indictment proceedings in order to confirm that the grand jury was not presented with testimony that was tainted by Greg Lesser’s involvement. After the Government produced the grand jury transcripts, Miller filed a motion to dismiss the indictment with prejudice on two grounds. First, Miller moved to dismiss the indictment under the Due 3 At this meeting, Lesser asked, “[D]o you admit that’s money that’s been stolen?” and Miller replied, “Yes. Well . . . [w]ith an intention to repay.” Miller also acknowledged that he had used some of the money to make payments on his personal mortgage and credit card debt. 4 The Southern District prosecutors who handled the matter still, of course, prosecuted the case in the Central District, where most of the underlying events occurred.  UNITED STATES V. MILLER 9 Process Clause of the Fifth Amendment or, alternatively, under the trial court’s supervisory powers, because of Greg Lesser’s role as an interested prosecutor. See United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). Second, Miller moved to dismiss the indictment under the Due Process Clause because of allegedly false testimony that was presented to the grand jury. The district court denied both grounds, leading to Miller’s second main issue on this appeal. Discussion I. The Jury Instructions At trial, the Government requested that the court charge the jury that, to be guilty of wire fraud, a defendant must have acted with the intent to “deceive or cheat.” As thus stated in the alternative, Miller could theoretically have been convicted of deceiving MWRC (as, for example, through the false ledger entries), even if he had no intent to cheat MWRC, that is to, “deprive [MWRC] of something valuable by the use of deceit or fraud,” Merriam-Webster’s Collegiate Dictionary, 10th ed. (1997). The defense, based on its view that Miller’s alleged belief that his withdrawals were simply “loans” meant that he lacked an intent to cheat, requested an instruction that wire fraud requires the intent to “deceive and cheat.” Over the defense’s objection, but in line with existing Ninth Circuit pattern instructions, the district court gave the Government’s proposed instruction, and Miller now appeals his conviction on the ground that this instruction misstated the law. We review de novo whether a trial court’s jury instructions correctly stated the elements of a crime, United States v. Anguiano-Morfin, 713 F.3d 1208, 1209 (9th Cir. 2013), and we have no trouble concluding that this 10 UNITED STATES V. MILLER instruction was erroneous. Like the mail fraud statute from which it is derived, the wire fraud statute, in plain and simple language, criminalizes the use of interstate wires to further, not mere deception, but a scheme or artifice to defraud or obtain money or property, i.e., in every day parlance, to cheat someone out of something valuable. It follows that to be guilty of wire fraud, a defendant must act with the intent not only to make false statements or utilize other forms of deception, but also to deprive a victim of money or property by means of those deceptions. In other words, a defendant must intend to deceive and cheat. This has long been the law of several other circuits. For example, in United States v. Walters, 997 F.2d 1219 (7th Cir. 1993), the court reviewed the conviction for mail fraud 5 of a sports agent who had defrauded the NCAA, not by stealing its property, but by inducing college athletes to sign secret representation contracts in violation of the Association’s rules. In other words, Walters had deceived, but not cheated, his victim. The Seventh Circuit reversed Walters’ conviction, holding that the statute requires “a scheme to obtain money or other property from the victim,” and that “[l]osses that occur as byproducts of a deceitful scheme do not satisfy the statutory requirement.” Id. at 1227. Other circuits have held similarly. The Second Circuit had already concluded as much some two decades before Walters, holding in United States v. Regent Office Supply Co., 421 F.2d 1174, 1180 (2d Cir. 1970) that “the 5 Although Walters was prosecuted under the mail fraud statute, 18 U.S.C. § 1341, courts typically interpret the mail and wire fraud statutes the same way, as their language is largely identical. See, e.g., United States v. Kuecker, 740 F.2d 496, 504 (7th Cir. 1984); United States v. Greenberg, 835 F.3d 295, 305 (2d Cir. 2016).  UNITED STATES V. MILLER 11 government can[not] escape the burden of showing that some actual harm or injury [to the victim’s money or property] was contemplated by the schemer.” See also United States v. Starr, 816 F.2d 94, 101 (2d Cir. 1987) (“[I]t is error for a trial judge to charge a jury that contemplated harm is not an element of fraudulent intent.”). The D.C. Circuit has also agreed, at least in dicta. United States v. Lemire, 720 F.2d 1327, 1335–36 (D.C. Cir. 1983) (“[T]here is judicial consensus about certain requisite elements of a scheme to defraud. . . . [T]he scheme to defraud must threaten some cognizable harm to its target. . . .”). See also, e.g., United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007) (upholding a jury instruction that, for the purposes of the wire fraud statute, to act with the intent to defraud means “to act knowingly and with the specific intent to deceive, for the purposes of causing some financial or property loss to another”); 2 Sand et al. Modern Federal Jury Instructions, Instruction 44-5 (2019) (“‘Intent to defraud’ means to act knowingly and with the specific intent to deceive, for the purpose of causing some financial or property loss to another.”). The Ninth Circuit, on the other hand, employs the “deceive or cheat” language in its model jury instruction on wire fraud, Manual of Modern Criminal Jury Instructions for the District Courts of the Ninth Circuit § 8.124 (2019), and this court has upheld this instruction on at least three occasions in the past. United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004); United States v. Treadwell, 593 F.3d 990, 998–99 (9th Cir. 2010); see United States v. Livingston, 725 F.3d 1141, 1148 (9th Cir. 2013). Nor is this the only circuit that uses the “deceive or cheat” language. See Treadwell, 593 F.3d at 999 (citing the model instructions of the Third, Fifth, Sixth, Tenth, and Eleventh Circuits as support for the “deceive or cheat” formulation). 12 UNITED STATES V. MILLER But we think that these holdings are no longer tenable in light of the Supreme Court’s intervening ruling in Shaw v. United States, 137 S. Ct. 462 (2016). Indeed, another panel of this court has already acknowledged as much in a non- precedential memorandum disposition. United States v. George, 713 F. App’x 704, 705 (9th Cir. 2018). 6 In Shaw, the Supreme Court considered a jury instruction defining “scheme to defraud” for the purpose of the bank fraud statute 7 as “any deliberate plan of action or course of conduct by which someone intends to deceive, cheat, or deprive a financial institution of something of value.” Id. at 469. The Court cast serious doubt on the accuracy of this instruction on the ground that “the scheme must be one to deceive the bank and deprive it of something of value.” 8 Id. We think that this language and reasoning clearly control here. Although the wording of Shaw’s instruction was not identical to Miller’s, both arguably allowed a jury to convict “if it found no more than that [the defendant’s] scheme was one to deceive the [victim] but not to ‘deprive’ the [victim] of anything of value.” Id. In light of Shaw, we therefore overrule our prior cases on this question and hold that wire fraud requires the intent to deceive and cheat — in other 6 But see United States v. Stewart, 728 F. App’x 651, 653 (9th Cir. 2018) (affirming the “deceive or cheat” instruction without analyzing it in light of Shaw). 7 18 U.S.C. 1344(1). Because the bank, mail, and wire fraud statutes all use highly similar language, we take the Supreme Court’s reasoning in Shaw to apply to the wire fraud statute as well. 8 The Court remanded the case to the Ninth Circuit for us to determine whether the instruction was lawful. 137 S. Ct. at 470. On remand, a panel of this court held that this argument was not properly preserved below, and, in any case, any error in the instruction was harmless. United States v. Shaw, 885 F.3d 1217 (9th Cir. 2018).  UNITED STATES V. MILLER 13 words, to deprive the victim of money or property by means of deception. Despite this error in the jury charge, however, we affirm Miller’s conviction on the ground that the error was harmless. See United States v. Wilkes, 662 F.3d 524, 544 (9th Cir. 2011). It is true that the Government emphasized the “deceive or cheat” distinction in its summation, arguing to the jury that Miller’s false checkbook entries were sufficient to demonstrate intent to deceive, and therefore sufficient evidence that Miller had the mens rea for wire fraud. 9 Nevertheless, we still find beyond a reasonable doubt that the jury would have convicted Miller even if it had been properly instructed, for two reasons: First, Miller’s primary defense — that he was not guilty of wire fraud because he intended to pay back the funds he deceptively obtained from MWRC — is not a defense at all. In United States v. Treadwell, this court already considered and rejected the argument that the wire fraud statute requires an intent to permanently deprive a victim of money or property. 10 593 F.3d at 996–98 (citing with approval United States v. Hamilton, 499 F.3d 734, 736 (7th Cir. 2007) (“If you embezzle from your employer you are not excused just because you had an honest intention of replacing the money, 9 The falsified ledger entries were, to be sure, also strongly probative of Miller’s intent to cheat, and the jury may properly have considered them in that light. 10 To be clear, we overrule Treadwell in part, insofar as we hold that the “deceive or cheat” instruction misstates the requirement that wire fraud requires the intent to deprive a victim of money or property, at least momentarily. But nothing in Shaw compels us to go so far as to hold that wire fraud requires an intent to permanently deprive the victim of property. We know of no cases that so hold, and appellant cites none. 14 UNITED STATES V. MILLER maybe with interest . . . .”). Intent to repay, therefore, is not a defense to wire fraud. Second, Miller’s only other material defense was that, at the very time he obtained the funds, he believed the funds to be bona fide loans that he was fully authorized to issue to himself, albeit by means of the deceptive ledger entries. This defense did, in effect, raise the claim that Miller, while intending to deceive, did not intend to cheat. But we are persuaded, based on other language in the jury instructions, that there is no way the jury made this determination. Most importantly, the district court’s instruction on the “scheme to defraud” element of the wire fraud counts told the jury that it must find that Miller “knowingly engaged in a scheme or plan to defraud or obtain money or property by means of false or fraudulent pretenses, representations, or promises.” If the jury had believed that there was any inconsistency between this language and the subsequent language about “deceive or cheat,” they undoubtedly would have sought further instruction, which they did not. Further, any notion that the jury thought that Miller was guilty of deception, but not cheating, because he allegedly had permission to give himself loans from company funds is flatly contradicted by the jury’s conviction on all the tax counts. This is because the jury was expressly instructed that “[t]he proceeds of a loan are not taxable income,” and that Miller could not be convicted of filing a false tax return unless he did so “willfully.” So instructed, the jury could only have convicted Miller of the tax counts if they found beyond a reasonable doubt that he did not really believe that the funds he took from the company were bona fide loans. For these reasons, we hold that the error in the jury instructions was harmless.  UNITED STATES V. MILLER 15 II. The Interested Prosecutor “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Model Rules of Professional Conduct Rule 3.8 Cmt. 1. She represents not her own interest but “the interest of society as a whole.” Ferri v. Ackerman, 444 U.S. 193, 202–03 (1979). For this very reason, the Department of Justice holds United States Attorneys and their Assistants to exacting ethical standards, not least with respect to actual and apparent conflicts of interest. See, e.g., U.S. Attorneys’ Manual § 1-4.320(F) (“Employees may not engage in outside activities that create or appear to create a conflict of interest with their official duties. Such a conflict exists when the outside activity would . . . create an appearance that the employee’s official duties were performed in a biased or less than impartial manner.”). Moreover, federal law itself contains a criminal prohibition on prosecutors and other government employees “participat[ing] personally and substantially” in a “judicial or other proceeding” in which they have an interest. 18 U.S.C. § 208. AUSA Greg Lesser’s role in the Miller prosecution, however limited, was a clear violation of his ethical and professional duties. Nothing, of course, prevented his father from reporting the embezzlement to the FBI, as through a public tip line or the like. But it was totally inappropriate for AUSA Lesser to, at a minimum, create the appearance of having used his personal contacts in the Bureau as a means to pull strings in favor of an investigation. 11 See U.S. 11 We observe, as does Miller, that the FBI did not produce any “302 reports” detailing its contacts with Greg Lesser, as it would typically have done to memorialize contacts with a complaining witness. 16 UNITED STATES V. MILLER Attorneys’ Manual § 9-27.260(A)(3) (“In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be improperly influenced by . . . [t]he possible affect [sic] of the decision on the attorney’s own professional or personal circumstances.”). And his errors compounded: after helping to initiate the Miller investigation, Lesser faced an obvious duty to report his conflict of interest (and presumptive recusal) to his supervisor as soon as possible. See U.S. Attorney’s Manual § 3-2.170 (“A United States Attorney who becomes aware of circumstances that might necessitate his or her recusal or that of the entire office, should promptly notify [the general counsel’s office] to discuss whether a recusal is required.”) (emphasis supplied); id. § 3-2.220 (same recusal rules apply to AUSAs). Instead, inexplicably, he waited three weeks to disclose his conflict, even while his father was, at the behest of the FBI, secretly recording a conversation with Miller. Just as concerning are AUSA Lesser’s apparent continued attempts to involve himself in the Miller case even after the Central District’s recusal. For example, in January 2013, AUSA Lesser called Special Agent Swanson to inquire, “in his capacity as part-owner (or part-shareholder) of MWRC,” about the status of the case. 12 At some point after that, Greg Lesser solicited his colleagues’ help through his work e-mail to track down information on Mr. Miller’s employment history. These attempts represented a This implies that the FBI agents viewed Greg Lesser, at least initially, not as a witness, but as the prosecutor. 12 Special Agent Swanson merely replied that the investigation was ongoing.  UNITED STATES V. MILLER 17 continuing violation of Greg Lesser’s ethical obligations as an Assistant United States Attorney. The question before us, however, is not whether AUSA Lesser acted improperly, which is clear. Our question is whether Lesser’s ethical and professional lapses entitle Miller to dismissal of the indictment. We review the district court’s denial of Miller’s motion to dismiss on Due Process grounds de novo, and we review for abuse of discretion the district court’s decision not to dismiss the indictment under its supervisory powers. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991); United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). Although we have held that a prosecutor may violate a defendant’s Due Process rights through conduct that “is so grossly shocking and so outrageous as to violate the universal sense of justice,” Restrepo, 930 F.2d at 712 (quoting United States v. O’Connor, 737 F.2d 814, 817 (9th Cir. 1984)), we think that the facts of this situation do not rise to that level, chiefly because the prosecutorial improprieties had no material effect on the case and because the Department of Justice took every step it could reasonably have been expected to take to cleanse the Miller prosecution of any possible taint from AUSA Lesser’s involvement. Most significantly, after the Central District of California recused itself from any further involvement in the prosecution, an AUSA from the Southern District of California took over the case. She had no contact with Lesser whatsoever, and she came to an independent decision on whether and how to charge Miller. And although AUSA Lesser’s limited attempts to involve himself in the case after the Central District’s recusal were more than sufficient to create an appearance of impropriety, there is no indication that Lesser in any way influenced the prosecutor who was 18 UNITED STATES V. MILLER actually in charge of the case at that time. Further, even during the three weeks before the Central District’s recusal, there is no evidence that AUSA Lesser himself, rather than Special Agent Swanson, was directing the investigation of Miller. On the same analysis, the facts of this situation do not implicate the Supreme Court’s holding in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), the chief case on which Miller relies. In Young, the Court exercised its supervisory powers to reverse the criminal contempt convictions of four defendants because the prosecutor who prosecuted the case and obtained those convictions was conflicted. Indeed, the conflict was extreme, as the prosecutor, specially appointed by the district court, was also serving as counsel to the party that was the beneficiary of the injunction that defendants were being prosecuted for civilly violating. Id. at 790. By contrast, AUSA Lesser was not in any material respect Miller’s prosecutor. At most, AUSA Lesser may have induced the FBI to look at the case more closely than it might otherwise have in the case’s early stages. In any event, given the blatant evidence of embezzlement, it would not have taken much to catch the FBI’s attention if, instead, it had been reported by Russell Lesser instead of Greg Lesser, as it most likely would have been. And all the crucial decisions in the investigation and prosecution were made by Special Agent Swanson and the Southern District AUSA who took over the case from the Central District. The district court therefore did not abuse its discretion in denying Miller’s motion to dismiss the indictment under the court’s supervisory powers. 13 13 For the same reasons, the district court also did not abuse its discretion in denying Miller’s motion for additional discovery beyond  UNITED STATES V. MILLER 19 Miller also argues that the district court erred in denying his motion to dismiss on the ground that the grand jury received materially false testimony. 14 “[T]he Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached.” United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). But here, the false testimony Miller cites — a statement by an FBI agent that Russell Lesser was the majority shareholder of MWRC (while, in reality, Russell Lesser was simply a plurality shareholder, owning an 18% interest in the company) — was not remotely material. 15 The defense argues that the testimony was material because it gave the impression that Russell Lesser had total authority over MWRC, thus potentially leading the grand jury to discount the idea that Miller believed he was authorized to lend himself company money. But the grand jury also heard testimony that Miller had admitted to Lesser that he had taken the funds without authorization. Moreover, the petit jury also considered and rejected this defense at trial, therefore rendering any error in the grand jury testimony harmless. United States v. Bingham, 653 F.3d 983, 998 (9th that discussed below. See United States v. Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015). 14 The district court ordered the Government to produce these transcripts so that the defense could examine “if, for example, Lesser was creating false evidence or something of that sort.” 15 Miller also points to testimony heard by the grand jury that he had only paid back $40,000 of the roughly $330,000 he took from MWRC, while in fact he eventually paid back the entire amount. This is also immaterial, however, because failure to repay is not an element of wire fraud, and intent to repay is not a defense. See supra pp. 13–14. 20 UNITED STATES V. MILLER Cir. 2011) (holding that, after a petit jury convicted the defendant on all counts, “any error in the grand jury proceeding connected with the charging decision is deemed harmless beyond a reasonable doubt”) (quoting People of Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993)). The district court accordingly did not err in rejecting this Due Process claim. III. Additional Arguments Miller raises two additional arguments, but both are unpersuasive and do not provide a basis for reversal. First, Miller challenges the district court’s denial of his post-conviction motion for an indicative ruling on additional discovery and/or a new trial based on the disclosure of a romantic relationship between Special Agent Swanson and an AUSA in the recused Central District office. 16 Defense counsel argues that such evidence would have been material at trial and speculates that “[t]he relationship may also have 16 In October 2017, after Miller’s conviction and sentencing, the U.S. Attorney’s Office for the Southern District of California learned of an investigation by the Justice Department’s Office of Professional Responsibility (OPR) into this previously-undisclosed relationship. The Southern District prosecutors on the Miller case informed defense counsel of this development about a month later, as this appeal was pending. In response, Miller requested discovery from the Government including the name of the AUSA; any communications between this AUSA, Swanson, and/or Greg Lesser concerning the Miller case; and any reports or conclusions from the OPR investigation. The Government voluntarily provided the name of the AUSA, told defense counsel that there were no such communications on their respective government email accounts and that this AUSA had not worked on the Miller case, and noted that the OPR investigation into Swanson had been closed. The district court later denied the motion.  UNITED STATES V. MILLER 21 resulted in a significant breach of the recusal order” by creating a back channel to Greg Lesser. Even if we apply de novo review, 17 we hold that the district court correctly denied Miller’s motion for a new trial because Special Agent Swanson’s failure to disclose his relationship with an AUSA is not sufficiently material to warrant relief. This would have served as impeachment evidence at most, and even if the jury had deeply discounted Swanson’s testimony, we are convinced that they still would have convicted Miller. It is true that Swanson was an important Government witness; perhaps most significantly, Swanson testified that Miller had admitted to the FBI that he knew that writing himself checks from MWRC’s account was wrong. But this testimony was far from the only evidence establishing Miller’s guilt. Not least among the other evidence, the jury still had the wire recording of the November 28, 2012 conversation between Russell Lesser and Miller, in which Miller admits to Lesser’s characterization of his activities as stealing and embezzlement, albeit “[w]ith an intention to repay” (which, as noted, is no defense). The jury also heard Lesser’s testimony about Miller’s 2011 confession and subsequent 17 As a threshold matter, the parties disagree on how to characterize Miller’s claim. The defense argues that it is a motion for a new trial based on a Brady violation, see Brady v. Maryland, 373 U.S. 83 (1963), while the Government argues that it is a Fed. R. Crim. P. 33 motion for a new trial based on newly-discovered evidence. The parties would therefore have us apply different standards of review: we would review the district court’s denial of a motion for a new trial based on a Brady violation de novo, United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011), while we would review the district court’s denial of a motion for a new trial based on newly discovered evidence for abuse of discretion, United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009). For the sake of argument, we apply the standard more favorable to the defense. 22 UNITED STATES V. MILLER continued check-writing, as well as Miller’s handwritten ledger entries that disguised his payments to himself as transfers from one of MWRC’s bank accounts to another. All of this evidence was highly probative of Miller’s guilt, and we accordingly do not find a “reasonable probability” that the jury would have acquitted Miller if it had heard the impeachment evidence about Swanson. 18 Kyles v. Whitley, 514 U.S. 419, 421–22 (1995). On the same analysis, we hold that the district court did not abuse its discretion in denying Miller’s motion for additional discovery, since any such discovery would not have produced evidence material to the outcome of the trial. See United States v. Rivera-Relle, 333 F.3d 914, 918 (9th Cir. 2003). Finally, any suggestion that the Central District AUSA was serving as a conduit for nefarious communications between Special Agent Swanson and Greg Lesser is pure speculation by defense counsel and does not merit relief. 18 The parties’ dispute about whether Miller has stated a Brady claim also impacts the materiality standard that we apply. Brady evidence is material if the admission of the suppressed evidence would result in a “reasonable probability” of an acquittal. Kyles, 514 U.S. at 421–22, i.e., “a probability sufficient to undermine confidence in the outcome of the trial.” United States v. Price, 566 F.3d 900, 911 (9th Cir. 2009) (citing United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality)) (internal quotation marks omitted). In contrast, the bar for materiality in a Rule 33 claim is higher. To win a new trial based on newly-discovered evidence, the defendant must show, among other requirements, that “the new evidence is not merely . . . impeaching;” and that it “would probably produce an acquittal.” United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir. 2000). We need not reach the question of whether Miller has demonstrated Brady suppression; since we hold that the evidence is not material under the Brady standard, a fortiori it is also not material under the Rule 33 standard.  UNITED STATES V. MILLER 23 Second, Miller appeals the district court’s denial of his motion under Fed. R. Crim. P. 29(c) for a judgment of acquittal on the wire fraud counts based on insufficient evidence of an interstate wire communication. Rule 29(c) requires a trial court to enter a judgment of acquittal if the Government fails to present sufficient evidence to sustain a conviction. Sufficient evidence is that which, “view[ed] . . . in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007) (internal quotation marks and citations omitted). Because defense counsel made this motion at the close of the Government’s evidence and then renewed the motion after the verdict, this Court reviews the district court’s ruling de novo. Id. We are satisfied that the Government introduced more than sufficient evidence for a rational juror to conclude that Miller utilized at least one interstate wire communication in furtherance of his scheme. The Government called Lynn Flanagan, the former operations manager at the bank where MWRC maintained the account from which Miller fraudulently withdrew funds. She testified that all checks deposited into or drawn out of accounts at the bank are processed via interstate wires, either through the Federal Reserve Bank in Atlanta or Kansas City or through a clearing bank in Wisconsin called FCN. 19 This testimony is sufficient 19 Defense counsel makes much of the fact that Flanagan’s testimony as to the location of FCN was, read literally, ambiguous. Referring to FCN (the “Fiserv Clearing Network”), the Government asked Flanagan, “Where is Five Serve [sic] located,” and Flanagan answered Wisconsin. But since Flanagan never explicitly defined the acronym FCN, defense counsel argues that a rational juror might have concluded that FCN and “Five Serve” were different entities and that FCN might have been located within California. We think, though, that 24 UNITED STATES V. MILLER evidence to establish the interstate wire element of the § 1343 offenses beyond a reasonable doubt. Conclusion We have considered Miller’s remaining arguments and find them totally without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED. the correct meaning was obvious from the context. Moreover, the overall thrust of Flanagan’s testimony was that all checks drawn on an account at this bank travelled via interstate wire. For example, when asked whether “that transaction that you just described [would] still happen even though both the banks are in California,” Flanagan replied, “[y]es, it would. We did not have direct clearing.” 

928 F.2d 130 UNITED STATES of America, Plaintiff-Appellee,v.Ricky VALLEY, Defendant-Appellant. No. 89-4921. United States Court of Appeals,Fifth Circuit. March 21, 1991. Ricky Valley, Houston, Tex., defendant-appellant, pro se. Brian Wice and Richard Frankoff, Houston, Tex., for defendant-appellant. O. Kenneth Dodd, Asst. U.S. Atty., and Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Texas. Before WISDOM, JOLLY, and DAVIS, Circuit Judges. E. GRADY JOLLY, Circuit Judge: 1 The appellant, Ricky Valley ("Valley"), was the central figure in an ongoing conspiracy to steal and forge endorsements of Social Security checks. He appeals his convictions on one count of conspiracy to commit theft and receive stolen mail in order to forge endorsements on Treasury bonds or checks, and multiple counts of aiding and abetting in the possession and forgery of Treasury checks with the intent to defraud. Specifically, Valley argues that the district court improperly allowed the prosecutor to introduce the guilty pleas of his co-conspirators at his trial. Furthermore, he argues that during his closing argument to the jury, the prosecutor improperly made reference to Valley's refusal to testify. Finally, he argues that the prosecutor improperly exercised his peremptory challenges to strike several black jurors from the jury venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons discussed below, we affirm. 2 * The evidence of Valley's guilt is substantial. Co-conspirators Elton Lee, Jr., Mark Ina, Susie Thompson, and Tami Ina all testified to the same basic story: The conspiracy began in 1980 when Valley asked them to sign and cash stolen checks. The conspirators would go to Beaumont, Port Arthur, Ft. Worth, and Austin to steal checks from mail trucks and would sometimes stay overnight in these cities. Valley, who had been previously employed by the United States Postal Service, had a postal uniform as well as a set of postal keys that he utilized in connection with burglarizing mail trucks to obtain checks. After obtaining the checks, the conspirators would go to a motel where Valley would create fake identification to enable the co-conspirators to pass the checks at various stores. 3 Valley was the ring leader. He was in charge of passing out the stolen checks to the co-conspirator he believed would be most successful at passing the check. He was also the one who would drive the co-conspirators to different stores to cash the checks. In return for passing the checks, the co-conspirators were given a percentage of the cash. Each co-conspirator testified that Valley was in charge of deciding who received what sum of money for their efforts. Finally, over defense counsel's objection, each co-conspirator testified that he or she had earlier entered a guilty plea in connection with this case and was awaiting sentencing. 4 A paper trail also linked Valley to the crimes. Susie Thompson testified that she forged and cashed a stolen check belonging to Dolly Casteel. Thompson testified that she cashed the stolen and forged check at a Piggly Wiggly in Orange, Texas, in 1983. Sandra Duhon, an employee of the store, testified that Thompson cashed the stolen check in exchange for a money order in the amount of $59.44. David Kahoot, the custodian of records for Citycorp Acceptance Company, testified that his records reflected that the ledger card for a loan for Selena Valley evidenced a payment on that loan in November of 1983 in the amount of a $59.44 money order. 5 In addition, numerous people testified that their Social Security checks had been stolen and their signatures forged. All the victims testified that they did not authorize the endorsement of their checks. Furthermore, several Special Agents with the United States Secret Service testified that the co-conspirators, Susie Thompson, Mark Ina, and Elton Lee, had each endorsed a number of stolen or missing Social Security checks. A Secret Service fingerprint analyst also testified that the fingerprints of Thompson, Ina, and Lee were present on a number of the stolen United States Treasury checks. Finally, Nita Lyons, owner of a laminating service in Houston, testified further that Valley bought laminating supplies from her over a period of several years. II 6 Valley was indicted on one count of conspiracy to commit theft and to receive stolen mail in order to forge endorsements on Treasury bonds or checks under 18 U.S.C. Sec. 371; and on 18 counts consisting of aiding and abetting in the forgery of writings under 18 U.S.C. Secs. 2 and 495; aiding and abetting in the forgery of Treasury checks with intent to defraud under 18 U.S.C. Secs. 2 and 510; and aiding and abetting in the possession of stolen mail under 18 U.S.C. Secs. 2 and 1708. Trial to the jury was held in the United States District Court for the Eastern District of Texas. 7 Prior to trial, defense counsel, Mr. Androphy (hereinafter "defense counsel" or "Androphy"), filed a motion in limine asking the court to order the government "not to mention or allude to the pleas of guilty of any defendants or alleged co-conspirators." The trial court initially granted defense counsel's motion, although it reserved the right to reconsider its ruling depending on the evidence heard. 8 Subsequently, the government apprised the trial court of our holding in United States v. Borchardt, 698 F.2d 697 (5th Cir.1983). On the day of trial, May 22, 1989, defense counsel, before the judge ruled on the government's opposition to the motion in limine, re-urged his objection and stated that it was not the defense strategy at that time to use the co-conspirators' guilty pleas. The court, nevertheless, reversed its ruling on the motion in limine and permitted the government to allude to the guilty pleas of the co-conspirators. The trial court indicated, however, that it would "give precautionary instructions which appear on page 36 of the Fifth Circuit Criminal Pattern Jury Instructions in connection with any such statement." 9 During the prosecutor's opening statement, defense counsel renewed his objection when the prosecutor alluded to the co-conspirators' guilty pleas. The trial court overruled the objection, but cautioned the jury that the "fact that the accomplice has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other person, or of Ricky Valley." Similarly, defense counsel objected each time the prosecutor elicited the guilty pleas from the co-conspirators during their direct examinations. Again, the court overruled the objections. 10 At the conclusion of the evidence, the trial court instructed the jury, inter alia, that the testimony of a co-defendant who has already pled guilty "is always to be received with caution and weighted with great care," and that "the fact that an accomplice has entered a plea of guilty to an offense is not evidence of the guilt of any other person." The jury found the appellant guilty on Counts 1-17, 20-21, and acquitted the appellant on Counts 22-27; the court dismissed Counts 12, 18-19, and 20-21. The court assessed punishment at fifteen years confinement and a fine of $76,000, followed by five years probation and restitution as to Count 1 in the amount of $5,085. Valley timely appeals. III 11 * "Our precedents have made it abundantly clear that evidence about the conviction of a co-conspirator is not admissible as substantive proof of the guilt of a defendant." United States v. Handly, 591 F.2d 1125, 1128 (5th Cir.1979). However, co-conspirator guilty pleas are admissible under a limited set of circumstances. The relevant factors in evaluating the impact of a witness' guilty plea are "the presence or absence of a limiting instruction, whether there was a proper purpose in introducing the fact of the guilty plea, whether the plea was improperly emphasized or used as substantive evidence of guilt, and whether the introduction of the plea was invited by defense counsel." United States v. Black, 685 F.2d 132, 135 (5th Cir.1982). More to the point here, we have held that a witness-accomplice's guilty plea may be brought out at trial provided that (1) the evidence serves a legitimate purpose and (2) the jury is properly instructed about the limited use that they may make of it. Borchardt, 698 F.2d at 701. See United States v. Baete, 414 F.2d 782, 784 (5th Cir.1969). In this case, it is conceded that the district court properly instructed the jury about the limited use of the guilty pleas. Consequently, we need only decide whether the prosecutor had a legitimate reason for introducing them at trial. 12 In considering this question, we have recognized that a legitimate reason exists when the record reflects a defensive strategy to emphasize or rely on a co-conspirator's guilt. Handly, supra. As we explained in Borchardt, counsel presenting witnesses of blemished reputation routinely bring out "such adverse facts as they know will be developed on cross-examination" in order to avoid even the appearance of an "intent to conceal." 698 F.2d at 701 (quoting United States v. Aronson, 319 F.2d 48, 51 (2d Cir.1963)). Most recently, in United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990), this court reaffirmed the "permissibility of 'blunt[ing] the sword' of anticipated impeachment by revealing the information first." (quoting United States v. Marroquin, 885 F.2d 1240, 1246 (5th Cir.1989)). 13 Our opinion in Handly did not hold that countering a defense counsel's potential strategy was a per se legitimate reason. On the contrary, the court noted that in all such cases "[o]ur problem is determining ... whether [the] defense attorney would have commented on the guilty pleas absent the prosecutor's statements." 591 F.2d at 1128. The Handly court permitted the prosecutor's use of co-defendant guilty pleas because it found that "[t]here [was] no indication that defense counsel's emphasis on the guilty pleas was prompted by the prosecutor's remarks; the emphasis appears, instead, to have been independent of the impropriety of the prosecutor." Id. See Borchardt, supra (defense counsel indicated at the outset of the trial his intent to use felony convictions for impeachment purposes). 14 In our case, Androphy indicated on the record the possibility that he did not intend to use the guilty pleas at trial absent their use by the prosecutor. Specifically, he sought and initially obtained a motion in limine prohibiting the government from introducing the guilty pleas. The motion stated:NOW COMES, RICKY VALLEY, Defendant herein, and respectfully moves this Court for an order instructing the United States Attorney, Agents and/or witnesses, not to mention or elude [sic] to the pleas of guilty of any defendants or alleged co-conspirators. 15 It is significant that Androphy's motion did not prohibit the defendant from bringing up the guilty pleas during opening statement or cross-examination as a means of attacking the co-conspirators' credibility. The government subsequently opposed this motion, apparently by arguing that United States v. Borchardt, supra, was applicable. Before the district court rescinded its earlier order, however, defense counsel stated for the record: 16 [O]ur strategical position at this point in time is not to use those convictions [of the co-defendants], and for the record, it is our position now that we would not use them, but now that the Government's position has changed and the Court has permitted it, it may cause our strategy to change, and I want to stand [sic] for the record that we would not consider those as far as our initial strategical consideration in this case, and would not have used them on cross [examination]. 17 Upon examination of the exact wording and circumstances surrounding Androphy's May 22, 1991 statement, we conclude that the district court did not abuse his discretion in allowing the government to allude to and introduce the co-conspirators' guilty pleas. The statement made to the district court is replete with qualifying language: "our strategical position at this point in time ..."; "it is our position now that we would not use them ..."; and "we would not consider those as far as our initial strategical considerations in this case...." We are impressed by the fact that this statement was made just minutes before opening statements were to be made by each party. Even at this late stage in the proceedings, defense counsel was indicating that it was still considering using the guilty pleas at a later time, presumably during cross-examination. At no point did defense counsel state that if the government would not introduce the guilty pleas, neither would the defense. 18 Furthermore, the background against which the judge made his decision is relevant and justifies skepticism concerning Androphy's position. For example, on the morning of May 17, 1990, Androphy made this statement to the trial judge with respect to the motion in limine: 19 As I recall, ... the other [motion] was not allowing the government, until I decide my strategy, to bring up the issue with regard to the convictions of the other alleged co-conspirators or co-defendants. 20 Permitting defense counsel to remain undecided until the last minute, i.e., cross-examination of the co-conspirator, would be unwarranted and unfair. Simply put, when defense counsel fails to make a timely unequivocal commitment not to raise the convictions of the co-defendants, the district court does not abuse its discretion in allowing the prosecution to first raise the subject before the jury. 21 Finally, in hindsight we might observe that the district court was justified in not embracing Androphy's statement. Androphy's trial strategy seems to have relied exclusively on attacking the credibility of the co-conspirators as his sole means of defense. No alternative strategy was used or offered. He did not put on any witnesses of his own and he refused to take the stand. As this was the strategy decided upon by defense counsel on the eve of trial, we are convinced that Androphy's use of qualifying language in the motion in limine and his statement to the district court was not inadvertent, a fact that was obvious to the district court. 22 Accordingly, we find that a legitimate purpose existed for the prosecutor's use of the guilty pleas. Furthermore, we note that the district court gave repeated limiting instructions informing the jury that the guilty pleas were not to be used as substantive evidence of Valley's guilt. We conclude that the district court did not abuse its discretion when it permitted the government to introduce the co-conspirators' guilty pleas at trial. B 23 Valley also argues that the prosecutor improperly commented to the jury during his closing argument about Valley's refusal to testify. Specifically, the prosecutor stated: 24 And then when it comes time for trial, they would have you believe that they are all lying. Mark Ina is lying, Elton Lee is lying, Susie Thompson, the mother of his [Valley's] child is lying, Tami Ina is lying. Everybody is lying, except Ricky Valley. But you haven't heard from Ricky Valley. 25 Defense counsel immediately objected, stating that the prosecutor "has commented on Mr. Valley's exercising of his Fifth Amendment rights...." The trial court sustained the objection, admonished the prosecutor, and instructed the jury to disregard the prosecutor's comments. Valley argues that this statement constitutes reversible error, and that the district court therefore erred in denying his request for a mistrial. Although we agree that the prosecutor improperly commented on Valley's refusal to testify, we find the prosecutor's action to be harmless error, and therefore affirm. 26 In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the Court stated that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." We find that the evidence of Valley's guilt was overwhelming. The testimony of Mark Ina, Elton Lee and Tami Ina was consistent and highly detailed. Valley was a former postal employee and had access to postal keys and uniform. Each of the co-conspirators testified that they got the stolen checks from Valley or at his direction. Mark Ina testified that he was selected by Valley to act as his driver and personally viewed Valley entering postal vehicles and removing Treasury checks. The jury also heard testimony about Valley's prior conviction for a similar offense. In addition to the testimony of the co-conspirators, there was a paper trail of stolen checks linked directly to Valley for his use and benefit: Susie Thompson was identified as the person who had cashed a stolen check, which was used to purchase a money order later used to pay a payment on Ricky Valley's car. 27 In sum, there was overwhelming evidence supporting the proposition that Valley was guilty of the crimes and counts charged. In the light of this evidence, we find that the prosecutor's comments were completely harmless, and are convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24, 87 S.Ct. at 828. C 28 Finally, Valley argues that the government exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, supra. It is well settled that the use of peremptory challenges to strike venirepersons "solely on account" of race violates the equal protection component of the Fifth Amendment. Batson, 476 U.S. at 89, 106 S.Ct. at 1718. This court has adopted a deferential standard of review where the trial court has required the prosecution to explain its use of peremptory challenges and finds no racial discrimination. United States v. Moreno, 878 F.2d 817, 820-21 (5th Cir.1989). As we explained in Moreno, "[s]ince the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Id. at 821 (citations omitted). 29 The district court determined that Valley made out a prima facie case of improper use of peremptory challenges under Batson because defendant Valley is black and the prosecutor struck three black venirepersons from the jury, venirepersons Moffett, Reliford, and Frederick. The judge then asked the prosecutor to articulate race-neutral reasons for striking the black jurors. The prosecutor stated that he struck venireperson Moffett because she was single, had only held down her job at Eckerds for two years, and did not "have that strong of a tie to the community as other jurors had." The prosecutor justified his challenge to Reliford because his brother had been convicted for robbery. Finally, the prosecutor explained his strike of Frederick because his brother had been charged with aggravated assault and attempted murder. Moreover, the prosecutor indicated that he struck two additional white venirepersons for similar reasons. Venireperson Jordan was struck because her son was a drug addict and had been involved in a robbery. Similarly, the prosecutor struck venireperson Nini because she also had a close relative who had been involved with a serious crime. The trial court determined that the government's stated reasons for striking venirepersons Moffett, Frederick, and Reliford were racially neutral and did not constitute the systematic exclusion of black venirepersons. 30 Defense counsel responded that the proffered reasons were pretextual. He pointed out to the trial judge that while the prosecutor struck black venirepersons Frederick and Reliford because their family members had either been charged with or convicted of crimes, the prosecutor did not strike white venirepersons Tiner or McGill, even though they both had family members who were convicted of serious crimes. Specifically, Tiner had a brother-in-law that went to the penitentiary for robbery, and McGill had a brother who was convicted of robbery in 1946. Tiner and McGill ultimately served on Valley's jury.1 31 Defense counsel made the very same arguments to the district court that it makes to this court. The district court considered Valley's argument that the prosecutor's explanations were pretextual and concluded that the prosecutor had not exercised the peremptory challenges based solely on race. The record supports the district court's conclusions. There are race-neutral differences between venirepersons Reliford and Frederick and venirepersons Tiner and McGill. First, Reliford and Frederick each had a close family member who had been convicted of a violent felony. Tiner's relative, in contrast, was his brother-in-law. Although McGill's brother was convicted of a similar felony as Reliford's, McGill's brother had been convicted 45 years earlier. The prosecutor's strikes of white venirepersons Nini and Jordan is further evidence that there was no exclusion of any venireperson based on race. 32 Finally, we note that the district court alluded to additional race-neutral factors that supported the prosecutor's decision to strike venirepersons Frederick and Reliford and not strike Tiner and McGill. Indeed, the judge's first reaction when Androphy raised the Batson claim was, "I can think of a number of reasons [for striking the three black venirepersons] myself." In Jones v. Butler, 864 F.2d 348, 369-70 (5th Cir.1988), we described the role of the trial judge in making a Batson determination: 33 The trial judge then evaluates, "consider[ing] all relevant circumstances," whether the prosecutor's explanation is race-neutral or a pretext for excluding potential jurors based on race. In making this determination the trial judge had available not only the prosecutor's explanation, but also the judge's observations of the demeanor of the prosecutor and the veniremen. As the Supreme Court noted in Batson, the finding of intentional discrimination in use of peremptory challenges is a finding of fact that "largely will turn on evaluation of credibility." (citations omitted) 34 In the light of the great deference that we must give to the district court's findings in our case, we cannot conclude that the trial judge erred in his decision to deny defendant's Batson motion under these circumstances. IV 35 For the foregoing reasons, the defendant's convictions are 36 AFFIRMED. 1 Valley does not argue on appeal that the prosecutor's justification for striking venireperson Moffett was pretextual

87 P.3d 629 (2004) 2004 OK CR 14 The STATE of Oklahoma, ex rel. C. Wesley LANE II, District Attorney, Appellant v. Jerry D. BASS, District Judge of the Seventh Judicial District Oklahoma County, Oklahoma, Appellee. No. PR-2003-946. Court of Criminal Appeals of Oklahoma. March 9, 2004. *630 ORDER GRANTING WRIT OF PROHIBITION AND REMANDING TO THE DISTRICT COURT OF OKLAHOMA COUNTY WITH INSTRUCTIONS; ORDER ESTABLISHING PROCEDURE FOR PRETRIAL DETERMINATION OF MENTAL RETARDATION AND ESTABLISHING PROCEDURE FOR APPEAL ¶ 1 On August 25, 2003, Petitioner, the State of Oklahoma, by and through C. Wesley Lane II, District Attorney, Aaron Balch and Fern Smith, Assistant District Attorneys, filed a Petition for Writ of Prohibition, or in the alternative, Petition for Writ of Mandamus, requesting this Court prohibit the District Court of Oklahoma County from conducting a separate jury trial on the issue of mental retardation in Case No. CF-99-6416, The State of Oklahoma v. Richard Virgo Blonner. ¶ 2 Blonner is charged with First Degree Murder (and other additional charges). The State of Oklahoma filed a Bill of Particulars alleging the existence of aggravating circumstances warranting imposition of the death penalty. The State alleges in its application that Respondent, the District Court of Oklahoma County, the Honorable Jerry D. Bass, District Judge, exercised judicial authority unauthorized by law by granting Defendant Richard Blonner's request for a separate jury trial on the issue of mental retardation prior to conducting Blonner's trial for the charged offense. The mental retardation jury trial was scheduled to begin Monday, September 29, 2003. Alternatively, the State alleges that Judge Bass erred when he refused to conduct a separate evidentiary hearing on the issue of mental retardation. Specifically, the State argues that the defendant is required to make a prima facie showing of his mental retardation at an evidentiary hearing held for that purpose before allowing submission of the issue to a jury. The State cites our recent decisions in Murphy v. State, 2003 OK CR 6, 66 P.3d 456 [hereafter Murphy II], Lambert v. State, 2003 OK CR 11, 71 *631 P.3d 30, and Pickens v. State, 2003 OK CR 16, 74 P.3d 601. ¶ 3 On September 10, 2003, we directed Respondent to file a response to the State's application. That response was filed on September 22, 2003, by designated representatives of the Oklahoma Indigent Defense System (OIDS), by and through counsel Mary Bruehl, Debbie Maddox and Janet Chesley. ¶ 4 In its response, OIDS alleges there is no legal authority directing the District Court to order an evidentiary hearing requiring an accused to present prima facie evidence sufficient to raise a question of fact on the issue of mental retardation before being able to bring his mental retardation claim before a jury. OIDS claims that the prima facie standard argued by the State, and the procedures set forth in this Court's decisions in Murphy II, Lambert, and Pickens apply only in post-conviction death cases. OIDS submits that an accused bears the burden of proving he is death ineligible by a preponderance of the evidence, and that the trial court properly ordered a separate jury trial on the issue of mental retardation prior to any trial upon the merits. ¶ 5 For a writ of prohibition, Petitioner must establish (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003). For a writ of mandamus a petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. See Woolen v. Coffman, 1984 OK CR 53, ¶ 6, 676 P.2d 1375, 1377; Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003). ¶ 6 Both parties have confused the issues addressed by the trial court in its ruling authorizing a separate jury trial on the issue of mental retardation, and have also misconstrued this Court's various post-conviction decisions addressing the mental retardation issue. We understand the confusion created by this Court's creation of procedures dealing with mental retardation in post-conviction proceedings and in trial proceedings and take this opportunity to further clarify our prior opinions and procedures in pending and future capital trials. We appreciate Judge Bass's efforts to give meaning to all the language in Murphy II and his efforts to protect the rights of the defendant. Still, we find that the State is entitled to the relief requested, as neither Murphy II, Lambert, nor Pickens require or authorize the District Court to empanel a separate jury trial on the issue of mental retardation before a defendant has been brought to trial on the capital offense. ¶ 7 In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court held that imposition of the death penalty upon those who are mentally retarded violates the Eighth Amendment to the United States Constitution. The Court left it to individual States to define mental retardation and to develop appropriate procedures to enforce this constitutional restriction. Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. Following Atkins, in a capital post-conviction proceeding, Murphy v. State, 2002 OK CR 32, 54 P.3d 556 [hereinafter Murphy I], this Court anticipated the difficulties and confusion which would arise in future capital cases wherein the defendant claimed he or she was death penalty ineligible because of mental retardation. Recognizing that there was no current Oklahoma legislative enactment addressing this issue, this Court adopted a definition of mental retardation for use in capital trials which applies to individuals alleging that they are not death penalty eligible. Murphy, 2002 OK CR 32, ¶ 31, 54 P.3d at 566-567. ¶ 8 We stated in Murphy I that this definitional standard was to be used in all future and pending capital trials where the issue of mental retardation is raised at the trial court level pending enactment of suitable legislation replacing this procedure. Id. At trial, it is the defendant's burden to prove he or she is mentally retarded by a *632 preponderance of the evidence. "Unless the issue of mental retardation is resolved prior to trial, the issue of mental retardation shall be decided in the sentencing stage of a capital murder trial, pursuant to the instruction set forth in Appendix A." Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567. If a jury determines a defendant is not mentally retarded, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage. If the jury finds the defendant has shown by a preponderance of the evidence that he or she is mentally retarded, the defendant is not eligible for the death penalty. Murphy, 2002 OK CR 32, ¶ 33, 54 P.3d at 567. ¶ 9 In resolving the request for a separate jury trial on the issue of mental retardation, Judge Bass correctly recited the procedures and guidelines from Murphy I. He then stated: "In the Murphy I case the jury hears all of the evidence. They hear all of the evidence about the facts of the murder and then they hear the aggravators and the mitigators and the evidence on mental retardation. They hear the whole ball of wax. But in this Lambert case—and I am fully aware that it is post-conviction. I understand that. But in this Lambert case the Oklahoma Court of Criminal Appeals has decided that in the Lambert case that Lambert is not to be remanded for a sentencing stage, but is to be remanded on the sole issue of mental retardation. They are not—the jury is not to be death qualified because they are only hearing the issue of mental retardation.... So in Murphy I the jury gets to hear everything; in Lambert the jury doesn't hear everything. And this leaves me in a quandary because if I proceed with Blonner and they hear everything and the Oklahoma Court of Criminal Appeals says, no, we should have had a hearing on the sole issue of mental retardation and then proceed to trial and then the mental retardation issue has been resolved. Whereas, if I follow Lambert and we have like a competency trial that is similar on this determination of mental retardation, then we never get to that and we don't have a capital trial. And if I don't—if I don't follow Lambert and the case is appealed then there is no telling how many trials that this court, as well as other courts in this courthouse and other courthouses around the State, and we could try several and then have to turn around and have to re-try those on the issue of mental retardation.... Because of the magnitude of the Court's [Lambert] decision, I'm going to order a jury trial on the issue of mental retardation only and order that the jury is not to hear the facts of the case except narrowly under the Lambert decision, if there is some narrow exceptions on the issue of mental retardation. And then if that jury makes a finding that he is mentally retarded then the State cannot proceed on the capital murder." ¶ 10 We understand the District Court's concern for following this Court's directives and erring on the side of caution to avoid the need to potentially retry a capital case. However, as properly noted by Judge Bass, Lambert is a post-conviction ruling. It did not overrule, abrogate or modify the procedures established in Murphy I as they relate to pending and future capital cases where the defendant claims he or she is mentally retarded. "Unless the issue of mental retardation is resolved prior to trial," Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567, the proper procedure to be used was that recited by Judge Bass from the decision in Murphy I and the mental retardation issue is to be addressed only after a finding of guilt in a capital trial. ¶ 11 Unfortunately in Murphy I, this Court did not elaborate on how the issue of mental retardation could be resolved prior to trial and only discussed the procedure to be followed when the issue was not resolved prior to trial. Here, we take the opportunity to further clarify how the issue of mental retardation can be resolved prior to trial, as contemplated by the language in Murphy I. ¶ 12 In all pending and future cases, a defendant shall be required to file his or her *633 Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty within sixty (60) days from the date the State of Oklahoma files its Bill of Particulars or from the date of arraignment, whichever is later. To that extent, Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567, is hereby modified.[1] ¶ 13 After the State files its Bill of Particulars and after the defendant files Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty, the defendant may file a Motion to Quash Bill of Particulars due to Mental Retardation and request an evidentiary hearing if the defendant wants to resolve the issue of mental retardation prior to trial. By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation.[2] ¶ 14 The trial court shall set the matter for evidentiary hearing within sixty (60) days. At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record. The hearing shall be conducted after complete discovery is afforded both parties under the Oklahoma Criminal Discovery Code.[3] Because the defendant has the burden of proof, he or she shall open the case first, present evidence first, and have the opportunity to present the first and last closing arguments to the trial court. Each party may have the defendant examined by an expert, and may present that expert testimony in support of the claim that the defendant is or is not mentally retarded by a preponderance of the evidence. At the conclusion of the hearing, the trial court shall determine whether the Defendant has shown by a preponderance of the evidence that he or she is mentally retarded. If the trial court finds the defendant has not met his burden of proving mental retardation, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage of the capital trial. The decision of the trial court shall be made in open court and memorialized thereafter by an order setting forth Findings of Fact and Conclusions of Law. ¶ 15 Either party may file an appeal from the trial court's order granting or denying a Motion to Quash Bill of Particulars on grounds of mental retardation.[4] This Court will apply the preponderance of the evidence standard on appeal and conduct a de novo review of the trial court's factual findings. ¶ 16 The party seeking to appeal shall file a notice of intent to appeal and designation of record with the trial court clerk within five (5) days from the date the judge's ruling is pronounced in open court. The filing of the notice of intent to appeal in the district court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. The party seeking to appeal shall file the notice of intent to appeal, together with a copy of the trial court's written order being appealed, with the Clerk of this Court within ten (10) days from the date the notice is filed in the district court. See Rule 2.5 and 13.4, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003) *634 ¶ 17 To perfect the appeal, the Petition in Error, certified copy of the original record, transcript of proceedings and brief shall be filed with the Clerk of this Court within sixty (60) days from the date the trial court enters an order granting or denying the Motion to Quash Bill of Particulars. ¶ 18 The court reporter shall be required to expedite preparation of the record. Requests for extensions of time shall be considered in accordance with Rule 3.2(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003) To ensure the appeal is perfected within sixty (60) days, the record and transcripts shall be completed and filed with the district court clerk, and immediately transmitted to the Clerk of the Court of Criminal Appeals and appellate counsel within forty (40) days of the entry of the trial court's order. If the record is not complete within forty (40) days of the trial court's order, a Notice of Non-Completion of Record shall be sent to the Clerk of the Court of Criminal Appeals, explaining the cause for delay. A show cause hearing in this Court may be scheduled. ¶ 19 The district court clerk shall prepare and file three (3) certified copies of all pleadings, instruments, and transcripts designated for inclusion in the appeal record within forty (40) days from the date of the order appealed from in the same manner provided for the preparation of a regular appeal and as set forth in Rules 2.2, 2.3 and 2.4, however the due dates set forth herein shall control. The original transcript and one (1) certified copy of the record designated shall be filed with the Clerk of this Court; one (1) certified copy of the record and transcript shall be provided to the district attorney; and, one (1) certified copy of the record and transcript to either the Oklahoma Indigent Defense System, pursuant to Section 1362 of Title 22, or to the retained or other appointed counsel of record on appeal. ¶ 20 The Petition in Error shall be filed within sixty (60) days from the date the judge's ruling is pronounced in open court to invoke the jurisdiction of this Court. The Petition in Error must contain the following information: (1) The type of appeal and the date the State filed its Bill of Particulars; (2) The date the defendant gave Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty; (3) The date the Motion to Quash Bill of Particulars due to Mental Retardation was filed in the district court; (4) The case number and the court from which the appeal is lodged; (5) The date on which the court order was entered and the name of the judge; and, (6) The nature of relief being sought. ¶ 21 The Brief of Appellant shall be filed with the Petition in Error and shall be served on the adverse party within five (5) days from the date on which the Brief is filed and must contain a certificate of service. See Rules 1.9(B) and 3.4(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003). ¶ 22 The Answer Brief shall be filed within twenty (20) days from the date the Appellant's brief is filed. ¶ 23 The content of the briefs of the parties shall be in compliance with Rule 3.5, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003), except that the briefs shall not exceed twenty (20) typewritten pages in length. ¶ 24 Because an appeal from a trial court's decision on a Motion to Quash Bill of Particulars on grounds of Mental Retardation is an interlocutory appeal and time is of the essence, this Court will expedite its handling of these cases. ¶ 25 We are mindful of the concern that the issue of mental retardation might be overshadowed by the facts of a particular capital case and/or in spite of a showing of mental retardation when the issue is decided by a jury at trial. Accordingly, the above procedure provides the defendant with an alternative method to having the issue decided prior to trial. If the trial court denies the Motion to Quash Bill of Particulars on grounds of Mental Retardation, and if that decision is appealed and is affirmed on appeal, *635 the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage of the capital murder trial. ¶ 26 If the defendant opts for jury determination of the mental retardation issue and does not seek resolution of the issue prior to trial, the procedures outlined in Murphy I for a post-judgment Atkins hearing are intended to provide another level of review. In cases where the issue of mental retardation is properly raised and the jury finds the defendant is not mentally retarded and imposes the death penalty, the trial court shall, upon the defendant's request, hold a post-judgment Atkins hearing for the purpose of determining if the jury's decision on the issue of mental retardation resulted in an excessive sentence (a sentence imposing the death penalty on a defendant who meets the Murphy I definition of mentally retarded). Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 567. The trial judge's duty at a post-judgment Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice or any other arbitrary factor. The trial judge shall conduct a de novo review of the evidence presented at trial and determine whether or not the defendant is mentally retarded, as defined in Murphy I, using a preponderance of the evidence standard. Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 568. ¶ 27 We must also address the State's contention that "it is incumbent upon a defendant to present sufficient evidence, at an evidentiary hearing before the trial court, that he is mentally retarded so as to raise a question of fact to be resolved by a jury." The post-conviction cases relied upon by the State for that contention, Lambert and Pickens, do not require a defendant to present prima facie evidence of mental retardation before being entitled to raise the matter at trial; Lambert and Pickens are instructive for post-conviction matters. No pretrial evidentiary procedure was established by Murphy I. Prima facie evidence of mental retardation does not need to be shown prior to trial. However, as with other claims and defenses raised at trial, the defendant must present prima facie evidence at the jury trial on the issue of mental retardation sufficient to warrant the instruction on mental retardation. ¶ 28 The State's Application for Writ of Prohibition is GRANTED. This matter is remanded to the District Court of Oklahoma County with instructions to vacate its order granting Defendant Blonner's request for a separate jury trial on the issue of mental retardation. The District Court is directed to proceed with Blonner's trial in accordance with the procedures outlined in this Order. ¶ 29 IT IS SO ORDERED. ¶ 30 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day of March, 2004. /s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge. /s/ Steve Lile STEVE LILE, Vice Presiding Judge. /s/ Charles S. Chapel CHARLES S. CHAPEL, Judge. /s/ Reta M. Strubhar RETA M. STRUBHAR, Judge. GARY L. LUMPKIN, J., Concur in part/Dissent in part. LUMPKIN, J.: Concur in Part/Dissent in Part. ¶ 1 I concur in the Court's decision to grant the Writ of Prohibition in this case. However, I must dissent to the Court creating a procedure that not only further delays a trial on the merits in a capital murder case, but is totally unnecessary. ¶ 2 While I recognize the Court is vested with the authority to create procedures of this type, I believe the first question to ask is whether the procedure is necessary. This Court has already developed a procedure through its decisions in Murphy v. State, 2002 OK CR 32, 54 P.3d 556; Lambert v. State, 2003 OK CR 11, 71 P.3d 30; and Pickens v. State, 2003 OK CR 16, 74 P.3d 601. Simply put, in a capital murder trial the jury is instructed regarding the law relating to mental retardation and directed to *636 determine if the defendant is mentally retarded under those instructions in the penalty phase of the trial. If the jury finds the defendant mentally retarded, the instructions advise the death penalty cannot be applied. If the jury determines the defendant is not mentally retarded, they are instructed to consider the evidence relating to mental retardation as part of the mitigation evidence in the case. Upon assessment of the death penalty, in a case where mental retardation is raised as an issue, a post trial hearing, upon the request of the defendant, is required to have the trial judge determine "if the jury's decision on the issue of mental retardation has resulted in an excessive sentence, i.e., a sentence that imposed the death penalty upon a defendant who is mentally retarded, as herein defined." Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 568-69. This Court would then review all allegations of error in the trial during the direct appeal and mandatory sentence review. ¶ 3 The procedure for raising the issue of mental retardation for the first time as a part of a post-conviction application is just as simple and efficient. Simply put, an appellant must first make a showing either in the original or subsequent application for post-conviction relief, pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2003), that there is clear and convincing evidence of the issue of mental retardation to warrant a remand to the District Court for an evidentiary hearing. If remanded, the District Court will hold an evidentiary hearing to determine if there is sufficient evidence regarding whether the defendant is mentally retarded, as defined in Atkins and Murphy, to require a jury trial on the issue. If there is sufficient evidence and a jury trial on the issue of mental retardation is ordered, the sole issue for that jury is whether the defendant is mentally retarded. The procedure does not require a retrial on the issue of guilt.[1] It goes without saying, any and all evidence relating to the issue of mental retardation, whether it arose during the original trial on the merits or was subsequently developed, would be admissible. ¶ 4 Here, the record reveals the District Court was aware of the separate procedures for the original trial on the merits and a hearing on post-conviction remand, but the judge was hesitant to follow the procedure. As a result, it appears the judge combined the two separate procedures into one. A part of this misconception is attributable to the final language in the Murphy decision. This type of problem was anticipated in the original language drafted in Murphy, i.e. "unless the parties enter into a stipulation on this issue at trial or prior to trial ...". However, due to the group dynamics often present in the writing of appellate opinions, the language was changed to "unless the issue of mental retardation is resolved prior to trial, ...". Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 568. Had the original language been left in place, the current confusion would likely not have occurred. I firmly believe defense attorneys and prosecutors would readily recognize those cases where mental retardation is clear and a stipulation should be entered. In those cases raising a question of fact, the issue should and would be determined by a jury, unless waived. ¶ 5 Instead of merely clarifying and applying the procedure already established, the Court elects to add time, hearings, and appeal to an already elongated process. In doing so, I believe the Court misuses the provisions of 22 O.S.2001, § 1053 to create an interlocutory appeal of an issue that will ultimately require review by this Court during the direct appeal of the case, should a verdict of guilt be entered. I cannot find support for that type of appeal created within the statute. The only sub-provision even remotely applicable is § 1053(5). However, that provision deals with suppressing or excluding evidence, not the determination of an issue on the merits, i.e. mental retardation. We have previously held the quashing of a Bill of Particulars is an error to be addressed in a regular appeal. See Matthews v. State, 2002 OK CR 16, 45 P.3d 907, 924. Why create an interlocutory appeal on an issue that will ultimately also have to be adjudicated *637 as a part of the direct appeal upon conviction? Further, our case law is replete with this Court firmly denying the use of an interlocutory appeal in the progress of a case. See, Nguyen v. State, 1989 OK CR 6, 772 P.2d 401, 403; Hardin v. State, 1982 OK CR 124, 649 P.2d 799, 804; State v. Lemmon, 1978 OK CR 10, 574 P.2d 1057, 1059; Jones v. Dillard, 1976 OK CR 9, 545 P.2d 209, 210. ¶ 6 Furthermore, the procedure created for this pre-trial hearing and interlocutory appeal itself creates potential problems. The Order says, "By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation."[2] Order at ¶ 13. But then, the Order says, "At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record." Order at ¶ 14. Will this then require a determination of competency to be able to enter the waiver? How about a jury trial on competency prior to the evidentiary hearing? Remember, the issue a judge of the District Court is being asked to determine is if the defendant is mentally retarded. What happens if the defendant fails to enter a waiver on the record, does the Motion to Quash control or is the matter set for trial pursuant to Murphy? These are the type of problems that can arise when courts seek to complicate otherwise simple procedures to try to answer a question that has already been answered. ¶ 7 Furthermore, creating a waiver of a Constitutional right and a new interlocutory appeal seems unusually "legislative" to me, especially where we do not have a better statutory basis than we do here. House Bill 2635, the original bill passed by our Legislature in 2002 prior to gubernatorial veto and the U.S. Supreme Court's decision in Atkins v. Virginia, did not provide for such a pretrial ruling, did not require a personal waiver, and did not create an interlocutory appeal. Currently, House Bill 2710 is pending in the 2004 session of the Legislature and it too is mute on these issues. I would be extremely hesitant to take the position this Court has now taken knowing the Oklahoma Legislature's only pronouncement concerning these issues addresses the issue of mental retardation in the context of a trial, consistent with our decision in Murphy. Does the Court truly believe it is saving "time and expense" by creating a new right of appeal before trial even begins? Does the Court really want to force a criminal defendant into the Hobson's choice of waiving his or her right to have a jury decide the issue of mental retardation in order to obtain this pretrial determination? How will that waiver impact his or her ability to present the issue of mental retardation at sentencing, if the pretrial proceedings do not result in the desired results? Will this Court then abandon the legal principle of res judicata, forget the ruling on the interlocutory appeal because "death is different", and allow a defendant to have another bite at the apple? I highly doubt our Legislature will agree with this approach. However, that is a choice they will ultimately have to make. ¶ 8 The clear and simple way to address this Application for Writ of Prohibition is to say the question asked was answered in Murphy. Pursuant to the procedure and instructions adopted in Murphy the issue of mental retardation is tried to the jury during the penalty phase of a capital murder case. The duty of the trial judge at a post-trial "Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice, or any other arbitrary factor". See Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 569. This Court then reviews all issues at one time as a part of the direct appeal. *638 ¶ 9 Appellate courts are tasked with the dual responsibility to adjudicate cases and manage the appellate system to ensure fair, objective, speedy and efficient disposition of cases. The court should be a part of the solution and not the problem in maintaining an efficient, responsive judicial system. In Murphy this Court ensured a defendant's right to due process was preserved and a jury, having received all relevant evidence both prior to and during the commission of the crime, was afforded the responsibility to determine the issue of mental retardation. The procedure adopted today appears to distrust the ability of a jury in capital cases to make that important decision. Rather, it seeks to provide the judges of this Court, under the guise of de novo review, the power to decide who shall be eligible for the death penalty. I have more faith in the men and women who perform the valuable service of jurors. I believe they follow their oaths and the instructions of the court in making those hard decisions. We should honor that service. Members of this Court are ill equipped to serve as a fact finder on these issues. Our job is to determine if the evidence supports the decision of the fact finder. ¶ 10 As previously stated, I acknowledge the authority of the Court to establish the pre-trial procedure. I find no authority to create an interlocutory appeal. And, I believe this procedure will create more issues than it resolves while denying a speedy and efficient determination of the trial on the merits before a jury. NOTES [1] For those pending district court capital cases, where sixty (60) days from arraignment or from the date the State filed its Bill of Particulars has already passed, the defendant shall file his Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty within sixty (60) days from the date of this Order. [2] In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2439-40, 153 L.Ed.2d 556 (2002), the United States Supreme Court held that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt. Without addressing whether Ring applies to the determination of mental retardation, we believe that a defendant's affirmative waiver of a jury determination on that issue is required. [3] 22 O.S.2001, § 2001 et. seq. [4] We recognize that currently there is a statutory method for the State to appeal from a motion to quash. See 22 O.S.2001, § 1053(1). However, by this Order and until further amendment to this Court's rules, we hereby establish the procedure for both parties to follow when seeking an interlocutory appeal from a trial court's order granting or denying a Motion to Quash Bill of Particulars on grounds of Mental Retardation. Because a trial court's finding that a defendant is not mentally retarded allows the capital proceedings to go forward, interlocutory review of this determination before the time and expense of the capital murder trial is warranted. [1] Lambert and Pickens were post-conviction cases that discussed only the scope of trial on remand for the issue of mental retardation. Those cases did not discuss or affect the procedure to be utilized when a defendant is initially on trial in a capital case. [2] The Court does not even consider the fact the State also has a right to a jury trial. As we have previously held in Crawford v. Brown, 1975 OK CR 114, 536 P.2d 988, "Accordingly, we do not find it unconstitutional to predicate the informed, intelligent waiver of such a right upon the consent of the State's attorney and the judge of the trial court. The refusal of either to consent will result in a trial by jury as guaranteed to the defendant by our Constitution (Article II, Sections 19 and 20). The State in our adversary criminal justice system, has a valid and legitimate interest in trying its case before that body which both history and the framers of our Constitutions have felt produced the fairest end result-the jury." Id. at 990. See also, Valega v. City of Oklahoma City, 1988 OK CR 101, 755 P.2d 118, 119.

Jeffrey Lee West v. State COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-02-323-CR JEFFREY LEE WEST APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY ------------ OPINION ------------ I.  I ntroduction A jury convicted Appellant Jeffrey Lee West (“West”) of four counts of aggravated sexual assault of a child under fourteen years of age.  The jury assessed West’s punishment at ten years’ community supervision on each of the first three counts and five years’ confinement on count four of the indictment. West raises seventeen issues on appeal.  In issues one through ten, West alleges that the trial court’s refusal to permit him to cross-examine and impeach the victim, D.M., with certain entries and an omission from her diary violates  his Sixth Amendment right of confrontation.  In issues eleven and twelve, West contends that the trial court erred in admitting D.M.’s mother’s testimony.  Issue thirteen addresses the trial court’s refusal to grant West’s motion for mistrial.  Issues fourteen and fifteen challenge the constitutionality of the Allen charge the trial court gave to the jury.  Issues sixteen and seventeen challenge the legal and factual sufficiency of the evidence.  We will affirm. II.  B ackground Facts West and D.M.’s mother, Ruth Dodson, married when D.M. was approximately three years old.  West was D.M.’s stepfather, as well as the father of two other daughters he had with Dodson.  In January 1999, Dodson’s father died, requiring her to travel out of the state for some period of time.  During this time, West took care of his stepdaughter, as well as the couple’s other two daughters. Trial testimony showed that one evening, before Dodson returned to Texas, D.M. was ironing her school clothes in her mother and stepfather’s bedroom.  West approached her and instructed her to take off her panties and iron them, stating that this would “feel good.”  West then instructed the eleven-year-old to take off all her clothes so he could “teach [her] about sex.”  D.M. obeyed her stepfather. West then instructed D.M. to get a mirror and come sit on the bed, and he proceeded to point out the features of the child’s genitalia.  West also used his fingers to guide his lesson on sex education.  Once he was through “instructing” the child with the mirror, he proceeded to remove his clothes and had D.M. hold his sexual organ in her hand and then directed her to lie down on the bed.  D.M. testified that West then put his mouth both on and inside her genitals.  Finally, West somewhat penetrated her genitals with his sexual organ until she told him to stop because he was hurting her.  Upon ending physical contact, West stated that he hoped D.M. had “learned something” so that she would not “need to go out and find out what it’s like.”  He also told D.M. not to tell anyone what had happened. In January 2000, D.M. and her mother were kicked out of the Wests’ home, and a bitter divorce and custody battle over the two younger daughters ensued.  During the following summer, while spending summer visitation with her natural father, D.M. disclosed that West had inappropriately touched her. Thereafter, upon returning home to her mother’s residence in Galveston, Texas, D.M. disclosed partial details of the encounter to her mother. Dodson contacted the toll-free, hotline number for Texas Child Protective Services.  The agency commenced an investigation into the safety of D.M.’s two younger sisters living in Arlington, as well as an investigation into D.M.’s accusations.  D.M.  was subsequently interviewed and videotaped at the child advocacy center in Galveston.  As a result of this investigation, West was indicted and then convicted of four counts of aggravated sexual assault of a child under fourteen years of age. III.  T he Diary In his first nine issues, West complains that the trial court erred at the guilt-innocence phase of trial by refusing to permit him to cross-examine and impeach D.M. (1) with two entries from D.M.’s diary and (2) concerning the lack of a diary entry regarding the assault.  Specifically, the two entries that West asserted were admissible were: (1) a September 7, 1999 entry in which D.M. wrote that she had said a few untrue things about her stepfather and that she was mad when she wrote those things (issues one, four, and seven); and (2) a February 6, 1999 entry that discussed a “peck on the cheek” incident between D.M. and a classmate at a dance (issues three, six, and nine).  Finally, the omission West sought to question D.M. about was her failure to write in her dairy about the sexual assault despite an entry indicating that she intended to write “everything” in her diary (issues two, five, and eight). (footnote: 1)   Standard of Review The trial court’s decision to admit or exclude evidence is afforded a great deal of discretion.   Montgomery v. State , 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).  Therefore, we review a trial court’s ruling on admissibility or exclusion of evidence under an abuse of discretion standard.   Angleton v. State , 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  If the trial court’s evidentiary ruling is reasonably supported by the record and is correct under any theory of applicable law, we must uphold it—this is known as the “zone of reasonable disagreement” test.   Montgomery , 810 S.W.2d at 391.  “The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.”   Id. at 380.  We apply an abuse of discretion standard of review to West’s first through ninth issues. The September 7, 1999 Diary Entry West’s first and seventh issues concern the following entry in D.M.’s diary: “I know I’ve said a few things about daddy but almost all of them were not true.  I was mad when I wrote them.  I love daddy and I’ll miss him.  He has showed and taught me a lot.”  The record shows that D.M. referred to her stepfather as “daddy.”  West contends that the trial court abused its discretion by refusing to permit him to cross-examine D.M. with this diary entry because it was offered for impeachment purposes, not to prove the truth of the matter asserted, and, alternatively, because it falls within one of the hearsay exceptions.   See T ex. R. Evid. 803(24) . We hold that the trial court did not abuse its discretion by refusing to permit West to cross-examine D.M. with this diary entry.  D.M.’s diary was offered into evidence by West in a bill of exceptions.  Throughout the diary, D.M. writes as though the diary were an actual person, giving the diary a name and writing things like, “Also I probably didn’t tell you,” “I would tell you more, but,” and “So I guess I will go, talk to you later.”   Thus, the trial court could have reasonably interpreted D.M.’s statement that “I know I’ve said a few things about daddy” that were not true, but “I was mad when I wrote them” as meaning that D.M. said bad things to her diary about West, but that these things were not true and she was mad when she wrote them.  [Emphasis added.]  Indeed, based on our review of the diary, we agree with the trial court that this was the probable meaning of D.M.’s statement.  Furthermore, the dairy contains no reference to the sexual assault at issue in this case.  Whatever untrue things D.M. purportedly wrote in her diary, they did not involve the present sexual assault.  Thus, they do not appear relevant except as an effort to show a general untruthful character, and for the reasons explained below, this specific incident of alleged untruthfulness is not admissible for that purpose.   See Tex. R. Evid. 401, 608.  Consequently, we cannot say that the trial court acted outside the zone of reasonable disagreement by refusing to permit West to cross-examine D.M. with this entry.   See Holt v. State , 912 S.W.2d 294, 301 (Tex. App.—San Antonio 1995, pet. ref’d) (holding trial court did not err in refusing to permit defendant to cross-examine and impeach child sexual assault victim with diary entries); see also Ayers v. State , 606 S.W.2d 936, 941 (Tex. Crim. App. 1980) (op. on reh’g) (holding murder victim’s personal diary found after trial did not warrant a new trial based on newly discovered evidence).  We overrule West’s first issue. In his seventh issue, West claims that he should have been permitted to impeach D.M. with this entry after she testified that she had not become so angered at West that she said untrue things about West to others.  Great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony.  It is likewise true that the burden of showing the relevance of particular evidence to the issue of bias rests on its proponent.   Chambers v. State , 866 S.W.2d 9, 26-27 (Tex. Crim. App. 1993), cert. denied , 511 U.S. 1100 (1994); Janecka v. State , 739 S.W.2d 813, 830 (Tex. Crim. App. 1987). Moreover, the parameters of cross-examination for the showing of bias rests on the sound discretion of the trial judge.   Chambers , 866 S.W.2d at 27.  The trial judge must balance probative value against prejudicial risks, i.e., undue prejudice, embarrassment, harassment, confusion of the issues, and undue delay.   Id. Writing untrue things in a diary is not the same as saying untrue things to a live person.  D.M.’s diary entry that she said untrue things to her diary about West (but not regarding the sexual assault at issue) and that she was mad when she wrote those things does not establish D.M. lacked credibility or had bad character.  D.M. was never asked whether she wrote anything untrue about West.  Her diary entry that she said untrue things to her diary does not impeach her testimony that she had never said untrue things about West to a live person, nor does this entry show any bias by D.M.  Instead, the entry shows that D.M. loves West and states that she will miss him after the divorce.  Again, we cannot say that the trial court acted outside the zone of reasonable disagreement by refusing to admit D.M.’s diary entry or by refusing to permit West to use the entry to impeach D.M.   See id. Finally, as pointed out by the State, this diary entry was not admissible to show that D.M.’s character for truth-telling was poor.  Rule 608 of the Texas Rules of Evidence permits a party to prove a witness’s character for truthfulness or untruthfulness via opinion or reputation testimony.   Tex. R. Evid. 608. Because this diary entry involved a specific instance of conduct, i.e., writing false things in a diary, it was not admissible to impeach D.M.’s credibility or truthfulness.  For this reason, the trial court also did not act outside the zone of reasonable disagreement by refusing to admit D.M.’s diary entry or by refusing to permit West to use the entry to impeach D.M.  We overrule West’s seventh issue. C. The February 6, 1999 Diary Entry In his third and ninth issues, West claims that the trial court abused its discretion by refusing to permit him to cross-examine and impeach D.M. with a February 6, 1999 diary entry which reads, in part: “Also I probably didn’t tell you but Nick and I kissed each other on the cheak [sic] at the last dance.”  West argues that this “intimate contact” indicated “sexual behavior” that was inconsistent with the behavior of a child who had been sexually abused.  The trial court excluded this diary entry under rule 412 and as irrelevant.   See Tex. R. Evid. 401, 412. The Texas Rules of Evidence define relevancy as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”   Tex. R. Evid. 401.  The burden of showing the relevance of particular evidence to the issue of bias rests on its proponent.   Chambers , 866 S.W.2d at 26-27; Holt , 912 S.W.2d at 301.  A trial court’s decision as to the relevancy of evidence depends wholly upon “one judge’s perception of common experience.”   Montgomery , 810 S.W.2d at 391 (citing Weinstein & Berger, Weinstein’s Evidence , 401-53 (1990)).  Thus, questions of relevance should be left largely to the trial court and will not be reversed absent an abuse of discretion.   Moreno v. State , 858 S.W.2d 453, 463 (Tex. Crim. App.), cert. denied , 510 U.S. 966 (1993). West claims D.M.’s kiss on the cheek with Nick was relevant because this  “intimate contact” is behavior inconsistent with that of a child recently molested.  This argument alleged as fact, i.e., that sexually abused girls do not have intimate contact with boys in their peer group, was never proven.  In fact, West’s expert testified that “sexually promiscuous” behavior is a good indication that a child has been sexually abused, which seems to run counter to West’s position.  In light of the lack of evidence showing that a young girl who had been recently sexually assaulted would be unlikely to kiss a boy on the cheek at a dance, the disputed evidence lacks any probative value.   See Boyle v. State , 820 S.W.2d 122, 149 (Tex. Crim. App. 1991) (op. on reh’g) (holding trial court properly excluded diary entry documenting victim’s past sexual behavior because it lacked probative value), cert. denied , 503 U.S. 921 (1992).  The trial court acted within the zone of reasonable disagreement by concluding that this diary entry was not relevant and by excluding it on that basis.  We overrule West’s third and ninth issues. The Diary Omission In his second and eighth issues, West complains that the trial court erred by refusing to allow him to impeach D.M. with the fact that she failed to make a diary entry regarding the assault despite writing in her diary that she intended to write “everything” in it.  Thus, West argues that D.M.’s failure to record her stepfather’s assault impacts her credibility. We hold that the trial court did not abuse its discretion by refusing to permit West to impeach D.M. by questioning her about her failure to record the sexual assault in her diary despite writing that she would include “everything” in it.  D.M. was not under oath when she wrote that she intended to record everything in her diary.  She had no moral, ethical, or legal obligation to write anything in the diary at all.  The fact that an eleven-year-old girl at some point intended to write in her diary more frequently and wrote, “You are sort of my Jewl because I keep you and treasure you because I write everything in you and tell you all my feelings and stuff” simply does not impact the credibility of her testimony concerning nondiary-entry events.  [Emphasis added.]  We overrule West’s second and eighth issues. E. Did the State Open the Diary Door? On redirect examination by the State, D.M. testified that she had not recorded anything about the assault in her diary.  West argues in issues four, five, and six, that via this question—whether D.M. ever wrote anything in her diary regarding what West did to her—the State opened the door for him to cross-examine and impeach D.M. with the September 7, 1999 and the February 6, 1999 diary entries as well as with the diary omission. “Rule 107 is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter ‘opened up’ by the adverse party.” Johnson v. State , 747 S.W.2d 451, 453-54 (Tex. App.—Houston [14 th Dist.] 1988, pet. ref’d).  “The so-called rule of optional completeness takes effect when other evidence has already been introduced but is incomplete and misleading.”   Jones v. State , 963 S.W.2d 177, 182 (Tex. App.—Fort Worth 1998, pet. ref’d).  Once an evidentiary door has been opened by one side, this rule serves to allow the other side to complete the picture.  The party who opens the door may not then invoke the rule of optional completeness to further exploit an improper line of questioning.   See Hatley v. State , 533 S.W.2d 27, 29 (Tex. Crim. App. 1976); Jones , 963 S.W.2d at 182. When D.M. and her mother moved out of the Wests’ home, D.M. left behind her diary.  West’s counsel brought the diary to trial and first broached the topic of D.M.’s diary.  D.M. testified that she had forgotten all about the diary. West’s counsel made numerous attempts to question D.M. about certain diary entries and her failure to make certain entries.  As a result of West’s counsel’s cross-examination of D.M., it is highly probable that the jury was left with the impression that there was something in the diary relevant to the charged sexual assault incident.  Therefore, on redirect examination of D.M., the State invoked the rule of optional completeness and clarified that the diary contained nothing relevant to the assault at issue by asking D.M. whether she recognized the diary and whether she ever wrote anything in the diary about the abuse.  D.M. answered that the diary was hers and that she did not write anything in it about the abuse, giving the exact testimony West’s counsel had attempted to elicit from her.  Under these circumstances, contrary to West’s contentions, the State’s two questions did not open the door to West’s use of the diary to impeach D.M.   See, e.g., Credille v. State , 925 S.W.2d 112, 116 (Tex. App.—Houston [14 th Dist.] 1996, pet. ref’d).  We overrule issues four, five, and six. IV.  Mom’s Testimony A. As an Outcry Witness In his eleventh issue, West maintains that the testimony of D.M.’s mother, Ruth Dodson, constituted inadmissible hearsay.  He claims that the trial court abused its discretion by admitting Dodson’s testimony concerning D.M.’s outcry because the State designated D.M.’s father as the outcry witness.   See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). Article 38.072 allows the first person to whom the child described the offense in some discernible manner to testify about the statements the child made. Id. ; Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). Because of the way in which the statute is written, an outcry witness is not person-specific, but event-specific.   Broderick v. State , 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d).  Before more than one outcry witness may testify, however, the outcry must be about different events and not simply a repetition of the same event as related by the victim to different individuals.   Id.  But there may be only one outcry witness to the victim's statement about a single event, and the proper outcry witness to a single event is the first adult person other than the defendant to whom the victim made a statement describing the incident.   Id. ; see also Thomas v. State , 1 S.W.3d 138, 142 (Tex. App.—Texarkana 1999, pet. ref’d) (holding proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense). Here, in accordance with article 38.072, the State designated the child’s natural father as its outcry witness.   Tex. Code Crim. Proc. Ann . art. 38.072. After the State made its outcry designation, it nonetheless called Dodson, D.M.’s mother, to testify about D.M.’s statements to her regarding the same event.  Because the State designated D.M.’s father as the outcry witness,  Dodson’s testimony regarding D.M.’s statements to her about this same assault constituted inadmissible hearsay.   See Thomas , 1 S.W.3d at 142.  Thus, the trial court abused its discretion by admitting Dodson’s hearsay testimony over West’s objection.   See Josey v. State , 97 S.W.3d 687, 698 (Tex. App.—Texarkana 2003, no pet.) (holding trial court erred by permitting testimony of third outcry witness as to same event over defendant’s hearsay objection); Broderick , 35 S.W.3d at 73-74 (holding trial court erred by permitting testimony of second outcry witness as to same event over defendant’s hearsay objection). Having determined that the trial court erred by admitting Dodson’s testimony over West’s hearsay objection, we now apply a rule 44.2(b) harm analysis.   Tex. R. App . P. 44.2; see Josey , 97 S.W.3d at 698; Broderick , 35 S.W.3d at 73-74.  The reviewing court must deem the error harmless if, after reviewing the entire record, the court is reasonably assured the error did not influence the jury's verdict or had but a slight effect.   Josey , 97 S.W.3d at 698.  If the same or similar evidence is admitted without objection at another point during the trial, the improper admission of the evidence will not constitute reversible error.   Id. Dodson’s hearsay outcry testimony was that, in response to her questioning of D.M., D.M. stated that her stepfather had put his hands on her, that he had put his mouth on her, that she did not have her clothes on, and that West was not clothed.  D.M. herself, however, gave detailed testimony concerning the assault.  She testified that during the assault West “pointed out my different parts, my vagina and my clitoris”; “spread the skin . . . back and showed me”; touched her “breasts and nipples” “and had me touch them, also”; “asked me if I wanted to see what a penis looked like and that’s when he took his clothes off to show me”; “showed me the head and explained that to me”; asked her to touch his penis, “so I can see what it’s like when a man became aroused”; “said I would have to put my mouth on it in order for him to be able to ejaculate”; asked her to put her mouth on his penis; said, “So you don’t ever want to know what it’s like for a guy to put his mouth on you, I’m going to show you”; “put his mouth on my genitals” and she felt his tongue going inside; and said, “I’m going to show you what it’s like for a guy’s penis to go in you, and he tried to put his penis in me.” Here, Dodson’s hearsay testimony was not harmful in light of D.M.’s detailed, factually specific testimony concerning the assault.  We are reasonably assured that the error in admitting Dodson’s hearsay outcry testimony did not influence the jury's verdict or had but a slight effect.   See Tex. R. App. P. 44.2(b); see also Anderson v. State , 717 S.W.2d 622, 627 (Tex. Crim. App. 1986).   We overrule West’s eleventh issue. B. As to the Social Workers’ Recommendation In his twelfth issue, West maintains that the trial court erred by admitting  Dodson’s testimony that a social worker recommended Dodson talk to D.M. about the assault incident. (footnote: 2)  West contends that this testimony also was inadmissible hearsay.  The State, on the other hand, argues that the social worker’s recommendation was not offered to prove the truth of the matter asserted—that Dodson should talk to D.M.—but instead simply to “give some context” to what Dodson did next, i.e., talk to D.M. Out-of-court statements admitted for the purpose of explaining how a defendant became a suspect and not for the truth of the matter asserted do not constitute inadmissible hearsay.   Dinkins v. State , 894 S.W.2d 330, 347 (Tex. Crim. App.), cert. denied , 516 U.S. 832 (1995); Cano v. State , 3 S.W.3d 99, 110 (Tex. App.—Corpus Christi 1999, pet. ref’d).  Likewise, out-of-court statements may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule.   Gholson v. State , 542 S.W.2d 395, 398 (Tex. Crim. App. 1976), cert. denied , 432 U.S. 911 (1977). The mother’s testimony here was not offered to prove the truth of the matter asserted but to show contextually what happened next.  In other words, the testimony was admitted to show what happened next in the chain of events once D.M. had been interviewed on videotape.  If the statement was offered to prove the truth of the matter asserted, i.e, the social workers’ opined that for therapy required D.M.’s mother to talk to her, then it would be hearsay.   See Levario v. State , 964 S.W.2d 290, 296 (Tex. App.—El Paso 1997, no pet.).  We hold that Dodson’s testimony was not hearsay and that, therefore, the trial court did not err by admitting it over West’s hearsay objection. Relying on Miller-El v. State , West also claims that the direction of the State’s questioning of Dodson was “patently driven” towards eliciting forbidden victim impact evidence.  782 S.W.2d 892, 895 (Tex. Crim. App. 1990).  The facts in Miller-El , however, are distinguishable from the present facts. In Miller-El , the victim was shot, severing his spinal cord and paralyzing him. Id. at 894. The court of criminal appeals recognized that the defendant’s treating doctor’s testimony that the victim would have special needs for the rest of his life, that as a result of the paralysis he would never regain bladder and bowel control or sexual and procreative functions, that he would be required to maintain a constant vigilance to prevent infection and bed sores, and that recurring spasticity could ultimately deprive him even of the use of a wheelchair, constituted victim impact testimony and was inadmissible at the guilt innocence phase of the trial.   Id. at 894-95.  By contrast, here, Dodson’s testimony that, after D.M. was interviewed, social workers told Dodson to talk to D.M. is not the sort of testimony designed to “inflame the minds of the jury” as was the testimony in Miller-El .   Id. at 893.  The State’s questioning was either not intended to elicit victim impact testimony or was curtailed by West’s objection before any victim impact testimony was elicited.  We overrule West’s twelfth issue.   V.   West’s Motion for Mistrial In issue thirteen, West argues that the trial court erred by denying his motion for mistrial after the State prefaced a question to Dodson with the statement, “Now, this is really important, Ms. Dodson.”  Following this comment, West objected.  The trial court sustained West’s objection and instructed the jury to disregard the prosecutor’s comment.  West moved for a mistrial, and the trial court denied his motion.  Following this exchange, the State asked Dodson whether she had coached D.M. in her accusations against West.  Dodson answered that she had not. A. Standard of Review Mistrials are an extreme remedy for prejudicial events occurring during the trial process.   Bauder v. State , 921 S.W.2d 696, 698 (Tex. Crim. App. 1996); Jackson v. State , 50 S.W.3d 579, 588 (Tex. App.—Fort Worth 2001, pet. ref’d).  The declaration of a mistrial ought to be an exceedingly uncommon remedy for residual prejudice remaining after objections are sustained and curative instructions given.   Bauder , 921 S.W.2d at 698.  For this reason, judicial admonishments to the jury are presumed effective.   Id. (citing Waldo v. State , 746 S.W.2d 750, 754 (Tex. Crim. App. 1988)). When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court erred in denying the mistrial.   Goodwin v. State , 91 S.W.3d 912, 916 (Tex. App.—Fort Worth 2002, no pet.).  Its resolution depends on whether the court's instruction to disregard cured any prejudicial effect.   Id .  Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant is a trial court required to grant a mistrial.   Bauder , 921 S.W.2d at 698.   We review the trial court’s denial of a mistrial deferentially under an abuse of discretion standard.   Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999); Jackson, 50 S.W.3d at 588. Instruction Presumed Effective Immediately after sustaining West’s objection to the prosecutor’s prefatory comment, “Now, this is really important, Ms. Dodson,” the trial court instructed the jury to “not consider the last remark for any purpose.”  We must presume that this instruction was effective.   See Bauder , 921 S.W.2d at 698.  The comment made by the State here simply was not an objectionable event that was so emotionally inflammatory that it undermined the efficacy of the trial court's instruction to disregard.    See id. (citing Kemp v. State , 846 S.W.2d 289, 308 (Tex. Crim. App. 1992), cert. denied , 508 U.S. 918 (1993)); see also Jones v. State , 100 S.W.3d 1, 5 (Tex. App.—Tyler 2002, pet. ref’d) (holding trial court did not abuse discretion by denying mistrial when State elicited testimony regarding defense witness's two stale misdemeanor theft convictions). Consequently, the trial court did not abuse its discretion by denying West’s motion for a mistrial.  We overrule West’s thirteenth issue. VI.   The Allen Charge In his fourteenth and fifteenth issues, West argues that the trial court erred by overruling his objection to the Allen charge and that, although he did not object, the Allen charge’s “partial definition” of reasonable doubt caused him egregious harm, entitling him to reversal under Almanza .   Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Standard of Review An Allen charge is usually given in response to a specific request from the jury during situations in which the jury is deadlocked.   Jackson v. State , 753 S.W.2d 706, 712 (Tex. App.—San Antonio 1988, pet. ref'd).  An Allen charge jury instruction will constitute reversible error only if, on its face, it is so improper as to render jury misconduct likely or jury misconduct is demonstrated to have occurred in fact.   Calicult v. State , 503 S.W.2d 574, 576 n.2 (Tex. Crim. App. 1974).  To prevail on a complaint that an Allen charge is coercive, an accused must show that jury coercion or misconduct likely occurred or occurred in fact. Love v. State , 909 S.W.2d 930, 936 (Tex. App.—El Paso 1995, pet. ref’d); Jackson , 753 S.W.2d at 712; Davis v. State , 709 S.W.2d 288, 291 (Tex. App.—Corpus Christi 1986, pet. ref'd), cert. denied , 481 U.S. 1057 (1987).  An Allen charge is unduly coercive and therefore improper only if it pressures jurors into reaching a particular verdict or improperly conveys the  court’s opinion of the case. Arrevalo v. State , 489 S.W.2d 569, 571 (Tex. Crim. App. 1973)). Allen Charge Not Coercive Following a five-day trial, the jury retired to deliberate at about 4:40 p.m. on the last day of trial.  After deliberating some time, the jury sent out a note indicating that it was deadlocked.  Eventually, at approximately 5:55 p.m., the jury retired for the evening without reaching a verdict.  Deliberations recommenced the following morning.  At approximately 1:53 p.m., the jury sent out another note stating that it was unable to reach a verdict. (footnote: 3)  The trial court met with the attorneys, and all agreed that the trial court would inquire as to the numerical split of the jury. (footnote: 4)  At approximately 2:00 p.m. the jury sent out a note indicating that the split was 11 to 1.  The trial court then decided to give the supplemental jury instruction known as an Allen charge.  West’s counsel objected, pointing out that the jury “has had 24 hours to think about this,” “[t]hey have slept overnight on it,” and “ha[ve] expressed their opinion that they [could not] reach a verdict at least one time.”  West’s counsel also asserted that because the court knew that there was one hold-out juror, the Allen charge was unduly coercive on that juror.  The trial court overruled West’s objections and, at 2:07 p.m., instructed the jury as follows: Members of the jury, you are instructed that in a large proportion of cases absolute certainty cannot be expected.  Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard for the opinions of the other jurors.   You should listen, with a disposition to being convinced, to the arguments of the other jurors.  If a large number of jurors are for deciding the case in one way, those in the minority should consider whether they are basing their opinion on speculation or guesswork and not on the evidence in the case.   . . . . If this jury find [sic] itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time.  Any such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the same evidence which has been presented to this jury.   The questions to be determined by that jury will be the same questions confronting you, and there is no reason to hope that the next jury will find these questions any easier to decide than you have found them.   With this additional instruction, you are instructed to continue deliberations in an effort to arrive at a verdict that’s acceptable to all members of the jury if you can do so without doing violence to your conscience. The jury subsequently returned a unanimous verdict. T he instructions contained in the Allen charge utilized here are consistent with similar instructions used in Allen charges used throughout this state and have been held to be noncoercive.   See, e.g., Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996); Arrevalo , 489 S.W.2d at 571-72; Willis v. State , 761 S.W.2d 434, 437-38 (Tex. App.—Houston [14 th Dist.] 1988, pet. ref'd); Rodela v. State , 666 S.W.2d 652, 652-53 (Tex. App.—Corpus Christi 1984, pet. ref'd); Ray v. State , 649 S.W.2d 142, 146-47 (Tex. App.—Fort Worth 1983, pet. ref'd), superseded by rule on other grounds, Bee v. State , 974 S.W.2d 184, 188-89 (Tex. App.—San Antonio 1998, no pet.) ; M.J. McCormick et al. , Texas Practice: Criminal Practice and Forms Manual § 96.31 (10th ed. 1995).  Likewise, the Fifth Circuit has consistently upheld the use of similar, if not identical, Allen charge jury instructions.   See, e.g., United States v. Kelly , 783 F.2d 575, 576-77 (5th Cir.), cert. denied , 479 U.S. 889 (1986); United States v. Anderton , 679 F.2d 1199, 1203 n.3 (5th Cir. 1982); United States v. Bottom ,  638 F.2d 781, 786 (5th Cir. 1981). The Allen charge here does not contain the type of language courts have held to be problematic and coercive.   See, e.g., Green v. United States , 309 F.2d 852, 855 (5th Cir. 1962) (holding Allen charge was coercive that told jury that it is the duty of the minority to listen to the argument of the majority with some distrust of their own judgment because the rule is that the majority will have better judgment than the mere minority).  West does not point to any specific language that he contends was coercive, and after reviewing the instruction, we see no language that shows jury coercion likely occurred. Specifically, the Allen charge given here does not tell the jury that one side or the other possesses the superior judgment, nor does it tell them to distrust their judgment. Additionally, the trial court carefully concluded the Allen charge by instructing the jury that, in any event, it should try to arrive at a verdict acceptable to all jurors only if it could do so “without doing violence to your conscience.”  We hold that the trial court did not err by overruling West’s unduly-coercive objection to the Allen charge.  We overrule issue fourteen. C. No Partial Definition of Reasonable Doubt In his fifteenth issue, West claims that the Allen charge contained a partial definition of reasonable doubt, thereby violating Paulson v. State , 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).  Specifically, West complains that the first sentence of the Allen charge is a partial definition of reasonable doubt: “Members of the jury, you are instructed that in a large proportion of cases absolute certainty cannot be expected.”  West did not object to the Allen charge on this basis.  Instead, he claims that Almanza applies and that despite the lack of an objection he is entitled to reversal if he suffered egregious harm from the allegedly erroneous partial definition.  The State, however, contends that Almanza does not apply to Allen charges at all. We do not need to reach the issue of whether Almanza applies to Allen charges because, in any event, neither of the harm standards set out in article 36.19 and construed in Almanza applies unless an appellate court first finds “error” in the jury charge. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981) ; Almanza, 686 S.W.2d at 174; Posey v. State , 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).  When we evaluate a jury charge for a reasonable-doubt-definition error, we first determine whether a definition of reasonable doubt exists in the jury charge.   Paulson , 28 S.W.3d at 573; Minor v. State , 91 S.W.3d 824, 828 (Tex. App.—Fort Worth 2002, pet. ref’d) (citing Carriere v. State , 84 S.W.3d 753, 759 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)).  If not, the charge does not violate Paulson .   Minor , 91 S.W.3d at 828. Here, the trial court simply instructed the jury that “in a large proportion of cases absolute certainty cannot be expected.”  In Geesa v. State , 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), the required jury instruction attempted to define reasonable doubt three times:  (1)“A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case”; (2) “It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs”; and (3) “Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.”  However, Paulson specifically overruled this portion of Geesa that required trial courts to instruct juries on the definition of “beyond a reasonable doubt.”   Paulson , 28 S.W.3d at 573.  The instruction in the present case did not include any of the overruled instructions and thus did not define the concept of reasonable doubt at all. Consequently, the trial court did not violate Paulson by submitting the instruction.   See Minor , 91 S.W.3d at 828.  We hold that the trial court did not err by including the instruction that “in a large proportion of cases absolute certainty cannot be expected” in its Allen charge.  Accordingly, we overrule West’s fifteenth issue. VII.  Sufficiency of the Evidence In his sixteenth and seventeenth issues, West challenges the factual and legal sufficiency of the evidence to support his convictions.  West raises five grounds for his contention that the evidence is legally and factually insufficient: (1) the lack of “physical evidence or corroboration” of D.M.’s testimony; (2) the lack of evidence that D.M. suffers from any of the “symptoms” of a child sex abuse victim; (3) the evidence that D.M. was motivated to fabricate allegations against him because of the “nasty and bitterly contested divorce and child custody fight” between Dodson and West concerning their two children; (4) the evidence of an “inordinate” amount of time between the alleged assault and D.M.’s allegations; and (5) the lack of evidence indicating in any way that West “fits the profile of a person who would commit this offense.” Legal Sufficiency Standard of Review In reviewing the legal sufficiency of the evidence to support a conviction, we review all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.   Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State , 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).  This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.   Jackson , 443 U.S. at 319, 99 S. Ct. at 2789.  When performing a legal sufficiency review, we may not sit as a thirteenth juror, reevaluating the weight and credibility of the evidence and, thus, substituting our judgment for that of the fact finder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied , 529 U.S. 1131 (2000). Application of Legal Sufficiency Standard to Facts As previously outlined, D.M. provided a detailed account of the assault to the jury.  This testimony alone is legally sufficient to support West’s conviction. See, e.g., Empty v. State , 972 S.W.2d 194, 196 (Tex. App.—Dallas 1998, pet. ref’d) (noting testimony of child victim alone is sufficient to support conviction for sexual assault); Ruiz v. State , 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref'd) (same); Karnes v. State , 873 S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.)  (same).  We overrule West’s seventeenth issue. Factual Sufficiency Standard of Review In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party.   Johnson v. State , 23 S.W.3d 1,7 (Tex. Crim. App. 2000); Clewis v. State , 922 S.W.2d 126, 129, 134 (Tex. Crim. App. 1996).  Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence.   Johnson , 23 S.W.3d at 11.  Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.   Id.  In performing this review, we are to give due deference to the fact finder’s determinations.   Id. at 8-9; Clewis , 922 S.W.2d at 136.  We may not substitute our judgment for that of the fact finder’s.   Johnson , 23 S.W.3d at 12.  Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest justice.   Johnson , 23 S.W.3d at 9, 12; Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). To make a determination of factual insufficiency, a complete and detailed examination of all the relevant evidence is required.   Johnson , 23 S.W.3d 12. A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal.   Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Application of Factual Sufficiency Standard to Facts The State’s first witness was D.M.’s father.  He testified that after he and Dodson divorced, Dodson married West.  In the summer of 2000, when D.M. was visiting her father, they had a conversation about sexual abuse.  D.M.’s father later realized that D.M. had been talking about an incident that had occurred to her, but she asked him not to tell anyone and said that she would tell her mother when she got home. Dodson testified that her father passed away on January 15, 1999, and after the funeral she remained in Missouri while D.M. and the other children returned home with West.  Dodson testified that after she divorced West, one day she was telling D.M. that she and D.M. needed to make an effort to get along with West.  D.M. said she did not want anything to do with West, and when Dodson pressed her for an explanation, D.M. said West had “done some things to her.”  Dodson later pressed D.M. for more information, and D.M. agreed to answer a few questions.  Dodson learned that West had touched D.M. and put his mouth on her and that neither of them had their clothes on. Eventually, in January 2001, Dodson called Child Protective Services (“CPS”) regarding the assault. Dodson took D.M. to a Children’s Advocacy Center and to a counselor. Through cross-examination of Dodson, the defense established that D.M. does well in school and is outgoing.  The defense also established that West successfully brought a contempt action against Dodson in September 2001 for failure to pay child support to him for their two children who resided with West. After CPS investigated D.M.’s assault, the agency did not remove these two other minor female children from his home. During D.M.’s testimony she identified West as her former stepfather and as the person who assaulted her when she was eleven years old.  D.M. said that West showed her Playboy magazines several times prior to the assault and made comments like “can you see why that would turn a guy on?” and “[w]ould you ever do something like that?”  One night, while Dodson was still in Missouri, D.M. was in West and Dodson’s bedroom ironing jeans to wear to school the next day.  West started asking her what she knew about sex, and after they talked for a little bit, he asked her if she had ever ironed her underwear. Eventually, West told D.M. to iron her panties, and she bent over to take them off from under her nightshirt.  West instructed her to take off her nightshirt too, so she did.  After D.M. put on her ironed panties, West told her, “I’m going to teach you about sex because your mother will never do so.  That’s not her thing. She doesn’t like to talk about it or anything.  So I have to be the one to teach you.”  West then told D.M. to take off her panties, and as D.M. sat on the side of the bed, West held a little mirror, touching D.M.’s private parts and telling her, this is your vagina, “this is your clitoris.”  West touched D.M.’s breasts and nipples and had her touch them also.  West then took off his clothes and “showed” D.M. his penis.  West told D.M. to touch his penis so she could see what it was like when a man becomes aroused.  West told her that if she wanted to see what an ejaculation was, she would have to move her hand up and down.  West then told her she would have to put her mouth on his penis so he could ejaculate, but D.M. refused.  West told D.M. to lay down on the bed and spread her legs so he could “show [her] something else.”  He told her because “you don’t ever want to know what it’s like for a guy to put his mouth on you, I’m going to show you what that’s like.”  D.M. said West put his mouth on her vagina and clitoris and said she could feel it going inside of her.  D.M. testified, “After he did that for a while, he’s like, ‘Okay, I’m going to show you what it’s like for a guy’s penis to go in you,’ and he tried to put his penis in me.”  West put is penis inside her vagina “a little bit,” but D.M. told him it hurt and eventually he stopped.  West told D.M., “Okay, well, I hope you learned something.  Now you don’t need to go out and find out what it’s like.  It’s getting late.  You should go to bed.”  He also told her, “Don’t tell anybody what happened.  They won’t believe you and I’ll get in a lot of trouble and you don’t want me to get in trouble, right?  You love me?”  D.M. testified that she did not tell anyone about the assault because she trusted West and thought that it was really a lesson and that she needed to know those things. D.M. testified that eventually she told her mother that West had “done some things” to her, but she never told her mother the whole story.  D.M. said her mother kept questioning her and said she would tell a little bit more and a little bit more.  But D.M. said it was a very hard subject to talk about, and she did not like talking about it. Several witnesses testified for the defense, including West and Dodson’s daughter, T.W.  T.W. was nine years old at the time of trial and testified that D.M. never told her that West had touched D.M.’s private parts.  Kelly McGee testified that she lives in Missouri and has known West for about twenty-five years.  She testified that West has never exhibited poor impulse control, a need for immediate gratification, drug or alcohol abuse, anger problems, or low self-esteem.  She testified that West’s reputation for being a peaceful and law- abiding citizen in the community was good.  Joe McGee, Kelly McGee’s husband, testified that he went to high school with West and that West’s reputation in the community for being a peaceful and law-abiding citizen was good.  He agreed with his wife’s testimony that West never exhibited the characteristics outlined above.  George Sorrell, West’s new father-in-law, testified that he has known West for approximately two years.  The defense asked Sorrell about the same character traits, and he denied ever seeing West exhibit any of the traits.  Judy Sorrell Niemeier testified that she has known West since West was in high school.  When West was in high school, he dated Niemeier’s daughter.  She likewise testified that West has never exhibited the list of character traits set forth above. West’s wife, Dana Suzanne West, also testified.  She said that in April 2000 she saw West give a thirteenth birthday gift to D.M.  She said D.M. hugged West and acted glad to see him.  Dana explained that she lives with West and she has never observed any pornography in the house.  West has never expressed any unusual interest in sexual activity, is not manipulative, is not easily angered or frustrated, had not demonstrated an immediate need for gratification, and is not fascinated with sex or sexual things.  Charles Winston, a friend of West’s for twenty years, and Paul Watkins, a friend of West’s for eight years, also testified that they never observed West exhibit any deviant character traits.  Carol Winston provided the same type of testimony. Bradley Craig testified that he is a social worker and that he conducted about 900 social study investigations.  He testified that standard “red flags” for child sexual abuse are withdrawal, excessive daydreaming, poor relationships with peer groups, poor self-esteem, a deterioration in academic performance, sexual promiscuity, drug use, and decreased school attendance. During West’s testimony, he denied any sexual contact with D.M. and specifically denied that he committed any of the acts alleged in the indictment. West explained that while he was married to Dodson, she had an affair that led to the couple’s divorce.  The evening that West found out about the affair, he asked both Dodson and D.M. to leave the house.  He went to D.M.’s room and told her to pack a bag and that she would have to leave because her mother was having an affair.  West said D.M. was very upset and crying.  In the divorce, West obtained custody of the couples’ two minor girls.  Despite D.M.’s accusations, CPS has not removed these two girls from West’s custody. Having carefully examined the evidence in a neutral light, including the evidence relevant and supportive of West’s sufficiency of the evidence arguments on appeal, we hold that the proof of West’s guilt is not so weak as to undermine confidence in the jury’s verdict.  Further, we hold that the evidence of West’s guilt is not outweighed by contrary proof and that West’s convictions for aggravated sexual assault are supported by factually sufficient evidence.  We overrule West’s sixteenth issue. VIII.  Due Process Claims In his tenth issue, West argues that the trial court erred by refusing to allow West to testify concerning allegedly untrue statements he found in D.M.’s diary.  He claims that his right to present his own testimony is a fundamental tenant of due process and argues that the trial court’s refusal to let him offer this testimony violated his due process rights under the Texas and United States Constitutions. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.   Tex. R. App. P. 33.1(a)(1); Mosley v. State , 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied , 526 U.S. 1070 (1999).  Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule.   Tex. R. App. P. 33.1(a)(2) . Preservation of error is a systemic requirement that this court should review on its own motion. Martinez v. State , 878 S.W.3d 504, 507 n.7 (Tex. Crim. App. 2000); Hughes v. State , 22 S.W.2d 142, 151 (Tex. Crim. App. 1993) (op. on reh’g), cert. denied , 511 U.S. 1152 (1994). Here, West did not assert during trial that the trial court’s refusal to let him testify regarding the statement in D.M.’s diary about having “said” untrue things violated his due process rights.  Consequently, this alleged error is not preserved for our review.  We overrule issue ten. IX.  Conclusion Having overruled each of West’s issues, we affirm the trial court’s judgment. SUE WALKER JUSTICE PANEL B: DAY, LIVINGSTON, and WALKER , JJ. PUBLISH DELIVERED: October 2, 2003 FOOTNOTES 1:Specifically, West claims that the following entry indicates D.M. planned to record everything that was important in her diary: Dear diary, I’m starting on a new page because I’m going to try and start over, I’m going to write to you as much as possible.  If I’m going to do that I guess you need a name.  How does Jewl sound?  I have all ways [sic] liked that name.  I guess it sort-of fits you too.  You are sort-of like my Jewl because I keep you and treasure you because I write everything in you and tell you all my feelings and stuff.  [Emphasis added.] 2:Specifically, West complains of the following exchange, occurring during the State’s direct examination of Dodson: Q. [PROSECUTOR]: After that was over with, in other words, after she had come out of that interview, did you have an opportunity to talk to [D.M.]? A.  Yes.  The social workers there both--there were two of them and they both recommended that [D.M.]-- [DEFENSE COUNSEL]: Again, Your Honor, she just can’t stand up here and just testify to whatever she believes somebody that’s not here told her.  I’m going to object on hearsay and I’d ask the Court to instruct the witness not to be testifying-- [PROSECUTOR]: Judge, the statement isn’t going to be offered for the truth of the matter.  It’s going to--the question is going to explain what her next step was with her conversation with her daughter. [DEFENSE COUNSEL]: We’re here because of the truth of the matter, Your Honor.  That’s the only reason why they’re asking, in an effort to build their case against this man.  I object to hearsay. [THE COURT]: Overruled. [DEFENSE COUNSEL]: Note our exception. 3:The trial court stated that this was the jury’s eleventh note.  The record, however, does not contain the notes and does not reflect the content of most of the earlier notes, except for one requesting that a portion of trial testimony be read.  The parities asserted at trial that this note was the second note indicating a jury deadlock.  Consequently, for purposes of our analysis, we treat this note as the second a jury-deadlock note.   4:A trial court’s inquiry as to a jury’s numerical division is not reversible error.   See Odom v. State , 682 S.W.2d 445, 448 (Tex. App.—Fort Worth 1984, pet. ref’d).

343 Pa. Superior Ct. 560 (1985) 495 A.2d 938 Al'Grie JOHNSON, Appellant v. TRAVELERS INSURANCE COMPANY. Carol KISS, Appellant v. The TRAVELERS INSURANCE COMPANY. Gwendolyn Lola PAULHILL, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company. Kenneth ANDRE, Appellant, v. ESIS, INC. Martin J. ADDARAIO, Appellant, v. The TRAVELERS INSURANCE COMPANY, as Designee of Pennsylvania Assigned Claims Plan. Clarence JOHNSON, Appellant, v. The TRAVELERS INSURANCE COMPANY and Larry Samuel. Joan WAINWRIGHT, Appellant, v. The TRAVELERS INSURANCE COMPANY. Herbert PETTAWAY, Appellant, v. The TRAVELERS INSURANCE COMPANY. Perry STEWART and Daniel Watson, Appellants, v. The TRAVELERS INSURANCE COMPANY. Salvatore GUINTA, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Esis, Inc. Julia CLARK, Appellant, v. The TRAVELERS INSURANCE COMPANY. Paul C.F. SPRINGER, Appellant, v. The TRAVELERS INSURANCE COMPANY, as Designee of the Pennsylvania Assigned Claims Plan. George BOBB, Appellant, v. TRAVELERS INSURANCE COMPANY and Pennsylvania Assigned Claims Plan. Michael T.A. LAWLOR, Appellant, v. The TRAVELERS INSURANCE COMPANY. Rosemary RUGGIERI, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company. Supreme Court of Pennsylvania. Argued and Submitted March 4, 1985. Filed June 7, 1985. Reargument Denied August 5, 1985. Petition for Allowance of Appeal Denied October 31, 1985. *562 Charles W. Craven, Philadelphia, for appellee at 566PHL84. George F. Schoener, Jr., Philadelphia, for appellant at 566PHL84. Joseph P. Grimes, Philadelphia, for appellant at 846PHL84. John J. Branigan, Philadelphia, for appellant at 3009PHL83. Michael C. Rainone, Philadelphia, for appellant at 3199PHL83. *563 Neal Cohen, Philadelphia, for appellant at 3254PHL83. Susan B. Bolno, Philadelphia, for appellant at 3394PHL83. Arnold H. Winicov, Philadelphia, for appellants at 159 and 679PHL84. Michael S. Durst, Philadelphia, for appellant at 170PHL84. Brian D. Rosenthal, Philadelphia, for appellants at 284 and 283PHL84. Neil Hoffman, Philadelphia, for appellant at 424PHL84. Gary A. Devito, Philadelphia, for appellant at 509PHL84. Ronald A. Kovler, Philadelphia, for appellant at 571PHL84. Allen L. Feingold, Philadelphia, for appellant at 769PHL84. David M. McCormick, Philadelphia, for appellees. Before ROWLEY, WATKINS and GEISZ, JJ.[*] Reargument Denied August 5, 1985, in No. 566 (Lawlor). OPINION OF THE COURT ROWLEY, Judge: The issue presented in each of the fifteen above-captioned appeals is whether an uninsured owner-operator of a motor vehicle who sustains injuries in an accident with another allegedly negligent uninsured motorist[1] may recover uninsured *564 motorist benefits from an assigned claims plan insurer under the Pennsylvania No-Fault Motor Vehicle Insurance Act (No-Fault Act). 40 P.S. §§ 1009.101-1009.701. We have carefully reviewed the provisions and underlying purposes of the No-Fault and Uninsured Motorist Acts, recent decisions by our courts, and the arguments advanced by the parties to these appeals. We conclude that an owner of a motor vehicle who fails to obtain insurance in accordance with the No-Fault Act, and then sustains injuries while operating that vehicle on Pennsylvania's highways, is not entitled to recover uninsured motorist benefits from an assigned claims plan insurer. The following essential facts are common to the cases that have been consolidated for decision: 1) each appellant was the owner of a motor vehicle and had failed to provide insurance covering that motor vehicle as required by the No-Fault Act for its legal operation on the public highways of this Commonwealth, 40 P.S. § 1009.104(a); 2) each appellant operated his or her motor vehicle on the highways of this Commonwealth despite the fact that no security existed covering that vehicle as required by law; 3) while operating his or her motor vehicle, each appellant was involved in an accident with another motorist in which the appellant sustained injuries; 4) the other motorist involved in each accident was either uninsured or the motorist fled the scene immediately thereafter and was not identified. Under these circumstances, the injuries sustained by the appellants were not covered by any applicable motor vehicle insurance policy providing for payment of basic loss benefits under the No-Fault Act. Thus, in each case, the appellant submitted a claim for basic loss and uninsured motorist benefits to the Pennsylvania Assigned Claims Plan pursuant to 40 P.S. § 1009.108 of the No-Fault Act. Under the Plan, each claim was assigned to a participating insurer and in many cases, the assigned insurer paid the applicable *565 No-Fault basic loss benefits to the appellant.[2] However, in each case, the appellant's claim for uninsured motorist benefits was denied and the appellant then filed an action against the assigned insurer seeking recovery of uninsured motorist benefits.[3] In each case, the appellant asserted that he or she was not at fault for the accident and that the assigned insurer was required to pay uninsured motorist benefits on the basis of our Supreme Court's decision in Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). Although the procedural posture varied, in each case, the trial court either: 1) sustained preliminary objections filed by the insurer and dismissed the appellant's complaint seeking uninsured motorist benefits; or 2) granted a motion for summary judgment in favor of *566 the insurer on the issue of uninsured motorist benefits.[4] These appeals followed. Appellants' sole contention on appeal is that they are entitled to recover uninsured motorist benefits from the assigned claims plan insurer despite their status as uninsured owner-operators of motor vehicles at the time of the accidents which resulted in their injuries. We find that such a result is neither mandated by the express language of the No-Fault Act, nor was it intended by the legislature. The avowed purpose of the legislature in enacting the No-Fault Act was twofold: to establish a "statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims" and to establish that system "at a reasonable cost to the purchaser of insurance". 40 P.S. § 1009.102. Basic loss benefits compensate the victim for net loss sustained by him or her, exclusive of damage to property.[5] In addition *567 to providing for basic loss benefits in accordance with the No-Fault Act, every automobile policy issued in Pennsylvania must include uninsured motorist coverage pursuant to the provisions of the Uninsured Motorist Act, 40 P.S. § 2000, and Insurance Department Regulations, 31 Pa.Code § 66.1-104(a) Uninsured motorist benefits provide protection for insured persons who are injured by owners or operators of uninsured motor vehicles. 40 P.S. § 2000(a).[6] In situations where there is no insurance applicable to a motor vehicle accident, an accident victim may obtain basic loss benefits through the assigned claims plan, set forth in Section 108 of the No-Fault Act. 40 P.S. § 1009.108. Under the Plan, claims for No-Fault benefits are assigned to participating insurers[7] and thereafter "[t]he assignee has *568 rights and obligations as if he had issued a policy of basic loss insurance . . ." 40 P.S. § 1009.108(b). The Plan does not expressly provide for recovery of uninsured motorist benefits. However, the right to recover such benefits under the Plan has been recognized under certain limited circumstances. In Tubner v. State Farm Mutual Automobile Insurance Co., supra, a passenger in an uninsured automobile sustained fatal injuries in a motor vehicle accident. The victim did not own a motor vehicle and there was no other applicable insurance coverage. The designated insurer under the assigned claims plan paid basic loss benefits but refused payment of uninsured motorist benefits, and the decedent's estate then brought suit against the assigned insurer to recover those benefits. The Supreme Court held that under these circumstances an accident victim who is a passenger in an uninsured automobile is entitled to recover uninsured motorist benefits from the assigned claims plan insurer. The Court stated: Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, [31 Pa.Code § 66.1-104(2)] the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the regulation lawfully promulgated thereunder. Any other interpretation of appellee's statutory rights under the assigned claims plan would frustrate the Legislature's intention, expressed in Section 102 of this remedial legislation, to provide maximum feasible restoration to all accident victims in a comprehensive, fair, and uniform manner. Adoption of State Farm's view would have the discriminatory effect of affording recovery of general damages to all motor vehicle accident victims injured by uninsured motorists except those covered by the assigned claims plan, and thus would perpetuate many of the harsh results of the outdated fault system by denying general *569 damages to innocent victims of irresponsible drivers. (Footnotes omitted.) Id., 496 Pa. at 219-20, 436 A.2d at 623. Appellants herein urge that they are entitled to payment of uninsured motorist benefits under the holding in Tubner because they are "innocent victims" who did not cause the accidents resulting in their injuries. Appellants assert that the No-Fault Act was intended to provide maximum feasible restoration to all accident victims, and neither the terms of the Act or the language in Tubner make a distinction between accident victims who have obtained insurance and those who have not. On the contrary, we find that affording uninsured motorist coverage to uninsured owner-operators of motor vehicles under the assigned claims plan would be in contravention of both the provisions of the No-Fault Act and the rationale underlying the decision in Tubner. Section 104(a) of the No-Fault Act requires that every owner of a motor vehicle registered or operated in Pennsylvania must provide security covering that vehicle. 40 P.S. § 1009.104(a). Section 601 of the No-Fault Act provides: Any owner of a passenger vehicle, for which the existence of security for basic loss benefits and tort liability insurance is a requirement for its legal operation upon the public highways of this State, under either section 104 or 110 of this act or sections 418, 419 or 420, act of April 29, 1959 (P.L. 58, No. 32), known as the Vehicle Code, who operates such motor vehicle or permits it to be operated upon a public highway in this State without having in full force and effect security complying with the terms of section 104 is guilty of a misdemeanor. And any other person who operates such a motor vehicle upon a public highway in this Commonwealth with the knowledge that the owner does not have such security in full force and effect is guilty of a misdemeanor. And each person convicted of a misdemeanor under the terms of this section may be fined not less than one hundred dollars ($100) or more than five hundred dollars ($500) or *570 may be imprisoned for not more than six months or both. (Footnotes omitted.) 40 P.S. § 1009.601. Tubner involved a passenger in an uninsured motor vehicle who did not even own an automobile and, thus, was not required to obtain automobile insurance. The holding in Tubner is consistent with the legislature's intent to provide maximum feasible restoration to all individuals injured on Pennsylvania's highways through a comprehensive and fair system. 40 P.S. § 1009.108(b); Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. at 218, 436 A.2d at 622. Refusing uninsured motorist coverage under the assigned claims plan to the victim in Tubner would penalize that person because he happened to have been injured by a financially irresponsible driver. Moreover, affording uninsured motorist coverage to an injured passenger who does not own an automobile is in accordance with the terms of the Uninsured Motorist Act, which was designed to give monetary protection to persons who, while lawfully traveling on Pennsylvania's highways, suffer injuries through the negligent use of those highways by others. 40 P.S. § 2000; Boyle v. State Farm Mutual Automobile Insurance Company, 310 Pa. Super. 10, 456 A.2d 156 (1983). These same considerations, however, do not support extending the Tubner decision to afford uninsured motorist protection under the assigned claims plan to appellants herein. Although appellants may not have been "at fault" in driving their vehicles or in causing the accidents which resulted in their injuries, in each case, the appellant was operating his or her vehicle in violation of the express provisions of the No-Fault Act. Unlike the decedent in Tubner, appellants are financially irresponsible drivers who seek to recover uninsured motorist benefits under the terms of a statute with which they carelessly failed to comply. Hence, the holding in Tubner does not control the outcome of the cases now before us. Moreover, our review of other provisions of the No-Fault Act demonstrates that the legislature intended to differentiate between the rights afforded *571 to injured, uninsured owner-operators and the rights afforded to other accident victims.[8] Although the No-Fault Act partially abolished tort liability for injuries arising out of the maintenance or use of a motor vehicle up to a statutorily mandated threshold, 40 P.S. § 1009.301, the Act specifically provides that the owner of a motor vehicle involved in an accident shall remain liable if that vehicle was not properly insured. 40 P.S. § 1009.301(a)(1). More importantly, Section 501 of the No-Fault Act provides: The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator's license. 40 P.S. § 1009.501. In Harleysville Mutual Insurance Company v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982), this Court held that *572 an insurer who has paid basic loss benefits to an uninsured owner-occupant of a motor vehicle pursuant to the assigned claims plan may recover those payments in an action filed against the owner under Section 501. The Court observed that Section 501 clearly directs that an uninsured owner bears the ultimate risk of loss when an uninsured motorist claim is submitted under the assigned claims plan. The Court stated: While such an interpretation of Section 501 may appear, at first blush, to take away benefits granted by another part of the Act, we are constrained to conclude that the only construction consistent with the intended purpose of the no-fault scheme is one which uniformly places the ultimate risk of loss upon the uninsured owner. The effect of a contrary interpretation would be to permit the owner/operator of an uninsured motor vehicle to benefit permanently from a law whose requirements he or she deliberately chose to disobey. * * * * * * It would be incongruous to allow an uninsured owner who also happens to be an occupant of his or her uninsured vehicle to receive permanently those benefits which insured owners attain by purchasing the insurance coverage mandated by the statute. Similarly, it is nonsensical to allow an uninsured owner/occupant to escape liability which has been unequivocally established for uninsured owners and to which he or she would be required to respond if the occupant were another person. Id., 302 Pa.Superior Ct. at 538, 449 A.2d at 46-47. Therefore, although an uninsured owner-operator would be entitled to recover basic loss benefits under the assigned claims plan, the ultimate risk of loss would remain with the uninsured owner. The rationale behind this rule is to provide prompt and comprehensive medical treatment in order to effectuate rehabilitation and a timely return to society as a productive member; only then would a determination *573 of ultimate liability be made. Id., 302 Pa.Superior Ct. at 538-39, 449 A.2d at 47.[9] The language of Section 501, and the construction placed on that section by our court, support our conclusion that an owner of a motor vehicle bears the risk of loss which is normally covered by uninsured motorist protection when he chooses to drive that vehicle without bothering to obtain the necessary insurance. There is no rationale for requiring the assigned insurer to pay uninsured motorist benefits in the first instance under these circumstances. Unlike basic loss benefits, uninsured motorist benefits are not necessarily related to medical treatment and rehabilitation. Since passage of the No-Fault Act, uninsured motorist benefits are sought to compensate an accident victim for those damages suffered which are not covered by No-Fault benefits, for example, pain and suffering. See Tucci v. State *574 Farm Insurance Company, 503 Pa. 447, 469 A.2d 1025 (1983); Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 265, 411 A.2d 516 (1979). Uninsured motorist benefits were created to protect innocent insured victims from negligent motorists who drive their vehicles without obtaining insurance. Under Tubner that protection has been extended to innocent passengers and pedestrians who are injured in accidents with uninsured motorists through the assigned claims plan. We cannot perceive that in enacting the No-Fault Act the legislature intended to extend uninsured motorist protection to the very class of persons whose financially irresponsible conduct was the cause for creation of statutorily mandated uninsured motorist coverage. Uninsured owner-operators of motor vehicles should not be guaranteed the same benefits afforded to motorists who obtain the mandated insurance coverage. If such protection is made available to uninsured owner-operators who do not pay premiums, insurers' rising costs would necessitate increased insurance rates to the disadvantage of responsible drivers who purchase insurance policies. See Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 156, 460 A.2d 808, 813 (1983). Such a holding would discourage motor vehicle owners from insuring their vehicles and would run contrary to the legislature's intent to create a uniform, fair and low cost system of insurance. Appellants urge that they are entitled to such coverage because they were not negligent in the operation of their vehicles. Some appellants rely on language in Modesta v. South Eastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), wherein our Supreme Court held that uninsured occupants of self-insured vehicles are entitled to receive uninsured motorist benefits. The relevant portion of the opinion reads as follows: [U]ntil today there were two groups of individuals who received no uninsured motorist protection: uninsured motorists *575 who caused accidents, and uninsured occupants of self-insured vehicles. It is reasonable to deny uninsured motorist coverage to the first group, since they have not only chosen not to comply with the mandatory insurance law, but have also caused the accidents which resulted in their injuries; . . . Id., 503 Pa. at 443, 469 A.2d at 1022-1023. Insofar as the quoted language implies that uninsured motorist protection is available to uninsured owner-operators of motor vehicles who do not cause the accidents resulting in their injuries, it is dicta, since that question was not before the court in Modesta. Moreover, we hold that a finding of fault on the part of an uninsured owner-operator is not a prerequisite to denying uninsured motorist benefits under the assigned claims plan. Appellants may not have caused the accidents resulting in their injuries, but that does not excuse the fact that they operated their vehicles on Pennsylvania's highways with the knowledge that they had not obtained insurance. Under these circumstances, it is clear that appellants bore the risk that they might suffer injuries for which they had no insurance protection. Any other holding would place a burden on insurers that was not intended by the legislature and would allow appellants to profit despite their violation of the Legislative mandate. Accordingly, the Orders sustaining preliminary objections and dismissing appellants' complaints are affirmed. The Judgments entered in favor of the insurers following the grant of motions for Summary Judgment are likewise affirmed. NOTES [*] Judge John A. Geisz, Senior Judge of the court of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation. [1] The question presented is phrased as if every case involved an accident between two uninsured motorists. However, in at least four cases, (Appeal Numbers: 566 Philadelphia, 1984; 846 Philadelphia, 1984; 3254 Philadelphia, 1983; 3199 Philadelphia, 1983), the record reveals that appellants were involved in accidents with another allegedly negligent motorist who immediately fled the scene. Thus, although it is impossible to determine whether the other motorist was insured, the practical result is that no basic loss insurance applies to the injury resulting from the accident. In such a case, the question presented is the same, that is, whether the injured uninsured motorist is entitled to recover uninsured motorist benefits under the assigned claims plan. [2] In ten cases, appellant's claim for basic loss benefits was paid by the assigned insurer (Appeal Numbers: 3009 Philadelphia, 1983; 2199 Philadelphia, 1983; 3254 Philadelphia, 1983; 3394 Philadelphia, 1983; 5401 Philadelphia, 1983; 170 Philadelphia, 1984; 283 Philadelphia, 1984; 284 Philadelphia, 1984; 509 Philadelphia, 1984; and 846 Philadelphia, 1984). In four other cases, it is unclear whether basic loss benefits were paid to appellants (Appeal Numbers: 159 Philadelphia, 1984; 571 Philadelphia, 1984; 679 Philadelphia, 1984; and 769 Philadelphia, 1984). In one case, appellant withdrew his claim for basic loss benefits (Appeal Number: 566 Philadelphia, 1984). [3] Although each case presents the same question, there are a number of procedural differences among them. Appellants at Appeal numbers 3394 Philadelphia, 1983 and 566 Philadelphia, 1984 initiated actions at the arbitration level which resulted in awards in their favor of $10,000 and $15,000, respectively, against the designated insurer. In both cases, the insurer appealed to the Court of Common Pleas. At the trial court level, appellants' claims for uninsured motorist benefits were eventually dismissed. In the case at Appeal number 3009 Philadelphia, 1983, appellant also instituted suit against the other uninsured motorist involved in the accident which resulted in a judgment in favor of appellant in the amount of $17,000. That judgment remained unsatisfied at the time briefs were submitted to this Court. In the case at Appeal number 679 Philadelphia, 1984, appellant's suit against the other uninsured motorist was still pending at the time that briefs were submitted to this Court. [4] In the cases at Appeal numbers 3254 Philadelphia, 1983, 3394 Philadelphia, 1983, 170 Philadelphia, 1984 and 283 Philadelphia, 1984, the assigned insurer-defendant counterclaimed against appellants for reimbursement of basic loss benefits already paid pursuant to 40 P.S. § 1009.501 of the No-Fault Act. In each of these cases, the trial court not only granted the insurer's motion for summary judgment on the issue of uninsured motorist benefits, but also entered judgment in favor of the insurer on the counterclaim. The only issue raised on appeal from these judgments, however, is whether appellants are entitled to uninsured motorist benefits. Similarly, in the cases at Appeal numbers 5401 Philadelphia, 1983, 509 Philadelphia, 1984, and 846 Philadelphia, 1984, the assigned insurer-defendant counterclaimed against appellants for reimbursement of basic loss benefits already tendered. However, the trial court's orders in those cases resolved only the issue regarding appellants' entitlement to uninsured motorist benefits. [5] Section 103 of the No-Fault Act defines basic loss benefits as follows: `Basic loss benefits' means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle. 40 P.S. § 1009.103. Basic loss benefits include allowable expenses (as defined in Section 103), work loss, replacement services losses and survivors losses. 40 P.S. § 1009.202. [6] The Uninsured Motorist Act provides, in pertinent part: (a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly . . . under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. 40 P.S. § 2000(a). The No-Fault Act was enacted eleven years after passage of the Uninsured Motorist Act. There is no explicit reference to the Uninsured Motorist Act in the No-Fault Act. Nonetheless, both statutes deal with compensation for losses from injuries occurring in connection with motor vehicles and the obligation of motor vehicle owners to obtain insurance, as well as the obligations of motor vehicle insurers who issue policies in Pennsylvania. Thus, if possible, the two Acts are to be construed together. 1 Pa.Cons.Stat. § 1932. See Tucci v. State Farm Insurance Company, 503 Pa. 447, 469 A.2d 1025 (1983), for a discussion of the interrelationship between the two Acts. [7] The participating insurers in the Plan consist of all insurance companies who provide basic loss insurance in Pennsylvania. 40 P.S. § 1009.108(b). [8] In Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978), our court held that an uninsured owner of a motor vehicle who parked her vehicle and was struck while walking across an intersection was entitled to recover basic loss benefits from the insurer of the vehicle which struck her. See also, Singer v. Nationwide Insurance Company, 274 Pa.Super. 359, 418 A.2d 446 (1980) [uninsured owner of motor vehicle who was injured while a passenger in an insured automobile was entitled to recover basic loss benefits from the automobile's insurer under 40 P.S. § 1009.204(a)(3)]. Some of the appellants herein rely on Hayes and Singer to the effect that the failure to obtain No-Fault insurance coverage does not preclude the recovery of benefits under the No-Fault Act. These cases are easily distinguishable from the instant cases. Hayes and Singer involved situations where there was an insurance policy applicable to cover the losses sustained by the uninsured motorist. Claims were made under the policy for basic loss benefits rather than uninsured motorist benefits. Finally, plaintiffs in Hayes and Singer were not operating their vehicles at the time of the accidents that resulted in their injuries. [9] Nevertheless, in Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 460 A.2d 808 (1983), this Court held that the estate of an uninsured deceased owner-operator is not entitled to recover basic loss benefits from an assigned claims plan insurer. The Ostronic court held that the legislature did not intend that the assigned risk obligor would be required to pay benefits to the estate of an uninsured deceased owner-driver, which benefits would then be immediately recoverable by the obligor. The Court observed that the rationale for requiring payment of basic loss benefits to a living uninsured motorist, enunciated in Harleysville Mutual Insurance Company v. Schuck, supra, did not exist in a situation where the uninsured owner is deceased. The Court stated: It is evident that the Appellants urge a position which would enable the estates of irresponsible vehicle owners to profit through wrong-doing by the decedent. This result could never have been intended by our legislators in the passage of the No-fault Act. The situation of a deceased uninsured owner is obviously different from that of a living one with regard to the question of whether an initial payment of benefits should be made by the assigned risk insurer. * * * * * * In the situation of a deceased victim, the justification of speeding treatment and rehabilitation simply does not apply. We can perceive no other legislative intent in the Act to support a rule requiring payment to an uninsured deceased owner's estate in such a case, with undeserved enrichment for the estate and unrecoverable losses by the assigned risk insurer being the probable results in such circumstances. (Footnotes omitted.) Id., 314 Pa.Superior Ct. at 156-157, 460 A.2d at 813-814.

UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 97-31038 BICKHAM LINCOLN-MERCURY INCORPORATED, Plaintiff-Appellant, VERSUS UNITED STATES OF AMERICA, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana February 26, 1999 Before DeMOSS, PARKER and DENNIS, Circuit Judges. DENNIS, Circuit Judge: Bickham Lincoln-Mercury, Inc. (Bickham) was prosecuted for failure to file Form 8300 with the Internal Revenue Service following two transactions involving the receipt of more than $10,000. As part of a plea agreement, Bickham pleaded guilty and paid a $5,000 criminal fine and the government agreed that it would not initiate further prosecutions against Bickham. Approximately a year later, the government imposed a civil penalty of $27,000 based upon the same conduct which resulted in the criminal penalt y. The issues on appeal are whether imposition of the civil penalty following the criminal fine violated the plea agreement and constituted double jeopardy under the Fifth Amendment. Factual and Procedural Background Bickham owned and operated a Lincoln-Mercury dealership in Lafayette, Louisiana. Section 6050I(f)(1)(A) of the Internal Revenue Code requires the submission of Form 8300 in connection 1 with a transaction involving the receipt of more than $10,000. Bickham engaged in two transactions which resulted in the receipt of approximately $40,580 but neither transaction was reported to the Internal Revenue Service (IRS) via Form 8300. Despite Bickham’s failure to file Form 8300, the IRS identified the unreported transactions as part of an investigation targeting car dealerships to uncover Section 6050I violations. In March 1993, the government filed a bill of information charging Bickham with two counts of failure to file Form 8300. The evidence indicates that Bickham deliberately withheld this data from the IRS. For example, one purchaser approached Bickham after he was rebuffed by another dealership when he suggested that the salesman conceal the amount of cash paid for a particular car. After the purchaser recounted the incident to a Bickham employee, the employee contacted the other dealership and arranged to have the car transferred to Bickham’s facility where the sale was completed without filing Form 8300. The plea agreement in the criminal case provided that Bickham would plead guilty and pay a fine of $5,000. In return, the government would “not [] further prosecute defendant . . . for the willful failure to timely file a Form 8300.” In September 1993, the district court allowed Bickham to change its plea to nolo contendere since an admission of guilt would result in the loss of the franchise. The plea of nolo contendere was subject to the same conditions as the guilty plea. The IRS proposed a $27,000 civil penalty in December 1994 based upon Bickham’s failure to file Form 8300. Bickham asked the district court to deny this request because a civil penalty would constitute a violation of the plea agreement and amount to double jeopardy. The district court denied Bickham’s motion. Bickham paid the civil penalty and filed an administrative claim for a refund. When the refund claim was denied, Bickham initiated a refund suit. Both parties filed cross motions for summary judgment. The district court granted the government’s motion for summary judgment in the refund suit and Bickham timely filed an appeal. We affirm the district court’s decision. Standard of Review A district court’s determination of the terms of a plea agreement is a factual question which 2 is reviewed for clear error. United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995), cert. denied, 117 S. Ct. 272 (1996). In this circuit, deciding whether the government violated a plea agreement is a question of law subject to de novo review. United States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996). The party asserting a breach of a plea agreement must prove the underlying facts establishing a breach by a preponderance of the evidence. United States v. Hernandez, 17 F.3d 78, 81 (5th Cir. 1994). We review a district court’s grant of summary judgment de novo, applying the same standard as the district court. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Questions of fact are viewed in the light most favorable to the nonmovant while questions of law are reviewed de novo. Id. Discussion In 1984, Congress passed Internal Revenue Code Section 6050I as part of the Deficit Reduction Act. United States v. Gertner, 873 F. Supp. 729, 731 (D. Mass.), aff’d, 65 F.3d 963 (1st Cir. 1995). Section 6050I(f)(1) requires a person engaged in a trade or business who receives more than $10,000 in cash to disclose the purchaser’s name, address and tax identification number on Form 8300, along with the date and nature of the transaction. The purpose of the reporting requirement is to detect money laundering schemes. Id. According to Section 6050I(f)(2), a person who violates Section 6050I(f)(1) “shall be subject to the same civil and criminal sanctions applicable to a person which fails to file or completes a false or incorrect return under this section.” Section 7203 of the Internal Revenue Code outlines the criminal penalties for the willful failure to file Form 8300: a maximum fine of $100,000 for a corporation plus the costs of prosecution. 26 U.S.C. § 7203. In addition to criminal penalties, there are civil penalties for failure to file Form 8300. Withholding required information from the IRS because of an “intentional disregard of the filing requirement” can lead to a civil penalty which is the greater of either $25,000 3 or the amount of cash received in the unreported transaction. 26 U.S.C. § 6721(e)(2)(C). Based upon Section 6721, the IRS assessed a civil penalty of $27,000 against Bickham. Bickham argues that this civil penalty violated the plea agreement because it stated that Bickham would not be subject to “further prosecut[ion] . . . for the willful failure to timely file a Form 8300.” To assess whether a plea agreement has been violated, this court considers “‘whether the government’s conduct is consistent with the parties’ reasonable understanding of the agreement.’” United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993) (citation omitted). Plea agreements are contractual in nature and should be interpreted according to general principles of contract law. Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir.), cert. denied, 116 S. Ct. 1858 (1996) (citation omitted). We begin our analysis with the language of the plea agreement. The plea agreement stated that Bickham would not be subject to further prosecution. Prosecution typically involves “proceed[ing] against a person criminally,” Black’s Law Dictionary 1221 (6th ed. 1990), since it is: part of the terminology of the criminal law, describing the means by which the law is to be enforced, and associated in popular thought with laws for the prevention and punishment of crime. In this sense, the word refers to a criminal action or proceeding, and ‘prosecution’ has been said to be synonymous with ‘criminal action.’ 22 C.J.S. Criminal Law § 5 (1989). On the other hand, an action represents a: proceeding[] of a civil nature, and in this sense, as opposed to ‘prosecution,’ it includes the modes allowed to individuals for enforcement of civil rights or redress of private wrongs, excluding proceedings instituted by the government for the punishment of offenses, and, accordingly, is inapplicable to a prosecution for crime. 1A C.J.S. Actions § 3b (1985). Case law often distinguishes between criminal prosecutions and civil actions. See Ragan v. Commissioner of Internal Revenue, 135 F.3d 329, 337 (5th Cir.), cert. denied, 119 S. Ct. 176 (1998) (stating that case was part of complex situation involving several civil suits and a criminal prosecution); Bodell v. Walbrook Ins. Co., 119 F.3d 1411, 1420 (9th Cir. 1997) (commenting that unlike civil actions, only federal sovereign can bring criminal prosecutions); United States v. Balsys, 119 F.3d 122, 126 (2d Cir. 1997), rev’d for other reasons, 118 S. Ct. 2218 (1998) (stating that deportation proceeding is civil action and not criminal prosecution); United States v. Bongiorno, 106 4 F.3d 1027, 1034 (1st Cir. 1997) (noting Child Support Recovery Act contemplates criminal prosecutions not civil actions); United States v. Thomas, 709 F.2d 968, 972 (5th Cir. 1983) (noting higher standard of proof and greater procedural protection in criminal prosecution as opposed to civil action). Similar distinctions between criminal prosecutions and civil actions are found in statutory law. See 28 U.S.C. § 1442(a) which states that “a civil action or a criminal prosecution commenced in a State court . . . may be removed . . .” to federal court. The district court was not clearly erroneous in determining that civil penalties were not prohibited by the plea agreement. The plea agreement refers to Section 7203, which imposes criminal liability on any person who wilfully fails to file returns, supply information or pay taxes. However, the plea agreement does not state that Bickham is immune from civil liability pursuant to Section 6721. In fact, there is no mention of civil liability in the plea agreement. Thus, it is reasonable to conclude that both parties understood civil liability was not encompassed by the plea agreement since they could have included specific language to this effect had they so desired. Given the agreement’s silence regarding civil liability, we are hesitant to interpret it in a manner which would add terms that were not agreed upon by the parties. The lack of any discussion of civil liability, plus the fact that the word prosecute typically refers to criminal proceedings, leads us to conclude that civil liability was not prohibited by the plea agreement. Therefore, the assessment of a civil penalty did not violate the agreement. The plea agreement also states that it provides no protection “from prosecution from perjury . . . false declarations or false statements . . . or obstruction of justice.” Based upon this clause, Bickham argues that prosecution on any other grounds is prohibited, including the assessment of civil penalties. We disagree with Bickham’s interpretation of this clause. The exceptions listed are all criminal acts and the agreement states that Bickham can be prosecuted as a result of these acts. Using the term prosecution in this context reiterates our finding that prosecution signifies a criminal proceeding. In addition, the issue of civil liability is not addressed by this clause. Given the use of the word prosecution in referring to three criminal acts and the fact that the clause does not mention 5 civil liability, we find that the government’s assessment of a civil penalty did not violate the plea agreement. Bickham’s final argument is that the punitive nature of the civil penalty amounts to punishment in violation of the double jeopardy clause. The Fifth Amendment states that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb . . . .” Congress may impose both a criminal and a civil sanction for the same act without violating the double jeopardy clause. Helvering v. Mitchell, 303 U.S. 391, 399 (1938). “Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction” and courts should consider whether the legislature intended to establish a civil penalty. Hudson v. United States, 118 S. Ct. 488, 493 (1997). While the intent of the legislature can be overridden if “the statutory scheme was so punitive either in purpose or effect” as to render it criminal despite Congress’ intent to the contrary, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (citations and internal quotations omitted). The Supreme Court has “long recognized that the Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could, in common parlance, be described as punishment.” Id. (citations and internal quotations omitted). In fact, the double jeopardy clause “protects only against the imposition of multiple criminal punishments for the same offense . . . and then only when such occurs in successive proceedings . . . .” Id. (citations omitted) (emphasis added). Sanctions in a civil tax case are not considered criminal penalties. Helvering, 303 U.S. at 402. The IRS calculated Bickham’s civil penalty according to Section 6721. At the time Bickham committed its first offense for failure to file in October 1990, Section 6721(e) stated that the penalty was either ten percent of the aggregate amount of the items required to be reported or $2,000. When the second offense occurred in February 1991, the penalty under Section 6721(e) had increased to the greater of $25,000 or the amount of cash due to be reported, up to $100,000. Bi ckham was assessed $2,000 for its first offense and $25,000 for its second offense, bringing the total civil penalty 6 to $27,000. This civil penalty is analogous to the fraud penalty at issue in Helvering. In Helvering, the Court reasoned that the civil fraud penalty served “primarily as a safeguard for the protection of the revenue and to reimburse the Go vernment for the heavy expense of investigation and the loss resulting from the taxpayer’s fraud.” Helvering, 303 U.S. at 401. Section 6271 also permits the government to assess civil penalties to offset the cost of investigating persons who conceal income from the IRS. The government incurred at least $17,000 in investigative and prosecutorial expenses in bringing criminal proceedings against Bickham. As the district court noted, t he government is entitled to rough remedial justice without being deemed to have imposed a second punishment. In addition, a remedy does not lose the quality of a civil action because more than the precise amount of actual damages is recovered. United States ex. rel. Marcus v. Hess, 317 U.S. 537, 550 (1943). Thus, the civil penalty of $27,000 was not so disproportionate that it transformed the civil penalty into a criminal sanction. The government raises a separate issue for our consideration: whether the denial of Bickham’s motion to enforce the plea agreement was a final judgment for collateral estoppel purposes. If the denial were a final judgment, Bickham cannot bring a second suit. See Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998) (stating that when issue of ultimate fact has been determined by a final judgment, the issue cannot be litigated again between the two parties). Because we find that the plea agreement was not violated, we do not address the issue of whether Bickham’s relitigation was barred by collateral estoppel. Conclusion For the foregoing reasons, the district court’s judgment is AFFIRMED. 7 

918 N.E.2d 420 (2009) Bill McCAUSLAND, Appellant-Plaintiff, v. WALTER USA, INC., Appellee-Defendant. No. 49A05-0906-CV-333. Court of Appeals of Indiana. December 22, 2009. *422 Ronald E. Weldy, Weldy & Associates, Indianapolis, IN, Attorneys for Appellant. Tareen Zafrullah, Baker & Daniels LLP, Indianapolis, IN, Attorney for Appellee. OPINION MATHIAS, Judge. After Bill McCausland's ("McCausland") employment terminated with Walter USA, Inc. ("Walter"), McCausland filed a complaint against Walter alleging that Walter failed to pay commission wages as required under the Wage Claims Statute, and failed to timely pay vacation, commission, and bonus wages under the Wage Payment Statute. The parties filed cross-motions for summary judgment. The Marion Superior Court entered summary judgment in favor of Walter and dismissed McCausland's claims with prejudice. McCausland appeals and raises several issues, which we consolidate and restate as whether the trial court erred when it granted Walter's motion for summary judgment. Concluding that Walter was entitled to summary judgment as a matter of law, we affirm. Facts and Procedural History McCausland was employed as a district sales manager for Walter, and was primarily responsible for managing salespeople and assisting them in making sales for the company. During his last three years of employment, McCausland received compensation in the form of salary, commissions, *423 and bonuses. McCausland's monthly commissions were dependent on the net sales for his district. McCausland received a sales achievement bonus and a gross profit bonus in 2006, and those bonuses were earned as a result of sales made in 2005. In 2007, McCausland received a cost bonus because the actual costs incurred for his district in 2006 were less than the budgeted costs. McCausland's employment was terminated on April 1, 2007, because his manager believed that McCausland was "poaching" sales that belonged to other districts. On September 17, 2007, McCausland filed a complaint against Walter alleging that Walter failed to timely pay his sales commissions, bonuses, and vacation pay throughout the course of his employment, and therefore, he was entitled to damages under the Wage Payment Statute. McCausland also alleged that Walter failed to pay him earned sales commissions following his termination, and therefore, he was entitled to damages under the Wage Claims Statute. In total, McCausland alleged that he was entitled to $106.30 in unpaid sales commissions, and $64,773.74 in liquidated damages. On August 14, 2008, McCausland filed a motion for summary judgment. Shortly thereafter, Walter filed a cross-motion for summary judgment. Walter argued that McCausland's sales commissions, bonuses, and vacation pay were not "wages" for the purposes of the Ten-Day Rule under the Wage Payment Statute. Concerning the claim for unpaid commissions, Walter argued that the amount was not subject to the Wage Claims Statute. However, Walter also claimed it did not owe the $106.30 at issue because McCausland owed Walter $5,285 for Indianapolis Colts football tickets expensed to the company by McCausland, but not returned after his termination. On February 25, 2009, the trial court issued an order granting Walter's cross-motion for summary judgment, and denying McCausland's motion. The court therefore entered summary judgment in favor of Walter, and stated in the order that "[a]ll claims in this action are dismissed with prejudice." On March 27, 2009, McCausland filed a motion to correct error,[1] which was deemed denied by operation of Trial Rule 53.3. McCausland now appeals. Additional facts will be provided as necessary. Standard of Review The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Bushong v. Williamson, 790 N.E.2d 467 (Ind.2003). On appeal, our standard of review is the same as that of the trial court. Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Olds v. Noel, 857 N.E.2d 1041 (Ind.Ct.App. 2006). "All inferences from the designated evidence are drawn in favor of the nonmoving party." Hartman v. Keri, 883 N.E.2d 774, 777 (Ind.2008). Finally, the fact the parties made cross-motions for *424 summary judgment does not alter our standard of review. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind.Ct.App.2006), trans. denied. I. McCausland's Wage Payment Claims The Wage Payment Statute governs both the frequency and amount an employer must pay its employee. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007); Ind.Code §§ 22-2-5-1 to 22-2-5-3. Indiana Code section 22-2-5-1(a) (2004) provides that "[e]very person, firm, corporation, limited liability company, or association, their trustees, lessees, or receivers appointed by any court, doing business in Indiana, shall pay each employee at least semimonthly or biweekly, if requested, the amount due the employee." Indiana Code section 22-2-5-1(b) (2004) provides that "[p]ayment shall be made for all wages earned to a date not more than ten (10) days prior to the date of payment." "An employer who fails to make payment of wages to any employee as provided in Indiana Code section 22-2-5-1 is subject to liquidated damages and attorney fees;[2] I.C. § 22-2-5-2." Naugle, 864 N.E.2d at 1063. Our resolution of the issues presented in this appeal turns on the question of whether McCausland's commissions, bonuses, and vacation pay are "wages" as that term is used in the Wage Payment Statute. Indiana Code section 22-2-9-1(b) defines "wages" as, "all amounts at which the labor or service rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, or commission basis, or in any other method of calculating such amount."[3] The name given to the method of compensation is not controlling. Gress v. Fabcon, Inc., 826 N.E.2d 1, 3 (Ind.Ct.App.2005) (citing Gurnik v. Lee, 587 N.E.2d 706, 709 (Ind.Ct. App.1992)). "Rather, we will consider the substance of the compensation to determine whether it is a wage, and therefore subject to the Wage Payment Statute." Id. (citing Gurnik, 587 N.E.2d at 709). "We have recognized that wages are `something akin to the wages paid on a regular periodic basis for regular work done by the employee[.]'" Id. (citing Wank v. St. Francis Coll, 740 N.E.2d 908, 912 (Ind.Ct.App.2000)). "In other words, if compensation is not linked to the amount of work done by the employee or if the compensation is based on the financial success of the employer, it is not a `wage.'" Id. (citing Pyle v. Nat'l Wine & Spirits Corp., 637 N.E.2d 1298, 1300 (Ind.Ct.App. 1994)). Moreover, because the Wage Payment Statute imposes a penalty when wages are not paid within ten days of the date they are "earned," it is not practical to apply the statute to payments that cannot be calculated within ten days after being earned. See Highhouse v. Midwest Orthopedic Inst., 807 N.E.2d 737, 740 (Ind. 2004). A. McCausland's Commissions McCausland argues that his commissions are "wages" because the commissions *425 "were an integral part of [his] regular compensation." Appellant's Br. at 14. He also claims that "given that the commissions are based upon sales, they are unquestionably performance based compensation. Wages earned based upon performance are `present' compensation." Id. (citing Williams v. Riverside Cmty. Corr. Corp., 846 N.E.2d 738, 744 (Ind.Ct.App. 2006)). In response, Walter argues that the commissions were not "wages" because "the amount of compensation depended on contingencies such as the financial success of the company and depended on other employees' efforts" and Walter could not reasonably calculate the commissions within the required ten days. Appellee's Br. at 19. In several cases, our court has held that commissions are "wages" under either the Wage Claims Statute or Wage Payment Statute. See e.g. Helmuth v. Distance Learning Sys. Ind., Inc., 837 N.E.2d 1085, 1091 (Ind.Ct.App.2005); J Squared, Inc. v. Herndon, 822 N.E.2d 633, 640 (Ind.Ct. App.2005); Wank, 740 N.E.2d at 912. For example, in Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 628, 664-65 (Ind.Ct. App.2008), our court concluded that although the compensation owed to the employee was directly tied to the employer's financial success, where an employee's compensation could be immediately calculated, the employee received only commissions as her salary, and the commissions were paid regularly, the employee's compensation constitutes a "wage" for the purposes of the Wage Payment Statute. However, in Gress v. Fabcon, Inc., 826 N.E.2d 1 (Ind.Ct.App.2005), our court concluded that the employee's commissions were not "wages" within the meaning of the Wage Payment Statute and stated: Here, Fabcon's commission program is based upon the profitability of the salesperson's individual projects. The salesperson earns no commission if the project does not result in a profit for Fabcon. The payment of commissions was not directly linked to the amount of work performed by Gress. To be sure, a salesperson could work for an entire year without earning any commissions if none of the projects were profitable. Moreover, although the commissions were paid once each month, the payments were based on the previous month's accounting events for the project — whether all job costs had been paid, whether the job had "closed out," and whether any determination had been made with respect to profitability — rather than on work performed by Gress in the previous month. In short, because of the length of time involved in determining the final commission, it was simply impossible for Fabcon to know what Gress was owed within ten days. In light of all this, we agree with the trial court that Gress's commissions were not "wages" within the purview of the Indiana Wage Payment Statute. Id. at 4 (internal citations omitted). We reached the same conclusion about the nature of commissions earned and paid in Davis v. All American Siding & Windows, Inc., 897 N.E.2d 936 (Ind.Ct.App. 2008). In that case, the employee's commissions were primarily based on the company's financial success with regard to particular projects. Id. at 944. The commission was based on the relationship between the contract price and the par job cost. We noted that "[t]he amount that the contract price exceeds the par job cost — which seems to be an objective estimate of All American's costs based on measurements of the building in question — appears to provide a rough measure of a project's profitability." Id. For those reasons and because the commissions could not have been calculated within the *426 statutorily-mandated ten days, our court concluded that the employee's commissions were not "wages" for the purposes of the Wage Payment Statute. Id. In this case, McCausland earned district sales manager commissions based upon the monthly sales made in his district. No sales were directly attributable to McCausland, but were made by the salespeople working in his district. The commissions were based on Walter's net sales, i.e. "sales shipped in the month from [McCausland's] specific district less all discounts, returns or allowances." Appellant's App. p. 125. Walter's Assistant Controller, Chuck Bunker, was required to collect "point of sales information" from Walter's distributors before he could calculate monthly commissions. In addition, some sales called "splits" were shared with multiple sales districts, and Bunker had to wait to calculate commissions until he received information about the "splits" from the distributors. Although Walter requested monthly point of sale information from distributors on the fifth business day of the following month, distributors did not always heed Walter's request. When all point of sales information was collected for each district, Bunker sent the information to the district manager, who would then report which salesperson deserved credit for the sales in question. Id. at 122. McCausland admitted that while he could estimate his commission at the end of each month, his commission could not be accurately calculated until Walter received the point of sales information. Id. at 130. McCausland's commissions were based on the success of the salespeople he managed. While McCausland assisted the salespeople he managed in making sales, ultimately, those sales were directly attributable to a salesperson, and not McCausland. In other words, McCausland's commissions were not directly linked to his own efforts. Moreover, the commissions were not based on gross sales, but on "net sales" which required a calculation of not only the gross sales but also other reductions, such as discounts and returns, which McCausland had little control over. Finally, McCausland's commission could not be accurately calculated until Walter received all point of sales information from its distributors. Because McCausland's commissions were based on the efforts of his sales team and "net sales," and the commissions could not always be calculated within the statutorily mandated ten-days, we conclude that the commissions were not "wages" within the meaning of the Wage Payment Statute. B. McCausland's Bonuses Our supreme court has noted that "[m]any bonuses are not subject to the Wage Payment Statute[.]" Naugle v. Beech Grove City Schs., 864 N.E.2d 1058, 1067 (Ind.2007). "`[A] bonus is a wage if it is compensation for time worked and is not linked to a contingency such as the financial success of the company.'" Id. (quoting Highhouse v. Midwest Orthopedic Inst., P.C., 807 N.E.2d 737, 740 (Ind. 2004)). However, if "a bonus is dependent on other facts than the employee's efforts, it is not subject to the Wage Payment Statute." Id. McCausland received three types of bonuses at issue in this appeal: 1) a Gross Profit Bonus in 2005, 2) a Sales Achievement Bonus in 2005, and 3) a Cost Bonus in 2006. 1. The 2005 Gross Profit Bonus The 2005 Gross Profit Bonus was based upon the difference between the 2004 gross profit margin for McCausland's sales district and the 2005 gross profit margin. Although McCausland defines *427 the "gross margin" as "net sales less costs," he argues that Walter has not proved that the bonus is based upon profits, and therefore it is a "performance based `wage' paid to [McCausland] for guiding his sales district in the fashion desired by [Walter]." Br. of Appellant at 15. However, this assertion is inconsistent with McCausland's admission in his deposition that the "gross profit bonus" was based strictly on "increasing gross profit." Appellant's App. p. 133. From McCausland's own definition of "gross margin" and his deposition testimony, we conclude that the Gross Profit Bonus was linked to the Walter's financial success, i.e. its increase in profits. Therefore, the bonus was not a "wage" as that term is defined in the Wage Payment Statute. 2. The 2005 Sales Achievement Bonus The 2005 Sales Achievement Bonus was based on McCausland's sales district's annual sales and was computed by comparing budgeted sales to actual sales. As we noted in our discussion regarding McCausland's commissions, no sales during this time period were directly attributable to McCausland. Certainly, McCausland's efforts contributed to his districts annual sales figures. However, his receipt of this bonus was dependent on his district's sales team's efforts as well. Therefore, the bonus is not subject to the Wage Payment Statute. See Naugle, 864 N.E.2d at 1067. 3. The 2006 Cost Bonus The Cost Bonus was calculated by comparing the actual expenses of McCausland's sales district to the budgeted expenses. The expenses included lodging, entertainment, cell phones, office supplies, and demonstration stock. Appellant's App. p. 354. McCausland states that he earned the bonus "for his efforts to keep the costs of his salespeople within the parameters desired by [Walter]." Appellant's Br. at 16. Again, we agree with McCausland that his efforts contributed to controlling the expenses for his sales district. However, his salespeople also played a role in determining the amount of expenses incurred for the sales district. Therefore, we conclude that the Cost Bonus was not a "wage" as that term is defined in the Wage Payment Statute. C. McCausland's Vacation Pay In 2006, Walter decided to change its vacation pay policy effective January 1, 2007. Because of the new policy, accrued and unused vacation time was paid to each employee. McCausland argues that because the new policy went into effect on January 1, 2007, his accrued and unused vacation time became "due and owing" as of that date. Walter did not pay McCausland for his accrued vacation time until February 8, 2007, and therefore, McCausland argues that Walter violated the Ten-Day Rule. Br. of Appellant at 18. While there is no legal requirement to compensate for unused vacation time, if such time is to be compensated, it is deferred compensation in lieu of wages. Naugle, 864 N.E.2d at 1067. Therefore, compensated vacation pay is considered a "wage" and is subject to the provisions of the Wage Payment Statute. Id. Yet, payment for vacation pay is typically deferred because "the accrual of vacation is unknown until termination of the employment. Absent an agreement to the contrary, an employee is not entitled to accrued vacation pay until termination." Id. For this reason, vacation pay is not subject to the Ten-Day Rule until termination. Naugle, 864 N.E.2d at 1067 (citations omitted). The parties agree that Walter decided to pay any unused vacation time that had accrued prior to the January 1, 2007 effective *428 date of the new paid-time off policy. The vacation time policy in effect prior to January 1, 2007, did not contain any provision for payment of vacation time except that "[e]mployees who terminate will receive pay for earned but unused vacation time." Appellant's App. p. 270. Walter did not agree to pay the accrued, unused vacation time by any date certain, just as was reasonably practicable. Walter's Director of Human Resources stated that employees were providing information about their unused vacation time up to January 31, 2007, and that calculating and paying "the vacation payout had to take place in conjunction with closing the books out for the year of 2006." Id. at 286-87. Because there was no agreement to the contrary, Walter did not run afoul of the Wage Payment Statute when it paid McCausland for his unused, accrued vacation time on February 8, 2007. Moreover, McCausland received the payment for his accrued, unused vacation time prior to his termination on April 1, 2007. II. McCausland's Wage Claims Statute Argument Indiana Code section 22-2-9-2 provides that "[w]henever any employer separates any employee from the pay-roll, the unpaid wages or compensation of such employee shall become due and payable at regular pay day for pay period in which separation occurred[.]" McCausland argues that Walter violated the Wage Claims Statute by failing to pay commissions in the amount of $106.30 that were due and owing at the time of his termination. Walter states that this amount equals one day's prorated commission for April 1, 2007. As we stated above, McCausland's commissions were not "wages" within the meaning of the Wage Payment Statute, and for those same reasons, the commissions are not "wages" under the Wage Claims Statute. Moreover, Walter notes that the commission was not paid because McCausland owes the company $5284.00 for Colts tickets he retained possession of that belonged to Walter. McCausland does not dispute Walter's claim regarding the Colts tickets. Conclusion McCausland's commissions and bonuses were not "wages" within the meaning of the Wage Payment and Wage Claim Statutes. Also, Walter's payment of McCausland's accrued and unused vacation time did not run afoul of the Wage Payment Statute. For all of these reasons, the trial court properly granted Walter's motion for summary judgment. Affirmed. DARDEN, J., and ROBB, J., concur. NOTES [1] McCausland captioned his motion as a "motion to reconsider." However, McCausland filed his motion "pursuant to Trial Rule 59" and requested that the trial court reverse its order granting summary judgment in favor or Walter. Appellant's App. pp. 9, 22. We therefore treat McCausland's motion as a motion to correct error. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind.Ct.App.1998) ("[A] motion requesting the court to revisit its final judgment must be considered a motion to correct error. We decline to favor form over substance and, despite its caption, Mother's motion in the instant case should have been treated as a motion to correct error."). [2] Walter claims that McCausland may not bring any claims under the Wage Payment Statute because he was fired. However, McCausland's claims concern the alleged untimely payment of commissions, bonuses, and vacation pay that he received while still employed with Walter and unpaid commissions he did not receive after his termination. Therefore, we conclude that he properly brought claims under both the Wage Payment Statute and the Wage Claims Statute. See Ind.Code §§ 22-2-5-1; 22-2-9-2. [3] The definition of wages is contained in the Wage Claims Statute, however, our courts have also used the definition to address claims under the Wage Payment Statute. See e.g. Highhouse v. Midwest Orthopedic, 807 N.E.2d 737, 739 (Ind.2004).

626 P.2d 686 (1981) COLUMBINE VALLEY CONSTRUCTION CO., a Colorado Corporation, Petitioner-Appellee, v. The BOARD OF DIRECTORS, ROARING FORK SCHOOL DISTRICT RE-1J, Respondent-Appellant. No. 80SA300. Supreme Court of Colorado, En Banc. April 13, 1981. *688 Wolf & Slatkin, Albert B. Wolf, Meer & Meer, Robert Meer, Denver, for petitioner-appellee. Nelson, Hoskin, Groves, & Prinster, John W. Groves, Jon E. Getz, Grand Junction, Wm. V. Hodges III, Carbondale, for respondent-appellant. QUINN, Justice. This appeal questions the validity of ex parte proceedings to enforce an arbitration award under C.R.C.P. 109. The appellants, Board of Directors of the Roaring Fork School District RE-1J (school district), challenge the district court's denial of a motion under C.R.C.P. 60(b) to vacate a judgment entered on an arbitration award against the school district and in favor of Columbine Valley Construction Company (Columbine). We affirm the order denying the motion to vacate. The school district on November 26, 1974, entered into a contract with Columbine, a general contractor, for the construction of school buildings near Basalt and Carbondale, Colorado. The contract was prepared by the school district and contained an arbitration provision which stated: *689 "All claims, disputes and other matters in question arising out of, or relating to, this contract or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof." A dispute arose over the construction contract and the matter was submitted to a panel of three arbitrators. After hearings attended by both the school district and Columbine, the panel on March 8, 1979, awarded Columbine the sum of $132,300,[1] subject to "the obligation of [the] School District to comply with the requirements of C.R.S. XX-XX-XXX (1973 as amended) to pay any valid claims of subcontractors before payment of any amount is made to [Columbine]." The award was expressly intended as a "full settlement of all claims and counterclaims submitted to . . . arbitration." The school district refused to pay the award. On May 21, 1979, Columbine filed a verified petition in the district court alleging its written agreement with the school district to submit the contractual dispute to arbitration and to accept the arbitration award as final and enforceable in a court of competent jurisdiction. Columbine requested the entry of judgment on the award pursuant to C.R.C.P. 109(e).[2] The same day the clerk of the district court entered a judgment based on the petition. The judgment incorporated by reference the arbitration award and was entered on behalf of Columbine against the school district in the amount of $132,300, plus interest at the rate of 8% per annum from March 8, 1979, with directions to the school district to comply with section 38-26-107, C.R.S.1973. On June 2, 1979, the school district filed a motion to vacate the judgment under C.R. C.P. 60(b) on the ground that it was void.[3] Columbine thereafter sought execution on the judgment by making demand upon the Garfield County Commissioners to levy a tax pursuant to section 13-60-101, C.R.S. 1973.[4] The school district then moved for a *690 stay of execution upon the judgment, C.R. C.P. 62(b), and on November 13, 1979, the district court conducted a hearing on the school district's motions. The court denied the motion to vacate the judgment but stayed enforcement proceedings pending this appeal. The school district challenges the denial of its motion to vacate the judgment for several reasons, which can be summarized as follows: (1) Columbine should not have been permitted to proceed under C.R.C.P. 109 but, instead, should have been required to commence a traditional civil action for enforcement of the arbitration award; (2) an interpretation of C.R.C.P. 109 that permits the entry of judgment without notice or hearing would violate due process of law;[5] (3) the entry of judgment was improper because the arbitrators' oaths were not attached to the petition as required by C.R.C.P. 109(c); (4) the judgment is inconsistent with the arbitrators' award because the judgment does not expressly provide for the payment of other valid claims prior to the payment of Columbine's claim, as required by section 38-26-107, C.R.S.1973, and it awards interest from March 8, 1979; (5) the arbitrators failed to make specific findings of fact and conclusions of law, notwithstanding the parties' agreement to the contrary; and (6) the district court failed to grant the school district a proper evidentiary hearing on its motion under C.R.C.P. 60(b). We are not persuaded by these claims. I. We first address the school district's argument that the proper remedy for enforcement of the arbitration award in this case is not a proceeding under C.R.C.P. 109 but, rather, is a civil action pursuant to traditional service of process and notice pleading. Specifically, the district argues that the clerk of the district court erred in entering judgment upon Columbine's petition because the school district agreed neither to arbitrate the matter under C.R.C.P. 109 nor to the entry of judgment upon an ex parte filing of the arbitration award. We agree that an arbitration award may not be enforced pursuant to C.R.C.P. 109 unless the arbitration agreement permits the entry of judgment upon filing of the award with the court and otherwise satisfies the requirements of the rule. Koscove v. Peacock, 136 Colo. 371, 317 P.2d 332 (1957). However, we conclude that the arbitration agreement here did authorize the entry of judgment upon filing of the award and met the other requirements for enforcement under rule 109. A. Arbitration has long been favored in this state as a convenient, speedy and efficient alternative to settling disputes by litigation. See Western Oil Fields, Inc. v. Rathbun, 250 F.2d 69 (10th Cir. 1957); Ezell v. Rocky Mtn. Bean and Elevator Co., 76 Colo. 409, 232 P. 680 (1925); Wilson v. Wilson, 18 Colo. 615, 34 P. 175 (1893); see also Burchell v. Marsh, 58 U.S. (17 How.) 344, 15 L.Ed. 96 (1855). The courts of Colorado historically have recognized two forms of arbitration: the one conducted in conformity with a statute or procedural code, commonly called "statutory arbitration," and the other conducted pursuant to common law. Ezell v. Rocky Mtn. Bean and Elevator Co., supra. The Uniform Arbitration Act of 1975, section 13-22-201 et seq., C.R.S.1973 (1980 *691 Supp.), represents the classic form of statutory arbitration. This act, however, applies only to agreements made on or after July 14, 1975, and for that reason has no effect on this controversy. C.R.C.P. 109, which became effective on April 6, 1941, adopted the provisions of sections 314 through 320 of the Code of Civil Procedure in the 1935 Colorado Revised Statutes. Thus C.R.C.P. 109, although procedural in nature, has its origin in a statutory code and in that sense represents a form of "statutory arbitration." Under both statutory and common law arbitration the parties agree to submit their dispute to a selected arbitrator in lieu of a judicial resolution of the controversy. The most significant difference is that "in a common law arbitration suit must be brought on the award, whereas in a statutory arbitration the award is filed in the office of the clerk of the district court and execution is issued thereon." Ezell v. Rocky Mtn. Bean and Elevator Co., supra at 411-12, 232 P. at 681; see Koscove v. Peacock, supra. Rule 109 accords an arbitration award a significance that is tantamount to a judgment and furnishes a self-executing procedure calculated to avoid the delay and expense incident to a common law action for enforcement. C.R.C.P. 109(e) provides: "The party in whose favor any award shall be made, may file the same with the clerk of the district court of the county wherein the matters were arbitrated, who shall enter a judgment thereon, and if such award requires the payment of money, the clerk may issue execution therefor." In order to avail oneself of this summary procedure, however, the preliminary requirements of C.R.C.P. 109(b) must be satisfied. B. C.R.C.P. 109(b) requires the parties to agree in writing prior to the arbitration proceeding that (1) they will submit the dispute "to the arbitrator named therein," (2) they "will abide the award," and (3) the award may be filed with the clerk of the court "as a basis of a judgment and . . . execution may be issued for its collection." All three requirements of C.R.C.P. 109(b) have been met in this case. Recourse to arbitration by an institutional arbitration agency has become the prevailing trend of commercial arbitration in this country. M. Domke, The Law and Practice of Commercial Arbitration § 20.01 at 189-90 (1968). Consistent with this trend, the construction contract here expressly provided that all claims or disputes "shall be decided by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association [AAA] then obtaining . . . ." This explicit agreement to arbitrate in accordance with the rules of the AAA incorporates by reference the rules of that association into the arbitration agreement. Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263 (7th Cir. 1976); I/S Stavborg v. National Metal Converters, 500 F.2d 424 (2d Cir. 1974); Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268 (2d Cir. 1971); Paley Associates, Inc. v. Universal Woolens, Inc., 446 F.Supp. 212 (S.D.N.Y.1978).[6] The Construction Industry Rules of the AAA which were in effect when this dispute was submitted to arbitration provided for the appointment of arbitrators from a list of qualified arbitrators compiled by the AAA and screened in a preferential order by the respective parties to the dispute. American Arbitration Association, Construction Industry Arbitration Rules, Sec. 13 (effective *692 January 1, 1977).[7] This contractual reference to the AAA rules was specific enough to be enforceable in the event either party sought to compel arbitration pursuant to their agreement, see, e. g., Commonwealth Edison Co. v. Gulf Oil Corp., supra; Reed & Martin, Inc. v. Westinghouse Electric Corp., supra; Kingsbrook Jewish Medical Center v. Katz, Waisman, et al., 37 App.Div.2d 518, 321 N.Y.S.2d 773, aff'd, 29 N.Y.2d 854, 277 N.E.2d 925, 328 N.Y.S.2d 5 (1971); M. Domke, supra, § 5.03 at 39-41, and satisfies the requirement of rule 109(b) that the parties agree to submit the dispute to a named or designated arbitrator. The second requirement has also been satisfied. The contractual provision that "[t]he award rendered by the arbitrator shall be final. . . ." is nothing less than an agreement to abide the award as contemplated by rule 109(b). The final requirement of rule 109(b) — a written agreement for the entry of judgment upon filing the award and for the issuance of execution thereon — has also been met. As previously noted, the agreement to arbitrate in accordance with the Construction Industry Arbitration Rules of the AAA incorporates into the contract the rules of that association, including those pertinent to the entry of judgment. E. g., Commonwealth Edison Co. v. Gulf Oil Corp., supra; I/S Stavborg v. National Metal Converters, Inc., supra; Reed & Martin, Inc. v. Westinghouse Electric Co., supra; Paley Associates, Inc. v. Universal Woolens, Inc., supra. On March 8, 1979, the date on which the dispute was submitted to arbitration, section 47(c) of the Construction Industry Arbitration Rules of the AAA provided: "Parties to these rules shall be deemed to have consented that judgment upon the award rendered by the arbitrator(s) may be entered in any Federal or State court having jurisdiction thereof."[8] Furthermore, the arbitration clause of the construction contract explicitly stated that "judgment may be entered upon [the award] in accordance with applicable law in any court having jurisdiction thereof." When this sentence is read in conjunction with AAA rule 47(c), it leads directly to the conclusion that Columbine and the school district agreed to the entry of judgment upon filing the arbitration award with the court and to the issuance of execution upon that judgment, both of which are expressly authorized by C.R.C.P. 109(e). II. We next address the school district's argument that C.R.C.P. 109(e), if construed *693 to permit the entry of judgment upon the ex parte filing of the arbitration award without affording notice or hearing to the judgment defendant, would violate due process of law. U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25. We acknowledge that C.R.C.P. 109(e) does authorize the entry of judgment without a prior notice or opportunity for hearing to the party against whom the arbitration award has been made, West v. Duncan, 72 Colo. 253, 210 P. 699 (1922); however, the rule does not violate due process of law. It should be noted that the school district makes no claim of lack of notice or a less than adequate hearing at the arbitration proceeding with respect to its defenses to Columbine's claim.[9] Indeed, that arbitration proceeding was conducted with full participation by both disputants. The issue here, therefore, is not one of notice and opportunity for a hearing on Columbine's underlying claim but rather an issue of waiver in connection with the entry of judgment. "The due process rights to notice and hearing prior to a civil judgment are subject to waiver." D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124, 133 (1972). Thus, the parties to a contract may agree in advance to submit a claim to arbitration and to waive any further notice and hearing incident to the entry of judgment on the award. Due process of law requires no more than that the waiver be voluntarily, knowingly and intelligently made. Id. at 185, 92 S.Ct. at 782, 31 L.Ed.2d at 134. The facts underlying the execution of the construction contract demonstrate that the constitutional standard of waiver has been fully satisfied in this case. As discussed in Part I.B., supra, the contract incorporated by reference the Construction Industry Rules of the AAA which, in turn, constitute a consent by the arbitrating parties to the entry of judgment upon the arbitration award. In addition, the contract itself expressly provided for the entry of judgment "in accordance with applicable law in any court having jurisdiction thereof." The applicable law in this jurisdiction clearly permits a district court to enter judgment upon the ex parte filing of the arbitration award. C.R.C.P. 109(e); Ezell v. Rocky Mtn. Bean and Elevator Co., supra; West v. Duncan, supra. The school district prepared the construction contract and it reasonably may be assumed that if it desired notice of the filing of the award before the entry of judgment, it would have included such provision in the agreement. The reason for the non-inclusion of such provision is evident. Little, if anything, would be accomplished by further notice to the non-prevailing party in an arbitration proceeding that the arbitration award was being enforced in accordance with the terms of the very agreement to which that party had previously consented in writing. The provisions of the construction contract here clearly manifest that type of waiver which, consistent with due process of law, permits the entry of judgment upon the ex parte filing of an arbitration award under C.R.C.P. 109(e). III. The school district next challenges the entry of judgment for the reason that the arbitrators' oaths were not filed with the award. We are not persuaded by this claim either. C.R.C.P. 109(c) states: "Arbitrators shall not act until they subscribe to an oath and swear that they will well and truly try, and impartially and justly decide the matter in controversy, according to the best of their ability, which oath shall be filed with their award." The requirement of the arbitrators' oath lends dignity to the arbitration proceeding *694 without impairing its basic informality, M. Domke, supra, § 24.01 at 233, and, more importantly, assures the parties that their controversy will be resolved under the solemnity and sanction of the oath. Hepburn v. Jones, 4 Colo. 98 (1878). Normally, the arbitrators' oaths should be filed with their award. However, the failure to do so does not automatically vitiate the validity of any judgment entered on the award. "Courts should be cautious in interfering where an award is fair on its face and should never do so, except to prevent a `manifest injustice'." Sisters of Mercy v. Mead and Mount Construction Co., 165 Colo. 447, 454-55, 439 P.2d 733, 736 (1968); cf. Koscove v. Peacock, supra (oral agreement can serve as substitute for written agreement to file award with court as a basis of judgment). Here the arbitration award filed by Columbine under C.R.C.P. 109 contained a recital that the arbitrators had been duly sworn. No contrary evidence was presented by the school district and, therefore, that recital is presumed to be true. Abbott v. Bob's U-Drive, 222 Or. 147, 352 P.2d 598 (1960). Moreover, the oaths were actually filed, albeit belatedly, after the school district raised this issue for the first time in its motion for a new trial. These oaths constitute part of the record before us, are proper in form and content, and evidence due subscription by each arbitrator prior to the commencement of the arbitration proceeding. Under such circumstances the failure to file the oaths contemporaneously with the award is, at most, a technical defect not affecting the substantial rights of the parties. C.A.R. 35(e). IV. The school district characterizes the judgment entered under C.R.C.P. 109 as inconsistent with the arbitration award in two particulars: (1) the judgment does not specifically provide for the payment of the valid claims of subcontractors pursuant to section 38-26-107, C.R.S.1973, prior to payment of the award to Columbine;[10] and (2) unlike the arbitration award, the judgment allowed interest at the rate of 8% per annum from the date of the award. We find no inconsistency in either respect. The judgment awarded Columbine $132,300 and stated that the school district "shall comply with the provisions of section 38-26-107, C.R.S.1973, as amended, all pursuant to and in accordance with the arbitration award, a copy of which is attached hereto and incorporated herein by this reference." It is totally consistent with, and in fact duplicates, the language of the arbitration award recognizing the school district's obligation "to pay any valid claims of subcontractors before payment of any amount is made to [Columbine]." As to interest, section 5-12-102, C.R.S.1973 (1980 Supp.), Colo.Sess.Laws 1975, ch. 61, 5-12-102 at 257, authorizes interest at the rate of 8% per annum for money due on any instrument in writing or on account. The arbitration award represented a liquidated sum which became due and payable on the date of its issuance, March 8, 1979. See, e. g., North Drive-In Theatre Corp. v. Park-In Theatres, 248 F.2d 232 (10th Cir. 1957); T & M Transp. Co. v. *695 Shattuck Chem. Co., 158 F.2d 909 (10th Cir. 1947); York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382, 443 P.2d 986 (1968); see generally M. Domke, supra, § 39.01 at 334. The clerk committed no error and did nothing inconsistent with the arbitration award in allowing interest from the date of the award.[11] V. The school district next asserts that the arbitrators' award is invalid because the school district and Columbine agreed to the rendition of specific findings of fact and conclusions of law by the arbitration panel and, in the absence of such findings and conclusions, the completeness and validity of the arbitrators' resolution of the contractual dispute cannot be determined. Both the record and C.R.C.P. 109(g) refute this claim. First, the school district offered no evidence in support of the purported requirement of specific findings of fact and conclusions of law. In the absence of a statute or provision in the arbitration agreement, an arbitration award need not recite specific findings of fact and conclusions of law. E. g., Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956); Kurt Orban Co. v. Angeles Metal Systems, 573 F.2d 739 (2d Cir. 1978); Sobel v. Hertz, Warner & Co., 469 F.2d 1211 (2d Cir. 1972); Annot., Necessity That Arbitrators, in Making Award, Make Specific or Detailed Findings of Fact or Conclusions of Law, 82 A.L.R.2d 969 (1962). A mere assertion of error unsupported by evidence cannot serve as a basis for vacating a judgment. Twin Lakes Reservoir and Canal Co. v. Platt Rogers, Inc., 105 Colo. 49, 94 P.2d 1090 (1939). Second, the arbitration award specifically answers the claim of incompleteness. The award states that it is "in full settlement of all claims and counterclaims submitted to this arbitration." Third, rule 109(g) provides that, in the absence of fraud or other extraordinary basis for relief, once a matter "has been submitted to and decided by arbitrators, according to the terms of this rule, such matter so arbitrated shall be held to have been adjudicated and settled, and not open, directly or indirectly, for review. . . ."[12] Thus, even if the district court believed the arbitrators misinterpreted the construction contract or erred in their factual determinations, it could not substitute its judgment for theirs. E. g., I/S Stavborg v. National Metal Converters, Inc., supra; Western Oil Fields, Inc. v. Rathbun, supra; Twin Lakes Reservoir and Canal Co. v. Platt Rogers, Inc., supra; Wilson v. Wilson, supra. VI. Finally, the school district argues the district court failed to grant a proper evidentiary hearing on its motion to vacate the judgment under C.R.C.P. 60(b). The record establishes that a hearing was held on November 13, 1979, at which counsel for both parties were present. Scheduled for hearing on that day was the school district's motion to vacate the judgment. However, the school district's counsel stated at the beginning of his argument that he understood "today's hearing is really on our motion *696 to stay execution." The court suggested that both motions should be resolved at one hearing. Counsel for the school district then presented the court with a memorandum on its motion to vacate and made no objection to the determination of the motion at that time. The school district was not denied an opportunity to present evidence on its motion to vacate. It simply elected to stand on its memorandum. A trial court's determination of a motion to vacate a judgment under C.R. C.P. 60(b) will not be disturbed on appellate review in the absence of a clear abuse of discretion. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820 (1957); Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176 (1944). No abuse of discretion has been demonstrated in this case. The judgment is affirmed. NOTES [1] The arbitrators concluded in their award that Columbine was entitled to the sum of $283,600 and the school district the sum of $151,300 on its counterclaim, thereby resulting in a balance due Columbine of $132,300. [2] C.R.C.P. 109(e) allows the recipient of an arbitration award to "file the same with the clerk of the district court of the county wherein the matters were arbitrated, who shall enter a judgment thereon ...." The arbitration proceedings were conducted in Denver and, therefore, Columbine's petition under C.R.C.P. 109(e) was properly filed in the Denver District Court. [3] C.R.C.P. 60(b) states: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this section (b) does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court: (1) To entertain an independent action to relieve a party from a judgment, order, or proceeding; or (2) to set aside a judgment for fraud upon the court; or (3) when, for any cause, the summons in an action has not been personally served within or without the state on the defendant, to allow, on such terms as may be just, such defendant, or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action. . . ." [4] Section 13-60-101(1) provides that when a judgment for the payment of money is entered against a quasi municipal corporation of the state or against an officer thereof in his official capacity, and when the duly constituted tax assessing and collecting officers fail to provide for the payment of such judgment, the judgment creditor may file a transcript of the judgment in the county or counties in which the quasi municipal corporation is located. Thereupon, the county commissioners must levy a tax upon all the taxable property within the limits of the quasi municipal corporation for the purpose of paying the judgment. For purposes of section 13-60-101, a school district and its board of directors are considered "quasi municipal corporations." Atchison, Topeka and Santa Fe Railway v. School District No. 2, 100 Colo. 148, 66 P.2d 541 (1937); see School District No. 98 of Adams County v. Pomponi, 79 Colo. 658, 247 P. 1056 (1926). [5] The case was transferred from the court of appeals to this court because of the constitutional issue raised by the school district in its brief. Sections 13-4-110, and 13-4-102(1)(b) C.R.S. 1973. [6] Independently of case law authority for the "incorporation by reference" principle, section 1 of the Construction Industry Rules of the AAA expressly provided for its application under the terms of the arbitration agreement: "The parties shall be deemed to have made these Rules a part of their arbitration agreement whenever they have provided for arbitration under the Construction Industry Arbitration Rules. These Rules and any amendment thereof shall apply in the form obtaining at the time the arbitration is initiated." American Arbitration Association, Construction Industry Arbitration Rules (effective January 1, 1977). [7] The procedure for the appointment of arbitrators, as outlined in Section 13 of the Construction Industry Rules of the AAA, is as follows: "Section 13. APPOINTMENT FROM PANEL — If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner: Immediately after the filing of the Demand or Submission, the AAA shall submit simultaneously to each party to the dispute an identical list of names of persons chosen from the Panel. Each party to the dispute shall have seven days from the mailing date in which to cross off any names to which it objects, number the remaining names indicating the order of preference, and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree upon any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from other members of the Panel without the submission of any additional lists." Section 17 of the same rules states that "[i]f the arbitration agreement does not specify or the parties are unable to agree as to the number of arbitrators, the dispute shall be heard and determined by three arbitrators, unless the AAA, in its discretion, directs that a single arbitrator or a greater number of arbitrators be appointed." [8] Rule 47(c) became effective March 1, 1974, before the parties executed the construction contract and arbitration agreement in this case. See, e. g., Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263 (7th Cir. 1976); Paley Associates, Inc. v. Universal Woolens, Inc., 446 F.Supp. 212 (S.D.N.Y.1978). [9] Had the school district not received notice of the time and place of the arbitration hearings, and had an award been entered in its absence, which later became the basis for a judgment under C.R.C.P. 109, due process considerations would be seriously implicated. See Twin Lakes Reservoir & Canal Co. v. Platt Rogers, Inc., 105 Colo. 49, 94 P.2d 1090 (1939). [10] Section 38-26-107, C.R.S.1973, provides that if a supplier of labor or materials (subcontractor) has not been paid by the general contractor at the time of final settlement for the work contracted to be done, the subcontractor may file a verified statement of his claim with the board, officer or person who awarded the contract (payor). The payor must publish notice of final settlement with the general contractor at least 10 days prior thereto in a public newspaper of general circulation published in the counties wherein the work was contracted for and performed. Upon the filing of such claims, the payor shall withhold from all payments to the contractor sufficient funds to insure the payment of the subcontractors' claims until these claims have been paid by the general contractor or withdrawn. Such funds shall not be withheld longer than ninety days following the day fixed for final settlement as published unless suit has been filed by the subcontractor within that period to enforce the unpaid claim and a notice of lis pendens is filed with the payor. At the end of the 90 day period, the payor must pay the general contractor all monies due him which are not the subject of suit and lis pendens notice. [11] The school district also contends that because it will be forced to comply with section 38-26-107 before paying any monies to Columbine, the judgment awarded to Columbine was not for a sum certain and hence is invalid. See C.R.C.P. 58(a). This argument is devoid of merit. The total amount due from the school district is $132,300, whether that amount is paid directly to Columbine or is paid to subcontractors owed money by Columbine. In either instance, Columbine will be the beneficiary of moneys paid, as intended by the arbitration award. [12] By its express terms C.R.C.P. 109(g) "shall not be construed to prevent an adjudication by arbitrators from being impeached or set aside for fraud or other sufficient cause, the same as a judgment of a court of record, nor to prohibit relief on grounds of mistake, inadvertence, surprise or excusable neglect, as in the case of other judgments, orders or proceedings of the court." The mistake, inadvertence, surprise or excusable neglect subject to correction must be by a party to the action or his legal representative. E. g., Columbia Savings & Loan Ass'n. v. District Court, 186 Colo. 212, 526 P.2d 661 (1974).

40 Cal.App.3d 372 (1974) 114 Cal. Rptr. 856 THE PEOPLE, Plaintiff and Appellant, v. NORMAN ALLEN TOPP, Defendant and Respondent. Docket No. 24527. Court of Appeals of California, Second District, Division Two. June 20, 1974. *374 COUNSEL Joseph P. Busch, District Attorney, Donald J. Kaplan and Jay J. Becker, Deputy District Attorneys, for Plaintiff and Appellant. Frederick M. Zax for Defendant and Respondent. OPINION COMPTON, J. In an information filed by the District Attorney of Los Angeles County defendant was charged in count I with possession of cocaine (Health & Saf. Code, § 11350, formerly § 11500), in count II with possession of cocaine for sale (Health & Saf. Code, § 11351, formerly § 11500.5), in count III with possession of marijuana (Health & Saf. Code, § 11357, formerly § 11530), and in count IV with possession of the drug phencyclidine (Health & Saf. Code, § 11350, formerly § 11910). The superior court ordered the information set aside pursuant to Penal Code section 995. The People appeal. (1) In ruling on a motion under Penal Code section 995, the superior court is required to view the evidence presented to the magistrate in the light most favorable to supporting the determination of the magistrate and must indulge in all reasonable inferences which would support the decision of the magistrate. In reviewing the correctness of the superior court's order in setting aside the information we apply the same test to determine whether there was sufficient evidence to support the magistrate's decision. (People v. Biehl, 228 Cal. App.2d 805 [39 Cal. Rptr. 868]; Badillo v. Superior Court, 46 Cal.2d 269 [294 P.2d 23]; People v. Upton, 257 Cal. App.2d 677 [65 Cal. Rptr. 103].) It is clear from the record in this case that the superior court's order was not based on a lack of sufficient evidence to indicate that the defendant was guilty of the various offenses charged but was instead based on the competency of the evidence which was offered against him. The superior court found as a matter of law that the magistrate had erred in *375 admitting evidence which was the product of an unreasonable search and seizure. As we pointed out in People v. Manning, 33 Cal. App.3d 586 [109 Cal. Rptr. 531], the determination of whether a search and seizure is reasonable is ultimately one of law, but that determination must be based on facts as determined by the appropriate fact finder. In the procedural posture of this case the fact finder was the magistrate who heard the preliminary hearing. The superior court was, as we are now, bound to defer to the magistrate's findings of fact. FACTS For some four and one-half years, one Fred Bowen had resided in one-half of a duplex located in Playa Del Rey. On or about January 19, 1973, he shared this residence with another individual. However, on that date his co-tenant moved out and another moved in and remained for about 13 days. On or about February 2, 1973, the defendant took up occupancy of the duplex with Mr. Bowen, and occupied a bedroom which had been used by the first co-tenant. Some of the latter's belongings still remained in that bedroom. Mr. Bowen soon became suspicious of defendant's activities. He testified at the preliminary hearing that defendant would receive visitors at odd hours of the night. He received an excessive number of telephone calls and strange messages were left by some of the callers. Mr. Bowen testified that on a number of occasions he smelled marijuana on the premises. On the 22d of February 1973, fearing that the presence of narcotics on the premises might result in his own arrest, Mr. Bowen decided to request that the defendant move. He made this request in a letter which he affixed to the bedroom door during defendant's absence. After placing the notice on the door, Mr. Bowen left the premises and went to the home of his girlfriend where he met one Steve Smith and Smith's girlfriend. Smith was a long-time personal friend of Bowen. During this social gathering at Bowen's girlfriend's home, Bowen told Smith and the two girls of his suspicions about the defendant and indicated that he was going to search the defendant's room to see if he could find any narcotics. The four persons then returned to Bowen's residence arriving at about 11 p.m., and while the two girls and Smith remained in the living room, Bowen went into the closet and into one of defendant's coats and recovered a bag of cocaine. This evidence formed the basis of the charge in count I of the information. *376 Bowen brought the cocaine into the living room and handed it to Smith. Smith then instituted a call to the police and apparently arranged to meet a narcotics officer some place in the vicinity. Smith took a sample of the cocaine from the bag and rolled it in a paper towel. Bowen and Smith then met a narcotics officer who performed a field test and determined that the substance was in fact a narcotic. The two then returned to the Bowen residence and awaited the arrival of another police officer, Sergeant Reeves. When Reeves arrived Bowen handed the package of cocaine to Reeves. The evidence disclosed that Smith was a Los Angeles police officer but there was no indication that he was in any way assigned to narcotic enforcement. It is undisputed that he was off-duty at the time. Sergeant Reeves, after obtaining the plastic bag of cocaine from Bowen, took it to the police station, made out his report and subsequently obtained a warrant of arrest for the defendant and returned to the premises. He commenced a surveillance of the location and observed the defendant drive up in an automobile and enter the residence carrying a box under his arm. The defendant was wearing a jacket. Armed with the arrest warrant Sergeant Reeves knocked on the door. When the defendant opened the door, Reeves identified himself and asked the defendant to step back inside the door where he conducted a patdown search of defendant. Reeves testified that at this point he was about eight or nine feet from a coffee table where he observed the box that the defendant had been carrying and the jacket which the defendant had been wearing. He testified he could observe in the box a set of balance scales, a package of Ziploc plastic baggies and a brown bag. Reeves was an expert in narcotics enforcement and testified that the scale and the baggies were paraphernalia commonly used for the packaging of narcotics for sale. Reeves asked the defendant if he wished to take his jacket with him to jail and the defendant replied that he did. The officer then searched the jacket which disclosed the presence of handrolled cigarettes ultimately determined to contain the drug phencyclidine. The officer then felt the brown bag which was in the aforementioned box and determined that it contained some leafy material as well as a quantity of powdery material. On opening the bag he found it in turn contained other bags, one of which contained marijuana and one which contained cocaine. The officer seized the box and its contents. The evidence seized by Sergeant Reeves formed the basis of the charges in counts II, III and IV. *377 The magistrate found that Bowen's search of the defendant's coat was a product of his own volition and intent, that he was unaided by Smith in any way and that Smith did nothing to encourage, suggest or direct the search. All of the evidence was admitted by the magistrate. The superior court dismissed the entire information. DISCUSSION (2) Since the constitutional prohibition against unreasonable searches and seizure is aimed at governmental action, the exclusionary rule which was designed to compel compliance with that constitutional prohibition is inapplicable where evidence has been seized by a private citizen, unless that private citizen was acting as an agent of the government. (People v. Minervini, 20 Cal. App.3d 832 [98 Cal. Rptr. 107]; People v. Anderson, 9 Cal. App.3d 80 [88 Cal. Rptr. 4]; People v. Coleman, 263 Cal. App.2d 697 [69 Cal. Rptr. 910]; People v. Jackson, 14 Cal. App.3d 57 [92 Cal. Rptr. 91].) (3) Raymond v. Superior Court, 19 Cal. App.3d 321 [96 Cal. Rptr. 678] a case upon which defendant places great reliance, simply stands for two propositions, (1) that the test of whether a private citizen acted as an agent of the state in searching for and seizing evidence is the extent of police participation in the search and seizure, and (2) the determination of whether the police involvement was such as to characterize the citizen's actions as "state action" is a question of law. Even under Raymond, however, deference must still be afforded the magistrate's findings as to the facts concerning police involvement. Raymond provides no support for the superior court's order in this case because the facts are remarkably distinguishable. In Raymond, a 12-year-old boy discovered marijuana in his father's dresser and called the sheriff's department. A deputy sheriff responded and met the boy in the office at his school. Following a discussion with the deputy sheriff, the boy volunteered to get a sample of the marijuana. The following day the deputy contacted the boy and after placing a telephone call to the house to determine if anyone was home, the deputy drove the boy to his home and directed him to go into the house and bring a sample of marijuana from the dresser and deliver it to the deputy sheriff. In the case at bar Bowen was not a minor child but instead an adult who was in fact the landlord and himself the dominant occupant of the premises. The single most distinguishing feature here, however, is that *378 the deputy sheriff who responded to the 12-year-old boy's call in Raymond was on duty and engaged in active enforcement duties in directing the boy to conduct the search. Here Smith was for all intents and purposes a private citizen. He was off-duty and not engaged in active police work at the time. He simply acceded to the request of his friend to accompany him to the house. From these facts as found by the magistrate we conclude that there was no state action involved and the evidence was properly admissible. (4) Defendant next argues that the evidence seized at the time of his arrest by Sergeant Reeves was the result of an unreasonable search and seizure, citing Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], which limited the scope of a permissible search in conjunction with a valid arrest to the person of the arrestee and the area within his immediate control. The arresting officer, however, may seize evidence or contraband which is in plain sight. (People v. Block, 6 Cal.3d 239 [103 Cal. Rptr. 281, 499 P.2d 961]; People v. Superior Court (Irwin) 33 Cal. App.3d 475 [109 Cal. Rptr. 106].) In effecting the arrest, Sergeant Reeves acted properly in stepping through the door. No law required that he invite the defendant onto the porch. He then had the authority to search the person of the defendant which would include the jacket that defendant indicated he wished to take with him to jail. Next Sergeant Reeves was empowered to seize any evidence or contraband which was in plain view from his lawfully gained position. (Chimel, Block, Irwin, supra.) The box with its scales and Ziploc baggies, clearly recognizable as paraphernalia for the packaging and sale of narcotics was in plain sight and subject to seizure. The disputed brown paper bag was also in plain sight and in significant juxtaposition to the paraphernalia. There was nothing unreasonable in the officer feeling the bag. The position of the bag and its tell-tale feel provided probable cause to believe that it contained contraband, thus it was also subject to seizure. (Skelton v. Superior Court, 1 Cal.3d 144, 157 [81 Cal. Rptr. 613, 460 P.2d 485].) The order is reversed and the case is remanded to the superior court for further proceedings. Roth, P.J., and Fleming, J., concurred.

97 F.2d 537 (1938) HOLMES v. ROWE. No. 8615. Circuit Court of Appeals, Ninth Circuit. June 14, 1938. Nathan G. Gray, of Berkeley, Cal., for appellant. John Corgiat, Jr., of Oakland, Cal., for appellee. Before GARRECHT, HANEY, and STEPHENS, Circuit Judges. GARRECHT, Circuit Judge. Upon appeal from an order granting appellee's motion for a permanent injunction. *538 On October 23, 1933, appellant instituted an action against the appellee and others, entitled as follows: "Justice's Court of the City of Berkeley, County of Alameda, State of California. Oliver Youngs, Justice of the Peace. Number of action 24,923 S. O. Holmes, Plaintiff, v. D. Harrison Rowe, Kate S. Rowe, his wife, Donald R. Rowe, et al., Defendants. Nature of action — Money rent." While this action was still pending, appellee, on November 4, 1935, filed his voluntary petition in bankruptcy in the District Court of the United States. In his Schedule A-3, "Creditors whose claims are unsecured," the name of creditor "S. O. Holmes," by mistake was entered therein as "S. O. Hoames," the intention however to list the claim, the enforcement of which was enjoined in this proceeding, was evident from the wording which was as follows: "S. O. Hoames, Assignee, Oakland Mortgage & Finance Company, Oakland, 314 Pacific Building, Oakland, Justice Court, Berkeley, Suit #24923, Rent, $155.50." Prior to the time appellee filed his petition in bankruptcy he had a discussion with S. O. Holmes concerning the action which had been instituted against him and the payment of the indebtedness involved therein and at that time S. O. Holmes informed him that he had already secured a default judgment against him. Rowe was adjudicated a bankrupt on November 5, 1935, and on March 23, 1936, was given his discharge. On April 6, 1936, without any notice to appellee, appellant caused a judgment in the Justice's Court to be entered against the appellee on the complaint which had been filed October 23, 1933, long prior to the proceedings in bankruptcy, and on March 9, 1937, levied execution upon appellee's wages earned by him as an employee of the Friden Calculating Machine Company. Appellee first learned of this judgment only after execution had been levied on his wages. He thereupon filed with the Clerk of the said Justice's Court a petition to restrain appellant from levying execution upon the judgment, which was denied. Again, on April 22, 1937, appellee filed a petition in the same court, applying for an order directing that the judgment be canceled and discharged of record, which was also denied. On June 15, 1937, appellee filed in the United States District Court, the same court which granted his discharge in bankruptcy, a "Supplemental petition to restrain creditor from levying execution upon judgment against bankrupt herein." In his petition, among other things, appellee alleged: "* * * that the judgment upon which the said executions were levied are based upon a claim, provable and discharged by the Order set forth in the preceding paragraph hereinabove set forth; That said judgment was rendered in the Justice's Court of the City of Berkeley by the Honorable Oliver Youngs, Justice of the Peace in an action entitled, `S. O. Holmes, Plaintiff, v. D. Harrison Rowe, D. Ray Rowe et als, Defendants,' and numbered 24923; That said action was pending on and before the 4th day of November 1935; That petitioner set forth in his schedule of unsecured liabilities, on file herein, the claim upon which said action was based together with the title of the said action and its number; That prior to the said 4th day of November 1935, the said S. O. Holmes informed petitioner that he S. O. Holmes had procured a default judgment against petitioner; That petitioner believed the said S. O. Holmes and continued to so believe until after he filed his original petition in the above entitled matter for relief from execution; That the said judgment rendered in the above entitled Justice's Court action was entered (by default) on or about the 6th day of April 1936; That petitioner received no notification of the rendition of said judgment whatsoever from the Court, the court clerk or from the plaintiff, S. O. Holmes; That petitioner's first knowledge of said judgment came to him on or about the 9th day of March 1937." The District Court entered its order granting appellant permission to file his supplemental petition and also granted his oral motion to amend Schedule A-3 upon its face so as to read "S. O. Holmes, Assignee," instead of "S. O. Hoames, Assignee." On July 3, 1937, the Court entered its order that appellee's petition for a permanent injunction be granted and that an injunction issue accordingly. From this order the present appeal is taken. The main contention of appellant is that the order of the District Court granting the injunction is erroneous, in that *539 the Court did not have jurisdiction of the subject-matter involved in said petitions, because of the fact that neither the petitions, nor the evidence, disclosed that the bankrupt had exhausted his remedies in the state court so as to enable him to come into the Federal Court. With this contention of appellant we do not agree. A review of the decisions discloses that a Federal District Court, once having obtained jurisdiction of a controversy, and having rendered a decision in the matter, has complete power to protect the judgment or decree which it has rendered, and may go so far as to enjoin an action entertained in the state court by a litigant, involving the same subject-matter, when such action may in any way interfere with, or nullify the effect of said judicial determination. So here, the Court having discharged the appellee in bankruptcy, still retained sufficient jurisdiction to grant an injunction restraining appellant from levying execution upon a judgment rendered in his favor by the state court against the appellee upon a claim adjudicated in the bankruptcy court. That the District Court had the power to issue this writ is undoubted. The Judicial Code provides (28 U.S.C.A. § 377) that: "* * * The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." The Bankruptcy Act, section 2 (15), reinforces that authority by providing (11 U.S.C.A. § 11 (15), that: "* * * The courts of bankruptcy * * * are hereby invested, * * * with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, * * * to * * * (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this title * * *." Referring to these statutes, the Supreme Court has repeatedly said that, "`the power to issue an injunction when necessary to prevent the defeat or impairment of its jurisdiction is * * * inherent in a court of bankruptcy, as it is in a duly established court of equity.'" Steelman v. All Continent Corp., 301 U.S. 278, 289, 57 S.Ct. 705, 710, 81 L.Ed. 1085. See, also, Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 675, 55 S.Ct. 595, 605, 79 L.Ed. 1110. That the District Court not only had the power to issue the writ, but committed no error in issuing it in this particular case, is amply borne out by the case of Local Loan Co. v. Hunt, 292 U.S. 234, 239, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230, 93 A.L.R. 195, where the Court said: "The pleading by which respondent invoked the jurisdiction of the bankruptcy court in the present case is in substance and effect a supplemental and ancillary bill in equity, in aid of and to effectuate the adjudication and order made by the same court. That a federal court of equity has jurisdiction of a bill ancillary to an original case or proceeding in the same court, whether at law or in equity, to secure or preserve the fruits and advantages of a judgment or decree rendered therein, is well settled. [Cases cited.] And this, irrespective of whether the court would have jurisdiction if the proceeding were an original one. The proceeding being ancillary and dependent, the jurisdiction of the court follows that of the original cause, and may be maintained without regard to the citizenship of the parties or the amount involved * * *. "These principles apply to proceedings in bankruptcy. [Cases cited.] Petitioner relies upon a number of decisions where other federal courts sitting in bankruptcy have declined to entertain suits similar in character to the present one, on the ground that the effect of a discharge in bankruptcy is a matter to be determined by any court in which the discharge may be pleaded. [Cases cited.] To the extent that these cases conflict with the view just expressed they are clearly not in harmony with the general rule in equity announced by this court. And we find nothing, either in the nature of the bankruptcy court or in the terms of the Bankruptcy Act, which necessitates the application of what would amount to a special rule on this subject in respect of bankruptcy proceedings. * * * *540 "What has now been said establishes the authority of the bankruptcy court to entertain the present proceeding, determine the effect of the adjudication and order, and enjoin petitioner from its threatened interference therewith." See, also, Kline v. Burke Const. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Looney v. Eastern Texas R. Co., 247 U.S. 214, 38 S.Ct. 460, 62 L.Ed. 1084. Nor do we consider that the failure of the appellee to exhaust his remedies in the state court would preclude the District Court from exercising its jurisdiction in the matter. This was also determined in the case of Local Loan Co. v. Hunt, supra, which cited, among others, the case of Seaboard Small Loan Corporation v. Ottinger, 4 Cir., 50 F.2d 856, 77 A.L.R. 956. Here the appellant creditor contended that the District Court lacked jurisdiction to enjoin the Loan Company and its treasurer from attempting, by the assertion of a lien, from collecting a debt discharged by bankruptcy. The Court, in ruling against such contention, said at page 859: "Coming to the question of jurisdiction, we entertain no doubt as to the power of the court below to grant the relief prayed. The Bankruptcy Act § 17 expressly provides that, with certain specified exceptions, a discharge in bankruptcy shall release a bankrupt from all of his provable debts. 11 U.S.C.A. § 35. And as said by the Supreme Court in Chicago, B. & Q. R. Co. v. Hall, 229 U.S. 511, 515, 33 S.Ct. 885, 886, 57 L.Ed. 1306, it was `intended not only to secure equality among creditors, but for the benefit of the debtor in discharging him from his liabilities and enabling him to start afresh with the property set apart to him as exempt.' `The determination of the status of the honest and unfortunate debtor by his liberation from encumbrance on future exertion is matter of public concern,' said Chief Justice Fuller in Hanover Nat. Bank v. Moyses, 186 U.S. 181, 192, 22 S.Ct. 857, 862, 46 L.Ed. 1113. "In view of this purpose of the act and of the express provision that the bankrupt shall be released from all provable debts, it would be indeed a strange situation if the court vested with jurisdiction to enforce the act were without power to stay the hand of a creditor whose debt has been discharged by bankruptcy, but who nevertheless persists in harassing the bankrupt with efforts to collect it. It will not do to say that the bankrupt has an adequate remedy at law by pleading the discharge in case of suit, or by suing an employer if the latter withholds wages under an order such as that here. Such remedy is not adequate, because its assertion involves trouble, embarrassment, expense, and possible loss of employment. A laboring man who had availed himself of the benefits of the act would in many cases prefer to pay a debt discharged by bankruptcy rather than hazard his employment by bringing suit for wages withheld under notice like that with which we are dealing. And an employer in many cases would prefer to discharge an employee against whom a claim had been filed rather than engage in litigation with the claimant. The demand under an assignment order, in an effort to collect a debt discharged by bankruptcy, is nothing less than an attempt to circumvent the order discharging same and to deprive the bankrupt of the benefit of that order. It was to meet situations such as this that the bankruptcy court was vested with the general power under section 2, subsection 15 of the Bankruptcy Act (11 U.S.C.A. § 11 (15) to `make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this title.'" "The fundamental question involved is the effect of the discharge in bankruptcy upon the debt * * *. The question may be decided by either state or federal court according to state law, but the bankruptcy court has primary and superior jurisdiction to determine the effect of its own decree of discharge, and it may exercise, or refuse to exercise, that jurisdiction according to the exigencies of the case. * * * "We conclude that the trial court had jurisdiction to decide whether or not the discharge in bankruptcy relieved the bankrupt of the debt * * *." Sims v. Jamison, 9 Cir., 67 F.2d 409, 410, 411. "* * * it is well settled that a bankrupt when once discharged should not be hampered in the enjoyment of future earnings. The courts have repeatedly said that one of the purposes of bankruptcy is to give an embarrassed debtor a new chance in life; to wipe out the debts provable in bankruptcy and to allow him to apply his future earnings to future liabilities without embarrassment from his old creditors." *541 Equitable Life Assur. Soc. of United States v. Stewart, D.C., 12 F.Supp. 186, 192. See, also, Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195. Order affirmed.

630 A.2d 1136 (1993) Michelle MACK, Appellant, v. ZALCO REALTY, INC., Appellee. No. 91-CV-1526. District of Columbia Court of Appeals. Argued February 25, 1993. Decided September 9, 1993. *1137 Michelle Mack, appellant pro se. Joanne Sgro, for appellee. Before TERRY and FARRELL, Associate Judges, and MACK, Senior Judge. TERRY, Associate Judge: In this landlord-tenant case, the tenant appeals from a judgment of possession in favor of the landlord. Appellant makes several claims of error, all but one of which are either without merit or not properly before this court. The one exception is her contention that the trial court erred in failing to allow a Drayton stay[1] to remain in effect pending a final decision in her administrative appeal before the Rental Housing Commission (RHC). We agree with this contention and, accordingly, reverse the judgment and remand this case with instructions to reimpose the Drayton stay. I This suit, for possession of an apartment formerly occupied by appellant,[2] was filed by the landlord on January 24, 1989, after appellant had failed to pay rent due under her lease. Several weeks later, on March 14, appellant filed a complaint against the landlord with the Rental Accommodations and Conversion Division (RACD) of the District of Columbia Department of Consumer and Regulatory Affairs, the agency which regulates rental housing in the District of Columbia. In her RACD complaint, appellant alleged that the landlord was not properly registered with the RACD as a provider of rental housing and had imposed an illegal rent increase during her tenancy. See D.C.Code §§ 45-2515(f), 45-2516(a) (1990). On March 28 a judge in the Landlord and Tenant Branch of the Superior Court stayed this litigation, pursuant to Drayton, pending a decision by the RACD in the administrative proceeding. On August 7, 1991, an RACD hearing examiner dismissed appellant's administrative complaint. Because the landlord had filed an amended registration form with the RACD in response to an interim order, appellant's first claim had become moot. In addition, the hearing examiner ruled that the challenged rent increase was exempt from the local rent control statute because the mortgage on appellant's apartment building was federally subsidized. See D.C.Code § 45-2515(a)(1) (1990). Appellant appealed to the RHC on August 23 from the decision of the RACD hearing examiner. *1138 Approximately one month later, on September 26, 1991, the landlord filed a motion in the trial court to lift the Drayton stay. Following a hearing on October 8, attended only by counsel for the landlord, the court granted the motion and lifted the stay. Appellant's motion for reconsideration was denied, the court noting that it had granted the motion to lift the stay because appellant had not appeared in court to oppose it.[3] However, since the earlier ruling had been based on appellant's lack of opposition rather than on the merits, the court allowed appellant to make an oral motion at trial to reimpose the stay. A trial was held on November 25 on the landlord's complaint for possession, and at the end of it judgment was entered for the landlord.[4] Before this court appellant raises numerous challenges to the proceedings before the RACD and in the trial court. She contends (1) that the RACD hearing examiner erred in finding that the landlord had properly registered with the RACD; (2) that the hearing examiner erred in concluding that the rent increase imposed by the landlord was not subject to the local rent control statute; (3) that the trial court improperly admitted certain evidence (unspecified exhibits offered by the landlord); (4) that the trial judge was "predisposed" against her; (5) that the trial court erred in lifting the Drayton stay while her appeal to the RHC from the RACD decision was pending; and (6) that the trial court erred in failing to notify her of the hearing at which it granted the landlord's motion to lift the Drayton stay. We address each of these contentions in turn. II Appellant's first two arguments, concerning whether the landlord was properly registered with the RACD and whether her apartment was exempt from the rent control statute because it was federally subsidized, raise issues related exclusively to her administrative complaint before the RACD. Appellant's challenges to the RACD examiner's rulings on these issues, however, were not properly before the trial court and cannot be raised in this appeal, which is limited to a review of what happened in the landlord and tenant court. A party contesting any decision of the RACD cannot seek direct review of that decision in either the Superior Court or this court, but must first take an appeal to the RHC, as appellant has done. The final decision of the RHC may then, and only then, be brought directly to this court by the filing of a petition for review under D.C.Code § 1-1510(a) (1992). Appellant's claims that the landlord is not properly registered with RACD and that the rent increase of which she complains is subject to the requirements of the rent control law must therefore be litigated first before the RHC, and can only be brought to this court if she seeks review of the RHC's final decision, which so far she has apparently not done.[5] As for appellant's third and fourth claims of error—her argument that the trial court erroneously admitted into evidence certain exhibits (not identified) offered by the landlord and her assertion that the trial judge was "predisposed"—we cannot resolve these claims because the record is too meager to enable us to do so. In particular, the record does not contain a transcript of the trial, which we would have to review in order to determine whether any error occurred in the course of the trial. Because any trial court judgment is presumed to be valid, "it is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred." Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (citations omitted). This means, specifically, that it was appellant's duty in this case to ensure that a *1139 transcript was prepared by the court reporter and included in the record. The lack of a transcript is fatal to appellant's claims of trial error. We have no way of deciding whether the challenged exhibits were properly or improperly admitted; we do not even know what they were. Likewise, lacking a transcript, we cannot determine whether the trial judge was "predisposed" against appellant as she asserts.[6] This brings us to the one contention of appellant that does have merit: her challenge to the lifting of the Drayton stay. III Appellant argues that the trial court erred in lifting the Drayton stay pending the outcome of her appeal from the RACD decision to the RHC. We agree. In the Drayton case, supra note 1, this court held that "when there is pending before the [RACD] or RHC a challenge to a rent increase that bears upon the amount of rent owed by a tenant defending a possessory action brought for nonpayment of rent," the doctrine of primary jurisdiction requires the landlord and tenant court to "stay the action to await the ruling of the [RACD] or, if an appeal is taken to the RHC, then of that body." 462 A.2d at 1120 (footnote omitted; emphasis added). This means that the landlord had no right to have the stay lifted while appellant's administrative appeal was pending. On the contrary, appellant had a right to a continuation of the stay throughout the pendency of her appeal to the RHC, and perhaps even beyond.[7] The landlord contends that the trial court did not err because appellant failed to seek an administrative stay of the adverse RACD decision pending her appeal to the RHC. The regulations governing appeals before the RHC provide, in pertinent part, that "[a] party appealing a final decision of the [RACD] which awards other than the payment of money ... may seek a stay of the final decision by filing a motion [with the RHC]." 14 DCMR § 3805.1 (1991). The landlord contends that since the RACD decision did not award "the payment of money," and since appellant failed to request a stay from the RHC, the trial court was not compelled to continue the Drayton stay pending the outcome of the administrative appeal. We are not persuaded that appellant's failure to seek a stay from the RHC affected in any way the trial court's duty to await the outcome of those administrative proceedings, as Drayton requires. It is not at all clear that the effect of the RACD decision was not to award "the payment of money," as that phrase is used in section 3805.1, in that it ratified a disputed rent increase.[8]See 14 DCMR § 3802.11 (1991) (defining the phrase "the payment of money" as encompassing "the award of rent increases to a [landlord]"). Thus the stay which appellee claims appellant failed to request may have arisen automatically. See 14 DCMR § 3802.10 (1991) (providing for an automatic stay when a disputed order involves the payment of money and the petitioner establishes an escrow account or obtains a bond). But we need not decide whether a stay arose automatically to resolve this appeal. Drayton holds that, given the RACD's primary jurisdiction over the interpretation and implementation of the District of Columbia's *1140 rent control law, the landlord and tenant court must await the outcome of any appeal to the RHC when confronted with a suit for possession in which the amount of rent is in dispute—as was the case here. Neither this holding nor the reasoning which underlies it[9] supports the proposition that appellant's decision to seek, or not to seek, a stay from the RHC during the pendency of an appeal to the RHC (or to this court from the RHC, for that matter) could deprive the agency of primary jurisdiction. There was an ongoing dispute between the parties over the amount of rent owed under the lease. The landlord's success in its suit in the landlord and tenant court, which was based on nonpayment of rent, was therefore contingent on a determination by the agency (subject to review by this court) that the amount of rent it claimed to be owed was lawful. Since there had not yet been a final administrative decision on that issue, the trial court should not have lifted the Drayton stay until the administrative proceedings, including all appeals, were completed.[10] Finally, we deny the landlord's motion to dismiss this appeal as moot. Appellant has moved out of the apartment, which has been re-rented to a third party; consequently, she cannot regain possession even if she ultimately prevails in this litigation. The landlord contends that this state of affairs moots the instant appeal. We disagree. If appellant wins her appeal before the RHC, she may be entitled to a partial refund of the money she paid into the registry of the court while this case was pending, money which is now in the hands of the landlord. Indeed, she might even have a claim against the landlord for wrongful eviction, see Camacho v. 1440 Rhode Island Avenue Corp., 620 A.2d 242, 246 (D.C.1993), although that seems less likely. We need not and do not decide now whether such a claim might have merit. We conclude only that the bare fact that the apartment has been rented to a new tenant does not render this case moot. The judgment of possession is reversed. This case is remanded to the trial court with directions to reinstate the Drayton stay, and for such further proceedings as may be appropriate. Reversed and remanded. NOTES [1] See Drayton v. Poretsky Management, Inc., 462 A.2d 1115 (D.C.1983). [2] At oral argument appellant informed us that she vacated the apartment after the trial court entered judgment against her. [3] Appellant asserted in her motion for reconsideration that she did not attend the October 8 hearing because she never received notice of it. [4] Appellant did move orally at trial to reimpose the Drayton stay, but her motion was denied. [5] We do not know whether the RHC has yet made a final decision in appellant's case. However, taking judicial notice of our own files and records, see In re Marshall, 549 A.2d 311, 313 (D.C.1988), we find that there is no pending petition for review in appellant's name from any decision of the RHC. [6] Appellant states in her brief: The question regarding [the judge's] behavior is based on the fact that I was not allowed to present my case. Also it appeared that the judge inquired about my case before it was called. The decision was made with no deliberation after I tried to present argument. Nothing in the limited record before us supports any of these assertions. [7] In a footnote in Drayton, we said that since the parties to a proceeding before the RACD "have the right to appeal the final decision of the [RHC] to this court, it follows that the trial court should also await the outcome of any such appeal." 462 A.2d at 1120 n. 9 (citations omitted). Therefore, if the RHC rules against appellant and she files a petition for review of that ruling under D.C.Code § 1-1510(a), the Drayton stay must remain in effect until this court's final disposition of the petition for review. [8] Appellant's administrative complaint before the RACD alleged, in part, that the landlord had imposed an illegal rent increase during her tenancy. [9] See United States v. Western Pacific R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956): The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.... "Primary jurisdiction"... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. Id. at 63-64, 77 S.Ct. at 165, quoted in Drayton, supra, 462 A.2d at 1118. [10] In view of our holding that the Drayton stay was erroneously lifted, we need not consider appellant's final contention that the trial court erred in failing to notify her of the hearing on the landlord's motion to lift the stay.

678 S.E.2d 703 (2009) TOWN OF ORIENTAL, Plaintiff, v. Lacy HENRY and wife, Judy B. Henry, Defendants. No. COA08-896. Court of Appeals of North Carolina. July 7, 2009. *704 Wheatly, Wheatly, Weeks & Lupton, P.A., by Stevenson L. Weeks, Beaufort, and Davis, Hartman, Wright, PLLC, by Michael Scott Davis, New Bern, for Plaintiff. Lee, Hancock & Lasitter, PA, by Moses D. Lasitter, and McAfee Law, P.A., by Robert J. McAfee, New Bern, for Defendants. *705 STEPHENS, Judge. I. Procedure The Town of Oriental ("the Town") filed an action on 6 March 2003 in the Superior Court of Pamlico County against Lacy and Judy B. Henry ("the Henrys"), and E. Sherrill and Phyllis H. Styron ("the Styrons"), seeking to clear title to real property known as the terminus of South Avenue ("the property" or "the South Avenue terminus"). The Town also filed a Notice of Lis Pendens with respect to the property on that date. On or about 23 May 2003, the Henrys filed an answer and counterclaim, seeking, inter alia, to be declared the owners of the real property, raising certain affirmative defenses, and moving to dismiss the Town's claim pursuant to Rule 12(b)(6). On 25 June 2003, the Town amended its complaint, adding an alternative claim based on adverse possession, and filed its reply and affirmative defenses to the Henrys' counterclaims. On or about 27 June 2003, the Henrys filed an answer to the Town's amended complaint. On 10 July 2003, the Pamlico County Clerk of Superior Court entered default against the Styrons for failure to plead or otherwise appear in the case.[1] On 5 April 2007, the Town filed a motion for summary judgment. The Town's motion for summary judgment and the Henrys' 12(b)(6) motion were heard on 31 December 2007. Order was entered 2 May 2008 denying summary judgment for the Town, treating the Henrys' 12(b)(6) motion as a motion for summary judgment, and granting summary judgment for the Henrys. From this order, the Town appeals. II. Facts On 30 March 1899, the Town of Oriental, through its Board of Town Commissioners ("Commissioners"), "[o]rdered that the Commissioners meet the first Monday in May [of 1899] and lay off the Streets for the town." On 4 December 1899, the Commissioners ordered the town clerk to write and post the following notice in the Town: To the citizens of the town of Oriental. Please take [n]otice, that whereas the board of town commissioners have had the Streets run out and the corners located so that any and all persons can know where the Streets are, the citizens of this town are hereby notified that any person or persons building houses or fences on lands condemned by the board of commissioners for Streets, will do so at their own risk and expense. On 3 July 1900, the Commissioners "[o]rdered that Henry Brown, Jr. of Newberne be employed to make a survey and plot of the Town at a wage[] of $4.00 per day and expenses." Henry Brown, Jr. completed the survey and plot of the Town and presented the Town with a bill for his services at the 3 October 1900 Commissioners' meeting. In June 1907, an official map of the Town was "[t]raced from [the] blueprint of a survey made by H.A. Brown, Jr.[,] Surveyor[.] Survey dated July 1900." The map was recorded in Deed Book 51, Page 600 in the Pamlico County Registry and subsequently transferred to Map Book 11, Page 20 in the Pamlico County Registry. The map depicts the Town divided into 32 blocks with South Avenue running in an east-west direction, bordering lot 31 on the south side and lot 32 on the north side, intersecting Wall Street, and terminating at Raccoon Creek. The Oriental Bulkhead and Improvement Company ("OBIC") had a survey entitled "Survey Oriental Bulkhead Property" recorded in Plat Cabinet 1, Slide 3, Page 19 of the Pamlico County Registry.[2] This survey depicts the property fronting Raccoon Creek subdivided into approximately 34 lots and shows South Avenue running in an east-west direction, intersecting Wall Street and the newly designated Avenue A, and terminating at Raccoon Creek. A map of the Town prepared by R.C. Holton, County Surveyor, in October 1939 compiles the survey completed by H.A. Brown, Jr., a survey of property surrounding Raccoon Creek referred to as Neuse River *706 Heights completed by P.J. Delemar in 1906, and the survey done by OBIC. This map again depicts South Avenue running in an east-west direction, intersecting Wall Street and Avenue A, and terminating at Raccoon Creek. The property at issue is a portion of South Avenue between Avenue A and Raccoon Creek. Unlike the rest of South Avenue, this property was never paved or used for vehicular traffic. However, some evidence in the record suggests the property was used by pedestrians to access Raccoon Creek. By deed dated 16 October 1911, and recorded in Book 54, Page 590 of the Pamlico County Registry, L.B. Midgette and wife, Rebecca M. Midgette, conveyed a tract of land to OBIC, which included the South Avenue terminus. On 17 October 1911, OBIC executed a mortgage in favor of the Bank of Oriental which was recorded in Book 57, Page 296 of the Pamlico County Registry. On or about 30 April 1917, the Bank of Oriental foreclosed on the mortgage deed to OBIC. A court-appointed receiver for the Bank, W.J. Swann, sold the tract of land to Benjamin Wallace O'Neal ("O'Neal"). Beginning in or around 1937, the Town leased the South Avenue terminus to various individuals and entities, including Defendant Lacy Henry, his father Lacy Carl Henry, and the Henry family business, Neuse Ways Company. The Town's Official Minutes ("Minutes") from 7 December 1937 reflect that the Town "lease[d] the water front at the foot of [South Avenue] at the North west [sic] end, to Hampton Spruill for ten years[.]" The Minutes from 7 May 1951 reflect that the Town considered a transfer of the lease of the South Avenue terminus to Neuse Ways Company and its owners Lacy Henry and Curtis Benton. On 10 July 1958, the Minutes reflect that Lacy Henry requested a renewal of the lease of the property to Neuse Ways Company, as the lease was set to expire 30 June 1959. The Commissioners agreed to a ten-year lease, from 30 June 1959 to 30 June 1969. By lease executed on 16 July 1969, the Town again renewed the lease. The lease provides: We, the governing board of commissioners of the Town of Oriental, do hereby lease to Mr. L.C. Henry of Oriental, N.C. the rights and privileges for private use the extension of South Avenue beyond the area of traffic usage and extending to Raccoon Creek, said property to be utilized as the site of a marine railways business; said lease to endure for a period of five (5) years from date of July 1, 1969 and thus to terminate on June 30, 1974. On 2 July 1974, the Minutes reflect that the lease was renewed for another five years. By lease dated 19 May 1977, and recorded in Book 190, Page 298 of the Pamlico County Registry, the Town leased the property to Lacy C. Henry and Defendant Lacy M. Henry for a period of 15 years. The lease states: WHEREAS, the Town of Oriental is the owner of a public dedicated street known as South Avenue; WHEREAS, the Town of Oriental desires to lease that portion of South Avenue which is not used by vehicular traffic to Lacy M. Henry and Lacy C. Henry. The lease more particularly describes the property to be leased as follows: Bounded on the North by the land of Garland Fulcher[;] bounded on the [East] by the paved portion of South Avenue; bounded on the South by Neuse Ways and Marine, Inc.; and bounded on the [West] by Raccoon Creek (Oriental Harbor). Said land being the extension of South Avenue beyond the area of vehicular traffic and extending to Raccoon Creek and shown on a map entitled "Survey, Oriental Bulkhead Property", [sic] which is recorded in Map Book 1, page 19, Pamlico County Registry. In 1979, O'Neal died testate, leaving his property to Ann Wadley Wing ("Wing"). On 7 September 1982, the Minutes reflect that the Town received an offer from Defendant Lacy Henry to purchase the South Avenue terminus property which he was currently leasing from the Town. The record does not reflect any response to this offer. On 28 March 1995, Wing executed a quitclaim deed in favor of Defendant Lacy Henry, releasing all of her right, title, claim, and interest in the South Avenue terminus property. Upon receiving the quitclaim deed, the *707 Henrys erected a fence along the boundaries of the property, except for that portion of the property fronting Raccoon Creek. On 21 July 1995, Wing filed a Declaration of Withdrawal pursuant to N.C. Gen.Stat. § 136-96, attempting to withdraw dedication of the subject property for public or private use. On 6 March 2003, the Town initiated this action to clear title to the property. III. Discussion The Town contends the trial court erred in granting summary judgment in favor of the Henrys and in not granting summary judgment in favor of the Town. We agree. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2007). The trial court may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact. Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). Furthermore, "all inferences of fact ... must be drawn against the movant and in favor of the party opposing the motion." Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (internal quotation marks omitted). The standard of review for summary judgment is de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open. Wofford v. Highway Commission, 263 N.C. 677, 683, 140 S.E.2d 376, 381, cert. denied, 382 U.S. 822, 86 S.Ct. 50, 15 L.Ed.2d 67 (1965). However, insofar as the general public is concerned, such dedication is but a revocable offer and is not complete until the offer is accepted in some proper way by the responsible public authority. Owens v. Elliott, 258 N.C. 314, 317, 128 S.E.2d 583, 586 (1962). A municipality may or may not accept the dedication at its election. Osborne v. North Wilkesboro, 280 N.C. 696, 699, 187 S.E.2d 102, 104 (1972). Acceptance is conclusively presumed if the responsible public authority improves the streets and opens them to public use. Id. "In the event of acceptance of [a] portion of [a] street, ... the unaccepted portion would remain exactly as it was before it became a part of the town, dedicated to public use, though not kept in repair by the town, and is not to be obstructed because it must at all times be free to be opened as occasion may require." Home Real Estate Loan & Ins. Co. v. Carolina Beach, 216 N.C. 778, 788, 7 S.E.2d 13, 20 (1940). The municipality "has no right to relinquish or give away the unaccepted portion of the dedicated street." Id. If, however, for a period of fifteen years or more, the municipality fails to improve and open to public use a dedicated street, the owner may file and record a declaration withdrawing the street from dedication. N.C. Gen.Stat. § 136-96 (2007); Osborne, 280 N.C. at 699, 187 S.E.2d at 104. Nonetheless, "[t]he dedication of a street ... may not be withdrawn if the dedication has been accepted and the street, or any part of it, is actually opened and used by the public." Tower Dev. Partners v. Zell, 120 N.C.App. 136, 142, 461 S.E.2d 17, 21 (1995) (citing Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 29, 265 S.E.2d 123, 129 (1980)). In this case, OBIC caused a plat of its properties to be placed on the public records of Pamlico County. Said land was divided into lots and streets, and the plat was recorded in Plat Cabinet 1, Slide 2 at Page 19 of the Pamlico County Registry. The plat depicts South Avenue running in an east-west direction, intersecting Wall Street and Avenue A, and terminating at Raccoon Creek. Additionally, the map of the Town prepared in October 1939 depicts South Avenue running in an east-west direction, intersecting Wall Street and Avenue A, and terminating at Raccoon Creek.[3] It is uncontroverted that a *708 portion of the property dedicated as South Avenue has been paved and is open to vehicular traffic. The Henrys assert, and the trial court found and concluded, that from the time of the recording of the map from OBIC until the date of the hearing on Defendants' motion to dismiss, the Town of Oriental did nothing to indicate that it accepted that portion of South Avenue that is in contention in this matter. However, where a portion of a dedicated street is accepted, the unaccepted portion remains dedicated to public use, though not kept in repair by the town, and "must at all times be free to be opened as occasion may require." Home Real Estate Loan & Ins. Co., 216 N.C. at 788, 7 S.E.2d at 20. Furthermore, although the trial court found that the town leased portions of the South Avenue terminus, "[t]he fact that a municipality improves or directs improvement of [only part] of the property dedicated does not constitute an abandonment of the balance[.]" Salisbury v. Barnhardt, 249 N.C. 549, 555, 107 S.E.2d 297, 301 (1959) (quotation marks and citation omitted). Similarly, "`the public use of only a part of land dedicated for a public highway does not constitute an abandonment of the unused portion.'" Id. (quotation marks and citation omitted). At the hearing before the trial court, Defendants submitted six affidavits, five of which contain the following statement: "That I have never known or suspected that South Avenue extended to Raccoon Creek; I believed that South Avenue turned southward and became Avenue A because of its physical appearance." The trial court found that "[a]ll of the Affidavits submitted by the Defendants... indicate that the terminus point of South Avenue did not extend to Raccoon Creek, that it turns southward and becomes Avenue A, thereby bypassing the area in dispute in the lawsuit." However, these affidavits do not establish that the property dedicated as South Avenue did not extend to Raccoon Creek; these affidavits support only the uncontroverted fact that the portion of South Avenue that was paved and opened for public use intersects "Avenue A, thereby bypassing the area in dispute in the lawsuit." The unpaved portion of South Avenue continued to Raccoon Creek, as shown in the various surveys and maps of the Town beginning in July 1900, and as attested to in affidavits submitted by the Town at the summary judgment hearing.[4] Accordingly, as part of South Avenue was paved and opened to public use, the remaining portion of South Avenue, including the South Avenue terminus, remained dedicated to public use. The Henrys contend, however, and the trial court found, that the dedication of the South Avenue terminus was effectively withdrawn. We disagree. The South Avenue terminus was not subject to withdrawal from dedication since that property was but an unopened portion of South Avenue which was otherwise actually opened and used by the public. Food Town Stores, Inc., 300 N.C. at 29, 265 S.E.2d at 129. Even assuming, arguendo, that the South Avenue terminus was subject to withdrawal, "[w]e note, moreover, that land may not be withdrawn from dedication until the fee owners record in the register's office a declaration withdrawing such land from the use to which it has been dedicated." Id. (citing N.C. Gen.Stat. § 136-96). In this case, the evidence established that Wing conveyed the land at issue to Defendant Lacy Henry by quitclaim deed dated 28 March 1995.[5] Subsequently, on 21 July 1995, Wing *709 filed a Declaration of Withdrawal regarding the subject property pursuant to N.C. Gen. Stat. § 136-96. However, as Wing was not the fee owner of the property on the date she filed the Dedication of Withdrawal, having already quitclaimed the property to Defendant Lacy Henry, Wing's withdrawal of dedication was not legally effective. The trial court further found that Defendant Lacy Henry, upon receiving the quitclaim deed from Wing, "immediately erected a fence along the boundaries of the properties conveyed[,]" and concluded that Defendant Lacy Henry "has been in open, hostile[,] and notorious possession, under known and visible boundaries, of said property under color of title for at least eight (8) years." However, "a mere nonuse[] of a portion of a street fenced in with abutting property [is not] an abandonment of the street by the public. Some private use of the public way is not infrequently accorded abutting owners until the public use requires its surrender." Salisbury, 249 N.C. at 555, 107 S.E.2d at 301 (quotation marks and citation omitted). Furthermore, "the fencing in of a street or the planting of trees, shrubs, flowers and grass are not such permanent improvements as work an estoppel even though the city does not complain." Id. (quotation marks and citations omitted). Moreover, [n]o person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to hold that such action is barred by any statute of limitations. N.C. Gen.Stat. § 1-45 (2007). Because we conclude for the foregoing reasons that the South Avenue terminus remained dedicated to public use, the Henrys were not permitted to acquire possession of the property by adverse possession. Finally, the trial court found that the Henrys have paid taxes on the South Avenue terminus since 1989. However, "[t]he mere collection of taxes on dedicated property ordinarily will not estop a municipality from asserting the public character of the land dedicated[.]" Lee v. Walker, 234 N.C. 687, 696, 68 S.E.2d 664, 670 (1952). Accordingly, as there were no genuine issues of material fact as to whether the Town was the owner of the South Avenue terminus, the Town was entitled to judgment as a matter of law. We hold that the trial court erred in granting summary judgment in favor of the Henrys and in failing to grant summary judgment in favor of the Town. We thus reverse and remand this matter to the Pamlico County Superior Court with instructions to enter an order consistent with this opinion. REVERSED and REMANDED. Judges STEELMAN and GEER concur. NOTES [1] The Styrons are not parties to this appeal and the record does not indicate that the Styrons challenged the entry of default. [2] The record does not indicate when this survey was made or recorded. [3] Sherrill Styron, former Mayor of the Town, submitted an affidavit in which he states, "While serving as the Mayor of the Town of Oriental, I have also observed that all of the official maps of the Town ... reflect that the west terminus of South Avenue runs to the water's edge ... of Raccoon Creek." [4] The Town submitted affidavits from John W. Bond and Fonnie E. Higgins wherein the affiants stated, "Everyone knew that the terminus of South Avenue was a public street and extended to Raccoon Creek." [5] "A quitclaim deed conveys only the interest of the grantor, whatever it is, no more and no less." Heath v. Turner, 309 N.C. 483, 491, 308 S.E.2d 244, 248 (1983). If the grantor has complete ownership at the time of executing the deed, "the deed is sufficient to pass such ownership...." Black's Law Dictionary 446 (8th Ed. 2004) (citation omitted).

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 10-2549 _____________ UNITED STATES OF AMERICA v. WILLIAM COLON, Appellant _____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 09-cr-00297-001) District Judge: Honorable Eduardo C. Robreno ____________ Argued: April 28, 2011 ____________ Before: BARRY, HARDIMAN and TASHIMA,* Circuit Judges (Opinion Filed: June 30, 2011) ____________ Keith M. Donoghue, Esq. (Argued) Michael D. Raffaele, Esq. Brett G. Sweitzer, Esq. Elizabeth Toplin, Esq. Defender Association of Philadelphia Suite 540W 601 Walnut Street The Curtis Center * Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. Philadelphia, PA 19106 Counsel for Appellant David L. Axelrod, Esq. (Argued) Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106-0000 Counsel for Appellee ____________ OPINION ____________ BARRY, Circuit Judge William Colon received the statutory maximum of 120 months‟ imprisonment after a jury found him guilty of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). In this appeal, he contends that the District Court erred in admitting the testimony of two jailhouse informants and in calculating his Guidelines range. We will affirm. I. Background A. The First Trial and the Motion in Limine On April 30, 2009, a grand jury returned an indictment charging Colon with one count of possessing a firearm as a convicted felon. Trial began on September 16, 2009, and it ended with a hung jury. 2  Prior to the re-trial, the government moved to admit the testimony of two newly discovered witnesses, Hon Phock and Sica Lam. Each would testify that Colon had told them, while incarcerated at the Federal Detention Center in Philadelphia, that he possessed a gun on the night in question because he was going to shoot a man named “Face” over a drug debt. Prior to the re-trial, the District Court first heard argument on the motion in limine, indicating that it understood Colon‟s argument “[t]hat it‟s going to be confusing, and . . . the prejudicial effect will outweigh the probative value.” (A104.) It ultimately decided not to rule on the motion until during the re-trial, at which time it explained, I guess it has been said that he either was going to shoot someone, or he was going to shoot a drug dealer over a PCP debt. . . . [T]he fact that he was going to shoot someone I think is a different way of saying that he had a gun. Not that separate from that to that effect is also an admission. That is, you can‟t shoot somebody unless you have a gun. I think that‟s a reasonable interpretation. . . . (A261.) Slightly later, it ruled, [M]y take on what is going on here is that the statements by the two inmates would be admissible to the extent that they can testify that the defendant admitted to the possession of the gun in the night in question, and that the defendant had admitted that he possessed the gun because he intended to shoot someone that evening. . . . I find that both the possession of the gun and shooting someone would be intrinsic evidence. Additionally, under 404(b), that evidence would have proper purpose to show the circumstances of the case, and the reason why the defendant who now denies having the gun, had a gun that night. It would also be relevant in that this is a possession case, and the probative 3  value, that is the admission, is not substantially outweighed by any amount of unfair prejudice. (A264-65.) The District Court thus permitted Phock and Lam to testify that Colon admitted to possessing the gun because he was going to shoot a man named Face, but excluded any testimony as to a drug debt. B. The Evidence at the Re-trial 1. The Officers At the re-trial, the principal testimony was that of Philadelphia Police Officers Rollie Ramos and Joseph Slobodrian. Each testified that on the night of April 11, 2009, they were assigned to patrol Philadelphia‟s 25th District. While heading northbound on the 2900 block of 5th Street, they noticed Colon, whom they believed was walking suspiciously and had his hands near his waistband. Colon would not answer the officers‟ questions about what he was doing in the area and began to run. Colon ignored the officers‟ repeated commands to stop and instead ran towards a lot covered in debris and glass. To prevent him from reaching the lot, Ramos discharged his Taser into Colon‟s back. Colon refused to place his hands behind his back and instead attempted to run. After Ramos discharged the Taser two more times, the officers subdued Colon and placed him in handcuffs. Slobodrian, who actually cuffed Colon, testified that he was unable to cuff him as securely as he typically would. Slobodrian quickly frisked Colon, though he also did not do so thoroughly. As Slobodrian led Colon to the police cruiser, Colon broke free. Although his 4 hands were cuffed, he was able to access a hidden handgun and — according to Slobodrian‟s testimony — point the gun at both officers. The gun fell to the floor without being fired, but during the ensuing scuffle, Colon repeatedly kicked the officers, and the officers punched and kicked Colon. Ramos also discharged the Taser at him four more times. Colon was eventually subdued, and the firearm was recovered. 2. The Informants Consistent with the District Court‟s ruling on the motion in limine, both Phock and Lam testified that Colon had informed them that he possessed the gun on the night in question because he was planning to shoot a man named Face. C. Sentencing At the sentencing hearing on May 27, 2010, the District Court adopted the Pre- Sentence Report (“PSR”) in substantial part. The PSR calculated that the base offense level was 20, pursuant to U.S.S.G. § 2K2.1(a)(4). It added two levels pursuant to § 2K2.1(b)(4)(A), because the firearm was stolen; four levels pursuant to § 2K2.1(b)(6), because Colon used or possessed the firearm in connection with another felony offense, and six levels pursuant to § 3A1.2(c), because Colon had assaulted a law enforcement officer during the offense. The District Court accepted each of the enhancements except the two-level enhancement for the stolen firearm, yielding a total offense level of 30. Given Colon‟s criminal-history category of III, this yielded an advisory range of 121 to 151 months 5 (without regard to the statutory maximum of 120 months). The District Court ultimately imposed the maximum lawful sentence of 120 months. II. Discussion1 A. The Evidentiary Ruling Colon‟s main contention is that by permitting Phock and Lam to testify that he intended to shoot “Face,” the District Court violated Federal Rule of Evidence 403, which provides that relevant evidence may excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. While Colon does not fault the District Court for permitting Phock and Lam to testify that he had admitted possessing the gun, he argues that the additional information that he planned to shoot Face would only inflame the jury. Because the District Court explained its evidentiary ruling on the record, we review that ruling for abuse of discretion. United States v. Murray, 103 F.3d 310, 318 (3d Cir. 1997). Colon cannot show such an abuse, for as we have previously held, a motive to commit gun violence may be properly admitted in a prosecution for unlawful possession of a firearm: The Dissent questions whether motive is “relevant in a case such as this . . . [because] we are not faced with a situation where answering „why‟ would help solve the crime. . . .” Motive is one of the permissible purposes listed in Rule 404(b) not because the “why” helps solve a crime, but because it is highly relevant to show that a defendant had a motivation to commit the crime for which he is being charged. In a case like this, where Lee is 1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. 6  asserting that he never had a gun on the day in question, it is important to know that he had a personal motivation to possess a gun. Indeed, someone who is involved in an ongoing feud — a feud during which guns have been used — is far more likely to have a gun in his possession than someone who is not involved in such a feud. United States v. Lee, 612 F.3d 170, 187 n.19 (3d Cir. 2010) (citation omitted and emphasis added); see also United States v. Harris, 587 F.3d 861, 868 (7th Cir. 2009) (holding that evidence of gang membership was admissible because “[t]he testimony also reflected Harris‟s motive for possessing these particular firearms”); United States v. Weems, 322 F.3d 18, 25 (1st Cir. 2003) (holding that evidence that defendant‟s residence “was a drug house” was relevant because it “gave Weems a motive to have the gun on him”). In light of our precedent holding that evidence of motive is admissible to prove possession of a firearm, the District Court‟s evidentiary ruling was not an abuse of discretion. B. The Sentencing Issues Colon also challenges the two sentencing enhancements applied by the District Court that arose from his assault of the officers (that is, § 2K2.1(b)(6) and § 3A1.2(c)). We “review factual findings relevant to the Guidelines for clear error.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007). “When a sentencing court clearly errs in making factual findings, the resulting sentence will generally be deemed unreasonable and, subject to the doctrines of plain and harmless error, will result in remand to the 7 district court for resentencing.” United States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007). In applying these two enhancements, the District Court noted that “both officers testified that the defendant pointed the gun at them during the course of an arrest.” (A553.) As Colon argues, this recollection was incorrect; Slobodrian testified that Colon pointed the gun at him and Ramos (A302), but Ramos testified that he did not see the handgun until it had fallen to the floor. (A177.) This error was harmless, however, as Slobodrian‟s undisputed testimony that the gun was pointed at him was a sufficient basis for the District Court to apply the two enhancements. In other words, had the District Court found that the gun was pointed only at Slobodrian, its Guidelines calculations would have been identical. Because Colon does not raise a challenge to the substantive reasonableness of his sentence, we need not determine whether the District Court‟s incorrect recollection of Ramos‟s testimony might have been relevant under Section 3553.2 III. Conclusion We will affirm the judgment of the District Court. 2 Colon also contends that 18 U.S.C. § 922(g) exceeds Congress‟s power under the Commerce Clause. We have considered and rejected this argument, and as Colon concedes, we are bound by United States v. Singletary, 268 F.3d 196 (3d Cir. 2001). 8 United States v. William Colon, No. 10-2549 TASHIMA, Circuit Judge, dissenting: Because I would reverse the conviction and remand for a new trial, I respectfully dissent. This was a close case, and the 403 evidence played a pivotal role in the re-trial, which ended with a conviction, after the first trial ended in a hung jury. Two jailhouse informants, Hon Phock and Sica Lam, testified that defendant Colon admitted to them that he possessed a gun on the night in question, and that he possessed the gun because he intended to shoot a man named “Face” over a drug debt. The defense’s objection that the second half of this statement – about the purpose for which Colon possessed a gun – should be excluded under Fed. R. Evid. 403 was overruled. Although, as the majority points out, the District Court did state that “the probative value, that is the admission, is not substantially outweighed by any amount of unfair prejudice,” Maj. Op. at 3-4 (quoting District Court’s ruling), we have held that such a conclusory statement, without more, does not constitute a “rational explanation” of the trial court’s reasoning. United States v. Palma-Ruedas, 121 F.3d 841, 852 (3d Cir. 1997), overruled on other grounds by United States v. Rodriguez-Moreno, 526 U.S. 275 (1999). The District Court’s reasoning on the Rule 403 objection is not apparent from the 1 record in this case.1 Therefore, I believe our review of the District Court’s ruling on this point should be de novo. See United States v. Sriyuth, 98 F.3d 739, 745 n.9 (3d Cir. 1996); United States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994). The majority concludes that the District Court did not abuse its discretion because “evidence of motive is admissible to prove possession of a firearm.” Maj. Op. at 7. Like the District Court, however, the majority engages in only half the inquiry required by Rule 403. Evidence does not need to lack any probative value whatsoever to be subject to exclusion under Rule 403. Instead, the Rule 403 analysis is a balancing test that requires the District Court to balance the probative value against the danger of unfair prejudice. The greater the danger of unfair prejudice, the more probative the evidence needs to be to pass muster under the test. See United States v. Murray, 103 F.3d 310, 319 (3d Cir. 1997). The majority cites to our recent holding in United States v. Lee, 612 F.3d 170 (3d 1 In an initial discussion with counsel of the defense’s objection to the testimony prior to trial, the District Judge appeared to be weighing the Rule 403 factors of probative value and undue prejudice. But the District Judge did not rule on the issue that day. Instead, he discussed the objection with counsel again in a sidebar during the trial. During this discussion, the District Judge focused mainly on the Rule 404(b) analysis, discussing, for example, whether testimony that Colon planned to shoot Face and that the shooting would have been over a drug deal constituted “intrinsic” evidence. Eventually the District Judge concluded that the fact that Colon planned to shoot Face “would be intrinsic evidence” and “would have proper purpose” under Rule 404(b) “to show the circumstances of the case, and the reason why the defendant . . . had a gun that night.” He then made the conclusory statement that “the probative value, that is the admission, is not substantially outweighed by any amount of unfair prejudice.” 2 Cir. 2010), but that case is clearly distinguishable for several reasons. First, the court in that case found that the evidence in dispute was “highly probative.” Id. at 190. The defendant in that case had, like Colon, been convicted of being a felon in possession of a firearm. Id. at 174. He had stated to a police officer that he did have access to guns and would use them against anyone who threatened him or his family; however, he denied possessing any guns at the time that he was charged, and the government’s case was based largely on circumstantial evidence. Id. at 175-76. Lee’s statements about his willingness to shoot people, because they showed that he had a motive to possess a gun, were highly probative in the context of the rest of the available evidence. Here, in contrast, the government also offered testimony that Colon had admitted that he had a gun on the night in question. While the Face testimony does supply a motive for possession, motive is of little probative value when a flat-out confession is offered into evidence. See Old Chief v. United States, 519 U.S. 172, 185 (1997) (the probative value of a piece of evidence should be evaluated in comparison to the probative value of “evidentiary alternatives”); cf. United States v. Universal Rehabilitation Servs., 205 F.3d 657, 667 (3d Cir. 2000) (en banc) (deciding against Rule 403 exclusion in part because alternative evidence was not equally probative with the evidence in dispute). Second, the danger of unfair prejudice from the admitted evidence in Lee was far less than in this case. Lee had simply stated that he was willing to use guns in response to threats. But the testimony in this case was that Colon planned to commit a 3 premeditated murder that was not motivated by self-defense. Here, the prejudicial effect of the statement was devastating – Colon was, in effect, being charged with a much more serious crime – premeditated murder – than the crime for which he was on trial. And the government, in closing argument, impressed the jury with this fact.2 The District Court gave no limiting instruction.3 In Old Chief, the Supreme Court was faced with a similar Rule 403 issue of whether, in a § 922(g) prosecution, the government was entitled to admit the identity and description of the prior offense, as well as the fact of the prior conviction. Noting that “there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant,” 519 U.S. at 185, the Court answered the question in the negative. Id. at 191-92. Thus, it cannot be gainsaid that evidence of the purpose or motive for which Colon was carrying a gun was highly prejudicial. And the District Court erred by not, explicitly on the record, weighing this prejudicial effect against the statement’s additional probative value, as required by Rule 403 and our case law. In the circumstances of this case, I cannot conclude that the error was harmless. 2 The government referred to this testimony several times during its closing argument, noting at one point that Colon was out on the street because “he was going to hit up a man named Face. He was going to hit him up. He was going to shoot him.” 3 Colon did not request a limiting instruction and I am not suggesting that the District Court erred by not giving one sua sponte; however, the absence of a limiting instruction undoubtedly aggravated the prejudicial effect of the Face testimony. 4 Not only was this case tried twice, but the testimony of the Philadelphia police officers was riddled with inconsistencies, including inconsistencies with the Taser’s internal records. On the record of this case, I am unable to conclude that it is “highly probable” that the evidence “did not contribute to the jury’s judgment of conviction.” United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir. 1984) (quoting Gov’t of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). Because I would reverse the conviction and remand for a new trial, I respectfully dissent. 5 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN ON MOTION FOR REHEARING NO. 03-09-00371-CR Adam Lee Castillo, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-DC-07-204001, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING OPINION We withdraw our opinion and judgment dated August 13, 2010, and substitute the following in its place. We overrule Castillo’s motion for rehearing. A jury convicted appellant Adam Lee Castillo of the offense of capital murder. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West Supp. 2009). Punishment was assessed at life imprisonment. In a single point of error, Castillo asserts that the district court erred by permitting alternate jurors to be present during deliberations. We will affirm the judgment. BACKGROUND Castillo was charged with murdering two individuals and brought to trial. At the conclusion of voir dire, twelve jurors were selected, plus two alternates. The trial then began. After closing arguments, the jury, plus the two alternates, retired to deliberate. At some point either prior to or during deliberations, the jury had been given a supplemental instruction regarding the conduct of the alternates. The instruction stated: LADIES AND GENTLEMEN OF THE JURY: Your jury includes two alternate jurors. In order of selection, they are jurors: [names of alternate jurors]. The law requires that the alternate jurors remain through the entirety of the trial process. In this vein, the alternates cannot be selected as foreperson of the jury and cannot actively participate in deliberations until they are used as a replacement for a regular juror. The alternates must attentively listen to all deliberations, as it is always uncertain if and when we might need to utilize them in the process until the trial is concluded. Alternates serve quite a valuable purpose, and without them, much time and dollars would be spent in the re-trial of cases. Thus, our legislature has enacted this provision providing for the above process for alternate jurors.1 At some point after the jury had retired to deliberate, defense counsel approached the bench and objected to the supplemental instruction and the presence of the alternate jurors in the jury room.2 1 The instruction is referring to article 33.011(b) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2009). 2 It is unclear from the record exactly when during deliberations the objection was made. The record reflects that the following occurred after closing arguments: The Court: You may retire to the jury room. (Jury deliberations) (Open court, no defendant, no jury) (At the Bench, on the record) 2 Counsel argued that the presence of the alternates in the jury room violated article 33.01 of the code of criminal procedure, which provides that a jury in the district court “shall consist of twelve qualified jurors,” see Tex. Code Crim. Proc. Ann. art. 33.01 (West 2006), and article 36.22, which provides, “No person shall be permitted to be with a jury while it is deliberating,” see id. art. 36.22 (West 2006). Counsel also lodged a generic due process complaint. In response, the State argued that article 33.011 of the code of criminal procedure required the alternates to be present and that article 36.22 was not referring to alternate jurors. In the State’s view, “it would not seem to make too much sense that alternate jurors sit outside and miss the deliberations. In case something happens to one person, they have to come in and everything starts fresh.” The State then asked to “go off record for one moment.” Following an off-the-record discussion and a recess, defense counsel amended his objection to include article 5, section 13 of the Texas Constitution, which requires that “juries in the District Courts shall be composed of twelve persons.” See Tex. Const. art. V, § 13. The State, after acknowledging that a recent case out of the San Antonio Court of Appeals supported Castillo’s [Defense counsel]: Your Honor, I understand the Court is sending back an instruction regarding alternate jurors which allows the alternate jurors to remain in the jury room but not participate in the deliberations until they replace an active juror. We would object to sending that order back and object to their presence in the jury room . . . . The record does not reflect how long the jury had been deliberating when counsel approached the bench, although a later comment by the district court suggests that it was no more than approximately thirty minutes after the jury had retired. 3 position,3 maintained, “We’re satisfied at this point with what has gone on, both from a statutory and a constitutional basis . . . . We will probably ask the Court as an additional potential safeguard just to have them not communicate, not only in deliberations, but just not to anything at all.” The district court acknowledged that article 33.011 required the alternate jurors “to stay” until a verdict is reached, and proceeded to read into the record the supplemental instruction that it had previously given to the jury. After reading the instruction, the district court noted, “And then I have signed and dated it and sent it to each individual juror as well as the alternates.” The district court added, In addition, I think what I’m going to do is call all of them, they’ve only been back in the jury room for 30 minutes. I’m going to call them in with everybody present and instruct them orally as to their discussions and what they can and cannot say while they are in the jury room as alternates and make them understand that they cannot talk about anything having to do with Mr. Castillo’s case until they become an actual juror in the case. And that will hopefully alleviate any misunderstanding that they may have about their role as an alternate. Once the members of the jury and the alternates returned to the courtroom, the district court orally instructed them: Ladies and gentlemen of the jury, excuse me for interrupting your deliberations, but I wanted to place some emphasis on the instruction that I had earlier given you regarding the jury alternates. It’s very important that the alternates not actively speak and participate in the deliberations regarding the case at this point. They will only be able to talk about any of the evidence or any of the facts and circumstances surrounding this offense and 3 See Trinidad v. State, 275 S.W.3d 52, 61 (Tex. App.—San Antonio 2008), rev’d, 312 S.W.3d 23 (Tex. Crim. App. 2010). 4  this case if and when they become jurors in the case. However, it is just as important that they be able to sit there and listen so, if needed, they will be aware of everything that has taken place as far as what you have done in this case. But it is critical that they not speak in this regard. I wanted to personally bring each of you out here so that you will all know that and for the security of the case in the future to let you know how important that is that the alternates not participate until called upon to be a regular juror. Do each of you understand? The record reflects that the jury members replied, “Yes.” The district court then concluded, “Thank you. You can go back and continue your deliberations.” The jury then retired to resume deliberations. Defense counsel never objected to the district court’s oral instruction. Later, the jury returned its verdict of guilty. Defense counsel requested that the jury be polled, and each of the twelve individual members of the jury affirmed that the verdict represented his or her individual verdict in the case. Immediately thereafter, Castillo was assessed a mandatory sentence of life imprisonment. The jury was then excused. This appeal followed. ANALYSIS In his sole point of error, Castillo carries forward the arguments he made at trial, namely that the presence of the two alternates in the jury room violated his constitutional and statutory rights to have a jury composed of no more than twelve jurors and the statutory prohibition against outside influence. While acknowledging the district court’s instructions to the jury that the alternates not participate in the deliberations, Castillo claims—for the first time on appeal—that the district court’s instructions were insufficient. According to Castillo, prejudice should be presumed from the alternates’ presence in the jury room during deliberations, and, in his view, it was 5 incumbent upon the State to make an offer of proof demonstrating that the alternates did not participate in deliberations. As no such offer of proof was made in this case, Castillo asserts, harm should be presumed and the cause reversed for a new trial. In response, the State makes three arguments. First, the State contends that Castillo failed to preserve error by not objecting until after deliberations had begun. Second, the State asserts that there was no constitutional or statutory error in allowing the alternates to be present in the jury room during deliberations. Finally, the State argues that any error was harmless because of the district court’s instructions to the jury regarding the alternates and that Castillo failed to show that the jury conversed with the alternates in violation of the court’s instructions. This case concerns the 2007 amendment to article 33.011(b) of the code of criminal procedure. Prior to September 1, 2007, article 33.011(b) required alternate jurors to be discharged “after the jury retires to consider its verdict.” See Act of May 30, 1983, 68th Leg., R.S., ch. 775, § 2, 1983 Tex. Gen. Laws 4593, 4594 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 33.011(b)). However, as the statute is currently written, alternate jurors “shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.” Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2009). The statute does not address what trial courts should do with alternate jurors during deliberations but prior to the jury rendering its verdict—sequester them until such time as their services might be needed, or allow them to be present in the jury room during deliberations even if their services are not needed. The district court in this case chose the latter option. 6  In two opinions decided in 2008, the San Antonio Court of Appeals took issue with the practice of permitting alternate jurors to be present during deliberations. See Adams v. State, 275 S.W.3d 61 (Tex. App.—San Antonio 2008), rev’d, 312 S.W.3d 23 (Tex. Crim. App. 2010); Trinidad v. State, 275 S.W.3d 52 (Tex. App.—San Antonio 2008), rev’d, 312 S.W.3d 23 (Tex. Crim. App. 2010). In these opinions, the court held that the practice violates either the constitutional prohibition against more than twelve jurors deliberating, or, if the alternate is not considered a juror, article 36.22’s prohibition against outside influence. See Adams, 275 S.W.3d. at 67; Trinidad, 275 S.W.3d at 60. Additionally, in each opinion, the court held that the right to a twelve-member jury is a “waivable-only right” and that the defendant is not required to comply with rule 33.1 in order to preserve error on appeal. See Adams, 275 S.W.3d at 65; Trinidad, 275 S.W.3d at 58. Castillo cites to both of these opinions in his brief. After this case was briefed by the parties, the court of criminal appeals reversed both Adams and Trinidad. See Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010). The court held that allowing the alternate jurors to be present in the jury room during deliberations did not violate the constitutional prohibition against deliberation by more than twelve jurors. See id. at 28. The court declined to address the merits of the alleged violation of article 36.22, but held that any complaint about a statutory violation was forfeited by the appellants’ failure to invoke the statute in a timely manner. See id. at 24. With the above considerations in mind, we turn to the case before us. We first address the State’s contention that Castillo failed to preserve error. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court 7 by a timely and specific request, objection, or motion. See Tex. R. App. P. 33.1. Here, the record shows that, when Castillo objected, he cited to the specific constitutional and statutory provisions that he claimed were being violated by allowing the alternate jurors to be present during deliberations. However, regarding his objection to the supplemental instruction, Castillo never indicated why he believed the instruction was erroneous. He complains on appeal that “neither the written or verbal instruction included an admonition to recommence deliberation or disregard any possible statements made by the outside alternate jurors,” but this complaint was never made to the district court. Nor did Castillo raise any objection to the court’s subsequent oral instruction to the jury.4 Additionally, to the extent Castillo is alleging a violation of article 36.22, he is essentially arguing juror misconduct. See Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009) (characterizing violation of article 36.22 as complaint of juror misconduct); Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000) (same). To preserve error caused by juror misconduct, the defendant must either move for a mistrial or file a motion for new trial supported by affidavits of a juror or other person in a position to know the facts alleging misconduct. See Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985); Menard v. State, 193 S.W.3d 55, 59 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Castillo did neither.5 4 In his motion for rehearing, Castillo asserts that he “objected to any instructions” regarding alternate jurors. On the contrary, the record reflects that Castillo objected only to the district court’s written instruction, and even then, he did not ask the district court to include in the written instruction an admonition to recommence deliberation or disregard any possible statements made by the outside alternate jurors. 5 While Castillo did file an amended motion for new trial, he did not include in the motion the complaints he now raises on appeal, much less affidavits from the jurors or alternate jurors who were in a position to know if the facts alleging a violation of article 36.22 had occurred. 8  However, even assuming Castillo had preserved error, we could not conclude on this record that Castillo was entitled to reversal and a new trial. The court of criminal appeals has held that the presence of alternate jurors in the jury room does not violate article 5, section 13 of the Texas Constitution. Trinidad, 312 S.W.3d at 28. There is no error, according to the court, so long as the alternate jurors are not “allowed to vote on the ultimate verdict in the case, at either stage of trial.” Id. The court explained, As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were judged by a jury of more than the constitutionally requisite number. That the alternate jurors were present in the jury rooms during deliberations, and may even have participated in all but the voting, does not mean that the jury was “composed” of more than twelve members for purposes of Article V, Section 13. Id. In this case, there is no indication in the record that the alternate jurors voted on the verdict. Thus, we cannot conclude on this record that there was a constitutional violation. For the same reason, we cannot conclude that there was a violation of article 33.01(a) of the code of criminal procedure, the statute that codifies the constitutional requirement of no more than twelve jurors. See id. at 29 n.22 (“Article 33.01(a) was not violated any more than Article V, Section 13 was. Because only twelve regular jurors ultimately voted on the appellants’ verdicts, their juries did ‘consist’ of twelve jurors for purposes of the statute.”). Nor can we agree with Castillo’s contention that the procedure for replacing regular jurors with alternate jurors as specified in article 33.011(b) was violated. See Tex. Code Crim. Proc. Ann. art. 33.011(b) (“Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict . . . become or are 9 found to be unable or disqualified to perform their duties . . . .”). There is no indication in the record that the alternate jurors improperly took the place of the regular jurors during deliberations. Thus, all that remains is the issue left unresolved by the court of criminal appeals—whether the practice of allowing alternate jurors in the jury room violates the requirement in article 36.22 that “[n]o person shall be permitted to be with a jury while it is deliberating.” However, we need not address that question today. Even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). See Trinidad, 312 S.W.3d at 27 & n.15. Thus, unless the error affected Castillo’s substantial rights, it must be disregarded. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Here, the district court instructed the jury in writing who the alternates were and informed the jury that “the alternates cannot be selected as foreperson of the jury and cannot actively participate in deliberations until they are used as a replacement for a regular juror.” Then, after the jury had been deliberating for approximately thirty minutes, the district court decided to call the jury back into the courtroom and “place some emphasis on the instruction that I had earlier given you regarding the jury alternates.” The district court then orally instructed the jury: It’s very important that the alternates not actively speak and participate in the deliberations regarding the case at this point. They will only be able to talk about any of the evidence or any of the facts and circumstances surrounding this offense and this case if and when they become jurors in the case. However, it is just as important that they be able to sit there and listen so, if needed, they will be aware of everything 10  that has taken place as far as what you have done in this case. But it is critical that they not speak in this regard. I wanted to personally bring each of you out here so that you will all know that and for the security of the case in the future to let you know how important that is that the alternates not participate until called upon to be a regular juror. . . . We find no error in the district court’s instructions, and there is no indication in the record that the jury or the alternates disregarded the instructions in any manner. To the contrary, when asked if they understood the court’s instructions, the jury members replied, “Yes.” Castillo claims that because the alternate jurors were present in the jury room, harm should be presumed and that the State has the burden to rebut the presumption of harm. We disagree. A similar issue was previously addressed by this Court in Klapesky v. State, 256 S.W.3d 442 (Tex. App.—Austin 2008, pet. ref’d), a case cited by Castillo. In that case (involving a trial that had occurred prior to the 2007 amendment to article 33.011(b)), the trial court selected two alternate jurors but explained that the alternate jurors would be excused at the beginning of deliberations if they were not needed. Id. at 451-52. At the beginning of deliberations, however, the trial court forgot to discharge the alternates and they proceeded to the jury room. Id. at 452. Approximately five minutes later, the trial court returned the jury to the courtroom, discharged the alternates, instructed the jury to disregard anything said in the presence of the alternate jurors and to begin deliberations, and asked the jury if deliberations had commenced. Id. The jury replied that they had not. Id. On appeal, the appellant claimed that the presence of the alternate jurors in the jury room violated article 36.22. 11  In overruling the appellant’s point of error, this Court explained that harm to the accused is presumed when a juror converses with an unauthorized person about the case and that, if the presumption of harm arises, the State has the burden to rebut the presumption by showing no injury or prejudice to the accused. Id. “However,” this Court added, “the defendant has the initial burden to show that a conversation about the case on trial occurred between a juror and an unauthorized person. The defendant’s burden is not satisfied if there is no showing what a reported conversation was about.” Id. (internal citations omitted). In that case, “there [was] no showing of any conversation about the case between the two alternate jurors and the regular jurors during the time period involved.” Id. Similarly, in this case, Castillo made no showing that the alternate jurors conversed with the regular jurors regarding the case in violation of the district court’s instructions. Thus, Castillo failed to meet his initial burden. The other cases cited by Castillo are distinguishable. In Quinn v. State, 958 S.W.2d 395 (Tex. Crim. App. 1997), Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), and Green v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992), the defendant first presented evidence that jurors had actual conversations and contact with outside influences (none of whom were alternate jurors). In each case, the State was required to rebut the presumption of harm. In this case, in contrast, the defendant presented no evidence that the alternate jurors conversed with the regular jurors. Thus, the presumption of harm does not arise here. Similarly, in Rojas v. State, 171 S.W.3d 442 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), a case decided prior to the 2007 amendment to article 33.011(b), there was evidence presented that an alternate juror may have asked at the beginning of deliberations “whether anyone wanted to volunteer” to be foreperson, and the State was 12 required to rebut the presumption of harm. Id. at 450 & n.1. Again, in this case, Castillo made no showing of a conversation involving the alternate jurors. In his motion for rehearing, Castillo suggests that requiring the appellant to obtain information from jurors regarding whether the alternates participated in deliberations violates the prohibition against inquiring into jurors’ “mental processes” during deliberations.6 See Tex. R. Evid. 606(b). However, the rule expressly allows jurors to testify regarding “whether any outside influence was improperly brought to bear upon any juror.” See id. Moreover, the court of criminal appeals has recognized the questioning of jurors as a permissible method to inquire into potential article 36.22 violations and that the party alleging such a violation, “not the State nor the court, should initiate juror questioning.” See Ocon, 284 S.W.3d at 885-87. Because Castillo failed to do so, we cannot conclude on this record that the district court’s procedure had a substantial and injurious effect or influence in determining the jury’s verdict. We overrule Castillo’s sole point of error. 6 Castillo also asserts in his motion for rehearing that requiring such a procedure is “impractical.” Castillo’s counsel cites to no authority on this point, other than his “personal experience that jurors generally do not want to talk about their service.” However, jurors may be questioned during trial about alleged article 36.22 violations, thus alleviating the need to depose or subpoena jurors after they have been excused from service. In this case, when the district court brought the jury into the courtroom during a break in deliberations and orally instructed the jurors that the alternates should not participate in deliberations, Castillo could have requested permission from the district court to question the jurors about whether the alternates had already participated in deliberations contrary to the district court’s instructions. Castillo did not do so. 13  CONCLUSION We affirm the judgment of the district court. __________________________________________ Bob Pemberton, Justice Before Chief Justice Jones, Justices Pemberton and Waldrop Affirmed on Motion for Rehearing Filed: September 10, 2010 Publish 14 

336 F.3d 601 Natalia KHARKHAN, Petitioner,v.John D. ASHCROFT, Respondent. No. 02-2177. United States Court of Appeals, Seventh Circuit. Argued January 17, 2003. Decided July 16, 2003. As Amended July 31, 2003. Michael A. Klysh (argued), Chicago, IL, for Petitioner. Linda S. Wernery (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent. Before BAUER, POSNER, and EVANS, Circuit Judges. BAUER, Circuit Judge. 1 Petitioner-Appellant Natalia Kharkhan seeks review of a Board of Immigration Appeals ("BIA") decision affirming the Immigration Court's denial of her applications for special rule cancellation of removal, asylum, and withholding of removal, and its resulting order of voluntary removal. For the reasons set forth herein, we affirm the decision of the BIA. BACKGROUND 2 Kharkhan, a native of the former Union of Soviet Socialist Republics and a citizen of the Republic of Ukraine, entered the United States with a valid six-month, non-immigrant, visitor-for-pleasure visa in August 1990. Her initial application for asylum, signed in November 1990, was denied following a February 1991 interview with the Immigration and Naturalization Service ("INS").1 In August 1997, the INS commenced proceedings for Kharkhan's removal from the United States. Kharkan conceded her removability based on her failure to depart under the terms of her visa and submitted written applications for special rule cancellation of removal under 8 U.S.C. § 1229b ("cancellation"), asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231 ("withholding"), and voluntary departure under 8 U.S.C. § 1229c. 3 At a hearing before an Immigration Judge ("IJ") in September 1998, Kharkhan testified in support of her cancellation application that she has a U.S.-born son (then four years old) by her husband, also a visa overstay from the Ukraine, whom she married one week prior to the hearing. In support of her asylum and withholding applications, she further testified that her removal would subject her to economic hardship as well as the dangers of an uncontrolled Ukrainian criminal element, and that she is a victim of past religious persecution. Her economic hardship, she explained, consisted of (i) favorable economic conditions in the United States relative to those in the Ukraine, (ii) the loss of her employment in the Ukraine subsequent to her arrival here, (iii) employment as a pre-requisite to obtaining a residence in the Ukraine, and (iv) her fear of an inability to support herself were she to return. With respect to her claim of religious persecution, she testified that she practiced her religion clandestinely in the Ukraine for fear of persecution by the former Soviet regime, which (because it proscribed all religions) did not officially recognize the Ukrainian Catholic Church, of which she is a member. By her own account, however, "[n]obody was discriminated or persecuted. We were just not allowed to go to church, and ... we didn't go because we were afraid we would be persecuted." Moreover, according to both Kharkhan's testimony and the Ukraine country profile published by the U.S. State Department's Bureau of Eurasian and European Affairs, Catholic churches are now open in the Ukraine and the 1996 Ukrainian constitution guarantees religious freedom to all.2 4 Following the September 1998 hearing, the IJ, having found Kharkhan removable as charged, denied her special rule cancellation, asylum, and withholding applications, and alternatively granted her application for voluntary departure. The IJ's oral and written opinions explained that Kharhkan's cancellation application lacked the requisite showings, under 8 C.F.R. § 1240.58, that removal would subject her and her son to "extreme hardship." In denying her asylum and withholding applications, the IJ cited, inter alia, the following factors: First, her initial asylum application, which was, by her own admission, motivated by her loss of employment in the Ukraine, conceded that she suffered no mistreatment on account of any protected ground for asylum or withholding of removal. Second, her claim of economic hardship was not a proper ground for asylum or withholding of removal. Third, because the former Soviet regime's restrictions on religious worship were not particularized to her, and because Catholics may now freely worship in the Ukraine, her claim of religious persecution, raised for the first time in her second asylum application, was without merit. 5 Kharkhan appealed from the IJ's decision and, in April 2002, the BIA affirmed without opinion. She now petitions this Court for review of the decision of the BIA. ANALYSIS 6 Kharkhan challenges the IJ's denials of her applications for cancellation, asylum, and withholding, and further argues that the conduct of the IJ during the September 1998 hearing effected a violation of her right to due process of law. We address each of these claims in turn. 7 8 U.S.C. § 1229b(b)(1) provides for the cancellation, under limited circumstances, of the removal of deportable aliens at the discretion of the Attorney General. With respect to judicial review of orders of removal, relevant statutory provisions include the following: 8 Denials of discretionary relief. Notwithstanding any other provision of law, no court shall have jurisdiction to review... any judgment regarding the granting of relief under [inter alia, 8 U.S.C. § 1229b] or ... any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General.... 9 8 U.S.C. § 1252(a)(2)(B)(i) & (ii). Here, the BIA's affirmance of the IJ's decision constitutes a final judgment on the part of the Attorney General regarding the denial to Kharkhan of relief under § 1229b. See, e.g., Iddir v. INS, 301 F.3d 492, 497 (7th Cir.2002) (noting, in dicta, that denial of applications on the merits under one of the sections enumerated in § 1252(a)(2)(B)(i) (of which § 1229b is one) likely constitutes a "judgment," "decision," or "action" contemplated in § 1252(a)(2)(B)). As such, pursuant to 8 U.S.C. § 1252, this Court lacks jurisdiction to review the denial of Kharkhan's application for special rule cancellation of removal. 10 With respect to Kharkhan's remaining claims, the proper object of our review is the decision of the IJ, rather than that of the BIA, as the latter issued without opinion. See 8 C.F.R. § 1003(a)(7). We review the IJ's denial of Kharkhan's asylum application under the highly deferential substantial evidence standard, Useinovic v. INS, 313 F.3d 1025, 1029 (7th Cir.2002), see also Gonzalez v. INS, 77 F.3d 1015, 1021 (7th Cir.1996), and will affirm the BIA's decision so long as the asylum eligibility finding is "supported by reasonable, substantial, and probative evidence on the record considered as a whole," INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Only where the evidence of an applicant's well-founded fear of future persecution is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution" will we reject the IJ's finding of asylum eligibility. 502 U.S at 481, 112 S.Ct. 812; see also 8 U.S.C. § 1252(b)(4)(d). 11 In order to establish asylum eligibility, an alien must prove that she is a refugee who has suffered "persecution or a well-founded fear of persecution" in her country of origin on account of one of five statutorily protected grounds: (i) race, (ii) religion, (iii) nationality, (iv) membership in a particular social group, or (v) political opinion. 8 U.S.C. § 1101(a)(42)(A). She must also demonstrate that she would be singled out for persecution based on one of these grounds. See, e.g., Milosevic v. INS, 18 F.3d 366, 373 (7th Cir.1994); Tamas-Mercea v. Reno, 222 F.3d 417, 423 (7th Cir.2000). Kharkhan has made no such showing. Her concerns that removal to the Ukraine would limit her employment prospects and expose her to the dangers of an uncontrolled criminal element, however justified as reasons for desiring to remain here, do not amount to a well-founded fear of persecution on the basis of any of the protected grounds. Nor, consequently, do they satisfy her burden of proving her asylum eligibility. 12 Kharkhan also argues that the IJ erred in finding that she failed to establish her status as a victim of past religious persecution. Even assuming, arguendo, that she established past persecution, the more significant issue for purposes of our review is whether, considering the changes that have occurred in the post-Soviet Ukraine, she has established a well-founded fear of future religious persecution. As this Court stated in Angoucheva v. INS, the presumption in favor of granting asylum to an alien who establishes past persecution "may be overcome by evidence suggesting that conditions in the alien's home country have changed to such an extent that she no longer is in danger of persecution there." Angoucheva, 106 F.3d 781, 788 (7th Cir.1997); see also 8 C.F.R. §§ 208.13(b)(1)(i)(A) and 208.16(b)(1)(A). The fundamental political changes that occurred in the Ukraine between her arrival in 1991 and the September 1998 hearing leave Kharkhan with no reasonable basis for fear of persecution as a member of the Ukrainian Catholic Church; indeed, she conceded as much during her hearing. As such, to the extent that the IJ's finding that Kharkhan was not a victim of past religious persecution was erroneous, so too was it harmless. Moreover, his determination that Kharkhan showed no requisite fear of persecution was entirely reasonable based upon the evidence presented, and the denial of her asylum application was thus proper. 13 The denial of Kharkhan's asylum application also precludes the granting of her withholding of removal application, as asylum eligibility exacts a less rigorous burden of proof than eligibility for withholding. To prove withholding of removal eligibility, an alien must demonstrate that she is more likely than not to suffer persecution on account of one of the five statutorily protected grounds; whereas, to prove asylum eligibility, she need only prove her well-founded fear of such persecution. Ahmad v. INS, 163 F.3d 457, 463 (7th Cir.1999). "Since we find that [Kharkhan] did not satisfy [her] burden of proving a well-founded fear of persecution, it necessarily follows that [s]he has also failed to satisfy [her] burden for the more stringent clear probability of persecution standard to qualify for withholding of deportation." See id. 14 Finally, Kharkhan claims that the IJ's conduct during the September 1998 hearing deprived her of due process of law, because (i) his inquiries into her personal life and moral character demonstrated his bias against her and (ii) the immediate issuance of his oral opinion at the hearing's conclusion suggests that he failed to consider all of the evidence presented. Kharkhan cites a lengthy passage from this Court's opinion in Iliev v. INS, for the valid proposition that immigration proceedings ought to be "conducted in accord with the best of our tradition of courtesy and fairness." Iliev, 127 F.3d 638, 643 (7th Cir.1997). However, like the petitioner in Iliev, Kharkhan has failed to allege any discourteous or unfair conduct on the part of the IJ that amounts to a due process violation. See id. "The Immigration Judge has broad discretion to control the manner of interrogation in order to ascertain the truth," see id., and, insofar as his questions sought to clarify Kharkhan's immigration status and eligibility for cancellation, asylum, withholding, and voluntary departure, they were permissible, see Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir.2001). Not only does Kharkhan fail to establish bias against her on the part of the IJ, but she is also unable to demonstrate, as she must in order to prevail on her due process claim, that his conduct prejudiced her. See, e.g., Roman v. INS, 233 F.3d 1027, 1033 (7th Cir.2000). Because she suggests no manner, nor do we discern any, in which the IJ's questions or his issuance of a decision at the conclusion of a full and fair hearing affected the final disposition of her applications, her due process claim fails. 15 The decision of the Board of Immigration Appeals is AFFIRMED. Notes: 1 On March 1, 2003, the INS ceased to exist as an independent agency under the umbrella of the United States Department of Justice, and its functions were transferred to the newly-formed Department of Homeland SecuritySee Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). The transition, however, is of little practical import to our disposition of the matter. 2 Relevant provisions of the Ukrainian constitution include the following: Every person has the right to freedom of personal philosophy and religion. This right includes the freedom to profess or not to profess any religion, to perform alone or collectively and without constraint religious rites and ceremonial rituals, and to conduct religious activity. KONST. UKR. ch. II, art. 35. (1996).

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3783 ___________________________ United States ex rel. Eric Fields lllllllllllllllllllll Plaintiff - Appellee v. Bi-State Development Agency of the Missouri-Illinois Metropolitan District, doing business as Metro lllllllllllllllllllll Defendant - Appellant Eager Road and Associates, LLC lllllllllllllllllllll Defendant United States of America lllllllllllllllllllllMovant ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: April 5, 2017 Filed: August 1, 2017 ____________ Before GRUENDER, MURPHY, and KELLY, Circuit Judges. ____________ KELLY, Circuit Judge. Bi-State Development Agency (Bi-State) appeals the denial of its motion for summary judgment. It argues that the district court1 erred in holding that Bi-State was not an arm of the state and therefore not entitled to Eleventh Amendment immunity in this False Claims Act (FCA) action brought by a private actor. Having jurisdiction pursuant to 28 U.S.C. § 1292(a), see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (appeal from the denial of summary judgment based on sovereign immunity falls within a narrow subset of permissible interlocutory appeals), we affirm. I. Background Bi-State is an interstate compact entity that owns and operates public transportation services in the City of St. Louis, Missouri; St. Louis, Charles, and Jefferson Counties in Missouri; and Madison, St. Clair, and Monroe Counties in Illinois. Bi-State was created by a compact between Illinois and Missouri, which was then ratified by Congress. Mo. Rev. Stat. § 70.370; 45 Ill. Comp. Stat. 100/1; 64 Stat. 568. From 2003 to 2012, Eric Fields was employed by Bi-State and Eager Road and Associates, LLC (Eager Road), as an engineer. On July 28, 2014, Fields filed the instant lawsuit against Bi-State and Eager Road2 pursuant to the qui tam provisions of the FCA. See 31 U.S.C. § 3730(b). The FCA mandates that “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for 1 The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri. 2 The district court granted in part and denied in part Eager Road’s motion to dismiss, which is not at issue in this appeal. -2- payment or approval” to the government “is liable to the United States government for a civil penalty” and treble damages. 31 U.S.C. § 3729(a). Fields alleged that, when submitting claims to the federal government, Bi-State falsely certified that it was in compliance with the Hatch Act and Missouri law. Specifically, Fields claimed that Bi-State raised funds for a St. Louis county executive’s re-election campaign and ordered its employees to volunteer for the campaign, despite federal and state prohibitions on employee participation in political activity. The government declined to intervene, and Fields proceeded with the case independently. See 31 U.S.C. § 3730(b)(4)(B) (private actor may proceed with FCA claim where government declines to intervene). On March 27, 2015, Bi-State moved for summary judgment, arguing that it did not qualify as a “person” under the FCA. The district court denied Bi-State’s motion and Bi-State appealed. In that appeal, Bi-State argued that it did not meet the FCA’s definition of “person,” and that it was entitled to Eleventh Amendment immunity. Because the decision below addressed only the FCA—not the Eleventh Amendment—we dismissed the interlocutory appeal for lack of jurisdiction. United States ex rel. Fields v. Bi-State Dev. Agency of the Mo.-Ill. Metro. Dist., 829 F.3d 598, 600 (8th Cir. 2016). On remand, Bi-State moved for summary judgment on Eleventh Amendment immunity grounds. The district court denied Bi-State’s motion, finding that Bi-State is akin to a local governmental entity and therefore not entitled to Eleventh Amendment immunity. Bi-State now appeals that decision. II. Discussion Bi-State “bears the burden of showing that it is an arm of the state.” Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 99 (1st Cir. 2002); see Fields, 829 F.3d at 600 (“[A]ll of our sister circuits to address the issue have recognized that an entity asserting Eleventh Amendment immunity bears the burden of showing its entitlement to such immunity.”). “We cannot extend the Eleventh Amendment’s protection to a -3- bistate agency unless we have ‘good reason to believe that the [compacting] [s]tates structured the new agency to enable it to enjoy the special constitutional protection of the [s]tates themselves.’” Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy, 948 F.2d 1084, 1086 (8th Cir. 1991) (alteration in original) (quoting Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979)). We review denials of summary judgment on sovereign immunity grounds de novo, “considering the evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving” party. Van Whye v. Reisch, 581 F.3d 639, 648 (8th Cir. 2009). The Eleventh Amendment reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “The Eleventh Amendment protects a bistate agency if the agency is an arm of the compacting states, but not if the agency is comparable to a local governmental entity like a county or municipality.” Barket, 948 F.2d at 1086. In Barket, we addressed the very issue now before us: whether Bi-State is akin to an arm of the state or a local entity for purposes of Eleventh Amendment immunity. There, we explained that “[t]here is no litmus test to determine whether a bistate agency is more like an arm of the compacting states or more like a local governmental entity.” Id. Instead, this determination requires us to examine the “nature of the entity created by state law,” id. (internal quotation omitted), by considering the following factors: (1) whether the compacting states characterize the agency as an arm of the compacting states or as a local governmental entity; (2) whether the compacting states fund the agency; (3) whether the compacting states are financially responsible for the liabilities and obligations the agency incurs; (4) whether the agency’s commissioners are appointed by the compacting -4-  states or by local governments; (5) whether the functions the agency performs are traditionally state or municipal; and (6) whether the compacting states can veto the agency’s actions. Id. We concluded that Bi-State was “more like a local governmental entity than an arm of Missouri and Illinois.” Id. at 1088. Here, Bi-State does not dispute that Barket decided this issue. Instead, it argues that the law Barket relied on has changed, rendering Barket outdated and justifying our reconsideration of the Barket factors as applied to Bi-State. We address each of the six factors, first addressing those related to Bi-State’s level of operational independence from the Missouri and Illinois and then addressing those related to Bi- State’s financial relationship with the states. We then consider the overarching interests protected by the Eleventh Amendment. 1. Missouri and Illinois’ Characterization of Bi-State We first consider the states’ characterizations of Bi-State. After judicial abrogation of sovereign immunity in 1977, the Missouri legislature reinstated sovereign immunity in 1978 through the enactment of Missouri Statute § 537.600. See State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 673 (Mo. banc 1988). Section 537.600 reinstated “‘[s]uch sovereign or governmental tort immunity as existed at common law prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date” or contained in the statute’s listed exceptions. Id. When Barket was decided, § 537.600.4 provided that, “prior to September 12, 1977, there was no sovereign or governmental immunity for the proprietary functions of multi-state compact agencies . . . including functions such as the operation of motor vehicles and the maintenance of property, involved in the operation of a public -5- transit or public transportation system.” Mo. Rev. Stat. § 537.600(4) (1988). Barket relied in part on this provision to find that Illinois and Missouri law “treat[ed] Bi- State like a county or municipality,” and that the first factor therefore weighed in favor of finding that Bi-State was more like a local entity. Barket, 948 F.2d at 1087. In 2005, the Missouri legislature deleted various statutory waivers of sovereign immunity, including § 537.600.4’s clarification that Missouri did not understand multi-state compact entities to have sovereign immunity prior to 1977. Absent § 537.600.4, there is no applicable “prescribed exception” to Missouri’s general rule that all public entities are entitled to sovereign immunity from suit in state court. Trimble, 745 S.W.2d at 673 (internal quotation omitted). Bi-State argues that the Missouri legislature’s 2005 deletion of the statutory waiver of sovereign immunity for multistate compact agencies indicates that this factor should now weigh in favor of finding that Bi-State is an arm of the state. However, Missouri’s characterization of Bi-State for purposes of common law tort immunity was not the sole basis for Barket’s conclusion that Illinois and Missouri treat Bi-State more like a municipality than an arm of the state. Barket also noted that the compact creating Bi-State characterizes it as “a body corporate and politic,” provides that “Bi-State’s property possesses the same status as property belonging to cities for the purpose of state taxation,” and empowers Bi-State to “collect fees and issue revenue bonds.” Barket, 948 F.2d at 1087 (citing Mo. Rev. Stat. §§ 70.370, 70.375). Each of these facts supports the conclusion that Bi-State is more like a municipality than an arm of the state. See Pub. Sch. Ret. Sys. of Mo. v. State Street Bank & Trust Co., 640 F.3d 821, 827–28 (8th Cir. 2011) (characteristics of operational independence include “being organized as a ‘body corporate,’” and “possessing the ability to buy, sell, and hold property” (quoting Moor v. Alameda Cty., 411 U.S. 693, 719 (1973))). -6-  Although several of the considerations supporting Barket’s conclusion that state law treats Bi-State as a municipality remain unchanged, the deletion of the statutory waiver of sovereign immunity for multistate entities constitutes a change in the law since Barket. On the other hand, Illinois has relatively recently characterized Bi-State as a local public entity under its tort immunity act. Hubble v. Bi-State Dev. Agency, 938 N.E.2d 483, 492 (Ill. 2010). Because considerations underlying this factor weigh both in favor of and against finding Bi-State to be an arm of the state, we find that this factor is neutral. 2. Appointment of Commissioners We next consider the process by which Bi-State’s commissioners are appointed. Bi-State’s board of commissioners has ten people: five from Illinois and five from Missouri. See Mo. Rev. Stat § 70.370, art. IV; 45 Ill. Comp. Stat. 100/1, art. IV. Illinois’ commissioners are appointed by the chairs of the boards of the counties within Bi-State’s territory, with the advice and consent of their respective county boards. 45 Ill. Comp. Stat. 105/2(a). The Missouri Governor appoints Missouri’s commissioners with the advice and consent of the Missouri senate. Mo. Rev. Stat. § 70.380. Missouri’s Governor chooses the commissioners from a panel of nominees selected by the mayor of the city of St. Louis and the county executive of St. Louis County. Mo. Rev. Stat. § 70.385. The fact that Illinois’ commissioners—who comprise half of Bi-State’s board of commissioners—are appointed by the chairs of county boards weighs in favor of finding that Bi-State is more like a local entity. Cf. Leitner v. Westchester Comm. College, 779 F.3d 130, 138–39 (2d Cir. 2015) (no “effective [state] control over decision-making” established when governor appointed four out of ten board members). However, the Missouri Governor’s appointment of Missouri’s commissioners weighs in favor of finding that Bi-State is an arm of the state. See State Street Bank, 640 F.3d at 828–29 (“A State’s appointment power, even if limited, -7- restricts an entity’s political independence because it may produce ‘subtle or indirect manipulation of the entity’s decision-making processes’ by state officials.” (quoting Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1207 (1st Cir. 1993))); see also Morris v. Wash. Metro. Area Transit Auth., 781 F.2d 218, 227–28 (D.C. Cir. 1986) (finding significant measure of state control over directors where, though states have little control over their appointment, states can remove directors from office). Though there is evidence pointing in both directions with respect to this factor, the parties agree that it weighs in favor of Bi-State being an arm of the state. See Barket, 948 F.2d at 1087–88. 3. Bi-State’s Functions Next, we consider whether Bi-State performs traditionally state or traditionally municipal functions. Bi-State operates and maintains public transit systems, including buses, airports, parking facilities, tunnels, and bridges, in designated counties in Missouri and Illinois. Bi-State also plans and establishes policies for sewage and disposal functions and land use patterns. See id. at 1086. “The regulation of land use is traditionally a function performed by local governments.” Lake Country, 440 U.S. at 402. However, “[s]tates and municipalities alike own and operate bridges, tunnels, ferries, marine terminals, airports, bus terminals, industrial parks, also commuter railroads.” Hess v. Port Auth. Trans- Hudson Corp., 513 U.S. 30, 45 (1994); see Trimble, 745 S.W.2d at 674 (“[S]uch diverse entities as municipal housing authorities, hospital districts, special road districts, sewer districts, and counties have been held to be political subdivisions of the state rather than municipal corporations when sovereign immunity issues [under the Missouri tort immunity statute] are involved.” (internal citations omitted)). Therefore, Bi-State’s functions are not “readily classified as typically state or unquestionably local,” and this factor “does not advance our Eleventh Amendment inquiry.” Hess, 513 U.S. at 45. -8- 4. Missouri and Illinois’ Ability to Veto Bi-State’s Actions We next examine whether Missouri and Illinois have the power to veto Bi- State’s actions. The compact provides that “[e]ach state reserves the right hereafter to provide by law for the exercise of the veto power by the governor thereof over any action of any commissioner appointed” by Bi-State’s board members. Mo. Rev. Stat. § 70.370, art. V; 45 Ill. Comp. Stat. 100/1, art. V. Bi-State must also provide an annual report to the governors of Missouri and Illinois detailing its operations and transactions. Mo. Rev. Stat. § 70.370, art. III; 45 Ill. Comp. Stat. 100/1, art. III. Illinois and Missouri have the right to approve Bi-State’s development plans, rules, and regulations. Mo Rev. Stat. § 70.370, art. III; 45 Ill. Comp. Stat. 100/1, art. III. We find, and the parties do not dispute, that Missouri and Illinois’ power to veto Bi- State’s actions weighs in favor of finding that Bi-State constitutes an arm of the state. 5. Bi-State’s Sources of Funding Next, we consider the sources of Bi-State’s funding. The compact creating Bi- State “makes no specific provision for state funding of Bi-State,” but “authorizes several methods for Bi-State to generate operating revenue.” Barket, 948 F.2d at 1087. Bi-State can “charge and collect fees for use of the facilities owned and operated by it,” can “receive for its lawful activities any contributions or moneys appropriated by municipalities, counties, state or other political subdivisions or agencies; or by the federal government or any agency or officer thereof,” and can “issue bonds upon the security of the revenues to be derived from [its] facilities; and, or upon any property held or to be held by it.” Mo Rev. Stat. § 70.370, art. III; 45 Ill. Comp. Stat. 100/1, art. III. Bi-State argues that it is not self-funding because it receives minimal revenue from its transit operations and other independent revenue- generating operations, and instead receives the bulk of its funding from the federal government and the States of Missouri and Illinois. -9-  As an initial matter, we note that federal funding is not attributable to the states, and therefore receipt of federal funds does not weigh in favor of Bi-State being an arm of Missouri and Illinois. See, e.g., Christy v. Penn. Turnpike Comm’n, 54 F.3d 1140, 1145 (3rd Cir. 1995) (“[T]olls, rents, bond and note revenues, and federal funding . . . are not state-derived.”). In support of its argument that Bi-State is primarily funded by the states of Missouri and Illinois, Bi-State attached to its motion for summary judgment an affidavit from its Chief Financial Officer detailing funding information for fiscal years 2009–2014. Included in Bi-State’s seven sources of funding during this period are St. Louis County, the City of St. Louis, and the St. Clair Transit District—all city or county entities within Bi-State’s territory. Of the funding received from St. Louis County and the City of St. Louis between 2009 and 2014, approximately 40 percent came from the 1973 Transportation Sales Tax Act. See Mo. Rev. Stat. §§ 94.600 to .655 & 94.660. Bi-State alleges that funds contributed by the city and county of St. Louis pursuant to this tax are “indirect” state funding “through appropriations authorized specifically by state statutes.” The 1973 Transportation Sales Tax Act authorizes Missouri cities to impose transportation sales taxes through a majority vote of their governing bodies. Mo. Rev. Stat. § 94.605. Funds generated through these taxes “shall be deposited with the state treasurer in a special trust fund,” called the Transportation Sales Tax Trust Fund. Mo. Rev. Stat. § 94.625. While money from these city taxes are held by the state treasurer, “[t]he moneys in this fund are not state funds and shall not be commingled with any funds of the state.” Id.; see also Mo. Rev. Stat. § 94.660.6 (same). “State control over an entity’s ability to obtain funds”—for example, by allowing Bi-State to receive funds from cities’ and counties’ transportation tax revenue—“is inadequate to demonstrate state ownership of the funds where the state is not shown to have a financial interest that would be directly and adversely affected by the diminution of the funds in question.” Christy, 54 F.3d at 1146. Funds generated pursuant to the -10- 1973 Transportation Sales Tax Act do not constitute state funds, and payments out of this fund are therefore not attributable to the state. Focusing on the funds contributed by the states themselves, only a “notably modest” 1.3 percent of Bi-State’s funding came from Missouri and Illinois between 2009 and 2014. Hess, 513 U.S. at 37–38 (states’ agreement to pay for some of the entity’s expenses did not weigh in favor of finding the entity to be an arm of the state because the states “in no way under[took] to cover the bulk of the [entity’s] operating and capital expenses”); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Ed., 466 F.3d 232, 245 (2d Cir. 2006) (funding factor weighs against immunity when school district received 39.9 percent of its funding from the state); Barket, 948 F.2d at 1087 (“The possibility of voluntary appropriation of state funds . . . does not trigger sovereign immunity.”). But see Colby v. Herrick, 849 F.3d 1273, 1277 (10th Cir. 2017) (funding factor cuts both ways when entity is self-funded and entitled to issue bonds, but also receives money from the state). Bi-State’s reliance on state funding is minimal when compared with other funding sources, and this factor weighs in favor of finding that Bi-State is more like a local governmental entity. Barket, 948 F.2d at 1087. 6. Responsibility for Bi-State’s Liabilities Finally, we consider whether Missouri and Illinois are responsible for Bi- State’s liabilities. We focus “not on a mechanical analysis of whether a State will ultimately pay a judgment,” but on “whether the state treasury is legally responsible for the payment of a judgment against the [alleged arm of the State].” Maliandi v. Montclair State Univ., 845 F.3d 77, 86 (3d Cir. 2016) (quoting Febres v. Camden Bd. of Ed., 445 F.3d 227, 233 (3d Cir. 2006)). The parties agree that Missouri and Illinois are not statutorily obligated to pay Bi-State’s debts, but Bi-State argues that Missouri and Illinois are functionally liable for them. See Lake Country, 440 U.S. at 400–01. -11-  Bi-State argues that the states’ responsibility for its debts is evidenced by Bi- State’s entitlement to pay any liabilities out of the Missouri State Legal Expense Fund (SLEF). Under Missouri law, money in the SLEF “shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction against . . . [t]he State of Missouri, or any agency of the state . . . pursuant to . . . section 537.600.” Mo. Rev. Stat. § 105.711.2(1) (emphasis added). Section 537.600.1 provides for “sovereign or governmental tort immunity as existed at common law” prior to 1977, to “public entit[ies]”—including Bi- State—“except to the extent waived” by statute. See Mo. Rev. Stat. § 537.600.3 (defining “public entity” to include “any multistate compact agency created by a compact formed between [Missouri] and any other state which has been approved by the Congress of the United States”). Therefore, where a state agency is sued as a public entity pursuant to a statutory waiver of sovereign immunity found in § 537.600, the state agency is eligible to recover the amount of its resulting liability from the SLEF. Bi-State argues that, because it is a public entity entitled to a presumption of sovereign immunity against state law tort claims pursuant to § 537.600—as discussed with respect to the first factor—it is entitled to recover expenses out of the SLEF by virtue of § 105.711.2(1)’s reference to § 537.600. Bi-State’s argument relies on the assumption that all “public entities” entitled to a presumption of sovereign immunity under § 537.600 are necessarily “agencies of the state” under § 105.711.2. But § 105.711.2 does not define “agency of the state,” and Bi-State cites no support for its contention that its status as a “public entity” under § 537.600 mandates that Bi- State is also a state agency entitled to funds from the SLEF. Furthermore, any inquiry into whether Bi-State constitutes a state agency for purposes of the SLEF is distinct from whether Bi-State is an arm of the state for purposes of the Eleventh Amendment. Aside from its SLEF argument, Bi-State provides little support for its contention that this factor weighs in its favor, particularly in light of the fact that it -12- receives such a small percentage of its funding from Missouri and Illinois. See State Street Bank, 640 F.3d at 830 (“A State’s role in financing an entity’s operation can indicate whether a money judgment in favor of the entity may benefit the State’s treasury.”); Leitner, 779 F.3d at 138 (entity’s receipt of “one-third of its budget from the state . . . alone is not sufficient to establish state responsibility for” entity’s financial obligations). Bi-State points to no additional changes in the law since we held in Barket that this factor weighed in favor of finding that Bi-State is akin to a local governmental entity. Therefore, we find that this factor supports a finding that Bi-State is more like a local governmental entity. See Barket, 948 F.2d at 1088 (“[N]othing obligates Missouri and Illinois to satisfy Bi-State’s liabilities and obligations.”). 7. Other Considerations As explained above, in this case, the Barket factors “point in different directions.” Hess, 513 U.S. at 47. Therefore, we turn to the “Eleventh Amendment’s twin reasons for being” as our “prime guide” in determining whether Bi-State is more like an arm of the state or a local governmental entity. Id. Those “twin reasons for being” are (1) respect for the dignity of the states as sovereigns, and (2) the “prevention of federal-court judgments that must be paid out of a State’s treasury.” Id. at 47–48.3 3 We have also applied a two-factor arm-of-the-state test that correlates closely with these “twin interests.” See State Street Bank, 640 F.3d at 827 (applying a two- factor test considering independence and financial responsibility in determining whether a school board is an arm of the state). Because the six-factor and two-factor tests are not inconsistent, see Leitner, 779 F.3d at 135–37 (applying both a six-factor and a two-factor test when the tests are both valid and not contradictory), we consider both the specific factors of the six-factor test and the more general concerns of the two-factor test, see State Street Bank, 640 F.3d at 827–33. -13-  With respect to the Eleventh Amendment’s first “reason for being”—respect for the dignity of states as independent sovereigns—“[b]istate entities occupy a significantly different position in our federal system than do the states themselves.” Hess, 513 U.S. at 40. They are “creations of three discrete sovereigns: two States and the Federal Government.” Id. As such, “there is good reason not to amalgamate Compact Clause entities with agencies of ‘one of the United States’ for Eleventh Amendment purposes.” Id. at 42. Generally, “[s]uit in federal court is not an affront to the dignity of a [bistate] entity, for the federal court, in relation to such an enterprise, is hardly the instrument of a distant, disconnected sovereign.” Id. at 41. Therefore, suits against bistate entities do not present the same issues of sovereign immunity as those against a state, cf. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 751–52 & n.6 (2002) (addressing sovereignty interests where parties do not dispute that defendant is an arm of the state), and allowing Bi-State to be sued in federal court poses “no genuine threat to the dignity of” Missouri or Illinois, Hess, 513 U.S. at 47. We therefore “presume [Bi-State] does not qualify for Eleventh Amendment immunity ‘[u]nless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose.’” Id. at 43–44 (second alteration in original) (quoting Lake Country, 440 U.S. at 401). In determining whether a good reason exists to find that Bi-State is entitled to immunity, “the most important factor . . . is ‘whether a judgment against the entity [could] be satisfied out of a State’s treasury.’” Leitner, 779 F.3d at 137 (quoting Hess, 513 U.S. at 31); see also Hess, 513 U.S. at 48 (referring to the “prevention of federal-court judgments that must be paid out of a State’s treasury” as the “impetus for the Eleventh Amendment” and collecting cases where appellate courts have “recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations”). As noted, Bi-State’s records indicate that state funding comprises less than two percent of its operating budget, in contrast with “the situation of transit facilities that place heavy fiscal tolls on their founding -14- States.” Hess, 513 U.S. at 49. And, though Missouri and Illinois may volunteer to assist paying a judgment against Bi-State, they are not obligated to do so. See Barket, 948 F.2d at 1087 (compact language allowing availability of funding not construed to mandate funding). Though Missouri has modified its sovereign immunity statute, the considerations underlying the other Barket factors remain largely unchanged. Furthermore, all factors involving the states’ financial obligations to Bi-State weigh in favor of finding that Bi-State is more like a local governmental entity. Therefore, while the factors point in different directions, we find that the changes in the underlying considerations of Barket’s analysis fail to provide “good reason to believe” that Illinois and Missouri structured Bi-State to allow it to “enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose.” Hess, 513 U.S. at 43–44. III. Conclusion We affirm the district court’s denial of Bi-State’s motion for summary judgment and remand for further proceedings. ______________________________ -15- 

MANDATE The Fourteenth Court of Appeals NO. 14-13-01063-CV In the Interest of S.A.H., a Child Appealed from the 245th District Court of Harris County. (Tr. Ct. No. 2006- 75715). Memorandum Opinion delivered by Justice Brown. Chief Justice Frost and Justice Donovan also participating. TO THE 245TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS: Before our Court of Appeals on November 18, 2014, the cause upon appeal to revise or reverse your judgment was determined. Our Court of Appeals made its order in these words: This cause, an appeal from the judgment in favor of appellee, Nicolas Froylan Perez, signed November 13, 2013, was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED. We order appellant, Mirna Leticia Alcantar, to pay all costs incurred in this appeal. We further order this decision certified below for observance. WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this behalf and in all things have it duly recognized, obeyed, and executed. WITNESS, the Hon. Kem Thompson Frost, Chief Justice of our Fourteenth Court of Appeals, with the Seal thereof affixed, at the City of Houston, January 29, 2015. 

743 F.Supp.2d 609 (2010) TOTAL RENAL CARE, INC., Plaintiff, v. CHILDERS OIL COMPANY, et al., Defendants. Civil Action No. 10-33-ART. United States District Court, E.D. Kentucky, Southern Division, Pikeville. September 28, 2010. *610 J. Steven Kirkham, Michael T. Harmon, W. Travis Parham, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN, for Plaintiff. Drew Byron Meadows, J. Dale Golden, Melissa Mae Thompson, Golden & Walters PLLC, Lexington, KY, for Defendants. MEMORANDUM OPINION & ORDER AMUL R. THAPAR, District Judge. Disaster strikes. An oil spill contaminates a river and poisons a city's water supply. The environmental calamity affects many property owners and businesses in the city, several of whom sue the oil company responsible for the spill in state court. But one of the businesses harmed by the spill decides to sue the oil company in federal court. Should the federal court dismiss the case because the state court actions arise from the same environmental disaster and involve similar *611 issues? That is the question this case presents. The defendants, Childers Oil Company and Mountain Rail Properties, filed a motion to dismiss the plaintiff, Total Renal Care's ("TRC"), complaint. R. 17. The defendants urge the Court to abstain from exercising jurisdiction under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), because of pending state court actions involving the same incidents from which TRC's claims arise. The defendants also argue that TRC's complaint fails to state a claim upon which relief can be granted. Because the facts of this case do not warrant abstention under Colorado River and because TRC's complaint, construed in the light most favorable to TRC, does not fail to state a claim, the defendants' motion to dismiss will be denied. BACKGROUND On or before November 1, 2008, the defendants dumped sludge from one of their oil plants into a plastic-lined pit located next to the Kentucky River in Whitesburg, Kentucky. R.1 ¶ 13. Contaminants from the pit seeped into the river and flowed downstream to a drinking water treatment plant operated by Veolia Water. Id. ¶ 14. The plant provides water to the residents and businesses of Whitesburg. Id. ¶ 7. After workers at the treatment plant noticed a strong smell of gasoline, Veolia Water shut the plant down for several days. Id. ¶ 14. Kentucky officials determined that the defendants' sludge pit was the source of the contamination. Id. ¶ 16. The state environmental agency issued a consumer advisory to residents of Whitesburg informing them that they should not use water for anything other than flushing. The advisory remained in effect for five days, from November 1 thru November 6, 2008. Id. ¶ 17. TRC owns and operates a dialysis clinic in Whitesburg. Id. ¶ 8. Dialysis is a treatment for individuals who experience kidney failure. Dialysis cleans the blood in the patient's body by passing it through a special machine. The process requires a large amount of water, and the water must be pure. Because the water is in nearly direct contact with the patient's blood, any impurities or contamination could be extremely dangerous to a patient's health. Id. ¶¶ 9-10. TRC's dialysis clinic relies on water from the Whitesburg plant, which it then processes to further purify. Id. ¶ 11. The contamination of the local water supply forced TRC to close its clinic for five days, from November 1 thru November 6, 2008. Id. ¶ 25. As if the residents of Whitesburg had not already been through enough, a diesel fuel storage tank on the defendants' property began leaking into the river in February 2009, just a few months after the first spill. Id. ¶ 21. The diesel fuel flowed downstream, again, contaminated the water in the treatment plant, again, led Kentucky officials to issue a water quality advisory, again, and forced TRC to close its dialysis clinic, again. Id. ¶¶ 21-24, 26. This second contamination closed TRC's dialysis clinic for nine days, from February 16 thru February 25, 2009. Id. ¶ 26. TRC filed this action on March 10, 2010. The complaint alleges that the defendants were negligent in causing both contaminations. Id. ¶¶ 28-44. TRC seeks compensation for the revenues it lost by not treating patients during the periods it had to close as well as significant expenses associated with cleaning the dialysis equipment in the clinic. Id. ¶ 27. TRC also seeks punitive damages. But TRC's lawsuit is not the only piece of litigation to come out of the two contamination incidents. The spills poisoned an entire city's water supply and damaged *612 property values. Several other plaintiffs have filed lawsuits against the defendants in state court arising out of these same incidents. See R. 17, Attach. 2-5. At least four separate actions are currently pending in the Letcher Circuit Court before Special Judge James L. Bowling, Jr. R. 17, Attach. 1 at 2. DISCUSSION The defendants argue that the Court should dismiss TRC's complaint for two reasons. First, they urge the Court to abstain from hearing TRC's case because parallel proceedings in state court will determine the same issues, and therefore allowing this case to go forward would waste judicial resources and expose the defendants to the possibility of inconsistent judgments. Second, the defendants argue that TRC's complaint should be dismissed for failure to state a claim because an independent superseding cause—the water treatment plant's failure to remove the contaminants—caused TRC's injuries, and at any rate, TRC's injuries are purely economic, and therefore are barred by the economic loss rule. None of the defendants' arguments are convincing. I. Colorado River Abstention is Not Warranted The defendants first ask the Court to take an extraordinary step—to refuse to exercise its constitutionally-vested jurisdiction and disrupt TRC's choice of forum because pending cases in state court involve similar issues. There are certain extraordinary cases in which abstention because of parallel litigation in state courts is appropriate. This case is not one of them. Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River, 424 U.S. at 816, 96 S.Ct. 1236. Despite this obligation, there are certain exceptional circumstances in which a federal court should abstain from hearing a case that is properly before it. These circumstances involve unique interactions between state and federal law and are grounded in "considerations of proper constitutional adjudication and regard for federal-state relations." Id. at 817, 96 S.Ct. 1236. The Supreme Court has said that abstention is appropriate where a federal case presents a constitutional issue that might be mooted or significantly altered by a state court's construction of state law, see Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), where a case presents important questions concerning state public policy and the state courts have not yet authoritatively interpreted a controlling statute, see Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 31, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (Stewart, J., concurring), and where litigants have invoked federal jurisdiction for the purpose of restraining state criminal proceedings, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Colorado River, the Supreme Court created another category of abstention—where a case in federal court involves substantially the same issues and substantially the same parties as a parallel case in state court. 424 U.S. at 817-21, 96 S.Ct. 1236. The Colorado River case was about water rights. Under Colorado law, specialized state courts had authority to adjudicate water disputes. While a suit concerning rights to certain water was pending in state court, the United States instituted a suit in federal court to establish its rights and the rights of certain Native Americans to that same water. 424 U.S. at 805-06, 96 S.Ct. 1236. One of the defendants in the state court action impleaded the United States into the state case in the hopes of adjudicating all claims to the same water in that action. *613 Id. at 806, 96 S.Ct. 1236. The district court then abstained from hearing the suit the United States had instituted because of the parallel state court litigation. Id. The Supreme Court held that the district court's abstention was appropriate. Id. at 820, 96 S.Ct. 1236. The Court began by emphasizing that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Id. at 813, 96 S.Ct. 1236. The Court noted that the case did not fit into any of its existing abstention doctrines. Id. at 817, 96 S.Ct. 1236. Nevertheless, the Court upheld the district court's decision not to hear the case. Relying on "considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation," the Court held that, in certain "exceptional" cases, a federal court could decline to hear a case where concurrent state court litigation involves the same parties and the same issues. Id. at 817-18, 96 S.Ct. 1236. The Court listed a number of factors that inform the analysis, made clear that all of the factors should be weighed together, and concluded that the district court's dismissal in light of the pending state litigation was justified. Id. at 818-19, 96 S.Ct. 1236. In particular, the Court emphasized that both the state and federal actions concerned rights to the same water. Id. at 819-20, 96 S.Ct. 1236. Therefore, the possible prejudice from inconsistent verdicts was significant—if the state court and the federal court determined that different parties had rights to the same body of water, there would be a serious problem. In subsequent cases, the Supreme Court has emphasized that Colorado River abstention should be an extraordinary, and extraordinarily rare, occurrence. In Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court held that a district court abused its discretion by staying a suit concerning the arbitrability of a contract because a parallel proceeding in state court between the same parties involved the same issue. Id. at 9, 29, 103 S.Ct. 927. The Court cautioned that, when a district court considers the Colorado River factors, the "balance [must be] heavily weighted in favor of the exercise of jurisdiction." Id. at 16, 103 S.Ct. 927. Even though the state and federal proceedings were parallel—they involved the same parties and the same issue—the Court held that the case did not present the "requisite exceptional circumstances" to justify abstention. Id. at 18, 103 S.Ct. 927. Notably, unlike Colorado River, the case did not involve competing claims of rights to any property or finite resource. Therefore, there was less potential prejudice from piecemeal litigation or inconsistent verdicts. Id. Therefore, Colorado River abstention was inappropriate. The Sixth Circuit has channeled Colorado River into a convenient two-step inquiry. In the first step, the district court must determine that the federal and state actions are "parallel." See Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir.1998). If the actions are not parallel, the inquiry is at an end, and abstention is not appropriate. If the actions are parallel, the court must apply certain factors identified in the Colorado River and Moses H. Cone decisions to determine whether extraordinary circumstances justifying abstention are present. In this case, both steps of the Colorado River inquiry reveal that abstention is not warranted. First, the state court proceedings that the defendants identify are not parallel to this case. "Suits are parallel if substantially the same parties litigate substantially the same issues." New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th *614 Cir.1991). Generally, parallel proceedings involve the same plaintiff against the same defendant, although the presence of additional parties in one suit but not the other will not necessarily destroy parallelism. See, e.g., Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994 (11th Cir.2004); Flint v. A.P. Desanno & Sons, 234 F.Supp.2d 506 (E.D.Pa.2002). But here, TRC is not a party to any of the state court actions at all. Accordingly, none of those actions will vindicate TRC's claims. The pending state actions involve individuals and other businesses who claim some kind of injury as a result of the water contamination. Although one of the state court complaints contains a prayer for class certification, see R. 17, Attach. 2 at 5-10, to the Court's knowledge, the state court has not yet certified the class. See R. 21 at 5 n. 3. And at any rate, TRC's claims share little in common with the claims of the plaintiffs in that case, who are largely property owners seeking damages for the lost use and diminution in value of their property. See R. 17, Attach. 2 at 15-16. Because of the unique nature of TRC's damages, it is unlikely that TRC would be included in that class. And although the defendants state that they intend to file a motion joining TRC as an indispensable party in one of the state lawsuits, R. 17, Attach. 1 at 11, the mere possibility that TRC may become a party to one of the state lawsuits is hardly sufficient justification for this Court to surrender its jurisdiction and dismiss TRC's complaint. Of course, the defendants are correct that "exact parallelism is not required." R. 23 at 1 (quoting Romine, 160 F.3d at 340). That is why the Sixth Circuit in Romine found that class actions in state and federal court involving coextensive plaintiff classes, advancing identical theories of recovery, and seeking the same relief were parallel, even though there were different named class representatives in each suit. 160 F.3d at 340. Romine recognized that the named class representatives are more or less fungible, but if the underlying classes themselves are coextensive, in reality the lawsuits seek to vindicate the same interests. Here, in contrast, TRC's interests are totally unrepresented in any of the state court actions. Besides the incongruity in parties, this case and the state cases are not parallel because they involve different issues. It is true that some of the issues will be the same. The purported damages in the state cases and this case all stem from the two times the defendants allegedly released pollutants into the Kentucky River. The defendants' negligence will be a common issue in both sets of proceedings. There may also be overlapping questions of causation. But the cases will diverge substantially when it comes to damages. TRC, after all, runs a unique business, and the oil spills harmed it in a unique way. The damages that TRC suffered are very different from the damages that the property owners in the state cases suffered. Evaluating TRC's claim may require evidence about the dialysis process, how the specialized machines used in dialysis operate, what effects introducing contaminants into the water used during dialysis can have on patients, whether TRC could have mitigated its damages by utilizing more sophisticated on-site purification systems, and a number of other issues that are simply inapplicable to the claims pending in state court. In other words, just because this case and the state cases grow out of the same general event does not mean that they are parallel. Consider this example: A mechanic negligently cuts the brake line in a car he is repairing. The car owner, unaware of the danger, drives the car home from the shop. When she tries to stop at a red light, the brakes fail. She swerves *615 off the road and onto a golf course, tearing-up the 18th green. She careens through the golf course and into a hospital parking lot, where she runs over a patient in a wheelchair. The car finally comes to a stop when it plows into an antique shop, shattering several Ming dynasty vases and a baroque chandelier. There are four victims in this sad tale—the golf course owner, the hospital patient, the proprietor of the antique shop, and the woman driving the car. All of their injuries sprung from the mechanic's negligence. To recover against the mechanic, each victim will have to prove that the mechanic was negligent. But if the golf course owner and the hospital patient sue the mechanic in state court, could a federal court really abstain from hearing the antique shop proprietor's case simply because some of the issues will be the same as those involved in the state case? It would be preposterous for a federal court to abstain under Colorado River in this situation. Yet this story is not far removed from what the defendants ask the Court to do in this case. The defendants' alleged negligent acts harmed many different parties. Some of those parties chose to bring actions in state court. TRC chose to bring its action in federal court. TRC is not a party to any of the state court actions, and its lawsuit will require consideration of several unique issues. Therefore, this action and the state court actions are not parallel. For this reason alone, abstention is inappropriate. But even if the actions were parallel, applying the Colorado River factors reveals that this is not one of the extraordinary cases that would justify abstention. There are eight factors for the Court to consider in determining whether extraordinary circumstances justifying abstention are present. Those factors are: (1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff's rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction. Romine, 160 F.3d at 340-41. These factors are not a "mechanical checklist." Id. at 341. Rather, the Court should balance all of them to decide whether Colorado River abstention is appropriate. But the balancing always starts with a heavy thumb on the scales in favor of exercising jurisdiction. See Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. There must be an extraordinarily compelling reason for the Court to shunt its constitutionally-vested jurisdiction and disrupt the plaintiff's choice of forum. The Court need not walk through each and every factor in this opinion. It is true that the state court actions were initiated first, that those actions have progressed further than this action, and that state negligence law will govern all of the actions. And the federal courthouse may be slightly further away from Whitesburg than the state court.[1] R. 17, Attach. 1 at 6. But the most important factor—indeed, the "consideration that was paramount in Colorado River itself," Moses H. Cone, 460 U.S. at 19, 103 S.Ct. 927—does not urge *616 abstention in this case. That element is the possible danger from piecemeal litigation. It is true, as the defendants suggest, that the defendants could face inconsistent verdicts. R. 17, Attach. 1 at 7. They could be found liable in state court and not liable in federal court, or vice versa. But that is not really the danger that Colorado River was concerned about. In Colorado River, the state and federal litigation both concerned rights to the same water. If the state court held that the plaintiffs were entitled to the water but the federal court held that the defendants were entitled to the same water, there would be a serious problem. Avoiding that intractable situation was the primary impetus behind the federal court's abstention in Colorado River. The possible danger from piecemeal litigation here is much less concerning. Therefore, weighing all of the factors, this case is not one of those extraordinary cases in which Colorado River abstention is appropriate. II. TRC's Complaint does not Fail to State a Claim The defendants also urge the Court to dismiss TRC's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because it fails to state a claim upon which relief can be granted. The defendants make two arguments: (1) the water treatment plant's failure to remove the contaminants from the water is a superseding cause that absolves them from liability, and (2) the "economic loss rule" bars TRC's claims. Both arguments fail. A. Superseding Cause After the defendants contaminated the water in the Kentucky River, the water flowed down to Whitesburg, where it passed through a water treatment plant before being distributed to residents and businesses, including TRC. The defendants argue that the water treatment plant had a duty to remove any contaminants from the water, and therefore the plant's failure to remove the contaminants that the defendants introduced into the river is a superseding act of negligence that absolves them of liability. This argument may or may not ultimately be a viable defense in this action. But, in order for the Court to grant the defendants' motion to dismiss on this ground, it must be apparent, as a matter of law, that the water treatment plant's failure to remove the contaminants from the water was a superseding cause of TRC's damages. In other words, the Court must determine, after accepting all of TRC's factual allegations as true and construing the complaint liberally in TRC's favor, that TRC "undoubtedly can prove no set of facts in support of [its] claims that would entitle relief." Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir.2008). The Court cannot make that determination at this time. Under Kentucky law, there is a difference between a superseding cause—which absolves the original tortfeasor of liability—and an intervening cause—which does not. See NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564, 568 (Ky.Ct.App. 1993) ("A superseding cause is an intervening independent force; however, an intervening cause is not necessarily a superseding cause. [I]f the injury is reasonably foreseeable from the view of the original actor, then the other factors causing to bring about the injury are not a superseding cause."). This is how the distinction works: X is negligent. Y then commits another act of negligence. Finally, Z is injured. If Z's injury is still a foreseeable result of X's negligence—if X's negligence is a "substantial factor in bringing about the harm," id. (citing Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980))—then Y's negligence will not absolve X of liability. Y's negligence is an intervening cause, not a superseding cause. In contrast, if Y's negligence *617 is an independent force that injures Z in a manner that was not foreseeable to X, Y's negligence is a superseding cause, and it releases X from liability. Kentucky courts have articulated a six-part test for identifying a superseding cause. See id. In their briefs, the parties debate back and forth about whether the water treatment plant's failure to remove the contaminants from the fulfills all six elements. See R. 17, Attach. 1 at 14-16; R. 21 at 7-9. What is apparent to the Court at this stage is that, construing TRC's complaint in its favor and accepting all of its factual allegations as true, the Court cannot say, as a matter of law, that the water treatment plant's failure to remove the contaminants was a superseding cause of TRC's injuries. And at any rate, it is not clear from the face of TRC's complaint that the water treatment plant was negligent at all. Therefore, this issue is best left to the jury. It is true, as the defendants note, that the Kentucky Supreme Court has said that "[t]he question of whether an undisputed act or circumstance is a superseding cause is a legal issue for the court to resolve and not a factual matter for the jury." R. 17, Attach. 1 at 12 (quoting Fryman v. Harrison, 896 S.W.2d 908, 911 (Ky.1995)). But that is only true, as the quotation suggests, when the superseding cause is indeed undisputed. In Fryman, the issue was whether a jailer could be held liable for an assault committed by a prisoner that he negligently released. The Kentucky Supreme Court held that the prisoner's assault itself was a superseding cause that cut-off the jailer's liability. Fryman, 896 S.W.2d at 911. But in that case "[t]here was no dispute that the claimed act of negligence or the assault actually occurred. Thus the issue was not a mixed question of law and fact." Id. Here, in contrast, it is not undisputed that the water treatment plant was negligent. Would a reasonable and prudent water plant have been able to remove all of the contaminants from the water supply? Should a well-run water plant serving a city the size of Whitesburg have had equipment to detect and separate oil and diesel fuel from river water? Was it foreseeable to the defendants that, if they released toxins into the Kentucky River, the water treatment plant would not be able to remove all of the contaminants? These are questions that are necessary to a determination that the water treatment plant was negligent and that its negligence was a superseding cause of TRC's injuries. But these questions cannot be answered at this stage of the proceedings, when the Court is required to "construe the complaint in the light most favorable to the plaintiff [and] accept all of the complaint's factual allegations as true." Jelovsek, 545 F.3d at 434. Other courts have recognized that determining whether a subsequent act of possible negligence that contributes to a plaintiff's injuries absolves the original tortfeasor from liability is a difficult question and have refused to grant motions to dismiss on that ground. See, e.g., Davis v. Dallas County, Tex., 541 F.Supp.2d 844, 855-56 (N.D.Tex.2008); Herman v. Welland Chemical, Ltd., 580 F.Supp. 823 (E.D.Pa.1984). Because, at this stage of the proceedings, the Court cannot say as a matter of law that the water plant's failure to remove the contaminants from the water was a superseding act of negligence that cuts-off the defendants' liability entirely, the defendants' motion to dismiss on this ground will be denied. B. Economic Loss Rule Finally, the defendants argue that the Court should dismiss TRC's complaint because its claims are barred by the "economic loss rule." R. 17, Attach. 1 at 17. But the defendants provide very little authority in their brief establishing that the economic loss rule is part of Kentucky law, *618 and absolutely no authority indicating that Kentucky courts would apply the economic loss rule to bar TRC's claims in this case. Therefore, the defendant's motion to dismiss on this ground will also be denied. The economic loss rule is a judicially-created doctrine that first developed in products liability cases. See Presnell Constr. Managers, Inc. v. EH Constr., LLC, 134 S.W.3d 575, 583-84 (Ky.2004) (Keller, J., concurring). The case that is popularly believed to be the genesis of the economic loss rule is Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), which involved a defective truck. Some of the goods that the plaintiff transported using the truck were damaged, and the plaintiff lost substantial profits while the truck was out of commission for repairs. The plaintiff sued the truck manufacturer seeking compensation for both the damaged products and his lost profits. The California Supreme Court held that the plaintiff could recover for the damaged goods but not for the lost profits. Id., 45 Cal.Rptr. 17, 403 P.2d at 151. From Seely, the rule took hold in other states. Today, "[i]n its broadest formulation, the economic loss rule prohibits tort recovery in negligence or products liability absent physical injury to a proprietary interest." Presnell Constr. Managers, 134 S.W.3d at 583-84 (Keller, J., concurring). The defendants ask the Court to apply the economic loss rule and hold that it bars TRC's claims for lost profits as a result of its having to close while the city's water was contaminated. In order for the Court grant the defendants' motion to dismiss TRC's claims of economic injury on this ground, the defendants must provide legal authority establishing that the economic loss rule is part of Kentucky law and that Kentucky courts either have applied or would apply the rule to bar claims similar to TRC's. The defendants have not done so. First, the defendants provide only the most bare legal authority establishing that the economic loss rule is part of Kentucky law at all. All the defendants can muster in their brief is a quote from a Kentucky Supreme Court case that they claim "implicitly recognized" the rule and a quote from a concurring opinion by Justice Keller in Presnell Construction Managers. But Justice Keller acknowledges in that opinion that "no Kentucky appellate decision has ever used the specific phrase, `economic loss rule,' much less indicated its approval or adoption of the rule." Id. at 585-86. Indeed, in 1995 the United States District Court for the Western District of Kentucky certified the question of whether the economic loss rule is part of Kentucky law to the Kentucky Supreme Court. Bowling Green Mun. Utilities v. Thomasson Lumber Co., 902 F.Supp. 134, 135-36 (W.D.Ky. 1995). The Kentucky Supreme Court refused to answer the question at that time, and it does not appear that there has been any guidance since. But even if the Court concludes that the economic loss rule is part of Kentucky law, extending it to bar TRC's claims in this case is a big stretch. As the Thomasson Lumber court explained, "[t]he economic loss rule applies only in a commercial context." Id. at 136. "The crux of the doctrine is ... the premise that economic interests are protected, if at all, by contract principles, rather than tort principles." Presnell Constr. Managers, 134 S.W.3d at 583-84 (Keller, J., concurring). The policy rationale behind the rule is that a manufacturer who sells products in the stream of commerce should not face extraordinary liability for lost business and other economic injuries caused by a defective product unless a warranty or contract specifically covers such losses. For example, if Ben & Jerry's buys a refrigerated delivery truck and the truck malfunctions, *619 causing 10,000 pints of Cherry Garcia ice cream to melt, Ben & Jerry's would be able to recover damages for the lost ice cream from the truck's manufacturer. But if the truck is out of commission for two weeks for repairs, the economic loss rule would prohibit Ben & Jerry's from recovering the lost profits it would have made from the truck's deliveries during that period unless specifically provided for in a warranty. In this respect, the economic loss rule encourages parties to contemplate and cover economic losses in the terms of a warranty or contract. But this central rationale of the economic loss rule loses its force when there is no contractual relationship between the parties. In this case, TRC has no contractual relationship with the defendants. The defendants did not sell TRC any defective products. Indeed, the first interaction between the parties was when the defendants allegedly contaminated TRC's water supply. Applying the doctrine that "economic interests are protected, if at all, by contract principles, rather than tort principles," id., to the non-contractual relationship between TRC and the defendants is to say, effectively, that TRC's economic interests are entirely unprotected. That would be a strange result indeed. Because Kentucky courts have not addressed this precise question before—whether the economic loss rule applies in the absence of a contractual relationship—it is up to the Court to "determine the path that state [law] would follow." Overstreet v. Norden Labs., Inc. 669 F.2d 1286, 1290 (6th Cir.1982). But the defendants have provided absolutely no legal authority from which the Court could predict that Kentucky courts would apply the economic loss rule where there is no pre-existing contractual relationship between the parties. Indeed, the defendants have not cited to a single case from any jurisdiction applying the economic loss rule to a situation in which the parties did not have a pre-existing contractual relationship. It is not the Court's responsibility to troll through the annals of Kentucky law in search of legal authority that the parties have not provided. And, in any event, the Courts trolling supplied nothing to support the defendants' position. Therefore, the defendants' motion to dismiss on this ground will be denied. CONCLUSION For these reasons, it is ORDERED that the defendants' motion to dismiss, R. 17, is DENIED. NOTES [1] Although, this distance is clearly not too great a burden for the defendants. After all, they tried to remove one of the state court actions to federal court themselves, but it was remanded for lack of subject matter jurisdiction. See R. 17, Attach. 6.

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-9-2004 Zheng v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-3940 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Zheng v. Atty Gen USA" (2004). 2004 Decisions. Paper 91. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/91 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 03-3940 ZHI XIU ZHENG Petitioner v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent Petition for Review of an Order of the Board of Immigration Appeals ( No. A78 221 617 ) Submitted Under Third Circuit LAR 34.1(a) Date: November 30, 2004 Before: RENDELL, ALDISERT and MAGILL 1 , Circuit Judges (Filed December 9, 2004) OPINION OF THE COURT ALDISERT, Circuit Judge 1 The Honorable Frank J. Magill, Senior Judge, U.S. Court of Appeals for the Eighth Circuit, sitting by designation.  Petitioner Zhi Xiu Zheng, a native and citizen of China, seeks review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) on August 28, 2003. The order affirmed the Immigration Judge’s (“IJ’s”) decision to deny Ms. Zheng’s request for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. We will deny the petition. I. Because we write only for the parties, who are familiar with the facts, procedural history and contentions presented, we will not recite them except as necessary to the discussion. II. For a petitioner to establish that she is a refugee eligible for asylum, she must demonstrate that she is unable or unwilling to return to her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). A petitioner for asylum bears the burden of supporting her claim through credible testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). An adverse credibility finding by the IJ should be supported by specific, cogent reasons for the disbelief in petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-162 (3d Cir. 1998). In asserting a claim under CAT, the applicant must establish “that it is more likely than not 2 that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2) (2002). Where the BIA summarily affirms the IJ’s decision without opinion, we review the IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review the IJ’s factual determinations under the substantial evidence standard, meaning that we will uphold findings “to the extent that they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Balasubramanrim, 143 F.3d at 161 (quoting INS v. Elias-Zacarias, 502 U.S. 478 (1992)). Here, there is substantial evidence to support the IJ’s adverse credibility finding. The IJ concluded that Ms. Zheng was not testifying truthfully about the core of her claim, the forced abortion and the second IUD insertion, because she changed her testimony when confronted with its impossibility. The IJ also denied Ms. Zheng’s application for relief under CAT because she did not prove that she would be tortured by the Chinese government. On appeal, Ms. Zheng argues that the BIA erred in: (1) affirming the IJ’s decision without an opinion and not considering her fresh arguments; and (2) affirming the IJ’s adverse credibility finding. We reject Ms. Zheng’s first contention because the BIA filed a brief opinion. Moreover, we have approved decisions of our sister Courts of Appeals upholding the BIA’s right to “simply state that it affirms [the immigration judge’s] decision for reasons 3 set forth in that decision” Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir. 2001) (quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996)). We also reject Ms. Zheng’s contention that the BIA failed to consider her “fresh arguments” because she raised no new issues before the BIA. We now turn to Ms. Zheng’s second contention. She argues that: (1) although “there may have been some factual omissions and oversights” in her testimony, it was “no less direct, plausible, consistent and credible in regard to her forced abortion and IUD insertion” (Pet. br. at 13.); (2) the contradictions did not go to the “heart of her claim.” (Id. at 14.); and (3) any inconsistencies did not change the truth that she was forced to undergo an abortion and that an IUD was inserted. We are not persuaded by Ms. Zheng’s arguments. Her inconsistent testimony regarding the identity of the doctors who allegedly performed the coercive birth control procedures was central to the entire basis of her claim. When testifying, Ms. Zheng stated “clearly and unequivocally” that two different doctors performed the abortion and the second IUD insertion. After being confronted with the fact that the same doctor signed the certificate for the abortion and the second IUD insertion, Ms. Zheng changed her testimony and claimed she had difficulty remembering because of the “extremely traumatic” nature of the abortion. Ms. Zheng’s testimony went through several more revisions. The IJ plausibly concluded that “if the respondent were not thinking very clearly, and she had any uncertainty about the identity of the doctors, it would have 4 seemed that the respondent would have told that to the Court initially.” (App. at 20.) This discrepancy called into question the accuracy of the medical certificates and raised legitimate concerns about their authenticity. Assuming the documents were accurate, the truthfulness of Ms. Zheng’s testimony was highly questionable. Under either scenario, the veracity of her claim that she was forced to undergo an abortion and two IUD insertions was seriously called into question. Ms. Zheng also gave conflicting testimony about the circumstances of her alleged abortion. On direct examination, she testified that the doctor gave her an injection, which caused her pain twelve hours later, after which the baby was aborted. On cross examination, however, Ms. Zheng testified that a nurse gave her the injection and her baby was aborted two hours later. Furthermore, the State Department's Asylum Profile called into question the validity of Ms. Zheng’s medical certificates from China. The only document resembling such a certificate that the State Department was aware of was one “issued by hospitals upon a patient's request after a voluntary abortion.”(App. at 310.) III. We have considered all arguments raised by the parties and conclude that no further discussion is necessary. We hold that substantial evidence supported the IJ’s adverse credibility findings and the BIA’s order. Accordingly, we will deny the petition for review. 5 

816 F.Supp. 548 (1993) Elizabeth J. KIZER, Plaintiff, v. The CURATORS OF the UNIVERSITY OF MISSOURI, E. Terrence Jones, and Thomas McPhail, Defendants. No. 4:92CV00408 GFG. United States District Court, E.D. Missouri, E.D. March 25, 1993. *549 Harold I. Elbert, Partner, Kohn and Shands, Samuel H. Liberman, St. Louis, MO, for plaintiff. John R. Musgrave, Judith L. Garner, Coburn and Croft, St. Louis, MO, for defendants. MEMORANDUM AND ORDER GUNN, District Judge. This matter is before the Court on defendants' motion to dismiss portions of plaintiff's complaint. Plaintiff Elizabeth Kizer, a professor at the University of Missouri-St. Louis, brings this action against defendants the Curators of the University of Missouri; E. Terrence Jones, the University's Dean; and Thomas McPhail, the current chairperson of Kizer's department. Kizer alleges that defendants discriminated against her on the basis of her age and sex and in retaliation for having previously filed a grievance. She asserts claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634; Title VII, 42 U.S.C. §§ 2000e-2000e-17; and the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. §§ 213.010-213.126. She additionally asserts that Jones and McPhail tortiously interfered with her employment relationship with the University. The University hired Kizer as an associate professor in the Department of Speech Communications at the University of Missouri-St. Louis in August of 1976. In 1985, Kizer filed a grievance contending she was denied tenure and a promotion on the basis of her sex. This grievance was resolved and Kizer returned *550 to work in the Department of Speech Communications. Later, in April of 1987, Kizer was elected to the position of Department Chairperson. She left that position in December of 1990.[1] On May 3, 1991, Kizer filed a charge with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights (MCHR), naming the University as respondent. In the charge, she alleged that: I believe I have been discriminated against in retaliationfor [sic] having filed the grievance by being refused to have the previously negotiated grievance settlement terms recognized; by being penalized on annual raise increment; by refusing to support my nomination for an ACE fellowship; and by having my application to serve as acting Associate Vice Chancellor for academic affairs blocked for consideration, and in being harassed with sexual remarks because of my age, 57, and my sex, female. The EEOC and the MCHR issued notice of right to sue on December 6, 1991 and March 2, 1992, respectively. Kizer commenced this action on March 3, 1992. In her complaint she reiterates some of the allegations contained in her charge and adds allegations that defendants forced her removal from her position as Department Chairperson in order to replace her with a younger, higher-paid male, whom they recruited and hired in violation of the normal tenure procedures. Kizer also asserts that defendants discriminated against her in their assignment of classes and duties, placing undeserved accusations in her file, being overly critical of her work, denying and interfering with her opportunities for promotion and advancement, excluding her from work related functions, circulating false and slanderous accusations against her and interfering with her performance as a teacher and member of the faculty. When ruling on a motion to dismiss, this Court must take the allegations of the complaint as true, construing the complaint and all reasonable inferences therefrom, in a light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). Therefore, "a motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Id. This standard applies equally to a motion to dismiss for lack of subject matter jurisdiction as to a motion to dismiss for failure to state a claim. Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir.1980). Jones and McPhail move to dismiss Kizer's discrimination claims against them. With regard to the claim of age discrimination, Jones and McPhail assert that they are not employers within the meaning of the ADEA. The ADEA prohibits certain conduct by an employer, defining an employer as "a person engaged in an industry affecting commerce" and "any agent of such a person," as well as "a State or political subdivision of a State and any instrumentality of a State or a political subdivision of a State." 29 U.S.C. § 630(b). This definition contemplates liability on the part of some agents, those of persons, and for entities with a certain relationship to a state, but it does not extend liability to agents of a state, its political subdivisions or instrumentalities. See, e.g., Wanner v. State of Kansas, 766 F.Supp. 1005, 1006-1007 (D.Kan.1991) (director of the Divisions of Architectural services not an employer); Tranello v. Frey, 758 F.Supp. 841, 851 (W.D.N.Y.1991) (county executive and county attorney not employers), aff'd in part and appeal dismissed in part, 962 F.2d 244 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 813, 121 L.Ed.2d 686 (1992); Court v. Admin. Office of the Third Judicial Dist. Court, Salt Lake County, 764 F.Supp. 168, 170 (D.Utah 1991) (state court judge and court executive not employers). Accordingly, *551 the Court shall dismiss Kizer's ADEA claim as to Jones and McPhail. The Court notes, however, that Kizer bases her claim of age discrimination on both the ADEA and the MHRA. THe MHRA authorizes suit against any person directly acting in the interest of an employer and defines employer to include the state. Mo. Rev.Stat. § 213.010(6). Therefore, Jones' and McPhail's dismissal from the ADEA claim does not insulate them entirely from a claim of age discrimination.[2] Jones and McPhail also maintain that they should be dismissed from Kizer's discrimination claims because she did not name them in her EEOC charge. Generally, parties who are not named in the EEOC charge are not subject to suit in a subsequent civil action. Greenwood v. Ross, 778 F.2d 448, 450-51 (8th Cir.1985). Courts recognize exceptions to this rule, however, "where an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance." Id. at 451. For example, the named respondent and the unnamed party may share sufficient identify of interest to satisfy Title VII's intention that each defendant shall have adequate notice and opportunity to conciliate. Id. "The purpose behind this exception is to prevent frustration of the goals of Title VII by not requiring procedural exactness in stating the charge." Id. Neither Jones' nor McPhail's name appears in Kizer's description of her grievance contained in her EEOC charge. Both individuals were on notice of the charges, however, because they were interviewed as part of the EEOC investigation. Moreover, Jones and McPhail concede that an identity of interest exists between themselves and the University. Even if Jones and McPhail did not personally participate in conciliation efforts, a supervisor has an adequate opportunity to conciliate when the employer had such an opportunity and the supervisor's conciliation interests would be commensurate with his employer's. Arenas v. Ladish Co., 619 F.Supp. 1304, 1308 (E.D.Wis.1985). In light of the circumstances of this case, the Court concludes that Kizer's failure to name Jones and McPhail in her EEOC charge does not warrant dismissal of those individuals from her Title VII claim. Defendants also request dismissal of those portions of the discrimination claims that stem from allegations which they contend Kizer did not present to the EEOC. Where a person has filed a charge of discrimination with the appropriate agency and has received a notice of right to sue on that charge, she need not file a separate charge of discrimination with regard to discrimination like or reasonably related to the allegations in the charge. Anderson v. Block, 807 F.2d 145, 148 (8th Cir.1986). "To force a plaintiff to file a new administrative charge with each continuing incident of discrimination, would create needless procedural barriers." Id. A common motivation behind the discrimination, however, will not suffice to expand the scope of the original administrative charge to encompass the later allegations. Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir.1992) (citing district court decision with approval). One set of allegations that defendants seek to dismiss arises from Kizer's purported ouster as Department Chairperson. Kizer's departure from the position of chairperson and the circumstances surrounding selection of her replacement are not like or reasonably related to the allegations in her charge. This conclusion is supported by the EEOC's determination letter, which does not stray from the precise issues presented in Kizer's charge. Moreover, Kizer's forced removal occurred prior to May 3, 1991, when she filed her charge with the EEOC. Kizer's charge cites specific significant instances when she was denied employment opportunities yet it makes no reference to this specific event. Although the Court should not require excessive exactness in complying with the administrative prerequisites to maintaining a claim of discrimination, it concludes that Kizer *552 should have included in her charge some reference to an event of this magnitude occurring prior to the filing of the charge so as to allow an opportunity for conciliation. Accordingly, as to the events surrounding Kizer's alleged removal from the position of chairperson and the selection of her replacement, Kizer failed to include them in her charge and is now precluded from maintaining those claims. The balance of the allegations that defendants request the Court to dismiss refer to general events, without mention of a particular date or participant. Kizer describes her charge, as well as the complaint, as presenting a course of continuing harassment based on her age and sex and in retaliation for her previous successful grievance. Under that interpretation, the miscellaneous allegations in the complaint are like or reasonably related to those contained in the charge. Given the general nature of these allegations, the Court concludes that defendants have not established that it appears beyond doubt that Kizer can prove no facts to support her assertion that this Court has jurisdiction over those claims. The last issue before the Court regarding Kizer's discrimination claims concerns the relief available under the ADEA, Title VII and the MHRA, as well as the jury demand on the Title VII-MHRA claim. In her ADEA-MHRA count, Kizer seeks compensation for her past and future losses and damages, together with punitive damages. The remedies available under the ADEA are reinstatement, back pay, lost benefits and, in the case of a willful violation, liquidated damages, which are punitive in nature. EEOC v. Independent Stave Co., 754 F.Supp. 713, 721-22 (E.D.Mo.1991). The MHRA provides for the recovery of actual damages, which may include an award for emotional distress and humiliation, and punitive damages. Sullivan v. Curators of the Univ. of Mo., 808 F.Supp. 1420, 1422 (E.D.Mo.1992); Mo.Rev.Stat. § 213.111.2. In general, Kizer's demand has support in the law and the Court will deny defendants' request to strike paragraph 16 and the ad damnum in Count I. Regarding Kizer's claim pursuant to Title VII, defendants suggest that the 1991 amendments to the Civil Rights Act do not apply to the conduct alleged in Kizer's complaint. Inasmuch as the dates of those events are not currently before the Court, it will deny defendants' request without prejudice to refiling after such time as the facts are more fully developed. The parties should keep in mind that, as the Court explained previously, some of the relief requested is recoverable under the MHRA even if not compensable under Title VII. Furthermore, in some instances a plaintiff bringing suit under the MHRA in federal court is entitled to a jury trial. Eskridge v. State Farm Mut. Auto. Ins. Co., No. 91-0981-C-5, 1992 WL 437986 (E.D.Mo. April 10, 1992); but see Gill v. Reorganized School Dist. R-6, No. 4:92CV907 DJS (E.D.Mo. Nov. 11, 1992) (as against state governmental entity no right to jury trial attaches under MHRA). Lastly, defendants Jones and McPhail seek to dismiss the third count of Kizer's complaint, which contends that these two defendants tortiously interfered with her employment by the University. Jones and McPhail argue that they enjoy official immunity from suit for discretionary acts performed in the scope of their positions. Although defendants correctly cite the general rule, this immunity does not extend to deliberate and malicious acts of state employees.[3]See State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446-47 (Mo.1986) (en banc). Kizer's complaint alleges that Jones and McPhail acted willfully and maliciously. Official immunity does not shield Jones and McPhail from Kizer's claim for tortious interference. The Court also rejects defendants' request to dismiss for failure to state a claim. Plaintiff's allegations are sufficient. IT IS HEREBY ORDERED that defendants' motion to dismiss and to strike is *553 granted to the extent set forth hereafter and in all other respects is denied. IT IS FURTHER ORDERED that defendants Jones and McPhail are dismissed from plaintiff's claim under the Age Discrimination in Employment Act. IT IS FURTHER ORDERED that, to the extent plaintiff's claims in Count I and II rely on plaintiff's allegations regarding her forced removal from the position of Department Chairperson, more particularly the allegations in paragraph 13(b) to (e), they are dismissed. NOTES [1] This fact is not contained in the complaint. The Court may consider it, however, to the extent defendants seek to dismiss for lack of subject matter jurisdiction. Satz v. ITT Financial Corp, 619 F.2d 738, 742 (8th Cir.1980) (court may consider matter outside pleading for purposes of motion to dismiss for lack of subject matter jurisdiction). To the extent defendants' motion seeks dismissal for failure to state a claim, the Court's decision will not consider matters outside the pleading. See Fed.R.Civ.P. 12(b). [2] Unlike the ADEA, but similar to the MHRA, Title VII authorizes suit against an agent of a governmental employer. See 42 U.S.C. § 2000e(a) & (b). [3] Defendants' reply, wherein they attempt to refute Kizer's assertion that official immunity does not apply to willful acts, relies on a case decided on the basis of Eleventh Amendment immunity rather than official immunity. Hoferek v. University of Mo., 604 F.Supp. 938, 941 (W.D.Mo. 1985).

279 F.2d 475 Peter CALDEROLA, Plaintiff-Appellee,v.CUNARD STEAMSHIP COMPANY Limited, Defendant-Appellant and Third-Party-Plaintiff-Appellee,v.JOHN T. CLARK & SON, Third-Party-Defendant-Appellant. No. 255. Docket 25960. United States Court of Appeals Second Circuit. Argued April 1, 1960. Decided May 31, 1960. Benjamin J. Sergi, Brooklyn, N. Y. (DiCostanzo & Klonsky, Brooklyn, N. Y., on the brief), for plaintiff-appellee. John W. Castles 3d, New York City (John F. O'Connell and Lord, Day & Lord, New York City, on the brief), for defendant-appellant. William F. McNulty, New York City (Hampton & Dietel, New York City, on the brief), for third-party defendant-appellant. Before LUMBARD, Chief Judge, BARNES, Circuit Judge,* and J. JOSEPH SMITH, District Judge.* LUMBARD, Chief Judge. 1 These are appeals from two judgments of the district court, the first entered upon a jury verdict holding Cunard Steamship Company liable to Peter Calderola for injuries suffered by Calderola while working as a longshoreman on Cunard's ship, the S.S. Media, and the second entered upon findings made by the court without a jury holding John T. Clark & Son, the stevedoring firm that employed Calderola, liable to indemnify Cunard under the stevedoring contract between Clark and Cunard. 2 On August 17, 1956, Calderola was working as a winch operator at the No. 6 hatch of the Media, which was docked at Pier 92, North River, in New York City. Upon completion of loading at the hatch, plaintiff mounted a metal ladder running up the side of the deckhouse in order to return a wooden plank which he used as a seat while operating the winch to the roof of the deckhouse and in order to cut the ropes holding the canvas covering used to protect the winch operator from sun and rain. Although with his hand he had felt some grease on the top rung of the ladder as he went up it, Calderola began his descent a moment or two later by placing his foot on the same rung. Because of the grease his foot slipped and he fell to the deck, injuring his back and neck. His suit against Cunard alleged that the vessel was unseaworthy by reason of the presence of the grease and that the ship's crew was negligent in failing to discover and remove it. The court dismissed the negligence claim because no evidence was submitted on this point, but upon the unseaworthiness claim the jury brought in a verdict for plaintiff of $8,500. Defendant's motion for a new trial was denied, upon the condition that plaintiff remit $2,000 of his recovery, to which condition plaintiff agreed. The claim of Cunard over against Clark was decided by the court, both parties having waived a jury. The court found that Clark had breached its contract with Cunard to perform the stevedoring work in an efficient, safe and workmanlike manner, and awarded indemnity to Cunard in the same amount as plaintiff's recovery. We affirm the judgment for plaintiff, but reverse that in favor of Cunard. 3 The only grounds urged for reversal of the judgment in favor of plaintiff are (1) that a transitory condition, such as the presence of grease on the rungs of a ladder, does not render a ship unseaworthy, and (2) that no duty to maintain the ladder in a seaworthy condition extended to the plaintiff, since this was not a part of the ship to which he was entitled, or could reasonably have been expected, to go in the performance of his duties. 4 The view that a temporary condition, arising subsequent to the commencement of a voyage, may not constitute an unseaworthy condition was recently rejected by the Supreme Court in Mitchell v. Trawler Racer, Inc., 80 S.Ct. 926. The Court held that the duty to maintain a seaworthy ship is no less exacting when the unseaworthy condition is only a transitory one than it is when the defect inheres in the ship's hull or machinery. "[L]iability for a temporary unseaworthy condition is [no] different from the liability that attaches when the condition is permanent." 80 S.Ct. at page 933. 5 With reference to the second claim of error, we stated in Lauricella v. United States, 2 Cir., 1950, 185 F.2d 327, 328, that a shipowner's duty to provide stevedores with a reasonably safe place to work is "confined to those parts of the ship to which the [stevedore] * * * may reasonably be expected to go. His status as a business visitor is lost if he goes elsewhere * * *" However, it is plain that the ladder from which plaintiff fell in this case was part of his place of work. The testimony showed that plaintiff, who worked on the Media each time it came into New York, had long been accustomed to storing his seat atop the deckhouse, and that it was necessary to climb to the roof of the deckhouse to release the rope securing the tent which protected the winch operator. Although perhaps neither the comfort of a seat nor protection against the elements were absolutely necessary for the performance of plaintiff's job, both were customary and both benefited the shipowner by making more tolerable and pleasant plaintiff's working conditions. It was entirely reasonable to anticipate that plaintiff would make use of the ladder to reach the roof of the deckhouse. Moreover, he did not leave the confines of his place of work to do so. 6 Clark's appeal from the decision that it breached its contractual duty to perform its services in a safe and workmanlike manner challenges the sufficiency of the evidence to support this finding. The contract between Clark and Cunard stated that the former would "provide all necessary stevedoring labor, including winchmen, * * * foremen and such other stevedoring supervision as may be required for the proper and efficient discharging of cargo from or the loading of cargo into vessel's holds. * * *" Under this agreement Clark was not required to act as an insurer against any loss by Cunard or to discover and correct every hidden danger. Its duty was only to perform its services with "reasonable safety." Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. 7 There was no evidence in the case before us that the stevedore or any of its employees knew of the grease on the ladder until plaintiff placed his hand in it as he climbed to the roof of the deckhouse a few moments prior to the accident. This knowledge acquired by the plaintiff so short a time before he slipped was insufficient to put the stevedore on notice of the condition and give it an opportunity to remove the grease or to have the ship's crew do so before the accident. Cf. Santomarco v. United States, 2 Cir., 277 F.2d 255. Furthermore, the evidence tended to show that the grease could have been present on the ladder for only a short time before the accident, and thus it would be unreasonable to require the stevedore to have discovered the grease in the course of normal routine. 8 Absent knowledge or constructive notice of the presence of the grease, the stevedore could only have breached its contractual duty if the conduct of its employees created the dangerous condition. Upon this question, there was testimony by one of plaintiff's fellow employees that a "fall" or wire cable, which hung down from an unused boom that had been swung out of the way by the stevedores, was touching the ladder. However, one of the Media's officers gave evidence that this wire had not been greased for some time, since such cables were only greased when the ship was at sea. And plaintiff himself testified that the grease on the cable was dried and brittle, while the grease into which he placed his hand and upon which he slipped was light and fluid. Thus, there was no evidence whatever that the grease which caused the accident came from the cable which the longshoremen had permitted to rest against the ladder. 9 The trial court's determination that Clark breached its contract to perform its duty in a safe and workmanlike manner was without foundation in the evidence and must be reversed. 10 Judgment for the plaintiff affirmed. Judgment for the defendant against the third party defendant reversed. Notes: * Sitting by designation

29 F.3d 636 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.Perry A. McCULLOUGH, Defendant-Appellant. Nos. 90-10577, 91-10581 and 92-10597. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 13, 1994.Decided July 14, 1994. Before: HUG, SCHROEDER, and FERNANDEZ, Circuit Judges MEMORANDUM* Perry A. McCullough appeals his conviction of conspiracy, possession of cocaine with intent to distribute, use of a telephone to facilitate a drug offense, and operating a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Secs. 846, 841(a)(1), 843(b) and 848. He additionally appeals the contemporaneous forfeiture of his property. We affirm his sentence and all counts of conviction, save for his conviction on the continuing criminal enterprise (CCE) count and the forfeiture judgment, which we reverse.1 A. Double Jeopardy mcCullough argues that the district court's imposition of a stayed judgment and sentence on the conspiracy charge, in conjunction with the conviction and sentence on the CCE count, amounted to unconstitutional double punishment. Moreover, he contends that the district court's failure to, sua sponte, give a lesser included offense instruction on the conspiracy charge in relation to the CCE charge amounted to plain error because the jury was not prevented from convicting him of both offenses. That, he says, violated the Double Jeopardy Clause. U.S. Const. amend. V. The Supreme Court has determined that a defendant cannot be convicted of and sentenced for both a CCE charge under 21 U.S.C. Sec. 848 and a predicate conspiracy charge under 21 U.S.C. Sec. 841, because Congress did not intend cumulative punishment for the two offenses. Jeffers v. United States, 432 U.S. 137, 156-57, 97 S.Ct. 2207, 2219-20, 53 L.Ed.2d 168 (1977); see also, United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990). Here, he did not request a lesser included offense instruction, and the district court obviated any double jeopardy problem by indefinitely staying the conviction and sentence on the conspiracy count while entering judgment and imposing sentence on the CCE charge. We have previously recommended a similar procedure. See United States v. Medina, 940 F.2d 1247, 1253 (9th Cir.1991); United States v. Palafox, 764 F.2d 558, 564 (9th Cir.1985) (en banc). We see no reason to reject it now as violative of double jeopardy. Likewise, the district court's failure to, sua sponte, deliver a lesser included offense instruction to the jury did not amount to plain error. "In light of [McCullough's] failure to request such an instruction, the omission must be considered a matter of trial strategy and not error." United States v. Boone, 951 F.2d 1526, 1542 (9th Cir.1991) (internal quotation and citation omitted). B. The CCE Conviction The government concedes that under United States v. Delgado, 4 F.3d 780 (9th Cir.1993), there was insufficient evidence to support McCullough's conviction for operating a CCE in concert with five or more persons with respect to whom he occupied the position of organizer, supervisor or manager. The government also acknowledges that a specific unanimity instruction was required under United States v. Jerome, 942 F.2d 1328 (9th Cir.1991), in light of the prosecutor's argument that McCullough managed his customers. We therefore reverse McCullough's CCE conviction and vacate the stay on the conspiracy conviction and sentence. Remand for resentencing is unnecessary because under the Guidelines' "grouping" rules, the sentence imposed on both the conspiracy and CCE counts was determined by the offense within the group that carried the highest offense level; in this case, the conspiracy count or any substantive possession charge. See U.S.S.G. Sec. 3D1.3(b) (Nov. 1, 1988). The CCE count had no effect on the length of the sentence McCullough received for the previously stayed conspiracy conviction. C. Speedy Trial Issues McCullough asserts that the delay of his trial until July 16, 1990, a little more than a year after his indictment on June 23, 1989, violated his constitutional right to a speedy trial and his rights under the Speedy Trial Act. As to the purported violations of the Act, McCullough principally argues that the district court failed to make sufficiently specific findings as to excludable time. 1. The Speedy Trial Act As a threshold matter, McCullough waived his right to assert Speedy Trial Act violations occurring after January 25, 1990, the date on which he filed his speedy trial motion. See 18 U.S.C. Sec. 3162(a)(2); United States v. Berberian, 851 F.2d 236, 239 (9th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989). The only delay that can be considered on appeal is that which "occurs prior to and including the date on which the motion is made"; the right "to challenge any subsequent delay is waived absent the bringing of a new motion to dismiss." United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir.1989). The period up to January 25, 1990 and, indeed, the period after that time, is covered, for the most part, by statutory exclusions from the running of the speedy trial clock. The part not covered does not add up to 70 days. See 18 U.S.C. Sec. 3161(c). Much of the time is excluded because of motions filed by McCullough or his codefendants. See 18 U.S.C. Sec. 3161(h)(1)(F). For example, the period between November 21, 1989 and December 18, 1989 is excludable because mcCullough and his codefendants' discovery motions were pending. The remaining time is excluded because of continuances that the district court gave to the defendants due to the complexity and volume of the evidence in the case and the defendants' need to properly prepare for the filing of substantive motions or for trial. See United States v. Lewis, 980 F.2d 555, 564 (9th Cir.1992). Those were granted to satisfy the ends of justice. See 18 U.S.C. Sec. 3161(h)(8)(A). The continuances were not open-ended, and did not run the risk of bypassing the purpose of the Speedy Trial Act. Cf. United States v. Jordan, 915 F.2d 563, 565 (9th Cir.1990). Moreover, they were granted in response to requests of the defendants and were based upon the court's acceptance of the defendants' representations regarding their preparation needs. See United States v. Hoslett, 998 F.2d 648, 657 (9th Cir.1993); see also, Jordan, 915 F.2d at 565. McCullough was not denied any of his statutory speedy trial rights. McCullough's assertion that the exclusion of time was invalid because the trial date was not first set and then continued is far too technical for even this hypertechnical area of the law and is otiose. 2. The Sixth Amendment In examining McCullough's constitutional speedy trial claim, we consider: (1) whether the delay before trial was uncommonly long; (2) whether the government or the defendant was more to blame for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant suffered any prejudice. United States v. Aguirre, 994 F.2d 1454, 1455 n. 1 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993). Even assuming the delay to have been "uncommonly long," all of the delay in this case is attributable to the defense. The continuances were granted at the request of the defense, and properly so. Because the delay was attributable to the defense, McCullough must demonstrate how he was prejudiced by the delay. Aguirre, 994 F.2d at 1456. McCullough has not shown how he was prejudiced. His constitutional speedy trial claim therefore fails. D. Derivative Entrapment McCullough contends that the district court improperly refused to give an instruction on "derivative entrapment." "The entrapment defense is only available to defendants who were directly induced by government agents"; the " 'derivative entrapment' defense ... has been rejected in this circuit." United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987). We reject it again, as we must. Moreover, because McCullough's derivative entrapment theory was not a valid defense to the charges, the district court correctly excluded testimony offered to support it. Id. at 809. E. Admission of Drug Ledgers, Summary Charts, and Financial Statement McCullough contends that the district court improperly admitted (1) his datebooks from the years 1988 and 1989 that contained lists of his customers and the amount of cocaine he delivered to them ("drug ledgers"), (2) summaries of McCullough's financial transactions, prepared from McCullough's own records ("summary charts"), and (3) a financial statement prepared by McCullough himself which indicated his estimated net worth in late 1988. We disagree. The drug ledgers were relevant to establish McCullough's connection to the drug trafficking charges. See United States v. Robertson, 15 F.3d 862, 872 (9th Cir.1994). They belonged to him and the entries were in his handwriting. The drug ledger datebooks therefore also constituted admissions by the defendant and were not hearsay. Fed.R.Evid. 801(d)(2)(A). Because the drug ledgers did not constitute hearsay, they could be admitted to prove the truth of their contents without a limiting instruction. The summaries were also properly admitted. The documents on which a summary is based need not themselves be admitted into evidence in order for the summaries to be admissible; they need only be admissible. United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir.1988). Records seized from a defendant's possession are admissible as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) so long as the evidence shows that the defendant acted upon them or otherwise manifested his adoption of them. United States v. Ospina, 739 F.2d 448, 451 (9th Cir.), cert. denied, 469 U.S. 887, 105 S.Ct. 262, 83 L.Ed.2d 198 (1984). The evidence supports the conclusion that the records seized from McCullough were held by him as tax records. It can be inferred that records held by a person for tax purposes were documents that he adopted as his own. Because the records on which the summaries were based were admissible as adoptive admissions, the district court did not err by admitting the summaries of them. On cross-examination, McCullough admitted that he had put together the financial statement and typed it. Because McCullough himself had admittedly prepared the statement, it was admissible pursuant to Federal Rule of Evidence 801(d)(2)(A). McCullough's admission further authenticated the document. Fed.R.Evid. 901(b)(1). Moreover, the financial statement was relevant to proving an element of the CCE charge: that he had acquired "substantial income or resources" from drug trafficking. 21 U.S.C. Sec. 848(c)(2)(B). The district court therefore did not err by admitting the financial statement. F. Enhancement of McCullough's Sentence McCullough contends that his sentence was improperly enhanced for use of a firearm because there was no evidence that the weapon was in his possession at the time he committed the crimes of which he was convicted. He also argues that his sentence should not have been enhanced for his role as a leader or organizer, because that role was already taken into account in the CCE conviction itself. Finally, he contends that the sentence enhancement for obstruction of justice failed to comply with United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). 1 The firearm enhancement was proper both on the conspiracy count and on the four counts of possessing cocaine with intent to distribute. The firearm enhancement specifically applies to conspiracies. U.S.S.G. Sec. 2D1.4, comment. (n. 3) (Oct. 1987); U.S.S.G. Sec. 2D1.1(b)(1), comment. (n. 3) (Oct. 1987). The loaded firearm was discovered under the front seat in McCullough's car when the car was seized in June 1989, and Cochrane testified that McCullough carried the same caliber gun with him in his briefcase when conducting drug deals. Based on this evidence, the district court did not clearly err in determining that McCullough possessed the firearm during and for purposes of the conspiracy, which extended from June 1988 to June 1989. See United States v. Willard, 919 F.2d 606, 610 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 208, 116 L.Ed.2d 167 (1991). Moreover, possession of the firearm constituted relevant conduct under U.S.S.G. Sec. 1B1.3(a) and as such was properly included in the sentencing calculations for the possession counts as well. See Willard, 919 F.2d at 609-10. 2 The district court properly enhanced McCullough's sentence on the conspiracy and possession counts for his role as an organizer or leader; it did not, as McCullough contends, apply the enhancement to the CCE count. See U.S.S.G. Sec. 2D1.5, comment. (n. 1) (Oct. 1987) (adjustments for role in the offense do not apply to CCE convictions). Nonetheless, McCullough received a CCE sentence equal to that calculated with the enhancement on the conspiracy and possession counts, due to the "grouping" provisions of the Guidelines. See U.S.S.G. Secs. 3D1.2(d), 3D1.3(a), 5G1.2(b) (Oct. 1987). 3 In United States v. Dunnigan, --- U.S. at ----, 113 S.Ct. at 1116, the Supreme Court held that when a district court imposes an obstruction of justice enhancement because of the defendant's false testimony at trial, the court must make a finding that the defendant gave material false testimony with the willful intent to do so. A general finding that encompasses the necessary facts is sufficient. United States v. Arias-Villanueva, 998 F.2d 1491, 1512 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993). The district court found that McCullough "simply lied at trial with the intent to deceive the jury and the court"; in other words, it found that he willfully made false statements. Moreover, the court found McCullough's false statements to be material when it characterized them as "attempts to explain away incriminating evidence." See Arias-Villanueva, 998 F.2d at 1512-13. The district court was not required to specify the specific portions of McCullough's testimony it found to be false. Id. at 1512. 4 G. Simultaneous Jury Deliberation on the Substantive and Forfeiture Charges 5 McCullough argues that the district court impermissibly allowed the same jury to simultaneously deliberate the forfeiture count and the substantive counts, instead of bifurcating the forfeiture proceeding from the ascertainment of guilt on the substantive charges.2 At the time of trial, McCullough not only failed to object to this procedure or the jury instructions setting it forth, but affirmatively acquiesced in the court's suggestion that the jury decide all charges in the indictment at the same time instead of separately deliberating the forfeiture count after the other criminal charges. Any error was invited and is therefore unreviewable. See United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2948, 124 L.Ed.2d 696 (1993); United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992); United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991). At any rate, the forfeiture issue could not have prejudiced the substantive offense determination in this case, and the forfeiture itself must fall with the CCE charge. CONCLUSION 6 We affirm the district court's judgment in all respects, save for the CCE conviction and forfeiture judgment based on that conviction, which are reversed. The stay of the judgment and sentence on the conspiracy count are hereby vacated. 7 AFFIRMED in part; REVERSED in part; stay of judgment and sentence on conspiracy charge VACATED. * 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 We will not address arguments raised by McCullough in his supplemental pro se brief lodged with this court and we deny his motion for reconsideration of our order refusing to file that brief. We also decline to consider arguments raised for the first time in his reply brief. Guam v. Tedtaotao, 896 F.2d 371, 373 n. 3 (9th Cir.1990); see also, United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992). None of the exceptions to this rule apply here. See Ullah, 976 F.2d at 514; Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.1991) 2 We reject a related point argued by McCullough: that the forfeiture provision in the grand jury indictment was either based on false evidence presented to the grand jury or insufficient evidence. It is well established that an indictment cannot be attacked on the ground that evidence presented to the grand jury was incompetent, inadequate or unreliable. United States v. Williams, --- U.S. ----, ----, 112 S.Ct. 1735, 1746, 118 L.Ed.2d 352 (1992); United States v. Samango, 607 F.2d 877, 880 n. 6 (9th Cir.1979). No exception applies here

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-6844 ROBERT CRADLE, Petitioner - Appellant, versus MICHAEL T.W. BELL, Respondent - Appellee. Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (HC-00-179-5) Submitted: August 30, 2000 Decided: September 11, 2000 Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Cradle, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Robert Cradle appeals the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999). We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reason- ing of the district court. See Cradle v. Bell, No. HC-00-179-5 (E.D.N.C. May 31, 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2 

523 F.Supp. 1290 (1981) Alvin ST. LAWRENCE, Petitioner, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent. No. 81 Civil 4314. United States District Court, S. D. New York. October 13, 1981. *1291 Howard B. Comet, William E. Hellerstein, New York City, for petitioner. Eugene Gold, Dist. Atty., Kings County, Brooklyn, N.Y., for respondent; Michael Yoeli, Asst. Dist. Atty., Brooklyn, N.Y., of counsel. OPINION EDWARD WEINFELD, District Judge. Petitioner, Alvin St. Lawrence, was convicted upon a jury trial in the Supreme Court of the State of New York, Kings County, of the crimes of robbery, rape and sodomy. He was sentenced to and is now serving concurrent prison terms of eight and one-third years to twenty-five years on each count except that the sentence on a second degree robbery charge is an indeterminate term of five to fifteen years. A co-defendant, Joel Lee James, was also convicted at the joint trial. The judgment of conviction was affirmed without opinion[1] and leave to appeal to the Court of Appeals was denied. The victim of the crimes is a white woman, a young college professor, and the petitioner and his co-defendant are black. The petitioner seeks a writ of habeas corpus to void his judgment of conviction pursuant to 28 U.S.C. § 2254 upon allegations *1292 that he was denied his federal constitutional right to an impartial jury and to due process of law under the Sixth[2] and Fourteenth Amendments to the United States Constitution by (1) the trial judge's limitation of voir dire questioning of jurors about racial prejudice; (2) the allowance to the prosecution of its challenge for cause of a black venireman; and (3) the comments by the prosecutor in opening and concluding statements that deprived him of his right to the presumption of innocence and relieved the prosecution of its burden of establishing guilt beyond a reasonable doubt. In view of the claims made by petitioner, this Court has read word-for-word the voir dire transcript consisting of 626 pages in order to get the full and total atmosphere of that proceeding rather than to rely upon isolated references which may distort rather than inform as to what occurred; and since one claim rests upon incidents occurring during the prosecutor's opening and summation, the Court has also read the 463 page trial record so that the incidents may be considered in proper perspective against the totality of the trial testimony. The voir dire extended over a period of four days. The trial itself was completed and the verdict returned within three days. The events about which the charges against petitioner and his co-defendant center occurred in the early evening of January 27, 1978 in the last passenger car, which was empty, of a ten-car moving subway train on a northbound Lexington Avenue express where the victim was raped, sodomized, assaulted and robbed. She testified that each assailant was armed with a long butcher knife. In the course of a series of revolting events, extending over a half hour, and which need not be detailed here, she also was forced at knifepoint to take from her leather travel purse a five dollar bill, five one dollar bills, two subway tokens and some change, which she handed to one of her assailants, who then took from her left hand her wedding ring. She was also forced to give to the other assaulter her wrist watch. During the assaultive activities, she was pushed into the conductor's cab of the car and the assailants started to tear off her clothes. She managed to pull the emergency cord bringing the train to a sudden stop in the tunnel between the Borough Hall Station in Brooklyn and the Bowling Green Station in Manhattan. The conductor of the train thereupon walked through cars six to nine and when he reached the tenth car, he saw only three persons, the complainant and two men, both of whom were identified upon the trial by her as well as others who played a role in apprehending them as related hereafter. The victim was told by the conductor to go to the ninth car and while alone with the two men in the tenth car he was threatened by one of them who had a knife in his hand, whereupon he retreated to the ninth car. The assailants were observed leaving the train between the cars and getting onto the catwalk alongside the rails. The train was reactivated and proceeded to the Bowling Green subway station where the victim immediately gave authorities a description of her assailants. Thereupon the motorman of the train following the one in which the complainant had been attacked was alerted by radio to be on the lookout for two men in the roadbed of the subway tunnel between Borough Hall and Bowling Green. About six hundred feet into the tunnel the motorman spotted two men against the wall. He stopped the train to pick them up, and the two men boarded and went to the back of the train. The motorman then advised the subway Command Center that the two men were on his train. He was directed to proceed and to stop his train after it was one car length into the Bowling Green Station. When the train stopped, the complainant, *1293 accompanied by police officers, entered the train. The complainant, after walking through five or six cars and seeing approximately 100 people, of whom at least thirty or forty were black, identified the petitioner Alvin St. Lawrence, seated on a double chair next to the conductor's cab as one of her assailants.[3] He was arrested and searched and a butcher's knife was found secreted under his arm. The complainant identified this knife as the one petitioner had during the attacks upon her. After the complainant and the police entered the stopped train at the Bowling Green Station, the motorman saw a man dressed in a green army coat running along the catwalk from the side of the train near the wall and up the stairs at the Bowling Green Station. A transit officer, who pursuant to instructions was at the Bowling Green Station, also observed a man wearing a long green army coat running up the catwalk, dash up the stairs and flee to the street. The officer gave chase, and while in pursuit kept the fleeing man in sight until he turned a corner. The officer searched the street into which the fleeing man had run, and finally spotted him crouching in a space under a grating where he arrested him. Upon his return to the Bowling Green Station with the arrested man, the complainant identified Joel Lee James, the co-defendant, as the other of her assailants. An immediate search of James revealed a five dollar bill, five one dollar bills, two tokens and some loose change. Complainant had testified that she had been knifed during the experience and was bleeding. Clothing removed from each defendant immediately following his arrest had blood on them. Also, St. Lawrence's clothes as well as his hands and sneakers were covered with a sooty substance, "like what you find in the subway." Neither defendant testified; the defense essentially was that the State had failed to sustain its burden of establishing guilt beyond a reasonable doubt. Against the foregoing summary of trial testimony we consider petitioner's various contentions. 1. The claim that the Trial Court's limited voir dire questioning on racial prejudice denied petitioner an impartial jury. At the outset, to put matters in proper focus, it is desirable to note what this application does not encompass. Despite the statement in petitioner's brief that selection of an impartial jury was complicated by the related problems of pre-trial publicity and the fact that this was an interracial rape case, prejudicial pre-trial publicity is not an issue on this application. There is no claim by petitioner that pre-trial publicity deprived him of his right to a fundamentally fair trial, and, indeed, if it were made, the record would require its rejection. The incident which gave rise to the indictment occurred on January 27, 1977 and was publicized on the following day in the New York City newspapers, principally in the New York Daily News and the New York Post. The trial took place ten months later in late November. At the start of the trial, the Court conferred with the prosecution and defense as to an acceptable formula in the questioning of jurors to avoid the impact of any reference to the publicity.[4] Many who were called into the jury box had not seen or heard any publicity about the case; those who did were excused.[5] Thus the issue on this application is confined to petitioner's claim based upon the voir dire. The Supreme Court, in Ristaino v. Ross,[6] has held that there is no absolute constitutional entitlement on the voir dire *1294 to pose questions specifically directed to racial prejudice merely because the victim of the crime and the defendant are of different races or because a crime of violence is involved. However, where racial issues are inextricably bound up with the conduct of the trial and there is a significant likelihood it might affect a defendant's right to a fair trial, inquiry into possible racial prejudice is required in order to assure an impartial jury.[7] Recently, the Court in Rosales-Lopez v. United States,[8] a case involving a defendant of Mexican descent, adhered to its holding in Ristaino that there is no per se constitutional right to specific voir dire questioning of jurors on racial or ethnic bias or prejudice, such constitutional right being restricted to cases exhibiting "special circumstances," and it is only when in the particular case there is a "likelihood" that such considerations might influence the jury, that inquiry on the subject is required if requested, and if denied may rise to a constitutional violation. Here, whether constitutionally required or not, the record demonstrates that the "wiser course" was adopted and that the court itself initiated inquiry and permitted counsel to question jurors on the subject.[9] What is at issue is whether the court, in exercising its statutory discretion to disallow "statements or questions by either party that are irrelevant to the examination or repetitious"[10] violated the defendant's federally protected constitutional right to select an impartial jury. The record shows that when a group of jurors was seated in the jury box, the trial judge gave preliminary instructions concerning their basic functions, duties and conduct as required by New York law.[11] The court also instructed the jury on the nature of the indictment; its lack of evidential value; the presumption of innocence; the burden of proof; and that the guilt or innocence of each defendant was to be decided separately as to him. In addition, the trial judge noted that the complainant was white; that the defendants were black; that race was not a factor and that the case was to be decided solely on the evidence, and inquired specifically if the jurors could perform that function.[12] Those who indicated inability to comply were forthwith excused. The court also in its general inquiry of jurors required them to disclose any personal or family experience that might foreclose fair and impartial judgment based solely upon the evidence in the case and in such instances those jurors were questioned separately and out of the presence of other jurors by the court and counsel. After the court's general inquiry, the prosecution and the defense attorneys questioned jurors individually and collectively. *1295 At the outset the court permitted each side unlimited questioning on the subject of racial prejudice. As much is conceded by petitioner.[13] The unrestricted scope of questioning on the subject of racial prejudice continued until the court determined that the interrogation, particularly by Mr. Hill, the attorney who represented petitioner's co-defendant,[14] was repetitive, protracted and irrelevant, and that thereafter the voir dire would be recorded.[15] The court's action was taken after admonition to Mr. Hill that his questions sought to inject into the case civil rights issues that were unrelated to the charges against the defendants, as noted hereafter. Despite its ruling, the court did not restrict further interrogation of jurors on the issue of racial prejudice. Thereafter and over a period of more than two days the jurors were questioned on the subject by the prosecution and the defense. The prosecutor sought assurance from individual jurors that prejudice would not enter into the case and that questions of race would not be brought up in the jury room and that the verdict would be based solely on the evidence.[16] Defense counsel likewise without restriction inquired on the subject.[17] However, defense went much beyond and sought to question jurors on their views on civil rights. The court again admonished Mr. Hill that although he was given "the widest possible latitude," he continued to interrogate on irrelevant and repetitive matters.[18] The thrust and unmistakable purpose of Mr. Hill's questioning, which the court found irrelevant and repetitive, was made clear at any early stage of the voir dire by *1296 his responses to the court's statement that "this is not a civil rights case ... it's a rape and robbery case and I intend to try it as such ... I'm allowing you to question extensively with regard to racial prejudice in spite of Restaino [sic]. You are overdoing it." Mr. Hill, however, persisted in his view that "every case is a civil rights case ..."; that from his experience "very, very few cases [do] not have some kind of racial overtone"; that the history of the treatment of the negroes in this country had relevance in rape and robbery cases and that "for two hundred years black women have been raped in this country day after day and no one does anything about it." The court unsuccessfully continued to remonstrate, stating "you will not tell me this is a civil rights case because it is not. It is a criminal case." Mr. Hill again responded "it's a civil rights case."[19] Thereafter, as the voir dire continued, and despite the court's admonition, Mr. Hill was persistent in his effort to question *1297 jurors on extraneous matters, including their views on mixed marriages.[20] Finally, after two and a half days of voir dire questioning by court and counsel and after eleven jurors had been sworn in, the trial judge announced that with respect to a new panel of jurors from which one juror and an alternate were to be selected that counsel would be restricted in questioning the jurors concerning race, and that she herself would interrogate on the subject. The trial judge stated the reasons for her ruling including, but not limited to, Mr. Hill's inquiries as to irrelevant matters.[21] After colloquy, defense counsel stated: "Back to this question of race ... [i]t's because the minds of Americans are permeated with prejudice and we must do something about it in these courts. We must try to keep it out of the court, and we cannot keep it out by being silent." The court thereupon responded: I didn't say we would be silent. I said I would question the jurors with regard to it.... I feel asking every black juror whether they would stand up as a black man or black woman and be counted in the jury room is an improper thing to do. I feel that strongly. . . . . . [A] trial judge conducting the voir dire may satisfy the defense of due process by generalized, but thoroughly voir diring the panel of prospective jurors. I intend to do that myself.[22] The subsequent questioning by the court of prospective jurors not only continued to satisfy the doctrine enunciated by Ristaino v. Ross and the more recent Rosales-Lopez v. United States, but went much beyond its requirement.[23] The questions clearly were probing, direct and sufficiently detailed to require a juror to expose any latent racial hostility.[24] Although in this instance too, the court did state it would take over the questioning of the jurors on the subject of race, both prosecution and defense were permitted to question jurors, but Mr. Hill again sought to inject extraneous issues into the case.[25] A full and objective reading of the entire voir dire questioning by defense counsel, particularly Mr. Hill, compels the conclusion that his statements and questions were deliberately calculated to inject into the case civil rights issues touching upon the denial to blacks of their economic, social and political rights from the founding of the Republic to the present. His evident purpose was to obtain jurors who would bring into jury deliberation their individual views on civil rights matters based on historical factors and favorable to the defendants because of their race — in a case where the charge was robbery, rape and sodomy and in no respect involved civil rights issues — a case in which there was no claim that the charges were a frame up in retaliation for civil rights activities, such as in Ham v. South Carolina.[26] The trial judge, after this purpose had repeatedly manifested itself, was entirely justified in exercising the discretion vested in her to terminate "irrelevant and repetitive" questioning by counsel. The voir dire is of significance to assure a fair trial. It is of critical importance to protect a defendant's Sixth Amendment right to a trial free of prejudice. However, the right is not a license to "propound any question" nor does it mean that limitless time must be devoted to preliminary voir dire.... [T]here are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering *1298 prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious.[27] Indeed, had the trial judge not exercised her discretion and permitted the injection of extraneous issues, entirely unrelated to the charges against the petitioner, it would have distorted, if not aborted, the essential purpose of the voir dire — to obtain impartial and indifferent jurors. The right to the selection of a fair and impartial jury extends to all parties to a litigation. The state, no less than a defendant, is entitled to have the issues in a case determined by a jury, in the words of Lord Coke as "indifferent as [it] stands unsworne."[28] The record abundantly establishes that the defense was afforded a fair and full opportunity to question all prospective jurors on the voir dire on the subject of racial prejudice to assure the selection of an impartial jury. The claim that petitioner was denied his right of inquiry on the subject is without substance. 2. The claim that the Trial Court improperly allowed the prosecution's challenge for cause resulting in the exclusion of a black juror on racially discriminatory grounds. Under New York law, a juror may be challenged for cause if he "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial."[29] Willie Thomas, a black juror, upon initial questioning by the prosecutor stated that if accepted as a juror it would definitely be difficult for him to keep the question of race out of his mind during deliberations of the facts, but he would try.[30] The court thereupon, addressing Mr. Thomas, again emphasized what had repeatedly been told the jurors that race has nothing whatever to do with this case.... Race, sympathy, prejudice, bias have nothing at all to do with this case. And if it's difficult to keep that out of your mind, you [sic] should be apprised of that now and not later. And I appreciate your frankness in saying, Mr. Thomas, that it would be difficult for you to keep it out of your mind.[31] The court asked the juror to explain why he would find it difficult to rule out the question of race, to which he responded: MR. THOMAS: Because based on the fact I think of the lawyers sitting over there had said a lot of times people are going to jail in this society because, you know, I'm not naive, because they hadn't done anything and I'm not going to sit here and think race had nothing to do with that, so based on that fact I consider, and I still am considering and will consider race in a — not above the facts, because the facts come first — THE COURT: But second, you would consider race second? MR. THOMAS: Not second, I would say second, third or fourth, but based on the history of events, based on the past. THE COURT: It would be part of your consideration in this case? MR. THOMAS: It would have to be. THE COURT: Thank you very much. And I appreciate your frankness. Proceed, Mr. Hill.[32] It can hardly be disputed that the juror's statements of his attitude could foreclose consideration of guilt or innocence based solely upon the evidence presented at the *1299 trial. In subsequent questioning of the juror by petitioner's counsel as to whether he thought he could "listen to the evidence and render a decision, an objective decision based on the testimony [he heard] from this witness stand," he responded, "Yes, I do."[33] Petitioner urges that since the juror's response was an expurgatory oath, he was not subject to challenge for cause and that it was constitutional error to sustain the prosecution's challenge. The expurgatory oath is not contained in the present statute but is derived from the former New York Code of Criminal Procedure § 376 governing challenges for cause. That statute, in the instance of actual bias which was there defined as "the existence of a state of mind on the part of the juror" such that he "cannot try the issue impartially and without prejudice to the substantial rights of the party challenging," authorized a challenge for cause but permitted the disqualification of the juror to be removed if he "declared on oath to the satisfaction of the court that his opinions would not influence his verdict, and that he could render an impartial verdict according to the evidence."[34] While the expurgatory oath is not contained in the present statute, it appears that it is still available to remove the taint of disqualification where a challenge for cause exists based upon a juror's "state of mind that is likely to preclude him from rendering an impartial verdict based on the evidence produced at the trial." The availability of the expurgatory oath is dependent upon the facts and circumstances of each particular case.[35] However, it is not without interest to note that with respect to the current statute, the New York Court of Appeals has observed "the talismatic [sic] expurgatory oath has been abandoned, so that there is no longer any facile method for purging a prima facie showing of bias.... In sum the new law gives the Trial Judge greater flexibility and a greater responsibility in determining which veniremen should be excused for cause."[36] In any event, assuming the continued viability of the expurgatory oath, the trial judge determines "[a]ll issues of fact or law arising on the challenge."[37] The fact issue encompasses implied as well as actual or openly expressed attitudes that are likely, whether deliberately or subconsciously to bring into play bias or prejudice and thus intrude upon a juror's fair and impartial consideration of the evidence. The "impartiality [of a juror] is not a technical concept. It is a state of mind."[38] The state of one's mind requires a fact determination as does the state of one's digestion.[39] This determination involves an evaluation of a variety of factors and all the surrounding circumstances and the fair inferences to be drawn therefrom.[40] The trial judge was not bound to accept at face *1300 value the juror's expurgatory statement. Also to be considered was the juror's earlier responses that definitely it would be difficult to keep the question of race out of his mind during jury deliberation and that innocent persons are jailed and that he did not "think race had nothing to do with that." The juror's manner, his intonations, his gestures, behavior and the like — in short, his demeanor, not apparent from the dry stenographic record, may by itself have impeached him,[41] created doubts as to his sincerity[42] or, as so aptly phrased in the widely-quoted observation by our revered Chief Judge Learned Hand, the trier of fact may be satisfied "not only that the witness' testimony is not true, but that the truth is the opposite of his story."[43] The Supreme Court has observed that in the conduct of the voir dire, much is left to the court's discretion because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge"[44] and that [t]he trial judge's function at [the voir dire] is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. [citations omitted] In neither instance can an appellate court easily second-guess the conclusions of the decision-maker who heard and observed the witnesses.[45] Here the court, in upholding the challenge for cause, based upon the totality of the juror's responses found that "race would be a factor which he would consider."[46] There is nothing in this record to impugn the integrity of the court's finding that by reason thereof the juror was precluded from rendering an impartial verdict based upon the evidence in the case and so was challengable for cause. 3. The claim that the prosecutor's conduct during trial and in summation violated defendant's due process right to the presumption of innocence and the placement of the burden of proof. This claim is based upon three separate incidents. First, it is contended that the prosecutor's opening statement to the jury that a grand jury had voted the indictment "after hearing legally admissible evidence," suggested that the grand jurors had heard reliable evidence and had already passed on petitioner's guilt and that the jury was encouraged to draw some significance from this prior determination. Next, that the prosecutor in responding to petitioner's arguments for a separate verdict improperly stated that the two defendants were being tried together because they had committed the crime together, and finally, that the prosecutor in his summation suggested that an inference unfavorable to petitioner should somehow be drawn from defense counsel's failure to cross-examine a witness who had identified the co-defendant. In sum, petitioner contends that thereby his right to due process was denied. (a) The contention based upon the reference to the grand jury's return of an indictment "after hearing legally admissible evidence" readily dissolves when viewed against the reiterated references during the voir dire by the court and counsel for the prosecution and defense in their opening statements and summations, that the indictment was merely an accusation, a charge, "a scrap of paper" and of no probative value. The court in its final instruction to the jury again underscored that "[a]n indictment is merely a legal form by which a *1301 crime is charged. It is nothing more than an accusation and it has no evidentiary or probative value whatever. It is neither evidence of anything nor does it prove anything."[47] In the light of such repeated references, with which the record is studded, the claim that the prosecutor's statement impinged upon defendant's right to a fair trial is without substance. (b) Similarly, the claim that the prosecutor's reference to the defendants being tried together does not rise to constitutional due process taint. The claim is based upon the following: What about the Defendant St. Lawrence with his appeal for a separate verdict? These defendants are being tried together because they decided on January 27, 1977 — MR. RHODES: Objection. MR. MURPHY: — to act together. THE COURT: I will instruct you with regard to why these defendants are being tried together. However, it is alleged that they have acted in concert together in the commission of the crimes charged.[48] The prosecutor's statement was a legitimate attempt to respond to petitioner's counsel's basic position throughout the entire trial where he properly sought to keep petitioner's defense entirely separate and distinct from that of the co-defendant James against whom the evidence appeared to be weightier. Thus, again petitioner's claim must be considered in the light of events at the trial. Commencing with the voir dire, petitioner's counsel stressed that his client's case was separate from and was to be considered independently from that of the co-defendant. Each and every juror was questioned by petitioner's counsel on the voir dire substantially as follows: MR. RHODES [Petitioner's counsel]: Do you promise me you are going to give me a separate trial toward Alvin Saint Lawrence.... Will you give me a verdict for Alvin Saint Lawrence as an individual and apart from the verdict you will render on Joel Lee James the co-defendant? ... Assuming that to be the law, would you be able to follow the instructions of the Judge when she tells you that these are individuals? ... And all of you agree with that? That these are two separate people on trial? You may find one guilty and one innocent, or both guilty, but you will give Alvin Saint Lawrence a separate trial?[49] And the court in its final instruction to the jury restated prior instructions on the subject: [N]othing may be inferred from the fact that there is a joint trial. Each crime charged and the evidence applicable to that crime, if any, must be considered separately as to each defendant. The fact that you may find one defendant or not guilty of one of the crimes submitted to you should not control your verdict with respect to the other defendant. It is your sworn duty to give separate, personal consideration of the case to each individual defendant.[50] Under all the circumstances, the claim that the prosecutor's statement that the defendants were "being tried together" because they decided "to act together" reached the level of constitutional error and violated his right to a fair trial is sheer rhetoric. Indeed, the statement does not appear improper when viewed, not in isolation, but in the context of the totality of trial events.[51] (c) Finally, petitioner contends that a rhetorical question by the prosecutor in his summation as to the failure of petitioner's counsel to cross-examine a witness was of such an egregious nature that petitioner's right to a fair trial was violated. The incident relied upon is as follows: MR. MURPHY: Did Mr. Rhodes ask him any questions? Was Mr. Hart [the *1302 conductor on the train] asked any questions — MR. RHODES: Objection. MR. MURPHY: In relation to the Defendant Alvin St. Lawrence — MR. RHODES: Objection. THE COURT: It is the jury's recollection that— MR. RHODES: I move for the withdrawal of a juror. THE COURT: Denied.[52] The interrogatory must be considered in its relationship to the summation by petitioner's counsel.[53] The conductor of the train on which the assault had occurred had identified petitioner's co-defendant James as one of the two men in the car with the complainant and that it was James who had threatened him with a knife.[54] James' counsel on cross-examination asked, over objection of petitioner's counsel,[55] whether a third person was present and the witness responded affirmatively and repeated this on redirect by the prosecutor but did not identify the third person.[56] Petitioner here contends that the prosecutor's rhetorical question during his summation tended to undermine the presumption of innocence, to shift the burden of proof to petitioner, and suggested that there was further evidence of petitioner's guilt that had not been adduced. This contention magnifies a trial incident far beyond any significant impact it might have had on the jury. Summations cannot be considered in a vacuum; they must be evaluated against the actualities of the living trial.[57] Petitioner's counsel, and very properly so, had stressed the fact that the conductor had not identified his client. However, he was aware that the conductor, who had not been questioned as to the identity of the third person he said was in the car, had told the prosecutor after he left the witness stand that he "recognized the other fellow [petitioner] who was inside that subway train," and that the reason he had not identified him while on the witness stand was because "no one asked" him.[58] When the prosecutor sought to recall the conductor to offer this testimony, petitioner's trial counsel "strenuously" objected and the court sustained the objection. While the prosecutor's interrogatory about the non-cross-examination of the conductor may have been provoked by what he considered an unfair argument by petitioner's counsel in the light of the attempt to recall the conductor, nonetheless, it should not have been made since upon the record there had been no identification of the petitioner by the conductor, and hence no need or reason to cross-examine him — indeed, to have done so most likely would have brought forth an answer adverse to petitioner. However, it does not follow that the challenged remark was so prejudicial that it infringed upon petitioner's constitutional right so that he was deprived of a fair trial. "[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.'"[59] The contention that the interrogatory was of such magnitude that it deprived petitioner of the presumption of innocence and shifted the burden of proof utterly disregards the oft-repeated instruction to the jury of the presumption of innocence and that the defendants not only had no burden of proof but *1303 that the burden of proof was upon the prosecution. Additionally, the effect of the remark was dissipated by a specific disapproving instruction given immediately before the jury entered upon it deliberations. The very last instruction was "[a]n attorney is not required when defending a criminal case to cross-examine a witness or to do anything else and no inference is to be drawn from his failure to do so."[60] Under all the circumstances, the interrogatory was denuded of prejudicial impact, if any. It is a long leap from that interrogatory to an inference unfavorable to petitioner so that, as petitioner argues, the burden of proof had shifted and the presumption of innocence had been removed. That contention presumes the jury disregarded the court's instructions. The presumption is that the jury did follow the instructions.[61] In sum, whether considered singly or cumulatively, the alleged matters referred to did not undermine the presumption of innocence or shift the burden of proof to petitioner and did not deprive him of his right to a fundamentally fair trial. Finally, even if it were assumed that the claims here advanced constituted error, a study of the entire record compels the conclusion they were harmless. In such event, the Court finds beyond a reasonable doubt that the incidents relied upon either singly or in combination were harmless and did not deprive petitioner of his right to due process of law.[62] The petition for a writ of habeas corpus is dismissed upon the merits. So ordered. NOTES [1] People v. St. Lawrence, 73 A.D.2d 1065, 423 N.Y.S.2d 974 (1980). [2] A defendant in a state court prosecution is guaranteed an impartial jury by the Sixth Amendment as applicable to the States through the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). Principles of due process also guarantee a defendant an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); see also Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S.Ct. 1017, 1020 n.6, 47 L.Ed.2d 258 (1976). [3] A Wade hearing was held as to petitioner at which she identified him as one of her assailants (Wade hearing, Nov. 23, 1977, at 4, 18, 36) (hereafter Wade hearing). United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). James, the co-defendant, waived his right to a Wade hearing (Wade hearing at 36). [4] Record, November 21, 1977 at 2-6. [5] Voir Dire (hereafter V.D.) at 575. [6] 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). [7] Id. at 596-98, 96 S.Ct. at 1021-22. [8] ___ U.S. ___, 101 S.Ct. 1629, 68 L.Ed.2d 22. [9] See Ristaino v. Ross, 424 U.S. 589, 597 n.9, 96 S.Ct. 1017, 1022 n.9, 47 L.Ed.2d 258 (1976). [10] N.Y.Crim.Proc. Law § 270.15(1) (McKinney) in pertinent part provides that "[t]he court must permit both parties, commencing with the people, to examine the prospective jurors, individually or collectively, regarding their qualifications to serve as jurors. The scope of the examination is within the discretion of the court, and the court may disallow statements or questions by either party that are irrelevant to the examination or repetitious." [11] N.Y.Crim.Proc. Law § 270.40 (McKinney). [12] The instruction was repeatedly given as different panels were seated in the jury box. The following is typical: I am going to tell you now that the complainant in this case is a white woman; the defendants are black. Is there anything about that, any bias that you may have, searching your heart and souls, that might interfere with your reaching a fair and impartial verdict in this case? Anyone of you? The question is directed to each and everyone. We all have bias and prejudices of some kind.... So, if you have any biases of any kind, and particularly racial bias, I want to know about it now. And I assume silence means no. Race is not a factor in this case. We are dealing with the charges that I will submit for your consideration and you are to determine the guilt or innocence of these defendants. However, should you have such prejudices, they would get in the way of a fair and impartial judgment with regard to the guilt or innocence, and I would not want that to happen. V.D. at 502-03. See also V.D. at 527, 593. [13] "With regard to the problem of racial prejudice, the trial court initially ruled that the parties could ask any questions they desired on the subject." Brief for Petitioner at 3. [14] The petitioner's counsel on this application states that since Hill, his co-defendant's counsel, questioned the prospective jurors first, his trial counsel apparently relied in large measure on the answers elicited by Hill. Brief for Petitioner at 4. [15] At the close of the Wade hearing and before the trial proper started, it was agreed that the voir dire need not be recorded. Wade hearing at 47. [16] The following is typical: MR. MURPHY [Ass't District Attorney]: Would you promise me if you were a juror in this case you would use your common sense in listening to the testimony? MS. TERRANOVA: Yes. MR. MURPHY: Would you promise me that the question of race would not be brought up in the jury? MS. TERRANOVA: Yes. MR. MURPHY: Would you promise me if someone else brought it up you would say that's not what we are here to decide, we're here to decide the facts in the case? MS. TERRANOVA: Yes. MR. MURPHY: Would you promise me any verdict you render in this case would be based on the evidence alone? MS. TERRANOVA: Yes. V.D. at 97-98. See also V.D. at 100, 106-08, 221-22; 533 et passim. [17] MR. HILL [James' counsel]: Ms. Alleyne, have you heard that black people oftentimes, when they find themselves on a jury, will go not with the evidence that they hear, but with the majority opinion ... in an effort to establish that they are not prejudiced in favor of a black defendant? Have you heard that? MS. ALLEYNE: I haven't really heard that, no. MR. HILL: Well, let me ask you. Let's assume that you are chosen as a juror on this case. The Court gives its charge and gives the case to the jury to deliberate and you do deliberate. And you find that you are on one side, whatever side it is, all by yourself, would you change your mind to prove that you are not prejudiced in favor of the defendants? MS. ALLEYNE: No. MR. HILL: Put it another way. If you sincerely believe in your position, you are not convinced otherwise, would you change your mind? MS. ALLEYNE: If I was convinced. MR. HILL: If you were not convinced, would you change your mind? MS. ALLEYNE: No. MR. HILL: In other words, Ms. Alleyne, if you are chosen as a juror in this case, would you stand up like a free and independent individual? MS. ALLEYNE: Yes, I will. MR. HILL: Mr. Werner, do you know of any reason why you cannot be a fair and impartial juror on this case. MR. WERNER: No, sir. V.D. at 59; 115; 244; 364 et passim. [18] It is not without interest that petitioner's trial counsel acknowledged that the court had not been unduly restrictive of him in the questioning of jurors. V.D. at 129-30. [19] The relevant colloquy between court and counsel was as follows: THE COURT: Okay. Let's get something on the record. Mr. Hill, I want the record to show that the jurors are out of the courtroom. We are alone. I will not permit this sort of voir dire to continue. For a good deal of the time you were doing what Mr. Rhodes quite properly objected to Mr. Murphy doing, which was making statements rather than questioning. Voir dire means you question jurors. A lot of your questioning consisted of statements. A lot of your questioning consisted of repetition, what I have already asked all over again. It's unduly protracted. Restaino [sic] against Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258, is succinct with regard to questioning with regard to race, and it comes after Ham against South Carolina, referred to by Mr. Rhodes. This is not a civil rights case. This is a case — MR. HILL: Every case is a civil rights case, and let's not forget that. THE COURT: Mr. Hill, it is not a civil rights case. MR. HILL: It is a civil rights case. THE COURT: It's a rape and robbery case, and I intend to try it as such.... . . . . . THE COURT: ... I am allowing you to question extensively with regard to racial prejudice in spite of Restaino [sic]. You are overdoing it. You are doing it to such an extent that in my opinion it's improper and I want you to cease to the extent of your doing it. I don't want your questions to be repetitious and I don't want them to be irrelevant. A question such as: Is there anything in the study of history which would give a juror a preconceived notion about a rape and robbery on the subway — MR. HILL: And you don't think there is such a thing as history? THE COURT: Yes. MR. HILL: Then we read different history texts, your Honor, and specifically I was referring to the history of this country. THE COURT: You are right. I don't see the relevance in the history of this country having to do with a rape and robbery case. MR. HILL: Then, your Honor, I am afraid that we have different concepts of American history. THE COURT: We are not trying American history. MR. HILL: I am trying to give the basis. I am talking to a historian who is on this jury. THE COURT: No, he isn't. He is a prospective juror. MR. HILL: I said a prospective juror and a historian. . . . . . THE COURT: And I tell you now, I am not trying a civil rights case here. MR. HILL: Your Honor, I think it is time for us to be very fair. I am in court. THE COURT: You think it's time for the Court to be fair? MR. HILL: I think sometimes, your Honor, because it's painful we overlook things. As a black person I hate to think, for example, of my experiences in the army. It's too painful to think about sometimes. . . . . . MR. HILL: But the fact is that there are very, very few cases, as far as I am concerned, from my experience, that does not have some kind of racial overtone. THE COURT: Counselor, I said you could go into it. I have given you latitude. You will not tell me this is a civil rights case, because it is not. It is a criminal case. MR. HILL: It's a criminal case with certain overtones. THE COURT: The only overtones are that the alleged perpetrators are black, the alleged victim is white. It could very well have been the other way around. The case would be exactly the same. MR. HILL: The case in point, it would not be here, that is true. THE COURT: Counselor, I am not interested in your philosophy. MR. HILL: Then, Judge, we shouldn't talk. THE COURT: You are saying it would not be in this Court. MR. HILL: In all probability not, and the record will speak for itself. V.D. at 15-21. [20] Id. at 243. [21] Id. at 470, 481. [22] Id. at 481-82. [23] Cf. United States v. Grant, 494 F.2d 120, 122 (2d Cir.), cert. denied, 419 U.S. 849, 95 S.Ct. 87, 42 L.Ed.2d 79 (1974) ("It should suffice to ask ... whether any juror is unable to judge the case fairly because of race, creed or color of defendant.") [24] See footnote 11, supra. [25] V.D. at 540-41. [26] 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). [27] Ham v. South Carolina, 409 U.S. 524, 533, 93 S.Ct. 848, 853, 35 L.Ed.2d 46 (1973) (Marshall, J., concurring in part and dissenting in part). [28] Cf. Ristaino v. Ross, 424 U.S. 589, 596, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934) (Cardozo, J.) ("But justice, though due to the accused, is due to the accuser also"); see also N.Y.Crim.Proc. Law § 270.15(2) (McKinney). [29] N.Y.Crim.Proc. Law § 270.20(1)(b) (McKinney). [30] V.D. at 313. [31] Id. at 314. [32] Id. at 321-22. [33] Id. at 324. [34] People v. Branch, 46 N.Y.2d 645, 650, 415 N.Y.S.2d 985, 389 N.E.2d 467 (1979) (emphasis supplied); see People v. Biondo, 41 N.Y.2d 483, 484, 393 N.Y.S.2d 944, 362 N.E.2d 576, cert. denied, 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288 (1977); Former Code Crim.Proc. § 376(2). [35] Compare People v. Branch, 46 N.Y.2d, supra, at 469, 415 N.Y.S.2d 985, 389 N.E.2d 467 (expurgatory oath unavailable where juror, a part-time police officer, has professional and personal relationship with the state's trial attorney) with People v. Provenzano, 50 N.Y.2d 420, 424, 429 N.Y.S.2d 562, 407 N.E.2d 408 (1980) (expurgatory oath available where juror campaigned for the prosecutor for his election as County District Attorney but her efforts were for the party's ticket, on which the prosecutor ran, rather than a personal effort for him alone). [36] People v. Culhane, 33 N.Y.2d 90, 104 n.2, 350 N.Y.S.2d 381, 305 N.E.2d 469 (1973). [37] N.Y.Crim.Proc. Law § 270.20(2) (McKinney). [38] United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936). [39] Siegelman v. Cunard White Star, 221 F.2d 189, 198 (2d Cir. 1955). [40] Bon-R Reproductions, Inc. v. National Labor Relations Board, 309 F.2d 898, 909-10 (2d Cir. 1962) (Friendly, J., concurring and dissenting) ("Although `the state of a man's mind is as much a fact as the state of his digestion,' Edgington v. Fitzmaurice (1885), 29 Ch.D. 459, 483, we have not yet developed mental X-rays permitting this `fact' to be determined by direct observation rather than by inference.") [41] See Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2d Cir. 1949). [42] Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 734, 35 L.Ed. 501 (1891). [43] Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952). [44] Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976). [45] Rosales-Lopez v. United States, ___ U.S. ___, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22 (1981). [46] V.D. at 346. [47] Trial Record (hereafter T.R.) at 405. [48] Id. at 396. [49] V.D. at 66-67, 79, 151 et passim. [50] T.R. at 417. [51] See Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). [52] T.R. at 385. [53] People v. Marks, 6 N.Y.2d 67, 77, 188 N.Y. S.2d 465, 160 N.E.2d 26, (1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960). [54] T.R. at 168. [55] Id. at 176. [56] Id. at 192. [57] "[T]he perspective of the living trial is lost in the search for error in a dead record." Glasser v. United States, 315 U.S. 60, 88, 62 S.Ct. 457, 473, 86 L.Ed. 680 (1942) (Frankfurter, J., concurring in part and dissenting in part). [58] T.R. at 206-07. [59] Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1973) quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941). [60] T.R. at 462. [61] Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 448, 463, 9 L.Ed.2d 357 (1963); United States v. DeLillo, 620 F.2d 939, 947 (2d Cir. 1980). [62] Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

664 So.2d 194 (1995) PARCEL REAL PROPERTY Including all Improvements Thereon and all Contents Therein, Lots Two (2) and Three (3), Block Eleven (11) of the Northwest Survey, Which is LOCATED AT 335 WEST ASH STREET, JACKSON, MISSISSIPPI, Hinds County, and Lillie Boyd v. CITY OF JACKSON, Mississippi, a Municipal Corporation. No. 92-CA-00640-SCT. Supreme Court of Mississippi. October 12, 1995. Rehearing Denied November 22, 1995. *195 Thomas J. Lowe, Jr., Ross R. Barnett, Jr., Barnett Law Firm, Lillie Boyd, Pro Se, Jackson, for Appellants. Michele M. Purvis, Jackson, for Appellee. Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr., and SMITH, JJ. SMITH, Justice, for the Court: Lillie Boyd appeals to this Court from an adverse ruling by the Circuit Court of the First Judicial District of Hinds County on a Petition for Forfeiture filed against Boyd and her property by the City of Jackson. Numerous drug-related arrests for cocaine trafficking had been made at Boyd's property located at 335 West Ash Street. Members of Boyd's family were arrested in Boyd's presence for possession of crack cocaine and assorted drug paraphernalia on these various occasions. On September 25, 1991, pursuant to a lawful search warrant, large amounts of crack cocaine, cash, and drug paraphernalia were seized from Boyd's home and a trailer adjacent thereto on the same property. In filing its Petition for Forfeiture against 335 West Ash, the City believed that Boyd's home and adjacent premises were being used to facilitate the sale of illegal drugs and that Boyd had knowledge of such transactions. The trial court granted the forfeiture. Aggrieved, Boyd appeals to this Court citing three issues for consideration. Boyd wholly failed to cite any authority for two of her issues. This Court has held that "failure to cite any authority in support of ... assignments of error precludes this Court from considering these issues on appeal." Grey v. Grey, 638 So.2d 488, 491 (Miss. 1994), citing Matter of Estate of Mason v. Fort, 616 So.2d 322, 327 (Miss. 1993). Accordingly, this Court refuses to address these issues. Boyd's third issue concerning whether she had knowledge that her residence was being used to facilitate the sale of illegal drugs warrants discussion. Every case before this Court thus far has dealt with cash or automobile forfeiture, thus the issue before us on real property is one of first impression. The law requires that in order for such property to be forfeited, its owner must either have knowledge of the illegal drug activity or have given consent to his property being used for such illegal conduct. This Court, in most cases of marginal evidence, has usually held that the property should not be forfeited because the evidence in those cases was as consistent with guilt as with innocence. However, the evidence in the case sub judice more than sufficiently meets the required burden of proof of a preponderance of the evidence against Boyd. Having thoroughly reviewed the record and the briefs, we conclude that there was a preponderance of evidence that Boyd had knowledge and had condoned the use of her property to facilitate illegal drug transactions. Thus, we affirm Judge James E. Graves' forfeiture of Boyd's real property to the City of Jackson. STATEMENT OF THE FACTS On September 25, 1991, Officers of Jackson Police Department (JPD) executed a search warrant for 335 West Ash Street, Jackson, Mississippi, the home of Lillie Boyd. Prior to this date, police officers had made numerous drug-related arrests at this address.[1] Upon JPD's arrival on September *196 25, 1991, Boyd was standing in the front doorway. Upon entering the physical property, cocaine was found, in plain view, on a whatnot stand directly behind the front door where Boyd was standing. Assorted drug paraphernalia was recovered from the hallway of the residence and in the trailer out back, which was also covered under the search warrant. Boyd's purse contained $8,000 when it was seized. Bank records revealed a savings account of $22,000, and C.D.s totaling $50,000. Both accounts were seized by the Federal Drug Enforcement Agency for forfeiture proceedings, and thus are not a subject of this forfeiture proceeding. Boyd, her daughter, and her daughter's live-in boyfriend, Frank Lee Jordan, were arrested on cocaine possession charges. Following the arrest, Boyd's various and sundry personal possessions, along with the realty of 335 West Ash Street, were seized for forfeiture. The City filed its Petition for Forfeiture in the Circuit Court of the First Judicial District in Hinds County on October 15, 1991. Boyd filed her Answer and Counter-Complaint on October 24, 1991. Magnolia Federal Bank, the mortgage holder of 335 West Ash, filed a separate answer denying consenting to or having any knowledge of the subject property being used for drug trafficking. On March 26, 1991, a hearing on the forfeiture matter was held, and the circuit court judge ordered that the property be forfeited to the City because the evidence revealed that Boyd had knowledge that her home was being used to facilitate the selling of narcotics. The Order also allowed Magnolia Federal Bank's lien to be satisfied first upon the sale of the forfeited property. Boyd filed a Motion for a New Trial, which was overruled. An appeal has now been perfected to this Court. DISCUSSION OF THE LAW WHETHER BOYD HAD KNOWLEDGE THAT HER RESIDENCE WAS BEING USED TO FACILITATE THE SALE OF ILLEGAL DRUGS IN VIOLATION OF THE UNIFORM CONTROLLED SUBSTANCE LAW. We commence our analysis of this issue with an examination of the appropriate statute. Miss. Code Ann. § 41-29-153 (Supp. 1995) states, in part, that the following property shall be subject to forfeiture: (a)(7) Everything of value, including real estate, furnished or intended to be furnished, in exchange for a controlled substance in violation of this article, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, business or business investments, securities, and other things of value used, or intended to be used, to facilitate any violation of this article. ..... (A) No property shall be forfeited under the provisions of paragraph (a)(7) of this section, to the extent of the interest of an owner, by reason of any act or omission established by him to have *197 been committed or omitted without his knowledge or consent. Additionally, we must examine Miss. Code Ann. § 41-29-179 (Supp. 1995) for further analysis of this issue. That section states the burden of proof in a civil forfeiture case as follows: (2) The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of this article shall be by a preponderance of the evidence. Continuing our analysis, we next examine our case law. In terms of case law, the facts presented sub judice are of first impression for this Court since the forfeited property is realty. Thus far, we have mostly confronted cash forfeiture or forfeiture questions dealing with automobiles which were used in a narcotics transaction because said vehicle was trustingly lent to a questionable family member. In Ervin v. State, 434 So.2d 1324, 1325 (Miss. 1983), we held that forfeiture will be denied only when the automobile was illegally used without the owner's knowledge or consent. In Ervin, the fact that (1) the vehicle was frequently operated by Mr. Ervin with the knowledge and consent of Mrs. Ervin, (2) that Mr. Ervin had easy accessibility to the car, and (3) that Mrs. Ervin had knowledge of her husband's eight year-old conviction, was not enough to constitute knowledge or consent to justify forfeiture of Mrs. Ervin's car. Thus, Boyd argues that the fact that her children had easy accessibility to her home, frequently resided there, and had sometimes gotten into trouble with the law, is not enough to constitute knowledge or consent to the drug transactions and usage taking place on her premises. Boyd frames her defense in terms of "nonconsent," essentially saying, just because these controlled substances were being sold at her home, does not mean she approved of or consented to those events. First, the statute reads "knowledge or consent," not "knowledge and consent." Thus, it is important to note that knowledge of illegal activities is enough, consent is not required, or vice-versa. Second, the Uniform Controlled Substances Law does not contain a loophole that would allow the owner of a crack house to blindly permit her hovel to be used for narcotics transactions and later claim that such property should be exempt from forfeiture because she never gave her tenants explicit approval or consent to engage in such illegal conduct.[2] The Ervin Court concluded that "the owner's knowledge of a spouse's eight-year old conviction fails to establish by a preponderance of the evidence that the owner had knowledge of or consented to the recent unlawful use of the owner's automobile." 434 So.2d at 1326. "Such facts [we]re as consistent with innocence as they [we]re with guilt." Id. "Facts which merely create a suspicion that the owner had knowledge of the driver's illegal activity, are inadequate." Id. In Ervin, Mrs. Ervin, who was the proper owner of the vehicle lent to her husband, "stated that she had never seen marijuana or other illegal drugs in her home or in the presence of her husband." Id. As applied here, this Court will view the facts of the present case to see if they are as consistent with innocence as they are with guilt, i.e. do the facts merely create a suspicion that Boyd had knowledge of the illegal activities taking place at her residence. Clearly, both of these questions must be answered in the negative. Whereas, Mrs. Ervin had never seen marijuana or other illegal drugs in her home, Boyd must have been aware of the illegal activities taking place on her property. She often observed police at the subject location arresting her children, other relatives, or other persons due to drug-related activities. On several occasions, officers seized drugs and related paraphernalia from her home and/or the adjacent trailer, in her presence. Furthermore, in light of the last drug bust where Boyd was arrested along with other members of her family, she had to have been aware of the crack cocaine in her home, because the officers, upon entering her home, *198 found the substance in plain view on the whatnot stand right behind her. Moreover, it is "highly" suspect, not "merely" suspect, that Boyd, at the time of her drug-related arrest, would happen to have $8,000 in her purse. Boyd's home was littered with the telltale signs of a drug dealer's depot, of which she cannot now disclaim to have no knowledge. The facts here are clearly more consistent with guilt, as opposed to innocence. In this Court's most recent forfeiture decision, Curtis v. State, 642 So.2d 381 (Miss. 1994), we adhered to Ervin and held that where the owner frequently allowed her brother to use the vehicle and had warned him against using the car for drug activities, such facts could not be relied on in support of an order for forfeiture. The fact that the owner had known that her brother was arrested (but not yet convicted) for possession of a controlled substance just six weeks prior to the arrest leading to forfeiture, standing alone, did not meet the state's burden of proving that the owner had knowledge of or consented to unlawful use of the vehicle. We observed that: the fact that Curtis had warned her brother against using her car for drug activities could point in either direction. These facts are as consistent with Curtis' innocence as they are with guilt... . Warning her brother not to carry out his illegal business in her vehicle was not much, but certainly should not be held against Curtis. Id. at 385. Unfortunately for Boyd, the facts sub judice point in one direction — guilt through knowledge and acquiescence. While we applaud Ms. Boyd's good parental advice in requesting her children to find a new hobby besides the narcotics business, we do not believe this is sufficient to don her with innocent owner status when considering all of the other evidence present in this case. There is a difference between the scenario where a property owner allows his property to be borrowed by someone he misjudged and then discovers that such property was used for an illegal activity and the situation where a property owner allows his property to "aid and comfort" his in-house drug dealers. In both Ervin and Curtis, the respective owners of the forfeited property knew of only one prior questionable event that could constitute knowledge. Here, there are numerous arrests that Boyd witnessed on her grounds. She twice saw her own daughter being arrested in the adjacent trailer because of the drugs and assorted paraphernalia found there. On other occasions, illegal substances and their required paraphernalia were often found in the main part of her home. People, including her own son who were about to be arrested for possession of drugs, ran to her home seeking shelter and hiding. Surely, Boyd had a clue. Even if this Court were to pretend that Boyd did not realize her property was a marketplace for drugs, the last arrest, in the ongoing saga of arrests, attests to Boyd's knowledge of the illegal activities on her property and consent to their continuation. In just considering the present arrest leading to the forfeiture, Boyd had to have knowledge of the activities occurring at her abode. The crack cocaine was found in plain view, the drug paraphernalia was dispersed throughout the house, and large amounts of loose cash were located in her purse. She knew what was happening at her residence, and she condoned this illegal pattern of activity by allowing it to continue. Boyd's attorneys have raised the issue of what constitutes reasonable conduct to prevent one's property from facilitating illegal transactions. Boyd has asked this Court to answer what constitutes a reasonable response of a property owner once knowledge that the property is facilitating drug transactions is acquired by that property owner. In order to answer this weighty question, we adhere to our longstanding principle that forfeiture statutes must be strictly construed, since they are penal in nature. Saik v. State, 473 So.2d 188 (Miss. 1985). A concern of this Court has been that forfeiture statutes had the capacity "not only [of reaching] the property of criminals, but also ... that of innocent owners who did all they reasonably could to prevent the misuse of their property." Curtis, 642 So.2d at 385. In this case, we cannot see how acquiescence to and knowledge of drug transactions occurring under *199 one's roof constitutes "reasonable" conduct preventing the misuse of property. The general rule as to what constitutes "reasonable conduct" comes from Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, reh'g denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974): [I]t would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent... . Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property. ... Id., 416 U.S. at 689, 94 S.Ct. at 2094-95 (emphasis added). Other courts have followed the Pearson Yacht standard that an innocent owner do "all that reasonably could be expected" to preclude the illegal use of the property. United States v. 141st Street Corp., 911 F.2d 870 (2d Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991); See also, United States v. Premises Described as Route 2, Box 61-C, 727 F. Supp. 1295, 1299 (W.D.Ark. 1990) (to prevail on an innocent owner defense, claimant must establish that she was not involved in any wrongful activity, that she was not aware of wrongful activity, and that she had done all that reasonably could be expected to prevent the proscribed use of the property). In 141st Street Corp., the Second Circuit found that an innocent owner defense could not be established where the property owner (the corporation) failed to take affirmative steps to curb the drug activity after the police had raided the property. Id., 911 F.2d at 879. The only action the corporation took was to instruct the building superintendent not to accept rent from the arrested tenants. The police raided the building a second time, and again, found more narcotics, money, and contraband. The police had thrice contacted the building superintendent about the drug infestation of the building, and had repeatedly tried by phone and letter to contact the corporate owner of the premises. The corporate owner denied receiving any communications from local law enforcement regarding problems at the building and sought to distance himself from the knowledge of his agent, the superintendent. Id. at 876. The Second Circuit rejected this defense and allowed the superintendent's knowledge to be imputed to the corporate owner, especially since the corporation's own president made numerous visits to this "veritable anthill of drug activity." Id. at 876-77. Relying on Pearson Yacht, the 141st Street Corp. court found that the property owner had not done "all that reasonably could be expected." Id., 911 F.2d at 879. Unfortunately, this "all reasonable" steps rule can backfire so that a private property owner essentially becomes the long arm of the state. See United States v. 710 Main Street, 753 F. Supp. 121 (S.D.N.Y. 1990) (there is a potential for the government to argue that the property owner didn't take all reasonable steps to prevent property from being used to enhance illegal conduct). In 710 Main Street, the owner of a bar and arcade frequented by the members of the drug community was confronted with a challenge of whether his responding conduct was reasonable. The owner had fired employees who engaged in drug transactions, he warned or ejected patrons who were engaging in unlawful activity, he installed cameras, he instituted a "one person, at a time, for one minute, in the restroom" policy, he shut down the rear portions of his restaurant, and he called the police with anonymous phone tips. 753 F. Supp. at 124. The government argued that since the property owner failed to hire a bouncer or doorman to screen his patrons, discontinued the use of an electromagnetic buzzer lock on the front door, and unwisely chose not to turn the premises into another type of business less conducive to heavy pedestrian traffic, the district court should find that the property owner did not meet "all reasonable" steps. Id. at 125. The district court sided with the property owner and held that his response was adequate once he learned of the narcotics problem. The property owner: was trying to eke out an income from a business located in a drug-infested area *200 that posed great risks to the safety of him and his family, we find that the actions he took, reflective of his fears, concerns and limited familiarity with crime prevention, fulfilled his legal obligation. The fact that he was unsuccessful in resolving the drug problem (as were the well-trained police who patrolled the area) should not be interpreted as his consent to that activity. Id. at 125. In the case sub judice, Lillie Boyd did not do anything to prevent the misuse of her property. In this case, the Court cannot even consider whether "all reasonable" steps were taken, or whether substantial steps were taken, since there were no steps taken to prevent her property from being used to facilitate drug transactions. This Court is not presented with an opportunity to determine whether Boyd's conduct was adequate, since she willfully blinded herself to her criminal surroundings and took no action. We cannot see how acquiescence to and knowledge of drug transactions occurring under one's roof constitutes "reasonable" conduct preventing the misuse of property. This Court will follow the United States Supreme Court in requiring that property owners do "all that is reasonably expected to prevent the proscribed use of the property," with an emphasis more on the term "reasonable" than on the term "all." In accord with 710 Main Street, a property owner "need not take heroic or vigilante measures to rid his property of narcotics activity." 753 F. Supp. at 121. This Court has no intention of turning private individuals into agents of the state. However, reasonable affirmative conduct is required lest property owners hinder the ongoing war on drugs by becoming beneficiaries of the vilest portions of our society with a mere wink and a nod. The last thing that this Court intends is to allow the confiscation of private homes of innocent people whose sole conduct is merely unknowingly allowing their property to be used by others in illegal drug activity, especially if these property owners are restrained in some way from objecting to and preventing such activity. Yet, as a general rule, we still require all reasonable affirmative conduct to prevent a person's property from being used to facilitate illegal drug transactions. Boyd totally failed this simple test. The lower court did not err in holding that Boyd had knowledge of and consented to her property being used to violate the Uniform Controlled Substances Law. We affirm the judgment of the lower court in favor of the City of Jackson. JUDGMENT AFFIRMED. HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, BANKS and JAMES L. ROBERTS, Jr., JJ., concur. McRAE, J., concurs in result only. NOTES [1] Usually, it was a Boyd family member who was involved in these arrests. Even though Boyd, herself, had never been arrested at one of the prior raids, she was present on most occasions when the arrests were made and she was advised as to the reasons for the said arrests. These are a few examples of such arrests: On August 5, 1991, Mary Lucinda Moore, Boyd's daughter was arrested on possession of cocaine. The arrest occurred in the trailer adjacent to the house, and Boyd was present at the time of the arrest. On July 6, 1991, an officer, while working undercover, agreed to purchase cocaine from an individual who approached his vehicle. Then this individual ran into 335 West Ash and a woman inside gave him what appeared to be crack cocaine. The individual returned to the officer's vehicle and took $20 in exchange for the cocaine. Within minutes of this transaction, officers were dispatched to 335 West Ash, where the surveillance officer identified Gloria Harper as the individual who had sold the cocaine at the vehicle. At the time of Harper's arrest, she and Boyd had been conversing on the living room sofa. Along with Harper, J.W. Boyd and Johnny Ray Wilson were also arrested for possession of paraphernalia, in the presence of Boyd. On April 19, 1990, J.W. Boyd, Boyd's son, ran into 335 West Ash Street, after being observed in what appeared to be a crack cocaine sale. Boyd was present when the officers pursued her son and arrested him inside her home. In fact, Boyd was also present at his trial and conviction, which this Court affirmed. See Boyd v. State, 634 So.2d 113 (Miss. 1994). On August 12, 1990, Jackie Wells was seen exiting 335 West Ash with a plastic bag in his hand. The bag was believed to contain crack cocaine. Wells saw officers exit their car, and he immediately ran back to 335 West Ash, and relayed the plastic bag to McKinley Owens. The plastic bag was recovered and found to contain eleven (11) rocks of cocaine. Boyd was present in the front room of her house when the officers retrieved the cocaine from Owens and Wells. On May 25, 1990, another search warrant had been executed to search 335 West Ash. Cocaine, marijuana, food stamps, and $11,000.00 were recovered from the adjacent trailer where Moore resided. On this occasion, Boyd was again present when her daughter was being arrested. Some of the bills found in Boyd's home during that raid were analyzed by washing, and 20 of the bills showed the presence of cocaine. [2] Willful blindness will remove an innocent owner defense. United States v. 5745 N.W. 110 Street, 721 F. Supp. 287, 290 (S.D.Fla. 1989) (property owner "deliberately closed her eyes to what she had every reason to believe was the truth").

126 B.R. 759 (1991) In re the GIBSON GROUP, INC., Debtor. ATLANTIC KRAFT CORPORATION, Movant, v. The GIBSON GROUP, INC., Respondent. Bankruptcy No. 1-90-00280. United States Bankruptcy Court, S.D. Ohio, W.D. March 29, 1991. *760 Jeffrey Marks, Cincinnati, Ohio, for CP Forest. Gerald L. Baldwin, Cincinnati, Ohio, for Atlantic Kraft. Louis Solimine, Cincinnati, Ohio, for debtor. Charles Caldwell, Assistant U.S. Trustee, Cincinnati, Ohio. INTERLOCUTORY ORDER ON MOTION FOR RELIEF FROM STAY BURTON PERLMAN, Chief Judge. Atlantic Kraft Sales, Inc. (hereafter "movant") filed a motion for relief from the automatic stay "to effectuate a setoff pursuant to 11 U.S.C. § 553." In its memorandum in support of its motion, movant said that debtor was indebted to it in the total amount of $1,549,338.54, and that movant had filed a proof of claim in that amount. In its memorandum, movant further says that it was indebted, on account of prepetition debt, to debtor in the total amount of $162,403.80. Movant seeks relief from the stay so that it may eliminate its indebtedness to debtor, and reduce its claim against debtor by the same amount. In response to the motion, a secured creditor of the debtor, Canadian Pacific Forest Products, Ltd. ("CP Forest") sought an opportunity to be heard. In a memorandum, CP Forest said that it had a security interest in debtor's accounts receivable, including the sums owing from movant to debtor as to which movant, by its present motion, seeks authority to set off. In its memorandum, CP Forest, among other issues, raised the question of whether the security interest of CP Forest in debtor's accounts receivable had priority over any setoff rights of movant. A preliminary hearing was held on the motion for relief from stay. At the preliminary hearing, it developed that the debtor has no interest in the present controversy, and the real parties in interest to this controversy are movant and CP Forest. While evidentiary matters will have to be resolved at a final hearing, at the preliminary hearing the parties agreed that there was a legal issue which could profitably be resolved prior to the conducting of any discovery by the parties. The issue may be formulated as whether, assuming arguendo that movant had knowledge of the security interest of CP Forest, movant could exercise its right of setoff over the objection of CP Forest. Otherwise stated, the limited present issue is whether the security interest of CP Forest has priority over the setoff right of movant. CP Forest and movant briefed the issue as so formulated. It is the position of CP Forest that § 9-318(1)[1] of the Uniform Commercial Code governs the respective priorities here at issue. CP Forest says that the critical factual issue which will determine the outcome of the priority dispute is whether under § 9-318(1)(b), movant "received notification" of CP Forest's security interest in debtor's accounts receivable before movant's claim against debtor "accrued". *761 In its memorandum, CP Forest anticipates that movant will argue that UCC § 9-318(1) does not control the present priority dispute, and will rely on UCC § 9-104(i) as support for that position. To that argument, CP Forest responds that the majority view is that § 9-104(i) should be construed narrowly, that it merely relieves a party asserting a right of setoff from the attachment and filing provisions of Article 9 of the UCC, but does not remove setoffs from Article 9 when a right of setoff conflicts with the interests of an Article 9 secured creditor. Further, in support of its position, CP Forest calls attention to UCC § 9-306(4)(d), saying that the provision there would have been entirely superfluous had it been the intention to interpret UCC § 9-104(i) literally. For its part, movant contends that in order for UCC § 9-318 to be here relevant as contended by CP Forest, one must interpret the words "notice of assignment" in § 9-318 as equivalent to existence of a perfected security interest, and movant contends that this equivalence is unsound. It is the core of the position of movant that it is only after a debtor defaults and there is notice of the secured party's actual assignment of accounts receivable to the debtor, that a valid assignment for UCC purposes occurs. Movant says that the pivotal issue is not whether debtor received notification of CP Forest's security interest before movant's claims accrued, but whether movant received "notification of [an] assignment," as prescribed by § 9-318(1)(b) and (3). There cannot have been such notification because, says movant, CP Forest did not have an assignment of receivables until default on January 10, 1990, and never gave movant the requisite notice. In its responsive memorandum, CP Forest argues that default is not a necessary precondition before an assignment can be found for purposes of UCC § 9-318. With respect to the threshold question of law which has been presented to us, we have reached the conclusion that the state of knowledge of movant regarding the security interest of CP Forest is irrelevant in determining the outcome of their controversy. The outcome turns, not on knowledge of a prior security interest, but rather upon priority in time of the security interest. That is, if the security interest of CP Forest was perfected before the setoff right of movant arose, then CP Forest will prevail. If the setoff right of movant arose before the security interest of CP Forest was perfected, then movant will prevail, and its setoff allowed. This analysis, of course, requires the initial holding that the holder of a right of setoff is to be regarded as a secured party for present purposes. That a right of setoff is to be treated as a security interest for Uniform Commercial Code purposes in a conflict with the holder of a secured claim, is the effect of the holding of the court in MNC Commercial Corp. v. Joseph T. Ryerson & Son, 882 F.2d 615 (2nd Cir.1989). We believe that treatment to be correct and to be reinforced for a bankruptcy context by 11 U.S.C. § 506(a), which expressly defines a setoff as a secured claim. Having concluded that what is before us is a question of priority as between secured claims, and the parties being in agreement that the UCC is applicable in resolving the present controversy, we look to UCC § 9-312 to resolve that conflict. UCC § 9-312 (O.R.C. § 1309.31) in pertinent part provides: § 1309.31 (UCC 9-312) Priorities among conflicting security interests in the same collateral. * * * * * * (E) In all cases not governed by other rules stated in this section, including cases of purchase money security interests which do not qualify for the special priorities set forth in divisions (C) and (D) of this section, priority between conflicting security interests in the same collateral shall be determined according to the following rules: (1) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, *762 provided that there is no period thereafter when there is neither filing nor perfection. * * * * * * While issue may be taken with our characterization of setoff in view of § 9-104(i) which excludes "any right of setoff" from the coverage of Article 9 of the UCC, that exclusion is not absolute. As stated by the court in MNC Commercial Corp., supra, at p. 619: Section 9-104(i) excludes "any right of setoff" from the coverage of U.C.C. Article 9. This exclusion is of no aid to Inland/Ryerson, however. We agree with the other courts that have addressed this question that Section 9-104(i) does no more than exempt holders of setoff rights from the filing requirements of Article 9 and does not "remov[e] commercial transactions or conflicts from the operation of the UCC whenever the priority of a set-off is involved." (Citations omitted.) Our resolution of the issue before us focuses on UCC § 9-312 rather than UCC § 9-318, the latter being the statutory provision upon which the discussion of the interested parties centers. We must do so because CP Forest simply is not at this time an assignee of debtor's accounts receivable. It has taken no action to vindicate its rights as to its collateral. Bearing in mind that we are in the preconfirmation phase of a chapter 11 case, it seems to us unwise to treat a party with respect to its rights other than precisely in accordance with its current status. Our analysis avoids the relevance of cases such as Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185 (7th Cir.1990). In that case, it is true that setoff rights were held to prevail over those of a secured creditor. The controversy there, however, was quite different from that before us. There, a creditor secured by accounts receivable brought suit on an account. Defendant asserted a right to setoff, which setoff had been accomplished prior to the suit. Defendant there prevailed because under state law it was expressly entitled to assert setoff as a defense to plaintiff's claim. Here, the right to setoff has not been exercised and it is not being asserted as a defense: we have here a controversy presented directly, not implicitly, as one of priority. This case is also distinguishable from those such as In re Metropolitan Hospital, 110 B.R. 731 (Bankr.E.D.Pa.1990) where specific federal statutes conferred on a governmental authority a right to set off which took priority over the claim of a secured creditor. This is an interlocutory order. The clerk will now set this matter for final hearing. So Ordered. NOTES [1] The parties here have employed section designations of the Uniform Commercial Code in their discussion, and so shall we. Those sections are to be found in the Ohio Revised Code as follows: UCC § 9-318 is O.R.C. § 1309.37; UCC § 9-306 is O.R.C. § 1309.25; UCC § 9-104 is O.R.C. § 1309.04; UCC § 9-312 is O.R.C. § 1309.31.

PRESENT: All the Justices MITCHELL KAMBIS, ET AL. OPINION BY v. Record No. 140983 JUSTICE CLEO E. POWELL November 12, 2015 APRIL CONSIDINE, ET AL. FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge Mitchell Kambis (“Kambis”), Elegant Homes of Virginia (“Elegant Homes”) and John Rolfe Realty (collectively, the “Kambis parties”), appeal the decision of the trial court to award sanctions to April Considine (“Considine”), Patricia Wolfe and Villa Deste, LLC (“Villa Deste”) (collectively, the “Considine parties”). Finding no error, we will affirm the decision of the trial court. 1 I. BACKGROUND Kambis owns John Rolfe Realty and Elegant Homes of Virginia. From 1999-2011, Kambis was in a romantic relationship with Considine. On October 25, 2000, Kambis and Considine formed and were the sole members of Villa Deste. The purpose of Villa Deste was to purchase and develop real estate for sale. At some point after October 25, 2000, Considine’s mother, Patricia Wolfe, loaned money to Villa Deste for the purchase and development of real estate and the construction of a home that Kambis and Considine later occupied. By 2006, Villa Deste had acquired significant real estate holdings, including approximately 130 acres of undeveloped land in Albemarle County. On December 31, 2005, Kambis and Considine signed a document titled “Assignment of Membership Interest” (the “Assignment”). Under the Assignment, Kambis transferred all of his 1 The Court has been advised that the appellant, Mitchell Kambis, died during the pendency of this appeal. The appeal does not abate, however, and the Court will “retain jurisdiction and enter judgment . . . as if such event had not occurred.” Code § 8.01-20. interest in Villa Deste and its assets to Considine, for value received. Thereafter, Considine was the sole owner of Villa Deste. Sometime later, the romantic relationship between Kambis and Considine ended. On October 13, 2009, the Kambis parties filed a complaint alleging seventeen claims against the Considine parties. The Kambis parties also recorded a memorandum of lis pendens against the properties owned by Villa Deste and the home owned by Considine. The Considine parties demurred and filed a plea in bar asserting that the applicable statute of limitations had run on certain claims. In response, the Kambis parties moved for and obtained leave to amend their complaint. Although a first amended complaint was attached to their motion to amend, the Kambis parties subsequently filed a second amended complaint. In the second amended complaint, the Kambis parties alleged nineteen claims against the Considine parties, including fraud, defamation, unjust enrichment, replevin, battery, enforcement of a mechanic's lien, intentional infliction of emotional distress, and a number of derivative claims. The Considine parties again demurred and filed a plea in bar. They also filed a motion for sanctions pursuant to Code § 8.01-271.1 against the Kambis parties and their counsel, arguing that the actions they undertook during the litigation were not warranted by existing law and were taken to harass. On October 18, 2012, after hearing argument on the demurrer and plea in bar, the trial court dismissed fourteen of the nineteen claims with prejudice; a fifteenth claim was dismissed without prejudice. Additionally, the trial court released the memorandum of lis pendens on the properties. The order releasing the lis pendens was recorded by the clerk on December 12, 2012. On March 5, 2013, the Kambis parties filed their third amended complaint, again raising the claims that had not been dismissed previously, including claims for fraud, replevin, battery, 2 intentional infliction of emotional distress, and unjust enrichment. The Considine parties filed a counterclaim relating to the fraud claim. After further demurrers, special pleas in bar, and motions for summary judgment were filed, the court subsequently dismissed the replevin claim. Shortly before trial, counsel for the Kambis parties moved to withdraw from the case. On September 11, 2013, after hearing argument on the matter, the trial court granted the motion to withdraw. Seeking to avoid further delay while the Kambis parties sought new counsel, the Considine parties moved for the trial court to grant a continuance only with regard to the claims against the Considine parties, but to hear Kambis’ individual claims against Considine on the original trial date, September 23, 2013. The trial court granted the motion, noting that Kambis’ individual actions were a significant cause of the delays that the parties had already experienced. On September 20, 2013, three days prior to the scheduled trial on his individual claims, Kambis, proceeding pro se, moved to nonsuit his individual claims (fraud, battery, and intentional infliction of emotional distress) against Considine. On the morning of trial, the trial court granted Kambis’ motion to nonsuit his battery and intentional infliction of emotional distress claims. However, because Considine had filed a counterclaim related to Kambis’ fraud claim, the trial court denied Kambis’ motion to nonsuit on that claim. The trial court subsequently ruled against Kambis on an evidentiary matter and quashed one of his subpoenas. Thereafter, Kambis commented that he was not capable of going forward due to the complexity of the litigation and again asked for a continuance. The trial court denied his request. After discussing the matter with an unaffiliated attorney who happened to be in the courtroom at the time, Kambis moved to dismiss the fraud claim. The trial court granted the motion but made no ruling as to whether the dismissal was with or without prejudice. 3  On January 15, 2014, the Kambis parties recorded a new memorandum of lis pendens against the properties and the home. The Kambis parties then moved to vacate the trial court’s October 18, 2012 order releasing the original memorandum of lis pendens. On February 18, 2014, the trial court heard argument on the Kambis parties’ motion to vacate the October 18, 2012 order releasing the original memorandum of lis pendens. At the same hearing, the trial court heard argument on Considine’s motion for entry of an order dismissing Kambis’ claims with prejudice. In response, Kambis sought to withdraw his motion to dismiss the fraud claim against Considine, arguing that he never would have moved for dismissal had he known it was with prejudice. After considering the parties’ arguments, the trial court granted the Kambis parties’ motion to vacate the October 18, 2012 order releasing the original memorandum lis pendens as well as Considine’s motion for entry of an order dismissing Kambis’ fraud claim with prejudice. On February 28, 2014, the trial court held a hearing on the Considine parties’ motion for sanctions. The Considine parties sought attorney’s fees and costs in the amount of $137,819.61 from Kambis and his original counsel and $83,505.62 from Kambis alone. On March 14, 2014, the Kambis parties moved to nonsuit their remaining claims against the Considine parties. On March 24, 2014, the trial court granted the motion to nonsuit. It also granted the Considine parties’ motion for sanctions. In determining the amount of sanctions, the trial court explained that it looked at the number of claims, the type of claims, and whether the Kambis parties’ behavior increased the cost and duration of the litigation in violation of Code § 8.01-271.1. The trial court attributed the costs related to the filing of an untimely appeal and an improper derivative claim (neither of which is relevant to the present case) to the Kambis parties’ original counsel and awarded sanctions in the amount of $64,319.38 against the Kambis parties’ 4 original counsel. The trial court also found that there was “a certain level of intent to intimidate Ms. Considine in this particular case” and that Kambis personally “was aware of the extent of the litigation” based on an e-mail he sent to his original counsel. Accordingly, the trial court held Kambis “responsible for the costs of the trial and going forward” and ordered him to pay $84,541.61 in sanctions. The trial court then issued a final order striking the matter from the docket. Kambis appeals the award of sanctions. II. ANALYSIS On appeal, Kambis argues that the trial court’s award of sanctions was in error because the award was not based on any of the reasons enumerated in Code § 8.01-271.1. According to Kambis, the record demonstrates that his fraud claim was well grounded in law and fact, as it had survived demurrers, special pleas in bar and a motion for summary judgment. He further asserts that there was no finding that he brought the action or made a filing for an improper purpose recognized under Code § 8.01-271.1. In making this argument, Kambis claims that there is a distinction to be drawn between bringing an action or making a filing for the purpose of intimidating the opposing party and bringing an action or making a filing for an improper purpose. “In reviewing a trial court’s decision to impose a sanction pursuant to Code § 8.01-271.1, we apply an abuse of discretion standard.” Shebelskie v. Brown, 287 Va. 18, 26, 752 S.E.2d 877, 881 (2014). In applying that standard, we use an objective standard of reasonableness in determining whether a litigant and his attorney, after reasonable inquiry, could have formed a reasonable belief that the pleading was well grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or 5  reversal of existing law, and not interposed for an improper purpose. Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 65-66, 547 S.E.2d 216, 227 (2001). The relevant portion of Code § 8.01-271.1 states: The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Notably, the three enumerated bases for awarding sanctions under Code § 8.01-271.1 are stated in the conjunctive. As such, an attorney or litigant’s “failure to comply with any one of these statutory requirements invokes the sanctions provisions of the statute.” Williams & Connolly, LLP v. People for the Ethical Treatment of Animals, Inc., 273 Va. 498, 510, 643 S.E.2d 136, 141 (2007). Throughout his argument, Kambis implies that the award of sanctions was in error because his pleadings were “well grounded in fact” and “warranted by existing law.” Indeed, we agree that there is no indication in the record that the trial court awarded sanctions against Kambis based on the viability of any claim, or the lack thereof. Rather, it is clear that the trial court awarded the sanctions because it found that Kambis was using the present litigation for an improper purpose. Accordingly, we need not consider whether the pleadings in the present case were well grounded in fact or warranted by existing law. Instead, we focus on whether they were interposed for an improper purpose. Although Code § 8.01-271.1 only provides three examples of improper purposes (i.e., to harass, to cause unnecessary delay or to needlessly increase the cost of litigation), we note that these examples are prefaced with the phrase “such as.” Thus, it is readily apparent that this is by 6 no means an exhaustive list. In determining whether a pleading is interposed for an improper purpose, we are guided by the purpose of Code § 8.01-271.1 as well as various policy considerations. This Court has recognized that one purpose of Code § 8.01-271.1 is to “reduc[e] the volume of unnecessary litigation.” Oxenham v. Johnson, 241 Va. 281, 286, 402 S.E.2d 1, 3 (1991) (emphasis added). Additionally, “[t]he possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes.” Id. Similarly, “sanctions can be used to protect courts against those who would abuse the judicial process.” Id. Here, the trial court specifically found “a certain level of intent to intimidate Ms. Considine in this particular case[] and that Mr. Kambis was aware of the extent of the litigation.” In other words, the trial court found that Kambis was pursuing his claims in a manner that demonstrated he was less interested in vindicating his legal rights and more interested in intimidating and injuring Considine. It is readily apparent that a claim brought for such vengeful and vindictive reasons is brought for an improper purpose under Code § 8.01-271.1. See Northern Va. Real Estate, Inc. v. Martins, 283 Va. 86, 112-113, 720 S.E.2d 121, 134 (2012) (determining that an action “filed out of a vindictive and malevolent desire to injure and intimidate a business competitor” was brought for an improper purpose). Further, we find ample evidence in the record to support the trial court’s ruling that Kambis sought to use the present litigation to intimidate Considine. For example, the initial complaint contained seventeen claims. Faced with a demurrer and a plea in bar, the Kambis parties amended the complaint, adding two additional claims and modifying significant facts, such as changing references to verbal contracts into written contracts. Then, after almost four years of litigation and further amendments to the complaint, a majority of the claims were 7 dismissed because they either failed to state a claim or were barred by the applicable statute of limitations.2 Those claims that were not dismissed were eventually nonsuited or voluntarily dismissed, but only after the Considine parties further expended a significant amount of time and money in preparing for trial. Additionally, we cannot overlook the fact that Kambis was aware of how much the litigation was costing Considine. In the email that he sent his attorney on August 30, 2013, Kambis estimated Considine’s expenses at over $250,000. The fact that Kambis’ attorney withdrew from the case shortly thereafter due to Kambis’ inability to pay his own attorney’s fees further demonstrates his awareness of the size and complexity of this litigation. Furthermore, we note that, in the email, Kambis indicated that he is aware of his sanctionable actions, stating: “if we do not prevail, then the Motion for Sanctions will go forward and have a realistic chance of success for them.” Finally, at oral argument, counsel for Kambis expressly confirmed the trial court’s findings by admitting that there was an intent to intimidate Considine through the filing of the pleadings. 3 Accordingly, we hold that the trial court did not abuse its discretion in awarding sanctions. 4 2 Our reference to the dismissed claims does not include the derivative claim or the improperly filed appeal, as the trial court expressly attributed these to the law firm that formerly represented Kambis. However, it made no such attribution with regard to the other dismissed claims. 3 We recognize that almost any legal action is, in some way, intimidating. Such intimidation is inherent in our adversarial legal system and is generally not sanctionable, so long as the intimidation is a collateral effect of a party’s legitimate attempt to vindicate a legal right. The spectre of sanctions arises when intimidation is no longer a collateral effect. Thus, where a party brings an action or makes a filing primarily to intimidate the opposing party, such an action or filing is improper and runs afoul of Code § 8.01-271.1. 4 This Court also granted the Considine parties’ assignment of cross-error relating to the trial court’s decision to vacate its order releasing the memorandum of lis pendens. However, in light of the fact that this Court refused all of the Kambis parties’ assignments of error related to 8  III. CONCLUSION For the foregoing reasons, we will affirm the trial court’s award of sanctions. Affirmed. the encumbered properties, the Considine parties now argue that the issue is moot. Without addressing whether there was any error on the part of the trial court, we agree that the issue is moot. We note, however, that the trial court did not order the release of the memorandum of lis pendens in its final order, thereby necessitating the Considine parties to return to the trial court and move for an order releasing the memorandum of lis pendens. Rather than require the Considine parties to expend further time and money on this already unnecessarily extensive litigation, and in the interests of judicial economy, as part of our affirmance of the trial court’s award of sanctions, we will direct the Albemarle County Circuit Court Clerk to release the applicable memorandum of lis pendens. 9 

6 Cal.App.3d 832 (1970) 86 Cal. Rptr. 264 THE PEOPLE, Plaintiff and Appellant, v. ALEXANDER WOODS, Defendant and Respondent. Docket No. 16633. Court of Appeals of California, Second District, Division Three. April 22, 1970. *834 COUNSEL Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Joel Paul Hoffman, Deputy District Attorneys, for Plaintiff and Appellant. Taft, Ackerman & Marks and Frederic G. Marks for Defendant and Respondent. OPINION COBEY, Acting P.J. Pursuant to Penal Code section 1238, subdivision 1 the People appeal from an order granting defendant's motion under Penal Code section 995 to set aside an information charging defendant with possession of marijuana (Health & Saf. Code, § 11530) on the ground that the police obtained the marijuana by an unconstitutional seizure and search. The People contend that the marijuana either was in plain view or was discovered by a reasonable seizure and search. We reverse. We believe that under the circumstances of this case the police had a constitutionally adequate basis to make a nonconsensual stop of defendant, to forcibly withdraw his hand from his pocket to see whether it held a weapon and to illuminate the interior of that pocket with a flashlight to see why he did not wish to tell the police what was in the pocket. *835 In short we hold that the marijuana within the pocket was not discovered by the police by means of an unconstitutional seizure and search of the defendant. THE FACTS About 9:40 p.m., on January 25, 1969, Police Officer Convey and his partner received "a shots fired report" with instructions "to see the woman at 11923 Saltair Terrace." At that address a woman and three other people informed the officers that they had heard the sound of what seemed to be shots being fired and that this sound had come from the intersection of Saltair Terrace and Saltair Avenue. The two officers went to the intersection and started checking each of the houses on the intersection to see whether anyone there had heard the shots. Three people there apparently had.[1] Just after 10 p.m. the officers on foot, observed defendant, apparently a complete stranger to the officers, walking toward the intersection. He was about 100 feet south of it. Convey approached defendant from the front and his partner approached him from the rear. Convey saw that defendant's left hand was concealed in a jacket pocket. Because of the nature of the investigation, on approaching defendant Convey placed his right hand on defendant's left hand which was still in the pocket and asked defendant what he had in the pocket. Defendant became nervous and would not answer the question. Convey reached into the pocket, placed his hand over defendant's knuckles, and pulled defendant's hand out to discover whether defendant was holding a pistol. Defendant's hand was empty. At this point Convey, without spreading the pocket or pulling it open, shined his flashlight into the pocket and discovered therein a clear plastic bag containing a green, leafy substance that looked like marijuana. Convey removed the bag from defendant's pocket and arrested defendant for possession of marijuana. Subsequently the substance in the bag was established to be approximately 21 grams of marijuana. THE CONSTITUTIONALITY OF THE SEIZURE AND SEARCH (1) This case presents a close and difficult question of accommodation between the Fourth Amendment rights of an individual against unreasonable seizures and searches of his person, on the one hand, and the urgent need of society in these troubled times, on the other, for prompt and effective *836 police detection of crime. Crime in the streets — particularly that occurring during the hours of darkness — is a matter of nation-wide concern. Yet, it is established that the protection of the Fourth Amendment of the United States Constitution and presumably its counterpart in the California Constitution (art. I, § 19), extends to the person of an individual on city streets — to his reasonable expectation of privacy of his person there and to his right there to be free from unreasonable governmental intrusions into that privacy. (See Terry v. Ohio, 392 U.S. 1, 8-9, 16 [20 L.Ed.2d 889, 898-899, 903, 88 S.Ct. 1868].) As the United States Supreme Court said in the companion case to Terry, Sibron v. New York, 392 U.S. 40, 64 [20 L.Ed.2d 917, 935, 88 S.Ct. 1889], "The police officer is not entitled to seize and search every person whom he sees on the street.... Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so." (Cf. People v. Simon, 45 Cal.2d 645, 650-651 [290 P.2d 531].) Therefore, the momentary nonconsensual detention of a person by the police on our city streets for the purpose of investigating that person's possible connection with some suspected criminal activity must be based upon something more than a good faith hunch of the police. To be justified under the Fourth Amendment the officer, as an expert in the prevention and detection of crime, must be able to point to articulable specific facts, together with rational inferences from those facts, which, when viewed objectively and in the total circumstances of the situation, make the intrusion a reasonable one. (See Terry, supra, at pp. 21-22, 30 [20 L.Ed.2d at pp. 905-906, 911].) (2) Such a condition of specifically based, reasonable suspicion of an individual on the part of a police officer, as a reasonably minded expert in the prevention and detection of crime, exists when (1) some unusual activity is occurring, has occurred or seems about to occur, (2) something reasonably connects the person under suspicion with that activity, and (3) something reasonably suggests that the unusual activity is related to crime.[2] (See People v. Henze, 253 Cal. App.2d 986, 988 [61 Cal. Rptr. 545], hg. den.; People v. Manis, 268 Cal. App.2d 653, 658-659 [74 Cal. Rptr. 423], hg. den.) *837 In applying the Henze test, consideration must be given as well to the necessity for immediate action by the police, such as that which exists when the mission of the police is to prevent rather than to detect a crime or to effect an immediate rescue or protection of an actual or potential victim of crime. This was perhaps the basic difference between the situations in Terry and Sibron. In addition, common sense dictates that the seriousness of the offense under investigation must also be taken into account in balancing the opposing interests of the individual and society. In sum, what the Fourth Amendment essentially requires for a constitutional involuntary stop by the police for investigative purposes of an individual seems to be a reasonable possibility that each of the three conditions specified in Henze exists. (See LaFave, "Street Encounters" and the Constitution (1968) 67 Mich.L.Rev. 40, 57-58, 65-66, 75.) (3) Applying the Henze test, as reworded by us, to the facts before us, we hold that Police Officer Convey did have a sufficiently articulable rational suspicion of defendant to justify constitutionally his stopping defendant. Convey and his partner were engaged about 10 p.m. in the investigation of "a shots fired report." They had partially confirmed the accuracy of this report by the time they saw defendant, apparently a complete stranger to them, walking at night in a residential area, with one of his hands in a jacket pocket, on a street in the immediate vicinity of the exact location they were investigating and some 20 minutes or so following their receipt of the report. The happenstance of defendant's being there under these circumstances, taken together, justified the police in making a nonconsensual stop of defendant to see whether he was in any way connected with the activity they were investigating. (See People v. Cruppi, 265 Cal. App.2d 9, 11-12 [71 Cal. Rptr. 42], hg. den., and cases cited therein; People v. Henze, supra, 253 Cal. App.2d 986, 988-989, hg. den.; cf. People v. Collins, 1 Cal.3d 658, 660-661 [83 Cal. Rptr. 179, 463 P.2d 403]; People v. Caylor, ante, pp. 51, 57 [85 Cal. Rptr. 497]; People v. Bruno, 211 Cal. App.2d Supp. 855, 862-863 [27 Cal. Rptr. 458]; cf. People v. Gamboa, 235 Cal. App.2d 444, 448 [45 Cal. Rptr. 393], hg. den.) We do not believe that the narcotics cases, namely, Sibron, supra, Irwin v. Superior Court, 1 Cal.3d 423, 425-428 [82 Cal. Rptr. 484, 462 P.2d 12], People v. Moore, 69 Cal.2d 674, 682-683 [72 Cal. Rptr. 800, 446 P.2d 800], and People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96 [41 Cal. Rptr. 290, 396 P.2d 706], principally relied on by defendant, compel a different conclusion. Sibron and Irwin were essentially search rather than seizure cases. Moreover, the same necessity for immediate action by the *838 police at night following partial confirmation of the use of firearms in an urban area did not exist in those cases.[3] (4) This brings us to the question of whether Officer Convey, after stopping defendant, was constitutionally privileged to ascertain whether he had a weapon in the hand he had concealed in a jacket pocket by forcibly withdrawing that hand instead of by conducting a superficial exterior patdown search of defendant's person, including the hand in question. We have found no authority upon this very narrow point, but as a matter of common sense we believe that he was. Officer Convey's immediate concern was the concealed hand and we think that he acted reasonably in relieving his concern at once in the manner in which he did. (5) The final question presented is whether the subsequent discovery of the marijuana inside the jacket pocket involved an unconstitutional search. We do not believe that it did. Officer Convey was on a public street where he was entitled to be. He illuminated the interior of defendant's pocket with his flashlight without in any way otherwise improving his view. (See People v. Superior Court (Mata) 3 Cal. App.3d 636, 639 [84 Cal. Rptr. 81]; People v. Boone, 2 Cal. App.3d 66, 69-70 [82 Cal. Rptr. 398], and cases cited therein; cf. People v. Hobbs, 274 Cal. App.2d 402, 406-407 [79 Cal. Rptr. 281], hg. den.) We do not regard this conduct on the officer's part as being equivalent to his reaching into the pocket and forcibly withdrawing therefrom the clear plastic bag of marijuana. This he could not have constitutionally done. (See People v. Collins, supra, 1 Cal.3d 658, 661-663; People v. Rice, 259 Cal. App.2d 399, 401-402 [66 Cal. Rptr. 246].) The order setting aside the information is reversed. Schweitzer, J., and Allport, J., concurred. A petition for a rehearing was denied May 11, 1970, and respondent's petition for a hearing by the Supreme Court was denied June 17, 1970. Sullivan, J., was of the opinion that the petition should be granted. NOTES [1] The officer's testimony on this point is not completely clear as to whether at the intersection he obtained new confirmation of the shots being fired or whether the only confirmation he received was that which he had obtained earlier. [2] This condition should not be confused with the more limited one decribed in Penal Code section 647, subdivision (e), which reads as follows: "Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." This limited stop and frisk statute was held constitutional in People v. Weger, 251 Cal. App.2d 584 [59 Cal. Rptr. 661], cert. den. 389 U.S. 1047 [19 L.Ed.2d 840, 88 S.Ct. 774]. [3] We note that the police in this case did not first attempt a consensual stop of defendant. But we are not prepared to hold that, as a matter of law under the circumstances existing in this case, they were constitutionally required to do so.

FILED NOT FOR PUBLICATION DEC 28 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JESUS ALBERTO ESTRADA- No. 08-71425 DOMINGUEZ, Agency No. A078-039-921 Petitioner, v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 15, 2009 ** Before: GOODWIN, WALLACE and FISHER, Circuit Judges. Jesus Alberto Estrada-Dominguez, a native and citizen of Mexico, petitions pro se for review of a Board of Immigration Appeals order denying his motion to reopen or reconsider removal proceedings. We review for abuse of discretion. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). MVD/Inventory Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We dismiss in part and deny in part the petition for review. We lack jurisdiction to review the Board’s denial of Estrada-Dominguez’s motion to reopen his application for cancellation of removal, to the extent it introduced further evidence of hardship to his United States citizen children and his lawful permanent resident mother already considered by the IJ. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir. 2006) (explaining that § 1252(a)(2)(B)(i) bars jurisdiction when question presented in motion to reopen is essentially the same hardship ground originally decided). The Board did not abuse its discretion in concluding that new evidence regarding Estrada-Dominguez’s children was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (recognizing that Board’s denial of motion to reopen shall be reversed only if “arbitary, irrational or contrary to law”). The Board did not abuse its discretion in denying Estrada-Dominguez’s motion to reopen to apply for asylum, withholding of removal or relief under the Convention Against Torture, because Estrada-Dominguez’s motion was not accompanied by the “appropriate application for relief” required by 8 C.F.R. § 1003.2(c)(1). MVD/Inventory 2 08-71425  PETITION FOR REVIEW DISMISSED in part, DENIED in part. MVD/Inventory 3 08-71425 

Case: 14-40418 Document: 00512931357 Page: 1 Date Filed: 02/09/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 14-40418 Fifth Circuit FILED Summary Calendar February 9, 2015 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. ALBERTO PEREZ-ORTEGA, also known as Alberto Perez-Ortego, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:13-CR-1203 Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM: * Alberto Perez-Ortega appeals the 36-month, non-guidelines sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He challenges the substantive reasonableness of his sentence on the ground that it is greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 14-40418 Document: 00512931357 Page: 2 Date Filed: 02/09/2015 No. 14-40418 Because Perez-Ortega does not argue that the district court committed any procedural error in imposing the sentence, we limit our review to the issue whether the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). When the district court has imposed a sentence that varies from the guidelines range, reasonableness review requires that we evaluate whether the sentence “unreasonably fails to reflect the statutory sentencing factors” set forth in § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Although Perez asserts that the district court gave too much weight to his prior convictions and not enough weight to the fact that he had changed his life for the better and his benign motive for illegally reentering this country, the record does not reflect that the district court did not account for a factor that should have received significant weight, gave significant weight to an irrelevant or improper factor, or made a clear error of judgment in balancing the sentencing factors. See Smith, 440 F.3d at 708. Rather, the record reflects that the district court considered the Guidelines and policy statements, the sentencing factors of § 3553(a), the Presentence Report, and Perez-Ortega’s arguments in mitigation of his sentence. Additionally, although the 36-month sentence is 20 months greater than the top of the guidelines range, we have upheld much greater variances. See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States v. Herrera-Garduno, 519 F.3d 526, 531- 32 (5th Cir. 2008). Based on the totality of the circumstances, including the significant deference that is due to a district court’s consideration of the § 3553(a) factors, the sentence imposed was reasonable. See Gall, 552 U.S. at 50-53; United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Accordingly, the district court’s judgment is AFFIRMED. 2 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 18, 2009 No. 08-70039 Charles R. Fulbruge III Clerk JOSHUA MAXWELL Petitioner-Appellant v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division Respondent-Appellee Appeal from the United States District Court for the Western District of Texas, San Antonio Division USDC No. 5:06-cv-00884 Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Petitioner Joshua Maxwell (“Maxwell”), convicted of capital murder in Bexar County, Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Maxwell challenges the jury instructions submitted at both the guilt-innocence and punishment phases of trial. He also contends that his counsel rendered * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  No. 08-70039 ineffective assistance by failing to object to the allegedly unconstitutional instructions. Finding that Maxwell has not made a substantial showing of the denial of a constitutional right, we DENY a COA. I. PROCEDURAL HISTORY A Bexar County, Texas grand jury returned an indictment charging Maxwell with committing intentional murder while in the course of committing a robbery or kidnaping. Tex. Penal Code § 19.03(a)(2).1 A jury convicted Maxwell as charged, and the trial court, pursuant to the jury’s answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), imposed a death sentence. The Texas Court of Criminal Appeals affirmed Maxwell’s conviction in an unpublished opinion. Maxwell v. State, No. AP-74309 (Tex. Crim. App. Nov. 17, 2004). Maxwell applied for state habeas relief, and the trial court recommended denying relief. The Court of Criminal Appeals adopted the findings and conclusions of the trial court and denied the application. Ex parte Maxwell, No. WR-65268-01, 2006 WL 2848044 (Tex. Crim. App. Oct. 4, 2006). Maxwell subsequently filed a federal petition for writ of habeas corpus, which the district court denied in a memorandum opinion and order. Maxwell v. Quarterman, No. SA-06-CA-884, 2008 WL 3200672 (W.D. Tex. July 30, 2008). The district court also denied a COA. Maxwell now requests a COA from this Court. II. STANDARD OF REVIEW Maxwell filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court’s adjudication of a petitioner’s claims on the 1 Because resolving the claims presented in this COA does not require knowledge of the facts underlying the offense of capital murder, we do not recite them here. 2  No. 08-70039 merits unless the state court’s decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). Additionally, under AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336. 3  No. 08-70039 A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted). III. ANALYSIS A. Jury Instructions 1. Guilt-Innocence Phase of Trial Maxwell contends that his Sixth Amendment and Due Process rights were violated when the trial court failed to submit a charge that required the jury to unanimously agree upon which of the two alleged predicate felonies he committed rendered the murder a capital offense. More specifically, the instructions did not require the jury to come to a unanimous conclusion with respect to whether the victim was murdered during the course of a robbery or a kidnaping. Maxwell’s claim is controlled by the Supreme Court’s plurality opinion in Schad v. Arizona, and this Court’s subsequent precedent interpreting Schad. 501 U.S. 624 (1991) (plurality); Reed v. Quarterman, 504 F.3d 465, 479 (5th Cir. 2007). In Schad, the jury was charged with the alternative theories of premeditated murder or felony murder. 501 U.S. at 630. The petitioner 4  No. 08-70039 contended that the instructions’ failure to require the jury to unanimously agree with respect to whether he murdered the victim with premeditation or in the course of a robbery violated his constitutional rights. Id. The Supreme Court explained that the relevant inquiry was not one of jury unanimity inasmuch as the jury had unanimously determined that the State had proved what it was required to prove pursuant to state law. Id. at 630–31. Instead, the “petitioner’s real challenge [was] to Arizona’s characterization of first degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative.” Id. Thus, the relevant inquiry was whether Arizona’s definition of capital murder ran afoul of the Constitution. Id. at 631. In making this determination, the Supreme Court first looked to whether the legislature intended to create separate offenses or different means of committing one offense. Id. at 636–37. The Court explained that if the state court had interpreted the statute and determined that the alternatives are means of committing a single offense, federal courts “are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Id. at 636. Previously, the Arizona Supreme Court had determined that premeditation and felony murder were not separate elements but instead were means of “satisfying a single mens rea element.” Id. at 637. Secondly, the Supreme Court addressed whether Arizona’s definition of the crime as one offense violated due process. The plurality opinion expressly refused to formulate a “single test for the level of definitional and verdict specificity permitted by the Constitution.” Id. at 637. Instead, the plurality opined that “our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, [citation omitted], and for the rationality that is an essential component of that fairness.” Id. at 637. The plurality explained that it would “look both to history and wide practice as 5  No. 08-70039 guides to fundamental values, as well as to narrower analytical methods of testing” to determine whether the alternative mental states may permissibly “satisfy the mens rea element of a single offense.” Id. at 637. After analyzing various state courts’ precedent, the opinion found considerable historical evidence supporting Arizona’s use of alternative mental states as means to satisfy the mens rea element of a single offense. The opinion further found that it could reasonably be concluded that the two mental states were moral equivalents. Id. at 644. Ultimately, the opinion concluded that the jury instructions did not violate due process. Id. at 645. Subsequently, this Court, in Reed v. Quarterman, applied the analysis in Schad to a case that is essentially on point with the case at bar. 504 F.3d 465, 479 (5th Cir. 2007). In Reed, the petitioner sought a COA based on his claim that “allowing the jury to convict him under two alternative theories without requiring unanimity as to one” violated due process. 504 F.3d at 479–82. In that case, the jury had been instructed that it could convict Reed of capital murder if it found that he committed murder in the course of robbery or attempted robbery or in the course of attempted aggravated rape. Id. Reed argued that Schad did not apply because his jury charge actually described two separate offenses as opposed to two different means of committing the single offense of murder. Id. at 480. Applying Schad, this Court recognized that “numerous states have traditionally defined and continue to define first-degree or aggravated murder as including both a killing in the course of robbery and a killing in the course of rape or attempted rape.” Id. at 482. Indeed, the Arizona statute at issue in Schad did so. Id. We further concluded that courts “could reasonably find a moral equivalence between murder in the course of robbery and murder in the course of attempted rape.” Id. Thus, we denied a COA, holding that reasonable jurists would not debate that the state court “reasonably applied Schad when it rejected Reed’s challenge to his jury instructions.” Id. In 6  No. 08-70039 view of this Court’s precedent applying the plurality’s reasoning, Maxwell is precluded from demonstrating that whether Schad applies is debatable among jurists of reason. Maxwell acknowledges the holding in Schad but asserts that Justice Scalia’s concurrence, which was narrowly based on historical grounds, effectively limited Schad either to its facts or to cases in which the jury is charged with the alternative mental states of premeditation and felony murder. This assertion is precluded by our above-discussed holding in Reed. Maxwell also contends that this Court should not rely on Reed or any other circuit case because the Supreme Court’s precedent controls federal habeas claims. Maxwell is correct that “[u]nder AEDPA, the state courts are bound, not by our jurisprudence or the jurisprudence of our sister circuits, but by ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” Summers v. Dretke, 431 F.3d 861, 875 (5th Cir. 2005) (quoting 28 U.S.C. § 2254(d)(1)). Nonetheless, one panel of this Court is bound by a previous panel’s interpretation of Supreme Court precedent. See United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (explaining that one panel may not overrule the decision of a previous panel absent an intervening Supreme Court opinion explicitly or implicitly overruling our prior panel precedent). Maxwell likewise faults the district court for citing Fifth Circuit precedent; however, the district court, like the instant panel, is bound by our Court’s caselaw interpreting Supreme Court precedent. Maxwell also asserts that the state court’s ruling is not entitled to deference under AEDPA because it was not an adjudication on the merits. Maxwell does not, however, explain his basis for arguing that the state court’s adjudication was not on the merits. In any event, an “‘adjudication on the merits’ occurs when the state court resolves the case on substantive grounds, rather than procedural grounds.” Valdez v. Cockrell, 274 F.3d 941, 946–47 (5th Cir. 2001). During the instant state habeas proceedings, the state trial court, 7  No. 08-70039 after a hearing, recommended denying relief on the merits, citing inter alia, Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). The Court of Criminal Appeals denied relief based on its review of the record and the findings of the trial court. Ex parte Maxwell, No. 65268, 2006 WL 2848044 (Oct. 4, 2006). The denial was on substantive grounds, which constitutes an adjudication on the merits. Thus, the state court’s decision is entitled to deference under AEDPA. As set forth above, the state court denied relief on this claim relying upon its holding in Kitchens, 823 S.W.2d 256. Maxwell contends that the Court of Criminal Appeals’s holding in Kitchens—that the predicate offenses that elevate murder to capital murder under Tex. Penal Code Ann. § 19.03 are not elements of capital murder but instead are alternate methods or means to commit capital murder—is wrongly decided. We need not tarry long here. “If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Schad, 501 U.S. at 636; see also Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (explaining that in a federal habeas proceeding, this Court will not review a state court’s interpretation of the state’s own statute). Maxwell also argues that the Court of Criminal Appeals’s decision in Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim. App. 2004), overruled Kitchens. In Rodriguez, the question was whether Texas had territorial jurisdiction over the capital murder offense even though only the kidnapping but not the actual murder occurred in Texas. The Court of Criminal Appeals explained that “capital murder is a result of conduct offense which also includes nature of circumstances and/or nature of conduct elements depending upon the underlying conduct which elevates the intentional murder to capital murder.” Rodriguez, 146 S.W.3d at 677. The Court further explained that the offense of “kidnapping 8  No. 08-70039 was the required aggravating ‘nature of conduct’ element that elevated the offense from murder to capital murder.” Id. Accordingly, because the kidnapping occurred in Texas, Texas had territorial jurisdiction over the capital murder offense. Id. In an unpublished opinion, we have previously rejected the contention that Rodriguez overruled Kitchens, noting (1) that the Court of Criminal Appeals “did not state that it was in any way modifying or overruling Kitchens” and (2) that the Court of Criminal Appeals was merely recognizing that the state must prove a defendant engaged in other specified criminal conduct to elevate the killing to a capital murder offense. See Manns v. Quarterman, 236 F. App’x 908, 915 n.6 (5th Cir. June 4, 2007). Moreover, Maxwell has not cited a case addressing the issue at bar in which the Court of Criminal Appeals has applied Rodriguez’s language to the instant jury instruction challenge. Indeed, subsequent to Rodriguez, the Court of Criminal Appeals continues to rely on Kitchens for the proposition that the predicate offenses under § 19.03 are alternate methods or means to commit capital murder. See, e.g., Luna v. State, 268 S.W.3d 594, 601 & n.16 (Tex. Crim. App. 2008) (citing Kitchens, 823 S.W.2d at 258). Thus, we reject Maxwell’s contention that Kitchens has been overruled. In addition to contending that Texas state precedent has been overruled, Maxwell argues that the Supreme Court’s plurality in Schad has been overruled sub silentio by Richardson v. United States, 526 U.S. 808 (1999). In Richardson, the Supreme Court held that a district court must instruct a jury to reach a unanimous verdict as to each of the specified violations that comprise the alleged “continuing series of violations” for the purposes of the continuing criminal enterprise statute. 526 U.S. at 824. In Richardson, the Supreme Court cited Schad several times and relied upon the teachings of the plurality opinion in its analysis. Richardson, 526 U.S. at 817, 819, 820, 822 (citing Schad, 526 U.S. at 631–33, 645). Although the Supreme Court ultimately held that jury unanimity 9  No. 08-70039 was required with respect to the violations pursuant to the continuing criminal enterprise statute, Richardson is distinguishable from Schad. As previously set forth, in Schad the plurality found considerable historical evidence supporting Arizona’s use of alternative mental states as means to satisfy the mens rea element of a single offense. In stark contrast, in Richardson, the government “virtually concede[d] the absence of any such tradition when it [admitted] that the statute departed significantly from common-law models and prior drug laws, creating a new crime keyed to the concept of a ‘continuing criminal enterprise.” 526 U.S. at 821 (citation and internal quotations marks omitted). Thus, in light of the very different history surrounding the two statutes at issue in Schad and Richardson, we are not persuaded that reasonable jurists would find it debatable that Richardson overruled Schad. Nonetheless, Maxwell cites the following language from a Texas Court of Criminal Appeals opinion: “[T]he plurality opinion in Schad has been undercut by the reasoning and result in the Supreme Court’s later decision in Richardson.” Ngo v. State, 175 S.W.3d 738, 746 (Tex. Crim. App. 2005). We first note that we are not bound by a state court’s holding with respect to the analysis of a federal due process claim. Thompson v. Cockrell, 263 F.3d 423, 429 (5th Cir. 2001). In any event, Maxwell is not entitled to relief because neither Schad nor our subsequent precedent interpreting it has been overruled implicitly or explicitly. Accordingly, we are bound by Schad and Reed, which compel our holding that reasonable jurists would not debate that the state court reasonably applied Schad and rejected this claim. Finally, Maxwell contends that the following relatively recent precedent of the Supreme Court reflects a shift toward (1) limiting the states’ legislative discretion and (2) allowing greater federal court oversight with respect to statutory definitions. Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000); Richardson, 526 U.S. 808; Jones v. United States, 10  No. 08-70039 526 U.S. 227 (1999). Once again, because this Court in 2007—subsequent to the above-cited Supreme Court cases—applied Schad to an almost identical case, we are bound to deny a COA. Reed, 504 F.3d at 479–82; accord Manns, 236 F. App’x at 913–16 (denying relief on the claim at issue after previously discussing Ring in the context of a challenge to the jury instructions submitted at the punishment phase). We therefore are constrained to DENY a COA with respect to Maxwell’s challenge to the jury instructions at the guilt-innocence phase of trial. 2. Punishment Phase of Trial Maxwell also challenges the instructions submitted to the jury at the punishment phase of trial. The first special issue submitted to the jury provided as follows: “Is there a probability that the defendant, Joshua Maxwell, would commit criminal acts of violence that would constitute a continuing threat to society?” Maxwell contends that the state trial court’s failure to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society” rendered the instructions unconstitutionally vague, thereby depriving him of a fair trial. This Court has held that there is no “clearly established federal law under which the terms of the Texas sentencing instructions could be unconstitutionally vague,” and therefore denied a COA with respect to an identical claim to the above-quoted terms. Turner v. Quarterman, 481 F.3d 292, 299–300 (5th Cir.), cert. denied, 551 U.S. 1193 (2007); accord Leal v. Dretke, 428 F.3d 543, 553 (2005); Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir. 1999). Maxwell also argues that the special issues failed to channel the jury’s discretion. Because “Texas performs the constitutionally required narrowing function before the punishment phase, [Maxwell’s] attack on the words used during punishment is unavailing.” Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir. 2009) (footnotes omitted). Our precedent precludes Maxwell from 11  No. 08-70039 making a substantial showing of the denial of a federal constitutional right. We deny a COA on this claim. The second special issue submitted to the jury provided that: “Taking into consideration all the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, is there a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?” Maxwell argues that the second special issue is constitutionally defective because it did not require the State to prove the aggravating elements beyond a reasonable doubt. In Rowell v. Dretke, we rejected this precise claim. Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005) (opining that “[n]o Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of proof”). We are bound by our precedent and therefore must conclude that Maxwell has not made a substantial showing with respect to the denial of his right to a jury finding of beyond a reasonable doubt. Scheanette v. Quarterman, 482 F.3d 815, 828-29 (5th Cir. 2007) (ruling that reasonable jurists would not debate the district court’s rejection of petitioner’s claim that the jury was required to find the mitigating issue beyond a reasonable doubt). We DENY a COA with respect to this claim. B. Ineffective Assistance of Counsel Maxwell further argues that counsel’s failure to object to the instructions at both phases of trial based on the above arguments constitutes ineffective assistance of counsel. To establish ineffective assistance of counsel, Maxwell must show (1) defense counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). While “[j]udicial scrutiny of counsel’s performance must be highly deferential,” Maxwell can demonstrate deficient performance if he shows “that counsel’s representation fell below an objective standard of reasonableness.” Id. 12  No. 08-70039 at 688–89. However, “[t]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting Strickland, 466 U.S. at 689). Strickland’s “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. 466 U.S. at 694. With respect to the first prong, Maxwell has not shown that counsel’s performance was deficient. As discussed above, the jury instructions at both phases of trial were not constitutionally infirm and therefore any objection would have been without merit. The failure to make meritless objections does not constitute deficient performance. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). Thus, we need not reach the prejudice prong of Strickland. Maxwell has not shown that reasonable jurists would find debatable this claim of ineffective assistance.2 C. CONCLUSION We DENY a COA with respect to Maxwell’s challenges to the jury instructions and his claims of ineffective assistance of counsel. 2 Maxwell also raises other grounds of error in his motion for a COA before this Court. However, as the Respondent argues, Maxwell did not properly raise these issues in the district court and thus, the district court did not address them. “Compliance with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.” Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998). 13 

550 F.3d 716 (2008) UNITED STATES of America, Appellee, v. Kamron DEHGHANI, also known as Ked64012, also known as Kedzlawn, also known as Lilkelliinmo, Appellant. No. 08-1518. United States Court of Appeals, Eighth Circuit. Submitted: October 14, 2008. Filed: December 22, 2008. *718 Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant. Katharine Fincham, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee. Before MELLOY, BEAM and GRUENDER, Circuit Judges. GRUENDER, Circuit Judge. After a jury trial, Kamron Dehghani was convicted of four counts of various child pornography offenses. He appeals, arguing that the district court[1] erred in denying his motion to suppress, abused its discretion in failing to recuse at sentencing, and abused its discretion in imposing a procedurally flawed and substantively unreasonable sentence. For the reasons discussed below, we affirm. I. BACKGROUND In January 2006, a Kansas City, Missouri police investigation of child pornography-related messages posted to web sites led to an internet account registered at an address in Belton, Missouri. Detectives Maggie McGuire and Brian Roach visited the Belton address, which belonged to Kamron Dehghani and his wife. During the visit, with Dehghani's permission, Roach removed a computer from the residence. After a forensic evaluation of the computer revealed child pornography, the detectives contacted Dehghani to arrange an interview. Dehghani originally declined to meet with the detectives, claiming that he suffered anxiety problems when traveling long distances. After the detectives agreed to conduct the interview at a police station close to his residence and at a time when his wife could drive him, Dehghani agreed to be interviewed. The detectives' interview with Dehghani began around 6:30 p.m. and ended approximately five and a half hours later. At the beginning of the interview, McGuire read Dehghani his Miranda[2] rights from a form. Dehghani read the form back to McGuire and signed it. Dehghani initially denied having any involvement with child pornography. At one point during the interview, Roach slammed his hand on the table and, in a loud tone of voice, told Dehghani that if he continued denying involvement, he would be arrested. Roach then told Dehghani he needed to get ready for the arrest by taking everything out of *719 his pockets and removing his belt and shoelaces. As Dehghani emptied his pockets, he told the detectives that they were correct when they earlier suggested that some people might be curious about child pornography because they had been abuse victims themselves. Dehghani stated that he was molested by his father and began to cry. After the detectives resumed questioning, Dehghani continued to deny his involvement with child pornography until the detectives confronted him with evidence from his computer, at which point he confessed. The detectives then prepared a statement reflecting Dehghani's answers to their questions, which Dehghani signed, and they allowed Dehghani to go home. A federal grand jury indicted Dehghani on charges of publishing a notice to exchange child pornography over the internet, 18 U.S.C. § 2251(d), attempting to receive child pornography, 18 U.S.C. § 2252(a)(2), attempting to distribute child pornography, 18 U.S.C. § 2252(a)(2), and possession of child pornography, 18 U.S.C. § 2252(a)(4). Before trial, Dehghani filed a motion to suppress his statements from the interview. The district court found that Dehghani knowingly waived his Miranda rights and made his statements voluntarily. A jury found Dehghani guilty on all counts of the indictment. While in custody awaiting sentencing before Judge Fenner, Dehghani attempted to send a letter to a newspaper that contained a threat to the judge's life. The letter alluded to the location of the judge's home and referred to his wife and stepson. The letter also included threats to assassinate President Bush, to plant bombs on city buses, and to poison the city's drinking water. Dehghani also hatched an escape plot with another inmate in which they would use a sharpened toothbrush to subdue a female guard. After the threats and the escape plot, including the sharpened toothbrush, were discovered, Dehghani filed a motion seeking the recusal of Judge Fenner, arguing that he would be biased because of Dehghani's threat to the judge. Judge Fenner denied Dehghani's recusal motion, explaining that Dehghani's threat against him was an attempt to manipulate the criminal justice system and that Dehghani had no realistic ability to carry out the threat. At sentencing, the district court calculated a total offense level of 39, including a two-level enhancement for obstruction of justice under United States Sentencing Guidelines § 3C1.1, and a criminal history category of I, resulting in an advisory sentencing guidelines range of 262 to 327 months' imprisonment. The district court then sentenced Dehghani to 432 months' imprisonment after finding that the advisory guidelines range did not fully account for the scope of Dehghani's criminal conduct or the extent of his attempts to obstruct justice. Dehghani appeals, arguing that his statement to the detectives was involuntary and should have been suppressed, that Judge Fenner should have recused himself, and that the sentence was procedurally flawed and substantively unreasonable. II. DISCUSSION We first address Dehghani's argument that the district court erred in denying his motion to suppress. Dehghani alleges that the detectives' coercive tactics overcame his will and that his confession was, therefore, involuntary. "We review the district court's factual findings for clear error and its conclusion regarding the voluntariness of a confession de novo." United States v. Brave Heart, 397 F.3d 1035, 1040-41 (8th Cir.2005). A statement is involuntary if the totality of the circumstances show that "pressures exerted by *720 the authorities overwhelmed the defendant's will." United States v. Martin, 369 F.3d 1046, 1055 (8th Cir.2004). However, an interrogation of a suspect will always involve some pressure "because its purpose is to elicit a confession." Id. A lengthy interrogation, a raised voice or deception do not render a confession involuntary "unless the overall impact of the interrogation caused the defendant's will to be overborne." Id. In support of his argument that his statement was involuntary, Dehghani contends that the detectives overcame his will by physically intimidating him, promising that he would not be jailed if he confessed, and questioning him after he had an emotional breakdown. The magistrate judge's report and recommendation, adopted by the district court, made several factual findings that rebut Dehghani's claims.[3] The court found that although Roach slammed his hand on the table and raised his voice, he did not physically intimidate Dehghani by, for example, raising his fists or using profanity. The court also found that the detectives never told Dehghani he would not be arrested if he confessed. The court additionally found that although Dehghani cried, he did not cry uncontrollably or appear disoriented. He did not confess immediately after crying; instead, he continued to deny involvement with child pornography until the detectives confronted him with evidence from his computer. None of these findings of fact are clearly erroneous in light of the detectives' testimony. See United States v. Hines, 387 F.3d 690, 695 (8th Cir.2004) (explaining that a trial judge's decision to credit testimony of witnesses who tell coherent and facially plausible stories that are not contradicted by extrinsic evidence "can virtually never be clear error"). Based on these findings, we find no error in the district court's conclusion that, considering the totality of the circumstances, the detectives did not overcome Dehghani's will. See United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir.2002) (noting that raised voices and promises of leniency do not render a confession involuntary); cf. Gingras v. Weber, 543 F.3d 1001, 1003 (8th Cir.2008) (finding no involuntary confession where defendant had stopped crying by the time he confessed). Furthermore, there is no evidence that Dehghani was particularly susceptible to the detectives' pressure. Dehghani appeared to be of at least average intelligence because his answers to questions were coherent, if not always truthful, and he displayed some understanding of the internet and file-sharing programs. See, e.g., United States v. LeBrun, 363 F.3d 715, 726 (8th Cir.2004) (en banc) (noting that when a defendant possesses at least "average intelligence," his inculpatory statements are less likely to be compelled). Moreover, the court found that Dehghani had at least nine years of education, an amount that does not render his confession involuntary per se. See United States v. Makes Room, 49 F.3d 410, 415 (8th Cir. 1995) (explaining that a defendant's eighth grade education, among other factors, did not make his confession involuntary where he clearly understood his rights). Additionally, although Dehghani argues that he was affected by certain medications he had taken on the day of the interview, the court found that there was no evidence that Dehghani's medication impaired him in any way. This finding is not clearly erroneous in light of the detectives' testimony that Dehghani did not appear impaired *721 and that he gave clear, responsive answers to the detectives' questions. See Martin, 369 F.3d at 1056 (finding no clear error in the district court's determination that the defendant did not suffer mental impairment as a result of medication). Finally, the interrogation lasted approximately five and a half hours, which is not sufficient to render the confession involuntary per se. See Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993) (questioning of a suspect for six to seven hours was not "per se unconstitutionally coercive"). Other factors also weigh in favor of a finding that Dehghani's confession was voluntary. First, the detectives advised Dehghani of his Miranda rights orally and in writing. Dehghani waived those rights orally and in writing, and he never invoked any of his Miranda rights. See United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir.1996). In addition, the interview was conducted at a time and location convenient to Dehghani. See id. Considering the totality of the circumstances, we find that the district court did not err in denying the motion to suppress because the detectives' actions did not overcome Dehghani's will and Dehghani confessed voluntarily. We next address Dehghani's contention that the district court abused its discretion in denying his motion to recuse. We review the denial of a motion to recuse for abuse of discretion. Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002) (en banc). A judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The question is "whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case." Moran, 296 F.3d at 648. Because a judge is presumed to be impartial, "the party seeking disqualification bears the substantial burden of proving otherwise." United States v. Denton, 434 F.3d 1104, 1111 (8th Cir.2006). In denying the motion to recuse, Judge Fenner concluded that Dehghani's threat against him was an effort to manipulate the criminal justice system by attempting to obtain a different judge for sentencing. Judge Fenner explained that Dehghani did not "have the capacity by any stretch of the imagination to carry out" the threat against him. However, the court did find that Dehghani's threats against jail personnel were serious and recommended that Dehghani's transfer to federal custody be expedited. During sentencing, the court increased Dehghani's advisory guidelines range and increased his sentence beyond that range partly because of Dehghani's efforts to obstruct justice by threatening the judge, jail personnel and others. Dehghani contends that an average person would question the impartiality of the court because his threat against Judge Fenner appeared credible, the court's findings regarding the seriousness of his various threats were inconsistent, and his ultimate sentence was based on the threat that formed the basis for the recusal request. First, Judge Fenner's finding that the threat against him was an attempt to manipulate the criminal justice system is amply supported by the record. Judges are not required to recuse themselves any time they are threatened. See United States v. Gamboa, 439 F.3d 796, 817 (8th Cir.2006). Dehghani's threat against the judge was contained in the same letter as threats to assassinate President Bush, to plant bombs on city buses, and to poison the city's water supply. Judge Fenner did not consider the threat against him serious enough to report it to any law enforcement agencies or to request additional security for his protection. Moreover, Dehghani *722 was in custody at the time he made the threat. This empty threat does not require a judge's recusal. See United States v. Holland, 519 F.3d 909, 916-17 (9th Cir. 2008) (finding no error where the district court did not recuse itself because defendant had a history of making empty threats against judges, lawyers and the president). Dehghani relies on United States v. Greenspan, 26 F.3d 1001 (10th Cir.1994), in support of his recusal argument, but in that case, the threats were serious enough to prompt the FBI to launch an investigation into the defendant's conspiracy to kill the trial judge. Id. at 1005. The conspiracy in Greenspan spanned several states and included a number of persons who contributed money for the hiring of a hit man. Id. Nothing in the record supports a finding that Dehghani's threat against Judge Fenner was similarly credible. Second, Judge Fenner's finding that Dehghani's threats against jail personnel were serious does not conflict with his finding that the threat against him was not. While in jail, Dehghani had fashioned a toothbrush into a weapon. Dehghani clearly had the ability to harm a guard in his immediate vicinity with such a weapon, whereas he had no ability to carry out his threat against the judge while in custody. The fact that Dehghani knew some details about Judge Fenner and his family, including the general location of his home, does not alter the conclusion that Dehghani had no ability to carry out the threat against him. Thus, there is no inherent contradiction between the two findings, and a fully-informed average person would not conclude that Dehghani's serious threats against jail personnel showed that his threat against Judge Fenner was also credible. Furthermore, Judge Fenner did not increase Dehghani's advisory guidelines range for obstruction of justice under § 3C1.1 because of the seriousness of the threat against him but rather because of the seriousness of Dehghani's attempts to manipulate the criminal justice system. An empty death threat can nevertheless be a credible attempt to manipulate the system. See Holland, 519 F.3d at 916. Moreover, the court's demeanor and decisions during sentencing did not evidence "deep-seated favoritism or antagonism that would make fair judgment impossible." Gamboa, 439 F.3d at 817. Judge Fenner acknowledged Dehghani's various personal problems and demonstrated sympathy for Dehghani's family, and he gave reasons for his sentencing decisions that the record fully supported. See id. We conclude that an average observer who was informed of all of the facts in this case would not reasonably question the court's impartiality. Therefore, the district court did not abuse its discretion in denying Dehghani's motion to recuse. Finally, Dehghani challenges his sentence, arguing that it was both procedurally flawed and substantively unreasonable. First, we consider whether the district court committed any procedural error. Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Id. Dehghani contends that the district court erred procedurally by failing to consider the § 3553(a) factors and by failing to sufficiently explain the basis for its chosen sentence. Although the 432-month sentence imposed by the district court was *723 substantially greater than the advisory guidelines range, we disagree with Dehghani's arguments that it was procedurally flawed.[4] The record demonstrates that the district court considered the § 3553(a) factors, specifically mentioning the need to deter criminal conduct, to promote respect for the law, and to protect the public from Dehghani's criminal activity. See United States v. Walker, 439 F.3d 890, 892 (8th Cir.2006) (explaining that district courts need not discuss each § 3553(a) factor in detail so long as it is clear that they were considered). Moreover, the district court adequately explained its chosen sentence, concluding that the advisory guidelines range did not sufficiently account for the scope of Dehghani's criminal conduct or his obstructive behavior while awaiting sentencing. The court found that Dehghani was obsessed with child pornography, exposed his daughters to child pornography, expressed a desire to have sexual relations with children, and forced a minor to perform oral sex. Further, the district court considered Dehghani's multiple attempts to obstruct justice, such as making baseless threats, sending a letter containing a white powdery substance, blaming others for his actions, hatching an escape plot, forging signatures on motions filed with the court, and lying under oath multiple times. The court properly considered these issues in evaluating "the nature and circumstances of the offense and history and characteristics of the defendant" under § 3553(a). Thus, because the district court considered the § 3553(a) factors and adequately explained the basis for its sentence, including its decision to impose a sentence above the advisory guidelines range, we find no procedural error. We next address Dehghani's contention that his sentence was substantively unreasonable because the district court allegedly failed to consider certain mitigating factors.[5] We review the substantive reasonableness of a sentence for abuse of discretion. Gall, 128 S.Ct. at 597. A sentence outside of the advisory guidelines range is not presumptively unreasonable. United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008). The record indicates that the district court, after hearing from Dehghani, his mother and his lawyer, considered Dehghani's age, mental issues and childhood abuse. However, the court specifically found that those circumstances did not outweigh the seriousness of Dehghani's conduct. Because the sentencing judge is in a superior position to weigh the relevant factors under § 3553(a), the fact that we might reasonably conclude "that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall, 128 S.Ct. at 597. We conclude that the district court did not abuse its discretion by sentencing Dehghani to 432 months' imprisonment. III. CONCLUSION For the foregoing reasons, we affirm Dehghani's conviction and sentence. NOTES [1] The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. [2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [3] The Honorable Robert E. Larsen, United States Magistrate Judge for the Western District of Missouri. [4] Although the district court used the term "departure" when sentencing Dehghani, the court's considerations clearly demonstrate that it actually imposed a variance under the § 3553(a) factors. However, where the ultimate sentence is reasonable, this type of conflation is harmless error. See United States v. Miller, 479 F.3d 984, 986 (8th Cir.2007), cert. denied, 552 U.S. ___, 128 S.Ct. 869, 169 L.Ed.2d 736 (2008). [5] Dehghani also argues that the advisory guidelines themselves are substantively unreasonable because they violate the parsimony principle of § 3553(a) by creating unduly harsh sentencing ranges for child pornography offenses. This court has rejected that argument. United States v. Betcher, 534 F.3d 820, 827-28 (8th Cir.2008).

United States Court of Appeals, Fifth Circuit. No. 94-10420. Nancy J. TODD, Plaintiff-Appellee, Cross-Appellant, v. AIG LIFE INSURANCE COMPANY, et al., Defendants-Appellants, Cross- Appellee. Nancy J. TODD, Plaintiff-Appellee, Cross-Appellant, v. GROUP ACCIDENT INSURANCE PLAN FOR EMPLOYEES OF E-SYSTEMS, INC., et al., Defendants-Appellants, Cross-Appellee. March 29, 1995. Appeals from the United States District Court for the Northern District of Texas. Before WHITE, Associate Justice (Ret.),* BARKSDALE and PARKER, Circuit Judges. WHITE, Associate Justice (Ret.): This case, a suit for recovery of benefits under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., involves the construction of an accidental death insurance policy and arises from the unfortunate death by asphyxiation of appellee's husband. The insurer refused to pay the policy's benefits after concluding that the death was not accidental. The district court granted summary judgment in appellee's favor, finding that the loss resulted from an accident within the terms of the policy, holding that liability extended beyond the insurer to * The Honorable Byron R. White, Associate Justice of the United States Supreme Court, (Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a). 1 the employee welfare benefit plan and its administrator, and awarding attorneys' fees. The defendants appealed. We affirm the district court's judgment regarding policy coverage but reverse on the extended liability issue and remand for a proper determination of attorneys' fees. I. Richard A. Todd was found dead at his home in Rockwall, Texas, on April 25, 1991. The cause of death was determined to be autoerotic asphyxiation, the practice of limiting the flow of oxygen to the brain during masturbation in an attempt to heighten sexual pleasure. When found, Todd was lying on his bed with a studded dog collar around his neck; the collar, in turn, was attached to two leather leashes of differing lengths, one of which passed over Todd's back and attached to an ankle. Apparently, Todd gradually tightened the collar around his neck by pulling on the leashes, thereby reducing the supply of oxygen reaching his brain. Instead of simply restricting the flow of oxygen enough to increase his sexual gratification, however, Todd tightened the collar to the point at which he passed out. Todd apparently designed the system of leashes to loosen the ligature in the event he became unconscious; unfortunately, the collar failed to release and ultimately terminated the flow of oxygen permanently. The autopsy report listed the cause of death as "asphyxia due to ligature strangulation," ruling the manner of death "accidental." At the time of his death, Todd was covered by an "Accidental Death and Dismemberment Insurance" policy provided by his employer, 2 E-Systems, Inc., as part of an employee welfare benefit plan falling within the ambit of ERISA. AIG Life Insurance Company issued the E-Systems policy, which was administered by the Group Accident Insurance Plan ("GAI"), with David V. Roberts serving as the plan administrator. Appellee, Nancy J. Todd, was the decedent's wife and his beneficiary under the policy. Shortly after her husband's death, appellee presented her claim for benefits to the E-Systems employee welfare benefit plan and AIG through a claims processing organization, the American International Adjustment Company ("AIAC"). In an October 1991 letter written on behalf of AIG, an AIAC claims examiner denied appellee's claim, finding that "[t]he circumstances of [Todd's] death point to the fact that he was risking his life by his actions" and explaining that "[a] death [cannot] be considered accidental ... [i]f from the viewpoint of the Insured, his conduct was such that he should have anticipated that in all reasonable probability he would be killed." After the ERISA Appeals Review Committee upheld the claims examiner's decision, appellee filed suit against AIG and AIAC in Texas state court, alleging various state common law and statutory claims. The case was removed to the United States District Court for the Northern District of Texas based upon the applicability of ERISA. Faced with the contention that all of her state law claims were preempted by that statute, 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), appellee amended her complaint to allege a claim for 3 failure to pay benefits under the insurance policy pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B). She also joined as parties the GAI Plan and its administrator, alleging that these defendants breached their fiduciary duties under ERISA, 29 U.S.C. §§ 1104(a) and 1109(a). Cross-motions for summary judgment were filed. The district court observed that "the parties are in agreement on the underlying facts," and that the case posed strictly the legal question whether the policy covered Todd's death. Memo. Op. 1. The court filed an opinion and entered final judgment in favor of appellee on all issues. Appellants present three issues on appeal: whether Todd's death was covered by the AIG accidental death insurance policy, whether the ERISA employee welfare benefit plan and its administrator can be held liable for the benefits owed by the insurer, and whether the district court's calculation of attorneys' fees was proper. We consider each in turn. II. Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review a district court's grant of summary judgment de novo and must evaluate the facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In the ERISA context, in turn, "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under 4 a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989). See also Schultz v. Metropolitan Life Ins. Co., 872 F.2d 676, 678 (5th Cir.1989). No such grant of authority was included in the E-Systems policy, so we accord no deference to the administrator's ultimate determination. Cf. Pierre v. Connecticut General Life Ins. Co., 932 F.2d 1552, 1553 (5th Cir.) (concluding that a plan administrator's findings concerning facts underlying the claim for benefits should be reviewed for abuse of discretion), cert. denied, 502 U.S. 973, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991). A. The first issue in this case is whether, on the facts before it, the district court erred in ruling the death to be accidental within the meaning of the policy insuring the plan. Preliminarily, we note that it is undisputed that federal law governs this issue, including the construction of the policy provisions. Congress, in adopting ERISA, expected that "a federal common law of rights and obligations under ERISA-regulated plans would develop." Pilot Life, 481 U.S. at 56, 107 S.Ct. at 1558; see also Firestone, 489 U.S. at 110, 109 S.Ct. at 954. In ascertaining the applicable federal common law, this court has explained, we may " "draw guidance from analogous state law.' " Brandon v. Travelers Ins. Co., 18 F.3d 1321, 1325 (5th Cir.1994) (quoting McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990)). We must nevertheless 5 bear in mind that, "[i]n so doing, [we] may use state common law as a basis for new federal common law ... only to the extent that state law is not inconsistent with congressional policy concerns." Thomason v. Aetna Life Ins. Co., 9 F.3d 645, 647 (7th Cir.1993); see also Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 n. 8 (3rd Cir.1993); Jamail, Inc. v. Carpenters District Council of Houston Pension & Welfare Trusts, 954 F.2d 299, 304 (5th Cir.1992). We also note that the district court held that, in construing the language of ERISA plans, federal law must follow the rule of contra proferentem, which directs that when plan terms remain ambiguous after applying ordinary principles of contract interpretation, courts are to construe them strictly in favor of the insured.1 This ruling comports with this court's holdings in ERISA cases. Ramsey v. Colonial Life Ins. Co. of America, 12 F.3d 472, 479 (5th Cir.1994); Hansen v. Continental Ins. Co., 940 F.2d 971, 982 (5th Cir.1991). Other circuits also apply the rule in ERISA cases where construction of insurance documents is involved, e.g. Heasley, 2 F.3d at 1257-58; McNeilly v. Bankers United Life Assurance Co., 999 F.2d 1199, 1201 (7th Cir.1993); Delk v. Durham Life Ins. Co., 959 F.2d 104, 106 (8th Cir.1992);2 Kunin v. Benefit 1 Of course, the language of insurance contracts should be given their ordinary and generally accepted meaning if there is one, see, e.g., Hardester v. Lincoln Nat'l Life Ins. Co., 33 F.3d 330, 334 (4th Cir.1994). "We interpret ERISA plans in an ordinary and popular sense as would a person of average intelligence and experience." Meredith v. Allsteel Inc., 11 F.3d 1354, 1358 (7th Cir.1993). 2 The company relies on Brewer v. Lincoln Nat'l Life Ins. Co., 921 F.2d 150, 153-54 (8th Cir.1990), cert. denied, 501 U.S. 1238, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991), to oppose the 6 Trust Life Ins. Co., 910 F.2d 534, 539-40 (9th Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 587 (1990); see also Glocker v. W.R. Grace & Co., 974 F.2d 540, 544 (4th Cir.1992).3 At long last, we turn to the relevant provisions of the insurance policy involved here. First, the policy defines "injury" as "bodily injury caused by an accident occurring while this policy is in force as to the Insured Person and resulting directly and independently of all other causes in loss covered by this policy." Second is a schedule of benefits payable: Accidental Death and Dismemberment Indemnity: When injury results in any of the following losses to an Insured Person within 365 days of the date of the accident, the Company will pay in one sum the indicated percentage of the Principal Sum.... This provision is followed by a list of possible losses and corresponding benefits; death of the insured entitles the beneficiary to payment of the entire value of the policy. The policy contains various exclusions from coverage, including loss due to "suicide or any attempt thereat," but there is no general application of contra proferentem in ERISA cases. Besides ignoring the controlling precedents in this Circuit, it also fails to mention the Eighth Circuit decision in Delk, cited above in the text, as well as the Ramsey court's reliance on Delk in applying contra proferentem in the ERISA context. 3 The district court also observed, Memo. Op. 11, that it is the company's burden clearly to exclude those acts it does not intend to cover, and that acts that are not expressly omitted or excluded are covered. Applied literally, there being no exclusion for autoerotic acts or for intentionally inflicted injuries, no more would have been required to decide this case. As will be seen, however, the district court did not take this course, although it did make much of the fact that insurance companies are aware, because of claims made against them, that autoerotic practices exist and pose some risk of death. 7 exclusion for self-inflicted injury. 1. We deal first with AIG's submission, presented to the district court and renewed here, that as a matter of federal law governing ERISA employee benefit plans the court should announce a per se rule that death or other bodily injury caused by autoerotic activity is never the result of an accident within the meaning of an accidental death or injury policy insuring such a plan. The essence of the argument is that common to all such activities is the intentional strangulation for the purpose of inducing asphyxia, which in this case led to death. "The "injury,' " it is said, "was the strangulation and the resulting asphyxia," and it could not have been "caused by an accident" because the injury was plainly intentionally inflicted. Brief of Appellants 12. So viewed, there is no ambiguity in the policy language and hence no room for the contra proferentem rule in cases such as this. The district court, having noted the variety and ambiguity of dictionary and case-law definitions of the words "accident" and "accidental," and having reviewed the sparse history and current knowledge of autoeroticism, did not believe that the cases dealing with such activities warranted such a per se rule. We also are not impressed with AIG's submission. It is true that Todd intended to strangle himself to reduce the flow of blood and oxygen to the brain thereby creating the condition of asphyxia, a word denoting a shortage of oxygen reaching the brain or other bodily tissue. That condition need not result in the loss of consciousness, which 8 it will, of course, if prolonged for more than a few moments. The longer the asphyxia lasts, the greater the injury, and it need last only a few minutes for death to ensue. In this case, even if we assume that Todd intended the degree of injury from asphyxia that would cause him to lose consciousness, it is plain enough that this condition is not an injury that necessarily leads to death. It is commonplace for those who suffer from such a condition to regain consciousness and survive without any permanent damage. What killed Todd was not the mere loss of consciousness from the temporary lack of oxygen in his brain; it was the further injury to the brain and other bodily functions caused by the prolonged lack of oxygen-laden blood. To claim that such additional injury was intended is to aver that Todd intended to die, which AIG expressly agrees he did not. See Brief of Appellants 15. Perhaps bodily injuries "intentionally" inflicted by the insured are not caused by accident, even without a policy exclusion of intentional injuries; but in our view the injuries that caused death in this case, and very likely in other similar cases, were not intentionally inflicted. The claimed basis for announcing a per se rule of federal law—that death by autoerotism of the kind involved in this case cannot be accidental—is thus untenable. It is true that the federal courts of appeals to have dealt with cases of this kind have denied recovery under the applicable insurance policy. But none of those cases, which AIG cites in support of its per se rule proposition, purports to lay down any federal law governing ERISA insurance cases. None of them involved 9 an ERISA plan; each of them was a diversity action controlled by state law which dictated either that the death was not accidental or that a self-inflicted injury exclusion barred recovery under the policy.4 2. Of course, the central question in this case remains to be decided: whether, even though Todd did not intend or expect to die, the injury that killed him was or was not an "accident" within the meaning of the policy.5 That word, without more, the district 4 See Sims v. Monumental General Ins. Co., 960 F.2d 478, 480 (5th Cir.1992) (insurance policy expressly excluded any loss (including death) "resulting directly or indirectly, wholly or partly from ... an intentionally self-inflicted injury"); Sigler v. Mutual Benefit Life Ins. Co., 506 F.Supp. 542, 545 (S.D.Iowa 1981) (explaining that the elements of an intentionally self-inflicted injury were met where the decedent's "voluntary acts were intended to temporarily restrict his air supply to heighten the sensations of masturbation"), aff'd, 663 F.2d 49 (8th Cir.1981); International Underwriters, Inc. v. Home Ins. Co., 662 F.2d 1084, 1087 (4th Cir.1981) (applying Virginia law and concluding that, "[b]ecause the decedent voluntarily placed his neck in the [hangman's-type] noose and tightened the same to the point where he lost consciousness, we think his death was the natural result of a voluntary act unaccompanied by anything unforeseen except death or injury"); Runge v. Metropolitan Life Ins. Co., 537 F.2d 1157, 1159 (4th Cir.1976) (same). 5 Cases in this area have often debated whether there exists a valid distinction between various formulations of accidental death policies, particularly those that refer to injuries by "accidental means." The Texas Supreme Court has concluded that such phrases as " "accidental death' and "death by accidental means,' as those terms are used in insurance policies, must be regarded as legally synonymous unless there is a definition in the insurance contract itself which requires a different construction." Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex.1976). The court in Wickman v. Northwestern Nat'l Ins. Co. came to the same conclusion. 908 F.2d 1077, 1085- 86 (1st Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990). Because most recent cases seem to reject the accidental means distinction, and because the parties have not pressed the issue in this case, we do not believe any debate on 10 court observed, has no single, generally accepted meaning either in the dictionaries, the cases construing it, or in common parlance. Hence, after considering the published writings about autoerotic practices, the court turned to the cases dealing with such activities for help. One of the few cases dealing specifically with deaths from autoeroticism, Sims v. Monumental General Insurance Company, 960 F.2d 478 (1992), came from this Circuit. It was not an ERISA case and was governed by Louisiana law. Recovery was denied under an accidental death policy, not because the death was not accidental, an issue the court carefully avoided, but because the policy expressly did not cover losses, including death, "resulting directly or indirectly, wholly or partly from ... [an] intentionally self inflicted injury."6 We noted that recovery had also been denied by the Fourth Circuit in two similar cases, International Underwriters, Inc. v. Home Ins. Co., 662 F.2d 1084 (1981), and Runge v. Metropolitan Life Ins. Co., 537 F.2d 1157 (1976), on the ground that, under Virginia law, the deaths were not accidental; we also explained that, in another similar case, Kennedy v. Washington Nat'l Ins. Co, 136 Wis.2d 425, 401 N.W.2d 842, 846 (1987), the Wisconsin Court of Appeals had ruled that a death from autoeroticism was accidental and covered by the this point affects our decision. 6 The district court in the case before us stated that had the policy before it contained an adequate self-inflicted injury exclusion, which the insurer could have included in its policy but did not, recovery would have been denied. 11 insurance policy at issue. The Sims court neither agreed nor disagreed with these three cases. The essence of the two Fourth Circuit cases rejecting coverage was explained as follows: [D]eath was the natural result of a voluntary act unaccompanied by anything unforeseen except death or injury.... [The decedent] is bound to have foreseen that death or serious bodily injury could have resulted when he voluntarily induced unconsciousness with a noose around his neck. We are thus of opinion that his death was not an accident under Virginia law.... International Underwriters, 662 F.2d at 1087 (emphasis added). Sims also noted Sigler v. Mutual Benefit Life Ins. Co., 663 F.2d 49 (8th Cir.1981). That decision rejected coverage for an autoerotic death based both on a self-inflicted injury exclusion in the policy and on its view, relying on Runge, supra, that the death was not accidental "since a reasonable person would have recognized that his action could result in his death." Id. at 49 (emphasis added). In Kennedy, the Wisconsin case, the sole issue was whether the term "accidental death" in the insurance policy included death by autoerotic asphyxiation. The intermediate appellate court held that the death was accidental. In doing so, based on decisions of the Wisconsin Supreme Court, it rejected the notion that death could not be accidental if it was a foreseeable or the natural result of a force or event voluntarily set in motion by the insured. In the court's view, it was not enough that the act might or could have caused the injury or death; only "when an insured participates in some act where serious injury or death is highly probable or an inevitable result"—only when it can be concluded 12 that the insured, in effect, intended that result—can the result of his conduct be held not to be accidental. Id. 401 N.W.2d at 846. As the court saw it, autoerotic activity may be risky but death is not a normal, expected result of this behavior; it was not of such a nature that Kennedy knew or should have known that it probably would have resulted in death. Ibid. The district court in the instant case also discussed the decision by the Texas Court of Civil Appeals in Connecticut General Life Insurance Company v. Tommie, 619 S.W.2d 199 (1981), another case that involved a claim that a death from autoerotic activity was accidental and covered by the applicable insurance policy. The plaintiff relied on two experts, both of whom testified that death is not the normal or expected result of the kind of autoerotic activity in the case and that death would not be reasonably expected.7 The court affirmed the jury verdict that the death was accidental, ruling that it could be otherwise only " "when the consequences of the act are so natural and probable as to be 7 "Dr. Norton testified that she encountered from time to time in her medical practice the same type of auto-erotic activity as Mr. Tommie was engaged in, and that while some forty deaths per year were reported in the United States as a result of such activity, death is not the normal expected result of that behavior, but would be considered unusual or unexpected. Dr. Montgomery also agreed that death in those circumstances would not be reasonably expected. Dr. Norton further testified that it was likely that Mr. Tommie had engaged in the practice for several years, considering his age and the fact that such behavior generally begins in young men during pubescence or shortly thereafter." Tommie, 619 S.W.2d at 202. We note here that while a ruling on the cross motions for summary judgment was awaited, appellee filed a designation of expert witnesses, indicating that her witnesses would testify as the experts had in Tommie. 13 expected by any reasonable person' " and were, in effect, intended by the insured. Id. at 202 (quoting Freeman v. Crown Life Ins. Co., 580 S.W.2d 897 (Tex.Civ.App.1979)). This ruling was based on the Texas Supreme Court decision in Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex.1976), which held: "[I]njuries are "accidental' and within the coverage of an insurance policy ... if, from the viewpoint of the insured, the injuries are not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by [the] insured, or would not ordinarily flow from the action or occurrence which caused the injury." After the review of these autoerotic death cases, which were governed by state law and which produced inconsistent results, the district court sought help from two ERISA cases that did not involve autoerotic activity. In Brown v. American International Life Assurance Co., 778 F.Supp. 912 (S.D.Miss.1991), an arsonist, a participant in an ERISA plan, died in the fire she had lit. The court ruled her death accidental because she plainly had the subjective expectation that she would survive and because, on the facts presented, this expectation was not unreasonable. Id. at 918. The second ERISA case that impressed the district court was Wickman v. Northwestern Nat'l Ins. Co., 908 F.2d 1077 (1st Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990). There the deceased had climbed over a bridge guardrail and was holding on with one hand when he fell and later died from his 14 injuries. The court of appeals affirmed the judgment below that the death was not caused by an accident. The magistrate had found that serious bodily injury was substantially certain to happen and that "Wickman knew or should have known that serious bodily injury was a probable consequence substantially likely to occur as the result" of his conduct. Id. at 1081. This finding, the court of appeals said, "equates with a determination either that Wickman expected the result, or that a reasonable person in his shoes would have expected the result, and that any other expectation would be unreasonable." Id. at 1089. The district court in the case before us quoted the above passages from Wickman and ruled that as a matter of law Todd's death from autoerotic conduct was not substantially certain to happen and that he reasonably expected to survive. Memo.Op. 19-20.8 8 We note here that a definition of the word "accident" more favorable to the insured appealed to the United States District Court for the Western District of Arkansas in Parker v. Danaher Corp., 851 F.Supp. 1287 (1994), a decision rendered a short time after the judgment of the district court in the present case and not cited by any of the briefs before us here. (An appeal in the case was dismissed on motion of the appellants on May 31, 1994.) Other than the instant case, Parker is the only case we found in which a federal court has interpreted and applied an accidental injury clause in an insurance policy issued in connection with an ERISA employee benefit plan where the claimed loss was a death connected with autoerotic activity. The Parker court examined in some detail the cases involving claims under accidental death policies in which the fatalities resulted from autoerotic activities. It noted that these cases were not ERISA cases and apparently found nothing in them persuasive enough to decide the case before it. It also examined the First Circuit's decision in Wickman, supra, and found that opinion wanting. It preferred to follow what it deemed to be the teaching of the Eighth Circuit that ERISA plans and insurance policies connected therewith be interpreted as an ordinary plan 15  Having surveyed the authorities upon which the decision was based, we affirm the judgment of the district court that Todd's death was accidental and within the coverage of the policy insuring the employee benefit plan. That Todd neither intended nor expected to die as the result of his autoerotic conduct AIG does not dispute. Indeed, it did not invoke the policy's provision excluding coverage for suicide. Nor does it question the averments in Mrs. Todd's affidavit filed with her motion for summary judgment participant would—meaning that the language should be given its ordinary rather than a specialized meaning. As the court saw it, under this approach "the common man in the street regards an accident as being something unintended, not according to the usual course of things, or not as expected." Id. at 1295. Because "it is undisputed that the insured did not expect to die ... in the common understanding of man Timothy Parker's death would be regarded as accidental." Id. (emphasis added). As we understand the opinion, under this view it is enough for the plaintiff to prove that the insured expected to survive without proving the reasonableness of that expectation. The court thought this approach wholly consistent with, if not dictated by, Brewer v. Lincoln Nat'l Life Ins. Co., 921 F.2d 150 (8th Cir.1990). Interestingly enough, this was without the help of the contra proferentem doctrine, which the court ruled inapplicable in ERISA cases by reason of the Eighth Circuit's decision in Brewer. But see Delk, 959 F.2d at 106. We observe also that the Parker definition of accident is not inconsistent with some dictionary definitions. See, e.g., Webster's Ninth New Collegiate Dictionary 49 (9th ed. 1985) (defining "accident" as "an unforeseen and unplanned event or circumstance") Moreover, the First Circuit, in Wickman, seemed to indicate that the narrower definition had some support in the common law and took pains to explain it away. 908 F.2d 1077, 1087-88. Although Mrs. Todd was familiar with Wickman, we fail to find an argument for this more favorable definition in her written papers in the record before the district court, and the argument is not presented here. Indeed, in both courts, Mrs. Todd was and is content to submit that her husband's death was not only unintended and unexpected, but also that his expectation was quite reasonable. 16 that Todd was gainfully employed at the time of his death and that the Todds had been married for many years, had two children, were planning a family vacation soon, and were building a new house. The district court's finding that Todd did not expect to die is well founded. The district court held, however, and the parties agree, that the deceased's expectation of survival, without more, is not enough. In this respect, the court adopted the essentials of the Wickman approach. That expectation must be reasonable; and, as we see it and as we think the district court saw it, the expectation would be unreasonable if the conduct from which the insured died posed such a high risk of death that his expectation of survival was objectively unrealistic. The district court concluded that the risk of death involved in the conduct at issue must reach the level of "substantial certainty" before the resulting death could be deemed nonaccidental. That language was borrowed from the magistrate judge's opinion in Wickman; but the district court also quoted the magistrate's words, which surely have the same import, describing the triggering risk to be that death was substantially likely to occur from the insured's volitional act, which the court of appeals in turn observed was the equivalent of "highly likely to occur." We think the district court description of what is and is not an accident fell within the rules for construing insurance contracts, including the principle of contra proferentem. That is, what the district court did is consistent with, if not necessarily 17 compelled by, the rule that we interpret such policies in favor of the insured. The district court here followed the essence of Wickman: for death under an accidental death policy to be deemed an accident, it must be determined (1) that the deceased had a subjective expectation of survival, and (2) that such expectation was objectively reasonable, which it is if death is not substantially certain to result from the insured's conduct. This holding was appropriate. AIG, as it did in the district court, relies on the Fourth Circuit cases and Sigler from the Eighth Circuit to furnish the applicable standard, and asserts here that such a standard is really no different from the Wickman rendition. Under those cases, however, it need be only foreseeable that death "could" result, not that death was "highly likely." Of course, AIG's position that the versions are indistinguishable means that it is content with the Wickman approach. This leaves us with the question whether the district court erred in holding that, as a matter of law, the autoerotic conduct in this case did not risk death to a "substantial certainty" (or its equivalents). In our opinion, there was no error. The record is silent on whether and how often Todd had previously practiced this conduct without dying. But the materials before the court clearly indicated that the likelihood of death from autoerotic activity falls far short of what would be required to negate coverage under the policy we have before us. In a treatise on autoerotic deaths, the authors observe that 18 "[a]utoerotic or sexual asphyxia refers to the use of asphyxia to heighten sexual arousal, more often than not with a nonfatal outcome." Hazelwood, Dietz & Burgess, Autoerotic Fatalities 49 (1983).9 Similarly, the experts in the Tommie case testified that death from the practice would be considered unusual, see 619 S.W.2d at 202, and the court in the Kennedy case ruled that the risk of death from autoerotic practice is "not of such a nature that [the decedent] knew or should have known that it probably would result in death. Death was not a normal expected result of the behavior." 401 N.W.2d at 845. In addition, an article by Jane Brody in the New York Times of March 27, 1984, observes that, according to researchers, "[i]n a small but significant number of cases" of autoeroticism, "the person dies before he can restore his oxygen supply." We cannot say the trial judge erred in his final ruling on this phase of the case. AIG complains that it was error to grant summary judgment to Mrs. Todd but does not allege that there was a factual dispute that required a trial; it asks only that we reverse and order judgment for AIG on its claim that no death from autoeroticism can be deemed an accident. This left to the judge to decide as a matter of law whether the risk of death from autoerotic 9 "The empirical study of autoerotic fatalities based on submitted cases was initiated by Roy Hazelwood in the Behavioral Science Unit of the FBI Academy at about the same time as Park Dietz was tracing the history of the subject while at Johns Hopkins and the University of Pennsylvania. Ann Burgess, who had been conducting studies of victims of sexual assault, proposed that we collaborate. This book is the product of that collaboration." Hazelwood, Dietz & Burgess, Autoerotic Fatalities, ix. 19 activity in general is sufficient to deny coverage as nonaccidental. As we see it, the trial court ruled correctly. We add this postscript to this part of the case. It may be that all this writing is necessary to affirm this part of the judgment for appellee, but it is doubtful that it should have any longlasting significance for deciding cases like this. The life insurance companies have ample ways to avoid judgments like this one. B. After concluding that appellee was entitled to payment of benefits for Todd's death under the E-Systems accidental death insurance policy, the district court went on to hold that liability for those payments also extends, by virtue of a breach of fiduciary duty, to the GAI Plan itself and to Roberts, the E-Systems plan administrator. The court determined that, "[b]ased on the overwhelming amount of evidence that Mr. Todd's death was "accidental' within the parameters of the policy as drafted this Court finds that the Plan Administrator did abuse his discretion in denying Plaintiff's request for benefits under the policy." Memo.Op. 21. The court noted that the policy included no specific grant of discretionary authority to the administrator to construe plan terms, and it focused upon the claims examiner's apparent reliance, in part, upon a conclusion that Todd engaged in "risky behavior" when no such caveat is stated or explained in the policy. Because appellee did not seek damages greater than the amount of benefits denied, see Massachusetts Mutual Life Ins. Co. v. Russell, 20 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), the district court concluded that both GAI and Roberts were proper parties. The appellants argue that the district court erred in entering judgment against Roberts and the GAI Plan because there was no evidence of a breach of fiduciary duty on their part. We agree. ERISA requires that a fiduciary, such as a plan administrator: [S]hall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; [and] (B) with the care, skill, prudence, and diligence under the circumstances that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.... 29 U.S.C. § 1104(a)(1). The statute then provides that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries ... shall be personally liable to make good to such plan any losses to the plan resulting from such breach...." 29 U.S.C. § 1109(a). However, ERISA also provides that "[a]ny money judgment ... against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity...." 29 U.S.C. § 1132(d)(2). We have already concluded that the administrator made an erroneous decision in denying benefits in this case. We disagree with the district court, however, that the administrator's reading of the policy in this case (through the claims examiner) "is 21 tantamount to rewriting the policy" and that his behavior "constitutes a blatant abuse of discretion" that rises to the level of a breach of fiduciary duty. Memo. Op. 21. Initially, it is important to note that our review of the record reveals no evidence that Roberts, as plan administrator, was personally involved in this case in any way. Moreover, as we discuss above, the claims examiner was required to make some determination of the risk involved in the autoerotic activity in evaluating whether Todd's death resulted from an "accident" within the meaning of the policy. Indeed, the examiner's letter recited language substantially similar to that employed by courts deciding similar cases. We disagree with the conclusion reached, but not with the examiner's basic analytical approach. Every erroneous benefits determination does not rise to the level of a breach of fiduciary duty, and appellee has failed to demonstrate that Roberts breached the statutory standard prescribed by ERISA. Appellants also contend that the GAI Plan, as the employee welfare benefit plan maintained by E-Systems, is not a fiduciary under ERISA because it is only the source of benefits—i.e., a conduit for payment by AIG—and performs no fiduciary functions. Again, although the record is rather sparse on this point, we agree. ERISA defines the term "fiduciary" as follows: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary 22  authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). Given that an ERISA plan as an entity cannot have discretionary authority over itself, we conclude that the GAI Plan does not fall within the statutory definition of a fiduciary and therefore cannot be liable for breach of duty. C. Under ERISA, "the court in its discretion may allow a reasonable attorneys' fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). Such an award, as the statute states, is purely discretionary; the Fifth Circuit reviews the district court's decision only for an abuse of discretion. Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir.1992). The court has generally required, however, that the following five factors be considered in deciding whether to award attorneys' fees to a party under § 1132(g)(1): [A] court should consider such factors as the following: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing party would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' position. Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir.1980). While other circuits have asserted that a presumption exists under ERISA in favor of awarding costs and attorneys' fees, that is not the law in the this Circuit. Harms v. Cavenham Forest Industries, Inc., 984 F.2d 686, 694 (5th Cir.1993). In this case, 23 the district court does not appear to have considered the Bowen factors in making its award. Indeed, the court simply awarded the amounts requested in counsel's affidavit (one third of the amount of judgment, or $40,000, plus an additional $15,000 for this appeal). The appellants object to the award of attorneys' fees in this case on a narrower ground, arguing that the district court abused its discretion in making the award without considering the amount of time expended and the hourly rate. The Supreme Court has endorsed the "lodestar" method for calculating attorneys' fees under federal "fee shifting" statutes. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The standards set forth in that case, the Court explained, "are generally applicable in all cases in which Congress has authorized an award of fees to a "prevailing party.' " Id. at 433 n. 7, 103 S.Ct. at 1939 n. 7. Of course, ERISA does not use the "prevailing party" language in its attorneys' fees provision. In later cases, however, the Supreme Court has consistently emphasized that the lodestar calculation provides an appropriate, objective basis on which to make an initial estimate of the value of a lawyer's services. See, e.g., Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986). And this court has approved the use of the lodestar calculation in ERISA cases, even if it has not been explicitly required. See, e.g., Salley, 966 F.2d at 1017. In an ERISA case, the determination of attorneys' fees 24 requires the district court to apply a two-step analysis. The court must first determine whether the party is entitled to attorneys' fees by applying the five factors enumerated in Bowen. If the court concludes that the party is entitled to attorneys fees, it must then apply the loadstar calculation to determine the amount to be awarded. This calculation is accomplished by multiplying the number of hours expended on the matters at issue in the case by a reasonable hourly rate. See Delaware Valley Citizens' Council, 478 U.S. at 564, 106 S.Ct. at 3097; see also Salley, 966 F.2d at 1017. This two-step analysis in ERISA cases does not permit the award of a percentage of the recovery, such as is customary in contingent fee cases. Therefore, we find that the district court abused its discretion by failing to apply both the Bowen factors and the loadstar calculation. Accordingly, we vacate the district court's order concerning attorneys' fees and remand for a proper determination of the amount, if any, to which appellee is entitled through the application of the two-step analysis articulated above. III. In summary, we hold that Todd's death resulted from a "bodily injury caused by an accident" within the meaning of the accidental death insurance policy at issue; we AFFIRM the district court's judgment on this point. We REVERSE the district court's decision, however, insofar as it holds the GAI Plan and Roberts liable for the payment of benefits to appellee. Finally, we VACATE the court's judgment on attorneys' fees and REMAND for recalculation. 25 It is so ordered. 26 

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544 U.S. 954 CARROLLv.GIURBINO, WARDEN. No. 04-8491. Supreme Court of United States. March 28, 2005. 1 C. A. 9th Cir. Certiorari denied.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) DONETTA MICHELLE BYRD-SANDERS, ) ) Plaintiff, ) ) v. ) Case No. 17-cv-00627 (APM) ) FEDCHOICE FEDERAL CREDIT UNION, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION This matter comes before the court on review of Plaintiff Donetta Michelle Byrd-Sanders’s Complaint. Plaintiff proceeds pro se. Defendant FedChoice Federal Credit Union has moved to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim. See Def.’s Motion to Dismiss, ECF No. 6; Def.’s Mem. in Supp. of Def.’s Mot. to Dismiss, ECF No. 7. The court need not address the merits of Defendant’s Motion, however, as the court dismisses Plaintiff’s Complaint for failure to comply with the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement” of the basis for the court’s jurisdiction; “a short and plain statement” of the pleader’s claim, showing she or he is entitled to relief; and a demand for relief. See Fed. R. Civ. P. 8(a). The purpose of this minimum pleading standard is to give fair notice to the defendant of the claims being asserted, such that the defendant can prepare a responsive answer and adequate defense, as well as determine whether the doctrine of res judicata applies. Butler v. Cal. St. Disbursement Unit, 990 F. Supp. 2d 8, 9 (D.D.C. 2013). Pleadings filed by pro se litigants are held to less stringent standards than those filed by lawyers, but all litigants must comply with the Federal Rules of Civil Procedure. See Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). Plaintiff’s entire Complaint consists of one hand-written page and nine attached pages of receipts. As best the court can discern, the Complaint says: I, Donettta Michelle Byrd Sanders has direct deposit to Fedchoice I Donetta Byrd has had several thousand of dollars taken out of here account were there is a debit card that she told mis [illegible] to stop transaction on several year has past by and no money was put back in the account the is an report number from police department # 150519 Police Report on the account I have spoke with some in the Fraud Department of the police department. I am mentally abuse. I have spoke with my mental doctor about several case with Fedchoice and the [illegible] Postal Federal Credit Union asking for 999,999,999,999,999 to [illegible] Thank you Donetta Michelle Byrd Sand Love Jehovan. See Compl., ECF No. 1 [hereinafter Compl.], at 1. The receipts attached to Plaintiff’s Complaint show that an individual accessed an account in the name of “Donetta Byrd” and made withdrawals on multiple occasions. Plaintiff has written “not my transaction” and/or “not my signature” across each of the attached nine pages that contain copies of withdrawal slips or receipts. See id. at 2– 10. The signature line on each bank slip appears to contain the word “Love” accompanied by an illegible name, in addition to Plaintiff’s name. See id. at 2, 4–10. Drawing all reasonable inferences in Plaintiff’s favor, see, e.g., James v. United States, 48 F. Supp. 3d 58, 62–63 (D.D.C. 2014), Plaintiff appears to be alleging that she suffers from a mental disability and another individual took advantage of her by making withdrawals of cash from her bank account without her consent. The court concludes Plaintiff’s Complaint falls short of satisfying Rule 8’s basic requirements. It provides a “plain” statement of neither the basis for the court’s jurisdiction nor the claim for which Plaintiff seeks relief. It is entirely unclear whether Plaintiff intends to assert 2 federal question jurisdiction, 28 U.S.C. § 1331, or diversity jurisdiction, id. § 1332. Additionally, the allegations do not put Defendant on notice of the basis for the claim against it because it is unclear on the face of the Complaint how the bank perpetrated a wrongful act against Plaintiff. In short, Plaintiff’s Complaint does not contain a “plain statement” of the court’s jurisdiction and material facts, nor conveys the nature of her dispute with Defendant. Therefore, as drafted, the Complaint fails to meet the standard set forth in Rule 8(a) and must be dismissed. See Fed. R. Civ. P. 8(a). An Order consistent with this Memorandum Opinion is issued separately. _____________________________ Date: June 12, 2017 Amit P. Mehta United States District Judge 3 

                                                             11th Court of Appeals                                                                   Eastland, Texas                                                                         Opinion   Gholamreza Gharbi Appellant Vs.                   Nos. 11-01-00020-CR & 11-01-00021-CR  B Appeals from Dallas County State of Texas Appellee   Two different juries convicted Gholamreza (Ray) Gharbi of two different violations of the same protective order.  At the first trial,[1] appellant elected to have the judge assess the punishment; punishment was assessed at confinement for 1 year and a fine of $300, but the imposition of sentence was suspended for 24 months of community supervision.  At the second trial,[2] appellant elected to have the jury assess the punishment; punishment was assessed at confinement for 180 days and a fine of $2,500.  The jury refused appellant=s application for community supervision.  Appellant appeals both convictions.  We affirm.                                                           The First Trial and Appeal The information charged that on or about May 17, 2000, appellant did unlawfully go near the residence of AEVELYN GHARBI,@ a protected individual, at A1242 Dumont Drive, Dallas, Dallas County, Texas,@ in violation of an order issued by the 292nd District Court which ordered appellant not to go Awithin 500 feet of the residence of IVANA GHARBI, to-wit: 1242 Dumont Drive, Dallas, Texas 75086.@  (Emphasis added) The record showed that appellant and Evelyn were the parents of Ivana, that Evelyn and Ivana both resided at 1242 Dumont Drive, that the address was in the City of Richardson, and that the zip code was wrong.                                                           The Second Trial and Appeal The information charged that on or about May 5, 2000, appellant did unlawfully go near the residence of AEVELYN GHARBI, a protected individual, at 1242 Dumont Drive, Richardson, Dallas County, Texas,@ in violation of an order issued by the 292nd District Court which ordered appellant not to go Awithin 500 feet of the residence of IVANA GHARBI, to-wit: 1242 Dumont Drive, Richardson, Dallas County, Texas 75086.@  (Emphasis added) This record also showed that appellant and Evelyn were the parents of Ivana, that Evelyn and Ivana both resided at 1242 Dumont Drive, and that the zip code was wrong.                                                                    Points of Error The first two points of error in the second appeal are identical to the only two points of error in the first appeal.  They read in full as shown: 1.  There is insufficient evidence to sustain the conviction of Appellant for the offense charged in the information.   2.  There is a fatal variance between the allegation in the information as to the protected individual and the proof at trial of who was protected.   There is a third point of error in the second appeal.  In that point, appellant argues that the admission into evidence before the jury of proof of the prior conviction Awas a due process violation.@                                                       Relevant Testimony - First Trial Before the first witness testified, there was a discussion between the trial court and the attorneys about the fact that there were two protective orders, one for the minor child and one for the mother.  The trial court instructed the prosecutor that she was Agoing to have to pick which one...to go on.@[3] The complainant, Evelyn Gharbi, was the first witness.  She testified that she was married to appellant; that they were the parents of a little girl named AIvana@; that she and appellant were involved in divorce proceedings when she got protective orders to protect herself and her child; and that appellant violated those protective orders on May 17, 2000, when she and Ivana lived at 1242 Dumont Drive, Richardson, Dallas County, Texas.  The complainant testified that appellant pulled his car into the driveway, parked the car, and walked directly toward her.  The complainant said that appellant called her Abitch@ and Awhore@ and that he was looking at her like he was ready to Apunch [her] out.@  The complainant said that appellant then seemed to realize that he could not do what he had intended to do because there was a witness and that appellant turned around, ran to his car, and Atook off.@  The complainant testified that she called A911" and that two police officers Aarrived immediately.@  One of them interviewed her, and the other interviewed the witness.  Two police officers testified about their investigation of the incident on May 17.  Appellant took the position that the complainant did not tell the truth to the officers or to the jury.  Officer Jorge Hernandez of the Richardson Police Department testified that, when he saw the complainant that night, she Aseemed to be shaky@ and that Ashe was definitely in fear of something.@  Officer Hernandez said that he and Officer James W. Holley tried to Acalm her down@ and Afigure out what was going on.@  Detective Phillip Casavant of the Richardson Police Department testified that he did the follow-up investigation.  He made sure that there was a protective order, and he took a signed statement from the complainant.  Then he reviewed the report from the two officers, took a statement from the witness who was there when the incident occurred, and obtained an arrest warrant for appellant.  The only other witness at the guilt/innocence phase of the trial was an alibi witness for appellant.  The complainant and appellant were the only witnesses at the punishment phase of trial.  Appellant testified that he did not violate the protective order and that he was not at the complainant=s house on May 17.                                                     Relevant Testimony - Second Trial The complainant, Evelyn Gharbi, was the first witness.  She testified that she was married to appellant and that they had been married Asix and a half years.@  She also testified that they had a Afour year old by the name of Ivana.@  The complainant identified appellant and then testified that they had separated on February 10, 2000; that she applied for protective orders for herself and for their child[4]; that there were several hearings; and that the protective orders were granted on April 13.  The complainant then testified about the incident on May 5, 2000.  The complainant had taken Ivana to visit the complainant=s older child.  They returned to their home at 1242 Dumont Drive in Richardson at 9:45 p.m., and Ivana was in the backseat of the car asleep in her car seat.  The complainant said that appellant pulled his car into the driveway next to her car, that he called her names (Abitch@ and Awhore@), and that it made her feel like he was Aabusing@ her again.  The complainant said that she Agot very upset,@ that she grabbed Ivana, and that she Aran into the house.@  The complainant said that appellant Apulled away@ because he knew that she was going to Acall 911."  The complainant also testified that her zip code was A75080.@  The information and affidavit refer to the zip code as A75086.@   The complainant said that the police officer Aarrived pretty quick@ and that she told him what had happened. The second witness was Officer James W. Holley of the Richardson Police Department.  He testified that he went to 1242 Dumont Drive on May 5 in response to a call from dispatch, that he arrived within five or ten minutes from the time he received the call, and that the complainant was Aextremely upset@ and Acrying.@  Officer Holley testified that the complainant Awas shaking a little bit@ and that she seemed to be Aextremely frightened and scared.@  The third witness, Detective Phillip Casavant of the Richardson Police Department, testified that he did the follow-up investigation on the May 5 offense.  He took the complainant=s sworn statement and obtained the arrest warrant.  Detective Casavant testified that he knew that the zip code for that part of the City of Richardson was A75080" even though the number was hard to read on the protective order.  Detective Casavant also testified that appellant=s driver=s license showed the same street address which was shown on the protective order and that the zip code shown on appellant=s driver=s license was A75080.@ Appellant was the last witness to testify during the guilt/innocence phase of trial.  He testified that he Avacated the premises@ on February 10, and he swore that he did not go there on May 5.  Appellant also testified that the complainant had threatened him a Anumber of times,@ saying that she was going to have him deported if he did not do what she wanted.  On cross-examination, he agreed that he knew the exact address of the house where his wife and daughter were living and that he was Afully aware that address where [his] wife and daughter were living was off limits@ to him.  Appellant also testified that the complainant was Aa liar.@  Appellant agreed that he was telling the jury that his wife was lying when she claimed that he Aviolated the protective order.@                                          Sufficiency of Evidence: Claim of AFatal@ Variance The evidence in both cases shows that there were two protective orders.  One protective order named appellant=s wife, Evelyn, who is the complainant in both appeals.  The other protective order  named their daughter, Ivana.  Both named the home where all three of them had lived.  The court of criminal appeals has discussed the problems involved in variances between the allegations and proof in two recent cases.  See Gollihar v. State, 46 S.W.3d 243, 256-58 (Tex.Cr.App.2001), where the court reaffirmed the Afatal variance@ doctrine and overruled Asurplusage law and its Burrell exception.@[5]         The court then held that Aonly a >material= variance will render the evidence insufficient.@  The court said the question is Awhether the variance...was a >material= one that prejudiced appellant=s substantial rights.@  The court then restated the question as whether the charging instrument (either an indictment or an information) informed the defendant of the charge against him Asufficiently to allow him to prepare an adequate defense at trial@ and was sufficient to keep the defendant from Athe risk of being prosecuted later for the same crime.@  The court held that an Aimmaterial variance is disregarded in a sufficiency of the evidence review.@  See also Fuller v. State, No. 1283-98, 2002 WL 459834 (Tex.Cr.App. March 27, 2002), where the court explained its holdings in Gollihar.  Points of Error Nos. 1 and 2 in both appeals are overruled.                                           The ADue Process@ Claim in the Second Appeal During the punishment phase of the second case, just before the State offered proof of appellant=s conviction in the first case, the record showed the following proceedings: THE COURT: Do you want to state your objection?   [DEFENSE COUNSEL]: Yes, Your Honor.  It=s my understanding that the prosecutor is about ready to offer for identification another case that is pending in this court.[6]  And, that since any alleged violation from that particular case is not a final judgment it should not be considered by this jury or anyone else for any purpose whatsoever.  And, the alleged date of the event preceded...the date of this event.  [For those] two reasons we would object to this jury=s consideration of anything in [the exhibit for the conviction in the first trial].               After that objection was overruled, the State introduced the exhibit which showed that appellant was convicted in a jury trial on November 7 for violation of a protective order and sentenced to Aone year confinement in the County Jail,@ probated for 24 months.  The State made two responses to this point of error.  First, the State argues that appellant has not preserved this claim for appellate review because the objection varies from the claim urged by the point of error.  The State correctly notes that an objection during trial on one theory will not support a point of error urging a different theory.  See, e.g., Johnson v. State, 803 S.W.2d 272, 292 (Tex.Cr.App.1990).  Second, the State argues that appellant failed to show that the trial court erred by admitting evidence of appellant=s prior conviction.  We agree.  Appellant cites no authority in support of this point of error, and TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3 (Vernon Supp. 2002) provides in relevant part: Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant...and...any other evidence of an extraneous crime or bad act that is shown...regardless of whether he has previously been charged with or finally convicted of the crime or act.  (Emphasis added)   The third point of error in the second appeal is overruled.                                                  This Court=s Judgment The judgments of the trial court are affirmed.   BOB DICKENSON SENIOR JUSTICE May 30, 2002 Do not publish.  See TEX.R.APP.P. 47.3(b). Panel consists of:  Arnot, C.J., and Wright, J., and Dickenson, S.J.[7] [1]Cause No. MA00-40172-L in the County Criminal Court No. 10 of Dallas County and No. 11-01-00020-CR on the docket of this court. [2]Cause No. MA00-40217-L in the County Criminal Court No. 10 of Dallas County and No. 11-01-00021-CR on the docket of this court. [3]The protective order which was introduced into evidence is the one which ordered appellant to stay away from the residence of the child.  The information referred to the other protective order. [4]The protective order which was introduced into evidence is the one which ordered appellant to stay away from the residence of the child.  The information referred to the other protective order. [5]Burrell v. State, 526 S.W.2d 799, 802 (Tex.Cr.App.1975). [6]See Footnote No. 1. [7]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

431 B.R. 209 (2010) In re Dennis Earl WIRTH and Mary Elizabeth Wirth, Debtors. No. 09-12428-13. United States Bankruptcy Court, W.D. Wisconsin. June 28, 2010. *210 Daniel R. Freund, Eau Claire, WI, for Debtors. Thomas P. Walz, Office of the U.S. Trustee, Madison, WI, for U.S. Trustee. MEMORANDUM DECISION DENYING CONFIRMATION OF THE DEBTORS' PROPOSED PLAN THOMAS S. UTSCHIG, Bankruptcy Judge. On May 10, 2010, the Court held a telephonic hearing on confirmation of the debtors' proposed chapter 13 plan. The debtors were represented by Daniel R. Freund, and the Standing Chapter 13 Trustee was represented by Staff Attorney Leslie Brodhead Griffith. In his objection to the debtors' proposed plan, the chapter 13 trustee argued that it violated the plain language of 11 U.S.C. § 1325(b)(4) and the requirement that an above-median income debtor must propose a plan with an "applicable commitment period" of not less than five years. The issue is whether, despite the trustee's objection, the Court can confirm a plan proposed by above-median income debtors that lasts for less than 60 months in a temporal sense but nonetheless offers creditors as much money as the chapter 13 means test would require be paid over that time period. The debtors concede that they are "above-median income debtors" as defined by the bankruptcy code. Under 11 U.S.C. § 1325(b)(1)(B), if the trustee or an unsecured creditor objects to confirmation, their plan may only be confirmed if it provides that the debtors will apply all "projected disposable income" received during the "applicable commitment period" toward payments to unsecured creditors. The applicable commitment period is statutorily defined as "not less than 5 years" in the case of above-median income debtors. See § 1325(b)(4)(A). The only statutory exception is that the plan may be for less than three or five years, whichever is otherwise applicable, "but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period." See § 1325(b)(4)(B). According to their Form B22C, the statement of current monthly income and calculation of commitment period and disposable income, the debtors had current monthly income of $8,572.26 and an annualized current monthly income of $102,867.12. The applicable median family income for a family of similar size in Wisconsin was $57,657.00. After calculating their expenses, the debtors indicated on line 59 of Form B22C that they had monthly disposable income of $1,154.67. However, they also claimed $813.24 in "additional expenses" on line 60 of the form. The chapter 13 trustee appears to have accepted the validity of these additional expenses and has not raised an objection to them. However, in his objection to the debtors' plan, the trustee noted that the means test would require at least the payment of $20,485.80 to unsecured creditors, and the trustee's initial plan projections showed payments to unsecured creditors of only $15,870.00. The debtors' proposed plan is to pay $825.00 per month for 54 months, for a total of $44,550.00, which includes the amounts devoted to attorney's fees and secured claims. In the briefs, the debtors *211 indicate that their plan proposes to pay more to unsecured creditors than the amount required under the means test. The trustee no longer appears to contest the debtors' compliance with the monetary requirements of the means test. For purposes of this discussion, the Court will assume that there is no dispute that the debtors propose to pay 60 months' worth of their "projected disposable income" as calculated by the means test over the life of their plan.[1] The only question before the Court is whether they may propose a plan which contemplates paying that amount in less than five years. The debtors have proffered some empirical evidence that plans of 36 or 48 months have a higher likelihood of success than those which stretch for the full five years. For example, in response to discovery requests served by the debtors, the trustee notes that in this district, during the period January 1, 1995, through December 31, 2004, approximately 48.8% of three-year plans were completed and 51.7% of four-year plans were completed.[2] However, during that same period of time, only 36.4% of five-year plans were successfully completed, with more of them ending up dismissed (48.8%, as opposed to 35.5% of three-year plans and 33.9% of four-year plans).[3] The debtors suggest that these statistics support their argument against a temporal mandate of a full five years. The Court agrees that on a logical level, shorter plans seem more likely to succeed simply given that under shorter plans the debtors have less time in which they might default. Indeed, when considering the impact of the "applicable commitment period," one treatise notes: *212 [T]he required commitment period of five years if current monthly income is above the state median income will discourage some debtors who might otherwise file chapter 13 cases. It will also make plans more likely to fail. There will be two additional years, 67 percent more time, in which an unexpected drop in income or emergency expense could occur. Collier on Bankruptcy ¶ 1325.08[4][d] (16th ed). For what it is worth, this Court has long questioned whether the requirements of chapter 13 doom debtors to a repeated cycle of failure, and the trustee's numbers lend credence to the idea that there simply aren't that many "can pay" debtors capable of completing a five-year plan.[4] However, the starting point for statutory analysis is not a discussion of policy but rather the language of the statute. See Ross-Tousey v. Neary (In re Ross-Tousey), 549 F.3d 1148, 1157 (7th Cir.2008) ("When the language is plain, the sole function of the courts is to enforce the statute according to its terms."). In both In re York, 415 B.R. 377 (Bankr. W.D.Wis.2009), and In re Turner, 574 F.3d 349 (7th Cir.2009), the courts observed that above-median income debtors must propose plans of five years in length. For example, in York the court stated that the plan "must be 5 years because the [debtors] are above-median debtors." 415 B.R. at 379. In Turner, the court noted that a consequence of being an above-median income debtor is the requirement to make payments for "not less than" five years. 574 F.3d at 351. Neither case turned on the precise issue before this Court, nor were these observations determinative of the respective cases. It appears that this question has divided other courts in the Seventh Circuit. See In re Nance, 371 B.R. 358, 369 (Bankr.S.D.Ill.2007) (the applicable commitment period is a "temporal concept"); In re Mathis, 367 B.R. 629, 632 (Bankr.N.D.Ill.2007) (the applicable commitment period operates as a multiplier). Nationally, courts have likewise split over the appropriate application of this statutory requirement. See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1630, 173 L.Ed.2d 997 (U.S. 2009); Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Meadows, 410 B.R. 242 (Bankr. N.D.Tex.2009); In re Grant, 364 B.R. 656 (Bankr.E.D.Tenn.2007); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007); Dehart v. Lopatka (In re Lopatka), 400 B.R. 433 (Bankr.M.D.Pa.2009); In re Brady, 361 B.R. 765 (Bankr.D.N.J.2007). The observations in Turner and York appear to be dicta, rather than determinative. Nonetheless, they are illustrative of the problem the debtors face in arguing for a shorter plan period: the statute certainly seems to say on a straight-forward reading that a court may not confirm a plan proposed by above-median income debtors over the objection of the chapter 13 trustee if the proposed applicable commitment period is less than five years. This certainly sounds as if the plan must last for that period of time. It is only when considered in the context of other provisions that a number of courts have noted the actual implication of the statute is "rather murky." Lopatka, 400 B.R. at 436; see also Frederickson, 545 F.3d at 656 (the statutory language is "not at all clear"). After all, if the purpose of the projected disposable income requirement is simply to provide unsecured creditors *213 with a specific amount of money (i.e., 60 months' worth of an above-median income debtor's "disposable income"), confirming a plan that provides that amount more quickly seems consistent with this goal.[5] Indeed, this appears to be one of the primary reasons some courts have adopted the "multiplier" approach, as they have concluded that the requirement of an "applicable commitment period" focuses on the amount of money the debtor must pay under the plan, and that a particular plan length is not required. Lopatka, 400 B.R. at 437. Still, many courts have ruled to the contrary, concluding that the "applicable commitment period" requirement is temporal in nature and mandates that a chapter 13 plan be of a specific duration for a fixed number of years. In Meadows, the court observed: While reasonable minds may differ, this court reads [§ 1325(b)(4)] to present [an above-median income] debtor with two— and only two—alternatives. He may pay his creditors in full, in which event he may adopt any plan period up to a maximum of sixty months. Or, alternatively, if he cannot pay his creditors in full, he must submit to a plan period for a full sixty months. 410 B.R. at 245. As indicated in this statement, the Meadows court rejected the notion that there might be an exception to the "applicable commitment period" for a chapter 13 debtor with no disposable income at all. Admittedly, such scenarios present a more difficult challenge because unsecured creditors will receive the same amount (i.e., nothing) no matter how long the plan lasts. In Kagenveama, the Ninth Circuit ruled that the applicable commitment period requirement did not apply to a debtor with no projected disposable income. 541 F.3d at 876; see also In re Davis, 392 B.R. 132 (Bankr.E.D.Pa.2008) (applicable commitment period did not apply to debtors with no projected disposable income); In re Green, 378 B.R. 30 (Bankr.N.D.N.Y.2007) (if there is no disposable income, plan can last for less than five years). This Court need not determine how to apply § 1325(b)(1)(B) to a debtor who has no monthly disposable income at all. In this case, the debtors are above-median income, have monthly disposable income, and have proposed a plan which is 54 months in length, only a few months less than the term demanded by the trustee. They suggest that allowing them to propose a plan of less than 60 months might give them a better chance of successfully completing their reorganization efforts. Since the trustee has not challenged their calculation of disposable income, they could also make smaller monthly payments for 60 months and set the difference aside in an emergency fund, or simply give themselves a bit more leeway each month going forward. Regardless of the practicalities of what they might do with their money, it appears clear that Congress envisioned that they would be required to submit to a plan which lasted for a full 60 months, not some lesser period, if someone objected to their plan. Despite logical arguments to the contrary, on balance the statutory language simply does not lend itself to the "multiplier" approach. Under § 1325(b)(1)(B), if there is an objection to confirmation, the court may not confirm the plan unless it provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on *214 the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan. [Emphasis added]. The words used in the statute are temporal in nature. In re Heyward, 386 B.R. 919, 923 (Bankr.S.D.Ga.2008). If Congress wanted to create a mere multiplier when constructing the projected disposable income formula, it knew how to draft such an instruction. In re Royal, 397 B.R. 88 (Bankr.N.D.Ill.2008). Indeed, as the Supreme Court observed in Lanning, Congress rarely uses the word "projected" to mean simple multiplication. By contrast, we need look no further than the Bankruptcy Code to see that when Congress wishes to mandate simple multiplication, it does so unambiguously-most commonly by using the term "multiplied." See, e.g., 11 U.S.C. § 1325(b)(3) ("current monthly income, when multiplied by 12"); §§ 704(b)(2), 707(b)(6), (7)(A) (same); § 707(b)(2)(A)(i), (B)(iv) ("multiplied by 60"). Accord, 2 U.S.C. § 58(b)(1)(B) ("multiplied by the number of months in such year"); 5 U.S.C. § 8415(a) ("multiplied by such individual's total service"); 42 U.S.C. § 403(f)(3) ("multiplied by the number of months in such year"). Lanning, at 2472-73. The debtors suggest that the projected disposable income analysis is simple: once their monthly disposable income is calculated pursuant to the means test, the result is multiplied by 60 months to determine the entire amount the means test mandates must be paid to unsecured creditors over the life of the plan. They believe they are free to propose a plan of any duration, as long as they pay that total amount during the pendency of the plan. But if Congress wanted them to simply make 60 months' worth of payments, Congress certainly could have specified a calculation methodology with less emphasis on the temporal requirement. In keeping with the examples noted in Lanning, the statute could have easily provided that projected disposable income is "disposable income, multiplied by sixty" in the case of an above-median income debtor. But that is not what Congress said, and that choice "must have been deliberate." Royal, 397 B.R. at 97. The statute says that the plan may be confirmed over the objection of the trustee only if all of the debtor's monthly disposable income to be received during the applicable commitment period is devoted to the payment of allowed unsecured claims. In fact, if the statutory definition of "applicable commitment period" from § 1325(b)(4) is inserted into § 1325(b)(1)(B), the emphasized portion of the provision would be read to require payment of projected disposable income "to be received in the [not less than five years] beginning on the date that the first payment is due under the plan." This is also consistent with the legislative history of BAPCPA, which indicates that chapter 13 plans will have a "5-year duration" in certain cases, and describes the changes to § 1325(b) as providing that a debtor must make payments "over a period that is not less than five years" if the debtor's income exceeds certain monetary thresholds. See H.R. Rep. 109-31 (Part I), 2005 U.S.C.C.A.N. 88, 146. Further, § 1325(b)(4)(B) provides that the applicable commitment period may be less than the required three or five years only if the plan provides for full payment of all allowed unsecured claims. Admittedly, it is possible to construe § 1325(b)(4)(B) narrowly in order for it to retain some meaning absent a temporal requirement. For example, in Lopatka the court noted that interpreting § 1325(b)(1) to create a minimum temporal requirement "seems at odds" with *215 § 1322(d), which sets a maximum plan length.[6] The court observed: In the case of an above median debtor, such as in the present case, the statute requires that the plan payments not extend for more than five years. § 1322(d)(1). However, in the present matter, the Trustee argues that § 1235(b)(1)(B) also governs plan length and that § 1325(b)(4)(B) helps to set a minimum plan length of "not less than 5 years." Section 1322 does set mandatory requirements for Chapter 13 plans. [The court does] not find that setting a maximum plan length sets a minimum plan length any more than setting a maximum speed limit imposes a minimum speed limit. [Emphasis in original]. 400 B.R. at 438. After declining to interpret the statute as containing a temporal requirement, the Lopatka court construed § 1325(b)(4)(B) to simply mean that "the debtor would not need to pay more than the total value of all allowed unsecured claims." Id. at 439. As indicated previously, however, the language of § 1325(b)(1) seems more conducive to the "temporal" reading, and the language of § 1325(b)(4)(B) is actually consistent with this perspective. Specifically, it provides that the applicable commitment period "may be less than 3 or 5 years ... but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period." Much of this provision would be surplusage if § 1325(b)(1) imposed no temporal requirement. Heyward, 386 B.R. at 923. There is a conceptual problem with the interplay of § 1325(b)(4)(B) and § 1322(d) only if one assumes that Congress did not intentionally draft § 1325(b)(1) to mandate that in the event of an objection, the debtors would be required to perform, as it were, "to the max." That is certainly a logical reading of the statute, and one that seems consistent with Congressional intent.[7] This conclusion does not render § 1322(d) meaningless, as those requirements apply to all proposed plans and to the treatment of all claims, including secured or priority claims which a debtor might otherwise attempt to pay over more than five years but for the cap on plan length found in the statute. Given the temporal language used by Congress and despite logical arguments to the contrary, this Court finds itself constrained to adopt the perspective that the statute means precisely what it appears to say. In light of the trustee's objection, the debtors in this case are obligated to pay their "projected disposable income" over a plan that lasts for five years, and the trustee's objection to confirmation must be sustained.[8] NOTES [1] In Mancl v. Chatterton (In re Mancl), 381 B.R. 537 (W.D.Wis.2008), the district court ruled that the projected disposable income analysis was a "mechanical" one based solely on the means test calculation. The Seventh Circuit subsequently indicated in In re Turner, 574 F.3d 349, 356 (7th Cir.2009), that while the calculation of disposable income under the means test is a starting point, the final calculation may take into consideration certain changes that have occurred in the debtor's financial condition, most notably in that case a "fixed debt" that would disappear because the debtor was surrendering the home associated with the mortgage debt. The Turner court also admonished bankruptcy judges not to engage in "speculation" about the future income or expenses of debtors, but did not establish a bright line as to when consideration of "changes" in a debtor's circumstances drifts into "speculation." Most recently, the Supreme Court rejected the "mechanical" approach to projected disposable income in Hamilton v. Lanning, ___ U.S. ___, 130 S.Ct. 2464, 2478, ___ L.Ed.2d ___ (2010), stating that when a bankruptcy court calculates a debtor's projected disposable income, the court may account for changes in the debtor's income which are "known or virtually certain at the time of confirmation." In this case, the trustee has not suggested that the debtors' post-petition financial circumstances would justify a deviation from the means test calculation. Consequently, that issue is not presently before the Court. [2] The supplied information only related to cases which had been closed as of the dates in question, either through conversion, dismissal, or completion of the plan. [3] The trustee also supplied statistics that related to closed chapter 13 cases confirmed within the "last ten years," which would include the period of time since the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (or "BAPCPA"). BAPCPA added the provisions at issue in this case. Since BAPCPA became effective in October 2005, the Court considers it unlikely that very many of the "completed" five-year cases referenced by these statistics were confirmed under the new provisions relating to the applicable commitment period for above-median income debtors. Nonetheless, the statistics indicate that over the past ten years, only about 31% of five-year plans in this district were successfully completed, compared to 55.1 % of three-year plans and 52.3% of four-year plans. [4] See Marianne B. Culhane & Michaela M. White, Article: Catching Can-Pay Debtors: Is the Means Test the Only Way?, 13 Am. Bankr. Inst. L.Rev. 665, 677 (2005) ("[T]he means test will not catch a lot of can pay debtors ... there are just not that many to catch."). [5] In light of Turner and Lanning, however, perhaps it must be asked how a debtor is able to propose such an early payout at the time of confirmation. [6] Section 1322(d) provides that for above-median income debtors the plan may not provide for payments over a period that is longer than five years, while for below-median income debtors the plan may not last for more than three years. [7] Indeed, the legislative history states that §§ 1322(d) and 1325(b) have been amended to provide for plans of five years' duration in the context of above-median income debtors. See H.R. Rep. 109-31 (Part I), 2005 U.S.C.C.A.N. 88, 146. [8] It appears that after the May 10 hearing, the debtors amended their plan, and the chapter 13 trustee has indicated that he has no objection to it. That plan will be confirmed by separate order. One final observation about the underlying practicalities of the case seems appropriate. In his briefs, the chapter 13 trustee has suggested that the debtors were "required" to propose a 60-month plan, and that is not completely accurate. Section 1325(b)(1) provides that in the event of an objection, the court may only confirm a plan if it meets the requirements of the applicable commitment period. Absent an objection to confirmation, the temporal requirement of § 1325(b)(4) may "be avoided altogether." Meadows, 410 B.R. at 247. The decision to file an objection in a particular case would appear to be within the discretion of the trustee, who must decide whether doing so is in the best interest of unsecured creditors.

Case: 12-40357 Document: 00512085297 Page: 1 Date Filed: 12/17/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 17, 2012 No. 12-40357 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARTURO DELGADO-ALMAZAN, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-1946-1 Before DAVIS, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Arturo Delgado- Almazan 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). Delgado-Almazan has filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Delgado-Almazan’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, * 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: 12-40357 Document: 00512085297 Page: 2 Date Filed: 12/17/2012 No. 12-40357 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 

FILED 5/11/2020 Clerk, U.S. District & Bankruptcy Court for the District of Columbia UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOHN RAYMOND AST, Plaintiff, v. Civil Action No. 1:20-cv-01172 (UNA) WILLIAM BARR, Attorney General, et al., Defendants. MEMORANDUM OPINION This matter, brought pro se, is before the Court on review of the Complaint and Plaintiff’s application for leave to proceed in forma pauperis. The Court will grant the in forma pauperis application and dismiss the case pursuant to 28 U.S.C. § 1915A (2018) (requiring immediate dismissal of a prisoner’s action upon a determination that the complaint fails to state a claim upon which relief may be granted). Plaintiff is a prisoner incarcerated at the Federal Correctional Institution in Ray Brook, New York. Compl. at 1, ECF No. 1. He has sued U.S. Attorney General William Barr, U.S. Bureau of Prisons Director Michael Carvajal, and the LexisNexis Corporation. See generally id. Plaintiff alleges essentially that, by publishing the citation to his appeal without adequate screening, Defendants “are being negligent in their duty to secure the confidentiality” of his sensitive information that is “easily accessible at the [Bureau of Prisons’s] inmate Electronic Law Library (ELL).” Id. at 1. He demands “appropriate sanctions” and an order to amend (to change the name of John Raymond Ast, as a “John Doe”) on appeal citation (53 Fed. appx. 183) 2002 U.S. App. LEXIS 23400, at the F[BOP] and LexisNexis Electronic Law Library, on the contingency that continued disclosure might lead to a serious disruption of the subject inmate’s Administrative Program during 1  confinement, and to seal this complaint pursuant to Fed. R. Civ. P. Rule 26. Id. at 5 (alterations and parentheses in original). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). There is a “strong presumption in favor of public access to judicial proceedings,” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citation omitted), which is rebuttable only during the actual court proceeding and typically on a motion to seal or unseal documents or the case, see United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980) (examining factors). No court can compel suppression or amendment of another court’s public records. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“Every court has a supervisory power over its own records and files . . . .”). As a result, the Court will dismiss this case. An Order will be entered contemporaneously with this Memorandum Opinion. DATE: May 11, 2020 CARL J. NICHOLS United States District Judge 2 

636 F.Supp.2d 95 (2009) Kevin BARRY, Plaintiff, v. UNITED STATES CAPITOL GUIDE BOARD, Defendant. Civil Action No. 04-168 (RBW). United States District Court, District of Columbia. July 21, 2009. *98 R. Scott Oswald, Nicholas Woodfield, Employment Law Group, P.C., Washington, DC, for Plaintiff. Toby R. Hyman, Jean Marie Manning, Office of Senate Chief Counsel for Employment, Washington, DC, for Defendant. MEMORANDUM OPINION WALTON, District Judge. Plaintiff Kevin Barry brings this action against his former employer, the United States Capitol Guide Board ("Board"),[1] alleging, pursuant to the Congressional Accountability Act of 1995, 2 U.S.C. § 1302 (2000),[2] that the Board unlawfully terminated his employment with the United States Capitol Guide Service ("Service") in 2003 in retaliation for the statutorily protected activity he initiated against his employer in 1996. Amended Civil Complaint for Equitable and Monetary Relief and Demand for Jury ("Am. Compl.") ¶¶ 74-81. This matter is currently before the Court on the Board's motion for summary judgment,[3] which the *99 plaintiff opposes.[4] Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and Request for Oral Argument ("Pl.'s Opp'n"). I. BACKGROUND The facts in the light most favorable to the plaintiff are as follows.[5] The plaintiff commenced his employment with the Service on June 1, 1994. Pl.'s Opp'n at 6. After approximately two years with the Service, in March 1996, the plaintiff applied for a promotion to the position of Chief Guide, but he was not selected for the position. Pl.'s Opp'n at 6. As a result of his non-selection, the plaintiff filed an administrative complaint with the Office of Compliance pursuant to § 402(a) of the Congressional Accountability Act of 1995, alleging that his non-selection was the result of the Service's unlawful discrimination against him because he is hearing-impaired. Pl.'s Opp'n at 6. The administrative complaint was eventually dismissed after the plaintiff abandoned prosecution, id. at 6-7, but not before the Board conducted interviews with the plaintiff's co-workers regarding his job performance, which the plaintiff himself initiated, Def.'s Stmt. ¶¶ 18-19. In the interviews, the Board learned for the first time of informal allegations by the plaintiff's co-workers asserting that the plaintiff was engaging in inappropriate behavior. Id. ¶ 19. On June 19, 1996, on the basis of the information obtained from those interviews, the Board provided the plaintiff with a disciplinary memorandum "`setting forth allegations of sexual harassment, gender discrimination and retaliation.'" Pl.'s Opp'n at 7; see Def.'s Stmt., Declaration of Toby R. Hyman ("Hyman Decl."), Ex. K (June 19, 1996 Memorandum Regarding "Serious Misconduct"). The memorandum indicated that the interviews had been conducted in connection with the plaintiff's March 1996 complaint against his employer. Def.'s Stmt., Hyman Decl., Ex. K (June 19, 1996 Memorandum Regarding "Serious Misconduct") at 1. Four months later, in October 1996, the plaintiff requested mediation with his employer, *100 alleging that the June 1996 disciplinary memorandum was prepared in retaliation for his March 1996 complaint. Pl.'s Opp'n at 7. While there is no indication concerning the success of any mediation that occurred, see Def.'s Stmt. ¶¶ 22-23, the plaintiff filed a formal complaint of retaliation against his employer with the Office of Compliance in March 1997, Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 1.7. On July 23, 1997, the plaintiff and the Board executed a settlement agreement that, for unexplained reasons, referred to both of the plaintiff's previous complaints, Pl.'s Opp'n at 7; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5, although the plaintiff had previously abandoned the prosecution of his March 1996 complaint, Pl.'s Opp'n at 6-7. The 1997 settlement agreement stated that the Board could retain the 1996 disciplinary memorandum addressing "`allegations of sexual harassment, gender discrimination or retaliation,'" but could not maintain it in the plaintiff's personnel file "`until and unless [the defendant] receive[d] any additional accusation of sexual harassment, gender discrimination or retaliation against [the plaintiff],'" which were "`verified by a good faith investigation.'" Pl.'s Opp'n at 7-8; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5. In the event an "additional accusation of sexual harassment, gender discrimination or retaliation against [the plaintiff]" was made, the 1997 settlement agreement provided that the Board could then file the 1996 disciplinary memorandum in the plaintiff's personnel file, along with any opposition statement the plaintiff submitted in response to those allegations. Pl.'s Opp'n at 7-8; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5. The plaintiff never submitted any opposition statement to the 1996 disciplinary memorandum. Def.'s Stmt. ¶ 26. By early July 8, 2003, roughly six years after the plaintiff filed his second complaint against the Service and the parties entered into the 1997 settlement agreement, the plaintiff received a memorandum written by Thomas L. Stevens, Director of Visitor Services, recommending the plaintiff's termination from his position as Assistant Director in Charge of Administration. Pl.'s Stmt., Ex. 5 (Stevens' Recommendation for Termination of Employment ("Stevens' Recommendation")) at 1. The memorandum indicated that "[a]fter a thorough investigation and careful consideration" of several incidents related to the plaintiff's contact with "a contract interpreter seeking a permanent position with [a division of] . . . the Guide Service," Stevens would "recommend to the Capitol Guide Board that the [plaintiff's] employment. . . be terminated." Pl.'s Stmt., Ex. 5 (Stevens' Recommendation) at 1. According to Stevens' memorandum, those incidents included "inappropriate conduct" consisting of: (1) "question[ing] [the contractor] about her ethnic background;" (2) "ma[king] stereotypic and insulting comments about minorities;" (3) "question[ing] [the contractor] about her sexual orientation;" (4) "comment[ing] about the sexual orientation of other [division] employees;" (5) "undercut[ing] the best interests of the Guide Service" by recommending to the contractor that she seek employment elsewhere; and (6) "disclos[ing] confidential information about other employees['] [work performance] to [the contractor]." Pl.'s Stmt., Ex. 4 (Stevens' Memorandum to Kevin Barry Regarding Recommendation for Termination of Employment ("Stevens' Memorandum")). Specifically, Stevens reported that the plaintiff "asked [the contractor] whether she is gay or straight and . . . commented that one might have to be gay to work in [his division of the Service];" made racially insensitive remarks *101 about Hispanics after learning the contractor was Hispanic; "tr[ied] to convince [the contractor] not to take the job [with the Service], if offered;" "made various negative comments . . . concerning the performance of guides [who reported to him];" and failed to report alleged comments up the chain that might have had a bearing on a personnel hiring decision as required by his employer. Pl.'s Stmt., Ex. 5 (Stevens' Recommendation) at 1-2. Stevens' memorandum further indicated that he had arrived as his recommendation after interviewing both the contractor and the plaintiff. Id. at 1. It was Stevens' view that the contractor seemed "very credible" in conveying her allegations against the plaintiff and provided "internally consistent" statements to him. Id. On the other hand, Stevens assessed that the plaintiff was not credible based upon his odd reactions and "internally inconsistent" statements about the contractor's allegations. Id. Stevens concluded that the plaintiff had engaged in behavior that violated office policy and was inconsistent with the training that the plaintiff had received. Pl.'s Stmt., Ex. 4 (Stevens' Memorandum). Stevens instructed the plaintiff to take "leave, with pay [] pending the decision of the Board" as to whether Stevens' recommendation to terminate the plaintiff would be approved. Id. On July 16, 2003, the Board's three members, William H. Pickle, Wilson Livingood, and Alan M. Hantman, unanimously upheld Stevens' recommendation "to terminate [the plaintiff's] employment for displaying a lack of good judgment and for engaging in inappropriate conduct." Pl.'s Stmt., Ex. 3 (Termination of Employment Letter). One of the three members of the Board members, Wilson Livingood, indicated that the Board relied upon Stevens' investigation and recommendation as the only analysis of the contractor's allegations, believing that Stevens had made a "good faith investigation" based upon his "every confidence in Mr. Stevens's abilities and professionalism." Pl.'s Stmt., Ex. 2 (February 24, 2006 Deposition of Wilson S. Livingood ("Livingood Depo.")) at 146-47; see also Def.'s Stmt., Declaration of Alan Hantman ("Hantman Decl.") ¶¶ 3-5; id. at Declaration of William H. Pickle ("Pickle Decl.") ¶¶ 4-6. Livingood, who was a signatory to the 1996 disciplinary memorandum the Board issued to the plaintiff, also indicated that during the Board members' discussion as whether to approve Stevens' termination recommendation he informed the other two Board members about the fact that the plaintiff had been reported to have engaged in inappropriate behavior in 1996, i.e., the underlying facts of the 1996 disciplinary memorandum. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135; Pl.'s Opp'n at 11. Livingood noted, however, that the 1996 allegations against the plaintiff were "a small factor" in his decision to approve Stevens' recommendation to terminate the plaintiff's employment. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135; see also Pl.'s Opp'n at 11. Despite disclosing this information to the two other Board members, Livingood insists that he did not provide the Board members with a copy of the memorandum or convey that the plaintiff filed any complaint of discrimination against his employer in connection to the issuance of the memorandum. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 137, 206-08. Since rendering their termination decision, the Board members have provided sworn statements indicating that they would have decided to terminate the plaintiff's employment based solely on the content of Stevens' memorandum regardless of the 1996 allegations. Defs.' Stmt. ¶ 134; id. at Declaration of Wilson Livingood ("Livingood Decl.") ¶¶ 8-9; id. at Hantman Decl. ¶¶ 6-7; id. at Pickle Decl. ¶¶ 7-8. *102 The plaintiff commenced this action challenging the Board's decision to terminate his employment on the ground that it amounted to unlawful retaliation in response to the challenges he initiated in 1996 and pursued until the 1997 settlement agreement was reached. II. STANDARD OF REVIEW To grant a motion for summary judgment under Rule 56(c), this Court must find that "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." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir.1992). However, the non-moving party cannot rely on "mere allegations or denials . . ., but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation and internal quotations omitted). In addition, the non-moving party cannot rely upon inadmissible evidence to survive summary judgment; rather, the "non-moving party must `produce evidence . . . capable of being converted into admissible evidence.'" Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007) (citation and internal quotations omitted). Under Rule 56(c), if a party fails to "establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. at 322-23, 106 S.Ct. 2548. III. LEGAL ANALYSIS The Board argues that it is entitled to summary judgment (1) because the plaintiff cannot meet his burden to establish a prima facie case as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), based upon the evidence in the record, and (2) because he is unable to establish causal connection between his grievance activity that occurred throughout 1996 and 1997 and his termination in 2003. Def.'s Mem. at 9-10. In the absence of direct evidence of retaliation, the plaintiff must establish his claim of retaliation with circumstantial evidence, which is evaluated under the McDonnell Douglas burden-shifting test. Vickers v. Powell, 493 F.3d 186, 194 (D.C.Cir.2007) (citing McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817). Under this test, the plaintiff must first establish a prima facie case of illegal retaliation by "show[ing] that `(1) []he engaged in statutorily protected activity; (2) h[is] employer took an adverse personnel action against h[im]; and (3) a causal connection exists between the two [events].'" Vickers, 493 F.3d at 195 (quoting Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C.Cir.1998)). The burden then shifts to his employer to proffer "`some legitimate, nondiscriminatory [i.e., non-retaliatory] reason' for its actions." Id. at 195 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Upon the presentation of such an explanation by the employer, the McDonnell Douglas framework falls away and the issue is reduced to retaliation vel non; in other words, the question becomes whether the plaintiff has established that it is more likely than not that the employer's proffered reason "is [a] mere pretext and thus a `coverup'" for the employer's true retaliatory motive. Id. at 195 (citing *103 McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. 1817); see also Jones v. Bernanke, 557 F.3d 670, 678-79 (D.C.Cir.2009); Weber v. Battista, 494 F.3d 179, 186 (D.C.Cir. 2007) ("In order to prove [that] the [employer's] explanations for [its] alleged acts of . . . retaliation are pretextual, [the plaintiff] must show `both that the reason [the employer provided] was false, and that . . . [retaliation] was the real reason [for the employer's decision].'") (citation omitted). Of course, the showing of pretext is required regardless of whether the plaintiff attempts to meet his burden through the use of direct or indirect evidence. See Bernanke, 557 F.3d at 678 (noting that "a material dispute on the ultimate issue of retaliation [may be shown] `either directly by [demonstrating] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence'") (citation omitted); Keeley v. Small, 391 F.Supp.2d 30, 39 (D.D.C.2005) (noting that after the McDonnell Douglas framework disappears, "the question is whether [the employer's] proffered reason is a pretext for retaliation," and to this question a Court must probe "all the relevant circumstances in evidence, including the strength of the prima facie case, [and] any direct evidence of retaliation . . ."). In addition to its argument that the plaintiff has not satisfied the prima facie case requirement, the Board also contends that the plaintiff has not offered any evidence to challenge the Board's proffered legitimate, non-discriminatory rationale for terminating his employment. Def.'s Mem. at 40. The plaintiff opposes summary judgment on the ground that the acts about which he complains—the Board's consideration of the 1996 disciplinary memorandum in 2003 breached the 1997 settlement agreement—establishes his claim by direct evidence, abdicates the need for any application of the McDonnell Douglas framework, and entitles him to present his case to a jury.[6] Pl.'s Opp'n at 14-16. The plaintiff therefore does not address the Board's prima facie deficiency argument in his opposition. Id. at 15-16. Moreover, the plaintiff does not provide any evidence to rebut the Board's proffered legitimate, non-retaliatory rationale for terminating his employment. Id. For the following reasons, the Court must grant the Board's motion and award summary judgment to the Board. First, contrary to the plaintiff's contention, any breach of the 1997 settlement is not indicative of retaliation. Second, the 1996 disciplinary memorandum does not amount to statutorily protected activity. And, third, the plaintiff has not provided sufficient direct or indirect evidence that retaliation was more likely than not to have occurred as would be needed to meet his burden and prevail at trial. A. The Plaintiff Has Not Provided Any Direct Evidence of Retaliation "Title VII's anti-retaliation provision makes it unlawful for an employer `to discriminate against [an] employee [] . . . because [the employee] has opposed any practice' made unlawful by Title VII or `has made a charge, testified, assisted, or participated in' a Title VII proceeding." Steele v. Schafer, 535 F.3d 689, 695 *104 (D.C.Cir.2008) (emphasis added and omitted from original) (quoting 42 U.S.C. § 2000e-3(a)). In the plaintiff's opposition filing, he sets forth two theories of where the record contains direct evidence of retaliation: evidence that the Board breached the 1997 settlement agreement, Pl.'s Opp'n at 13, and that Wilson Livingood considered the 1996 disciplinary memorandum in assessing whether the plaintiff's employment should be terminated, id. at 17.[7] For the following reasons, none of this evidence amounts to direct evidence of retaliation or retaliatory motive. 1. The Alleged Breach of the 1997 Settlement Agreement is Not Direct Proof of Retaliation or Retaliatory Motive The plaintiff maintains that the Board's alleged breach of the 1997 settlement agreement amounts to direct proof of retaliatory motive. Pl.'s Opp'n at 13. However, as the Board correctly points out, the agreement neither contained an anti-retaliation clause nor forbade the Board from considering the underlying facts of the memorandum. Def.'s Reply at 4-5. Instead, the agreement merely required that any response to the memorandum (and no response was ever provided by the plaintiff) be considered by the employer in the event there was any future consideration of the memorandum by the employer. Id. Moreover, regardless of whether the 1997 settlement agreement was breached, proof of the alleged breach sheds no light on the mindset of the Board members, cf. Harvey v. Merit Sys. Prot. Bd., 802 F.2d 537, 550 (D.C.Cir.1986) (construing a retaliation claim under the Civil Service Review Act ("CSRA"), 5 U.S.C. §§ 1201-06, 2101a, 2301-05, 3111-12, 3131-36, 3327, 3391-97, 3591-94, 3596, 4311-15, 4507, 4701-06, 5361-66, 5381-85, 5752, 7101-06, 7111-23, 7131-35, 7211, 7501-04, 7511-14, 7521, 7541-43, 7702, 7703 (2006), and finding that "it is of no consequence in [the] disciplinary proceeding whether or not [the employer] was correct in his assessment of [the employee's] activities because even if [the employer] was wrong, improper [retaliatory] motivation was still lacking"), especially considering that no evidence is before the Court that two of the three Board members were aware that any disciplinary memorandum existed memorializing the event, any grievance activity arose out of the disciplinary memorandum or that it resulted in a settlement agreement, Def.'s Stmt., Hantman Decl. ¶ 8; id. at Pickle Decl. ¶ 8. In other words, whether the Board members approved the plaintiff's termination in retaliation for his grievance activity against his employer in 1996 and 1997 cannot be assessed by simply showing that the Board considered disciplinary information that the plaintiff maintains it was forbidden from considering. The ability to reasonably make that assessment is obscured by the fact that the Board also had before it recent disciplinary allegations, which clearly supported its termination decision. The cases cited by the plaintiff for the proposition that the Court is obligated to consider any breach of the 1997 settlement agreement as evidence of retaliation are not to the contrary. See Pl.'s Opp'n at 14. Those cases either involve instances where the employer was alleged to have breached an actual anti-retaliation agreement, see, e.g., Keaton v. Lucent Techs., Inc., No. C2-03-890, *105 2005 WL 1396941 at *5-6 (S.D.Ohio June 13, 2005) (considering the plaintiff's breach of contract claim independently from his Title VII claim, but noting that the claims are interrelated insofar as the plaintiff would have to prove retaliation under Title VII to establish a breach of the agreement), which is distinguishable from the 1997 settlement agreement because it contains no anti-retaliation clause, or are otherwise not instructive, see, e.g., Lowery v. Fed. Express Corp., 426 F.3d 817, 820 (6th Cir.2005) (merely referencing that the district court "elect[ed] to exercise [jurisdiction] over the state law [breach of the anti-retaliation agreement] cause of action"); Hanson v. First Student, Inc., 2002 WL 1402537 at *2 (D.Minn. June 28, 2002) (finding that because the plaintiff's claim for breach of the settlement agreement was sufficiently related to his claim for retaliation the district court could assume jurisdiction over both claims). Accordingly, evidence of the alleged breach of the settlement agreement is not direct proof of retaliation by the plaintiff's prior employer, and any question of fact raised by the alleged breach of the agreement is immaterial to the issue of retaliation vel non. 2. Livingood's Consideration of the 1996 Disciplinary Memorandum is Not Direct Evidence of Retaliation or Retaliatory Motive The plaintiff appears to essentially assume that the 1996 disciplinary memorandum is protected activity, and that Livingood's consideration of it creates an actionable claim of retaliation.[8] However, it is difficult to imagine, and indeed the plaintiff has not adequately explained, how Livingood's consideration of a memorandum authored by the Board and his complaining about the plaintiff's behavior could under any circumstances be viewed as the plaintiff "`oppos[ing] any practice' . . . or. . . `ma[king] a charge, testify[ing], assist[ing], or participat[ing] in' a Title VII proceeding." Steele, 535 F.3d at 695 (citation omitted); accord Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., ___ U.S. ___, 129 S.Ct. 846, 850, 172 L.Ed.2d 650 (2009) ("The term `oppose,' being left undefined by the [Title VII] statute, carries its ordinary meaning: `to resist or antagonize . . .; to contend against; to confront; resist; withstand.'" (internal citation omitted)). To the contrary, the 1996 disciplinary memorandum is the alleged act of retaliation itself and the basis for the plaintiff's subsequent grievance activity.[9]Compare Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir. 2006) (indicating the possibility that a memorandum written by the plaintiff could constitute "a charge" against her employer and amount to a "protected activity" if it alleged discrimination or retaliation), and Crawford, ___ U.S. at ___, 129 S.Ct. at 852-53 (finding that employee participated in protected activity when the employee "reported discrimination in response to the enquiries . . . [of her] employer"), with Clark County Sch. Dist. v. Breeden, 532 *106 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (refusing to find that the employer's "issuance of a right-to-sue letter" amounted to statutorily protected activity because "the employee [took] no part" in its issuance). In any event, even though the Court cannot find that the 1996 disciplinary memorandum itself amounted to protected activity under Title VII, it will nonetheless consider whether Livingood's knowledge of the plaintiff's grievance activity improperly tainted the Board's decision to terminate the plaintiff's employment. 3. Livingood's Consideration of His Independent Knowledge of the Plaintiff's Grievance Activity is Not Direct Evidence of Retaliation or Retaliatory Motive The fault in the plaintiff's position that he has established retaliation by direct evidence lies in his failure to distinguish between, on the one hand, demonstrating that Livingood considered the knowledge he had concerning the plaintiff's grievance activity, and on the other hand, showing that he made his decision based on that activity. Cf. Harvey, 802 F.2d at 549-50 (evaluating the record and finding no evidence that the employer's conduct "was motivated by personal spite or `to get even [with the plaintiff],'" or "[was] motivated by a desire to either punish [the plaintiff] for exercising or deterring him from exercising his . . . right[]" to participate in statutorily protected activity). Mere knowledge by one member of the Board, i.e., Livingood's knowledge, is not enough to demonstrate that the Board undertook its action for retaliatory reasons.[10]See Carpenter v. Fed. Nat'l Mortgage Ass'n, 174 F.3d 231, 236 (D.C.Cir. 1999) ("Although [the plaintiff] infers retaliatory intent from her supervisors' . . . comments, they . . . do not constitute evidence sufficient to allow a reasonable jury to infer that [the plaintiff's employer's] reasons for [providing the plaintiff with a diminished evaluation] were false."); cf. Forman v. Small, 271 F.3d 285, 301 (D.C.Cir.2001) (stating that knowledge, without more, will not establish causation for a prima facie case of retaliation);[11]Stevens v. Nat'l R.R. Passenger Corp., 517 F.Supp.2d 314, 320 (D.D.C.2007) (analyzing *107 retaliation claim under the District of Columbia Human Rights Act, which parallels and relies upon Title VII caselaw, and expressing doubt that "mere knowledge of [the plaintiff's] prior lawsuit alone suffices as a causal connection"). Indeed, to defeat a motion for summary judgment, the plaintiff must submit proof beyond mere knowledge about protected activity and speculation that one or all of the Board members harbored retaliatory animus against the plaintiff because "[c]onclusory allegations unsupported by factual data [do] not create a triable issue of fact." Exxon Corp. v. F.T.C., 663 F.2d 120, 126-27 (D.C.Cir.1980) (quotations omitted). Here, Livingood, a signatory to the 1996 disciplinary memorandum, testified that he considered the fact that the plaintiff was accused of "serious misconduct" in 1996, and that information was "a small factor" in his ultimate decision to approve Stevens' recommendation to terminate the plaintiff's employment. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135-37, 146-47, 206-08; Def.'s Stmt. ¶ 134. Livingood did not testify that his decision was based, in any degree, on the plaintiff's subsequent grievance activity arising out of the 1996 disciplinary memorandum. For example, Livingood did not indicate that he was voting to terminate the plaintiff because the plaintiff contested the 1996 disciplinary memorandum; such evidence would be direct evidence of retaliation. There is a distinction. If anything, the facts presented amount to circumstantial or indirect evidence of retaliation. Illustrating this principle in the context of a retaliation claim brought pursuant to the Civil Service Reform Act ("CSRA"),[12] the District of Columbia Circuit has explained that retaliation is, in laymen's parlance, "any action designed to punish an employee for exercising his protected rights or to deter him from exercising those rights." Harvey, 802 F.2d at 547. Specifically, analyzing a factually analogous scenario to the one presented here, the Circuit Court found that a supervisor's negative assessment about an employee, an assessment made despite the supervisor's knowledge that the employee had earlier written a grievance letter against the supervisor, was not actionable as reprisal. Id. The Circuit observed: Formulating an adverse opinion of an employee, based upon what [the employee] has written and thereby not recommending him for certain jobs, is not the same as taking action against an employee in an attempt to thwart his exercise *108 of his protected rights. If it were, it would mean that one in an executive position can never exercise his considered judgment in making personnel recommendations when asked to do so when that judgment is based on anything even tangentially related to the exercise of protected conduct. Id. at 548 (citation omitted, emphasis added). Applying this reality to the facts in this case, there is no legal proscription against Livingood and the other Board members having formulated unfavorable opinions about the plaintiff in light of the plaintiff's prior treatment of individuals he supervised. Similarly, Livingood and the other Board members could permissibly make employment decisions based on their negative opinions of the plaintiff. What the Board members were prohibited from doing was taking any action against the plaintiff either in response to his grievance activity or that would have frustrated the plaintiff's pursuit of that activity. It inures to the Board's defense that there is no evidence of this forbidden category of behavior in the record. In the final analysis, given that the Board members have asserted "distinct, valid managerial reasons" for terminating the plaintiff's employment, Harvey, 802 F.2d at 547, and knowledge of the plaintiff's appropriate six year old statutorily protected activity can be imputed solely to Livingood prior to the plaintiff's termination, the Court cannot find that a reasonable jury could find that the plaintiff demonstrated that his termination was the product of retaliation or a retaliatory motive by the Board. B. The Board is Entitled to Summary Judgment Because the Plaintiff Has Not Carried His Burden of Demonstrating that Retaliation was More Likely than Not Whether a plaintiff attempts to prove a case of retaliation by direct evidence or circumstantial evidence under the McDonnell Douglas framework, the analysis must always address the ultimate issue of whether it was more likely than not that retaliation was the actual motive for the employer's actions. Jones, 557 F.3d at 678 (citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) ("At that stage [of the case where all that is left is the ultimate issue of retaliation], the only question is whether the employee's evidence creates a material dispute on the ultimate issue of retaliation `either directly by [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" (internal citations omitted)); cf. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12 & n. 4, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (noting in the anti-discrimination context, which mirrors what is required in a retaliation case, that "the plaintiff must show `both that the reason was false, and that discrimination was the real reason'" when an employer has offered a reason for the action being challenged (emphasis in original, citation omitted)). Here, the plaintiff has forgone any attempt to rebut the defendant's proffered legitimate, non-retaliatory rationale for its decision, i.e., that the Board's decision was based upon the allegations of managerial misconduct as articulated in Thomas Stevens' memorandum recommending termination of the plaintiff's employment. See Pl.'s Opp'n at 10. Obviously then, the plaintiff's position is that rebuttal is unnecessary if the McDonnell Douglas analysis is not applicable. However, *109 the McDonnell Douglas framework does apply given that the Court has found that there is no direct evidence of retaliation in the record, and the plaintiff can therefore only avoid summary judgment by "either directly . . . [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Jones, 557 F.3d at 678 (citations and internal quotations omitted). And "if [a plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [defendant's] proffered reason was a pretext for [retaliation], summary judgment must be entered against [the plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C.Cir.1997). Although the plaintiff has abandoned this legal argument, the Court will nonetheless examine the record to determine whether a case of retaliation vel non can be found to exist based on the evidence in the record. One of the three Board members, Livingood, a signatory to the 1996 disciplinary memorandum, testified that he considered the fact that the plaintiff was accused of "serious misconduct" in 1996, and that information was "a small factor" in his ultimate decision to approve Stevens' recommendation to terminate the plaintiff's employment. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135, 146-47, 206-08; Def.'s Stmt. ¶ 134. It is undisputed that the 1996 disciplinary memorandum referenced the plaintiff's March 1996 complaint against his employer, Pl.'s Opp'n at 10, but as a signatory to the memorandum, it must also be assumed that Livingood knew about the memorandum and the plaintiff's March 1996 complaint for six years prior to approving the recommendation to terminate the plaintiff's employment. Yet, there is no evidence that Livingood conveyed to the other two Board members any information regarding any of the plaintiff's 1996 complaints of discrimination against his employer, Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 206-08; Def.'s Stmt., Hantman Decl. ¶ 8; id. at Pickle Decl. ¶¶ 2-3, 8 (indicating that Board member Pickle assumed his position on the Board in 2003 and "[a]t the time that the Guide Board approved the recommendation to terminate Mr. Barry's employment, [Pickle] was unaware that Mr. Barry had ever filed a complaint with the Office of Compliance"), or that a settlement agreement had been reached in 1997, Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 207-08; see also Pl.'s Opp'n at 10. There is also no evidence that Livingood himself considered the grievance activity that followed the 1996 disciplinary memorandum. Therefore, the plaintiff's evidence of the Board's knowledge of his purported statutorily protected activity rests upon the knowledge of one Board member that the plaintiff had, six years earlier, participated in that activity. There is also nothing in the record which contradicts the sworn statements of all the Board members that they relied primarily upon Stevens' investigation and termination recommendation, believing that Stevens had conducted a good faith investigation based upon their "every confidence in Mr. Stevens' abilities and professionalism," Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 146-47; see also Def.'s Stmt., Hantman Decl. ¶¶ 3-5; id. at Pickle Decl. ¶¶ 4-6, and would have made the same decision based on Stevens' recommendation alone, Defs.' Stmt. ¶ 134; id. at Hantman Decl. ¶¶ 6-7; id. at Pickle Decl. ¶¶ 7-8; id. at Livingood Decl. ¶¶ 8-9. The plaintiff's case is impaired by his failure to offer any evidence that disputes the Board members' representations. Cf. Carpenter, 174 F.3d at 236 n. 3 ("If [a plaintiff] successfully shows that a retaliatory motive played a motivating part in an adverse employment decision [in violation of the *110 District of Columbia Human Rights Act], the employer can nevertheless avoid liability by demonstrating by a preponderance of the evidence that it would still have taken the same action absent retaliatory motive.") (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252-53, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1125 (D.C.Cir.1999)). Although the plaintiff appears to contest the thoroughness of Stevens' investigation, Pl.'s Opp'n at 11 (insinuating that it was not enough for the Board to trust Stevens' "good faith" based solely on its "confidence in [his] abilities and professionalism"), the record contains extensive written statements of the interviews Stevens' conducted, Def.'s Stmt., Declaration of David P. Hauck, Exs. A & B, giving the Court no cause to doubt the unsubstantiated allegations of the plaintiff that Stevens' conclusions were not supported by evidence and derived from a good faith investigation. In addition, given that only one of three Board members can be imputed to have known of the plaintiff's statutorily protected activity, and no action was taken for over six years based on this information, the Court cannot make the inferential leap that the employer's conduct "was motivated by personal spite or `to get even [with the plaintiff],'" or "[was] motivated by a desire to either punish [the plaintiff] for exercising or deterring him from exercising his . . . right" six years prior, Harvey, 802 F.2d at 550, in the absence of any evidence that the plaintiff's employment or pursuit of his statutorily protected activity was in any manner impaired during the intervening six years. The passage of time between the date when Wilson Livingood would have first learned of the plaintiff's grievance activity, regardless whether it was in late 1996 or early 1997, and when he voted in favor of terminating the plaintiff's employment in 2003, also counters against a finding that a causal relationship exists between the two events. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Breeden, 532 U.S. at 273, 121 S.Ct. 1508 (citation omitted). Indeed, an adverse employment action taken more than a couple months after an employer's knowledge accrued "suggests, by itself, no causality at all." Id. at 274, 121 S.Ct. 1508. In summary, on the evidentiary record adduced in this case, the Court cannot find that a reasonable jury could conclude that the Board's rationale for terminating the plaintiff's employment was false and a pretext for its true retaliatory motive against the plaintiff resulting from earlier statutorily protected activity. IV. CONCLUSION For the foregoing reasons, the court concludes that the plaintiff has not carried his evidentiary burden of showing that a reasonable fact-finder could find that it was more likely than not that the Board retaliated against him when it terminated his employment. Accordingly, the defendant's motion for summary judgment must be granted.[13] NOTES [1] While the plaintiff originally named two defendants in his complaint, the United States Capitol Guide Service ("Service") and the United States Capitol Guide Board ("Board"), Amended Civil Complaint for Equitable and Monetary Relief and Demand for Jury ("Am. Compl.") ¶¶ 1-2, 5-6, the plaintiff has voluntarily dismissed his claims against the Service, Plaintiff's Notice of Voluntary Dismissal of Defendant Capitol Guide Service Without Prejudice; see also Answer to Amended Complaint ("Answer") ¶ 1, which is "subject to the direction, supervision and control" of the Board, including termination decisions regarding employees, Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and Request for Oral Argument at 6. [2] Although the plaintiff also invokes the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794 (2000), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 (2000), in his complaint, Am. Compl. ¶¶ 75-78, because the record before the Court contains no indication that the plaintiff, who is hearing impaired, was terminated due to any disability, the Court will construe the plaintiff's claim as being brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), -16(a) (2000), which is applicable to the Board through the Congressional Accountability Act of 1995, 2 U.S.C. § 1302(a)(2), and which is also invoked by the plaintiff, see Am. Compl. ¶ 81. [3] Due to a computer oversight, the filing of this 2006 motion was only recently brought to this Court's attention. The Court regrets any inconvenience the parties have experienced as a result of the delay in resolving this motion. [4] The Court considered the following papers in conjunction with this motion: Defendant's Motion for Summary Judgment ("Def.'s Mot."); Defendant's Statement of Points and Authorities in Support of Its Motion for Summary Judgment ("Def.'s Mem."); Defendant's Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment ("Def.'s Stmt."); Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and Request for Oral Argument ("Pl.'s Opp'n"); Plaintiff's Statement of Material Facts in Dispute ("Pl.'s Stmt."); and Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Def.'s Reply"). [5] Only a limited number of facts in this case are actually disputed by the parties, as the plaintiff agrees with most of the facts set forth in the defendant's statement of undisputed material facts, see Pl.'s Opp'n at 6 n. 3; compare Def.'s Stmt., with Pl.'s Stmt. at 3, and, accordingly, the Court will rely upon those representations. To the extent that the plaintiff's statement of materials facts in dispute indicates that disputes between the parties exist, the core of those facts identified by the plaintiff surround the issue of whether a breach of the 1997 settlement agreement between the parties agreement occurred. See Pl.'s Stmt. at 2-3. As the Court explains below, that issue is inconsequential to the resolution of the defendant's motion for summary judgment. The additional disputed facts identified by the plaintiff that are unrelated to the 1997 settlement agreement consist of legal conclusions, uncontroverted or immaterial facts, and the ultimate question in the case, i.e., whether the Board's decision was in response to the plaintiff's participation in statutorily protected activity against the Board. Id. As Federal Rule of Civil Procedure 56(c) indicates, disputes of this type do not warrant a trial on the merits. [6] In maintaining his position that he need not satisfy the elements necessary to establish a prima facie case of retaliation, Pl.'s Opp'n at 8 n. 6, the plaintiff has abandoned what appeared to be his earlier position that interim events, which occurred between the 1997 settlement agreement and the termination of his employment in 2003, supported a finding of continued retaliation, satisfying any need to establish further causation, Am. Compl. ¶¶ 30-55. [7] While the plaintiff advances his argument that he has established retaliation by direct evidence, he never actually identifies the evidence that qualifies as direct evidence. Pl.'s Opp'n at 15-16. Accordingly, the Court must assume in viewing the facts in the light most favorably to the plaintiff that it is the plaintiff's position that both of these theories of retaliation are supported by direct evidence. [8] Viewing the facts in the light most favorable to the plaintiff, the Court infers that Livingood knew of the plaintiff's protected activity, as he was a signatory to the 1996 disciplinary memorandum, which referenced the plaintiff's March 1996 grievance. However, the plaintiff has pointed to no evidence where the two other Board members were aware of this information, or that Livingood relied upon the memorandum (separate from the most recent allegations of misconduct) in making his decision favoring termination of the plaintiff's employment. [9] The plaintiff had the opportunity to respond to the 1996 disciplinary memorandum, an act which would likely have been construed as protected activity, but he opted not to do so. Def.'s Stmt. ¶ 26. [10] Indeed, while proof of an employer's knowledge at the time of an alleged adverse employment decision may satisfy a plaintiff's burden of establishing a prima facie case under McDonnell Douglas, Holcomb v. Powell, 433 F.3d 889, 903 (D.C.Cir.2006) ("A plaintiff may satisfy this third element of a prima facie case by showing `the employer had knowledge of the employee's protected activity, and . . . the adverse personnel action took place shortly after that activity.'"), it does not establish the ultimate issue of retaliation vel non, Jones, 557 F.3d at 677 (stating that retaliation must be established "from all the evidence," including, if applicable, the evidence used to meet the plaintiff's burden of establishing a prima facie case). [11] The plaintiff reads Forman as precluding summary judgment in a case where the plaintiff has proffered direct evidence of retaliation. Pl.'s Opp'n at 15-16. This position is not entirely accurate. A plaintiff who provides direct evidence of retaliation merely bypasses the McDonnell Douglas burden-shifting test, but does not necessarily prevail on the ultimate issue of retaliation vel non, which requires consideration of all the evidence in the record. Jones, 557 F.3d at 677 (noting that after "`the burden-shifting framework disappears, . . . a court reviewing summary judgment looks to whether a reasonable jury could infer . . . retaliation from all the evidence,' which includes not only the prima facie case but also the evidence the plaintiff offers to `attack the employer's proffered explanation for its action' and other evidence of retaliation" (citation omitted)). While the Court finds that the plaintiff has not provided direct evidence of retaliation for the reasons expressed in this opinion, even if he had, the Circuit in Forman referred to the plaintiff having "met his burden" only with respect to establishing his prima facie case, not his overall burden to establish retaliation vel non. 271 F.3d at 299. And, the Circuit's reference to the presence of "direct evidence" in that case related solely to evidence that the adverse employment action was taken in response to the employee's filing of a grievance, which went to the question of whether the plaintiff had established a prima facie case of retaliation. Id. at 300. Accordingly, regardless of whether the plaintiff had provided direct or circumstantial evidence of retaliation, this Court must still evaluate the ultimate issue: whether a showing of retaliation vel non has been made. Jones, 557 F.3d at 677. [12] While agency actions challenged under the CSRA must be reviewed deferentially in favor of the agency, courts have observed that retaliation claims brought under Title VII and the CSRA rely upon the presence or absence of parallel factors of proof. See Neely v. U.S. Postal Serv., 307 Fed.Appx. 681, 685 (3d Cir. 2009) ("[The plaintiff's] claims of discrimination and retaliation under the Merit Systems principles and the CSRA are meritless for the substantially the same reasons that his related Title VII discrimination and retaliation claims lack merit."); Facha v. Cisneros, 914 F.Supp. 1142, 1148 n. 6 (E.D.Pa.1996) ("The CSRA counterpart to Title VII is 5 U.S.C. § 2302(b)(1), which, in essence, imports the antidiscrimination laws of Title VII into federal employees' workplaces."); see also Warren v. Dep't of Army, 804 F.2d 654, 657 (Fed.Cir. 1986) (analyzing retaliation under the CSRA and drawing from principles of the "comparable law" of Title VII jurisprudence). [13] The Court has issued an Order consistent with this Memorandum Opinion.

IN THE SUPREME COURT OF THE STATE OF ARIZONA STATE OF ARIZONA, Petitioner, v. KEVIN ARTICE MILES, Respondent. No. CR-16-0021-PC Filed April 10, 2018 Appeal from the Superior Court in Pima County The Honorable Stephen C. Villarreal, Judge No. CR040238 AFFIRMED AND REMANDED COUNSEL: Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, Tucson, John Pressley Todd, Special Assistant Attorney General, Phoenix, Attorneys for State of Arizona Jon M. Sands, Federal Public Defender, Cary Sandman (argued), Leticia Marquez, Assistant Federal Public Defenders, Tucson, Attorneys for Kevin Artice Miles David J. Euchner (argued), Tucson, Attorney for Amici Curiae Arizona Attorneys for Criminal Justice and Pima County Public Defender Amy Armstrong, Emily Skinner, Phoenix, Attorneys for Amicus Curiae Arizona Capital Representation Project  STATE v. MILES Opinion of the Court JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICE BRUTINEL joined. VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN* concurred. JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK concurred. JUSTICE TIMMER, opinion of the Court: ¶1 A defendant convicted of felony murder is eligible for the death penalty only if he himself killed, attempted to kill, or intended that a killing occur or that lethal force be used, Enmund v. Florida, 458 U.S. 782, 797 (1982), or was a major participant in a felony and acted “with reckless indifference to human life,” Tison v. Arizona, 481 U.S. 137, 158 (1987). We hold that in determining if a defendant acted with “reckless indifference,” the factfinder may consider evidence of the defendant’s diminished capacity. BACKGROUND ¶2 In 1992, Kevin Artice Miles, along with juvenile accomplices Levi Jackson and Ray Hernandez, carjacked Patricia Baeuerlen and drove her to the desert, where Jackson shot and killed her. The next year, a jury found Miles guilty of first degree felony murder, kidnapping, and armed robbery. The trial court sentenced Miles to death. (Arizona juries were not authorized to impose the death penalty until 2002. See A.R.S. §§ 13-751, -752.) After conducting an independent review, this Court affirmed. State v. Miles (Miles I), 186 Ariz. 10, 12 (1996). In doing so, we found that Miles was death-eligible under Tison because he was a major participant in the crimes and had shown a reckless indifference toward human life. Id. at 16–17. The trial court denied Miles’s subsequent request for postconviction relief (“PCR”). ¶3 In 2014, after unsuccessfully pursuing habeas corpus relief in federal court, see Miles v. Ryan (Miles II), 713 F.3d 477, 479 (9th Cir. 2013), Miles initiated his second PCR proceeding. He asserted that relief was * Justice John R. Lopez, IV has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Peter B. Swann, Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter. 2  STATE v. MILES Opinion of the Court warranted under Arizona Rule of Criminal Procedure 32.1(h) because newly discovered mitigation evidence demonstrated that the sentencing court would not have imposed the death sentence had the evidence been known. ¶4 Following an evidentiary hearing, the PCR court granted Miles relief by commuting his death sentence to a life sentence. The court found that at the time of the murder, Miles suffered from “neurochemical, neurocognitive, and neurobehavioral impairments” caused by the combined effects of cocaine withdrawal syndrome and alcohol related neurodevelopmental disorder (“ARND”), which resulted from in utero alcohol exposure. As a result, although Miles was concededly a major participant in the crimes, the court found he was ineligible for the death penalty under Tison because reasonable doubt existed whether he acted with the requisite reckless mental state. ¶5 Alternately, the court ruled that if Miles were death-eligible under Tison, he would nevertheless be entitled to “a resentencing to allow the factfinder to re-weigh the aggravating and mitigating factors” because he sufficiently demonstrated that the sentencing court would not have imposed the death penalty had it known of Miles’s mental-health deficiencies. ¶6 We granted review of two issues raised by the State, both of which are matters of statewide importance: (1) Did the PCR court err by admitting diminished-capacity and voluntary-intoxication evidence in the Tison inquiry? (2) Can newly proffered mitigation ever constitute clear and convincing evidence under Rule 32.1(h) that a sentencer would not have imposed the death penalty? We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12-102(A).1 DISCUSSION ¶7 We review a court’s ruling on a PCR petition for an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). But an abuse of discretion occurs if the court makes an error of law, and we review legal conclusions de novo. Id. 1 Unless otherwise noted, we cite the current versions of statutes and rules. 3  STATE v. MILES Opinion of the Court I. Rule 32.1(h) ¶8 When Miles filed the PCR petition in 2014, Rule 32.1(h) (2000) authorized relief if “[t]he defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.”2 Because Miles challenged only the imposition of the death penalty and not his murder conviction, he was required to prove that “the court would not have imposed the death penalty.” Ariz. R. Crim. P. 32.1(h) (2000). “The court” necessarily refers to the sentencing court as it “imposed the death penalty.” ¶9 The State urges us to narrowly construe Rule 32.1(h) consistent with the “actual innocence” exception to barring successive, abusive, or defaulted federal habeas claims. See Sawyer v. Whitley, 505 U.S. 333, 335–36 (1992). Under that exception, relief is permitted only when a defendant shows by clear and convincing evidence that no reasonable factfinder would have found him eligible for the death penalty. Id. at 336. Miles and amicus Arizona Capital Representation Project assert that Rule 32.1(h) is more expansive, also authorizing relief if the defendant shows by clear and convincing evidence that he is not deserving of the death penalty in light of newly developed mitigation evidence. ¶10 We need not resolve this interpretation dispute. As explained hereafter, we affirm the PCR court’s ruling that Miles is ineligible for the death penalty under Tison and therefore do not address the court’s alternate basis for its ruling. Even under the State’s narrow reading of Rule 32.1(h), a defendant can be granted relief under Rule 32.1(h) for a Tison error. ¶11 In his concurrence, Justice Pelander describes the version of Rule 32.1(h) in effect in 2014 as “perplexing” as it required the PCR court to speculate about how the sentencing judge, now deceased, would have sentenced Miles had the judge known of the new mitigation evidence. See infra ¶¶ 29–30. But Rule 32.1(h) does not refer to the sentencing judge (or since 2002, a jury), and construing the rule as imposing a subjective standard would require a PCR court to speculate about a particular 2 Effective January 1, 2018, Rule 32.1(h) authorizes postconviction relief if “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt, or that the death penalty would not have been imposed.” 4  STATE v. MILES Opinion of the Court sentencer’s ruling — an unmanageable, if not impossible, standard. The better reading is that Rule 32.1(h)’s reference to “the court” means a reasonable sentencer, whether a judge or a jury. II. Admissibility of evidence in Tison inquiry ¶12 The State argues that Miles did not satisfy his Rule 32.1(h) burden because evidence he suffered from cocaine withdrawal syndrome and ARND was inadmissible to refute the mental state required for a Tison death-eligibility finding. Contrary to Miles’s assertion, the State adequately preserved this issue. ¶13 The Eighth Amendment prohibits “all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” Tison, 481 U.S. at 148 (internal citation and quotation marks omitted). Before a defendant convicted of first degree felony murder can be sentenced to death, an Enmund/Tison finding must be made to ensure that this sentence is proportionate to the defendant’s “personal responsibility and moral guilt.” Enmund, 458 U.S. at 801; see also Tison, 481 U.S. at 149. The Enmund/Tison inquiry does not concern the guilt or innocence of the defendant but acts as an Eighth Amendment sentencing restraint. See State v. Ring, 204 Ariz. 534, 563 ¶ 98 (2003). Thus, the inquiry is made postconviction during the trial’s aggravation phase. See A.R.S. § 13-752(P); State v. Forde, 233 Ariz. 543, 566 ¶ 89 (2014). ¶14 The culpable reckless mental state under Tison, the inquiry at issue here, is a subjective one. See Forde, 233 Ariz. at 567 ¶ 96. The State must prove that the defendant “subjectively appreciated that [his] acts were likely to result in the taking of innocent life.” State v. Lynch, 225 Ariz. 27, 36 ¶ 43 (2010) (internal quotation marks omitted) (quoting Tison, 481 U.S. at 152). Because evidence of diminished capacity and voluntary intoxication is relevant to deciding whether a defendant subjectively appreciated that his acts were likely to result in another’s death, this evidence is admissible in the Tison inquiry if otherwise admissible under our evidentiary rules. Cf. A.R.S. § 13-751(B) (providing that the rules of evidence apply in the aggravation phase to determine existence of aggravating circumstances); State v. Schackart, 175 Ariz. 494, 502 (1993) (deciding that the state’s expert opinion evidence that no examiner could accurately diagnose a defendant’s mental state at the time of the murder was relevant to rebut the defense expert’s testimony that the defendant convicted of felony murder did not act with the mental state required by Enmund). 5  STATE v. MILES Opinion of the Court ¶15 The State argues that using diminished-capacity and voluntary-intoxication evidence, like that relied on by the PCR court here, to find that a defendant lacked the culpable mental state required by Tison frustrates legislative intent and leads to inconsistent and illogical results. ¶16 In State v. Mott, 187 Ariz. 536 (1997), we recognized that the legislature, not this Court, is responsible for promulgating the criminal law. Id. at 541. Because the legislature had purposely declined to adopt a 1962 Model Penal Code provision that permitted a diminished-capacity defense to a criminal charge, we concluded that “Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.” Id. at 540–41; see also A.R.S. § 13-502 (allowing only mental disorders or defects that constitute legal insanity as a defense to criminal responsibility); Clark v. Arizona, 548 U.S. 735, 762 (2006) (“Mott is meant to confine to the insanity defense any consideration of characteristic behavior associated with mental disease.”); State v. Leteve, 237 Ariz. 516, 524 ¶ 20 (2015) (“The legislature has not provided for, and this Court has refused to allow, an affirmative defense of diminished capacity.”). ¶17 The State recognizes that Mott and its progeny concerned guilt-phase evidence but nevertheless argues that our reasoning there logically extends to preclude diminished-capacity evidence in the Tison inquiry. It points out that the legislature has not authorized a diminished- capacity defense to any allegation made in the aggravation phase, including a claim that Tison is satisfied. And in capital cases, the legislature has provided for broad admission of mental-health evidence in the penalty phase and adopted a diminished-capacity mitigating factor, reflecting its intent that diminished-capacity evidence be considered only as mitigation. See A.R.S. § 13-751(G)(1) (listing as a mitigator that the defendant’s capacity to appreciate the wrongfulness of his conduct or conform his conduct to legal requirements was “significantly impaired”); id. § 13-752(G) (authorizing the defendant to “present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency”). Following Mott’s reasoning, the State asserts, because the legislature has not authorized consideration of diminished-capacity evidence for the Tison inquiry, the courts cannot consider it. ¶18 We disagree. Although the legislature is tasked with enacting the criminal laws in Arizona, those laws are subject to constitutional restraints, including the Eighth Amendment. See U.S. Const. art. VI; Ariz. Const. art. 2, § 3. The United States Supreme Court devised the Enmund/Tison inquiry to protect the Eighth Amendment rights of a 6  STATE v. MILES Opinion of the Court defendant convicted of capital felony murder. See Ring, 204 Ariz. at 564–65 ¶ 101 (discussing how Enmund/Tison, as a “judicially crafted instrument used to measure proportionality between a defendant’s criminal culpability and the sentence imposed,” is conceptually distinct from finding the statutory criminal elements of a crime). As such, its scope is not defined by legislative action but by judicial application of Eighth Amendment principles. Cf. Enmund, 458 U.S. at 797 (“Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one . . . who aids and abets a felony in the course of which a murder is committed . . . .”). ¶19 The State relatedly argues that “there is no persuasive reason” to preclude diminished-capacity evidence to defend the mental state attendant to a criminal charge but permit it in the Tison inquiry, and doing so undermines legislative authority. This argument again ignores the distinction between the elements of a crime, which the legislature has authority to define, and the elements of the Tison inquiry, which are directed by the Eighth Amendment. The legislature’s choice to preclude a diminished-capacity defense to a felony murder charge cannot restrict application of the Eighth Amendment in sentencing a defendant convicted of that charge. ¶20 The State also argues that permitting a diminished-capacity defense in the Tison inquiry could be illogical if the predicate felony underlying the murder conviction required proof of a greater mental state, like knowingly or intentionally (as did the kidnapping and armed robbery charges of which Miles was convicted). But the legislature’s decision to reject a diminished-capacity defense in the guilt-phase does not logically require the courts to ignore diminished-capacity evidence when deciding whether a defendant subjectively appreciated that his acts were likely to result in a victim’s death, making him eligible for the death penalty. ¶21 We are also unpersuaded that we should reach a different conclusion because consideration of diminished-capacity evidence in the Tison inquiry could result in a de facto penalty phase, confuse a jury, and hinge death eligibility on inexact mental-health evidence. None of these concerns supports categorically precluding mental-health evidence that bears on an inquiry necessary to protect against an Eighth Amendment violation. Notably, trial courts can exclude mental-health evidence that is not relevant or reliable or that would result in juror confusion. See Ariz. R. Evid. 401–03, 702–03. 7  STATE v. MILES Opinion of the Court ¶22 The State next argues that the PCR court violated A.R.S. § 13- 503 (1994) by admitting evidence of voluntary intoxication to negate the Tison culpable mental state. (The State equates cocaine withdrawal syndrome with voluntary intoxication. We do not decide that issue here but assume the State is correct.) Section 13-503 currently provides: Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol, an illegal substance under chapter 34 of this title or other psychoactive substances or the abuse of prescribed medications does not constitute insanity and is not a defense for any criminal act or requisite state of mind. (emphasis added); see also State v. Payne, 233 Ariz. 484, 517 ¶ 149 (2013) (stating that § 13-503 prohibits the jury from using voluntary intoxication to negate the state of mind needed to prove an aggravating circumstance); State v. Boyston, 231 Ariz. 539, 550 ¶¶ 52, 54 (2013) (holding that the trial court did not err by excluding voluntary-intoxication evidence to challenge premeditation). ¶23 We must apply the version of § 13-503 in effect at the time of the crimes. See State v. Moody, 208 Ariz. 424, 466 ¶ 191 (2004) (“[T]he Ex Post Facto Clauses of the United States and Arizona Constitutions require that the version of § 13-503 in effect at the time the crimes were committed be applied.”). In 1992, § 13-503 was much narrower, addressing only voluntary intoxication as a defense to the crime charged: No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act. A.R.S. § 13-503 (1989) (emphasis added). Because the Tison finding does not address whether a defendant’s acts were “less criminal,” the version of § 13-503 in effect at the time of the crimes here did not preclude evidence of voluntary intoxication to rebut evidence of the Tison mental state. We leave for another day whether the current version of § 13-503 can preclude such evidence. 8  STATE v. MILES Opinion of the Court ¶24 The PCR court did not err by relying on diminished-capacity and voluntary-intoxication evidence in deciding that the court would not have found Miles death-eligible under Tison had it known of this evidence. As the State expressly acknowledged at oral argument here, it does not challenge the sufficiency of this and other evidence to support the PCR court’s finding, and we therefore do not address that issue. Likewise, and because the State did not raise an objection under Arizona Rule of Evidence 702 before the trial court or this Court, we do not address Judge Swann’s concurring opinion. Finally, because we affirm the PCR court’s Tison ruling, we need not address either the efficacy of the court’s alternative ruling that the trial court would not have imposed the death penalty had it known of Miles’s mental-health deficiencies or the State’s argument that newly proffered mitigation evidence can never constitute clear and convincing evidence under Rule 32.1(h) that a sentencer would not have imposed the death penalty. CONCLUSION ¶25 We affirm the PCR court’s order commuting Miles’s death sentence to a life sentence. We remand to that court to clarify that the life sentence is one with the possibility of release after twenty-five years, the only type of life sentence available at the time of the crimes. See A.R.S. § 13-703(A)(1) (1989). 9  STATE v. MILES VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring: ¶26 I concur with the Court’s analysis and holding that, based on the law applicable to this case, evidence of diminished capacity and voluntary intoxication (assuming cocaine withdrawal syndrome qualifies as such) could support a finding that a felony-murder defendant like Miles lacked the culpable mental state of “reckless indifference” constitutionally required for death-eligibility under Tison v. Arizona, 481 U.S. 137, 158 (1987). I also agree that the PCR court did not abuse its discretion in overturning Miles’s death sentence, supra ¶¶ 7, 24, assuming the evidence on which that ruling was based was admissible and sufficient (points the State does not now contest), and assuming the law authorized (or required) the PCR court to grant such relief. See A.R.S. § 13-4231(1) (authorizing post-conviction relief when “the sentence was in violation of the Constitution of the United States”); Ariz. R. Crim. P. 32.1(a) (same). ¶27 I write separately because I find problematic the rule under which the PCR court granted relief, Arizona Rule of Criminal Procedure 32.1(h). That rule, which has no constitutional or statutory counterpart, was added by this Court in 2000. As then adopted, and as applicable to the PCR proceeding here, the rule allows a petitioner to obtain post-conviction relief if he demonstrates by “clear and convincing evidence that the facts . . . would be sufficient to establish that no reasonable fact-finder would have found the defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.” Ariz. R. Crim. P. 32.1(h). Thus, this rule essentially permits a new claim of “actual innocence” or, if a death sentence is challenged, a claim of “actual innocence of the death penalty.” The Rule 32 committee’s petition (R-97-0006) that prompted this rule change did not include or propose the final phrase, “or that the court would not have imposed the death penalty.” Id. Nonetheless, that language was added by this Court without circulation for comment and without explanation of its meaning or practical application. ¶28 Miles never argued that “no reasonable fact-finder would have found [him] guilty of the underlying offense beyond a reasonable doubt,” id., let alone that the 1993 jury would not have found him guilty. Thus, the PCR court’s alternative rulings, see supra ¶¶ 4–5, are supportable, if at all, only under the rule’s last phrase, that on considering the new facts 10  STATE v. MILES VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring “the court would not have imposed the death penalty.” Ariz. R. Crim. P. 32.1(h). Two points regarding that text are noteworthy and raise serious concerns about the standard for relief under the rule. First, “the court” referred to in Rule 32.1(h) apparently means the sentencing court that imposed the death penalty, here the late Judge William Tinney in 1993.3 My colleagues seemingly agree. See supra ¶ 8. ¶29 Second, the rule requires a capital defendant to show, and the PCR court to find, by clear and convincing evidence that the sentencing court “would not have imposed the death penalty.”4 Ariz. R. Crim. P. 32.1(h) 3 The PCR court found that “the court” in Rule 32.1(h) means either the sentencing court or this Court because in this case, we independently reviewed the aggravation and mitigation findings and the propriety of the death sentence on direct appeal. State v. Miles, 186 Ariz. 10, 19–20 (1996). But because this Court has never “imposed the death penalty,” Ariz. R. Crim. P. 32.1(h), and is not authorized to do so, the “court” referred to in the rule must mean the sentencing court. 4 This language in our rule materially differs from the arguably more sensible, and workable, language used in other states’ parallel provisions. See, e.g., Cal. Penal Code § 1509(d) (providing that “[a]n initial petition which is untimely . . . shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the sentence” (emphasis added)); )); N.C. Gen. Stat. Ann. § 15A-1415(c) (providing that “a defendant at any time after verdict may . . . raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, . . . and which has a direct and material bearing upon the defendant’s eligibility for the death penalty or the defendant’s guilt or innocence” (emphasis added)); Ohio Rev Code Ann. § 2953.21(A)(1)(a)(b) (providing that “‘actual innocence’ means that, had the results of the DNA testing . . . been presented at trial, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the person's case . . ., no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner 11  STATE v. MILES VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring (emphasis added). Thus, the rule’s text does not authorize relief based merely on a PCR court’s finding that the sentencing judge might not have, or probably would not have, imposed the death sentence had the new evidence been available and considered by him. Cf. Ariz. R. Crim. P. 32.1(e) (authorizing post-conviction relief when “newly discovered material facts . . . probably would have changed the verdict or sentence” (emphasis added)). ¶30 This formulation is perplexing on several levels. Based strictly on the rule’s text, its application is impractical and necessitates sheer speculation. As applied here, Rule 32.1(h) on its face compelled the PCR court, a judge who was not involved in the underlying trial or sentencing process, to speculate as to the decision that the trial court (a different, and now deceased, judge) would have made decades earlier, and to embrace that speculation on a clear-and-convincing standard.5 Regardless of the persuasive force of the new evidence on which the PCR court’s ruling was based, any determination that the sentencing court, based on that evidence, “would not have imposed the death penalty,” Ariz. R. Crim. P. 32.1(h), is purely conjectural. ¶31 Though not disagreeing that Rule 32.1(h)’s wording lends itself to such an “unmanageable, if not impossible, standard,” the Court concludes that “[t]he better reading is that Rule 32.1(h)’s reference to ‘the court’ means a reasonable sentencer, whether a judge or a jury.” Supra ¶ 11. But even if that objective standard can reasonably be inferred from the rule’s text, it does not alleviate all concerns—to some extent the relief granted by the PCR court here depended on its subjective view of the new evidence presented in the Rule 32 hearing, with no way of knowing whether the sentencing judge, had he been presented with the same evidence and arguments in 1993, would have viewed that evidence the same way and found Tison’s “reckless indifference” requirement lacking. Because the State did not present these issues, see supra ¶ 6, and does not specifically challenge the PCR court’s ruling on this particular ground, however, I join the Court’s resolution of the other issues raised. was found guilty of committing and that is or are the basis of that sentence of death” (emphasis added)). 5 Miles was sentenced to death by the trial court, before the Arizona Legislature in 2002 prescribed jury sentencing in capital cases. See A.R.S. §§ 13-751, -752. 12  STATE v. MILES VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring ¶32 The current, restyled version of the rule (effective Jan. 1, 2018) allows relief when the petitioner demonstrates that “no reasonable fact- finder would find the defendant guilty beyond a reasonable doubt, or that the death penalty would not have been imposed.” Ariz. R. Crim. P. 32.1(h). This new version might be read to impose a more objective, workable standard of review that requires the PCR court to determine whether any reasonable fact-finder would have imposed the death penalty, rather than whether a specific individual would have done so in the past. The new version implicitly acknowledges permissible variations in results among different fact-finders and confines the inquiry to the objective limits of those variations, while the old version, read literally, arguably required the PCR court to imagine subjectively the decision that a specific judge supposedly would have made had the new scientific evidence been available and presented to that judge at sentencing.6 ¶33 However problematic the former standard, the State has not raised the issue and we must resolve any ambiguities in favor of lenity. See State v. Pena, 140 Ariz. 545, 549–50 (App. 1983) (“[W]here the statute itself is susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant.”), approved and adopted by 140 Ariz. 544 (1984); cf. A.R.S. § 13-104 (stating that penal statutes are not to be “strictly construed,” but rather “construed according to the fair meaning of their terms to promote justice and effect the objects of the law”). ¶34 One final concern relates to the apparent overlap between Rule 32.1(e) and Rule 32.1(h) and the prospect of capital defendants avoiding the requirements of the former by relying solely on the latter, as Miles and the PCR court did here. As the Court observes, Miles sought relief under Rule 32.1(h) based on “newly discovered mitigation evidence.” Supra ¶ 3. That claim falls squarely within Rule 32.1(e), which specifically 6 Although the current version of Rule 32.1(h), as “restyled” and effective January 1, 2018, omits any reference to “the court” and perhaps is preferable to the 2000 version of the rule that applies here, any substantive differences between the two are not patently obvious. Recently, our Chief Justice appointed a new “Task Force on Rule 32” to review the rule as a whole and “identify possible substantive changes that improve upon the objectives of Rule 32 and the post-conviction relief process.” Supreme Court of Arizona, Admin. Order No. 2018-07 (Jan. 24, 2018). In my view, Rule 32.1(h) is a prime candidate for the Task Force’s consideration. 13  STATE v. MILES VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and JUDGE SWANN, concurring allows post-conviction relief when a defendant shows “newly discovered material facts probably exist and those facts probably would have changed the verdict or sentence.” See also A.R.S. § 13-4231(5) (same). Like claims under Rule 32.1(h), claims under Rule 32.1(e) are excepted from preclusion. Ariz. R. Crim. P. 32.2(b). Unlike Rule 32.1(h), however, Rule 32.1(e) requires a defendant to also show that he “exercised due diligence in discovering these facts,” a showing Miles did not have to make. See also A.R.S. § 13-4231(5)(b). See generally State v. Amaral, 239 Ariz. 217 (2016); State v. Bilke, 162 Ariz. 51 (1989). ¶35 The comment to Rule 32.1(h) states that a claim under that rule “is independent of a claim under Rule 32.1(e),” and that “[a] defendant who establishes a claim of newly discovered evidence does not need to comply with the requirements of Rule 32.1(h).” Nonetheless, using Rule 32.1(h) as an end-run around Rule 32.1(e)’s due-diligence requirement when, as here, relief is sought decades later based solely on newly discovered mental-health evidence and expert opinions, seems at odds with interests of finality and victim rights. See Ariz. Const. art. 2, § 2.1(A)(10) (“To preserve and protect victims’ rights to justice and due process, a victim of crime has a right” to a “prompt and final conclusion of the case after the conviction and sentence”); A.R.S. § 13-4401(19) (defining “victim” to include a murder victim’s relatives “or any other lawful representative of the person”). For the foregoing reasons, but with the reservations noted, I concur in the Court’s opinion and result. 14  STATE v. MILES JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK, concurring JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK, concurring: ¶36 I concur fully with the Court’s legal holding that after- acquired evidence of diminished capacity is properly considered in the Tison inquiry if it would otherwise be admissible under the rules of evidence. And based on the issues the State chose to present, I also concur in the result. ¶37 I write separately because the record reveals that the evidence of cocaine withdrawal syndrome and ARND presented to the PCR court was, in my view, improperly admitted under Arizona Rule of Evidence 702. If the State had not affirmatively waived any challenge on that ground, I would not join in the result. ¶38 The expert opinions that resulted in the PCR court’s findings of fact were based on the witnesses’ experiences coupled with medical scholarship that is generally accepted in the scientific community. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Until 2012, this would have been more than sufficient to render the opinions admissible in Arizona. Indeed, under Logerquist v. McVey, even general acceptance of the science would not have been required. 196 Ariz. 470, 480 ¶ 30, 485–86 ¶ 47, 490 ¶ 62 (2000). But in 2012, this Court discarded Logerquist and Frye in favor of the federal approach to expert testimony now embodied in our Rule 702.7 ¶39 Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 7 The State did not object to the introduction of the evidence, and the trial court therefore was not required to reject it. 15  STATE v. MILES JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK, concurring (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. ¶40 I have no quarrel with the qualifications of the defense experts under subsection (a), nor do I doubt the merit of the science surrounding cocaine withdrawal syndrome and ARND under subsections (b) and (c). But the record reveals nothing to suggest a reliable application of scientific methods to connect cocaine withdrawal syndrome and ARND to the facts of this case. ¶41 Logerquist rejected the trial court’s role as a “gatekeeper” with respect to behavioral-health evidence. 196 Ariz. at 490 ¶ 59. But Rule 702 now demands that the court fulfill a gatekeeping role, and this Court has affirmed that “the rule by its terms forecloses the approach of leaving challenges to an expert’s application of a methodology exclusively to the jury. Such challenges are instead a proper subject of the trial court’s gatekeeping inquiry.” State v. Bernstein, 237 Ariz. 226, 229 ¶ 13 (2015). In Bernstein, we adopted a flexible approach to the inquiry and cautioned that the application of a methodology need not be flawless to be admissible. Id. at 229–30 ¶¶ 14–18. ¶42 Here, application of the brain science underlying cocaine withdrawal syndrome and ARND to the facts of this case was not merely imperfect — it was completely lacking. Expert conclusions concerning whether Miles, at the moment of the murder, “subjectively appreciated that [his] acts were likely to result in the taking of innocent life” amounted to speculation, not science. State v. Lynch, 225 Ariz. 27, 36 ¶ 43 (2010) (quoting Tison, 481 U.S. at 152). To be sure, the PCR court, not a jury, acted as the factfinder in this case. But the Rules of Evidence apply equally to such proceedings, and without evidence of a reliable methodology that could bear on the Tison inquiry, on the facts of this case the evidence should not have been admitted. 16  STATE v. MILES JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK, concurring ¶43 The record amply supports findings that (1) cocaine withdrawal syndrome exists, (2) Miles has ARND and was addicted to cocaine, (3) Miles may have suffered from the absence of cocaine in his system at the time of the murder, and (4) a known neurochemical mechanism confirms that cocaine withdrawal can affect an individual’s perceptions and understanding of his actions, particularly if he has ARND. Yet the Tison question is not whether chemical dependence interfered with Miles’s dopamine system in a way that could have altered his perceptions and judgment; the question is whether Miles actually failed to appreciate that his acts were likely to result in the taking of innocent life at the relevant time. Nothing in the expert reports or testimony identified a methodology by which an understanding of the mechanism by which cocaine affects the brain can answer the Tison question on these facts. ¶44 By calling attention to this concern, I do not suggest that the court should intrude upon the factfinder’s role in weighing admissible evidence. My observations relate only to the bare admissibility of the evidence under Rule 702(d). That rule laudably demands that the forensic use of scientific evidence comport with scientific principles. A body of cutting-edge science that describes a phenomenon is alluring fodder in a legal proceeding. But even a thorough and reliable scientific understanding of a phenomenon does not always translate to admissibility under Rule 702(d), because an abstract science sometimes lacks a method that permits its application to the facts of a case in a manner that allows a scientifically valid conclusion about the issue that a court is required to decide. In this case, no method was identified that would allow an expert or a factfinder to answer the single question posed by Tison — instead, the scientific evidence only offered an informed basis for speculation about the issue before the court. This is exactly what Rule 702(d) is designed to prevent.8 8 I recognize that Rule 702 permits the use of expert testimony to educate the factfinder about general scientific principles without application to the facts. State v. Salazar-Mercado, 234 Ariz. 590, 592–93 ¶¶ 6–11 (2014). But in this case, the expert testimony related directly to the facts of the case, the experts opined on the facts and the ultimate issue in the case, and Rule 702(d) therefore applies. When scientific evidence is used to justify factual findings, adherence to Rule 702(d) is critical, because the aura of science without valid application poses an extreme risk of prejudice. 17  STATE v. MILES JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and JUSTICE BOLICK, concurring ¶45 To reach the conclusion that Miles is entitled to relief under Tison, as the PCR court did, one must either accept the proposition that every person who has ARND, is addicted to cocaine, and experiences a withdrawal is unable to appreciate the consequences of his actions; or rely on a witness’s “experience” as a means of translating the abstract science into a conclusion about the defendant’s state of mind. The former view is not supported by the evidence in this case — no expert testified that cocaine withdrawal syndrome affects all individuals, or even all individuals with ARND, in a uniformly debilitating way. (Of course, if such a proposition were accepted, then cocaine withdrawal would automatically preclude the death penalty in every case in which a defendant with ARND acts while withdrawing from the drug.) And the latter view does not satisfy the requirements of Rule 702(d). While experience is sufficient to qualify the expert, it is not sufficient to qualify the opinion without a reliable methodology. ¶46 Because the State waived its challenge to the admissibility of the evidence, this Court is constrained to accept the PCR court’s finding that under Tison the court would not have imposed the death penalty. ¶47 For the foregoing reasons, I concur in the opinion and the result. 18 

J-A13023-20 2020 PA Super 167 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KYLE VO : : Appellant : No. 1422 EDA 2019 Appeal from the PCRA Order Entered April 17, 2019 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001077-2015 BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.* OPINION BY LAZARUS, J.: FILED JULY 10, 2020 Kyle Vo appeals from the order, entered in the Court of Common Pleas of Delaware County, denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we vacate and remand. On the night of January 21, 2015, and into the morning of January 22, 2015, Vo, Marguerite Kane, and other students gathered in a dormitory at West Chester University, and began drinking alcohol. As the night progressed, Vo and Kane became increasingly intoxicated. At one point in the night, Kane confided to the other students that she was a virgin, and she was waiting to have sex with someone “very special” or until marriage. Later that night, Vo sat on Kane’s bed and began rubbing her thigh. At that point, Kane was intoxicated and had difficulty processing what was ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A13023-20 occurring. Vo then moved Kane’s shorts and stuck his finger in Kane’s vagina, at which point she felt pain and blacked out. When Kane awoke, she found Vo on top of her with his penis in her vagina. Kane then lost consciousness again, but later awoke. At that point, she realized that Vo was having sex with her again, and again felt pain. Kane never consented to having sexual intercourse with Vo. Maria Urban, another student who attended the dormitory gathering, testified that she witnessed Vo having sex with Kane that night. Christopher Burke, Vo’s roommate at the time, testified that on the morning of January 22, 2015, Vo made corroborating statements about having sex with Kane. The following day, Kane placed a phone call to Vo under police supervision. During the recorded conversation, Vo made various incriminating statements about his use of a condom on the night in question, as well as his willingness to purchase “Plan B” or some other contraceptive for Kane. On the Commonwealth’s motion, the trial court ruled to exclude from evidence some of Kane’s statements in the recorded phone call. On April 20, 2016, a jury convicted Vo of rape of an unconscious victim, aggravated indecent assault without consent, sexual assault, indecent assault of an unconscious person, and indecent assault without consent.1 On July 18, 2016, the court sentenced Vo to four to ten years’ incarceration for his rape of an unconscious victim conviction, a consecutive ____________________________________________ 118 Pa.C.S. §§ 3121(a)(3), 3125(a)(1), 3124.1, 3126(a)(4), and 3126(a)(1), respectively. -2- J-A13023-20 term of two to ten years’ incarceration for his aggravated indecent assault conviction, and a consecutive term of five years’ probation for his indecent assault of an unconscious person conviction, with no further penalty for his other convictions. The court required Vo to comply with the lifetime registration requirements under the Pennsylvania Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 et seq, though Vo was not deemed to be a sexually violent predator under SORNA. On July 21, 2016, Vo’s trial counsel, Martin P. Mullaney, Esquire, filed a notice of appeal. In Vo’s direct appeal, his appellate counsel, Robert J. Donatoni, Esquire, raised the following single claim: Whether the trial court erred by not permitting [Vo’s trial counsel, Attorney Mullaney,] the opportunity to cross-examine [] Kane about inconsistent statements she made during a wire intercept with [Vo] the afternoon after the incident where such exclusion of evidence violated [Vo’s] constitutional due process right to present a full and complete defense under the Fifth, Sixth[,] and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution? Appellant’s Direct Appeal Brief, at 3. In a two-to-one decision, a three-judge panel of this Court affirmed the trial court’s judgment of sentence and held that Vo’s alleged error was harmless. Commonwealth v. Vo, No. 2327 EDA 2016 (Pa. Super. filed Oct. 16, 2017) (unpublished memorandum). Vo’s appellate counsel, Attorney Donatoni, did not file a petition for allowance of appeal seeking further review. Instead, on February 22, 2018, Vo, through Attorney Donatoni, filed a PCRA petition. The PCRA court determined that only one of Vo’s four PCRA -3- J-A13023-20 allegations—that trial counsel, Attorney Mullaney, may have failed to provide effective assistance in neglecting to advise Vo to testify at trial—merited an evidentiary hearing. The court held a PCRA hearing on September 7, 2018, and, on April 17, 2019, issued an order dismissing Vo’s PCRA petition. On May 9, 2019, Attorney Donatoni filed a notice of appeal in this Court. Vo then retained private counsel, and on May 23, 2019, Burton A. Rose, Esquire, entered his appearance. On appeal, Vo, through Attorney Rose, raises the following five claims: 1. Was [Vo] denied effective assistance of trial counsel by the failure to advance and preserve objections to prosecutorial misconduct in closing argument regarding [Kane’s] sexual activity [] that the defense had relied upon to create a reasonable doubt on the issue of consent? Should trial counsel have objected when the prosecutor argued to the jury [Kane’s] conduct in kissing [Vo] on the neck, hugging [Vo] around the shoulders and wrapping her legs around [Vo’s] waist could be explained as a natural, non- volitional response of a sexual assault victim? 2. Was trial counsel ineffective in failing to call an expert witness to provide testimony to establish that [Kane’s] above conduct [] was consistent with someone who was engaged in voluntary sexual contact with [Vo,] and not a person who was so intoxicated that she was acting involuntarily? 3. Should trial counsel have called witnesses to establish that [Vo] had two hickeys on his neck, given to him by [Kane], including photographs of same, which suggested [Kane’s] voluntary and conscious participation in sexual activity? 4. Was trial counsel ineffective in failing to cross-examine [Kane] regarding her having sent a text message at 2:36 A.M. on [Vo’s] telephone which showed her voluntary and close contact with [Vo] and her lack of intoxication at that critical time? 5. Can the above claims be heard on this PCRA appeal if they were not raised in the PCRA court by prior counsel? Should the case be remanded to the lower court? -4- J-A13023-20 Appellant’s Brief, 9/6/19, at 3-4. On June 27, 2019, Attorney Rose filed an application in this Court for a remand for an evidentiary hearing to determine whether trial counsel, Attorney Mullaney, was ineffective for failing to: (1) object to the prosecution’s closing argument regarding non-volitional responses; (2) present an expert witness to testify about alcoholic blackouts; (3) cross- examine Kane regarding a text message that was sent from Vo’s phone; and (4) present expert testimony and photographs establishing that Kane gave Vo two hickeys on his neck. See Appellant’s Application for Remand, 6/27/19, at 1-7. Similarly, Vo’s remand application claims that Attorney Donatoni was ineffective for failing to raise these issues before the PCRA court; thus, Vo argued, a remand for a hearing on these issues was necessary. See id. This Court denied Vo’s remand application without prejudice, permitting Vo to raise it again in his brief before this Court, which Vo has done. See Appellant’s Brief, 9/6/19, Exhibit E. In Commonwealth v. Jones, 815 A.2d 598 (Pa. 2002), our Supreme Court considered claims raised under similar circumstances to those presented here. In Jones, the petitioner filed his first PCRA petition pro se. The petitioner’s attorney then filed an amended petition, which the PCRA court dismissed. After the filing of the petitioner’s notice of appeal, a second attorney entered an appearance and filed a brief that contained a purported second amended PCRA petition, which was never actually filed in the PCRA court, and which included sixteen issues for review. The first issue was that -5- J-A13023-20 the petitioner’s first PCRA counsel was ineffective for failing to raise the succeeding fifteen issues before the appellate court on a collateral appeal. None of the fifteen succeeding claims was raised or preserved in the PCRA proceeding that was the subject of the appeal in that case. Consequently, our Supreme Court ruled that any issues not previously raised were unreviewable. In announcing the judgment of the Court, then-Justice Castille explained: Permitting new claims to be raised upon appeal, of course, is contrary to our general appellate practice. However, a recognized exception exists in criminal cases where new counsel represents the defendant on appeal. In those instances, this Court’s precedent permits appellate courts to entertain claims that counsel in the trial court was ineffective, notwithstanding that the claims, of necessity, were not raised below. This exception to the general rule of issue preservation is a necessary consequence of this Court’s requirement that claims of ineffectiveness must be raised at the earliest possible stage in the proceedings at which counsel whose effectiveness is questioned no longer represents the defendant. Obviously, if new counsel is required to raise claims of predecessor counsel ineffectiveness upon appeal, upon pain of judicial waiver, the appellate court must be prepared to entertain those claims. Thus, as a matter of this Court’s appellate jurisprudence, a properly layered claim challenging PCRA counsel’s ineffectiveness would not be waived, and can be reviewed on appeal from the denial of the PCRA petition. [] There is some obvious tension between the PCRA amendments and our judicial rule requiring certain claims of PCRA counsel ineffectiveness to be raised for the first time on appeal. . . . Furthermore, this Court has noted that the question of the timeliness of a petition under the amended PCRA implicates the jurisdiction of this court to entertain the issue and, thus, the question may be raised by the Court sua sponte. Finally, in the non-Hubbard[2] context, this Court has declined to entertain new ____________________________________________ 2 Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), which required ineffective assistance of counsel claims be raised when a petitioner obtained -6- J-A13023-20 claims that would act to subvert the PCRA’s new time and serial petition restrictions: Permitting a PCRA petitioner to append new claims to the appeal already on review would wrongly subvert the time limitations and serial petition restrictions of the PCRA. [Commonwealth v. Bond, 819 A.2d 33, 52 (Pa. 2002) (citing Commonwealth v. Lark, 746 A.2d 585, 587-88 (Pa. 2000)).] [] [A]ppellant’s new and distinct claims were first raised in an appellate brief filed on November 8, 1999, well over a year after appellant’s conviction became final in 1996. As a PCRA matter, then, these issues, not having been raised in the initial and amended petitions below, should properly be the subject of a second PCRA petition, which would be subject to the time limitation and serial petition restrictions contained in § 9545(b) of the PCRA. By reaching the merits of brand new claims never presented in the PCRA petition that was actually filed and is at issue in this appeal, this Court arguably employs the Hubbard doctrine in an unintended and improper fashion - - i.e., to provide an end-around the General Assembly’s unequivocal and jurisdictional restrictions upon serial post- conviction petitions. Jones, 815 A.2d at 608-10 (internal citations, quotations, brackets, footnote omitted; emphasis added). More recently, in Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014), this Court reviewed whether claims of ineffective assistance of PCRA counsel may be raised for the first time on collateral appeal. Our decision in Henkel outlined “the history of the right to collateral review counsel in Pennsylvania and the concomitant right to effective representation.” Id. at 21. In concluding that ineffective assistance of PCRA counsel claims raised ____________________________________________ new counsel or those claims were deemed waived, was overturned in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). -7- J-A13023-20 for the first time on appeal are unreviewable because they were not previously raised before the PCRA court, we stated: The Pennsylvania Supreme Court[,] in [Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011),] held that claims of PCRA counsel ineffectiveness cannot be leveled for the first time on appeal, stating: we find that Appellee’s argument that in the PCRA context, given its serial petition and time-bar restrictions, he “must raise all claims of ineffective assistance of counsel at this stage ... or forever waive those claims,” Appellee’s brief at 9, is contrary to this Court’s recent jurisprudence, which we realize was decided after the panel issued its decision in this case. See Commonwealth v. Colavita, [] 993 A.2d 874, 893 n.12 (2010) (unanimous opinion) (“claims of PCRA counsel ineffectiveness may not be raised for the first time at the direct appeal level, much less at the discretionary appeal level.”) (citing Commonwealth v. Pitts, [] 981 A.2d 875, 880 n.4 (2009)). The waiver of such claims, however, is not a foregone conclusion. While difficult, the filing of a subsequent timely PCRA petition is possible, and in situations where an exception pursuant to §9545(b)(1)(i- iii) can be established[,] a second petition filed beyond the one-year time bar may be pursued. Moreover, if an appellant remains adamant that the claims foregone by counsel provide the better chance for success, he can avoid the potential loss of those claims by timely exercising his desire to self-represent or retain private counsel prior to the appeal. Jette, supra at 1044 n.14[ (emphasis added).] As noted, in Jette[,] the PCRA court did not file a notice of intent to dismiss because it held a hearing. However, the Jette Court did not distinguish Pitts on that ground and signaled that Colavita was binding precedent on the issue of whether a claim of PCRA counsel ineffectiveness could be raised for the first time on appeal. Henkel, supra at 27-28. Also, with regard to the filing of a notice of appeal in this Court, we have held that “absent recognition of a constitutional right -8- J-A13023-20 to effective collateral review counsel,[3] claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). See also Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (in overruling Hubbard rule requiring ineffective assistance of counsel claims be raised when petitioner obtains new counsel or those claims will be deemed waived, Supreme Court held that, “as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review. Thus, any ineffectiveness claim will be waived only after a petitioner has had the opportunity to raise that claim on collateral review and has failed to avail himself of that opportunity.”) Here, Vo’s PCRA petition included four layered ineffectiveness of trial counsel claims: (1) failure to call Dr. David Manion as an expert witness on hickeys; (2) failure to introduce Kane’s prior statements; (3) failure to ____________________________________________ 3 Our Supreme Court has previously stated, [although] a PCRA petitioner does not have a Sixth Amendment right to assistance of counsel during collateral review, this Commonwealth, by way of procedural rule, provides for the appointment of counsel during a [petitioner’s] first petition for post[-]conviction relief. Pursuant to our procedural rule, not only does a PCRA petitioner have the “right” to counsel, but also he has the “right” to effective assistance of counsel. The guidance and representation of an attorney during collateral review should assure that meritorious legal issues are recognized and addressed, and that meritless claims are foregone. Commonwealth v. Haag, 809 A.2d 271, 282-83 (Pa. 2002) (internal citations and quotation marks omitted). -9- J-A13023-20 introduce evidence on constitutional grounds; and (4) failure to advise Vo of his right to testify. On appeal, Vo abandons all but the first claim raised in his petition, and, instead, raises four additional ineffectiveness claims. The four additional claims are: (1) failing to object to the prosecutor’s closing argument; (2) failing to present an expert witness, Dr. Elliot Atkins, about alcoholic blackouts; (3) failing to cross-examine Kane about a text message; and (4) a request for a remand for a second evidentiary hearing. Similar to the PCRA petitioner in Jones, Vo’s four new claims were first raised in his appellate brief, which he filed on September 6, 2019. Vo raises these claims well over one year after his conviction became final in 2017. Consequently, these claims are properly the subject of a second PCRA petition. See Jones, supra. Thus, these claims cannot be reviewed by this Court in the instant appeal—a review of Vo’s first PCRA petition. Vo’s brief attempts to distinguish his case from Pitts and Ford, claiming he had no prior opportunity to raise these ineffective assistance of counsel claims before the trial court. He reasons further that because there was no notice pursuant to either Pa.R.Crim.P. 907 or a Turner/Finley2 letter, he was not afforded an opportunity to respond. See Appellant’s Brief, at 20. Vo concludes that, ____________________________________________ 2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (established procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (same). - 10 - J-A13023-20 if [Vo’s] claims of PCRA counsel ineffectiveness were deemed waived because they were not raised at the PCRA level, such a result would render any effective enforcement of the rule-based right to effective PCRA counsel a nullity because then there would be no state–level redress for deficient PCRA counsel’s performance. Id. at 22 (emphasis added). Indeed, following the PCRA court’s denial of his petition, Vo filed a notice of appeal in this Court, albeit through prior counsel, Attorney Donatoni. Contrary to Vo’s claims, Vo did have an opportunity to raise these ineffective assistance of counsel claims by “timely exercising his desire to self-represent or retain private counsel prior to the [PCRA] appeal.” See Jette, supra. Rather, Vo elected to remain represented by Attorney Donatoni throughout the pendency of his direct appeal and throughout the trial court’s PCRA proceedings. Also, as we have previously noted in Henkel, “the Jette Court [] signaled that Colavita[, a unanimous opinion,] was binding precedent on the issue of whether a claim of PCRA counsel ineffectiveness could be raised for the first time on appeal.” Henkel, 90 A.3d at 28. We then stated that our Supreme Court found that, “a PCRA petitioner cannot assert claims of PCRA counsel ineffectiveness for the first time on appeal, regardless of whether a [Pa.R.Crim.P. 907] or 909 notice is involved.” Id. Here, we do not find Vo’s distinguishing of Ford and Pitts persuasive. Rather, we will continue to follow the holdings of Ford, Colavita, and Henkel, supra. Vo also claims that, because he did not receive notice of the PCRA court’s intent to dismiss his petition, pursuant to Pa.R.Crim.P. 907, he is entitled to a remand. See Appellant’s Brief, at 22. We agree, in part. Vo - 11 - J-A13023-20 relies on our decision in Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), for the proposition that, the purpose of [] Rule 907 [n]otice is to allow the [p]etitioner an opportunity to correct any material defects in his submission to the PCRA court [and] the petitioner’s response to the Rule 907 [n]otice is his opportunity to object to the dismissal and to alert the PCRA court of an error that could be corrected and to object to counsel’s effectiveness at the PCRA level. Appellant’s Brief, at 22. Rule 907 of the Pennsylvania Rules of Criminal Procedure provides as follows, in pertinent part: Except as provided in Rule 909 for death penalty cases, (1) the judge shall promptly review the [PCRA] petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post- conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. Pa.R.Crim.P. 907. This Court has held that the notice in the predecessor to Rule 907 (former Rule 1507) is mandatory. See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000). Further, our Supreme Court previously held that advance notice of intention to dismiss in former Rule 1507 was required “when the PCRA court dismisses the petition without an evidentiary hearing, regardless of whether the petitioner has been permitted to respond - 12 - J-A13023-20 to the Commonwealth’s arguments.” Commonwealth v. Morris, 684 A.2d 1037, 1046 (Pa. 1996). More recently, we noted that, [t]he purpose of a Rule 907 pre-dismissal notice is ‘to allow a petitioner an opportunity to seek leave to amend his petition and correct any material defects, the ultimate goal being to permit merits review by the PCRA court of potentially arguable claims.’ Commonwealth v. Rykard, [] 55 A.3d 1177, 1189 (Pa. Super. 2012)[.] The response to the Rule 907 notice ‘is an opportunity for a petitioner and/or his counsel to object to the dismissal and alert the PCRA court of a perceived error, permitting the court to discern the potential for amendment.’ Id. The response is also the opportunity for the petitioner to object to counsel’s effectiveness at the PCRA level. Id. When a PCRA court properly issues Rule 907 notice in compliance with the rules of criminal procedure, an appellant is deemed to have sufficient notice of dismissal. Commonwealth v. Ousley, [] 21 A.3d 1238, 1246 (Pa. Super. 2011)[.] Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015) (emphasis added). With regard to the timing of the notice, we have held that, “service of any notice of dismissal, whether in the form of a Rule 907 notice by the court, or a Turner/Finley no-merit letter, must occur at least twenty days prior to an official dismissal order.” Commonwealth v. Hopfer, 965 A.2d 270, 275 (Pa. Super. 2009). In Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993), we held that the PCRA court’s dismissal without (former Rule 1507) notice did not require a remand where the dismissal occurred more than 20 days after the petitioner received counsel’s Turner/Finley letter. In that case, we declined to remand for entry of notice because counsel and the court “scrupulously” followed Turner/Finley procedure. Id. at 1283. - 13 - J-A13023-20 Here, the PCRA court did not issue Vo notice of its intent to dismiss his PCRA petition without a hearing, as is required pursuant to Rule 907. See Pa.R.Crim.P. 907(1). Additionally, for reasons beyond our knowledge, our appellate court docket lists Attorney Donatoni as the lead attorney of record, in addition to Attorney Rose’s representation. Moreover, our docket reveals that on May 23, 2019, Attorney Rose submitted a letter to this Court entering his appearance as private counsel, and requesting that the name of “former counsel,” Attorney Donatoni, be removed. See Entry of Appearance, 5/23/19, at 1. The circumstances of Attorney Donatoni’s termination of representation are unknown to us; we can find no Turner/Finley letter in the record. Because there is no evidence of a Turner/Finley letter and the court did not issue Rule 907 notice, we must vacate and remand.3 Rule 907 notice gives Vo the opportunity to “alert the PCRA court of a perceived error [and] to object to counsel’s effectiveness at the PCRA level.” See Smith, supra. Accordingly, we remand for proper issuance of notice of the PCRA court’s intent to dismiss Vo’s petition, which the trial court shall issue within twenty days of this decision. See id. Upon receipt of the court’s Rule 907 notice, Vo shall have twenty days to file with the PCRA court his reasons for objecting to dismissal of his petition. The PCRA court shall then proceed accordingly. See Hopfer, supra. ____________________________________________ 3 We order that Attorney Donatoni immediately file a motion in the trial court to withdraw his representation in this matter. - 14 - J-A13023-20 Order vacated. Case remanded for further proceedings consistent with this decision. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/10/20 - 15 - 

29 So.3d 1136 (2010) TANZLER v. STATE. No. 5D08-2949. District Court of Appeal of Florida, Fifth District. March 2, 2010. Decision Without Published Opinion Affirmed.

SUZANNE PULLINS, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT Docket No. 23793–08. Filed May 5, 2011. P filed joint tax returns with her husband—timely for tax year 1999 and untimely (in October 2004) for 2002 and 2003. Each return showed a balance due that was not paid when the return was filed. P signed the returns but did not review or question them. She knew or should have known that the taxes reported on them were not fully paid, but she did not know that her former husband had omitted income from one of the returns. She received no specific benefit from the non- payment of the taxes. In 2003 the IRS issued a levy notice to P for 1999. P and her former husband separated in late 2004. In 2005 the IRS issued levy notices for 2002 and 2003. There- after, P divorced her former husband, and the State court allocated all of the couple’s tax debts to him and awarded him proceeds from the sale of their jointly owned house, from which proceeds he could have paid the liabilities. P requested ‘‘innocent spouse’’ relief from the IRS on April 22, 2008 (more than 2 years after the IRS’s collection activity began), and the IRS denied the requested relief. P petitioned this Court for relief, and by the time of trial she was disabled as a result of complications from surgery. This case would be appealed to the U.S. Court of Appeals for the Eighth Circuit. Held: We will follow our holding in Lantz v. Commissioner, 132 T.C. 131 (2009), revd. 607 F.3d 479 (7th Cir. 2010)—i.e., that the 2- year deadline imposed by 26 C.F.R. sec. 1.6015–5(b)(1), Income Tax Regs., is invalid—notwithstanding the contrary decisions by the U.S. Courts of Appeals for the Seventh Cir- cuit in Lantz and for the Third Circuit in Mannella v. Commissioner, 631 F.3d 115 (3d Cir. 2011), revg. 132 T.C. 196 (2009). Held, further, P is entitled to relief from joint and sev- eral liability under I.R.C. sec. 6015(f). 432 VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00001 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 433 Kathryn J. Sedo, for petitioner. Lisa R. Woods, for respondent. GUSTAFSON, Judge: Petitioner Suzanne Pullins requested section 6015 ‘‘innocent spouse’’ relief from joint liability for income taxes for tax years 1999, 2002, and 2003. 1 The Internal Revenue Service (IRS) denied Ms. Pullins’s request because she did not request relief within two years of the IRS’s first collection activity against her. The IRS then reevaluated Ms. Pullins’s request on the merits and again determined that she was not entitled to relief. Ms. Pullins petitioned this Court, and the issue for decision is whether she is entitled to relief from joint liability under section 6015. We hold that she is. FINDINGS OF FACT At the time she filed the petition, Ms. Pullins lived in Min- nesota. Ms. Pullins’s marriage and finances Ms. Pullins completed high school. She and Curtis Shirek married in 1984. Both Mr. Shirek and Ms. Pullins wrote checks from their joint bank account to pay family bills. However, Mr. Shirek dominated the relationship, made the decisions for the family, and determined when any bills would be paid. For each year in issue, Mr. Shirek worked in construction. Ms. Pullins was not involved in Mr. Shirek’s construction activity. Some or all of Mr. Shirek’s earnings were reported on Forms 1099–MISC, Miscellaneous Income. Mr. Shirek did not make quarterly prepayments of income tax. In 1999 Ms. Pullins did not work outside the home, but in 2002 and 2003 she performed secretarial work because her family needed the income. Ms. Pullins earned wages of $19,902 in 2002 and $13,055 in 2003, and her employer with- held from her wages Federal income tax of $937 in 2002 and $550 in 2003. Ms. Pullins’s income tax was underwithheld in 1 Unless otherwise indicated, all citations of sections refer to the Internal Revenue Code of 1986 (26 U.S.C.), as amended. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00002 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  434 136 UNITED STATES TAX COURT REPORTS (432) 2002 by $719, as she acknowledges, 2 and it was overwith- held in 2003 by $22. 3 The tax returns and assessments at issue For all three years at issue, Mr. Shirek employed a return preparer to prepare the couple’s joint Federal income tax returns. Ms. Pullins’s wage income was reported on the 2002 and 2003 returns. In general, Mr. Shirek’s construction income was reported on Schedules C, Profit or Loss From Business, attached to their returns. Mr. Shirek reported net income from his construction activity of $58,760 for 1999, $85,333 for 2002, and $51,624 for 2003. He also earned and reported $961 in wages in 1999. However, for 1999 he omitted $10,374 in income that was reported on a Form 1099–MISC. Ms. Pullins signed each of the returns, but she did not review the returns or question Mr. Shirek about any items on the returns or any documents used to prepare the returns. She did not sign the returns under duress. When Ms. Pullins signed the 1999 return, she did not know about the omission of Mr. Shirek’s income. Ms. Pullins and Mr. Shirek filed joint Federal income tax returns for the years in issue as follows: Payment made Year Date filed Balance due 1 with return 1999 Oct. 18, 2000 $12,823 $150 2002 Oct. 12, 2004 25,811 -0- 2 Ms. Pullins computes her individual liability by using married-filing-separately status and using the standard deduction. Respondent has not disputed her arithmetic but uses a different method: Respondent takes the liability for those years as reported (i.e., using married filing jointly status) and allocates that liability between the spouses according to the amount of the income attributable to each. On that basis respondent computes that Ms. Pullins’s income tax was underwithheld in both years—i.e., by $3,395 in 2002 and $940 in 2003. Ms. Pullins has not disputed respondent’s arithmetic but disagrees with his method. Our use of Ms. Pullins’s method is explained below in part II.C.1.a. 3 Ms. Pullins’s income tax on her wages was overwithheld by $22 in 2003. On her administra- tive request for relief submitted in April 2008 she requested a refund for this year, which would be made (if at all) from the only payment shown on the 2003 transcript in the record—i.e., with- held tax deemed paid in April 2004. However, even if we otherwise had authority to determine an overpayment, Ms. Pullins’s request was submitted too late for her to obtain such relief. Under section 6511(a), a refund claim must be filed ‘‘within 3 years from the time the return was filed’’ (i.e., within three years after October 2004) or ‘‘within * * * 2 years from the time the tax was paid’’ (i.e., within two years after April 2004). The April 2008 request for relief was too late by either of these measures. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00003 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 435 Payment made Year Date filed Balance due 1 with return 2003 Oct. 12, 2004 13,188 -0- 1 The balance due reflects the amount that Ms. Pullins and Mr. Shirek reported as owed on their returns after accounting for withholding and estimated tax payments. The IRS assessed the tax due for 1999 (as reported on the return) in December 2000 and imposed an addition to tax for failure to timely pay the tax due. The IRS eventually learned about the missing income and in August 2002 assessed $3,430 of additional tax attributable to it. The IRS’s collection efforts On November 1, 2000 (before the assessment of the addi- tional tax), Mr. Shirek and Ms. Pullins entered into an installment agreement to pay the 1999 tax liability. In 2000 and 2001 Ms. Pullins wrote checks on the joint bank account as payments toward the 1999 liability. The IRS applied refunds from tax years 2000 and 2001 toward the 1999 liability. In November 2003 the IRS terminated the install- ment agreement after Mr. Shirek and Ms. Pullins defaulted on the agreement. On November 15, 2003, the IRS sent notices of intent to levy to each of Ms. Pullins and Mr. Shirek for tax year 1999. On November 29, 2004, after receiving the untimely returns for 2002 and 2003, the IRS assessed the amounts reported as tax due and imposed additions to tax for failure to timely pay and for late filing. 4 On April 5 and 7, 2005 (after Ms. Pullins filed for divorce, as discussed below), the IRS sent notices of intent to levy to both Ms. Pullins and Mr. Shirek for tax years 2002 and 2003. The dissolution of the marriage Ms. Pullins and Mr. Shirek separated in late 2004, and Mr. Shirek moved out of the family home in December 2004—i.e., after they had filed their 2002 and 2003 returns. Ms. Pullins filed for divorce in February 2005. While the 4 The IRS did not impose a late filing addition to tax for 1999, apparently because it consid- ered the 1999 return timely filed on extension. The due dates, on extension, for 2002 and 2003 were October 15, 2003, and August 15, 2004, respectively. The October 12, 2004, filing date was well after those due dates. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00004 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  436 136 UNITED STATES TAX COURT REPORTS (432) divorce was pending, Ms. Pullins and Mr. Shirek sold the family home. The California State court granted Ms. Pullins the divorce in September 2005 and held that Mr. Shirek was responsible for paying the 1999, 2002, and 2003 tax debts. The divorce judgment awarded each spouse $125,227 from the sale of the marital home and also awarded each spouse certain items of property. Finances, remarriage, and tax compliance in subsequent years Ms. Pullins earned $23,634 in 2004 and $18,216 in 2005. Her tax returns for those years were due after she filed for divorce; but she did not timely file tax returns for those years, and the record does not reflect when or whether she filed a return for 2006. For her 2007 return, Ms. Pullins submitted a $25 payment when she requested an extension of time to file (around the time that she requested innocent spouse relief for 1999, 2002, and 2003). She received an extension for her 2007 return until October 15, 2008. Ms. Pullins filed the 2007 return on October 22, 2008, reporting total tax of $2,485, withholding credits of $2,082, and tax due of $403. She paid $25 toward that liability when she filed the return. The IRS assessed the tax shown and imposed a failure-to-timely-pay addition to tax. Ms. Pullins made additional payments in 2009 toward her 2007 liability. Ms. Pullins remarried in 2007. She stopped working in October 2008 and as a result of complications from surgery is now disabled. At the time of trial she was receiving monthly long-term disability insurance payments of $1,700. Shortly before trial she qualified for monthly Social Security disability benefits of $791. Those benefits will reduce her insurance payment, and she expects her total monthly dis- ability income to be $2,091 while the insurance payments continue. Ms. Pullins expects her disability to be permanent, and this expectation is reasonable. Request for relief On April 22, 2008, Ms. Pullins filed a Form 8857, Request for Innocent Spouse Relief, with the IRS to request relief under section 6015. On the Form 8857 she did not indicate VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00005 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 437 that she had been abused, and she did not allege any mental or physical health problems. Ms. Pullins submitted her request roughly four and a half years after the IRS issued the November 2003 levy notice for tax year 1999 and slightly more than three years after the April 2005 levy notices for tax years 2002 and 2003. OPINION I. Joint and several liability and section 6015 relief generally Section 6013(d)(3) provides that when taxpayers file a joint return, the tax is computed on their aggregate income, and their liability to pay the tax shown on the return or found to be owing is joint and several. See also 26 C.F.R. sec. 1.6013–4(b), Income Tax Regs. That is, each spouse is liable for the entire joint tax liability. Section 6015 provides three types of relief from joint and several liability: (1) full or apportioned relief under section 6015(b); (2) proportionate relief for divorced or separated tax- payers under section 6015(c); and (3) equitable relief under section 6015(f) when relief is unavailable under either section 6015(b) or (c). Subsections (b) and (c) both include explicit time limits for requesting relief. Absent a request’s being submitted within two years of the first collection action against the requesting taxpayer, the statute bars relief under either subsection. Sec. 6015(b)(1)(E), (c)(3)(B). Ms. Pullins requested relief under section 6015 more than two years after the IRS began collec- tion action against her. Therefore she is not entitled to relief under subsection (b) or (c). 5 In section 6015(f) Congress did not impose a time limit for requesting relief. However, by regulation the IRS purported to impose a two-year time limit. See 26 C.F.R. sec. 1.6015– 5 The tax returns in issue all report tax due, but Ms. Pullins and Mr. Shirek did not pay the tax with the returns. Thus, they had underpayments for each year in issue. Pursuant to section 6015(b)(1)(B), relief under section 6015(b) is available only for an ‘‘understatement’’, not an un- derpayment; and pursuant to section 6015(c)(1), relief under section 6015(c) is available only for a ‘‘deficiency’’, not an underpayment. See Washington v. Commissioner, 120 T.C. 137, 146–147 (2003). Section 6015(f) is broader and permits relief from ‘‘any unpaid tax or any deficiency (or any portion of either)’’. Thus, even if she had requested relief within two years, Ms. Pullins’s only possible avenue for relief for the underpayments is under section 6015(f). See Hopkins v. Commissioner, 121 T.C. 73, 88 (2003). For 1999 Mr. Shirek omitted $10,374 of income, and that omission results in an understatement of tax. Although section 6015(b) and (c) may provide re- lief from understatements, due to the late request for relief, only section 6015(f) may provide relief in this case, even for the liability resulting from this unreported income. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00006 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  438 136 UNITED STATES TAX COURT REPORTS (432) 5(b)(1). As is discussed briefly below, we have held that regu- lation to be invalid. II. Equitable relief under section 6015(f) A. Statutory text Section 6015(f) provides: SEC. 6015(f). EQUITABLE RELIEF.—Under procedures prescribed by the Secretary, if— (1) taking into account all the facts and circumstances, it is inequi- table to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability. Thus, section 6015(f) may offer relief from joint and several liability, provided that the taxpayer shows that it is inequi- table to hold her liable upon consideration of all the facts and circumstances. B. Procedure and burden of proof Congress provided this Court express authority to review the IRS’s denial of equitable relief under section 6015(f), granting jurisdiction ‘‘to determine the appropriate relief available to the individual under this section’’. Sec. 6015(e)(1). We conduct a trial de novo when determining whether a taxpayer is entitled to relief under section 6015(f), and we may consider evidence outside the administrative record. Porter v. Commissioner (Porter I), 130 T.C. 115, 117 (2008). We employ a de novo standard of review, rather than reviewing for abuse of discretion; and the requesting spouse bears the burden of proving that she is entitled to equitable relief under section 6015(f). Porter v. Commissioner (Porter II), 132 T.C. 203, 210 (2009). C. Factors for evaluating equitable relief: Revenue Proce- dure 2003–61 In accord with the statutory provision that relief is to be granted under section 6015(f) following ‘‘procedures pre- scribed by the Secretary,’’ the IRS has issued revenue proce- dures to guide its employees in determining whether a tax- payer is entitled to relief from joint and several liability. See VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00007 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 439 Rev. Proc. 2003–61, 2003–2 C.B. 296, modifying and super- seding Rev. Proc. 2000–15, 2000–1 C.B. 447. Revenue Proce- dure 2003–61, supra, lists the factors that IRS employees should consider, and the Court consults those same factors when reviewing the IRS’s denial of relief. See Washington v. Commissioner, 120 T.C. 137, 147–152 (2003). Revenue Procedure 2003–61, supra, provides a three-step analysis for IRS personnel to follow in evaluating requests for relief: Section 4.01 lists seven threshold conditions that must be met before the IRS will grant any relief; section 4.02 lists circumstances in which the IRS will ordinarily grant relief as to liabilities that were reported on a return (the underpay- ments at issue in this case); and section 4.03 sets out eight non-exclusive factors that the IRS will consider in deter- mining whether equitable relief should be granted. See Rev. Proc. 2003–61, 2003–2 C.B. at 297–298. 1. Section 4.01: Threshold conditions The threshold conditions of section 4.01 of Revenue Proce- dure 2003–61 are: (1) The requesting spouse filed a joint return for the taxable year for which he or she seeks relief. (2) Relief is not available to the requesting spouse under section 6015(b) or (c). (3) The requesting spouse applies for relief no later than two years after the date of the Service’s first collection activity after July 22, 1998, with respect to the requesting spouse. * * * [6] (4) No assets were transferred between the spouses as part of a fraudu- lent scheme by the spouses. (5) The nonrequesting spouse did not transfer disqualified assets to the requesting spouse. * * * (6) The requesting spouse did not file or fail to file the return with fraudulent intent. (7) The income tax liability from which the requesting spouse seeks relief is attributable to an item of the individual with whom the requesting spouse filed the joint return * * * [absent certain enumerated exceptions.] The IRS admits that, in large part, Ms. Pullins satisfies these requirements: She filed joint returns for the years in issue; she is not eligible for relief under section 6015(b) or (c); there is no evidence of fraudulent asset transfers; there is no evidence of disqualified asset transfers; Ms. Pullins did not 6 See part II.C.1.b below, discussing the two-year requirement. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00008 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  440 136 UNITED STATES TAX COURT REPORTS (432) file the returns with any fraudulent intent; and considering that Ms. Pullins did not work in 1999 and that Mr. Shirek’s income dwarfed Ms. Pullins’s income in 2002 and 2003, it is clear that most of the underpayments result from omissions of Mr. Shirek’s construction income. Thus, Ms. Pullins has largely satisfied the threshold conditions of section 4.01 of Revenue Procedure 2003–61. Two exceptions merit discus- sion: a. Tax attributable to Ms. Pullins The exception to her satisfaction of these conditions is her 2002 underwithholding of $719; and to the extent of that underwithholding, she did not meet the seventh threshold condition and we do not grant relief. As we stated above, for purposes of determining the extent of her liability for or over- payment of tax on her own income, we use Ms. Pullins’s com- putation on the basis of married-filing-separately status, rather than the IRS’s computation that made a pro rata allocation of the reported liability (based on married-filing- jointly status). To reckon the amount of tax liability that Ms. Pullins should have to pay because it is fairly attributable to her, we think that on the facts of this case it is reasonable to figure Ms. Pullins’s tax liability separately. The IRS’s method assumes a joint liability and then attributes to her a pro rata share of the joint liability, but the purpose of sec- tion 6015 is to grant relief from joint liability. Under the IRS’s method, if we found Ms. Pullins to be otherwise entitled to section 6015 relief, we would nonetheless leave her liable for a portion of the joint liability. 7 Our aim here, however, is to figure Ms. Pullins’s own liability apart from joint liability and then ensure that we do not excuse her from paying her own liability. To accomplish that aim, a determination of her separate liability, 8 rather than an allocation of the joint liability, is most reasonable here. 7 For example, the joint liabilities include self-employment tax on Mr. Shirek’s construction income, which tax accounts for 45 percent of the joint Federal income tax the IRS assessed for 2002. The IRS’s pro rata approach would allocate a proportionate share of that self-employment tax to Ms. Pullins, even though the self-employment tax is calculated on Mr. Shirek’s income alone, see 26 C.F.R. sec. 1.6017–1(b)(1), and became Ms. Pullins’s liability only because she filed jointly with Mr. Shirek, see 26 C.F.R. sec. 1.6017–1(b)(2). 8 As an analogy, see 26 C.F.R. sec. 1.6013–4(d) (to allocate liability where a supposedly joint return was signed under duress, ‘‘The return is adjusted to reflect only the tax liability of the individual who voluntarily signed the return, and the liability is determined at the applicable rates in section 1(d) for married individuals filing separate returns’’ (emphasis added)). VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00009 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 441 b. Requesting relief more than two years after the IRS’s first collection activity The third threshold condition of section 4.01 of Revenue Procedure 2003–61 states a deadline that the IRS promul- gated by regulation in 26 C.F.R. section 1.6015–5(b)(1). That regulation purports to impose a two-year deadline on requests for relief under section 6015(f), and Ms. Pullins did not meet that deadline. 9 In Lantz v. Commissioner, 132 T.C. 131 (2009), revd. 607 F.3d 479 (7th Cir. 2010), we held that the two-year deadline imposed by the regulation is an invalid interpretation of section 6015(f). After the U.S. Court of Appeals for the Seventh Circuit reversed Lantz, we reconsid- ered the matter but did not change our position. See Hall v. Commissioner, 135 T.C. 374 (2010). The U.S. Court of Appeals for the Third Circuit has recently held the two-year deadline to be valid, see Mannella v. Commissioner, 631 F.3d 115 (3d Cir. 2011), revg. 132 T.C. 196 (2009), but for the rea- sons we have previously expressed, we respectfully disagree. The court to which an appeal would lie in this case—the Court of Appeals for the Eighth Circuit—has not addressed this issue, and we therefore follow our holding in Lantz and treat the IRS’s two-year deadline as invalid. In Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. ll, ll, 131 S. Ct. 704, 713 (2011), the Supreme Court recently clarified that the standard by which the validity of regulations will be measured—with regard to tax matters as well as other matters, and with regard to ‘‘general authority’’ regulations as well as ‘‘specific grant of authority’’ regulations—is the two-step standard of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). However, Mayo prompts no reconsideration of our holding in Lantz that the regulation at issue here is invalid. When 9 Ms. Pullins explained that she did not request relief because she thought she did not need it, since the State court had ordered her husband to pay the taxes. Although given an oppor- tunity to do so at trial, the IRS made no contention that it suffered any prejudice as a result of the timing of her request or that Ms. Pullins was culpable for her delay in submitting her request more than two years after the collection notices. Given our position on the invalidity of the regulation’s two-year deadline, Ms. Pullins did not contend that, and we therefore do not address whether, the regulation’s two-year deadline is subject to equitable tolling. Cf. Mannella v. Commissioner, 631 F.3d 115 (3d Cir. 2011) (remanding to consider whether equitable tolling applies), revg. 132 T.C. 196 (2009); Hall v. Commissioner, 135 T.C. 374, 387 n.5 (2010) (Wells, J., concurring) (‘‘such a period of limitations would be subject to the ‘doctrine’ of equitable toll- ing’’). VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00010 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  442 136 UNITED STATES TAX COURT REPORTS (432) we decided Lantz, we used the now-mandated Chevron standard: Following Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), we apply the law of the Court of Appeals to which an appeal in the case would normally lie. Section 1.6015–5, Income Tax Regs., was issued under both a general grant of authority under section 7805 and a specific grant of authority under section 6015(h). T.D. 9003, 2002–2 C.B. 294. The U.S. Court of Appeals for the Seventh Circuit has held that regu- lations issued under general or specific authority of the IRS to promulgate necessary rules are entitled to Chevron deference. * * * Accordingly, we will follow the Chevron standard in this analysis. [Lantz v. Commissioner, supra at 137; fn. ref. omitted.] Thus, in Lantz we held the two-year deadline invalid under the Chevron standard, and consequently we follow Lantz (and Mayo and Chevron) today. 2. Section 4.02: Circumstances ordinarily allowing relief Section 4.02 of Revenue Procedure 2003–61 provides three conditions that, if satisfied, will ordinarily qualify a requesting spouse for relief by the IRS from liability for an underpayment of a properly reported liability. The conditions are: (a) On the date of the request for relief, the requesting spouse is no longer married to, or is legally separated from, the nonrequesting spouse, or has not been a member of the same household as the nonrequesting spouse at any time during the 12-month period ending on the date of the request for relief. (b) On the date the requesting spouse signed the joint return, the requesting spouse had no knowledge or reason to know that the non- requesting spouse would not pay the income tax liability. The requesting spouse must establish that it was reasonable for the requesting spouse to believe that the nonrequesting spouse would pay the reported income tax liability. * * * (c) The requesting spouse will suffer economic hardship if the Service does not grant relief. For purposes of this revenue procedure, the Service will base its determination of whether the requesting spouse will suffer economic hardship on rules similar to those provided in Treas. Reg. § 301.6343–1(b)(4). * * * [Rev. Proc. 2003–61, sec. 4.02(1), 2003–2 C.B. at 298.] Ms. Pullins meets only one of these three conditions, as we now show. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00011 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 443 a. Married, separated, or divorced Mr. Shirek moved out in December 2004, and he and Ms. Pullins were divorced in 2005. She filed her request for relief in 2008. Ms. Pullins clearly satisfies the first condition. b. Knowledge or reason to know Ms. Pullins argues that she did not know of the unpaid liabilities when the returns were filed in October 2000 and October 2004—first because she had no knowledge of any unpaid tax liability on the returns and second because she reasonably believed that Mr. Shirek would pay any taxes due. Neither of these arguments is persuasive. (1) Knowledge of the liabilities As to her alleged ignorance of the liabilities, Ms. Pullins testified that she did not notice the amounts of tax shown as due on the returns (but not paid with the returns) when she signed them; and she claims that she was unaware that any amount of tax was due. She explained that she was ignorant of any tax liability until she filed for divorce in February 2005. However, Ms. Pullins did not explain why she wrote checks to the IRS from the couple’s bank account in 2000 and 2001— with memo lines specifically referring to tax year 1999—to make partial payments toward the 1999 tax liability if she did not know that she and her husband had a problem with unpaid taxes. Her joining Mr. Shirek in entering into an installment agreement in November 2000 further dem- onstrates her awareness of their outstanding liabilities. On these facts, we find her contention that she did not know about the couple’s tax liabilities until she filed for divorce in 2005 is not credible. Ms. Pullins asserted that she signed the returns without reviewing them because she trusted Mr. Shirek. We recog- nize that many taxpayers trust their spouse to prepare and file their tax returns and pay their taxes, but we note that The rate of tax applied against a given amount of income generally is lower when the income is reported on a joint return than when a husband and wife file separate returns. The price which the law exacts for this privilege is that taxpayers who file a joint return are jointly and severally liable for the amount of tax due, see 26 U.S.C. § 6013(d)(3) (1982), regard- VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00012 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  444 136 UNITED STATES TAX COURT REPORTS (432) less of the source of income reported and notwithstanding the fact that one spouse may be less informed about the contents of the return. See Sonnenborn v. Commissioner, 57 T.C. 373, 381 (1971); 26 U.S.C. § 6013(d)(3) (1982). [Stevens v. Commissioner, 872 F.2d 1499, 1503 (11th Cir. 1989), affg. T.C. Memo. 1988–63.] A taxpayer may not obtain the benefits of joint filing status but then obtain relief from joint and several liability by ignoring or avoiding facts fully disclosed on a return she signed. Hayman v. Commissioner, 992 F.2d 1256, 1262 (2d Cir. 1993) (taxpayer who claims to have signed returns with- out reading them is nevertheless charged with constructive knowledge of their contents), affg. T.C. Memo. 1992–228. We impute to a taxpayer knowledge of what she could have gleaned from the tax returns she signed, if she had taken the time to review them. Porter v. Commissioner, 132 T.C. at 211–212. Accordingly, Ms. Pullins is chargeable with knowl- edge of the liabilities that were reported on the returns she signed. 10 (2) Knowledge that her husband would not pay the liabi- lities In evaluating whether a requesting spouse knew or had reason to know her nonrequesting spouse would not pay the tax liability, the IRS considers the level of education attained by the requesting spouse, any evasiveness or deceit by the nonrequesting spouse, how involved the requesting spouse was in the activity generating the income tax liability, the requesting spouse’s involvement in financial matters of the household, her business or financial expertise, and any lavish or unusual expenditures compared to past spending levels. Rev. Proc. 2003–61, sec. 4.03(2)(a)(iii)(C), 2003–2 C.B. at 298. There is no evidence of lavish or increased spending in 1999, and by 2002 the family finances were sufficiently tight that Ms. Pullins had started working to help make ends meet. Ms. Pullins had access to the couple’s joint checking account, but she explained that Mr. Shirek controlled the finances and made the decisions for the family. Ms. Pullins 10 The foregoing discussion addresses only the liabilities that were actually reported on the returns that Ms. Pullins signed—i.e., the great bulk of the liabilities. For purposes of the anal- ysis under Rev. Proc. 2003–61, sec. 4.02(1)(b), 2003–2 C.B. 296, 298, that discussion is adequate. As to the $3,430 of tax for 1999 that is attributable to the construction income that Mr. Shirek omitted from the return, see infra pt. II.C.3.a.(3). VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00013 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 445 was not involved in Mr. Shirek’s construction activity, which generated most of the income for the family. There is no evi- dence of deceit in the record, but Ms. Pullins did allege in a statement attached to her request for relief that she had filed for divorce when she learned that Mr. Shirek was keeping money from her. Ms. Pullins completed high school and does not claim sophisticated business or financial knowledge or expertise. Ms. Pullins testified that she never had reason to question Mr. Shirek about payment of taxes. However, she made pay- ments toward the 1999 liabilities and entered into the installment agreement, and by 2002 they needed more income and she had to start working to help support the family; so it is clear that she was aware of their financial problems. The question is whether the requesting spouse knew the taxes would be paid on time or reasonably promptly after the returns were filed. Schepers v. Commis- sioner, T.C. Memo. 2010–80. The partial payment submitted with the 1999 return and the subsequent installment agree- ment demonstrate slow and perhaps reluctant payment—of which Ms. Pullins was fully aware. The application of refunds from the couple’s 2000 and 2001 returns toward the 1999 liability provided her further information about Mr. Shirek’s tax payments. We do not find that when she signed the returns she reasonably believed that Mr. Shirek would promptly pay the liabilities shown on the returns. The California court that granted Ms. Pullins’s divorce from Mr. Shirek allocated the outstanding tax liabilities to Mr. Shirek. The court also ordered the couple to split the $250,454 gain from the sale of their marital home. Thus, Mr. Shirek had the means to pay the 1999, 2002, and 2003 Fed- eral income tax liabilities in September 2005 when the court filed the judgment of dissolution and awarded him $125,227 of the proceeds from the sale of the home. Accordingly, when the court issued the divorce decree, it was reasonable for Ms. Pullins to expect Mr. Shirek to obey the court and pay the tax debts. However, it is her knowledge or reason to know at the time she signed the tax returns that is critical to this inquiry; and under the circumstances she had reason to doubt, when she signed the returns, that Mr. Shirek would pay the liabilities. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00014 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  446 136 UNITED STATES TAX COURT REPORTS (432) c. Economic hardship The IRS evaluates a requesting spouse’s claim of economic hardship by considering any information offered by the indi- vidual that is relevant to the determination, including her income, assets and liabilities, age, ability to earn, responsi- bility for dependents, the amounts reasonably necessary for basic living expenses, the allowable living expenses for her geographic area, and other factors. See Wiener v. Commis- sioner, T.C. Memo. 2008–230; 26 C.F.R. sec. 301.6343– 1(b)(4)(ii), Proced. & Admin. Regs. (incorporated into Rev. Proc. 2003–61 by its sec. 4.02(1)(c)). It is clear that Ms. Pullins is disabled. At trial Ms. Pullins was manifestly in pain, short of breath, and uncomfortable sitting or standing for long periods. Her disability plainly compromises her ability to earn and is properly taken into account in deter- mining whether she faces economic hardship. However, her disability is not the only factor to be considered, and two other considerations prevent the conclusion that she has established economic hardship: (1) Economic facts at the time of trial Ms. Pullins testified that she receives long-term disability insurance payments (which may terminate on some unspec- ified future date), that she expected she would soon begin receiving Social Security disability benefit payments, that her monthly disability income would be $2,091, and that she expects her disability to be permanent. She further testified that she has commenced divorce proceedings against her second husband and expected to move out of his house when her Social Security disability benefit payments commence. She argues that, when she is on her own, her disability pay- ments will be insufficient to cover her expenses. A hypothetical hardship is insufficient to justify relief; a taxpayer must demonstrate that imposing joint and several liability is ‘‘inequitable in present terms’’, Von Kalinowski v. Commissioner, T.C. Memo. 2001–21, and poses a present eco- nomic hardship. When evaluating economic hardship, the Office of Appeals necessarily views the requesting spouse’s financial situation as of the hearing date; but we properly consider the evidence presented at the de novo trial, see Porter I, and we consequently evaluate her financial situa- VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00015 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 447 tion and prospects as of that time, see Nihiser v. Commis- sioner, T.C. Memo. 2008–135, 95 T.C.M. (CCH) 1531, 1538 (2008) (‘‘we should * * * look at the evidence presented at trial, and the state of her finances at that time. * * * But we must also consider * * * [petitioner’s] future ability to earn her current salary and pay her basic living expenses’’). As of the date of trial, Ms. Pullins continued to live with Mr. Pullins—her second husband—and he apparently paid her expenses. While her disability payments are admittedly modest, as long as she and Mr. Pullins continue to live together—i.e., on the facts at the time of trial—their house- hold apparently has a monthly budget surplus and some ability to pay the tax debt. Moreover, Ms. Pullins did not introduce any evidence of what her expenses might be if she moves from the home she has shared with Mr. Pullins. Thus, she presented virtually no detail to substantiate her claim of economic hardship, whether in her current circumstance with her husband or in an anticipated future on her own. (2) Assets on hand Ms. Pullins did not offer any evidence at trial 11 to show whether she had any assets. 12 This evidentiary gap is espe- cially significant because in 2005 she received $125,227 of the proceeds of the sale of her previous marital home. She testified that she used part of those proceeds for living expenses, to purchase a car, and to relocate from California to Minnesota. However, she did not state whether she still had any of those funds as of the date of trial. Ms. Pullins has the burden of proof, and on this record she has not proved that she will suffer economic hardship if relief is not granted. 11 Similarly, when Ms. Pullins submitted her request for relief to the IRS in April 2008, she did not show her assets. The reason for that omission may be that the then-current version of Form 8857, Request for Innocent Spouse Relief, as revised in June 2007, did not specifically re- quire disclosure of a requesting spouse’s assets. The subsequent version of Form 8857 as revised in September 2010 includes an additional section that asks: ‘‘Tell us about your assets. Your assets are your money and property. Property includes real estate, motor vehicles, stocks, bonds, and other property that you own. Tell us the amount of cash you have on hand and in your bank accounts. Also give a description of each item of property, the fair market value of each item, and the balance of any outstanding loans you used to acquire each item.’’ 12 When a taxpayer fails to produce evidence in her possession which, if true, would be favor- able, we may presume that the evidence, if produced, would favor the opposing party. Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947). VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00016 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  448 136 UNITED STATES TAX COURT REPORTS (432) 3. Alternative facts-and-circumstances test Where, as here, the requesting spouse satisfies the threshold conditions of Revenue Procedure 2003–61, section 4.01, but fails to qualify for relief under section 4.02, she may nevertheless obtain relief under the facts and cir- cumstances test of section 4.03. The IRS considers a nonexclu- sive list of factors to determine whether ‘‘taking into account all the facts and circumstances, it is inequitable to hold the requesting spouse liable’’: (1) whether the requesting spouse is separated or divorced from the nonrequesting spouse; (2) whether the requesting spouse would suffer economic hard- ship if not granted relief; (3) whether, in the case of an underpayment, the requesting spouse knew or had reason to know that the other spouse would not pay the liability, and, in the case of a deficiency, whether the requesting spouse did not know and had no reason to know of the item giving rise to the deficiency; (4) whether the nonrequesting spouse had a legal obligation to pay the outstanding tax liability pursu- ant to a divorce decree or agreement; (5) whether the requesting spouse received a significant benefit from the unpaid income tax liability or the item giving rise to the defi- ciency; and (6) whether the requesting spouse has made a good faith effort to comply with the tax laws for the taxable years following the years for which she requests relief. Id. sec. 4.03(2), 2003–2 C.B. at 298–299. Other factors that may indicate relief is appropriate when present but that will not weigh against granting relief when absent are: (i) whether the nonrequesting spouse abused the requesting spouse and (ii) whether the requesting spouse was in poor mental or physical health at the time she signed the tax return or when she requested relief. Id. sec. 4.03(2)(b), 2003–2 C.B. at 299. We analyze all relevant facts and circumstances, with all factors considered and appropriately weighted and no single factor determinative, in determining whether it is inequi- table to hold a taxpayer liable for a joint tax liability. See Porter II, 132 T.C. at 214. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00017 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 449 a. Applying the facts and circumstances factors (1) Marital status Ms. Pullins had divorced Mr. Shirek when she requested innocent spouse relief. This factor weighs in favor of relief. (2) Economic hardship Generally, economic hardship exists when collection of the tax liability will render the taxpayer unable to meet basic living expenses. 26 C.F.R. sec. 301.6343–1(b)(4)(i). As dis- cussed above in part II.C.2.c., Ms. Pullins failed to make a convincing showing of economic hardship. She failed to make an accounting of her assets, and it appears that as long as she lives with her second husband, she has some income available to pay toward her tax liability; consequently, she has not proved economic hardship. However, Ms. Pullins is disabled, and the marriage on which her support currently depends was, at the time of the trial, evidently at risk of dis- solution. Balancing her inability to work and the modest dis- ability income she will receive against the lack of evidence on assets and expenses, we find this factor to weigh only mod- erately against granting relief. (3) Knowledge or reason to know Ms. Pullins actually knew about (or is imputed with knowl- edge about) the liabilities reported on the returns she signed, and she did not have a reasonable belief that Mr. Shirek would reasonably promptly pay those liabilities. See supra pt. II.C.2.b. However, in the case of a deficiency, the question is whether the requesting spouse did not know and had no rea- son to know of the item giving rise to the deficiency—in this case, the $10,374 of construction income that Mr. Shirek omitted in 1999 (which generated an additional tax liability of $3,430). Ms. Pullins did not know of that omission and, given her non-involvement in his construction business, she could not reasonably be expected to have known. This was not an instance in which a husband failed altogether to report income from a business that his wife knew about; rather, here the husband reported about 85 percent of the income. As to the unreported portion of the liability (i.e., the VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00018 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  450 136 UNITED STATES TAX COURT REPORTS (432) deficiency), Ms. Pullins lacked knowledge, and to the extent of $3,430 of the joint liability this factor weighs in favor of granting relief. As to the underpayments, however, as noted Ms. Pullins has not proved that she did not know and had no reason to know, when she signed the returns at issue, that Mr. Shirek would not pay the tax liabilities reflected there. For most of the liability, therefore, this factor weighs against granting relief. (4) Nonrequesting spouse’s legal obligation The California court’s August 2005 judgment ordered Mr. Shirek to pay the 1999, 2002, and 2003 Federal income tax and California Franchise Tax Board liabilities, and it also ordered him to appear on behalf of Ms. Pullins, defend her, and hold her harmless from those debts. Moreover, Mr. Shirek had the means to pay the Federal income taxes after the divorce, given that the property distribution awarded $125,227 to each spouse from the sale of the marital resi- dence. We are not bound (by collateral estoppel or otherwise) to the determination of a State family court, and that court does not have the power to adjust a spouse’s Federal tax liabilities. However, when evaluating what is equitable in this instance under section 6015(f), we will assign consider- able weight to the determination of the State court which placed the responsibility for satisfying the tax debts on Mr. Shirek. Revenue Procedure 2003–61, sec. 4.03(2)(a)(iv), 2003–2 C.B. at 298, provides that the nonrequesting spouse’s legal obligation ‘‘will not weigh in favor of relief if the requesting spouse knew or had reason to know, when entering into the divorce decree or agreement, that the nonrequesting spouse would not pay the income tax liability.’’ Considering the cir- cumstances that existed at the time of the divorce (as opposed to the time she signed the returns, see supra part II.C.2.b.), the record does not contain any evidence indicating that Ms. Pullins had any reason to expect that Mr. Shirek would ignore the family court order and fail to pay the tax debts. Accordingly, this factor clearly weighs in favor of granting Ms. Pullins relief. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00019 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 451 (5) Significant benefit The significant benefit factor examines whether the requesting spouse directly or indirectly received ‘‘significant benefit (beyond normal support) from the unpaid income tax liability’’. Rev. Proc. 2003–61, sec. 4.03(2)(a)(v), 2003–2 C.B. at 299 (referencing 26 C.F.R. section 1.6015–2(d)). Ms. Pullins did share in the benefit of Mr. Shirek’s income for the years in issue; but there is nothing in the record to indicate that, during her marriage to Mr. Shirek, Ms. Pullins received any specific or extraordinary benefit from their nonpayment of their tax liabilities. The IRS points to their acquisition of ‘‘waverunners, a golf cart and a camper/trailer’’; but while it is certainly true that a family should not buy such items rather than pay their taxes, we think these items do not rise to a level that implicates significant benefit to Ms. Pullins. More difficult to evaluate is the IRS’s contention that Ms. Pullins benefited from the nonpayment of taxes by her receipt of increased proceeds from the equity in the marital home. The IRS observes: Upon her divorce from Mr. Shirek, Petitioner received $125,000.00 from the sale of the marital home. * * * Had Petitioner and Mr. Shirek used the equity of $250,000 in their home to pay their tax liabilities at the time they were due, the money Petitioner would have received from the sale of the marital home would have been significantly less. See George v. Commissioner, T.C. Memo. 2004–261. In George, the Court found that the requesting spouse received a significant benefit when she received pension and life insurance funds after the death of the nonrequesting spouse. The Court noted these funds could have been used during the nonrequesting spouse’s lifetime to pay the tax liabilities and the requesting spouse would have received a reduced amount of money. Consequently, the requesting spouse received a significant benefit from the nonpayment of the taxes. Id. Likewise, Petitioner would have received far less money during her divorce had the tax liabilities been paid when due. It is true that the proceeds to be distributed to the spouses in the divorce proceedings would have been reduced if the couple had used the equity in the marital home to pay their tax debts. However, two considerations defeat the contention that this resulted in significant benefit to Ms. Pullins: First, George v. Commissioner, T.C. Memo. 2004–261, involved not proceeds from the sale of a marital home but pension and life insurance funds. Unlike the funds in George, here the equity interest in the home was created by the fam- VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00020 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  452 136 UNITED STATES TAX COURT REPORTS (432) ily’s mortgage payments—i.e., one of its routine living expenditures. By definition, significant benefit is ‘‘beyond normal support’’. Rev. Proc. 2003–61, sec. 4.03(2)(a)(v). Mort- gage payments on a middle-class home constitute normal support that is not considered to generate ‘‘significant ben- efit’’. It is therefore difficult to explain how, before the prop- erty distribution in the divorce, any significant benefit could arise from the equity interest that is simply the result of those mortgage payments. Second, Ms. Pullins’s first opportunity to drawn down equity from the home to pay the taxes was when the house was sold and the proceeds were distributed in the divorce proceedings. It does not appear—and we cannot assume— that nonpayment of the taxes at that time actually benefited her or (to put it differently) that payment of the taxes at the time of the distribution would have reduced her share of the distribution. The divorce court awarded Mr. Shirek half (i.e., $125,227) of the proceeds and ordered him to pay the taxes unilaterally; thus, the court evidently intended that Ms. Pullins receive $125,227 not reduced by tax payments. If instead Ms. Pullins and Mr. Shirek had agreed that the taxes would be paid directly from the proceeds, then on the basis of everything we know, it is altogether likely that the court would have awarded Ms. Pullins $125,227 and given Mr. Shirek only the remainder. If that is true, then Ms. Pullins did not benefit from the nonpayment of the taxes at that time but rather suffered the detriment, not intended by the divorce court, of having her share of the proceeds remain at risk of IRS collection. Under the circumstances of this case, we find that Ms. Pullins did not realize significant benefit from the non- payment of the taxes. Accordingly, this factor weighs in favor of granting relief. (6) Compliance with Federal tax laws Where the requesting spouse has made a good-faith effort to comply with Federal tax laws in years following the years for which she requests relief, this compliance can weigh in favor of relief. Ms. Pullins testified that she mailed tax returns for tax years 2004 and 2005 with filing status of married filing separate and single, respectively. She asserted VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00021 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 453 that she mailed those returns the Saturday before trial in September 2009. As of the date of trial, the IRS had no record of receiving the returns, and Ms. Pullins offered no evidence of their filing. The record does not clearly reflect whether or when Ms. Pullins filed a Federal income tax return for 2006—or whether she had an obligation to file for 2006. She requested an extension of time to file her 2007 return, and it was due on October 15, 2008. She filed the return one week late, with a balance due, and she paid that balance, plus interest and additions to tax, by February 24, 2009. Ms. Pullins asserts that her mailing her 2004 and 2005 Federal income tax returns the weekend before trial in Sep- tember 2009 shows that she was in compliance with her tax filing obligations at the time of trial. Those returns both claim an overpayment and request a refund. However, she filed each of those returns several years after they were due and on the eve of trial. We cannot say that she has proved that she made a good-faith effort to comply with Federal income tax laws in the years following the years in issue. Accordingly, this factor weighs against granting relief. (7) Abuse At trial Ms. Pullins testified that Mr. Shirek became an abusive alcoholic at the end of their marriage. She still trusted him when they signed the 2002 and 2003 returns in October 2004, but he moved out of the family home in December 2004, and she filed for divorce in February 2005. Ms. Pullins did not inform the IRS before trial that she suf- fered abuse at Mr. Shirek’s hands. On the contrary, in her April 2008 request for relief on Form 8857, she explicitly answered ‘‘No’’ to question 10: ‘‘Were you a victim of spousal abuse or domestic violence during any of the tax years you want relief?’’ At trial, however, Ms. Pullins alleged that Mr. Shirek emotionally abused her during the marriage. When ques- tioned about her ‘‘No’’ answer on Form 8857, she explained that she made a simple mistake and checked the wrong box. However, the following additional instructions accompany the ‘‘Yes’’ box: Attach a statement to explain the situation and when it started. Provide photocopies of any documentation, such as police reports, a restraining VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00022 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  454 136 UNITED STATES TAX COURT REPORTS (432) order, a doctor’s report or letter, or a notarized statement from someone who was aware of the situation. Ms. Pullins did not describe or document any alleged abuse in an attachment to her Form 8857; and she did not explain why, if she mistakenly checked ‘‘No’’, she did not follow the ‘‘Yes’’ instructions and do so. 13 Ms. Pullins has not introduced any evidence to corroborate her testimony—contradicted by her Form 8857—that she suf- fered abuse from Mr. Shirek. Accordingly, we do not find that she proved abuse. This factor does not weigh in favor of relief—and it also does not weigh against granting relief. See Rev. Proc. 2003–61, sec. 4.03(2)(b), 2003–2 C.B. at 299. (8) Mental or physical health There is no evidence that Ms. Pullins was ill when she signed the returns in issue or when she requested relief in April of 2008. See id. sec. 4.03(2)(b)(ii). This factor ordinarily would not weigh in favor of or against granting relief in the IRS’s analysis. See id. sec. 4.03(2)(b). However, having observed Ms. Pullins at trial in September 2009, we conclude that she is now disabled and unable to work and earn income and that she may be permanently so. We find that her obvi- ously impaired health at the time of the trial de novo is rel- evant, and we conclude that this factor weighs in favor of granting relief. b. Weighing the facts and circumstances This is a close case. Three factors favor retained liability: Ms. Pullins’s failure to prove economic hardship, her lack of a reasonable expectation that Mr. Shirek would pay the liabilities when she signed the returns, and her failure to timely file her returns and pay her taxes since the years in issue. However, four factors favor relief—Ms. Pullins’s divorce from Mr. Shirek, Mr. Shirek’s legal obligation to pay the tax liabilities, Ms. Pullins lack of significant benefit from the nonpayment, and Ms. Pullins’s poor health—and a fifth 13 Ms. Pullins explained that she did not allege abuse during her divorce proceedings because she wanted the divorce to proceed quickly so that she could get out of the marriage. This ration- ale may be perfectly logical for the divorce proceedings and may explain why the California fam- ily court judgment does not discuss abuse. Thus, we do not rely on that judgment to prove or disprove abuse. However, she completed Form 8857 in April 2008, long after the divorce pro- ceedings had concluded. VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00023 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA  (432) PULLINS v. COMMISSIONER 455 favors relief as to the 1999 deficiency, i.e., her lack of knowl- edge of Mr. Shirek’s unreported income. Especially weighty here is the fact that the divorce court—with the family’s cir- cumstances set out before it in greater detail than was pos- sible in our tax case—determined that Mr. Shirek should pay the taxes, placed proceeds in his hands sufficient to do so, and allocated resources to Ms. Pullins on the assumption that he would do so and she would not have to. Accordingly, after considering and weighing all the factors, we find that with the exception of her underwithholding of $719 of her own liability in 2002, it would be inequitable to hold Ms. Pullins liable for the 1999, 2002, and 2003 tax liabilities. To reflect the foregoing, An appropriate decision will be entered. f VerDate 0ct 09 2002 14:55 May 30, 2013 Jkt 372897 PO 20009 Frm 00024 Fmt 2847 Sfmt 2847 V:\FILES\PULLINS.136 SHEILA 

197 Kan. 486 (1966) 419 P.2d 860 THE STATE OF KANSAS, Appellee, v. HERMAN L. ADAMSON, Appellant. No. 44,407 Supreme Court of Kansas. Opinion filed November 5, 1966. Kenneth L. Ingham, of Wichita, argued the cause and was on the brief for the appellant. R.K. Hollingsworth, Deputy County Attorney, of Wichita, argued the cause, and Robert C. Londerholm, Attorney General, and Keith Sanborn, County Attorney, were with him on the brief for the appellee. The opinion of the court was delivered by FONTRON, J.: The defendant, Herman L. Adamson, has appealed from a conviction of second-degree burglary and grand larceny. In summary, the state's evidence showed that about 1.30 a.m., *487 January 23, 1965, a Wichita police officer, Herman R. Floyd, noticed a car parked on Emporia Street and saw that a glass was broken in the door of Dyer's Trading Post nearby. At approximately the same time, Floyd observed the defendant walking along the side of the building toward the parked car and get in under the wheel. When he walked up to the car to have a talk with the defendant, Floyd noticed two portable TV sets in the back seat. As the officer attempted to question the defendant, the latter started his car and drove off at high speed, turning off his lights after going two or three blocks. Giving chase, Officer Floyd radioed for assistance. He soon lost sight of the speeding car, but it was promptly picked up by other officers who followed it at excessive speeds until it was finally wrecked in a collision with another car. At this point two men jumped out and ran between some houses. Police officers pursued the fleeing men and the defendant was soon apprehended, after a warning shot had been fired, and was returned to the scene of the wreck. Here he was identified by Officer Floyd as the man who had driven away from him on Emporia Street and was identified by a second officer as the man he had seen jump out of the driver's seat of the car after the accident. The wrecked car was found to contain seven television sets taken from Dyer's Trading Post. The defendant's complaints are threefold: (1) That he was denied a continuance; (2) that prejudicial evidence was admitted which denied him a fair trial; and (3) that his sentence as an habitual criminal was excessive. These complaints will be considered in order. Upon his arrest the defendant was provided with assigned counsel, Donald B. Clark, who represented Adamson at his preliminary examination and at all times subsequent thereto until May 10, 1965, at which time Mr. Clark was permitted to withdraw because Adamson had retained Benjamin H. Brown to represent him. Clark's withdrawal was ten days prior to the time the case was set for trial. On May 18, 1965, the case was called for jury trial. At this time defense counsel orally moved for a continuance to the next term of court, stating he had just that morning talked with a material witness who would testify that on the day and time in question the defendant was with her at a club in a colored neighborhood. Counsel further stated he had not had sufficient time to give notice *488 [of alibi]. After some colloquy between the court and counsel for both sides, the motion for continuance was overruled. The rule is well established in this jurisdiction that the matter of a continuance in a criminal case lies largely within the sound discretion of the trial court, whose ruling will not be disturbed unless there has been an abuse of discretion which has prejudiced the defendant's substantial rights (State v. Hickock & Smith, 188 Kan. 473, 482, 363 P.2d 541, and cases cited therein.) In our considered opinion, no abuse of discretion has been made to appear in this case. The witness, a lady by the name of Wanda Brown, was present in the courtroom with defendant's common-law wife, Mae Marsh, throughout most of the day on May 18, 1965. The following morning Wanda reappeared and was called by the defendant to testify in his behalf. That Wanda repudiated, from the stand, the story she had previously told defense counsel does not negative the fact that she was available for further questioning by defense counsel during court recesses on May 18 and during all of that evening. And, since the state did not object to Wanda being questioned as an alibi witness, the defendant's prior failure to give notice was in nowise prejudicial. This brings us to the defendant's second complaint — the admission of prejudicial testimony. Wanda Brown testified on direct examination that she did not know the defendant and did not see him at the Starlight Club on January 23, 1965, but that Mae Marsh, the defendant's common-law wife, had paid her to testify otherwise. Thereupon, the state cross-examined Wanda who related that Mae and a fellow named Gene offered her $50 to testify that she was with defendant at the Satelite (or Starlight) Club on the night in question; that Mae paid her $25 at the time she agreed to tell such a story and paid her the balance after court had adjourned on May 18; that on the first morning of the trial, while on their way to court, Mae and Gene stopped with her at a restaurant for coffee where they rehearsed the story with her and then took her by the jail where they yelled her name to the defendant through a second-story window, after which they all proceeded into a conference room with Mr. Brown. The defendant maintains that the conversations which were had between Mae, Gene and Wanda were hearsay as to him and, thus, were inadmissible. There might be merit to this contention were it not for two matters appearing of record: First, no objection was made to Wanda's *489 testimony when it was given, except as to one answer discussed later; and second, the evidence leads to the inescapable conclusion that the defendant himself participated in the plot to introduce perjured testimony. Going to the first point, we are once again constrained to point out that Kansas is firmly committed to the contemporaneous objection rule. K.S.A. 60-404, which was enacted in 1963, provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." This statutory provision is but a restatement of our long existing rule which requires that objection be made to the introduction of evidence before its admission is subject to review by this court. (State v. Netherton, 133 Kan. 685, 690, 3 P.2d 495; State v. Freeman, 195 Kan. 561, 564, 408 P.2d 612, cert. den. 384 U.S. 1025, 16 L.Ed.2d 1030, 86 S.Ct. 1981; State v. Jolly, 196 Kan. 56, 58, 410 P.2d 267; State v. Donahue, 197 Kan. 317, 320, 416 P.2d 287.) Furthermore, the evidence clearly shows the defendants complicity in a plan to use Wanda's false testimony. He testified he had known Wanda Brown a few months and had seen her on the evening of January 23 at the Starlight (or Satelite) Club, which he had left quite some time after 1:00 o'clock. On cross-examination, the defendant identified Wanda Brown as being the young lady who had been sitting in the courtroom that day with Mae Marsh, his common-law inamorata. Again, at the argument on his motion for new trial, the defendant was sworn and testified: "A. Well, the only one — all I know is the woman's name was Lawanda and I thought this witness was Lawanda, and all they hollered up at me in that window was that they had found my witness, Lawanda, and I took it was the right woman. "Q. And it proved out to be the wrong Wanda? "A. It certainly did." In our judgment, Wanda's evidence, buttressed as it is by the testimony of the defendant himself, removes any reasonable doubt as to his knowledge of and collaboration in the illicit undertaking to secure perjured testimony. The defendant's after-trial claim that the witness he wanted was Lawanda, not Wanda, comes far too belatedly and is entirely unpersuasive. Being a participant in a devious plot to introduce false testimony *490 at his trial, the defendant is in no position to complain of statements made by Mae Marsh in pursuance of that plan. K.S.A. 60-460 (i), which deals with hearsay evidence, makes the statement of a declarant admissible against a party when — "... (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination ..." This statutory rule of evidence is merely the application of the law concerning statements made by fellow conspirators which this court has long followed. (State v. Borserine, 184 Kan. 405, 337 P.2d 697; State v. Shaw, 195 Kan. 677, 408 P.2d 650.) During Wanda's cross-examination, the following questions and answers were asked and given: "Q. Did she [Mae] tell you that you should tell the jury that you had known him [defendant] not longer than from July? "A. Yes. "Q. Did she tell you why? "A. Because he had been in the penitentiary out in California. "Q. Before that? "A. Yes." A defense objection to this testimony was overruled by the trial court. Even though the evidence, in effect, disclosed a prior conviction, we are inclined to believe that its admission was not erroneous under the surrounding circumstances. The defendant had testified he had known Wanda only a few months, and the challenged evidence tends to explain the reason for this particular fabrication on his part. It is part and parcel of the whole nefarious scheme to suborn perjury. We conclude that defendant's second point — the erroneous admission of prejudicial evidence — cannot be sustained. We turn to the defendant's final complaint. Before sentence was pronounced, the state introduced evidence of two prior convictions, and the defendant wound up with two consecutive sentences of 25 years each. He now contends that, in imposing the two sentences, the trial court erred in admitting the record of a previous Oklahoma felony conviction. This objection is premised on the failure of the Oklahoma journal entry to disclose whether the defendant was represented by counsel at the time he was sentenced on his plea of guilty. This contention lacks merit. The defendant is not entitled, in this proceeding, to mount a collateral attack upon the validity of the Oklahoma judgment. *491 In State v. Engberg, 194 Kan. 520, 400 P.2d 701, cert. den. 383 U.S. 921, 15 L.Ed.2d 676, 86 S.Ct. 899, we were confronted with a similar argument, and we there held: "The defendant in a criminal action charged with a felony cannot make a collateral attack upon the judgments of prior felony convictions rendered against him in another state on the ground that he was not represented by counsel in such criminal proceedings, in an effort to defeat application of the habitual criminal statute (G.S. 1949, 21-107a, now K.S.A. 21-107a) authorizing an increased penalty, since the full faith and credit clause of the United States Constitution requires that the courts of this state give full faith and credit to the judgments of the courts of our sister states." (Syl. ¶ 2.) We have carefully scrutinized the record in this case and find no error which may be said to have prejudiced the substantial rights of the defendant. The judgment is affirmed.

976 F.2d 731 Danielsv.Puckett* NO. 91-1897 United States Court of Appeals,Fifth Circuit. Sept 24, 1992 1 Appeal From: S.D.Miss. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

United States Court of Appeals for the Federal Circuit * Corrected: May 29, 2009 2008-1171 Pete Geren, SECRETARY OF THE ARMY, Appellant, v. TECOM, INC., Appellee. Domenique Kirchner, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for appellant. With her on the brief were Jeanne E. Davidson, Director, and Bryant G. Snee, Trial Attorney. Of counsel on the brief was Craig S. Clarke, Deputy Chief, Contract and Fiscal Law Division, United States Army Legal Services Agency, United States Department of the Army, of Arlington, Virginia. Jonathan M. Bailey, Bailey & Bailey, P.C., of San Antonio, Texas, argued for appellee. Appealed from: Armed Services Board of Contract Appeals Administrative Judge Rollin A. Van Broekhoven * Correction in spelling of Senior Trial Attorney’s name.  United States Court of Appeals for the Federal Circuit 2008-1171 Pete Geren, SECRETARY OF THE ARMY, Appellant, v. TECOM, INC., Appellee. Appeal from the Armed Services Board of Contract Appeals in no. 53884. ___________________________ DECIDED: May 19, 2009 ___________________________ Before LOURIE, DYK, and PROST, Circuit Judges. Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge LOURIE. DYK, Circuit Judge. The government appeals from the decision of the Armed Services Board of Contract Appeals (“Board”) granting summary judgment in favor of Tecom, Inc., and holding that defense costs and settlement payments associated with a Title VII sexual harassment suit are allowable costs under the Federal Acquisition Regulations (“FAR”). Tecom Inc., ASBCA No. 53884, 54461, 2007 WL 2899660 (Sept. 21, 2007) (“Board Decision”). We hold that under the contract the costs associated with an adverse judgment would not be allowable, and that under our decision in Boeing North American, Inc. v. Roche, 298 F.3d 1274 (Fed. Cir. 2002), defense and settlement costs are allowable only if the contractor can show that the plaintiff in the Title VII suit had very little likelihood of success. Accordingly, we reverse and remand for further proceedings. BACKGROUND The material facts are not in dispute. Tecom was awarded a negotiated cost reimbursement contract for military housing maintenance at Fort Hood, Texas, on December 13, 1995. The contract incorporated by reference numerous provisions of the FAR, including FAR § 52.222-26 Equal Opportunity (Apr. 1984), which states, in part: The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. 48 C.F.R. § 52.222-26. Sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title VII”), is clearly a breach of this provision of the contract; the contractor makes no argument to the contrary. During the performance of the contract, a former employee sued Tecom under Title VII, alleging sexual harassment and firing in retaliation for filing a sexual harassment charge. The conduct forming the basis of the allegation occurred while the employee was working on the government contract. The allegations, if proved, would violate Title VII. In the course of defending this Title VII litigation, Tecom incurred legal fees totaling $96,163.16. Tecom ultimately decided to settle the matter with the former employee for $50,000. The terms of the settlement agreement stated that the 2008-1171 2 settlement did not include “back pay.” The settlement also stated that Tecom did not admit to any wrongdoing. On September 2, 1999, Tecom requested reimbursement from the government in the amount of $146,163.16, representing defense costs and settlement payments related to the Title VII litigation. Tecom sought to include its legal fees as an indirect cost charged to its G&A expense pool. Tecom sought to bill its settlement cost as a direct cost of the contract. Tecom claimed that it did not violate the law and the allegations of the former employee were false, but that the cost of trying the case would have been approximately $300,000. Tecom argued that the defense and settlement costs were allowable under the contract and the FAR, and were reasonable because the settlement costs were less than the costs of going to trial, even if Tecom had prevailed. The government denied that these expenses were allowable, and, on June 22, 2001, Tecom converted its request for payment to a formal claim and requested a contracting officer’s final decision. After the statutory period elapsed without a final decision, the claim was deemed denied by the Contracting Officer pursuant to 41 U.S.C. § 605(c)(5), and Tecom filed a notice of appeal to the Board. On cross-motions for summary judgment, the government argued that the attorney’s fees and damages associated with a judgment of liability under a Title VII claim were not allowable costs, and that, under Boeing, 298 F.3d at 1288-89, the cost of settling such claims would also be unallowable unless the contractor proved that the suit had very little likelihood of success on the merits. The contractor argued that the cost of 2008-1171 3 settling a Title VII suit (except for an explicit backpay award) 1 is always allowable, notwithstanding Boeing, because Boeing was limited to suits that involved allegations of fraud or similar misconduct. The Board granted the contractor’s motion, and held that Boeing did not apply where there were no charges that the contractor had engaged in criminal conduct, fraud, or violations of the Major Fraud Act of 1988. The Board remanded to the contracting officer for the limited purpose of a “determination of the reasonable amounts to be reimbursed appellant consistent with this decision and the Allowable Cost and Payment clause.” Board Decision, slip op. at 29. The parties agree that the decision of the Board was a final decision subject to appeal under 41 U.S.C. § 607(g)(1). 2 The government timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10). We review the Board’s grant of summary judgment de novo. Lear Siegler Servs., Inc. v. Rumsfeld, 457 F.3d 1262, 1266 (Fed. Cir. 2006). Legal determinations of the Board, including interpretation of statutes, regulations, and contracts are reviewed without deference. 41 U.S.C. § 609(b). 1 FAR § 31.205-6(h) addresses backpay, and states that “[b]ackpay is unallowable” with certain exceptions, including that backpay “resulting from underpaid work actually performed [is] allowable, if required by a negotiated settlement, order, or court decree.” 2 We agree that the Board’s decision is final within the meaning of 28 U.S.C. § 1295(a)(10) because the contracting officer’s “decision” that was on review before the Board was a claim deemed denied under 41 U.S.C. § 605(c)(5). Dewey Elecs. Corp. v. United States, 803 F.2d 650, 653-58 (Fed. Cir. 1986). As such, the only issue decided by the contracting officer was allowability, and, in deciding this issue, the Board therefore decided the only issue that was before it on review, remanding for a determination only of the amount to be allowed (an issue not previously decided by the contracting officer). Id. 2008-1171 4  DISCUSSION The issue on appeal is whether the costs of defending and settling a Title VII suit are allowable costs under this government contract. Under the FAR, the costs incurred by the contractor are “allowable only when the cost complies with all of the following requirements: (1) Reasonableness. (2) Allocability. (3) [The CAS accounting principles]. (4) Terms of the contract. (5) Any limitations set forth in this subpart.” FAR § 31.201-2. We have previously held that the regulations distinguish between allocability, which “is an accounting concept involving the relationship between incurred costs and the . . . [contracts] to which those costs are charged,” and allowability, which “concerns whether a particular cost can be recovered from the government in whole or in part.” Boeing, 298 F.3d at 1280. Only the fourth and fifth elements are at issue in this appeal. Both relate to the allowability of costs. The fourth element of allowable costs requires that the “cost complies with [the] . . . [t]erms of the contract.” FAR § 31.201-2. This condition on allowable costs can be found in regulatory provisions governing government contracts going back decades, including the former Armed Services Procurement Regulations. 32 C.F.R. § 7.203-4 (Cum. Sup. 1960) (stating that costs must “be allowable in accordance with . . . [t]he terms of this contract”); see 23 Fed. Reg. 6345, 6347 (Aug. 19, 1958). The fifth element of allowable costs requires that “the cost complies with . . . [a]ny limitations set forth in this subpart.” FAR § 31.201-2. This refers to costs made unallowable in FAR subpart 31.2. The FAR specifically provides that a number of costs are either allowable or not allowable. However, as FAR § 31.204 makes clear, the FAR “does not cover every element of cost. Failure to include any item of cost does not 2008-1171 5 imply that it is either allowable or unallowable.” As we discussed in Boeing, where neither the contract nor the FAR dictates the treatment of specific costs, we must determine how those costs are to be treated by looking to “the principles and standards in this subpart and the treatment of similar or related selected items.” 298 F.3d at 1285 (emphasis omitted) (quoting FAR § 31.204(c)). As described in Boeing, even though costs of professional services and costs of settling litigation are generally allowable, this is not always the case. Where the claimed costs are associated with a settlement agreement we conduct a two-step inquiry in addressing the allowability of such costs: (1) we ask whether, if an adverse judgment were reached, the damages, costs, and attorney’s fees would be allowable; (2) if not, we ask whether the costs of settlement would be allowable. Boeing, 298 F.3d at 1285- 89. I As to the first step—the judgment costs—the contractor at oral argument first conceded that the costs associated with an adverse judgment in a Title VII suit would not be allowable, and later in oral argument sought to retract that concession. Oral Arg., Jan. 6, 2009, 16:12-30; 20:44-21:32, available at http://oralarguments.cafc. uscourts.gov/mp3/2008-1171.mp3. We conclude that the initial concession was well taken because the damages, costs, and attorney’s fees associated with a violation of Title VII would not be allowable under this contract. Like the present case, Boeing involved a claim for the cost of settling a private lawsuit. In Boeing the underlying private suit was a shareholder suit against, inter alia, fourteen directors of the company. 298 F.3d at 1276. Prior to the underlying 2008-1171 6 shareholder suit at issue in Boeing, the contractor had been convicted by the government of, inter alia, fraud against the government. Id. at 1277. After this conviction and the resulting fines and penalties, the shareholder suit was brought. The shareholder suit was based largely on the criminal convictions that were allegedly incurred because the directors of the company “fail[ed] to establish internal controls sufficient” to prevent fraud. Id. We noted that FAR § 31.205-47 specifically dealt with the criminal convictions and fraud against the government. See Boeing, 298 F.3d at 1287 n.14. 3 However, the 3 FAR § 31.205-47 addresses certain costs related to legal proceedings: (b) Costs incurred in connection with any proceeding brought by a Federal, State, local, or foreign government for violation of . . . law or regulation by the contractor . . . , costs incurred in connection with any proceeding brought by a third party in the name of the United States under the False Claims Act, 31 U.S.C. § 3730, are unallowable if the result is— (1) In a criminal proceeding, a conviction; (2) In a civil or administrative proceeding, either a finding of contractor liability where the proceeding involves an allegation of fraud or similar misconduct or imposition of a monetary penalty where the proceeding does not involve an allegation of fraud or similar misconduct; *** (4) Disposition of the matter by consent or compromise if the proceeding could have led to any of the outcomes listed in subparagraphs (b)(1) through (3) of this subsection (but see paragraphs (c) and (d) of this subsection); (c) (1) To the extent they are not otherwise unallowable, costs incurred in connection with any proceeding under paragraph (b) of this subsection commenced by the United States that is resolved by consent or compromise pursuant to an agreement entered into between the contractor and the United States, and which are unallowable solely because of paragraph (b) of this subsection, may be allowed to the extent specifically provided in such agreement. 2008-1171 7 FAR did not specifically address shareholder suits alleging a failure to prevent criminal wrongdoing. To determine whether the cost of defending the shareholder suit in this case would be allowable, we asked whether the shareholder suit was “similar or related” to the costs of the underlying convictions as described in FAR § 31.204(c). Boeing, 298 F.3d at 1285-86. We first held that costs of shareholder suits are not similar to costs incurred in connection with criminal convictions or any other disallowed cost in the FAR. Id. at 1286. However, we held that this particular shareholder suit was “related” to the convictions. Id. at 1287. Judgment against the contractor in the suit would require “a judicial determination that the [contractor’s] directors had failed to maintain adequate controls to prevent the occurrence of the wrongdoing against the government.” Id. This, we held, established a sufficiently direct relationship to the disallowed costs of the criminal convictions, that the cost of defending against an adverse judgment in the shareholder suit would also be disallowed. Id. at 1288-89. The Ninth Circuit followed this aspect of our Boeing decision in Southwest Marine, Inc. v. United States, 535 F.3d 1012 (9th Cir. 2008). Southwest Marine involved an adjudication of liability for civil penalties under the Clean Water Act in a citizen suit pursuant to 33 U.S.C. § 1365(a). Id. at 1014-15. Under the FAR, “costs (2) In the event of a settlement of any proceeding brought by a third party under the False Claims Act in which the United States did not intervene, reasonable costs incurred by the contractor in connection with such a proceeding, that are not otherwise unallowable by regulation or by separate agreement with the United States, may be allowed if the contracting officer, in consultation with his or her legal advisor, determines that there was very little likelihood that the third party would have been successful on the merits. (emphases added). 2008-1171 8 incurred in connection with any proceeding brought by a third party in the name of the United States under the False Claims Act, 31 U.S.C. § 3730, are unallowable if the result is . . . imposition of a monetary penalty.” FAR § 31.205-47(b). The court held citizen suits under the Clean Water Act that resulted in civil penalties were “similar” to these costs disallowed in the FAR in False Claims Act proceedings. Sw. Marine, 535 F.3d at 1017. As a result, the costs in Southwest Marine were not allowable. Id. The parties agree that, in general, neither the statute nor the FAR explicitly discusses the allowability of costs associated with adjudicated Title VII violations. The government argues that, under FAR § 31.205-47 and our decision in Boeing, any costs associated with a judgment of contractor violation of Federal law would not be allowable. Alternatively, the government argues that, because punitive damages are recoverable under Title VII, a violation of Title VII would be similar or related to disallowed monetary penalties under FAR § 31.205-15. 4 However, we need not go so far to resolve this case. We find that the cost of an adverse judgment in this case would be unallowable in any event, because a contractor violation of Title VII would breach this contract, and costs related to such a breach would not be allowable. The FAR states specifically that costs are allowable only if the “cost complies with [the] . . . [t]erms of the contract.” FAR § 31.201-2. As the government points out, the contract specifically required the contractor not to discriminate on the basis of sex: “During perform[ance of] this contract, the Contractor agrees . . . [t]he Contractor shall 4 FAR § 31.205-15 addresses fines and penalties, and states that “[c]osts of fines and penalties resulting from violations of . . . Federal, State, local, or foreign laws and regulations, are unallowable except when incurred as a result of compliance with specific terms and conditions of the contract.” 2008-1171 9 not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.” J.A. 4; FAR § 52.222-26; see 42 U.S.C. § 2000e- 2(a). Sexual harassment is a form of sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). The violation of Title VII by sex discrimination or retaliation is a textbook breach of this contractual provision. Thus, if sexual harassment and retaliation were established at trial, the costs of the defense and the judgment would certainly result from a breach of the contract. Under the decision of our predecessor court in Dade Brothers, Inc. v. United States, costs resulting from a breach of a contractual obligation are not allowable costs under the contract. 325 F.2d 239, 240 (Ct. Cl. 1963). The contract in Dade preceded the modern system of uniform procurement regulations; nonetheless, the contract in Dade was very explicit that the cost of defending third party suits was generally allowable. The court noted that: [T]he contractor would be entitled to reimbursement of “the cost and expense of such litigation, including judgments and court costs, allowances rendered or awarded in connection with suits for wages, overtime or salaries, and reasonable attorney’s fees for private counsel.” Id. at 239-40 (quoting the contract). However, in Dade the cost-plus-fixed-fee government contract also contained a provision specifically stating that “[t]he Contractor will abide by all the terms and conditions of the Union Agreement with [the relevant union].” Dade Def.’s Br. 6 (filed Feb. 28, 1963). Fifty-four employees who were members of the union sued the contractor and certain union officials in state court, alleging that the employees were denied seniority rights they were entitled to under the union contract as a result of a 2008-1171 10 conspiracy among the employer and these certain union officials. The contractor was found liable by a jury, and the verdict was upheld on appeal to the highest level of the state court system. Dade, 325 F.2d at 239. The contractor sought to treat the cost of defending the suit in state court and the cost of satisfying the adverse judgment as allowable costs under the contract. The Court of Claims held that these costs were not allowable costs: [T]here is no ground for recovery against the Government. Neither the wording nor the policy of the litigation- reimbursement article of the government contract authorizes reimbursement of expenses incurred because the contractor breached its agreement with the Government or failed to perform that contract faithfully. Id. at 240 (emphasis added). After the date of the contract in Dade, the government regulations were amended to include this principle, which has been explicitly articulated in uniform government contract regulations since 1958. 32 C.F.R. § 7.203-4 (Cum. Supp. 1960) (stating that costs must be “allowable in accordance with . . . [t]he terms of this contract”); see 23 Fed. Reg. 6345, 6347 (Aug. 19, 1958). The modern FAR as well explicitly articulates this principle, stating that a cost is allowable only if the “cost complies with . . . [t]he terms of this contract.” FAR § 31.201-2. In this case, the alleged discrimination would clearly violate the contract, and thus costs associated with an adverse judgment on the merits would not be allowable. This conclusion is underscored by the clear public policy of Title VII. For example, the Supreme Court in NAACP v. Federal Power Commission considered whether the Federal Power Commission (“FPC”) had authority to disallow the costs of unlawful discriminatory employment practices of regulatees in setting rates. 425 U.S. 662, 668 (1976). The FPC had statutory authority to set “just and reasonable” rates for the 2008-1171 11 transmission and sale of electricity. Id. at 666. The Court of Appeals had held that this authority included the power to prevent the cost of the regulatees’ discriminatory employment practices from being reflected in the rate charged and thus passed on to consumers: The Commission’s task in protecting the consumer against exploitation can be alternatively described as the task of seeing that no unnecessary or illegitimate costs are passed along to that consumer. Costs incurred by reason of a regulatee’s choosing to practice racial discrimination are within the reach of that responsibility. . . . [For example,] duplicative labor costs incurred in the form of back pay recoveries . . . [and] the costs of legal proceedings. Id. at 666-67 (quoting NAACP v. Fed. Power Comm’n, 520 F.2d 432, 444) (emphasis added). The Supreme Court agreed, and held that costs resulting from violations of Title VII were unreasonable and should not be part of the rate passed on to consumers: To the extent that such costs are demonstrably the product of a regulatee’s discriminatory employment practices, the Commission should disallow them. For example, when a company complies with a backpay award resulting from a finding of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it pays twice for work that was performed only once. Id. at 668 (emphases added). This case clearly demonstrates the expansive scope of the public policy preventing the government from being complicit in paying for discriminatory employment practices. Just as it is not “just and reasonable” for a company to pass the costs of Title VII violations on to consumers, similarly it is unreasonable to pass such costs on to the government in a contract context. Tecom provides no reason why the violation of Title VII alleged in this case, if established, would not also establish a breach of contract. Instead, Tecom would have us limit Dade, without any principled basis, to the specific contractual facts of that case. 2008-1171 12 In support of limiting Dade to its facts, Tecom argues that if private lawsuits establishing a violation of the contract are unallowable that will mean virtually any lawsuit will result in unallowable costs because the Permits and Responsibilities Clause, FAR § 52.236-7, incorporated in construction contracts by FAR § 36.507, makes it a violation of the contract to violate any law. Tecom’s policy concerns are founded on an incorrect premise. The Permits and Responsibilities Clause does not broadly make failure to comply with the law a violation of the contract. Rather, the Permits and Responsibilities Clause simply states that the contractor is “responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work” so that the contractor’s failure to perform is not excused if impeded by the contractor’s failure to comply with legal obligations. FAR § 52.236-7 (emphasis added). II The second step of this inquiry—how to treat a settlement agreement when an adverse adjudication would not be allowable—need only be discussed briefly, as the issue is squarely addressed by our decision in Boeing. We first noted that costs of settling suits brought by the federal government would be unallowable if the costs of satisfying a judgment would be unallowable: This policy judgment appears to be based on the assumption that suits brought by government entities are in most situations likely to be meritorious, thus justifying a bright line rule that does not look behind the settlement. Where a suit is brought by a private party and the suit is settled, however, such a blanket assumption is not appropriate. 2008-1171 13 298 F.3d at 1288. Thus, the policy of the FAR was to disallow the cost of settling suits that were likely to have been meritorious and therefore would have been disallowed if not settled. But we also concluded that no blanket assumption that the suit was meritorious applied to private suits. Rather, where an adverse judgment would be unallowable in a private suit, the settlement of the private suit is similar to the FAR provisions concerning private suits under the False Claims Act: The regulations suggest that where a private suit is involved an inquiry is necessary to determine whether the plaintiff was likely to prevail. This approach is most clearly reflected in the FAR regulations’ treatment of settlements of private suits brought under the False Claims Act where the government does not intervene. FAR § 31.205-47(c)(2) (2000). Such costs may be allowable if the contracting officer determines that there was “very little likelihood that the third party [plaintiffs] would have been successful on the merits.” Id. Id. (emphases added, footnotes omitted, and alteration in original). As this quotation clearly shows, in private suits “an inquiry is necessary to determine whether the plaintiff was likely to prevail.” Id. We found this approach “most clearly reflected” in regulations relating to fraud but did not limit our holding to that situation. 5 Id. We held that, under the principles and standards of the FAR, whenever the costs of a judgment would be unallowable, the cost of a settlement would also be unallowable unless the contractor could prove that the private suit had very little likelihood of success on the merits. Id. While Boeing involved only defense costs and not settlement payments, Boeing applies equally to settlement payments. Settlement payments are related to the 5 Although subsection (c)(2) was added in 1996 and the contract was signed in 1995, as discussed in Boeing, (c)(2) was added to clarify the application of cost principles, and applies retroactively. Boeing, 298 F.3d at 1288 n.17. To the extent that the Board suggested otherwise, the Board erred. 2008-1171 14 damages or penalties that would have been associated with an adverse judgment. Indeed, Tecom does not argue otherwise. Where the damages or penalties paid in the event of an adverse judgment are disallowed, the settlement cost is also unallowable unless the contractor can establish that the private Title VII plaintiff had very little likelihood of success on the merits. The dissent does not dispute that a Title VII judgment against the contractor would not have been allowable in this case. However, the dissent suggests that (apart from fraud situations) settlement costs should be allowable, regardless of how clearly meritorious the claim, and urges that Boeing adopted a rule limited to fraud settlements. We think that Boeing clearly adopted a broader rule applicable to private settlements generally where the defense and judgment costs would be disallowed in the case of a final adjudication. Indeed, that was the whole point of Boeing—to determine the applicable rule for similar or related cases not covered by the regulations. Boeing concluded that “[f]or the costs to be allowable in a settlement situation (where the costs of an unsuccessful defense would be disallowed), Boeing must show that the allegations in the [underlying] action had ‘very little likelihood of success on the merits.’” Id. at 1288-89. The dissent suggests that applying the likelihood of success test to private settlements generally would be unwise. Dissent at 4-5. But the rule urged by the dissent would allow a contractor who engaged in conduct prohibited by the contract— where defense and judgment costs would be disallowed if it were tried to judgment—to nonetheless recover the defense and settlement costs if it resolved the case before judgment. It cannot be the policy of the FAR to permit a contractor who is certain to 2008-1171 15 lose on the merits to defeat disallowance by the simple expedient of settling before the litigation is concluded. The Boeing rule prevents such an outcome by applying a very little likelihood of success standard to all private settlements where defense and judgment costs would be disallowed if the case went to final judgment against the contractor. CONCLUSION We find that the Board erred in refusing to apply our decision in Boeing to the costs at issue in this case. To the extent that other decisions of the Board are inconsistent with this decision, they are no longer good law. We therefore reverse and remand for further proceedings consistent with this opinion. REVERSED and REMANDED COSTS No costs. 2008-1171 16  United States Court of Appeals for the Federal Circuit 2008-1171 Pete Geren, SECRETARY OF THE ARMY, Appellant, v. TECOM, INC., Appellee. Appeal from the Armed Services Board of Contract Appeals in no. 53884. LOURIE, Circuit Judge, dissenting. I respectfully dissent from the majority opinion, which reverses the decision of the Armed Services Board of Contract Appeals (the “Board”) and extends Boeing North American, Inc. v. Roche, 298 F.3d 1272 (Fed. Cir. 2002), to reach the facts of this case. I believe that such an extension is unwarranted given the different factual background of the instant action. In Boeing, this court faced the question of which standard should apply for determining the allowability of settlement costs of a shareholder derivative suit. That derivative suit, referred to as the Citron suit, was brought by private parties and alleged a breach of fiduciary duty by directors and officers of a corporation for “failing to establish internal controls sufficient to insure that the [c]orporation’s business was carried on in a lawful manner.” 298 F.3d at 1277 (quoting the complaint, alteration in original). Specifically, the parties agreed that “five instances of underlying misconduct” were involved in the Citron suit: (1) a civil suit brought by the government under the False Claims Act; (2) criminal charges brought by the government for making false statements; (3) government allegations of defective pricing that resulted in indictments for fraud, mail fraud, and willfully making false statements and that, ultimately, led to a guilty plea to two counts of the indictment; (4) a civil qui tam suit, brought on behalf of the government under the False Claims Act; and (5) allegations of hazardous waste dumping and other environmental law violations. Id. Thus, although the lawsuit brought by private parties that resulted in settlement was on its face based on breach of fiduciary duty, four of the five instances of underlying misconduct involved false statements or fraud. After determining that no regulation specifically addressed whether the defense costs of the Citron lawsuit were or were not allowable, the Boeing court concluded that the costs were not “similar” to costs specifically disallowed under the Federal Acquisition Regulations (“FAR”) but were “related to” disallowed defense costs for a suit that resulted in criminal convictions of the directors. Id. at 1286-87. But, given that there was no judicial determination of wrongdoing because the parties settled, the Boeing court then had to determine whether the settlement costs of the Citron suit were allowable. The court found that the regulations did not provide a blanket rule that stated that settlement costs for a private litigation should be disallowed if the costs for an unsuccessful defense of such a suit would have been disallowed. Boeing, 298 F.3d at 1287-88. The court presumed, however, that meritorious suits should be treated 2008-1171 2 differently from those that lacked merit and looked to the FAR for guidance as to whether the settlement costs of the Citron suit were allowable: The regulations suggest that where a private suit is involved an inquiry is necessary to determine whether the plaintiff was likely to prevail. This approach is most clearly reflected in the FAR regulations’ treatment of settlements of private suits brought under the False Claims Act where the government does not intervene. Such costs may be allowable if the contracting officer determines that there was “very little likelihood that the third party [plaintiffs] would have been successful on the merits.” Id. at 1288 (quoting FAR § 31.205-47(c)(2), 48 C.F.R. § 31.205-47(c)(2)) (other citations omitted, alteration in original). The Boeing court concluded that the very little likelihood of success standard from FAR § 31.205-47(c)(2) was “an appropriate standard for private suits in the present context.” Id. The Boeing court held, quoting the exact language of FAR § 31.205-47(c)(2), that “[f]or the costs to be allowable in a settlement situation (where the costs of an unsuccessful defense would be disallowed), Boeing must show that the allegations in the Citron action had ‘very little likelihood of success on the merits.’” Id. at 1288-89. It is clear to me from the analysis in Boeing that the very little likelihood of success standard, which is found in the FAR only in § 31.205-47(c)(2), was a far more “appropriate standard” for the facts of that case than for the present situation. FAR § 31.205-47(c)(2) specifically applies to “settlement of any proceeding brought by a third party under the False Claims Act in which the United States did not intervene.” It does not apply to any and all settlements of lawsuits brought by private parties involving any and all types of allegations. As discussed above, the private suit that settled in Boeing involved several instances of fraudulent behavior and the making of false statements, including a qui tam suit brought under the False Claims Act. Clearly, the fact that FAR 2008-1171 3 § 31.205-47(c)(2) specifically addresses a private suit under the False Claims Act lends support to the Boeing court’s decision to utilize the very little likelihood of success language from that regulation as the standard of allowability of the settlement costs of the Citron suit. Unlike Boeing, however, the case at hand does not present the same opportunity for analogizing to qui tam cases brought under the False Claims Act. There is no nexus between the facts of the private suit in this case, a sexual harassment suit filed by a former employee, and a lawsuit brought by a third party on behalf of the government that alleges fraud or similar misconduct. To apply Boeing here would be extending the reach of that decision, which looked to the very little likelihood of success language in a far more similar set of circumstances to what FAR § 31.205-47(c)(2) actually covers, to apply to any settlement of a lawsuit brought by a private party when the costs of an unsuccessful defense would be disallowed. Such an extension, in my opinion, is unwarranted given the specific applicability of FAR § 31.205-47(c)(2) to private suits brought under the False Claims Act in which the government does not intervene, and I believe the Board was correct in refusing to apply the Boeing standard in this case. A final thought: Determining the likelihood of success in a law suit is not so easily done. If it were, we would not have so many suits, appeals, and reversals of decisions in our legal system generally. It is one thing to have that standard be a criterion for allowability of costs in defending a suit when fraud against the government is alleged. It is quite another to have that standard be the criterion in a suit involving two private parties, even when the subject matter relates to a government contract. The government has an interest in setting a higher barrier for the allowability of settlement 2008-1171 4 costs when it is the party allegedly being defrauded, and may in fact be suing for that fraud, than when it is two private parties who are contending. I therefore recoil from judicially extending that difficult-to-apply likelihood of success rule beyond its current borders. Finally, the whole point of a settlement generally is that neither party is assured of success and the law favors settlement of such disputes. Thus, I do not believe we as a court should extend the Boeing application of a regulation to settlements beyond fraud cases, where the government’s interest is especially compelling. For the foregoing reasons, I respectfully dissent. 2008-1171 5 

664 S.W.2d 447 (1984) 281 Ark. 325 Marcella NILSSON, Appellant, v. Howard M. LATIMER et ux., Appellees. No. 83-201. Supreme Court of Arkansas. February 6, 1984. Rehearing Denied March 12, 1984. *448 Steven G. Nilsson, Dallas, Tex., for appellant. R. David Lewis, Little Rock, for appellees. HAYS, Justice. Marcella Nilsson, appellant, and Howard Latimer, appellee, are landowners having a common boundary—the Little Cossatot River and Mill Slough. Nilsson sought a declaratory judgment to interpret the language of the deed of each party and to determine their respective rights to the stream bed, contending that Latimer was not a riparian owner. Each owner also claimed damages from the other for unreasonable uses of the water. The Chancellor found Latimer to be a riparian owner and that neither party had made unreasonable use of the water. On appeal, we affirm. Nilsson's land was acquired in two conveyances, one to Nall's Island (lying between Mill Slough and the Little Cossatot) and the other to certain lands lying "west of the Little Cossatot River." Nilsson's argument that Latimer is not a riparian owner is based not so much on the strength of her own deeds as on the following wording in Latimer's deed: ... and running North 2236 links to the left bank of Little Cossatot River, then meandering up stream with left bank of said stream to the mouth of the Mill Slough, thence up stream with left bank of said slough ... Nilsson believes that because Latimer's land is described by a call to the bank and not to *449 the river, Latimer did not receive title to any part of the bed of the stream and, therefore, is not a riparian owner. We disagree with the argument. The general rule in Arkansas, as in other jurisdictions, is that riparian landowners on a non-navigable stream take title to the thread, or center of the stream. Gill v. Hedgecock, 207 Ark. 1079, 184 S.W.2d 262 (1944); Thompson on Real Property, § 3075. The question to be settled here is how that rule is affected by the terms of a deed describing that part of the land bounding the water. It has long been a rule of property that absent an express reservation by the grantor, a conveyance of riparian property conveys title to the thread of the stream unless a contrary intention appears or is clearly inferrable from the terms of the deed. Gill v. Hedgecock, supra; Kilgo v. Cook, 174 Ark. 432, 295 S.W. 355 (1927); Thompson, supra, §§ 3075, 3083; 78 A.L. R.3d 604; 78 A.L.R. 597. There is some disagreement, however, as to what terms will express a contrary intention sufficient to rebut the general presumption. There is authority that land described as bounded "along the bank" or by some call in reference to the bank, or to the low-water mark, will exclude title to the bed, while a call to the river will not. But we believe the better rule of construction is that the grantee takes title to the bed, irrespective of whether the call is to the river or to the bank, if there is no specific reservation of the bed by the grantor, or a clear manifestation of such intent. The policies supporting such a rule are sound, as it is far less likely that the grantor would have any reason to retain title to the bed, where he has not reserved it, and that strip of land would be of much greater value to the grantee. Moreover, if the rule were otherwise, it would result in many instances in portions of the river beds to which title would remain in an unsettled state. We think this result is consistent with our holding in Person v. Johnson, 218 Ark. 117, 235 S.W.2d 876 (1951) and Gill v. Hedgecock, supra. Nilsson places some reliance on Kilgo v. Cook, supra, a case involving disputed riparian claims. There, the language in Cook's deed described the land bordering on the eastern edge of the water as "... to War Eagle Creek, thence down War Eagle Creek ...", whereas Kilgo's deed purported to give him title to the entire stream bed. On appeal, Cook was held not to have title to the stream bed on the distinction that War Eagle Creek had not been meandered by the original government survey. Similarly, the Little Cossatot and Mill Slough were not meandered and Nilsson contends, therefore, that Latimer is precluded from any title to the bed. But we find that the distinction made in Kilgo was based on a misconception, because while a meander line completed by the government survey is prima facie evidence that the owner of the adjacent land takes to the thread of the stream, there is, however, no reverse presumption that a stream not meandered presumes no title to the bed. See Little v. Williams, 88 Ark. 37, 113 S.W. 340 (1908). Under the facts of Kilgo and the case before us, it is immaterial that a non-navigable stream was not meandered when determining title to the bed. The erroneous distinction in Kilgo resulted in confusion, as subsequent cases reflect. Person v. Johnson, supra; McKee v. Gay, 226 Ark. 585, 293 S.W.2d 450 (1956). Although Person made the same distinction as Kilgo, the result was consistent with our finding here, as the Person court construed language "to the Northern bank" in the more liberal manner, as we have done in this case. A later case, however, McKee v. Gay, supra, used a more restrictive approach, and construed language "to the low-water mark," as precluding any bed ownership. McKee took no notice of the previous decision in Person, but relied instead on the distinction made in Kilgo and on a Wisconsin case to support a narrow construction of the language. To the extent that Kilgo and McKee are in conflict with our holding today, they are overruled. We are nonetheless in agreement with the result in Kilgo. Both parties had derived their title from a common grantor, Kilgo's title being acquired prior to Cook's. *450 Kilgo's deed conveyed approximately fifteen acres, twelve of which formed roughly a rectangular parcel running through the bed of the stream. Kilgo's deed read: ... Thence West across War Eagle Creek... Thence South with War Eagle Creek... Thence East across War Eagle Creek to the East bank of same, thence Northerly with said bank ... We find this language sufficient to defeat the general presumption of riparian rights which would ordinarily have attached to Cook's deed under the circumstances of the case. Both parties took from a common source, and Kilgo's deed, which was prior to Cook's, expressly conveyed the entire bed of the stream. Thus, Cook took with notice that his boundary was the bank of the river and the general presumption that the language in his deed would otherwise create was overcome. Whereas, in this case there was no prior conveyance from which Latimer would take notice that title to the thread of the stream would not pass with his deed. Nilsson also contends that even if Latimer is a riparian owner, his use of the water was unreasonable. But the trial court's finding was to the contrary and we cannot say it was clearly erroneous. In Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955), we adopted the "reasonable use" theory of water rights, although recognizing that definite guideposts do not exist, leaving much to judgment and discretion. We said: ... Use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below or on the opposite shore.... It is axiomatic in the law that individuals in society must put up with a reasonable amount of annoyance and inconvenience resulting from the otherwise lawful activities of their neighbors in the use of their land. Hence it is only when one riparian proprietor's use of the water is unreasonable that another who is harmed by it can complain, even though the harm is intentional. This dispute arose during an exceptionally dry year and two or three water holes on the river were pumped dry by Latimer's irrigation pumps. The riparian right that Nilsson was deprived of was occasional recreational fishing at those particular pools, arguably an insignificant amount overall. We stated in Harris that recreational and commercial uses were of equal status, and we affirm that view. However, we cannot clearly determine from the record that the deprivation suffered by Nilsson was more than negligible, and it is impossible to say that it went beyond the "reasonable amount of inconvenience and annoyance" which may be imposed upon one riparian owner by another when riparian rights compete. It should be noted that claims of lower riparian owners are not involved here. On cross appeal, Latimer argues that an award should have been granted for damages to his land from overflow caused by Nilsson's low-water bridge. Although there seems to have been some flooding on Latimer's land, there was not sufficient proof to show that the flooding was related to the presence of the bridge. The weight of the testimony indicates that the bridge had no great effect on the extent of flooding which would otherwise have occurred. We must accept the findings of the trial court which are not clearly wrong. Stokes v. Stokes, 279 Ark. 44, 648 S.W.2d 478 (1983). The arguments of neither side afford a basis for such a conclusion. It is unnecessary to reach the other points raised by the appellant. Affirmed on direct and cross appeal. HICKMAN, J., dissents. HICKMAN, Justice, dissenting. This is a case involving water rights. The trial court and the majority pass over rather lightly the fact that the appellees, who own over 1000 acres of land next to this nonnavigable stream, depleted several large holes of water to irrigate some of it. Not all their land could be described as riparian. The appellant, a riparian owner across the creek, had the same rights to use *451 those holes of water as the appellees and had the right to prevent their destruction. I would reverse the trial judge on this issue and award some damages to the appellant. The appellees did not own this water, although they acted as if they did. A riparian owner does not own the water flowing past his land. 1A G.W. Thompson, Commentaries on the Modern Law of Real Property § 261 (1980). Although the creek had ceased to flow because of a drouth, I see no change in their rights. They merely have the right to use it without damaging the rights of other owners. Seneca Consolidated Mines Co. v. Great Western Power Co., 209 Cal. 206, 287 P. 93 (1930). Neither party owned the fish in the stream. Medlock v. Galbreath, 208 Ark. 681, 187 S.W.2d 545 (1945). The fact the appellant may have wanted to use the holes to fish is enough to find he was deprived of that right however slight it may have been. A riparian owner does not abandon his rights merely because she doesn't use them. Smith v. Morganton, 187 N.C. 801, 123 S.E. 88 (1924). A drouth is a severe problem to all farmers. But a few holes of water from a small creek are not going to save a large crop. The damage done to this creek by completely drying up the holes may have been far worse than the short term gains by the farmer. In a broader sense, we have reached the time in our state when we have to start thinking seriously in terms of a scarcity of water and of the competing interests for our water which must be fairly reconciled. No longer can we assume there is an abundance of water there for everyone's taking for any and all purposes. We now know that most of our water actually belongs to no one. Subterranean water constantly moves, small branches create nonnavigable streams, which, in turn, create navigable bodies of water. All are interrelated and affected by any damage to the other. The general assembly, an appropriate body to resolve these problems, has so far failed to deal with them in any definitive way. It would be better if they addressed the problem in a comprehensive way rather than if we settled all the conflicting interests in a case by case way.

392 P.2d 21 (1964) William MILLER, Petitioner, v. James Kay HARPSTER, Respondent. No. 483. Supreme Court of Alaska. May 11, 1964. *22 Edward A. Merdes, McNealy & Merdes, Fairbanks, for petitioner. No appearance for respondent. Before NESBETT, C.J., and DIMOND and AREND, JJ. PER CURIAM. This is a personal injury action in which respondent has complained that while a guest in petitioner's automobile he was injured to his damage in the amount of $150,000. We have granted review of an order of the trial court which, among other things, required petitioner to produce for inspection under Civil Rule 34: (1) Defendant's public liability and property damage insurance policy covering the operation of his vehicle at the time of the collision. (2) Copies of all written statements of witnesses to said collision occurring on or about September 14, 1962, including any and all written statements of the defendant, or the plaintiff, which may be in the possession of the defendant, the defendant's attorneys or any other agent or representative of said defendant. Petitioner argues that production of the insurance policy should have been denied because it is not relevant to the issues and its disclosure could not reasonably lead to the discovery of relevant facts. We believe that the policy does have a relevancy to the issues and that no error was committed in ordering it to be produced. Definite knowledge as to whether or not there was insurance coverage and if there was the name of the carrier and the amount would be of assistance to the plaintiff in determining whether to prosecute or settle the action. Requiring production and disclosure does not, in our opinion, confer any advantage on respondent insofar as the actual trial of the issues is concerned.[1] Petitioner argues that requiring production of the written statements is a violation of the attorney work-product rule of Hickman v. Taylor[2] and unfairly gives to plaintiff's counsel the advantage of the preparation of defense counsel. Furthermore, petitioner contends, respondent did not comply with that portion of the rule *23 which requires a showing of good cause for the production.[3] It was not error to order production of the written statements. The formal showing of good cause may have left something to be desired. However, respondent's reasons for desiring to inspect the written statements of all witnesses to the collision, the subject of the suit, are so obvious that no extended showing of relevancy is required. It is argued though, that some showing should have been made that the witnesses are no longer available or could be reached only with difficulty. In addition to Hickman, petitioner relies upon Safeway Stores Inc. v. Reynolds[4] and similar federal authority. We distinguish the facts in the case under consideration from those of Hickman because petitioner has not been requested to reduce the oral statements of witnesses to writing. All that has been requested is the production of written statements of witnesses to the collision, including those of the parties. The requirement of a showing of good cause should not be given a strict or technical interpretation. At least where the request for production pertains only to written statements. It should not be necessary for opposing counsel to show that the witnesses are no longer available or that additional statements could not be obtained except at a great expenditure of time and money. The information contained in the statements of the eyewitnesses belongs to both parties to the dispute. The sooner both parties are aware of the observations of the witnesses, the sooner the litigation can proceed along the usual lines toward settlement or trial. Even though opposing counsel could obtain statements from the witnesses without undue inconvenience and expense, they would not be the same in every detail as those taken at an earlier date. As long as earlier impressions of a witness have been recorded, they should be made available to all parties for whatever assistance they may lend. Petitioner argues that it would be unfair to his counsel to permit opposing counsel to inspect all of the statements that had been diligently gathered. This, he urges, would result in an "unjust use of the fruits of opposing counsel's labor." The question should not be decided on the basis of what is fair or unfair to petitioner's counsel, but rather on the basis of what is most likely to attain the objectives of the rule. The broad policy of all of our rules permitting discovery is to eliminate surprise at the trial and to make it convenient for the parties to find and preserve all available evidence concerning the facts in issue, thereby encouraging the settlement or expeditious trial of litigation. Permitting counsel for one side to preserve undisclosed until trial the "fruits of his diligence" and initiative appears to be a false concept and one likely to defeat the objectives of the rules of discovery. Diligent counsel may have discovered facts vital to the litigation, either for or against his client. If permitted, he would naturally refuse to produce the statements for inspection in the hope that: (1) Opposing counsel would not learn the identity of all of the eyewitnesses and obtain statements of his own, or (2) that if he did obtain statements he might, for one reason or another, fail to obtain all of the pertinent knowledge recorded in the earlier statements. Counsel have been retained by their clients to bring about an early favorable end *24 to the litigation. They do not acquire property rights in the contents of the written statements they obtain. Experience has proved that the ends of justice are more likely to be served by liberal rules of discovery requiring full disclosure of all unprivileged relevant matter. No purpose of the rule is to reward diligent counsel in a manner that could result in the suppression of knowledge of relevant facts. It is suggested that permitting opposing counsel to claim the benefit of the efforts of diligent counsel will discourage trial preparation. We doubt that this will happen because the advantages of the rule as we have construed it will accrue to both parties in one form or another. The Order below is affirmed. NOTES [1] People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588 (1957); Maddox v. Grauman, 265 S.W.2d 939, 41 A.L.R. 2d 964 (Ky. 1954). [2] 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). [3] Civ.R. 34 states in part: "Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may * * *." (This rule is identical to Rule 34 Federal Rules of Civil Procedure.) [4] 85 U.S.App.D.C. 194, 176 F.2d 476 (D.C. Cir.1949).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs August 20, 2002 SHAUN LAMONT HEREFORD v. STATE OF TENNESSEE Appeal from the Criminal Court for Hamilton County No. 239059 Douglas A. Meyer, Judge No. E2002-01222-CCA-R3-PC November 13, 2002 The petitioner, Shaun Lamont Hereford, appeals the Hamilton County Criminal Court’s dismissal of his petition for post-conviction relief, in which he alleged void convictions, misrepresentation by his trial attorney, and that he was entitled to DNA analysis of physical evidence. Discerning no error in the trial court’s dismissal of the petition without an evidentiary hearing, we affirm. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed. JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W. WEDEMEYER , J., joined. Shaun Hereford, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney Strong, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION The record on appeal contains little more than the post-conviction petition as supplemented, the court’s order dismissing the petition, and the petitioner’s notice of appeal. From the petition, we glean that the petitioner is challenging his 1994 convictions in numerous indictments for aggravated burglary and theft. He was convicted by a jury on some counts and pleaded guilty to the remaining counts. Apparently the judgments on the guilty-pleaded counts, if not the judgments in all counts, were entered on June 21, 1994. No appeal was taken. On January 7, 2002, the petitioner filed a petition for post-conviction relief. In this petition as amended or supplemented, he alleged that his trial counsel represented to him that he would receive an effective Department of Correction sentence of 42 years for all of his June 21, 1994 convictions. The petitioner claimed that a Department of Correction “TOMIS”1 letter dated October 6, 2001 advised him for the first time that his effective sentence was 52 years. He also claimed that his counsel had told him that, as a career offender, he would be released upon serving 60 percent of his sentence but that the TOMIS letter informed him that he would only be eligible for release after serving 60 percent of his sentence. Further, the petitioner claimed in his petition that the TOMIS letter revealed that the petitioner was serving sentences in cases in which he received no convictions. Finally, the petitioner moved the court for an order directing discovery of the state’s trial exhibits of physical evidence so as to allow him to discern the proper exhibits to be the subject of DNA analysis, which he alleged would exonerate him from the crimes of which he stands convicted. The petitioner alleged in his petition that his 2002 petition for post-conviction relief was not barred by the one-year statute of limitations because principles of due process compel that he be allowed to avoid the statute of limitations so as to present his claims of attorney misrepresentation. The petition recites that the DNA analysis claim is unfettered by any applicable statute of limitations. The post-conviction court held that the Post-Conviction DNA Analysis Act of 2001, Tenn. Code Ann. §§ 40-30-401 to -413 (Supp. 2001), provides that a petitioner who challenges burglary or theft convictions pursuant to the Act may obtain no relief unless the same is “directed” by the trial court. The lower court declined to direct any discovery or DNA analysis on the grounds that many of the petitioner’s convictions were the result of guilty pleas which were presented to the court upon agreed factual bases and in which the defendant admitted guilt. The post-conviction court then opined that, to the extent that the petitioner sought to attack the Department of Correction’s calculation of his sentences, the claim was not cognizable in a post-conviction proceeding. Finally, the lower court held that the claims of misrepresentation of counsel were barred by the post-conviction statute of limitations and that “due process does not require tolling of the limitations period or even an evidentiary hearing [because] any claim of misrepresentation on the part of counsel regarding the petitioner’s release eligibility [did not arise] after commencement of the limitations period.” The court’s order recited in a footnote that the TOMIS letter does not include any charges from the June 21, 1994 proceedings that were not described in the guilty plea petition. The post-conviction court concluded that trial counsel did not misrepresent the release eligibility date or the length of the effective sentence because the actual length of the June 21, 1994 effective sentence was in fact 42 years. 1 In 197 8 the D epartment of Correction implemented the Offender Based Computer Information System (OB CIS). In 1992 the department converted from OB CIS to the current system, the Tennessee Offender Management Information System. See Jerome Streeter v. Ten nesse e Depa rtment of C orrection, No. M1999-02267-COA-R3-CV (Tenn. Ct. App., Nashville, Aug. 31, 2000). -2-  Indeed, we note from the TOMIS letter and the guilty plea petition affixed to the post- conviction petition that the additional ten years was apparently derived from 1988 and 1990 convictions for larceny and burglary. For these convictions, the defendant received an effective incarcerative sentence of ten years, and the 1994 sentences were apparently imposed to run consecutively to these earlier sentences, as provided in the guilty plea submission petition. Post-conviction relief is only available when “the conviction or sentence is void or voidable because of the abridgment” of a constitutional right. Tenn. Code Ann. § 40-30-203 (1997). The post-conviction petitioner bears the burden of proving his or her allegations by clear and convincing evidence, id. § 40-30-210(f) (1997); however, if prior to the evidentiary hearing the trial court reviews the post-conviction record and determines “that the petitioner is entitled to no relief, the court shall dismiss the petition,” id. § 40-30-209(a) (1997); Tenn. R. Sup. Ct. 28 § 6(B)(4)(a) (court may dismiss post-conviction petition that states no colorable claim). Unless the post-conviction petition is filed within one year “of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final,” the post-conviction claims are barred. Tenn. Code Ann. § 40-30-202(a) (1997); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001) (post-conviction claimant whose conviction was finalized between May 10, 1992 and May 10, 1995 has until May 10, 1996 to file a post-conviction petition). First, we address the petitioner’s claim that he is illegally and unconstitutionally serving sentences in the Department of Correction that are not based upon any imposed convictions. He claims that some of the convictions listed in the TOMIS report are not included in his June 21, 1994 plea petition. He argues that his claim is not barred by the statute of limitations because principles of due process entitle him to present a post-conviction claim which he has been denied a “reasonable opportunity to assert . . . in a meaningful time and manner.” See Williams, 44 S.W.3d at 468. We disagree and hold that the claim is barred by the statute of limitations. The petition makes no case that the petitioner was denied a reasonable opportunity to assert his post- conviction claim of illegal sentences; it merely asserts that the petitioner “discovered on or about 10/10/92 that he had been convicted and sentenced for offenses he had not pleaded guilty to.” This allegation is insufficient to invoke due process considerations to toll the running of the post- conviction statute of limitations. See Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996) (“[T]he petitioner’s claimed lack of knowledge does not toll the statute [of limitations] for post- conviction purposes.”) Thus, post-conviction relief on this issue is barred by the post-conviction statute of limitations. That said, we are aware that the petitioner claims entitlement to attack an illegal sentence “at any time.” See, e.g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987); State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978). This court has previously explained that the phrase “illegal sentence” is synonymous with the habeas corpus concept of a void sentence and is, therefore, -3- cognizable in a habeas corpus proceeding. Cox v. State, 53 S.W.3d 289, 292 (Tenn. Crim. App. 2001). However, the petitioner in the present case has failed to comply with the procedural requirements for filing and prosecuting a petition for writ of habeas corpus. See Tenn. Code Ann. § 29-21-107 (2000) (requiring verified petition, to which is appended a copy of the legal process upon which the restraint is based, and requiring that the petition state the specific facts of the petitioner’s restraint and affirm that the claim of illegality of the restraint has not previously been brought and that the application is a first application for the writ, or if not, that a copy of any previous petition and proceedings be presented); see also Cox, 53 S.W.3d at 292. Thus, even though our Code sets forth no statute of limitations for quests to obtain a writ of habeas corpus, treating the petitioner’s proceeding as one in habeas corpus is not beneficial to him. As an aside, we note that we have considered whether Code section 29-21-104 compelled the trial court to consider habeas corpus relief, despite the petitioner’s noncompliance with the requirements for habeas corpus proceedings. Section 29-21-104 provides that when a court with powers to issue the writ “has evidence, from a judicial proceeding, that any person within the jurisdiction of such court . . . is illegally imprisoned or restrained of his liberty, it is the duty of such court . . . to issue . . . the writ . . ., although no application has been made therefor.” Tenn. Code Ann. § 29-21-104 (2000). However, in the present case, the record before us belies the petitioner’s contention that his June 21, 1994 plea petition did not include charges that became the bases for convictions and sentences listed in the TOMIS letter. We have reviewed and compared the TOMIS list with the June 21, 1994 plea petition and find that no sentences are being executed upon June 21, 1994, convictions that are not contained in the June 21, 1994 plea petition.2 Thus, the petitioner alleged no basis for the issuance of a writ of habeas corpus. We now address the claim of misrepresentation by trial counsel and conclude that it is barred by the post-conviction statute of limitations. The petitioner claims that counsel misrepresented the length of the aggregate sentence resulting from the charges that were disposed of on June 21, 1994 and misrepresented the nature of the 60 percent release eligibility date. He argues that, in Williams, our supreme court established a rule that attorney misrepresentation tolls the post-conviction statute of limitations. We point out that the Williams court was reviewing attorney “misrepresentation in failing to properly withdraw from representation [following this court’s affirmance on appeal] and in failing to notify the petitioner that no application for permission to appeal would be filed.” Williams, 44 S.W.3d at 468 n.7. In the present case, the petitioner alleges no actions by trial counsel that hampered the petitioner from presenting his claims or taking an appeal. Moreover, the petitioner’s June 21, 1994 plea petition recites that the effective 42-year sentence imposed on the June 21, 1994 convictions would run consecutively to at least the seven-year effective sentence, 2 W e note that the TO MIS letter references a few convictions that emanated from judgment dates other than June 21, 1994. W e also note that only the odd-num bered pages from the T OM IS letter w ere exhibited to the petitioner’s supplemental petition and were included in the appellate record. The TOM IS letter reflects 22 convictions on June 21, 199 4 for burglary o r theft, and the plea petition reflects 32 such convictions, not counting misdemeanors. -4- which was imposed in 1990 to run consecutively to the 1988 three-year effective sentence.3 The effective sentence yielded by the three sets of convictions is 52 years, the amount calculated by the Department of Correction. Furthermore, in the face of a due process claim, see Burford v. State, 845 S.W.2d 204 (Tenn. 1992), this court has held that a “petitioner’s lack of knowledge that he had grounds for a petition for post-conviction relief until after the statute of limitations had run cannot defeat the application of the statute of limitations.” Howard Templeton v. State, No. 01C01-9406-CC-00220, slip op. at 3 (Tenn. Crim. App., Nashville, Jan. 3, 1995). Petitioner Templeton claimed in that case that his trial counsel misinformed him that his 35 percent release eligibility date meant that he “would be released” upon serving 35 percent of his sentence and that he did not learn of the misstatement until his parole was denied following the release eligibility date. Id. Nevertheless, this court held that the post-conviction petition filed beyond the statute of limitations was barred and said, “To hold otherwise would defeat the purpose of the statute of limitations in protecting the State’s interest in preventing the litigation of stale and fraudulent claims and in ensuring administrative efficiency and economy.” Id. In like manner, we hold that the instant petitioner’s claim of counsel misrepresentation is barred by the statute of limitations. We now turn to the petitioner’s issue that he should have been allowed to proceed with his claim pursuant to the Post-Conviction DNA Analysis Act of 2001. See Tenn. Code Ann. §§ 40-30-401 through -413 (Supp. 2001). At the outset, we note that the Act contains no explicit statute of limitations. Cf. id. § 40-30-202(a) (1997) (establishing one-year post-conviction statute of limitations that governs petitions pursuant to Part 2 of Title 40, Chapter 30 (Post-Conviction Procedure Act)); id. § 40-30-401 (Supp. 2001) (Post-Conviction DNA Analysis Act of 2001 set forth in Part 4). Persons convicted of certain crimes may petition the trial court and request “forensic DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence”; even so, petitioners convicted of burglary or theft may only file the petition “at the direction of the trial judge.” Id. § 40- 30-403 (Supp. 2001). A trial court shall order the DNA analysis if it finds that: (1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis; (2) The evidence is still in existence and in such a condition that DNA analysis may be conducted; (3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and 3 The 1990 effective sentence resulted from at least eleven co nviction s for burglary or larcen y. -5-  (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice. Id. § 40-30-404 (Supp. 2001). When a petition is filed, the court “may in its discretion make such other orders as may be appropriate.” Id. § 40-30-411 (Supp. 2001). In our view, the post-conviction judge did not abuse his discretion in declining to “direct” the advancement of the petitioner’s DNA analysis request. In his petition, the petitioner sought analysis of “[some] items in state possession which were used as ‘[prosecution exhibits]’ to convict Petitioner . . . [and] can prove his innocence through DNA analysis. The test results would show the identity of the real perpetrator of said crimes.” The petition then requested discovery “from the state in order to fully identify the items . . . which are best suited for DNA analysis.” These allegations utterly fail to demonstrate bases upon which the post-conviction court could make the findings required by Code section 40-30-404, and accordingly, they fail to state a claim pursuant to the Act. We hold that the trial court did not err in summarily dismissing this claim. Having now reviewed all of the issues raised by the petitioner on appeal, we affirm the judgment of the trial court. ___________________________________ JAMES CURWOOD WITT, JR., JUDGE -6- 

543 U.S. 1150 TREJOv.HULICK, ASSISTANT WARDEN. No. 04-815. Supreme Court of United States. February 22, 2005. 1 C. A. 7th Cir. Certiorari denied. Reported below: 380 F. 3d 1031.

204 F.3d 680 (6th Cir. 2000) RUDOLPH JONES, JR.; et. al., Plaintiffs-Appellants,v.CITY OF LAKELAND, TENNESSEE, a Tennessee Municipal Corporation, Defendant-Appellee. No. 97-5917 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT July 29, 1999. Before: MARTIN, Chief Judge; MERRITT, KRUPANSKY, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges. ORDER 1 Prior Report: 175 F.3d 410. 2 A majority of the Judges of this Court in regular active service have voted for rehearing of this case en banc. Sixth Circuit Rule 35(a) provides as follows: 3 "The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal." 4 Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed and this case is restored to the docket as a pending appeal. 5 It is further ORDERED that the appellant file a supplemental brief not later than Friday, September 3, 1999, and the appellee file a supplemental brief not later than Monday, October 4, 1999. Reargument is tentatively schedule for Wednesday, December 8, 1999.

ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-277 In Re: RICHARD EDWARD CABEY, Movant. On Motion for Authorization to File Successive Application. Submitted: January 10, 2006 Decided: June 30, 2006 Before LUTTIG* and DUNCAN, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. Authorization denied by unpublished per curiam opinion. James Phillip Griffin, Jr., NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Movant. Roy Cooper, Attorney General, Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). * Judge Luttig was a member of the original panel and participated in the decision to grant panel rehearing but did not participate in the panel’s decision on rehearing. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d). PER CURIAM: Richard E. Cabey has filed a motion for authorization to file a successive 28 U.S.C. § 2254 (2000) petition pursuant to 28 U.S.C. § 2244 (2000). Cabey seeks to challenge the execution of his sentence based on factual developments that occurred after his earlier petitions for post-conviction relief were adjudicated. Because he could not have litigated claims based on these new factual developments in his earlier petitions, we conclude that a § 2254 petition raising such claims is not “second or successive” for purposes of the gatekeeping provisions of § 2244. Accordingly, we deny Cabey’s motion for authorization as unnecessary. See In re Taylor, 171 F.3d 185 (4th Cir. 1999); see also Medberry v. Crosby, 531 F.3d 1049 (11th Cir. 2003), cert. denied, 124 S. Ct. 2098 (2004); James v. Walsh, 308 F.3d 162 (2d Cir. 2002); Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001). Further, we instruct the district court to accept for filing Cabey’s § 2254 petition challenging the execution of his sentence. AUTHORIZATION DENIED - 2 - 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ******************** * CHRISTOPHER LOVING * and CARLA LOVING, * No. 02-469V parents of CAMILLE LOVING, * Special Master Christian J. Moran * Petitioners, * * Filed: July 7, 2016 v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Attorneys’ fees and costs; * reasonable fees for fees; Respondent. * downward departure from lodestar. * ******************** * William Dobreff, Dobreff & Dobreff, Clinton Township, MI, for Petitioners; Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for Respondent. PUBLISHED DECISION ON SUPPLEMENTAL ATTORNEYS' FEES AND COSTS1 The December 15, 2015 decision stated there was one final issue to resolve in this case. As this decision proves, that statement was incorrect. Now in dispute is another motion for attorneys’ fees filed by the Lovings on January 6, 2016. For 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. Mr. Dobreff’s services from May 12, 2014, to date, the Lovings request an additional $8,362.50 in attorneys’ fees. This represents 33.45 hours of attorney’s time billed at $250.00 per hour. The Secretary proposes the motion for fees be completely denied, with the Lovings receiving no additional attorneys’ fees. The Lovings are awarded $2,090.63. I. Procedural History Regarding Attorneys’ Fees and Costs2 The procedural history for this case is available in significant detail in two previous decisions. See Interim Fees Decision, issued Sept. 10, 2014, 2014 WL 10558839 (awarding $140,000.00 in attorneys’ fees and costs); Expert Fees Decision, issued Dec. 15, 2016, 2015 WL 10579257. The first decision addresses Mr. Dobreff’s interim attorneys’ fees, and the second addresses the expert costs for Dr. Shuman. Thus, because the September 2014 decision awarded the Lovings attorneys’ fees for work performed through February 6, 2014, the procedural history below will focus on February 2014, to present. Section A discusses the steps leading to the 2014 decision awarding attorneys’ fees and costs on an interim basis. Section B describes the litigation over adjudicating Dr. Shuman’s fee. Because the Lovings seek an award of attorneys’ fees for Mr. Dobreff’s work performed during this period, Mr. Dobreff’s activities are set forth in some detail. Section C discusses the Lovings’ pending application for attorneys’ fees and the Secretary’s response. A. 2014 Award of Attorneys’ Fees and Costs on an Interim Basis Because the Lovings received compensation in the September 20, 2013 decision, they are entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). The Lovings filed their motion for attorneys’ fees and costs on February 19, 2014. The Lovings submitted more than 50 exhibits, totaling more than 200 pages. Pet. for Fees and Costs, filed Feb. 19, 2014. 2 The bulk of the procedural history regarding the Lovings’ claim that vaccines harmed their child is irrelevant to this decision. 2  After discussions between the attorneys, the Lovings agreed to reduce the amount sought in attorneys’ fees and costs not related to Dr. Shuman, and the Secretary agreed not to object to the compromised amount. The parties did not reconcile their differences regarding Dr. Shuman’s fees. The Secretary memorialized her objections to the charges for Dr. Shuman’s work, identifying several challenges to aspects of Dr. Shuman’s invoice. Resp’t’s Resp., filed July 16, 2014, at 5-6. After reviewing the submissions, the undersigned recognized that the dispute involving Dr. Shuman would probably take significant time to resolve. Thus, the undersigned held a status conference on September 2, 2014. In that status conference, the parties expressed an interest in seeking mediation to resolve the expert fees and costs, and the undersigned recommended an interim award of undisputed attorneys’ fees and costs. That recommendation resulted in the September 2014 interim fees decision awarding the Lovings $140,000.00 in attorneys’ fees. Interim Fees Decision, issued Sept. 10, 2014. Additionally, on the same day, an order referred the disputed expert fees and costs to ADR with Special Master Corcoran. Order, filed Sept. 10, 2014. B. 2015 Decision Awarding Attorneys’ Costs for an Expert The Lovings incurred all but 0.3 hours of the pending request trying to resolve Dr. Shuman’s expert fees. For convenience, this litigation is divided into four phases. 1. Alternative Dispute Resolution. Special Master Corcoran conducted a telephonic ADR status conference on September 22, 2014. The parties, however, were unable to come to an agreement through the mediation. Therefore, Special Master Corcoran removed the case from the ADR process. Order, issued Oct. 7, 2014. Mr. Dobreff spent 1.55 hours in ADR.3 Pet. for Fees and Costs, filed Jan. 6, 2016, exhibit 1 at 2. 3 The amount of 1.55 hours includes the 0.3 hours spent in May and June 2014. 3  2. November 2014 Brief. Following the ADR status conferences, both parties requested an opportunity to elaborate on their positions regarding Dr. Shuman’s expert fees. The Secretary filed a supplemental brief on October 17, 2014, stating additional bases for her objections to petitioners’ request for $284,203.07 in expert fees and costs. Although the Secretary continued to accept the proposed hourly rate as reasonable, the Secretary presented two additional arguments for why she did not accept Dr. Shuman’s 811 hours as reasonable. First, the Secretary compared Dr. Shuman’s work to other cases in the Vaccine Program that have involved relatively large requests for expert fees. Second, the Secretary compared Dr. Shuman’s work in the present case to other cases in which Dr. Shuman participated. Resp’t’s Suppl. Br., filed Oct. 17, 2014. On November 5, 2014, the Lovings filed a response to the Secretary’s objections, including another set of exhibits, again labeled 1 through 10.4 A significant portion of the Lovings’ response recited the procedural aspects of the case and/or listed topics that Dr. Shuman addressed. Pet’rs’ Resp., filed Nov. 5, 2014, at 2 (discussing Court’s Opinion and Order), 7-19. Much (if not all) of this presentation was not helpful as the undersigned was familiar with the litigation and had reviewed Dr. Shuman’s invoices describing his work. The Lovings did not answer many of the fundamental objections raised in the Secretary’s initial July 16, 2014 response. For example, although the Secretary had identified entries for which Dr. Shuman had charged time but not listed any task, the Lovings did not obtain supplemental information to fill this gap.5 The 4 Of these November 5, 2014 exhibits, the only meaningful one is exhibit 10, a second affidavit from Dr. Shuman, which updated his previous affidavit, exhibit 38. 5 The Lovings asserted that “Respondent did not object to lack of specificity in Dr. Shuman’s billing or any block billing. There was no suggestion by Respondent’s experts that it was unreasonable or unnecessary to review and analyze an article relied on by Dr. Shuman in Respondent’s review.” Pet’rs’ Resp., filed Nov. 5, 2014, at 5. This statement is accurate only if the source of the Secretary’s objections is restricted to the October 17, 2014 brief. In the earlier response, the Secretary argued that Dr. Shuman’s invoice was vague and the time he spent reviewing articles was excessive. Resp’t’s Resp., filed July 14, 2014, at 5-6. 4 Lovings did, however, directly address some of the Secretary’s supplemental October 17, 2014 arguments. In this phase, Mr. Dobreff has invoiced for 17.8 hours. More than 12 hours were attributed to either researching or drafting the November 5, 2014 brief. The remaining time was primarily communications (letters, emails, and telephone calls) with Dr. Shuman. Pet. for Fees and Costs, filed Jan. 6, 2016, at exhibit 1 at 2-3. 3. 2015 Briefing. Once the undersigned again took up the matter after these briefs, the undersigned requested additional information from the Lovings to explain the work that Dr. Shuman performed. Order, filed June 24, 2015. On July 15, 2015, the Lovings filed a status report that did not provide much helpful information. In addition, the Lovings filed another set of exhibits, which largely confused the state of the record because the Lovings cited to the exhibits appended to the status report, rather than the exhibits filed during the merits phase.6 The undersigned ordered the Lovings to file an electronic version of a spreadsheet that reproduced Dr. Shuman’s invoice in a series of rows and columns. See order, issued July 27, 2015. The Lovings filed the electronic spreadsheet on August 6, 2015. Pet’rs’ Status Rep., filed Aug. 6, 2015. That spreadsheet was valuable in analyzing the Lovings’ claim. After receiving the Lovings’ spreadsheet, the undersigned ordered the Secretary to analyze Dr. Shuman’s work on a line-by-line basis. Order, filed Sept. 4, 2015. The Secretary explicitly disputed almost half of Dr. Shuman’s bill, $132,718.33 of the $282,130.86 requested. Resp’t’s Resp., filed Sept. 17, 2015. From January 20, 2015 through October 20, 2015, Mr. Dobreff has invoiced for 13.4 hours. More than half this time was associated with preparing the July 15, 6 For example, during the merits phase of the case, the Lovings filed Dr. Shuman’s annotation to his bibliography as exhibit 90. The Lovings reproduced this annotation as exhibit 7 to the July 15, 2015 status report. 5 2015 status report. Pet. for Fees and Costs, filed Jan. 6, 2016, at exhibit 1 at 3-4. Mr. Dobreff did not charge for producing the electronic spreadsheet. 4. Wrap-Up. The Expert Fees Decision awarded the Lovings’ two-thirds of Dr. Shuman’s requested amount, or $188,087.22, plus full costs of $1,322.03. In reviewing this decision and communicating with Dr. Shuman, Mr. Dobreff spent 0.7 hours. Id., at exhibit 1 at 5. C. Petitioners’ 2016 Motion for Additional Attorneys’ Fees and Costs The Lovings’ January 6, 2016 motion for attorneys’ fees and costs is substantially similar to the motion they filed in February 2014, to include many moot points, such as Dr. Shuman’s hourly rate. The motion does include significant information regarding how petitioners’ attorney determined his reasonable hourly rate. Id., at 2-3. Identical to the February 2014 interim attorneys’ fees motion, the January 2016 motion states that the “fees and costs are reasonable in light of the length of the case, complexity of the issues, the appeal and the underlying injury of infantile spasms.” There is no specific discussion regarding the substance of the current motion for fees, a prolonged expert fee dispute. The thrust of the Secretary’s opposition is that “[a]ll of the work performed by counsel after May 12, 2014 was in an attempt to correct the deficient evidence regarding Dr. Shuman’s invoices, all of which should have been filed with the Motion on February 19, 2015.” Resp’t’s Resp., filed Jan. 15, 2016, at 3. In large part, the rest of the Secretary’s opposition reiterates shortcomings raised in the December 15, 2015 decision regarding Dr. Shuman’s expert fees. The Secretary highlighted that much of petitioner’s presentation regarding Dr. Shuman’s fees was unhelpful, in some cases confused the record, and that there was no excuse for this as “petitioners knew up front what was expected of them when submitting Dr. Shuman’s invoices for payment.” Id. at 4. Petitioners did not reply to the Secretary’s response to their motion. 6 II. Standards for Adjudicating Applications for Attorneys’ Fees and Costs7 The Vaccine Act authorizes special masters to award only “reasonable” attorneys’ fees. 42 U.S.C. § 300aa–15(e)(1). To determine the reasonableness of a request for attorneys’ fees, the court must first conduct a lodestar analysis in which a reasonable hourly rate is multiplied by a reasonable number of hours. See Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008); Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Avera, 515 F.3d at 1348. The Federal Circuit has endorsed awards of attorneys’ fees for litigation fee disputes. Schuenemeyer v. United States, 776 F.2d 329, 333 (Fed. Cir. 1985). Special Masters have generally allowed “fees for fees,” albeit with reductions consistent with the reasonableness and specific findings standards applied to attorneys’ fees. See Turkupolis v. Sec’y of Health & Human Servs., No. 10-351V, 2015 WL 393343, at *4-5 (Fed. Cl. Spec. Mstr. Jan. 9, 2015) (reducing fees for duplicative and excessive work); Sucher v. Sec’y of Health & Human Servs., No. 07-58V, 2013 WL 5532179, at *18 (Fed. Cl. Spec. Mstr. Sept. 17, 2013) (not compensating petitioners for time spent litigating an issue for which there was no basis to litigate); Brown v. Sec’y of Health & Human Servs., No. 09-426V, 2013 WL 2350541, at *2-3 (Fed. Cl. Spec. Mstr. May 6, 2013) (reducing fees for fees by two-thirds based on two out of three of the primary issues in petitioner’s filings being unreasonable); Garcia v. Sec’y of Health & Human Servs., No. 07-286V, 2011 WL 6941702, at *10 (Fed. Cl. Spec. Mstr. Dec. 13, 2011) (not compensating an attorney for work necessitated by a problem the attorney created). III. Analysis Consistent with Avera, this analysis contains two components. The first is a determination of the lodestar. The second is adjustment to the lodestar. Avera, 515 F.3d at 1348. 7 The Expert Fees Decision lists additional criteria. 2015 WL 10579257, at *8-9. 7  A. Lodestar The well-known lodestar formula includes a reasonable hourly rate and a reasonable number of hours. The Lovings propose compensating Mr. Dobreff at a rate of $250.00 per hour, and the Secretary does not object to that rate. The undersigned also finds that rate reasonable. For the reasonable number of hours, the undersigned has reviewed the timesheets. At a superficial level, the number of hours Mr. Dobreff spent is reasonable. For example, he spent 0.15 hours preparing a motion for enlargement of time on November 3, 2014, and 0.20 hours reviewing an order on July 29, 2015. As discussed below, one problem is what the attorney produced, not how much time was spent. Consequently, for the first component, all Mr. Dobreff’s hours are tentatively accepted. This results in a lodestar determination of $8,362.50 (33.45 hours multiplied by $250.00 per hour). B. Adjustments to Lodestar After the lodestar is calculated, the amount awarded in attorneys’ fees may be adjusted, either upward or downward, “based on other specific findings.” Avera, 515 F.3d at 1348, citing Blum v. Stenson, 465 U.S. 886, 888 (1984). “Adjusting the lodestar has been condoned for situations in which the prevailing party’s attorney’s performance or conduct somehow is not factored into the lodestar calculation.” Lumen View Tech. LLC v. Findthebest.com, Inc., 811 F.3d 479, 485 (Fed. Cir. 2016). Adjustments to the lodestar occur rarely. See Masias v. Secʼy of Health & Human Servs., No. 99-697V, 2013 WL 658439, at *6-7 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (rejecting the Secretary’s argument that the fee for litigating attorneys’ fees should be reduced because it was disproportionate to the amount sought in attorneys’ fees); Masias v. Secʼy of Health & Human Servs., No. 99-697V, 2010 WL 1783542, at *5 (Fed. Cl. Spec. Mstr. April 14, 2010) (adjusting lodestar for filing an unsuccessful motion for review after the Court criticized the motion for review). Here, two findings justify a reduction to the lodestar calculation. First, Mr. Dobreff’s lack of oversight of Dr. Shuman fundamentally caused the dispute over expert fees. Second, Mr. Dobreff’s contributions to resolve the dispute over attorneys’ fees were largely ineffective. 8  1. Counsel’s Failure to Monitor Dr. Shuman The Expert Fees Decision details deficiencies in Dr. Shuman’s billing practices that led to a significant reduction in expert fees. 2015 WL 10579257, at *9-15. These major deficiencies included poor item descriptions, redundant research work, and billing for administrative tasks. Id. at *9-12. These major deficiencies, ultimately, are Mr. Dobreff’s responsibility. See id. at *8 (citing cases). These consistent deficiencies are inexcusable because they occurred very early in the case, and were obvious. Dr. Shuman’s Feb. 25, 2005 invoice contained charges for which no task was listed. Id. at *13. Despite this red flag, the subsequent June 21, 2006 invoice also contained entries without tasks. Id. The lack of any description for some tasks places Dr. Shuman’s invoices well outside of the boundaries of what could be considered reasonable billing practices. In the Lovings’ January 6, 2016 petition for fees and costs, they had a chance to respond to the Expert Fees Decision. The motion does not challenge either the legal proposition that counsel has the duty to monitor expert invoices, or the factual finding that Mr. Dobreff did not monitor Dr. Shuman’s invoices adequately. Had Mr. Dobreff corrected Dr. Shuman’s billing practices early, Dr. Shuman would not have continued to submit defective invoices. An early correction by Mr. Dobreff, therefore, would have eliminated the disputes over large portions of Dr. Shuman’s bills. If there were no dispute over Dr. Shuman’s bills, then, it follows, that there would be no attorneys’ fees for litigating Dr. Shuman’s fees. Mr. Dobreff’s conduct (or more precisely his lack of action) is at the root of the dispute over attorneys’ fees that took place from September 21, 2014 through December 17, 2015. An attorney “will not be compensated for solving a problem that he created.” Garcia, 2011 WL 6941702, at *10. 2. Counsel’s Work during the Fee Dispute Was Not Helpful The previous finding concerns Mr. Dobreff’s activities that largely caused the dispute of Dr. Shuman’s bill. This finding concerns Mr. Dobreff’s activities after the dispute over Dr. Shuman’s fee began. 9  The Secretary raised questions about many of Dr. Shuman’s entries. Resp’t’s Resp., filed July 17, 2014; Resp’t’s Suppl. Br., filed Oct. 17, 2014. Counsel’s choice was either to defend the entries by providing additional explanation, or to exercise billing judgment by removing the entries. Here, Mr. Dobreff attempted to justify the time. However, this defense was largely ineffective, probably because the passage of time and loss of memory prevented Dr. Shuman from recapturing information that should have been recorded years earlier. In absence of a plausible defense of specific entries on the invoice, the appropriate response to the Secretary’s objection would have been to remove the charges. See Saxton, 3 F.3d at 1521 (requiring fee applicant to exercise “billing judgment”). When ordered to justify Dr. Shuman’s invoices, the Lovings could not. Their July 15, 2015 status report actually made their claim for an award of expert fees more confusing. Mr. Dobreff spent hours reviewing the hearing transcript, but this task was not requested, and did not produce relevant information. The Lovings’ most useful contribution to the resolution of the dispute over expert fees was the creation of the electronic spreadsheet. However, as mentioned earlier, Mr. Dobreff appropriately did not charge for this clerical task. The electronic spreadsheet enabled the undersigned to turn to the Secretary for additional assistance. The Secretary’s line-by-line review of Dr. Shuman’s invoices must have taken a considerable amount of time, but greatly reduced the scope of the dispute. In a way, the Secretary rescued Mr. Dobreff by removing the bulk of Dr. Shuman’s hours from the dispute. The undersigned prefers not to create a litany of complaints about Mr. Dobreff. After all, Mr. Dobreff helped his clients obtain a settlement that should assist them in caring for their daughter. This is a significant accomplishment, one for which Mr. Dobreff has received compensation. Interim Fees Decision, issued Sept. 10, 2014. However, Mr. Dobreff’s work in the litigation over Dr. Shuman’s 10 fees fell well short of the quality that is expected, especially given the amount of money in dispute.8 3. Assessment These two findings support an adjustment to the lodestar. It should be emphasized that this type of adjustment happens in exceptional cases. The present case is exceptional because (1) Mr. Dobreff’s inattention to Dr. Shuman’s invoices, which were blatantly problematic, was the primary cause of the dispute over Dr. Shuman’s fee, and (2) Mr. Dobreff contributed relatively little to assist in resolving Dr. Shuman’s fees and, in some ways, made the resolution process more cumbersome. Under these circumstances, an appropriate award is 25 percent of the amount requested. The Lovings are awarded $2,090.63. IV. Conclusion The Lovings are awarded $2,090.63 in additional fees for Mr. Dobreff. This award is in addition to the amount for attorneys’ fees and costs awarded on September 10, 2014. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. S /Christian J. Moran Christian J. Moran Special Master 8 Petitioners’ January 6, 2016 motion similarly reflects a relative lack of attention from Mr. Dobreff. The motion does not address the fundamental reason why the dispute over Dr. Shuman’s fees was so protracted. 11 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT XUEYAN YAN, No. 17-71981 Petitioner, Agency No. A205-546-186 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 2, 2020** Pasadena, California Before: BEA and BADE, Circuit Judges, and DRAIN,*** District Judge. Petitioner Xueyan Yan is a native and citizen of the People’s Republic of China. Yan alleges that she was subjected to a forced abortion in 2008. Yan now petitions for review of the Board of Immigration Appeals’ (BIA) decision * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. affirming an Immigration Judge’s (IJ) denial of her claims for asylum and withholding of removal.1 We have jurisdiction pursuant to 8 U.S.C. § 1252 and review the BIA’s adverse credibility determination for substantial evidence. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). Under this deferential standard, we “must uphold the BIA’s finding unless the evidence compels a contrary result.” Id. (quoting Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006)); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). We deny Yan’s petition for review. Substantial evidence supports the BIA’s affirmance of the IJ’s adverse credibility determination. The BIA may look to inconsistencies in testimony and supporting documents to determine an asylum applicant’s credibility. Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). The IJ noted numerous discrepancies in Yan’s narrative concerning when she went into hiding after learning about her pregnancy. The IJ and the BIA properly questioned Yan’s credibility after noting these inconsistencies about the timing and duration of her concealed pregnancy— critical details of her persecution claim. See Rizk v. Holder, 629 F.3d 1083, 1088 1 Yan did not challenge the IJ’s denial of protection under the Convention Against Torture (CAT) in her appeal to the BIA. Thus, this claim was not exhausted and we lack jurisdiction to address it here. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). 2 (9th Cir. 2011). Additionally, the IJ permissibly considered the lack of specificity in Yan’s testimony regarding how and when her pregnancy was discovered by her employer. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (“[L]ooking to the level of detail of the claimant's testimony to assess credibility . . . remains viable under the REAL ID Act as it is a ‘relevant factor.’”) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ provided additional “specific cogent reason[s] for the adverse credibility finding,” including conflicting testimony about Yan’s addresses, her avoidance of employer pregnancy tests, and the timeline of her pregnancy.2 See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (quoting Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)). Under a totality of the circumstances, substantial evidence supports the IJ’s adverse credibility finding and the denial of Yan’s petition. Id. Because Yan failed to meet her burden for asylum eligibility, her withholding of removal claim must also fail. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (“Because Wang cannot establish eligibility for asylum, she necessarily fails to carry the greater burden of establishing eligibility for 2 Yan testified that she discovered her pregnancy in January 2008, but provided medical records indicating she was only twenty weeks pregnant in August 2008. The BIA noted this was a “significant discrepancy” that was not addressed in Yan’s appeal. Because this argument was not first exhausted before the BIA, we lack jurisdiction to consider it here. See Alvarado v. Holder, 759 F.3d 1121, 1130 (9th Cir. 2014). 3 withholding of removal.”). PETITION DENIED. 4 

IN THE SUPREME COURT OF MISSISSIPPI NO. 2000-CT-01259-SCT ROBERT EDWIN BUNYARD v. SHEILA KAY BUNYARD ON WRIT OF CERTIORARI DATE OF JUDGMENT: 3/29/2000 TRIAL JUDGE: HON. SARAH P. SPRINGER COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: EARL P. JORDAN, JR. ATTORNEYS FOR APPELLEE: WILLIAM B. JACOB JOSEPH A. KIERONSKI, JR. DANIEL P. SELF, JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 10/17/2002 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. PITTMAN, CHIEF JUSTICE, FOR THE COURT: ¶1. In this domestic relations case, the chancellor granted a divorce and awarded the wife an equitable interest in certain property, including real estate purchased by the husband while the couple lived together before their marriage. On the husband's appeal, the Court of Appeals affirmed, noting that the couple's premarital relationship was ratified by their later marriage. We granted certiorari and now affirm the judgments of the chancellor and the Court of Appeals but not based on the Court of Appeals' erroneous premise that the marriage ratified the couple's premarital cohabitation. FACTS ¶2. The Court of Appeals' opinion described the pertinent factual background: Sheila and Robert have lived together off and on since 1983. During the years before their marriage, Sheila moved out and lived with another man for short periods of time, which the trial court deemed unsubstantial. At the beginning of the live-in relationship, Sheila worked at Peavey Electronics and Robert still works for Maples Gas Company. Both contributed to the household expenses. Sheila did the cooking, cleaning, laundry, yard work, housekeeping and gardening prior to and during their  marriage. Robert did not pay Sheila for these activities. Sheila was diagnosed with multiple sclerosis prior to the marriage and Robert was fully aware of the diagnosis. In 1995 she applied for and received Social Security disability benefits because she was no longer able to work. She cashed in her retirement account with Peavey Electronics and used the $1, 200 for household expenses. Her efforts were then devoted full time to the household. At one point in time Sheila bought a house trailer and moved into it. Robert soon followed her. She then sold the trailer and they both moved into the home on Causeyville Road, using the proceeds from the sale of the house trailer for household expenses. This home on Causeyville Road belonged to Robert as he obtained title some ten years before in a previous divorce. While Robert and Sheila were living together but before their marriage, Robert bought two additional parcels of property adjoining the marital home paying $19,000. Since the purchase of the additional 8.16 acres, the land has increased in value and been improved by the addition of a catfish pond, fencing and a pier. Robert submitted his income and expense statement to the court with the misleading value of $14,250 for the land which is titled solely in Robert's name. Robert asserted that Sheila made no payments on the house or the land. He said that his father paid the balance owed to the Bank of Meridian for the land although he never offered proof of the amount paid by his father. Sheila did, however, work on the land with Robert putting up the fence, gardening, feeding the cows, and building the pier for the catfish pond. They ate the fish they caught and the vegetables Sheila grew in the garden. Bunyard v. Bunyard, No. 2000-CA-01259-COA, at ¶¶ 2-6 (Miss. Ct. App. 2001). ¶3. The chancellor granted Sheila a divorce on the ground of adultery and awarded a truck and its title as lump sum alimony. Sheila was also awarded miscellaneous personal items, $3,000 in attorney's fees, $500 per month in permanent periodic alimony, and is the named beneficiary of a $100,000 life insurance policy on Robert's life. Robert was awarded the marital home and surrounding acreage. He was also given ownership of his retirement funds but ordered to pay Sheila $28,000 for her equitable interest in both his retirement and the land. ¶4. Robert appealed solely as to the award of an equitable interest in land acquired by him during the cohabitation period. He did not contest the award of alimony or attorney fees. Despite a lack of precedent, the Court of Appeals unanimously affirmed the chancellor's decision after finding that the earlier relationship was "ratified" by the parties' subsequent marriage. DISCUSSION ¶5. We have described our applicable standard of review as follows: As with most matters appealed from the chancery court, this Court "employs a limited standard of review" of the division and distribution of property in divorces. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). Such division and distribution "will be upheld if it is supported by substantial credible evidence." Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994). This Court will not substitute its judgment for that of the chancellor "[e]ven if this Court disagree[s] with the lower court on the finding of fact and might ... [arrive] at a different conclusion." Richardson v. Riley, 355 So.2d  667, 668 (Miss.1978). The chancellor's findings will not be disturbed "unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). Owen v. Owen, 798 So.2d 394, 397-98 (Miss. 2001). Robert relies primarily on this Court's decision in Weeks v. Weeks, 654 So.2d 33 (Miss. 1995). In that case, the Court upheld a chancellor's decision not to award separate maintenance where the marriage itself was void (the wife had married her mother's brother). On appeal, the wife argued that equitable estoppel should prevent the husband from relying on the illegality of the nine year marriage. The Court affirmed the chancellor on finding that equitable estoppel was not available since both parties were relying upon a mistaken contention of law rather than a set of facts. Id. at 36. In the present case, the parties' marriage was not rendered void by their prior cohabitation and reliance on Weeks case is misplaced. ¶6. Robert claims that the chancellor's division of property acquired since the beginning of the parties' relationship amounts to palimony and is therefore in conflict with Davis v. Davis, 643 So.2d 931 (Miss. 1994). Robert asserts that equitable division was improper because the parties had been living in pari delicto. In Davis, the parties lived together for thirteen years and were never married, although they held themselves out as husband and wife. The woman in that relationship sought an equitable division of assets but this Court held While the judicial branch is not without power to fashion remedies in this area, we are unwilling to extend equitable principles to the extent plaintiff would have us to do, since recovery based on principles of contracts implied in law essentially would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature. Id. at 934-35. In the present case, the parties acquired property during their cohabitation as well as their marriage. Unlike Davis, the parties here had a valid marriage at the time of their divorce thereby giving the chancellor a legal basis for the division of marital assets. ¶7. The issue here is whether real estate adjacent to the homestead can be considered a marital asset subject to division. The petition for writ of certiorari alleges that Robert received an inter vivos gift of real estate from his father whereas the appellate opinion recited that Robert paid $19,000 for the adjoining lots which were titled in his name only. Nothing in the appellate record indicated that Sheila helped to pay for the land or that she was admitted to the title. In fact, Sheila testified that Robert paid for all the land. The five acre tract was bought five years before the marriage and paid for by Robert. The 3.16 acre tract was bought almost four years before the marriage and also paid for by Robert. There was some testimony that Sheila helped to improve the land by assisting in the construction of a fence and pier. ¶8. Other jurisdictions have held that assets acquired during cohabitation prior to marriage are not subject to equitable distribution. Bower v. Bower, 611 A.2d 181 (Pa. 1992); Smith v. Smith, 749 A.2d 921, 927 (Pa. Super. Ct. 2000)(pension benefits accruing prior to second marriage to same wife not subject to division). This is in keeping with the premise that marital assets are those acquired by the parties during the course of the marriage. There have been exceptions where it was proven that certain property was specifically acquired in contemplation of marriage. Berrie v. Berrie, 600 A.2d 512, 518 (N.J. Super. Ct. App. Div. 1991); Raspa v. Raspa, 504 A.2d 683 (N.J. Super. Ct. Ch. Div. 1985). If property is acquired during a period of cohabitation and appreciates in value after marriage due to the parties' joint efforts and contributions, a court may equitably divide the amount of appreciation. Josan v. Josan, 521 N.Y.S.2d 270 (N.Y. App. Div.1987). As a general rule however, the existence of a marital relation does not include a prior period of cohabitation. Cummings v. Cummings, 376 N.W.2d 726, 730 (Minn. Ct. App.1985). ¶9. In the present case, the Court of Appeals did not find that the parties acquired the land jointly or that Sheila contributed somehow to the purchase, but instead held that the prior relationship of cohabitation was "ratified by a legal marriage in which both parties contributed to the maintenance of the homestead." The Court of Appeals was correct in its affirmance of the chancellor, but its language that the parties' cohabitation was ratified by their later marriage is unfounded in our law and unnecessary for the Court of Appeals' conclusion. The Court of Appeals seemed to believe it necessary to count the period of cohabitation and to merge the non-marital property into the marital estate because of the existence of a legal marriage. There is no authority in this State for the proposition that a subsequent marriage ratifies an otherwise illegal relationship which continues to be prohibited by Miss. Code Ann. § 97-29-1 (2000). However, we do find sufficient facts in the record which show the chancellor was correct in awarding an equitable interest in the appreciated value of the land adjoining the marital home. ¶10. "Commingled property is a combination of marital and non-marital property which loses its status as non-marital as a result." Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss. 1995)(husband paid mortgage note after separation and claimed equitable interest in home on jointly-titled property which had been donated by in-laws and house had been built by his father-in-law with husband's funds). The burden of proof however goes beyond the mere demonstration that the asset was acquired prior to the marriage. A&L, Inc. v. Grantham, 747 So.2d 832, 839 (Miss. 1999). In the present case, Robert countered that the land was acquired without Sheila's financial assistance and that the property was titled in his name only. The chancellor nonetheless recognized " a period of cohabitation which involved joint efforts to accumulate assets, followed by a valid marriage where the same joint efforts continued" and found that "there can be no question that it (the unimproved real property) was accumulated by their joint efforts." Suffice it to say, that it was not inappropriate for the chancellor in exercise of her judgment to award an equitable interest to Sheila in Robert's land and retirement. While Robert purchased the land prior to the marriage to Sheila, evidence showed that Robert and Sheila treated the 8.16 acres as part of a homestead and enjoyed and used the totality of the properties as one. The chancellor considered the totality of the assets of the marital estate and placed a lien on the properties in favor of Sheila. We see no manifest error by the chancellor. CONCLUSION ¶11. For the reasons discussed above, we disapprove of the Court of Appeals' opinion to the extent that it holds that separate property acquired prior to a legal marriage but during a period of cohabitation is somehow ratified by the marriage and becomes a part of the marital estate. However, we find that there is sufficient evidence in the record to affirm the chancellor's award to Sheila of an equitable interest in the marital home, Robert's retirement, and the appreciated value of the adjoining land purchased by Robert prior to the marriage. Therefore, the chancellor did not err in giving Sheila an equitable interest in the properties and retirement account. The judgments of the trial court and the Court of Appeals are affirmed. ¶12. AFFIRMED. SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., CONCURS WITH SEPARATE WRITTEN OPINION.  DIAZ, JUSTICE, CONCURRING: ¶13. I agree to affirm the judgments of the chancellor and the Court of Appeals. However, I agree with the determination made by the Court of Appeals that the relationship between Sheila and Robert was ratified by a legal marriage. Sheila and Robert lived together for about 8 to 9 years before they obtained a valid marriage. During the period of cohabitation, both parties contributed to the household expenses. Sheila cooked, cleaned, did laundry, yard work, housekeeping and gardening prior to the marriage and without compensation. During the cohabitation period, Robert purchased two parcels of property adjoining the marital home. Sheila worked on this land, helping Robert to fence the land, garden, feed the cows, and build a pier for the catfish pond. Sheila grew and cooked vegetables from the garden that flourished on the adjoining property. Sheila contributed substantially during the period of cohabitation. For these reasons, I agree with the ruling of the Court of Appeals that the relationship was ratified by a legal marriage in which both parties contributed to the maintenance of the homestead. ¶14. The facts of this case are similar to those in Moriarty v. Stone, 668 N.E.2d 1338 (Mass. App. Ct. 1996). In Moriarty, significant contributions were made during the premarital partnership during a ten-year period in which the parties lived together prior to marriage. Id. at 1344. That court found that, given the appropriate circumstances, the parties' contributions during cohabitation, and prior to a valid marriage, may be considered when fashioning the remedy of equitable distribution. ¶15. The rule set forth by the Mississippi Court of Appeals simply prevents one spouse from using the law to his or her advantage in depriving the other spouse of significant contributions made during cohabitation prior to marriage. The subsequent marriage only ratifies the cohabitation to the extent that those contributions to the maintenance of the relationship, made during the period of cohabitation, should be considered marital property for purposes of equitable distribution. This ruling has no effect on Davis v. Davis, 643 So. 2d 931 (Miss. 1994) in which "palimony" was frowned upon in a case involving no valid marriage. ¶16. For these reasons, I agree to affirm the judgment of the Court of Appeals and the chancellor's equitable division of the marital assets. 

859 P.2d 273 (1993) Terry L. LARSON and Wayne Larson, both individually and as husband and wife, Plaintiffs-Appellants, v. A.T.S.I., a Colorado corporation, and Teddy J. Rainey, Defendants-Appellees. No. 92CA0087. Colorado Court of Appeals, Div. II. March 11, 1993. As Modified on Denial of Rehearing April 29, 1993. Certiorari Denied September 27, 1993. *274 Long & Jaudon, P.C., Gary B. Blum, Elizabeth A. Weishaupl, Denver, for plaintiffs-appellants. Wood, Ris & Hames, P.C., Mark R. Davis, Denver, for defendants-appellees. Opinion by Judge TURSI. Plaintiffs, Terry L. and Wayne Larson, appeal from the judgment entered on a jury verdict in favor of defendants, ATSI and Teddy J. Rainey. We reverse. Plaintiffs brought this action for personal injuries after a semi-tractor truck owned by ATSI and driven by its employee, Teddy J. Rainey, collided with Terry Larson's vehicle. Defendants admitted legal liability for any injury and damages, caused by the collision, plaintiff may have suffered. Hence, the jury was instructed: "In view of that admission the only issues remaining for the jury to determine are (1) what injury, (if any), and (2) the amount of damages, (if any) which were caused by the occurrence." The threshold issue pursuant to the No-Fault Act was not contested nor submitted to the jury. See § 10-4-714(1), C.R.S. (1987 Repl.Vol. 4A). Rather, the major contested issue was whether plaintiff Terry Larson's claim of a seriously debilitating reflex sympathetic dystrophy was caused by the collision. However, the jury also received evidence and was instructed that it should consider non-economic loss incurred and those which would probably be incurred in the future, including pain and suffering, inconvenience, and emotional stress. The jury returned a special verdict for defendants finding that plaintiff did not incur any injuries, damages, or losses. Plaintiffs contend that the trial court erred by denying their motion for new trial or alternatively for judgment notwithstanding the verdict. We agree that, under the totality of the circumstances here, the trial court correctly denied the motion for judgment notwithstanding the verdict, but erred in denying the motion for new trial. Plaintiffs also contend that the trial court erred in refusing to enter judgment on their behalf based upon an offer of settlement which they had accepted within ten days of the offer, albeit subsequent to the defense verdict. We disagree. I. Defendants' offer of settlement was received by plaintiffs on September 27, 1991. Trial commenced on September 30, 1991, the defense verdict was received on October 4, 1991, and the offer was accepted on October 7, 1991. As pertinent here, the offer concluded with: "Please consider this an offer of settlement pursuant to C.R.S. Section 13-17-202." Section 13-17-202(3), C.R.S. (1992 Cum. Supp.) reads: At any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse party an offer of settlement to the effect specified in his offer, with costs then accrued. If within ten days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance, together with proof of service thereof, and thereupon the clerk shall enter judgment. An *275 offer not accepted shall be deemed withdrawn.... The trial court refused to enter judgment on the offer concluding that, because it was not served at least 10 days before trial, it was not a § 13-17-202 offer. We agree that a post-verdict acceptance would neither comport with the legislative intent to encourage settlements prior to trial nor would a just and reasonable result flow from such an interpretation of the statute. See § 2-4-201(1)(c), C.R.S. (1980 Repl.Vol. 1B). Subsequent to the announcement of the original opinion herein, our supreme court in Centric-Jones v. District Court, 848 P.2d 942 (Colo.1993) held that a timely offer of judgment pursuant to § 13-17-202(3), C.R.S. (1992 Cum.Supp.) was irrevocable even if a partial summary judgment is entered prior to the statutory 10-day period for acceptance. However, inasmuch as the offer of judgment here was not made within the statutory period and the attempted acceptance was subsequent to a jury verdict denying the entire claim, we hold that Centric-Jones is inapposite. II. A. A motion for new trial may be granted for, among other causes, excessive or inadequate damages, or an error in law. C.R.C.P. 59(d). A trial court's ruling denying a motion for new trial is subject to its considerable discretion and will be reversed only upon a clear showing of abuse. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). Plaintiffs argue that, based on unrebutted evidence and admissions made by defendants at trial, a new trial must be granted because of inadequate damages. The admission referred to by plaintiffs occurred when defense counsel made the following statement in closing argument: As I stated in opening and I still state it again, the Plaintiff is entitled to compensation for damages for injuries sustained in this accident. But you have to—they have to be proved to have been caused by the accident. We believe that the evidence states that there was a minor cervical sprain that is in the hospital records. There is a bruise on her chest shown by Dr. Slover's records and Dr. Wheeler stated tightness in the back. However, the testimony in this case is that they were all resolved and there is no permanency related to those. In addition, I have no doubt that it was a frightful experience that Mrs. Larson went through when this truck came next to her.... She is also entitled to reasonable compensation for the fright and experience of that. Those are the injuries that were proven in this case to have been caused by the automobile accident and we request reasonable compensation accordingly.... "A judicial admission is a formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo.1986). Judicial admissions are binding on the party who makes them, are evidence against such party, and may constitute the basis of a verdict. Northwestern National Casualty Co. v. State, 682 P.2d 486 (Colo.App.1983). Such admissions, which may be made by a party's counsel, need not be written when made in court, and can occur in oral argument. Kempter v. Hurd, supra. Defendants argue that an attorney's statements in closing are not to be considered either facts, evidence, or admissions, and that a jury may disregard closing argument and apply the law to the facts as it deems fit. Childs v. Franco, 563 F.Supp. 290 (E.D.Pa.1983) involved facts similar to those at issue here. In that case, defendant admitted liability for a rear-end collision and the only issue at trial was whether and to what extent the plaintiff suffered injuries. In closing, however, defense counsel acknowledged that the plaintiff had sustained some pain from the accident. The court held that the acknowledgment was a binding admission because it was both unambiguous and related to a question *276 of fact. The court reversed the jury's verdict in favor of defendant finding that monetary damages, even a nominal amount, should have been awarded the plaintiff. Generally, courts deciding this issue have focused on whether the alleged admission was unequivocal. See Hayes v. Xerox Corp., 718 P.2d 929 (Alaska 1986); Bunch v. Rose, 10 Ill.App.3d 198, 293 N.E.2d 8 (1973). But see Kuzmic v. Kreutzmann, 100 Wis.2d 48, 301 N.W.2d 266 (1980). We conclude that the Childs analysis is well-reasoned and should apply to the case at hand. Here, defense counsel's statement was unequivocal and pertained to a factual matter. It was not phrased as a statement of opinion, but rather, was declaratory in nature. Furthermore, although the jury had been instructed that the statements, remarks, arguments, and objections of counsel are not evidence, it was also informed that: "When the attorneys on both sides agree as to the existence of a fact, or a fact has been admitted, the jury must regard that fact as proved." Hence, we hold that defense counsel's statement was a binding judicial admission that plaintiff Terry Larson had incurred some physical injury and damage in the accident. While there is no case in our jurisdiction directly addressing the timing of the statement, the result that we reach finds support in several Colorado cases which suggest that a judicial admission can be made in a closing argument. See Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo.1986) (fn. 8); Most Worshipful Prince Hall Grand Lodge v. Most Worshipful Hiram Grand Lodge, 86 Colo. 330, 282 P. 193 (1929); Nelson v. Lake Canal Co., 644 P.2d 55 (Colo.App.1981); and Skeens v. Kroh, 30 Colo.App. 88, 489 P.2d 347 (1971). In light of defendants' admission of the existence of a physical injury, the jury's verdict for defendants cannot be supported by the evidence. See Fletcher v. Porter, 754 P.2d 788 (Colo.App.1988). Consequently, plaintiffs' alternative motion for a new trial should have been granted. B. A judgment notwithstanding the verdict may be granted only if the evidence, taken in the light most favorable to the party opposing the motion and drawing every reasonable inference which may legitimately be drawn from the evidence in favor of that party, would not support a verdict by a reasonable jury in favor of the party opposing the motion. Nelson v. Hammon, 802 P.2d 452 (Colo.1990). However, inasmuch as negligent causation of the collision was admitted and the extent of damages remained the only contested issue, judgment notwithstanding a verdict would have served no useful purpose nor would it have been appropriate. The judgment is reversed, and the cause is remanded for a new trial on the issue of damages. HUME and COYTE,[*] JJ., concur. NOTES [*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1988 Repl.Vol. 10B).

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 12-3844 TOMMY D. FORD, Petitioner-Appellant, v. BILL WILSON, Superintendent Respondent-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:11-cv-490-JTM — James T. Moody, Judge. ____________________ ARGUED APRIL 17, 2014 — DECIDED MAY 2, 2014 ____________________ Before MANION, SYKES, and TINDER, Circuit Judges. TINDER, Circuit Judge. This is a habeas action brought un- der 28 U.S.C. § 2254, in which Petitioner Tommy Ford chal- lenges his conviction for murder in an Indiana state court. On appeal, Ford maintains only one ground for relief: that his trial counsel was ineffective in failing to object when the state prosecutor commented on his failure to testify. Ford contends that an objection would have been sustained be- cause the prosecutor’s comments violated his Fifth Amend- 2 No. 12-3844 ment privilege against compulsory self-incrimination. How- ever, even assuming that to be true, Ford has failed to show prejudice resulting from his attorney’s failure to object. Therefore, we affirm. I. BACKGROUND In § 2254 proceedings, factual determinations made by the state court are presumed to be correct. 28 U.S.C. § 2254(e)(1). Ford has made no attempt to rebut this pre- sumption as it pertains to the facts relied upon by the Indi- ana Court of Appeals, which summarized the evidence at trial as follows: On November 1, 2005, Ford visited Glen Park in Gary and encountered an acquaintance, James Grace. Ford talked with Grace and drank vodka with one of Grace’s friends. Grace told Ford that he needed a place to store his vehicle. Ford offered to show Grace his garage as a possible storage location. Ford left his car at the park and rode with Grace to Ford’s home. As the two men approached Ford’s house, they passed fifteen-year-old Christian Hodge, who was seated on a front-yard retaining wall on the property next door. Ford and Hodge greeted each other. When Ford and Grace entered Ford’s house, Ford said to Grace, “I can’t stand that mother fucker. I’ll be back.” Ford left the house, and Grace heard a popping sound shortly thereafter. He looked outside and saw Hodge lying in the street. Ford came back inside the house and said to Grace, “I got to get the fuck out of here, and meet me down—meet me at the end of the alley and pick me up.” Grace got into his truck and drove away. He soon located a police officer and led him No. 12-3844 3 back to the crime scene. Hodge had suffered one gun- shot wound to the back of his head, and he died the next day. At the crime scene, Gary Police Officer Daniel Quasney spoke with witness Ronell Simmons, who appeared to be “upset, in disbelief, and in a state of shock.” Simmons stated that he had seen the victim talking to a black male in a black hooded sweatshirt. He stated that the man pulled out a gun and shot Hodge in the head and then walked away. Ford’s first trial, in which Simmons testified, ended in a mistrial on May 18, 2006. During the second trial, the State alleged that Simmons was unavailable to tes- tify and moved for admission of Simmons’s prior tes- timony. The trial court denied the State’s request. The State later moved to admit Officer Quasney’s testi- mony recounting Simmons’s statements at the crime scene. The trial court admitted this evidence pursuant to Indiana Evidence Rule 803(2), the excited utterance exception to the hearsay exclusion rule. Ford v. State (Ford I), No. 45A03–0701–CR–20, 2007 WL 3071987, at *1 (Ind. Ct. App. Oct. 23, 2007) (citations omit- ted). During closing arguments in Ford’s second trial, his at- torney argued that the state had failed to provide any rea- sonable explanation as to why Ford would shoot Hodge. In response, the state prosecutor argued as follows: Sometimes we’ll never know why crimes were com- mitted. Someone who could—now, let me phrase this correctly, he never has to say a single word, a single 4 No. 12-3844 word. It’s the State’s burden to prove that he commit- ted this crime beyond a reasonable doubt, but what happens when you have crimes, when you have one or two people there who can possibly talk and tell you what happened and one of them’s dead? One of them’s dead. Who else are we going to get that infor- mation from? The next possible source is the person who committed the offense. If that person who com- mitted the offense don’t talk, how would we ever know? We would speculate. Does it mean the person wasn’t shot and killed, it didn’t happen? It happened, and that’s what we have to prove to you, not why it happened. Ford v. State (Ford II), No. 45A05–1009–PC–610, 2011 WL 3476616, at *9 (Ind. Ct. App. Aug. 9, 2011). Ford was convict- ed and sentenced to fifty years’ imprisonment. Following his conviction, Ford filed an unsuccessful di- rect appeal. Later, he filed a petition for postconviction relief in Lake County Superior Court, presenting several grounds for relief, including the one we address today. However, the Superior Court denied Ford’s petition, the Indiana Court of Appeals affirmed, and the Indiana Supreme Court denied his petition to transfer. Having exhausted his state remedies, Ford filed this § 2254 petition in the U.S. District Court for the Northern District of Indiana. However, the district court dismissed his petition and denied him a certificate of appealability. Ford then filed a notice of appeal in this court, and we granted him a certificate of appealability. No. 12-3844 5 II. TIMELINESS Ford’s notice of appeal was filed on December 4, 2012, thirty-two days after the district court’s judgment. Thus, in its response brief, the state argued that the appeal should be dismissed as untimely. See Fed. R. App. P. 4(a)(1). However, Ford is an inmate confined in an institution; therefore, he may benefit from the so-called “prisoner mailbox rule,” un- der which a notice is timely “if it is deposited in the institu- tion’s internal mail system on or before the last day for fil- ing.” Fed. R. App. P. 4(c)(1). “If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.” Id. “If the prison lacks such a system: ‘Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 … which must set forth the date of deposit and state that first-class postage has been prepaid.’” United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004) (quoting Fed. R. App. P. 4(c)(1)). After the state’s response brief was filed in our court, Ford filed such a declaration, stating that he placed his no- tice of appeal in the prison’s internal mailing system on No- vember 28, 2012, twenty-six days after the district court’s judgment, “with first class postage affixed.” Ford was not required to file this declaration simultaneously with his no- tice of appeal. See Ingram v. Jones, 507 F.3d 640, 642–44 (7th Cir. 2007) (relying on declarations filed after the notice of appeal to establish compliance with Rule 4(c)(1)); Grady v. United States, 269 F.3d 913, 917–18 (8th Cir. 2001) (holding that the declaration required by Rule 4(c)(1) need not ac- company the notice of appeal). Moreover, he was required to “attest to ‘only two things’: the date the notice was deposited into the prison mail system and that first class postage was 6 No. 12-3844 prepaid.” 1 Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013) (quoting Craig, 368 F.3d at 740). Ford’s declaration sat- isfies these requirements, and it is corroborated by the certif- icate of service he included with his notice of appeal, which states that he served a copy on the Indiana Attorney General on November 28, 2012, “by depositing the same in the Unit- ed States Mail, postage paid.” As a result, we find his notice timely, and we turn to the merits of his appeal. III. DISCUSSION Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner may obtain federal ha- beas relief based on a claim of legal error only if the state court’s decision “was contrary to, or involved an unreasona- ble application of, clearly established Federal law, as deter- mined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In this case, the district court determined that Ford was not entitled to relief under that standard. “Our review of the district court’s decision to deny the habeas petition is de novo, and is governed by the terms of the AEDPA.” Bolton v. Akpore, 730 F.3d 685, 693 (7th Cir. 2013). “Thus, although we technically hear this appeal from the district court, our inquiry focuses entirely on what occurred in the state court. In so doing, we look at ‘the decision of the last state court to rule on the merits of the petitioner’s claim.’” McNary v. Lemke, 708 F.3d 905, 913 (7th Cir. 2013) (quoting McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011)). In this case, that was the Indiana Court of Appeals, 1 The state does not contend that the institution where Ford is con- fined has a separate mailing system designed for legal mail that Ford should have used. No. 12-3844 7 when it affirmed the denial of Ford’s petition for postconvic- tion relief. Ford II, 2011 WL 3476616. A. CONSTITUTIONAL FRAMEWORK In order to determine whether the Indiana Court of Ap- peals issued 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,” it is first necessary to understand what that law is. Thus, be- fore turning to the state court’s decision, we consider what the Supreme Court has said about the constitutionality of prosecutorial comments on a defendant’s silence. 1. Griffin v. California and the Fifth Amendment Privilege In Griffin v. California, 380 U.S. 609 (1965), a state prosecu- tor commented on a murder defendant’s failure to testify, 2 and the trial court instructed the jury that it was permitted to draw an adverse inference based on the defendant’s failure to explain or deny facts within his knowledge. 3 At the time, a California constitutional provision allowed both the prose- cutor and the court to comment on the defendant’s silence. 2 After asserting that the defendant was in a position to know what happened, the prosecutor said, “Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.” 380 U.S. at 611 (internal quota- tion marks omitted). 3 The trial court instructed, “As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain be- cause of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be rea- sonably drawn therefrom those unfavorable to the defendant are the more probable.” 380 U.S. at 610 (internal quotation marks omitted). 8 No. 12-3844 However, the Supreme Court held that the Fifth Amendment privilege against compulsory self- incrimination, which applies to the states through the Four- teenth Amendment, “forbids either comment by the prose- cution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id. at 615. In doing so, the Court reasoned that “comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlaws.” Id. at 614 (citation and internal quotation marks omitted). The Court de- nounced the practice of commenting on a defendant’s silence as “a penalty imposed by courts for exercising a constitu- tional privilege,” noting that it “cuts down on the privilege by making its assertion costly.” Id. Over twenty years later, the Court revisited the Fifth Amendment privilege in United States v. Robinson, 485 U.S. 25 (1988). In that case, the defendant did not testify, but in closing arguments his attorney suggested that the govern- ment had unfairly deprived him of the opportunity to tell his side of the story. In response, the prosecutor argued that the defendant had several opportunities to explain his actions, including the opportunity to testify at trial. On appeal, the defendant argued that the prosecutor’s comments violated his Fifth Amendment privilege against compulsory self- incrimination as interpreted in Griffin. However, the Su- preme Court disagreed. The Court rejected the view that “any ‘direct’ reference by the prosecutor to the failure of the defendant to testify violates the Fifth Amendment as construed in Griffin.” Id. at 31. Instead, “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s si- No. 12-3844 9 lence as substantive evidence of guilt.” Id. at 32 (quoting Bax- ter v. Palmigiano, 425 U.S. 308, 319 (1976)). Thus, the Court reasoned: Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin holds that the privilege against com- pulsory self-incrimination is violated. But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege. Id. The Court recognized that the defendant’s assertion of the privilege may be costly in either situation, but it empha- sized that in order to serve the truth-finding purpose of a criminal trial, “it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evi- dence and arguments of one another.” Id. at 33. 2. Doyle v. Ohio and the Right to Due Process Eleven years after Griffin, the Supreme Court decided Doyle v. Ohio, 426 U.S. 610 (1976). In that case, two defend- ants were charged with selling marijuana to an informant. In their separate trials, each defendant took the stand and for the first time asserted that he was trying to buy, rather than sell, marijuana. To impeach them, the prosecutor brought out on their respective cross-examinations that neither de- fendant told that story to the police after he was arrested. The prosecutor also relied on the defendants’ post-arrest si- lence in his closing arguments. In considering the constitutionality of this practice, the Supreme Court first noted that the defendants had been giv- 10 No. 12-3844 en Miranda warnings when they were arrested and that those warnings implicitly assured them that their silence would carry no penalty. Id. at 618. The Court then concluded that “[i]n such circumstances, it would be fundamentally un- fair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subse- quently offered at trial.” Id. Later, in Wainwright v. Greenfield, 474 U.S. 284 (1986), the Court found that the due process concerns recognized in Doyle were equally relevant when a defendant’s post-arrest silence was used to respond to a defense theory, rather than to impeach the defendant. In Wainwright, the defendant pre- sented an insanity defense, and the prosecution attempted to rebut that defense by showing that the defendant was of sound enough mind to exercise his right to remain silent af- ter receiving Miranda warnings. The Court held that this vio- lated the defendant’s right to due process as interpreted in Doyle. Id. at 295. These cases reflect an important difference between the violation of due process recognized in Doyle and the viola- tion of the Fifth Amendment privilege recognized in Griffin. Specifically, as the Court held in Robinson, prosecutors may use a defendant’s silence to impeach him or to fairly respond to a defense theory without violating the Fifth Amendment privilege. However, due process generally prohibits prose- cutors from using the fact that a defendant remained silent after receiving Miranda warnings, even if that fact is used for purposes of impeachment (as in Doyle) or in response to a defense theory (as in Wainwright). Indeed, the Court has declined to find a violation of due process based on the mention of a defendant’s silence after No. 12-3844 11 receiving Miranda warnings only where that silence “was not used against him within the meaning of Doyle.” Greer v. Mil- ler, 483 U.S. 756, 764 n.5 (1987). Just as in Doyle, the defend- ant in Greer took the stand and presented an exculpatory sto- ry, and the prosecutor asked him why he had not told that story when he was arrested. However, in Greer, defense counsel immediately objected, and the court sustained the objection and later advised the jury that it should disregard any questions to which an objection was sustained. Moreo- ver, the prosecutor asked no further questions on the subject, nor did he refer to the defendant’s silence in his closing ar- gument. The Court held that no due process violation oc- curred because the defendant’s post-arrest silence “was not submitted to the jury as evidence from which it was allowed to draw any permissible inference.” Id. at 764–65. B. THE STATE COURT’S POSTCONVICTION DECISION In this case, Ford claims that his trial counsel was ineffec- tive in failing to object to the prosecutor’s comments on his failure to testify. In his brief to the Indiana Court of Appeals, he argued that such an objection inevitably would have been sustained because the prosecutor’s comments violated his Fifth Amendment privilege against compulsory self- incrimination. He cited Griffin in support of this argument, and he did not rely on Doyle or other cases dealing with Doyle-type due process violations. Even so, the Indiana Court of Appeals analyzed Ford’s claim under Doyle. The court recognized that in Doyle, “the United States Supreme Court held that, under the Four- teenth Amendment, a prosecutor may not use the silence of a defendant who has been arrested and Mirandized to im- peach the defendant.” Ford II, 2011 WL 3476616, at *7. How- 12 No. 12-3844 ever, the court also noted that in both Doyle and Wainwright, “the prosecution used the act of the defendant’s silence or the fact of the request for counsel itself as indicative of guilt or damaging to credibility.” 2011 WL 3476616, at *8 (quoting Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998)) (internal quotation marks omitted). Based on this principle, the court held that “the State did not run afoul of Doyle when it re- ferred to Ford’s silence in direct response to a defense theory and when that use was not used to indicate the defendant’s guilt or damage his credibility.” Id. This was wrong in two respects. First, Ford’s claim was based on his Fifth Amendment privilege, not his right to due process. Thus, the Indiana Court of Appeals applied the wrong legal standard. The state argues that Ford’s claim could be governed by either Doyle or Griffin, given that the prosecutor’s comments were vague and could have referred to Ford’s silence immediately after his arrest or at trial. But the fact remains that Ford has not relied on the due process rights articulated in Doyle. And even if he had advanced such a claim, the Indiana Court of Appeals should have con- sidered his Griffin argument as well. Due process and the Fifth Amendment privilege are independent rights, and one may be violated even though the other is not. Second, even if Ford’s claim was based on due process, the court’s application of Doyle was incorrect. As Wainwright makes clear, due process may be violated even if the defend- ant’s post-arrest silence is used “in direct response to a de- fense theory.”4 Moreover, it is inaccurate to say that Ford’s 4The Indiana Court of Appeals cited Willsey v. State, 698 N.E.2d 784 (Ind. 1998), in support of its holding. Willsey, quoting one of our cases, recognized that “Doyle does not impose a prima facie bar against any No. 12-3844 13 silence “was not used to indicate [his] guilt or damage his credibility.” It was used to explain the state’s inability to prove motive, and while motive was not an element of the offense, it was certainly relevant. See Turner v. State, 953 N.E.2d 1039, 1057 (Ind. 2011) (“Evidence of a defendant’s motive is always relevant in the proof of a crime.”); see also House v. Bell, 547 U.S. 518, 540 (2006) (“When identity is in question, motive is key.”). Because evidence of motive would have been probative of Ford’s guilt, the prosecutor’s explanation for the absence of such evidence was necessarily used to indicate Ford’s guilt, or at least to rebut a suggestion of innocence, which is simply the reverse side of the same coin. Of course, the fact that the Indiana Court of Appeals misapplied Doyle does not in itself permit relief under the AEDPA, because “the court’s application must have been more than incorrect; it must have been objectively unreason- able.” Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir. 2014). However, the court never should have applied Doyle in the mention whatsoever of a defendant’s right to request counsel, but in- stead guards against the exploitation of that constitutional right by the prosecutor.” 698 N.E.2d at 793 (quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)) (internal quotation mark omitted). However, this does not mean that a defendant’s post-arrest silence or request for coun- sel may be used in response to a defense theory. It is simply another way of stating the unremarkable proposition that there is no due process vio- lation if the defendant’s post-arrest silence or request for counsel “was not used against him within the meaning of Doyle.” Greer, 483 U.S. at 764 n.5; see Willsey, 698 N.E.2d at 793 (“[T]he State took advantage of Will- sey’s implication of sinister knowledge, not the request for counsel.”); Lindgren, 925 F.2d at 202 (“Since this request for counsel was not used against petitioner, [Wainwright] was not contravened.”). 14 No. 12-3844 first place, and a “state court’s decision is ‘contrary to’ feder- al law if it employs the wrong legal standard established by the Supreme Court.” McNary, 708 F.3d at 913 (citing Bell v. Cone, 535 U.S. 685, 694 (2002)). Therefore, apart from the state court’s misapplication of Doyle, Ford has cleared the AEDPA hurdle. But this is not the end of our inquiry. “Where the state court’s decision is ‘contrary to’ federal law, that decision is not entitled to the usual AEDPA deference and is therefore reviewed de novo with the reviewing court applying the cor- rect legal standard.” Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir. 2012). Thus, we must apply the correct legal standard to Ford’s claim, without deference to the state court’s decision, to determine whether his attorney’s failure to object war- rants reversal of his conviction. C. DE NOVO REVIEW Under Griffin, we must ask whether the prosecutor’s comments were a fair response to defense counsel’s argu- ment that the state failed to prove motive. We have our doubts. As Ford points out, the prosecutor could have stopped at saying that the state was not required to prove motive. He also could have pointed out that there was evi- dence of motive in the record, given that Ford told Grace just before the shooting, “I can’t stand that mother fucker.” However, we must back up a moment. Ford’s claim is not based on the Fifth Amendment directly but rather on the ineffectiveness of his counsel in failing to recognize and ob- ject to a Fifth Amendment violation. Indeed, a Fifth Amendment violation would not in itself be a proper basis for habeas relief, because Ford did not present such a claim No. 12-3844 15 to the Indiana courts. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (To sufficiently exhaust state remedies, a federal habeas petitioner must “give the state courts one full oppor- tunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.”). The general rule in Indiana is that “[i]f an issue was known and available on direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings.” Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). The only exception is a claim of ineffective assistance of trial counsel, which is properly presented in a post- conviction proceeding if not raised on direct appeal. Id. Ford failed to raise a Fifth Amendment challenge on direct ap- peal, so he was procedurally barred from doing so in his state postconviction proceedings, except in the context of a claim of ineffective assistance of counsel. We will not cir- cumvent the state’s procedural rules by considering Ford’s Fifth Amendment challenge directly. “Under Strickland v. Washington’s familiar, two-pronged test for ineffective assistance of counsel, [Ford] must demon- strate that (1) his counsel’s performance was deficient; and, (2) that deficiency resulted in prejudice.” United States v. Berg, 714 F.3d 490, 496–97 (7th Cir. 2013). Thus, even assum- ing the prosecutor’s comments violated Ford’s Fifth Amendment privilege (which we do not decide), and further assuming that defense counsel’s failure to object fell below an objective standard of reasonableness (which we also do not decide), Ford must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the 16 No. 12-3844 proceeding would have been different.” Strickland v. Wash- ington, 466 U.S. 668, at 694 (1984). This he cannot do. Ford argues that he was prejudiced because his first trial resulted in a hung jury, and the prosecutor’s comments on his silence were the only significant difference between the two trials. However, there was at least one other significant difference: one of the state’s witnesses, Sade Robinson, testi- fied at the first trial but was unavailable for the second, and in the latter trial, the court allowed her prior testimony to be read to the jury. Ford’s counsel did not object because he be- lieved that his cross-examination in the first trial had been effective and that Robinson would be more prepared if she were called to testify again. Indeed, during Ford’s postcon- viction hearing, his trial counsel testified that when the state agreed to have Robinson’s prior testimony read to the jury, “I did back flips because I felt her testimony in the first trial had been extremely helpful to Mr. Ford and played a role in the verdict.” Apparently, his cross-examination did not have the same impact when it was read to the jury in the second trial. This simply underscores the need to be cautious “in as- signing critical significance to the failure of a different jury, which heard different evidence and argument, to reach agreement.” United States v. Williams, 212 F.3d 1305, 1311 n.10 (D.C. Cir. 2000). Moreover, “[a] jury may hang for any number of reasons, including the idiosyncratic views of a single juror.” United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004). As a result, only in close cases should the fact of a prior hung jury lead to a finding of prejudice. Id. This is not such a case because the evidence against Ford was far too strong for us to find prejudice under Strickland. No. 12-3844 17 James Grace testified that after he and Ford walked past Hodge and into Ford’s house, Ford said, “I can’t stand that mother fucker. I’ll be back.” Ford left the house, and shortly thereafter Grace heard a popping sound. He looked out the front window of Ford’s house and saw Hodge lying in the street. As Grace continued to look out the window, Ford re- appeared behind him and frantically said, “I got to get the fuck out of here, and meet me down—meet me at the end of the alley and pick me up.” Gary Police Officer Daniel Quasney testified that after he arrived at the scene, he questioned a witness named Ronell Simmons. Simmons stated that he had seen Hodge talking to a black male in a black hooded sweatshirt and that the man had pulled out a gun, shot Hodge in the head, and walked away. Veveca Story, Sade Robinson’s sister, testified that on the day of the shooting, one of her coworkers drove her and Robinson to their mother’s house, which was next door to Ford’s. As soon as they pulled up to the house, there was a popping sound. When Story turned to look behind her, she saw Ford walking toward his house with a gun in his hand. Ford was wearing dark clothing, and as he walked, he made a slashing motion across his throat. Ford and Story’s mother had been neighbors for about two years at the time, and Sto- ry had seen Ford many times before. As a result, she was able to recognize him at the time, and she later identified him at trial. In addition to the testimony of these witnesses, Ford’s cellmate testified that Ford confessed to shooting Hodge. Taken together, the strength of this evidence negates any reasonable probability that the outcome of Ford’s trial would 18 No. 12-3844 have been different absent the prosecutor’s comments. See, e.g., Morales v. Johnson, 659 F.3d 588, 602 (7th Cir. 2011) (“The two eyewitness identifications were substantial evidence against [the defendant] and negated any possibility of Strick- land prejudice from [his attorney’s] errors … .”). Conse- quently, Ford is not entitled to habeas relief based on the claimed ineffective assistance of his trial counsel. 5 IV. CONCLUSION Although the Indiana Court of Appeals applied the wrong legal standard to Ford’s claim, when we apply the correct standard, we get the same result. Even assuming the performance of Ford’s trial counsel was deficient, there is no reasonable probability that adequate performance would have changed the outcome of Ford’s trial. Therefore, the dis- trict court’s dismissal of Ford’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 is AFFIRMED. 5 The outcome would be the same if we were to consider Ford’s claim directly under the Fifth Amendment and conduct a harmless-error analysis. Ford asks us to apply the Chapman harmless-error standard, under which “the court must be able to declare a belief that it was harm- less beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). But that only applies on direct appeal; the “the Kotteakos harm- less-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type.” Brecht v. Abra- hamson, 507 U.S. 619, 638 (1993). “The test under Kotteakos is whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, there must be “actual prejudice.” Id. (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). This is difficult to distin- guish from the Strickland standard, but it may be somewhat more de- fendant-friendly. See United States v. Dominguez Benitez, 542 U.S. 74, 86– 87 (2004) (Scalia, J., concurring in the judgment). Even so, we would reach the same result under either standard in this case. 

Cite as 2016 Ark. App. 441 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-16-371 NICHOLAS LAWSON Opinion Delivered September 28, 2016 APPELLANT APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION V. COMMISSION [NO. G208057] MOBILEX USA/TRIDENT USA HEALTH SERVICES, LLC, and AMERICAN CASUALTY COMPANY OF READING, PA APPELLEES AFFIRMED PHILLIP T. WHITEAKER, Judge Appellant Nicholas Lawson appeals a decision by the Workers’ Compensation Commission (“Commission”) that reversed the opinion of the Administrative Law Judge (“ALJ”) and found that Lawson had failed to meet his burden of proving a compensable lumbar injury. His sole argument on appeal is that there was insufficient evidence to support the Commission’s credibility determination. Having reviewed the evidence presented, we disagree and affirm by issuing this memorandum opinion. We may issue memorandum opinions in any or all of the following cases: (a) Where the only substantial question involved is the sufficiency of the evidence; (b) Where the opinion, or findings of fact and conclusions of law, of the trial court or agency adequately explain the decision and we affirm;  Cite as 2016 Ark. App. 441 (c) Where the trial court or agency does not abuse its discretion and that is the only substantial issue involved; and (d) Where the disposition of the appeal is clearly controlled by a prior holding of this court or the Arkansas Supreme Court and we do not find that our holding should be changed or that the case should be certified to the supreme court. In re Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985). This case falls squarely within categories (a) and (b). The only substantial question on appeal is whether the Commission’s opinion was supported by sufficient evidence. A review of the record reflects that it was. Further, the opinion of the Commission adequately explains the decision reached. Accordingly, we affirm by memorandum opinion. Affirmed. GRUBER and HOOFMAN, JJ., agree. Gary Davis, for appellant. Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellees. 2 

-------------------------------------------------------------------------------- TENTH COURT OF APPEALS Chief Justice Tom Gray Justice Rex D. Davis Al Scoggins McLennan County Courthouse 501 Washington Avenue, Rm 415 Waco, Texas 76701-1373 Phone: (254) 757-5200 Fax: (254) 757-2822 Clerk Sharri Roessler August 31, 2016 In accordance with the enclosed Memorandum Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 31[st] day of August, 2016. 10-15-00377-CV ROSE DONALDSON v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, AS SUCCESSOR BY MERGER TO CHASE HOME FINANCE LLC - ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2 OF McLENNAN COUNTY - TRIAL COURT NO. 20121376CV2 - AFFIRMED - Memorandum Opinion by Justice Scoggins: "This cause came on to be heard on the transcript of the record, and the same being considered, because it is the opinion of this Court that there was no error in the judgment of the court below; it is therefore ordered, adjudged and decreed that the judgment of the court below be, and hereby is, affirmed. It is further ordered that appellant pay all costs in this behalf expended, and that this decision be certified below for observance."

622 F.2d 573 Daceyv.Naruk 79-7657, 79-7857 UNITED STATES COURT OF APPEALS Second Circuit 3/3/80 1 D.Conn. AFFIRMED

638 P.2d 870 (1982) Mildred HASCUP, Plaintiff-Appellee, v. The CITY AND COUNTY OF HONOLULU, a Municipal Corporation, Defendant-Appellant. No. 7643. Intermediate Court of Appeals of Hawaii. January 11, 1982. Faye M. Koyanagi, Deputy Corp. Counsel, Honolulu (John W.K. Chang, Deputy Corp. *872 Counsel, Honolulu, on the briefs), for defendant-appellant. Louis K. Wai, Honolulu, for plaintiff-appellee. Before HAYASHI, C.J., and PADGETT and BURNS, JJ. *871 PER CURIAM. The City and County of Honolulu (City) appeals a jury verdict against it for negligence and raises three specifications of error to this court: (1) that the trial court erred in failing to grant its motion for directed verdict; (2) that the trial court erred in modifying its version of verdict form that would have required the jury to first find the existence of a dangerous condition; and (3) that the trial court erred in refusing to hear the testimony of a former deputy corporation counsel offered for impeachment purposes only. On the morning of July 11, 1976, Plaintiff Mildred Hascup and her daughter, tourists from New Jersey, were walking along Lewers Street in the Waikiki area of Honolulu en route to breakfast at a nearby restaurant. At a point along Lewers Street, Hascup's heel caught in a hole in the sidewalk, causing her to fall. She sustained serious injuries to her ankle, requiring her to be hospitalized here in Honolulu at Queen's Medical Center for nearly seventeen days. Upon her return to New Jersey, she underwent an extensive rehabilitative period and by the time of trial, was apparently still suffering from some of its effects. Hascup was seventy-three at the time of the fall. The day following her fall, Hascup's daughter, Mildred Prinjinski, returned to the scene of the fall and took pictures of the hole in the sidewalk. Hascup filed this action against the City in April 1978. Jury trial in the matter was conducted in September 1979. At trial, two of the photos were admitted into evidence, as was the testimony of the City's building inspector, Richard Onomoto. Onomoto testified that his duties included, inter alia, the inspection of City sidewalks in the Lewers Street area during the time in question and roughly estimated that he was in the area at least twice a week during the year preceding Hascup's fall — usually driving. When shown the photographs, he stated he would have ordered a hole of that size to be repaired. At the close of Hascup's case, the City moved for directed verdict on the basis that the photos were insufficient evidence from which a jury could infer that the City had constructive notice of the defect in question, citing Kellett v. City and County of Honolulu, 35 Haw. 447 (1940).[1] The court denied the motion. The jury subsequently returned a verdict in favor of the plaintiff in the amount of $67,000. The City argues that the court committed reversible error in denying its motion for directed verdict pursuant to Kellett. It argues that Kellett requires the plaintiff to establish that the hole existed for a "length of time" sufficient for the City to have been able to discover and correct it before it can be held to have had constructive notice of the defect; that the photographs, alone, are an insufficient basis for the jury to infer length of time. On appeal of the denial of a motion for directed verdict, the courts in Hawaii have said: A directed verdict may be granted only when after disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging every legitimate inference *873 which may be drawn from the evidence in plaintiff's favor, it can be said that there is no evidence to support a jury verdict in his favor. [Emphasis added.] Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977); Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970); Cafarella v. Char, 1 Haw. App. 142, 615 P.2d 763 (1980); Wesco Realty v. Cameron, 1 Haw. App. 89, 614 P.2d 399 (1980). The length of time a defect must exist before it can be inferred that a municipality is put on constructive notice is ordinarily a question for the jury. Kellett v. City and County of Honolulu, supra, at 457. In Kellett, the court in reversing the plaintiff's judgment found that there was a complete absence of evidence to support any inference of constructive notice to the city of a broken traffic sign.[2] In this case before us, the jury had for its consideration the photos of the hole in question and the testimony of the City inspector that the area was patrolled regularly (though by car) and that the hole was one which he would have ordered repaired.[3] Contrary to the case law urged upon us by the City, we do not agree that the jury (composed of reasonable minds), looking at the photos of the cracks and hole in the sidewalk and hearing the City inspector's testimony, could not reasonably infer that the defect existed for a sufficient length of time for the City to have had an opportunity to observe and remedy the condition. We find no error in denying the motion for directed verdict. The City argues that the court erred in refusing to permit a former deputy corporation counsel to testify that at some point prior to the initiation of formal discovery the plaintiff had submitted the wrong photographs as representative of the hole in which she stumbled.[4] We find the City's argument meritless. It made no attempt to introduce such evidence during cross-examination. It did not deny the validity of the photos in evidence. Consequently, it has failed to establish that the court abused its discretion in refusing to admit this testimony. See State v. Faulkner, 1 Haw. App. 651, 624 P.2d 940 (1981), wherein we held that the admissibility of impeaching evidence, generally, is within the court's discretion and would not be overturned on appeal absent a showing of clear abuse. Finally, the City argues that the court committed reversible error in modifying the City's special verdict form by excluding the paragraph requiring the jury to determine at the outset whether a dangerous condition existed. We find no merit to this argument, as the finding of a dangerous condition was the sine qua non of this case and the jury was adequately instructed on that question. Judgment is affirmed. NOTES [1] is the duty of a municipal corporation to keep its streets and sidewalks in a reasonably safe condition, and, if a defect has existed in a sidewalk for such a length of time that by reasonable diligence in the performance of their duties the defect ought to have been known by the proper authorities, notice will be presumed and proof of actual knowledge will not be necessary in order to render the municipality liable for injuries occasioned thereby. * * * The length of time it is necessary that such a defect exist in order for an inference of notice to arise is ordinarily a question for the jury... . 35 Haw. at 457. [2] See also Harris v. State, 1 Haw. App. 554, 623 P.2d 446 (1981). [3] At oral argument, Hascup's counsel stated that one of the jurors was a construction worker. [4] Present counsel for City was not positive whether photos were given to the former deputy pursuant to formal discovery or during informal talk between counsel prior to the filing of the lawsuit.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6519 ANTHONY SAUNDERS, Plaintiff - Appellant, v. HAROLD CLARKE, Director, Virginia Department of Corrections, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:16-cv-00113-MHL-RCY) Submitted: July 27, 2017 Decided: August 1, 2017 Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Anthony Saunders, Appellant Pro Se. Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Saunders seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Saunders has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2